Matter of Forseth

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Docket Number

Adv. No. 81-0883 (81-0074)

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Smart Summary

Factual and Procedural Background

The complaint was filed on April 10, 1981, alleging five causes of action: fraudulent conveyance of corporate assets; restitution and damages; conspiracy to fraudulently convey corporate assets; intentional breach of contract; and conspiracy to interfere with contractual relations. The defendants denied any actionable wrong but admitted a transfer of corporate property and the existence of an agreement between plaintiff and defendant Ramaker concerning a business venture (San-Terra) related to condominium construction and sales in Florida. The defendants counterclaimed that plaintiff's materially false representations induced the agreements with respect to San-Terra and that those agreements should not be enforced.

The case was transferred to this court on September 2, 1981, following the recusal of the presiding judge. Defendants sought leave to amend their joint answer to include the statute of frauds as an affirmative defense and moved for summary judgment to dismiss the complaint.

Legal Issues Presented

Whether the defendants should be granted leave to amend their answer to include the statute of frauds as an affirmative defense despite the delay in raising it.
Whether the complaint should be dismissed on summary judgment based on defendants' contentions regarding plaintiff Forseth's standing and the nature of his relationship to San Terra.

Arguments of the Parties

Defendants' Arguments

They sought to amend their answer to assert the statute of frauds defense, which was initially raised in their motion for summary judgment.
They argued that plaintiff Forseth lacked standing to bring a fraudulent conveyance action because he was not a shareholder of San Terra.
They contended that Forseth's consent was unnecessary for Ramaker to transfer San Terra’s property.
They claimed that funds advanced by Forseth were loans, not capital contributions, making Forseth a creditor rather than a partner or shareholder.
They asserted that the absence of written agreements destroyed any basis for relief under breach of contract or tortious interference theories.

Plaintiff's Arguments

Plaintiff opposed the amendment on grounds of undue delay and substantial prejudice, emphasizing that discovery had been conducted without anticipation of the statute of frauds defense.
Plaintiff asserted that Forseth was a partner or shareholder, implying standing to bring the claims.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Zenith Radio Corporation v. Hazeltine Research, 401 U.S. 321 (1971)	Discretion in granting leave to amend pleadings	Guided the court’s exercise of discretion regarding defendants’ motion to amend their answer.
Dow Corning Corp. v. Surgitek, 61 F.R.D. 578 (E.D. Wis. 1973)	Allowance of amendment after extensive discovery and delay	Supported granting leave to amend despite delay and discovery completed, as delay was justified by new information.
McPhail v. Bangor Punta Corp., 58 F.R.D. 638 (E.D. Wis. 1973)	Denial of amendment due to undue delay and resulting protracted discovery	Distinguished because the present case involved less delay and no indication of undue burden.
Baker v. Chicago Fire and Burglary Detection, 489 F.2d 953 (7th Cir. 1973)	Excusing failure to plead affirmative defenses and avoiding unfair disadvantage	Supported excusing defendants’ failure to plead statute of frauds initially, as plaintiff was not unfairly prejudiced.
Verhein v. South Bend Lathe, 598 F.2d 1061 (7th Cir. 1979)	Considerations on amendment and discovery	Referenced in evaluating whether amendment and additional discovery would cause undue prejudice or delay.

Court's Reasoning and Analysis

The court analyzed the defendants' motion to amend under Rule 715 of the Federal Rules of Bankruptcy Procedure, which incorporates Rule 15 of the Federal Rules of Civil Procedure. The court recognized that leave to amend is within its discretion and considered relevant precedents from the district and circuit courts. The court found that the defendants’ delay in raising the statute of frauds defense was shorter than delays in comparable cases where amendment was denied. The plaintiff’s only asserted prejudice was the need for additional discovery, which the court found unpersuasive because no discovery deadline had been set and no undue burden was demonstrated.

