Sveum, Peter v. Stoughton Lumber Co., Inc.

Filing 6

ORDER affirming Bankruptcy Court decision RE: 1 Bankruptcy Appeal. Signed by District Judge William M. Conley on 9/23/14. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PETER A. SVEUM and SUSAN L. SVEUM,
Defendant-Appellant,

OPINION AND ORDER

v.
STOUGHTON LUMBER CO., INC.,

13-cv-00789-wmc

Plaintiff-Appellee.

Peter A. Sveum appeals from a judgment entered in the Bankruptcy Court for the
Western District of Wisconsin finding that their debt to appellee Stoughton Lumber Co.,
Inc., was nondischargeable. The court affirms the bankruptcy court’s judgment due to
Peter’s defalcation. The court also finds that the bankruptcy court’s nondischargeability
order was not overbroad based on its reference to the liability that may arise from Dane
County Circuit Court Case No. 12-CV-2812 (“Stoughton II”).

BACKGROUND1
Appellant Peter Sveum filed a petition for bankruptcy under Chapter 7 of the
Bankruptcy Code in the Western District of Wisconsin on October 2, 2012. In re Sveum,
No. 12-15483 (Bankr. W.D. Wis.). Peter, along with his brother Phillip, has co-owned
and co-operated Kegonsa Builders, Inc. (“KBI”), a home-building company, since 1989.
Appellee Stoughton Lumber Co., Inc. (“Stoughton Lumber”) supplied materials and
services to KBI. Between July 2008 and January 2011, KBI purchased on credit and
received materials and services from Stoughton Lumber to construct 34 residential

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The parties do not generally challenge the Bankruptcy Court’s factual findings in this case. The
essential facts are briefly summarized below.

properties. As the housing market deteriorated, KBI fell behind on its payments despite
Stoughton Lumber’s efforts to collect.
In January 2011, Stoughton Lumber sued KBI, Peter, and Phillip in Dane County
Circuit Court, alleging three causes of action: breach of contract; theft by contractor,
pursuant to Wis. Stat. § 779.02(5); and theft by officer, pursuant to Wis. Stat.
779.02(5). Stoughton Lumber Co. v. Kegonsa Builders, Inc., No. 11-CV-220 (Wis. Cir. Ct.
Dane Cnty.) (“Stoughton I”). In June 2011, Stoughton Lumber settled with KBI, Peter
and Phillip.

Pursuant to the settlement agreement, Stoughton Lumber received: 1)

$100,000; 2) a Promissory Note in the amount of $550,000 from KBI guaranteed by the
Sveum brothers; 3) a subordinate mortgage against real estate owned by Sveum
Investment Company, Inc.; and 4) the right to 50% of the profits of KBI’s construction
projects until Stoughton Lumber had been paid in full. The settlement agreement also
called for Stoughton Lumber’s claims to be dismissed with prejudice.
On February 8, 2012, the first lien holder on the real estate securing the
settlement initiated foreclosure proceedings.

Under the terms of the settlement

agreement, foreclosure on collateral constituted default, which led Stoughton Lumber to
file a second lawsuit in Dane County Circuit Court to collect the $568,263.10 balance
due on the promissory note. Stoughton Lumber Co. v. Kegonsa Builders, Inc., No. 11-CV2812 (Wis. Cir. Ct. Dane Cnty.) (“Stoughton II”).

Stoughton Lumber moved for

summary judgment, and a hearing was set for October 4, 2012. On October 2, 2012,
Peter and Phillip, along with their spouses, filed for bankruptcy. On October 4, 2012,
Stoughton Lumber obtained a default judgment against KBI for $589,638.10
($578,180.61 in damages and $11,458.50 in fees and collection costs).
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Peter and

Phillip, as guarantors of the settlement agreement, each listed a personal debt to
Stoughton Lumber of $568,263.10 on their bankruptcy schedules. After the Sveums
filed for bankruptcy, Stoughton Lumber commenced the adversary proceeding that is the
subject of this appeal.2 Stoughton Lumber Company, Inc., v. Peter A. Sveum, No. 13-00002
(Bankr. W.D. Wis.).
In the adversary proceeding, Stoughton Lumber asserted that the debt created in
the Stoughton I settlement agreement was nondischargeable because it arose from fraud or
defalcation under 11 U.S.C. § 523(a)(4). Specifically, Stoughton Lumber maintained
that Peter committed theft-by-contractor pursuant to Wis. Stat. § 779.02(5) by failing to
hold, remit or hold in trust for Stoughton Lumber proceeds KBI received from the sale of
buildings constructed using Stoughton Lumber materials.

