Thomas D. Stalnaker v. George Allison, et al

Filing

OPINION FILED - THE COURT: Robert J. Kressel, Barry S. Schermer and Charles L. Nail, Jr. AUTHORING JUDGE:Charles Nail (PUBLISHED) [4120889] [13-6030, 13-6036]

United States Bankruptcy Appellate Panel
For the Eighth Circuit
___________________________
No. 13-6030
___________________________
In re: Tri-State Financial, LLC, doing business as North Country Ethanol
lllllllllllllllllllllDebtor
-----------------------------Thomas D. Stalnaker, Trustee
lllllllllllllllllllll Plaintiff - Appellant
v.
George Allison; Frank Cernik; Phyllis Cernik; Chris Daniel; Amy Daniel;
Distefano Family LTD Partnership; Mark E. Ehrhart; Robert G. Griffin; John
Hoich; Denise Hoich; James G. Jandrain; American Interstate Bank; George
Kramer; Bernie Marquardt; Radio Engineering Industries, Inc.; Joseph Vacanti,
Trustee of The Joseph and Cynthia Vacanti Trust;
lllllllllllllllllllll Defendants - Appellees
Centris Federal Credit Union
lllllllllllllllllllll Defendant - Appellant
-----------------------------Centris Federal Credit Union
lllllllllllllllllllllCounterclaim and Cross-Claim Plaintiff - Appellant
v.

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Thomas D. Stalnaker
lllllllllllllllllllllCounterclaim Defendant - Appellant
and
George Allison; Frank Cernik; Phyllis Cernik; Chris Daniel; Amy Daniel;
Distefano Family LTD Partnership; Mark E. Ehrhart; Robert G. Griffin; John
Hoich; Denise Hoich; James G. Jandrain; American Interstate Bank; Timothy
Jackes; George Kramer; Bernie Marquardt; Radio Engineering Industries, Inc.;
Joseph Vacanti, Trustee of The Joseph and Cynthia Vacanti Trust
lllllllllllllllllllllCross-Claim Defendants - Appellees
___________________________
No. 13-6036
___________________________
In re: Tri-State Financial, LLC, doing business as North Country Ethanol
lllllllllllllllllllllDebtor
-----------------------------Thomas D. Stalnaker, Trustee
lllllllllllllllllllll Plaintiff - Appellee
v.
George Allison; Frank Cernik; Phyllis Cernik; Chris Daniel; Amy Daniel;
Distefano Family LTD Partnership
lllllllllllllllllllll Defendants - Appellants
Mark E. Ehrhart; Robert G. Griffin; John Hoich; Denise Hoich
lllllllllllllllllllll Defendants

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James G. Jandrain; George Kramer; Bernie Marquardt
lllllllllllllllllllll Defendants - Appellants
Radio Engineering Industries, Inc.; Joseph Vacanti, Trustee of The Joseph and
Cynthia Vacanti Trust; American Interstate Bank
lllllllllllllllllllll Defendants
Centris Federal Credit Union
lllllllllllllllllllll Defendant - Appellee
-----------------------------Centris Federal Credit Union
lllllllllllllllllllllCounterclaim and Cross-Claim Plaintiff - Appellee
v.
Thomas D. Stalnaker
lllllllllllllllllllllCounterclaim Defendant - Appellee
-----------------------------George Allison; Frank Cernik; Phyllis Cernik; Chris Daniel; Amy Daniel;
Distefano Family LTD Partnership
lllllllllllllllllllllCross-Claim Defendants - Appellants
Mark E. Ehrhart; Robert G. Griffin; John Hoich; Denise Hoich
lllllllllllllllllllllCross-Claim Defendants
James G. Jandrain

