Filed: May 09, 1996
Latest Update: Mar. 02, 2020
Summary: _ No. 95-1268 No. 95-1383 _ Jones Truck Lines, Inc., * * Plaintiff - Appellee/ * Cross-Appellant, * * Appeals from the United States v. * District Court for the * Western District of Arkansas. Full Service Leasing * Corporation, * * Defendant - Appellant/ * Cross-Appellee. * _ Submitted: November 16, 1995 Filed: May 9, 1996 _ Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges. _ LOKEN, Circuit Judge. Jones Truck Lines, Inc. ("Jones"), a bankrupt common carrier, sues to recover as prefe
Summary: _ No. 95-1268 No. 95-1383 _ Jones Truck Lines, Inc., * * Plaintiff - Appellee/ * Cross-Appellant, * * Appeals from the United States v. * District Court for the * Western District of Arkansas. Full Service Leasing * Corporation, * * Defendant - Appellant/ * Cross-Appellee. * _ Submitted: November 16, 1995 Filed: May 9, 1996 _ Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges. _ LOKEN, Circuit Judge. Jones Truck Lines, Inc. ("Jones"), a bankrupt common carrier, sues to recover as prefer..
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___________
No. 95-1268
No. 95-1383
___________
Jones Truck Lines, Inc., *
*
Plaintiff - Appellee/ *
Cross-Appellant, *
* Appeals from the United States
v. * District Court for the
* Western District of Arkansas.
Full Service Leasing *
Corporation, *
*
Defendant - Appellant/ *
Cross-Appellee. *
___________
Submitted: November 16, 1995
Filed: May 9, 1996
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Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
___________
LOKEN, Circuit Judge.
Jones Truck Lines, Inc. ("Jones"), a bankrupt common carrier, sues
to recover as preferences three payments made to its truck and trailer
lessor, Full Service Leasing Corporation ("FSLC"), during the ninety-day
period preceding Jones's bankruptcy. A jury found that only the third
payment was preferential, and both parties appeal, raising issues of
insolvency, "ordinary course of business," and "new value" under the
preferential transfer provision of the Bankruptcy Code, 11 U.S.C. § 547.
Concluding that the district court1 properly instructed the jury on these
issues, and that the jury's verdict is unassailable, we affirm.
1
The HONORABLE H. FRANKLIN WATERS, Chief Judge of the United
States District Court for the Western District of Arkansas.
I. Background.
On May 1, 1990, FSLC began renting trucks and trailers to Jones under
a five-year Master Lease Agreement. The Agreement provided for monthly
unsecured rental payments based upon the amount of equipment under lease.
It also provided that, if Jones failed to make timely rental payments, FSLC
could declare a default, terminate the Agreement, and repossess leased
equipment.
Jones encountered financial difficulties in late 1990 and began
delaying payment of some invoices. Jones continued making monthly lease
payments to FSLC within one week of the due dates, however, suspecting that
FSLC would not tolerate late payments. By early 1991, Jones's financial
woes had worsened, and it began delaying rent payments to FSLC. On March
5, FSLC contacted Jones and demanded immediate delivery of all payments
due. Jones sought permission to make lease payments sixty days late, but
FSLC refused. Jones subsequently made three late payments to FSLC within
ninety days of filing for bankruptcy on July 9, 1991:
AMOUNT PAID DATE DUE DATE PAID
$162,498.00 3/ 1/91 4/15/91
$133,350.00 3/18/91 5/17/91
$147,420.72 4/ 1/91 6/ 4/91
In this lawsuit, Jones as debtor-in-possession seeks to recover those
payments as avoidable preferences under § 547. "A preference is a transfer
that enables a creditor to receive payment of a greater percentage of his
claim against the debtor than he would have received if the transfer had
not been made and he had participated in the distribution of the assets of
the bankrupt estate." H.R. No. 595, 95th Cong., 1st Sess. 177, 178 (1977),
reprinted in 1978 U.S.C.C.A.N. 5787, 6138. Jones made the three payments
within the ninety-day preference period defined in § 547(b)(4)(A).