Stoughton Lumber also

claimed that KBI submitted construction draw requests to its lenders, identifying the
subcontractors -- including Stoughton Lumber -- to be paid with the draws, but Peter
never provided those funds to the identified subcontractors.

Rather than being

segregated, proceeds from these draws were instead deposited into a single bank account
and became part of a general pool used to pay bills, business expenses, overhead and
some subcontractors at Peter’s direction. Additionally, as KBI continued to sell homes
while neglecting to pay Stoughton Lumber, Peter signed false affidavits representing to
the banks and title companies that all subcontractors had been paid in full.

2

Stoughton Lumber also commenced an adversary proceeding against Phillip Sveum pertaining to
the same issue of nondischargeability. Stoughton Lumber Company, Inc., v. Phillip A. Sveum, No. 1300003 (Bankr. W.D. Wis.). These two adversary proceedings were consolidated into the one
bench trial that is now the subject of this appeal.

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The bankruptcy court conducted a bench trial on August 1, 2013. At the end of
the trial, the court issued an oral opinion in favor of Stoughton Lumber. (Dkt. #5-1, pg.
244-251.) The bankruptcy court specifically found that Peter had violated Wisconsin’s
theft-by-contractor statute, and in doing so demonstrated a conscious disregard for his
duty to hold funds in trust for Stoughton Lumber.

In reaching this conclusion, the

bankruptcy court pointed out that Peter acknowledged intentionally using payments
from draws to pay parties other than the subcontractors who contributed to the projects
securing the loan on which the draws were made. The bankruptcy court also noted that
Peter made false representations on seller’s certificates stating that all subcontractors had
been paid in full when in fact they had not.
Judge Martin found that these misrepresentations constituted at the very least a
“willful disregard for [Peter’s] fiduciary duty,” and at most, “outright fraud.”

(Id. at

250.) While Peter argued that he did not know his actions violated the theft-by-contract
statute at the time, Judge Martin found this claim of ignorance to be “disingenuous.” (Id.
at 249.) Judge Martin further found that someone in Peter’s position must have known
that the funds he received were held in trust for subcontractors and that his actions
amounted to defalcation. Based on these findings, the bankruptcy court ordered that the
debt owed to Stoughton Lumber, whether embodied in the original settlement agreement
or otherwise, was nondischargeable under 11 U.S.C. § 523(a)(4).

OPINION
Pursuant to 28 U.S.C. § 158(a), Peter now appeals from the bankruptcy court’s
judgment on two bases: (1) the bankruptcy court had insufficient evidence to find that
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Peter was willfully blind to the fiduciary duties imposed on him by the Wisconsin theftby-contractor statute, Wis. Stat. § 779.02(5); and (2) the bankruptcy court’s
nondischargeability order was overbroad in scope because it encompasses more than just
Peter’s liability to Stoughton Lumber for violating the theft-by-contractor statute. This
court reviews the bankruptcy court’s findings of fact deferentially for clear error and its
legal conclusions de novo. See In re Doctors Hosp. of Hyde Park, Inc., 474 F.3d 421, 426
(7th Cir. 2007) (citing Fed. R. Bankr. P. 8013 and In re Crosswhite, 148 F.3d 879, 881
(7th Cir. 1998)).
I.

Nondischargeability
Wisconsin’s Theft by Contractor Statute provides in relevant part:
Theft by Contractors. The proceeds of any mortgage on
land paid to any prime contractor or any subcontractor for
improvements upon the mortgaged premises, and all moneys
paid to any prime contractor or subcontractor by any owner
for improvements, constitute a trust fund only in the hands of the
prime contractor or subcontractor to the amount of all claims due or
to become due or owing from the prime contractor or
subcontractor for labor, services, materials, plans, and
specification used for the improvements, until all the claims
have been paid, and shall not be a trust fund in the hands of
any other person. The use of any such moneys by any prime
contractor or subcontractor for any other purpose until all claims,
except those which are the subject of a bona fide dispute and
then only to the extent of the amount actually in dispute,
have been paid in full or proportionally in cases of deficiency, is theft
by the prime contractor or subcontractor of moneys so
misappropriated and is punishable under s. 943.20.

Wis. Stat. § 779.02(5) (emphasis added).
In order to demonstrate an exception to discharge under 11 U.S.C. § 523(a)(4), a
creditor must demonstrate: “(1) the existence of a trust; (2) the debtor having been a
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fiduciary of that trust; and (3) fraud or defalcation by the debtor while acting as a
fiduciary of the trust.” Chase Lumber & Fuel Co. v. Koch (In re Koch), 197 B.R. 654, 657
(Bankr. W.D. Wis. 1996).