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lllllllllllllllllllllCross-Claim Defendant - Appellant
American Interstate Bank
lllllllllllllllllllllCross-Claim Defendant
Timothy Jackes; George Kramer; Bernie Marquardt
lllllllllllllllllllllCross-Claim Defendants - Appellants
Radio Engineering Industries, Inc.; Joseph Vacanti, Trustee of The Joseph and
Cynthia Vacanti Trust
lllllllllllllllllllllCross-Claim Defendants
____________
Appeal from United States Bankruptcy Court
for the District of Nebraska - Omaha
____________
Submitted: December 10, 2013
Filed: February 5, 2014
____________
Before KRESSEL, SCHERMER and NAIL, Bankruptcy Judges.
____________
NAIL, Bankruptcy Judge.
Trustee Thomas Stalnaker and Centris Federal Credit Union appeal the May 21,
2013 judgment of the bankruptcy court to the extent it determined certain funds were
not property of the bankruptcy estate. James G. Jandrain, Distefano Family Ltd.
Partnership, George Allison, Jr., Frank and Phyllis Cernik, Chris and Amy Daniel,
Timothy Jackes, George Kramer, and Bernie Marquardt appeal the same judgment to
the extent it awarded Stalnaker certain fees and expenses and surcharged those fees
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and expenses against the funds the bankruptcy court determined were not property of
the bankruptcy estate. We reverse and remand for further proceedings consistent with
this opinion.
BACKGROUND
In June and July 2003, a group of investors referred to as "the Omaha Group"
transferred $2,000,000.00 to Tri-State Financial, LLC. Over the following year, TriState Financial transferred $793,654.42 of those funds to Tri-State Ethanol Company,
LLC, which was in chapter 11 bankruptcy in the District of South Dakota, and
$1,190,000.00 of those funds to one of Tri-State Ethanol's vendors.
In July 2004, Tri-State Ethanol's case was converted to chapter 7, and John
Lovald was appointed chapter 7 trustee. Tri-State Financial filed a request for
payment of an administrative expense and a proof of claim seeking recovery of both
the $793,654.42 and the $1,190,000.00. In July 2006, Lovald paid Tri-State Financial
the $793,654.42. Tri-State Financial distributed the entire sum to the Omaha Group.
In November 2008, Tri-State Financial filed a petition for relief under
chapter 11 of the bankruptcy code. In January 2009, Stalnaker was appointed chapter
11 trustee. Sometime thereafter, Lovald paid Stalnaker the $1,190,000.00.
In September 2010, Stalnaker filed an adversary proceeding to determine
ownership of the $1,190,000.00. Stalnaker claimed the funds were property of the
bankruptcy estate. Centris agreed the funds were property of the bankruptcy estate,
but it claimed the funds were subject to its blanket security interest in Tri-State
Financial's assets. James G. Jandrain, Distefano Family Ltd. Partnership, George
Allison, Jr., Frank and Phyllis Cernik, Chris and Amy Daniel, Timothy Jackes,
George Kramer, and Bernie Marquardt (collectively, "Jandrain, et al.") claimed the
funds were held in trust by Tri-State Financial and were thus not property of the
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estate. The matter was tried, and on February 13, 2013, the bankruptcy court entered
an order: (1) determining the funds were not property of the bankruptcy estate; (2)
determining the bankruptcy estate was entitled to be reimbursed both for the legal
fees and expenses it incurred in litigating and eventually settling with Lovald and for
the attorney fees, costs, and expenses it incurred in the adversary proceeding; and (3)
outlining the procedure for Stalnaker to request reimbursement for those fees, costs,
and expenses.
Stalnaker requested $35,944.45 for the legal fees and expenses the bankruptcy
estate incurred in litigating and eventually settling with Lovald and $61,886.90 for
the attorney fees, costs, and expenses the bankruptcy estate incurred in the adversary
proceeding. No party in interest objected to the amounts requested or to the
$35,944.45 being surcharged against the $1,190,000.00. However, several parties in
interest, including Jandrain, et al., objected to the $61,886.90 being surcharged
against the $1,190,000.00. The matter was heard, and on May 21, 2013, the
bankruptcy court entered an order allowing the amounts requested and surcharging
both the $35,944.45 and the $61,886.90 against the $1,190,000.00.
On May 21, 2013, the bankruptcy court entered a judgment incorporating the
terms of its February 13, 2013 and May 21, 2013 orders. Stalnaker and Centris timely
filed a notice of appeal. Jandrain, et al., timely filed a notice of cross appeal.
STANDARD OF REVIEW
We review the bankruptcy court's findings of fact for clear error and its legal
conclusions de novo. Islamov v. Ungar (In re Ungar), 633 F.3d 675, 678-79 (8th Cir.
2011).

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DISCUSSION
Stalnaker and Centris identify fifteen issues presented on appeal. Jandrain, et
al., identify an additional fifteen issues presented on appeal and identify three issues
presented on cross-appeal. These issues may all be boiled down to two: (1) whether
the bankruptcy court erred in concluding the $1,190,000.00 was not property of the
bankruptcy estate; and (2) whether the bankruptcy court erred in surcharging
Stalnaker's attorney fees, costs, and expenses against the $1,190,000.00. Having
reviewed the record and having considered the arguments of the parties, we believe
any consideration of either issue is premature.
In their post-trial brief, Stalnaker and Centris argued, inter alia, "[Tri-State
Financial] is judicially estopped from having any intent or position imputed upon it
other than the [$1,190,000.00] belong[s] to [Tri-State Financial]." Stalnaker and
Centris also argued a "sweeping release" executed in August 2006 by all but two
members of the Omaha Group–Jandrain and Radio Engineering Industries,
Inc.–"includes any claimed obligation of [Tri-State Financial] to turn over the
[$1,190,000.00] to [those parties.]" Finally, Stalnaker and Centris argued the Omaha
Group "should be estopped from asserting ownership to the [$1,190,000.00]." Both
the bankruptcy court's February 13, 2013 order and its May 21, 2013 order are silent
with respect to these arguments.
We could, perhaps, interpret the bankruptcy court's silence as an implicit
rejection of Stalnaker and Centris's arguments and render an opinion on that basis.
However, we believe the better course is to afford the bankruptcy court an
opportunity to consider those arguments, if it did not in fact do so, and explain its
reasoning for accepting or rejecting them.

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CONCLUSION
For the foregoing reasons, we reverse and remand for further proceedings
consistent with this opinion.

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