However, FSLC argues that the payments were not avoidable preferences
because (i) Jones was not "insolvent" when
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each transfer was made, § 547(b)(3); (ii) the transfers were made in the
ordinary course of business, § 547(c)(2); and (iii) FSLC gave Jones "new
value" following each transfer, § 547(c)(4).2
At trial, the district court determined that these are issues of
fact, denied each party's pre-verdict motions for judgment as a matter of
law (JMAL), and instructed the jury on insolvency, ordinary course of
business, and new value. The jury found (i) that Jones was solvent when
it made the first payment but insolvent when it made the second and third;
(ii) that the second payment was made in the "ordinary course of business"
2
Section 547 is a lengthy statute. The provisions at issue on
this appeal are:
§ 547(a)(2): In this section -- "new value" means money or
money's worth in goods, services, or new credit . . . but does not
include an obligation substituted for an existing obligation[.]
§ 547(b): Except as provided in subsection (c), the trustee
may avoid any transfer of an interest of the debtor in property
. . . (3) made while the debtor was insolvent [and] (4) made on or
within 90 days before the date of the filing of the petition . . .
§ 547(c): The trustee may not avoid under this section a
transfer --
(2) to the extent that such transfer was --
(A) in payment of a debt incurred by the debtor in
the ordinary course of business . . .
(B) made in the ordinary course of business
. . . of the debtor and the transferee, and
(C) made according to ordinary business terms;
* * * * *
(4) to or for the benefit of a creditor, to the extent
that, after such transfer, such creditor gave new value
to or for the benefit of the debtor . . .
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but the third payment was not; and (iii) that FSLC did not give new value
for the three
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payments. Consistent with this verdict, the district court entered
judgment for Jones in the amount of the third payment, $147,420.72, plus
prejudgment interest. Both parties appeal. FSLC argues that the third
payment was not preferential because it was made in the "ordinary course
of business" or for "new value." Jones argues that it made the first
payment while insolvent.
II. Jury Instruction Issues.
FSLC argues that the district court erred in giving an "ordinary
course of business" instruction that directed the jury to consider, to the
exclusion of other factors, the course of dealing between FSLC and Jones.
FSLC further argues that the district court erred in instructing the jury
on "new value" because the instruction (i) did not state that a lessee's
continued use of leased equipment can be "new value" for late rental
payments, and (ii) placed too much emphasis on the policy underlying
preference avoidance -- equal treatment of a bankrupt's creditors.
A. Failure to Object. The first problem is that these issues were
not properly preserved. Before closing arguments, the district court
distributed its proposed jury instructions and reminded counsel to state
any objections before the jury retired to deliberate, as Fed. R. Civ. P.
51 requires. Though the court repeated that reminder after instructing the
jury, FSLC made no specific objections; instead, FSLC objected "[t]o the
extent that these instructions vary from" FSLC's proposed instructions.
Rule 51 requires specific objections before the jury retires so that
the district court may correct errors, thereby avoiding the need for a new
trial. See Barton v. Columbia Mut. Casualty Ins. Co., 930 F.2d 1337, 1341
(8th Cir. 1991). Objections must "bring into focus the precise nature of
the alleged error." Palmer v. Hoffman,
318 U.S. 109, 119 (1943). "The
mere tender of an alternative instruction without objecting to some
specific error in
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the trial court's charge or explaining why the proffered instruction better
states the law does not preserve the error for appeal." Johnson v. Houser,
704 F.2d 1049, 1051 (8th Cir. 1983).
FSLC explains that it did not make specific objections because the
district court was aware of FSLC's position and did not want counsel
arguing the instructions. "In this circuit, however, concern that the
trial judge would prefer no objection or the view that the objection would
be futile does not relieve parties from making an objection to preserve
errors for review." Starks v. Rent-A-Center, 58 F.3d 358, 362 (8th Cir.
1995). Moreover, the district court repeatedly invited FSLC to make a
proper record, and it failed to do so. Consequently, we review the
instructions only for plain error, that is, whether an error "has seriously
affected the fairness, integrity, or public reputation of the judicial
proceedings." Rolscreen Co. v. Pella Prods., Inc.,
64 F.3d 1202, 1211 (8th
Cir. 1995) (quotation omitted).
