Date: 05-07-2018

Case Style:

Case Number: 17-1465

Judge: Gruender

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Western District of Missouri (Cole County)

Plaintiff's Attorney: David Gregory Brown

Defendant's Attorney: John C. Aisenbrey and James F.B. Daniels, Gerald M. Handley, Thomas M. Harrison and Casey E Elliott

Description: Appellants (the “Creditors”) are attempting to collect on judgments against
Vertical Group, LLC (“Vertical”) and Nathan Reuter by levying assets now belonging
to Nathan’s wife, Kathleen. For the reasons that follow, we affirm the district court’s2
orders granting summary judgment to Kathleen and to Nathan and denying partial
summary judgment to the Creditors.
I.
As we have previously explained, the Creditors are a group of victims
defrauded by a Ponzi scheme run by Nathan and several associates under the aegis
of Vertical. See Cutcliff v. Reuter, 791 F.3d 875, 878-80 (8th Cir. 2015).
In 2006, the Creditors brought suit against Nathan and Vertical to recover their
lost investments. Vertical failed to defend that action, and the district court entered
an order of default without awarding damages. For his part, Nathan filed for
bankruptcy protection, and the district court closed the original matter pending the
outcome of the bankruptcy proceedings. The bankruptcy court awarded the Creditors
actual and punitive damages. Cutcliff v. Reuter (In re Reuter), 427 B.R. 727, 766-68,
779 (Bankr. W.D. Mo. 2010), aff’d, 443 B.R. 427 (B.A.P. 8th Cir. 2011), aff’d, 686
F.3d 511 (8th Cir. 2012). The district court then reopened the Creditors’ original case
and entered a final judgment against Vertical with damages. Cutcliff v. Reuter, No.
2:06–cv–04123–NKL, 2014 WL 229179, at *3 (W.D. Mo. Jan. 21, 2014).
The Honorable Nanette K. Laughrey, 2 United States District Judge for the
Western District of Missouri.
-2-
The present appeal arises from a creditors’ bill that the Creditors filed to
execute these judgments. Because Nathan and 3 Vertical are unable to satisfy these
judgments themselves, the Creditors are targeting assets that formerly belonged to
Nathan and Kathleen as tenants by the entirety. The Reuters transferred these assets
to a revocable trust in 2005 (the “Trust”).4 However, Kathleen revoked the Trust and
transferred the assets to her exclusive possession. Thus, the Creditors seek to levy
assets now held exclusively by Kathleen.
To do so, the Creditors allege that Vertical was a “sham company” that masked
an underlying partnership (the “Tortfeasor Partnership”) consisting of the Reuters, as
tenants by the entirety, and the other individuals who perpetrated the fraud. They
seek to pierce Vertical’s corporate veil; reach the Tortfeasor Partnership, including
the Reuters’ tenancy by the entirety; and levy the Reuters’ assets, which are now
owned individually by Kathleen. In the alternative, the Creditors allege that Nathan
fraudulently transferred his portion of the Trust to Kathleen.
Nathan, Kathleen, and the Creditors each sought some form of summary
judgment. The district court denied the Creditors’ motion for partial summary
judgment, granted Kathleen summary judgment on all claims pertaining to her, and
granted Nathan summary judgment on all counts related to the Trust. Pursuant to the
parties’ stipulation, the district court dismissed the remaining claims. The Creditors
timely appealed.
3“A creditor’s bill is an equitable remedy available to a creditor who seeks to
enforce the payment of debts out of assets that cannot be reached by traditional means
of execution on a judgment established in a suit at law.” Peerless Indus., Inc. v.
Estes, 779 S.W.2d 332, 333 n.2 (Mo. Ct. App. 1989).
4Under Missouri law, when a husband and wife hold property as tenants by the
entirety, they are treated as a single unit. Thus, each spouse owns the whole property,
not a share or part. Ronollo v. Jacobs, 775 S.W.2d 121, 123 (Mo. 1989).