The only disputed element of § 523(a)(4) on appeal is

whether the bankruptcy court clearly erred in finding that Peter’s actions in violation of
the theft-by-contractor statute constituted defalcation.
Given the nearly overwhelming facts supporting the court’s finding, the question
essentially answers itself. Nevertheless, Peter devotes significant space to outlining the
defalcation standard, and the court accordingly reviews it here. Recently, in Bullock v.
Bank Champaign, N.A., 133 S. Ct. 1754 (2013), the United States Supreme Court
definitively addressed the level of culpability required for conduct to constitute
defalcation under 11 U.S.C. § 523(a)(4).

Before Bullock, there was a split among

bankruptcy judges as to the mental state necessary under 11 U.S.C. § 523(a)(4).
Compare Starfire v. Dolata (In re Dolata), Bankr. No. 08-23866-pp, Adversary No. 092056, 2010 WL 3860481, at *10 (Bankr. E.D. Wis. Oct. 1, 2010) (Pepper, J.) (“more
than mere negligence” is required to demonstrate defalcation under § 523(a)(4)), with
Romes Design, Inc. v. Dinkins (In re Dinkins), 327 B.R. 918, 923 (Bankr. E.D. Wis. 2005)
(McGarity, J.) (“[n]o wrongful intent is required for a finding of nondischargeability”).
Bullock involved a trustee who on several occasions borrowed and then repaid
funds from a trust established by his father.

133 S. Ct. at 1757. The beneficiaries

brought a suit against the trustee, and the state court found that even though the trustee
did not act with “a malicious motive,” his actions clearly involved self-dealing.

Id.

(quoting App. To Pet. For Cert. 45a, 52a). When the trustee filed for bankruptcy, the
judgment against him was deemed nondischargeable because it constituted a debt for
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defalcation while acting in a fiduciary capacity. Id. at 1758. The District Court and
Eleventh Circuit Court of Appeals upheld the bankruptcy court’s ruling. Id.
In appealing to the U.S. Supreme Court, the trustee disputed the standard of
culpability applied by the lower courts, and argued that defalcation required more than a
showing of “objective recklessness.” Bullock, 133 S. Ct. at 1759. The Supreme Court
agreed, holding that “where the conduct at issue does not involve bad faith, moral
turpitude, or other immoral conduct, [defalcation] requires an intentional wrong.”

Id.

(emphasis added). The court concluded, however, that actual knowledge of wrongdoing
was not necessary to establish such intent; the requirement was also met where the
fiduciary “‘consciously disregards’ (or is willfully blind to) ‘a substantial and unjustifiable
risk’” that his conduct will violate a fiduciary duty.

Id.

The court framed such

recklessness as “a gross deviation from the standard of conduct that a law-abiding person
would observe in the actor’s situation.” Id. at 1760.
Given the Bullock Court’s confirmation of a heightened level of culpability for a
finding of defalcation, Peter argues that the bankruptcy court could not have found he
acted with the requisite state of mind. This argument is fundamentally flawed on two
levels. First, Judge Martin applied the right standard: he found Peter Sveum committed
exactly the kind of knowing or willfully blind wrong required after Bullock to constitute
defalcation under 11 U.S.C. § 523(a)(4).3 Second, there is more than sufficient evidence

Indeed, the standard adopted in Bullock is consistent with both Judge Martin’s and the Seventh
Circuit’s previous interpretation of defalcation. See, e.g., Meyer v. Rigdon, 36 F.3d 1375, 1384-85
(7th Cir. 1994) (“[A] mere negligent breach of a fiduciary duty is not a defalcation under Section
523(a)(11).”) (emphasis in original); Chase Lumber & Fuel Co. v. Koch (In re Koch), 197 B.R. 654,
657 (Bankr. W.D. Wis. 1996) (describing defalcation as “more than negligence, though less than
fraud,” and noting that “something akin to “reckless’ may be the appropriate standard.”); In re
Polus, 455 B.R. 705, 708-09 (Bankr. W.D. Wis. 2011) (“‘Defalcation is defined as something
3