B. No Plain Error. The district court's "ordinary course of
business" instruction was not error, let alone plain error. The
instruction separately explained the three subparts of § 547(c)(2). In
explaining § 547(c)(2)(B), the court focused on the relationship between
FSLC and Jones, consistent with both the statutory language and our
decision in Lovett v. St. Johnsbury Trucking, 931 F.2d 494 (8th Cir. 1991).
Thus, FSLC's contention that the court should have focused the jury's
attention on Jones's late payments to other creditors and on FSLC's
acceptance of late payments from other debtors is wrong. Moreover, in
instructing the jury on the phrase "ordinary business terms" in
§ 547(c)(2)(C), the court broadened the jury's focus to include "standards
prevailing in the industry," consistent with our decision in In re U.S.A.
Inns of Eureka Springs, Ark., Inc.,
9 F.3d 680, 684 (8th Cir. 1993).
Likewise, the district court's "new value" instruction was not error,
let alone plain error. FSLC complains because the jury was
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not told to consider the benefit conferred by Jones's continued use of the
leased equipment, and because the instruction overemphasized the purpose
of the preference statute and did not explain that this preference defense
is intended to encourage creditors to work with troubled businesses.
However, the unchallenged instruction included the statutory definition of
"new value" in § 547(a)(2), and it accurately paraphrased § 547(c)(4).
This left FSLC free to argue its theory that Jones's continued use of the
leased equipment after making late rental payments constituted "new value."
The instruction went on to accurately summarize the policies underlying
§ 547 preferences.3 While the court might also have explained that
§ 547(c)(4) is intended to encourage creditors to work with troubled
companies, as we said in In re Kroh Bros. Dev. Co., 930 F.2d 648, 651 (8th
Cir. 1991), that omission is not plain error. Finally, the instruction
directed the jury's attention to the central inquiry in the "new value"
analysis by concluding, "[i]f a creditor advances new value to the debtor,
the debtor's assets have not been depleted to the disadvantage of other
creditors." See Kroh
Bros., 930 F.2d at 652.
III. Sufficiency of the "Ordinary Course" Evidence.
FSLC argues that there was insufficient evidence that the third
payment was not made in the "ordinary course of business" under §
547(c)(2). We review the evidence in the light most favorable to the
jury's verdict, Nicks v. Missouri, 67 F.3d 699, 704 (8th Cir. 1995), and
affirm unless "all of the evidence points one way" and is susceptible of
no reasonable inference sustaining
3
In permitting the bankruptcy estate to recover preferential
transfers, Congress intended to discourage creditors "from racing
to the courthouse to dismember the debtor during his slide into
bankruptcy," and, more importantly, to further "the prime
bankruptcy policy of equality of distribution among creditors."
H.R. No. 595, 1978 U.S.C.C.A.N. at 6138.
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the jury's determination. McKnight v. Johnson Controls, Inc., 36 F.3d
1396, 1400 (8th Cir. 1994).
FSLC had the burden of proving that the third payment was made (i)
in the ordinary course of the parties' business and (ii) according to
ordinary business terms. U.S.A. Inns, 9 F.3d at 682. From May to December
1990, Jones consistently paid rent to FSLC in the week payment was due
under the Master Lease Agreement. As its financial situation worsened,
Jones began to delay those rental payments; the third payment was sixty
days late. Thus, unlike the creditor in
Lovett, 931 F.2d at 498-99, FSLC
could not show that consistently late payments were part of the parties'
usual course of dealing. There was ample evidence supporting the jury's
contrary finding.
IV. A Second "New Value" Issue.
FSLC also argues that "the record demonstrates that FSLC extended new
value." It supports this argument with a lengthy discourse on whether
allowing Jones to continue using the leased equipment in exchange for the
three late payments was a form of forbearance, and if so, whether such
forbearance may constitute "new value" under § 547(c)(4). The difficulty
with FSLC's argument is that these interesting issues are not properly
before us.