-3-
II.
We review de novo the district court’s grant of summary judgment. Tension
Envelope Corp. v. JBM Envelope Co., 876 F.3d 1112, 1116 (8th Cir. 2017). A
motion for summary judgment should be granted only if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).
As mentioned, the Creditors first seek to pierce Vertical’s corporate veil to
reach the Tortfeasor Partnership. See Saxton v. St. Louis Stair Co., 410 S.W.2d 369,
376 (Mo. Ct. App. 1966). Assuming they are able to pierce the veil, the Creditors
further argue that Nathan’s interest in Vertical was created, funded, and held by the
Reuters as tenants by the entirety. Because all partners are jointly and severally liable
for the partnership’s debts and obligations, see Mo. Rev. Stat. § 358.150.1, the
Creditors maintain that the Reuter entirety is liable for the Tortfeasor Partnership’s
obligations, see Dwyer v. ING Inv. Co., 889 S.W.2d 902, 906 (Mo. Ct. App. 1994).
In sum, the Creditors’ first claim hinges on showing that Nathan’s share in the
Tortfeasor Partnership in fact belonged to the Reuters as a married couple rather than
to Nathan alone.
Leaving aside the question whether the Creditors have made a sufficient
showing to justify piercing the corporate veil, we conclude that the Creditors’
tenancy-by-the-entirety theory fails under Missouri law. As an initial matter,
Missouri generally employs a “weak” presumption that purchases made from entirety
funds are also entirety property. See State ex. rel. State Highway Comm’n of Mo. v.
Morganstein, 649 S.W.2d 485, 489 (Mo. Ct. App. 1983) (“In the absence of other
factors, a tenancy by the entirety is presumed to follow entirety property on
re-investment.”); Cooper v. Freer, 385 S.W.2d 340, 345 (Mo. Ct. App. 1964)
(describing a “weak” presumption that property purchased with entirety funds takes
on the character of entirety property). Because contributions to establish and sustain
-4-
Vertical came from the Reuter entirety, the Creditors argue that Nathan’s interest in
the Tortfeasor Partnership actually belonged to Nathan and Kathleen as tenants by the
entirety due to the presumption.
While Missouri has recognized a partnership interest held by two spouses as
tenants by the entirety, it has done so only when there has been evidence of both
spouses’ clear intent to hold the partnership as a married couple. See Wehrheim v.
Brent, 894 S.W.2d 227, 228-30 (Mo. Ct. App. 1995). Indeed, in Wehrheim v. Brent,
the case relied on by the Creditors, a written partnership agreement expressly
identified the partners as multiple tenancies by the entirety. See id. at 228. Where
there is no evidence of a written or oral partnership agreement, “the only way a
partnership can be established is by implication and this can only be done where there
is clear, cogent and convincing evidence that the purported partners have made a
definite and specific agreement.” Morrison v. Labor & Indus. Relations Comm’n, 23
S.W.3d 902, 909 (Mo. Ct. App. 2000) (alterations and internal quotation marks
omitted). “The clear, cogent and convincing standard is met only when the evidence
instantly tilts the scales in favor of the affirmative when weighed against the evidence
in opposition and the fact finder is thereby left with the abiding conviction that the
evidence is true.” Id. Applying “a ‘weak’ presumption that property purchased with
entirety funds takes on the character of entirety property” fails to meet the higher
evidentiary threshold necessary to establish the existence of a partnership. See
Cooper, 385 S.W.2d at 345.5
The concurring opinion suggests that 5 because we concluded previously that
it was not clear error for the bankruptcy court to find that “a partnership existed
between [Nathan] Reuter and [Daryl] Brown,” In re Reuter, 686 F.3d at 517, the
heightened standard of proof does not apply to the separate question of who owns
Nathan’s partnership interest. Post, at 9-10. However, the Creditors are not asserting
that Kathleen merely shared ownership of Nathan’s partnership interest—that is, his
share of the profits and surplus. See Mo. Rev. Stat. § 358.260. Instead, the Creditors