Regarding the motion for summary judgment, the court identified the threshold issue as the nature of Forseth's relationship to San Terra—whether he was a shareholder, partner, joint venturer, or creditor. The court found that the parties presented voluminous and ambiguous evidence on this point, including conflicting interpretations of the "Stauffacher document." Because genuine issues of material fact existed, the defendants failed to meet their burden under Rule 56 to show no genuine dispute for trial. The court also noted it would be unfair to resolve issues related to the newly pleaded statute of frauds defense without permitting plaintiff further discovery.

Holding and Implications

The court GRANTED the defendants' motion to amend their answer to include the statute of frauds as an affirmative defense.

The court DENIED the defendants' motion for summary judgment, finding genuine issues of material fact precluded judgment as a matter of law and that additional discovery was warranted due to the newly asserted defense.

The direct effect is that the case will proceed with the amended pleadings and further discovery. No new legal precedent was established by this decision.

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In the Matter of John FORSETH, Debtor. John FORSETH, Plaintiff, v. SAN TERRA DEVELOPMENT CORPORATION, Terry Ramaker, James V. Stewart, and Da

Roger Schnitzler, Van Metre, Hanson, Clarke & Schnitzler, Madison, Wis., for debtor.

Steven J. Caulum, Bell, Metzner & Gierhart, S.C., Madison, Wis., for plaintiff.

Paul A. Croake, Ross & Stevens, S.C., Madison, Wis., for defendants.

MEMORANDUM DECISION

CHARLES N. CLEVERT, Bankruptcy Judge.

The defendants in this adversary proceeding have asked the court for leave to amend their joint answer to include the statute of frauds as an affirmative defense and they have also asked that the complaint be dismissed on their motion for summary judgment.

This case was transferred to this court on September 2, 1981, after the presiding judge granted a motion which asked him to recuse himself.

The complaint, filed on April 10, 1981, alleges five causes of actions: fraudulent conveyance of corporate assets; restitution and damages; conspiracy to fraudulently convey corporate assets; intentional breach of contract; and conspiracy to interfere with contractual relations.

The defendants' joint answer denied any actionable wrong but admitted that there was a transfer of corporate property and admitted the existence of an agreement between plaintiff and defendant Ramaker regarding participation in a business venture (San-Terra) for the purpose of constructing and selling condominiums in the State of Florida. In addition, the defendants counter-claimed that the plaintiff's materially false representations induced whatever agreements they entered with respect to San-Terra and that those agreements should not be enforced.

Motion to Amend the Defendants' Answer.

The defendants sought leave to amend their answer on March 23, 1982. This came approximately ten months after they filed their answer and counterclaim

and nearly two months after they raised the statute of frauds defense in their motion for summary judgment. The plaintiff has, therefore, urged the court to deny the motion on the grounds of undue delay and substantial prejudice.

However, the only prejudice cited by the plaintiff was that they had completed a substantial amount of discovery without an idea that they should develop evidence to defeat the statute of frauds defense.

Resolution of defendants' motion is controlled by Rule 715 of the Federal Rules of Bankruptcy Procedure, which incorporated Rule 15 of the Federal Rules of Civil Procedure with several differences which have no bearing on this case. According to Rule 15(a) a party may

The plaintiff has acknowledged that leave to amend under the present circumstances rests within the sound discretion of the court. So, in determining how to exercise that discretion, this court examined several cases from this district and circuit which were very instructive.

Zenith Radio Corporation v. Hazeltine Research, 401 U.S. 321, 331-332, 91 S.Ct. 795, 802-803, 28 L.Ed.2d 77 (1971).

In the case of Dow Corning Corp. v. Surgitek, 61 F.R.D. 578 (E.D.Wis.1973), District Judge Myron Gordon allowed the defendants to file an amended answer and counterclaim in a two year old patent suit despite extensive discovery. Judge Gordon considered the defendants assertion that the amendments became necessary after they received plaintiff's response to their request for admissions, and concluded:

In contrast with Surgitek is Judge Robert Tehan's decision in McPhail v. Bangor Punta Corp., 58 F.R.D. 638 (E.D.Wis.1973). There the court denied the plaintiff's post discovery request to amend his complaint a second time-approximately four years after the suit was filed. Although the court observed that undue delay in the absence of other factors would not bar a proposed amendment to a pleading, it concluded that the amendment was likely to lead to additional protracted discovery and that the trial would, thereby, be unduly delayed.