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in the record to support the court’s finding that Peter acted knowingly or at least with
willful blindness to his fiduciary duties under the Wisconsin theft-by-contractor statute.
Peter testified to consciously and intentionally directing payments to pay parties
other than the subcontractors who contributed to the projects securing the loan on which
the draws were made. (Dkt. #5-1 at 111-116) As co-owner and co-officer, Peter also
personally instructed his Controller with respect to every payment made from
subcontractor trust funds. In light of that testimony, the bankruptcy court articulated
ample reason to find Peter knew those funds were being diverted away from rightful the
beneficiary of the constructive trust in violation of his fiduciary duties.
Finally, although unnecessary to the overall holding, the court went on to point
out that KBI failed to segregate funds received as draws on the improvement of real
estate to ensure that they ultimately went to the appropriate subcontractors. Instead, the
money was placed in a single account used to pay general operating expenses and bills.
What the bankruptcy court justifiably found most telling was that Peter, despite being
fully aware that he was not segregating and directing payments to the particular
subcontractors and suppliers in question, he was still regularly and knowingly making
false representations on seller’s certificates that all subcontractors for the property had
been paid in full. Indeed, Judge Martin found that such intentional misrepresentations
to title companies likely went beyond defalcation and constituted common law fraud.
(Id. at 250.)
While questions could be raised as to the bankruptcy court’s finding that the “five
fingers of fraud” were present -- particularly reliance, given that the representations were
more than negligence.’”).

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being made to a title company that arguably was accepting them in blank and in advance
of completion of work -- upholding the bankruptcy court’s judgment does not depend on
a finding of common law fraud.

See Bullock, 133 S. Ct. at 1759-60 (knowledge of

wrongdoing or willful blindness to substantial risk that conduct will violate fiduciary duty
is sufficient).
Far from being “clearly erroneous,” the bankruptcy court’s determination as to
Peter’s misconduct here derives support from nearly overwhelming evidence of
knowledge of wrongdoing and willful blindness to his fiduciary duties. Peter’s claims of
ignorance of his obligations to hold draws in trust for work done plays no better in this
court than in the court below. Indeed, it fares worse, since this court can only review
such a credibility determination for an abuse of discretion. See Bonnett, 895 F.2d 1155,
1157 (7th Cir. 1989). Here, Stoughton Lumber’s president, Jim Gerber, testified that
the duties created by the theft-by-contractor statute are well known.

Peter himself

testified that he had a general knowledge of the law. Given the facts of record, Peter’s
argument that the bankruptcy court’s finding of conscious disregard was clearly
erroneous finds no purchase.
Peter’s main argument is that no evidence supports the finding that he knew he
had trust obligations under the theft-by-contractor statute, even though he knew it existed
and had more than three decades of practical contracting experience.

While Peter

testified that he did not know of those particular obligations, the bankruptcy court found
his claims of ignorance “disingenuous,” and this court holds it had ample grounds to do
so. (Dkt. #5-1 at 190-195.) In Judge Martin’s words, the duty created by the theft-bycontractor statute is so “fundamental to construction law” (a statement supported in
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Gerber’s testimony and otherwise uncontradicted) that it proved impossible to accept
Peter’s testimony.

(Id. at 249.)

This court is required to be deferential to such

credibility determinations and does not disturb them in the absence of clear error, as the
bankruptcy court is in the best position to make such findings. See Fed. R. Bankr. P.
8013 (“[f]indings of fact, whether based on oral or documentary evidence, shall not be
set aside unless clearly erroneous, and due regard shall be given to the opportunity of the
bankruptcy court to judge the credibility of witnesses”).
In light of this deferential standard of review, and cognizant of the evidence of
knowledge and willful blindness outlined above, the court has no basis to find that the
bankruptcy court erred in discounting Peter’s testimony. This credibility determination,
combined with Peter’s questionable actions and decades of experience, provide a
sufficient basis to find that his violation of the theft-by-contractor statute constituted
defalcation. Therefore, the court finds no error in the bankruptcy court’s ruling and will
affirm the judgment of nondischargeability.

II.

Overbreadth of Nondischargeability Order
Peter also challenges as overbroad the bankruptcy court’s order defining his

nondischargeable, pre-petition debt as any amount, “whether reduced to judgment in
Dane County Circuit Court Case No. 12-CV-2812, or any judgment or settlement
thereafter.” While Peter’s argument on this issue is less than a model of clarity, as the
court understands it, he is contending that his liability for defalcation, which arose from
the settlement of Dane County Circuit Court Case No. 11-CV-220 (“Stoughton I”), is not
the same as the liabilities that are the subject of Dane County Circuit Court Case No.
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12-CV-2812 (“Stoughton II”), to which the bankruptcy court referred in its order.4
In support of his argument, Peter cites to the U.S. Supreme Court case Archer v.
Warner, 538 U.S. 314 (2003), but, if anything, that case supports the opposite
conclusion. The bankruptcy debtor in Archer argued that a settlement agreement resulted
in a kind of novation that replaced an original potential debt for money obtained by
fraud with a new dischargeable debt. Id. at 318. The debtor claimed that this new debt
was not for money obtained by fraud, but was instead for money promised in a contract,
which altered the character of the debt. Id. The Supreme Court rejected this argument,
holding that even though the settlement may have acted as “a kind of novation,” that
novation did not bar an objection to discharge. Id. at 322.
The Supreme Court concluded that it is necessary to examine, just as the
bankruptcy court did here, whether the conduct underlying the settlement agreement
constituted fraud or defalcation, as “the mere fact that a conscientious creditor has
previously reduced his claim to judgment should not bar further inquiry into the true
nature of the debt.” Archer, 538 U.S. at 320-21 (quoting Brown v. Felsen, 442 U.S. 127,
138 (1979)). Indeed, this case is factually analogous to Archer: Stoughton Lumber sued
KBI seeking money allegedly obtained through defalcation; the parties settled for a fixed
sum that KBI did not pay; and Stoughton Lumber now claims that fixed sum is
nondischargeable. Consistent with Archer, Stoughton Lumber had every right to ask the
bankruptcy court to examine the “true nature” of the debt embodied in the Stoughton I