contend that the Reuter entirety—not Nathan Reuter individually—established a
-5-
The Creditors attempt to establish the requisite intent by pointing to Nathan’s
affirmative response to a leading question suggesting that both he and Kathleen
would have profited if Vertical had been successful.6 However, Nathan’s indication
that he and Kathleen hoped to profit fails to “instantly tilt the scales,” especially in
light of Nathan and Kathleen’s marital relationship. See Fish v. Fish, 307 S.W.2d 46,
52 (Mo. Ct. App. 1957) (“[A]cts and circumstances between spouses may not have
the same significance . . . as the same acts and circumstances between strangers might
have.”). Moreover, the Creditors point to no written or oral partnership agreement
or any other evidence related to the partnership “consistently identif[ying the Reuters]
as tenants by the entiret[y].” See Wehrheim, 894 S.W.2d at 230. As a result, on the
record before us, no reasonable jury could conclude that there was “clear, cogent and
convincing” evidence that the Reuters participated in the Tortfeasor Partnership as
a married couple. Therefore, the district court did not err in granting summary
judgment to the Reuters on the Creditors’ claims seeking to pierce the corporate veil
and reach the assets that once belonged to the Reuters as a married couple.7
partnership with the other tortfeasors and is therefore responsible for partnership
liabilities. Because we have not yet addressed the issue of whether a partnership was
established between the Reuters by the entirety and Brown, we apply the heightened
standard of proof.
6During his deposition, Nathan was asked, “Just to be clear, you were expecting
eventually that you personally and Kathy would receive money back from the
company out of the deals that [Vertical] was trying to put together?” Nathan
responded, “If a company makes a profit, you share in the proceeds of the company.
It was a for profit company. You would hope that if you work that hard, that you
would make a profit.”
7Count II of the creditors’ bill advances the alternative theory that Kathleen
herself was a partner of the Tortfeasor Partnership. While many of the Reuters’
arguments address this question, the Creditors’ reply brief emphasizes that “the only
aspects of the Creditors’ Bill that are at issue on appeal are: (i) The parts of Counts
I and IV that seek to execute the Vertical Judgment against the joint and several
assets of Kathleen and Nathan . . . based on their use of Vertical as their
-6-
The Creditors also advance an alternative theory of recovery. They argue that
Nathan owned 50 percent of the Trust as its settlor, and they seek to levy his portion.
Because Kathleen now owns those assets, they allege that Nathan fraudulently
transferred his settlor’s interest to Kathleen when the Trust was revoked.
However, the parties disagree as to when the Trust was revoked. Kathleen
attempted to revoke the Trust on May 4, 2010. If that revocation was valid, then the
Creditors’ fraudulent-transfer theory would be barred by the four-year statute of
limitations. See Mo. Rev. Stat. § 428.049(1) & (2). But the Creditors claim the
automatic stay mandated by 11 U.S.C. § 362(a)(3) prevented Kathleen’s 2010
revocation from having any effect. The Creditors argue that revocation did not occur
until Kathleen again revoked the trust on May 13, 2016—bringing the Creditors’
action within the statute of limitations.
We need not resolve this disagreement, however, because the Creditors’
alternative theory also presupposes that Nathan was a settlor of the Trust. As the
bankruptcy court explained in 2013, Nathan was not a settlor because he had no right
to revoke the Trust or withdraw the property he contributed. See Olsen v. Reuter (In
re Reuter), 499 B.R. 655, 675 (Bankr. W.D. Mo. 2013).
instrumentality; and (ii) The parts of Count V that plead a fraudulent transfer against
Nathan . . . .” Because we do not address questions not clearly presented for review
on appeal, we need not consider whether Kathleen was a partner in her own right.
See Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir. 1997). Were we
nonetheless to do so, the contributions from entirety property and Nathan’s testimony
about expected profits fail to provide “clear, cogent and convincing evidence” that
Kathleen herself was a partner, see Morrison, 23 S.W.3d at 909, especially because
there is no evidence that Kathleen assisted in the management or operation of the
Tortfeasor Partnership, see Sunkyong Int’l, Inc. v. Anderson Land & Livestock Co.,
828 F.2d 1245, 1249 (8th Cir. 1987).
-7-
Generally, a settlor is a person “who creates, or contributes property to, a trust.”
Mo. Rev. Stat. § 456.1-103(23). A settlor may revoke or amend a revocable trust like
the one at issue here. See id. § 456.6-602. But Missouri includes an exception to the
general definition of settlor when more than one person contributes property to a
trust: “[E]ach person is a settlor of the portion of the trust property attributable to that
person’s contribution except to the extent another person has the power to revoke or
withdraw that portion pursuant to the terms of the trust.” Id. § 456.1-103(23)
(emphasis added).
Kathleen expressly reserved the right to revoke or withdraw Nathan’s portion
under Article X.B. of the Trust: “I reserve the right from time to time during my life,
by written instrument delivered to the trustee, to amend or revoke this instrument in
whole or in part and the right to withdraw any or all of the assets of the trust at any
time . . . .” Nathan has no such power, and, as co-trustee, he is given no authority to
revoke the trust or withdraw his contribution. As a result, the bankruptcy court
correctly determined that Nathan did not own 50 percent of the Trust as a settlor, and
the Creditors’ allegation that he fraudulently transferred his share to Kathleen
necessarily fails.
III.
For these reasons, we affirm.
-8-
COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.
I concur in the judgment but do not join all of the court’s rationale.
In an effort to execute their judgment against Vertical LLC on assets owned by
Kathleen Reuter, the creditors make a two-step argument. First, the creditors contend
that the court should pierce Vertical’s veil to reach the assets of a tortfeasor
partnership that was formed by Nathan Reuter and Daryl Brown. Second, they
maintain that Nathan and Kathleen Reuter owned Nathan’s share in the tortfeasor
partnership as tenants by the entirety, so that Kathleen is liable for the debts of the
tortfeasor partnership. The court concludes that the second step fails and does not
address the first. I do not join the court’s rationale on step two, but conclude that the
argument fails at step one.
In Reuter v. Cutcliff (In re Reuter), 686 F.3d 511 (8th Cir. 2012), this court held
that it was not clear error for the bankruptcy court to conclude that a tortfeasor
partnership existed between Nathan and Brown. Id. at 517. Because Nathan used
funds owned jointly with his wife Kathleen to establish and sustain the partnership,
the creditors argue in their second step that Nathan’s interest in the partnership
belonged to Nathan and Kathleen Reuter as tenants by the entirety. Our prior
decision did not address who owned the partnership interest that was created by
Nathan’s involvement with Brown. See Wehrheim v. Brent, 894 S.W.2d 227, 229
(Mo. Ct. App. 1995) (“[A] partnership may be held in a tenancy by the entireties.”).
The court here concludes as a matter of law that Nathan alone owned the
partnership interest, because there is not “clear, cogent, and convincing evidence”
that Nathan and Kathleen owned the interest as tenants by the entirety. This is a
debatable application of Missouri law that we should be reluctant to adopt. Missouri
courts require clear and convincing evidence to show that a partnership has been
“established.” Morrison v. Labor & Indus. Relations Comm’n, 23 S.W.3d 902, 907-
-9-
09 (Mo. Ct. App. 2000). Our prior decision, however, settled that a partnership was
established by Nathan’s involvement with Brown.
This appeal concerns a separate dispute about who owns the partnership
interest that was identified in our prior decision. As in Werheim, “[w]hile the parties
here do not dispute the existence of the partnership, the nature of it is in dispute.”