In Baker v. Chicago Fire and Burglary Detection, 489 F.2d 953 (7th Cir.1973), an employment discrimination case, the defendant-employer raised the affirmative defense of release in support of its motion for summary judgment. There, notwithstanding Rule 8(c) of the Federal Rules of Civil Procedure, under which affirmative defenses, including release and the statute of frauds, are waived if not pleaded, our circuit court sustained a district court decision which excused the defendant's failure to raise the defense in its answer. In so ruling, the court of appeals found that the defendants failure to plead the affirmative defense did not unfairly disadvantage the plaintiff.

Rule 8(c) provides in pertinent part: ... In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

Lastly, consideration was given to Verhein v. South Bend Lathe, 598 F.2d 1061 (7th Cir.1979) where the court said that

Page 446.

In view of those decisions this court has decided to grant defendant's motion to amend. The delay in raising the new defense in this case was substantially less than that in Surgitek, McPhail and Baker, and the only prejudice claimed by plaintiff was that they may need to conduct further discovery because the statute of frauds was not pled earlier. Nevertheless, that argument was not persuasive. A discovery deadline was never imposed in this case; it was not shown that the plaintiff will be unable to conduct additional discovery in light of the new defense; and there was no suggestion that additional discovery will be protracted or unduly burdensome.

Motion for Summary Judgment

The defendants, in their motion for summary judgment, contended that the complaint should be dismissed on the following grounds:

1) Forseth did not have standing to bring a fraudulent conveyance action because he was not a shareholder of San Terra;

2) Forseth's consent was not needed by Ramaker prior to transferring San Terra's property because Forseth was not a San Terra shareholder;

3) The funds advanced by Forseth constituted a loan to San Terra, not a capital contribution, so that at the most Forseth was a creditor of San Terra; and

4) The lack of written agreements to evidence any contracts between San Terra Corporation, John Forseth and David Stauffacher destroyed any basis for relief to plaintiff under the theories of breach of contract or tortious interference with contractual relations.

The court has found that the threshold issue in this case is the nature of Forseth's relationship to the defendant. Was he a shareholder in San Terra, a partner, a joint venturer or a lender?

The parties have offered voluminous documents supporting their respective positions as to the precise relationship of Forseth to San Terra and the individual defendant; plaintiff asserted the existence of a partnership and defendants contended that there was nothing more than a debtor creditor relationship. The resultant picture was reminiscent of Claude Monet's 1920's painting of Parliament overlooking the Thames-generally representative of the subject but devoid of precise detail.

The same was true regarding what the parties have termed the Stauffacher document. The affidavits, counteraffidavits, exhibits and briefs have demonstrated that there is a great deal of ambiguity concerning the Stauffacher document, e.g. whether it was a complete statement of an agreement among San Terra Corporation, John Forseth and David Stauffacher; whether there were other terms left out of the agreement; and whether it was a statement of a intention to enter an agreement in the future. Consequently, it was evident that the defendants, in their motion for summary judgment, did not show that there were no genuine issues of material facts in dispute, Rule 756 of Federal Rules of Bankruptcy Procedure, Rule 56 of Federal of Civil Procedure, 6 Moore's Federal Practice (2d Ed.) P 56.15, which would enable this court to render a decision on the merits of this case. Furthermore, this court has concluded that it would be unfair and inappropriate to decide those issues which relate to the defendants' newly pleaded statute of frauds defense without giving the plaintiff an opportunity to conduct further discovery.

Now, Therefore,

The defendants' motion for summary judgment is hereby denied.