At the close of Jones's evidence, and again at the close of all the
evidence, FSLC moved for JMAL on the issue of "ordinary course of
business," but not on the issue of "new value." In denying FSLC's post-
verdict motion, the district court carefully described that motion as
seeking, with respect to the third payment, JMAL on the ordinary course
issue, but only a new trial on the new value issue. A party that does not
seek JMAL on an issue before the jury retires may not raise the JMAL issue
following the jury's verdict or on appeal. See Fed. R. Civ. P. 50(b);
Pulla v. Amoco Oil Co., 72 F.3d 648, 655 (8th Cir. 1995). Thus, we may not
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consider whether FSLC's evidence established as a matter of law that FSLC
provided Jones "new value."
The district court properly treated "new value" as a question of
fact. See In re Lewellyn & Co., 929 F.2d 424, 427 (8th Cir. 1991). FSLC
timely filed a motion for new trial to set aside the jury's adverse verdict
on that issue. However, the district court's denial of a motion for new
trial on the ground that a jury verdict is against the great weight of the
evidence is "virtually unassailable on appeal." Barnes v. Parker,
972 F.2d
978, 979 (8th Cir. 1992) (quotation omitted); see White v. Pence,
961 F.2d
776, 780-82 (8th Cir. 1992). Regarding this factual issue, "[t]he
availability of the [new value] defense depends on the ultimate effect on
the [bankruptcy] estate" of the alleged new value. Kroh
Bros., 930 F.2d
at 654. There was conflicting evidence on this issue, and FSLC had the
burden of proof. Therefore, the district court's denial of FSLC's motion
for new trial must be affirmed.
V. Sufficiency of the Solvency Evidence.
On its cross appeal, Jones argues insufficient evidence that Jones
was solvent when it made the first payment on April 15, 1991. The district
court properly instructed the jury (i) that a debtor is insolvent if the
sum of its debts is greater than all of its property, fairly valued, see
11 U.S.C. § 101(32), and (ii) that Jones's assets "should be valued as an
active unit" if Jones was a going concern at the time of an alleged
preferential transfer, see In re Taxman Clothing Co., 905 F.2d 166, 170
(7th Cir. 1990).
There was ample evidence that Jones was a going concern on April 15,
1991, despite its financial troubles. Jones continued to operate, its
officers were optimistic, and its managers and lenders continued to invest
in the business. A balance sheet prepared for the fiscal year ending March
30, 1991, reported that Jones's assets exceeded its liabilities by
$14,341,859 on a going concern basis.
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This balance sheet was distributed to Jones's management, lenders, and
auditors. Though a debtor is presumed insolvent during the preference
period, see 11 U.S.C. § 547(f), if the creditor produces evidence of
solvency, the debtor has the ultimate burden of proof. Clay v. Traders
Bank, 708 F.2d 1347, 1351 (8th Cir. 1983). A financial statement showing
positive net worth is sufficient to rebut the presumption of insolvency.
In re Almarc Mfg., Inc.,
60 B.R. 584, 586 (Bankr. N.D. Ill. 1986). Thus,
Jones's March 30 balance sheet shifted the burden to Jones to prove that
it was insolvent two weeks later.
The jury could rationally conclude that Jones did not meet this
burden. Rather than present evidence of a negative going concern value on
April 15, Jones relied on post-bankruptcy liquidation values of assets
later sold by a broker. Jones also attacked its own financial statement,
challenging the reported $13,709,653 in equity because a planned conversion
of debt to preferred stock never occurred, and arguing that liabilities
were understated because a substantial liability contingent on Jones's
withdrawal from the Teamsters Union Central States Pension Fund was not
included. We are inclined to agree with FSLC that Jones's evidence on this
issue was contrary to the principles of going concern valuation. But more
to the point, the evidence on the question of insolvency was conflicting,
and the jury was not required to credit Jones's evidence, or to find that
Jones had met its burden of proof. See Braunstein v. Massachusetts Bank
& Trust Co., 443 F.2d 1281, 1284 (1st Cir. 1971).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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