894 S.W.2d at 228. There is no Missouri authority dictating that the district court
should decide ownership by a heightened standard of proof rather than by a
preponderance of the evidence. And it would be anomalous to do so. If there is not
clear and convincing evidence that either Nathan or the Reuter entirety owned the
partnership interest, but only a preponderance of the evidence pointing to one or the
other, then we would be left with a partnership interest that has no owner. It seems
more likely that Missouri would apply the traditional preponderance standard to
resolve this dispute. Under that standard, in view of the weak presumption applicable
to entirety funds and Nathan’s testimony, ante, at 5-6, there is a genuine dispute of
material fact about whether the partnership interest is owned by Nathan or the Reuter
entirety.
Of course, whoever owns or holds the partnership interest is the party that
established a partnership with Brown; § 358.260 of the Missouri revised statutes is
not at issue. Cf. ante, at 5 n.5. But our first opinion did not address whether there
was clear and convincing evidence that Nathan individually, as opposed to the Reuter
entirety, established the partnership. If that question were already resolved, then it
would be unnecessary to discuss whether “Nathan’s interest in the Tortfeasor
Partnership actually belonged to Nathan and Kathleen as tenants by the entirety,”
ante, at 5; a simple citation to the prior decision would suffice. By now suggesting
that no partnership could be formed unless there was clear and convincing evidence
that Nathan individually established it, or clear and convincing evidence that the
Reuter entirety established it, the majority unfortunately calls into question whether
there was a partnership at all.
-10-
But even assuming that the Reuter entirety owned an interest in the tortfeasor
partnership, the creditors must pierce the veil of Vertical LLC to recover from
Kathleen. The ordinary grounds to pierce a veil in Missouri are that the entity is
either the instrumentality or the alter ego of the defendant. See Fleming Cos. v. Rich,
978 F. Supp. 1281, 1303 (E.D. Mo. 1997) (summarizing Missouri law). The creditors
disclaim any reliance on an “alter ego” theory. While they do advance what they call
an “instrumentality” theory, they do not argue that the facts here meet the three-part
instrumentality test under Missouri law. See id.
The creditors rely instead on dicta in Saxton v. St. Louis Stair Co., 410 S.W.2d
369 (Mo. Ct. App. 1966), where the state court of appeals considered a workers
compensation claim. The issue was whether a man who claimed workers
compensation benefits was an employee of the company in whose manufacturing
plant he was injured. The claimant asserted that he was an employee; the company
countered that he was a “partner” in the business.
In analyzing the dispute, the court said “[i]t is possible for parties to have
followed such a course of conduct that it becomes apparent that they intended to carry
on as partners because their arrangement of the affairs of the particular enterprise was
such as to indicate that they operated by mutual agreement outside the confines of
corporation law.” Id. at 376. In that situation, the court opined, “the time has arrived
to pierce the corporate veil”—meaning, in Saxton, that the claimant could be treated
as a partner in the company despite his assertion that he was an employee in service
of a corporation. The court in Saxton ultimately held, however, that the claimant was
in the controllable service of a corporation, and was thus an employee.
Saxton was a workers compensation case, not a dispute about imposing
individual liability on persons who compose a corporate entity. Since 1966, no
Missouri court has invoked dicta from Saxton to pierce a corporate veil and reach the
assets of a shareholder or member without a showing that an entity was either an
-11-
instrumentality or an alter ego of an individual who composed it. As the creditors do
not argue that Vertical LLC was an alter ego or a true “instrumentality” of the
tortfeasor partnership, I conclude that the creditors have not established grounds to
pierce the veil of the LLC under Missouri law. I also agree with the court’s rejection
of the creditors’ alternative theory that Nathan fraudulently transferred his settlor’s
interest to Kathleen. Ante, at 7-8. I therefore concur in the judgment.
___________________________
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Outcome: Affirmed

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