Stoughton Lumber may have misunderstood Peter’s argument on this issue to be one of res
judicata. The court does not interpret Peter’s argument as such, and Peter states as much in his
reply brief. (See Appellant’s Reply Br. (dkt. #4) 4.). That said, any confusion on the part of
Stoughton Lumber is understandable, as Peter’s arguments on this issue were far from clear.
4

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settlement agreement.
As was also the case in Archer, there is no doubt the conduct that prompted
Stoughton I and the resulting settlement involved fraud or defalcation.

The only

difference between this case and Archer is that there is another link in the chain of events:
the Stoughton II lawsuit, which seeks to enforce the Stoughton I settlement agreement.
Even with this intervening lawsuit, however, the reasoning in Archer requires this court to
examine the true nature of the debt that would be embodied in the judgment or
settlement arising from Stoughton II.

In this case, there is a causal chain connecting

Peter’s original defalcation to the Stoughton II lawsuit. There would be no Stoughton II
lawsuit had there not been settlement of the Stoughton I lawsuit, and there would not
have been the Stoughton I lawsuit had it not been for Peter’s original misconduct, which
the bankruptcy court had ample reason to find constituted defalcation. As a result, any
monetary judgment in Stoughton II arising from the debt created in the Stoughton I
settlement agreement also arises from Peter’s underlying defalcation, which set this whole
sequence of litigation in motion.
Peter also appears to argue that the bankruptcy court’s order is overbroad because
it would exclude from discharge damages for contractual interests, expenses and
attorney’s fees associated with Stoughton II, in addition to any damages incurred by an
alleged violation of the trust. This argument, too, fails based on the reasoning in Archer.
While Stoughton II on its face may be a suit to enforce a settlement, the settlement terms
that Stoughton Lumber is attempting to enforce embodies a debt for defalcation.

It

logically follows from the holding in Archer that if the bankruptcy court can exclude from
discharge a settlement embodying a debt for defalcation or fraud, it can also exclude from
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discharge any liability associated with enforcing that same settlement. Id. at 320-22; see
also In re Schwartz, No. 07-30508, 2007 WL 3051865, at *3 (Bankr. S.D. Tex. Oct. 17,
2007) (“In § 523 proceedings, the relevant inquiry focuses on the conduct from which the
debt originally arose. Liable parties can not erase the history of a debt’s origin through a
settlement and subsequent breach of the settlement.”) (emphasis added).
Peter points to no authority, in Archer or elsewhere, that makes such a hypertechnical distinction either necessary or sensible between the original debt owed and
additional fees, expenses and interests awarded pursuant to the express terms of the
original settlement agreement in Stoughton I. As already noted, Archer simply mandates
that the court examine the underlying character of a debt to determine if, on a
fundamental level, it arose from fraud or defalcation. As a result, any expenses, fees or
interests awarded in Stoughton II pursuant to contractual rights set forth in the original
settlement agreement would still amount to money owed for defalcation, and be barred
from discharge. Accordingly, the court finds no factual or legal error in the scope of the
bankruptcy court’s opinion and order and will affirm the judgment of nondischargeability
as it extends to liability arising out of the Stoughton II lawsuit.
ORDER
IT IS ORDERED that
1) the bankruptcy court’s judgment that Peter’s conduct constituted defalcation
under 11 U.S.C. § 523(a)(4) is AFFIRMED; and

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2) the bankruptcy court’s determination that Peter’s pre-petition debt, “whether
reduced to judgment in Dane County Circuit Court Case No. 12-CV-2812, or
any judgment or settlement thereafter is nondischargeable” is AFFIRMED.
Entered this 23rd day of September, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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