William R. Lee Irrevocable Trust v. Lee (In Re Lee) , 898 F.3d 768 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1582
IN RE: LESTER L. LEE,
Debtor.
THE WILLIAM R. LEE IRREVOCABLE
TRUST and DONALD EUGENE LEE and
ROBERT EARL LEE, as co-trustees,
Plaintiffs-Appellees,
v.
LESTER L. LEE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:15-cv-00182-RLY-DML — Richard L. Young, Judge.
____________________
ARGUED MARCH 29, 2018 — DECIDED AUGUST 3, 2018
____________________
Before BAUER, FLAUM, and MANION, Circuit Judges.
No. 17-1582 2
MANION, Circuit Judge. Lester Lee merged two companies
he controlled. A trust administered by his nephews, with a
pre-merger minority interest in one of the companies,
dissented from the merger pursuant to Indiana’s Dissenters’
Rights Statute and obtained a judgment against that
company. Lester filed a personal bankruptcy petition. The
Trust commenced an adversary proceeding in that
bankruptcy action, seeking to pierce the corporate veil and
hold Lester personally liable for the judgment against the
company. The bankruptcy court granted summary judgment
for the Trust and pierced the corporate veil based on Lester’s
post-merger conduct stripping the company’s assets. The
district court affirmed. Lester appeals to us and argues
piercing was inappropriate for various reasons. We affirm.
I. Facts 1
Brothers Lester and William Lee created Lees Inns of
America, Inc. (“LIA”) in 1974 as a public company in the hotel
business. About a decade later, William’s sons—Robert and
Donald Lee—joined the business. LIA prospered. About
1
When the Trust moved for summary judgment before the bankruptcy
court, Lester failed to provide a Statement of Material Facts in Dispute and
failed to designate evidence creating a genuine issue of material fact
regarding veil piercing. On appeal, Lester informs us “the facts are
undisputed.” (Appellant’s Reply Br. at 3, 7.) The bankruptcy court entered
fact findings in its order granting summary judgment to the Trust. William
R. Lee Irrevocable Tr. v. Lee (In re Lee), Ch. 7 Case No. 12-90007, Adv. No.
13-59056, DE 62 at 2–14 (Bankr. S.D. Ind. Dec. 2, 2015). The district court
summarized the facts in its order affirming the bankruptcy court’s
judgment. Lee v. William R. Lee Irrevocable Tr., No. 4:15-CV-182, 2017 WL
685379, at *1–2 (S.D. Ind. Feb. 17, 2017). Also, the Court of Appeals of
Indiana provided background in Lees Inns of Am., Inc. v. William R. Lee
Irrevocable Tr., 924 N.E.2d 143, 148–54 (Ind. Ct. App. 2010).
No. 17-1582 3
another decade later, LIA went private through a buy-out of
the public shareholders, leaving only Lester and William as
owners of LIA. At this point, Lester owned 516 shares to
William’s 484 shares. William created the William R. Lee
Irrevocable Trust (“Trust”) and transferred his LIA shares to
it. Robert and Donald served as trustees.
Conflict brewed. Around 1995, Lester encountered
substantial financial difficulties associated with another
company he owned, Maxim. He proposed to William that
Maxim merge with LIA, but William rejected this idea. Lester
then took steps to take control over LIA. The bankruptcy court
covered the mounting turmoil. There is no need to delve into
it here.
At or around a shareholders meeting in 1998, Lester told
Robert and Donald, “I will screw you at every opportunity,”
and “I will do everything I can to make sure you never receive
one dime from this company,” and “I’ll guarantee you one
thing, I’ll nail your ass to the wall.” Lees Inns of Am., Inc. v.
William R. Lee Irrevocable Tr., 924 N.E.2d 143, 149, 158 (Ind. Ct.
App. 2010); William R. Lee Irrevocable Tr. v. Lee (In re Lee), Ch.
7 Case No. 12-90007, Adv. No. 13-59056, DE 62 at 4 (Bankr.
S.D. Ind. Dec. 2, 2015) (order granting Trust’s motion for
summary judgment and holding Lester personally liable);
Appellant’s Br. at 16.
In April 2000, Lester, as majority shareholder of LIA and
sole shareholder of LLL Acquisition Corporation (“LLL”),
approved a merger of these two companies. The Trust
dissented from the merger. The Trust asserted its rights under
Indiana’s Dissenters’ Rights Statute, demanded payment, and
deposited its certificate of LIA stock in May 2000. LIA was
merged into LLL on June 26, 2000, terminating the Trust’s
No. 17-1582 4
shareholder status and leaving Lester as LIA’s sole
shareholder.
After the merger, Lester allegedly gutted LIA to prevent
the Trust from collecting the value of its LIA shares. In
November 2000, he bought property from LIA on terms
favorable to him and eventually realized substantial profits.
Subsidiaries of LIA were transferred for little or no
consideration from LIA to The Lee Group Holding Company,
LLC, owned by Lester’s immediate family. Lester also
perpetrated a collusive lawsuit (filed July 28, 2008, shortly
before trial in the appraisal proceeding) in which he
controlled all the named parties and caused the Jefferson
Circuit Court to enter an agreed judgment that all LIA assets
should be transferred to him and various companies he
controlled. Lester did not disclose the transfers of the
property and subsidiaries, or the collusive lawsuit, to Robert
or Donald until much later.
In September and October 2008, the Jennings Circuit Court
held a bench trial in the appraisal proceeding (a/k/a
dissenters’ rights action). Between the trial and the judgment,
Lester dissolved LIA in November 2008. In December 2008,
the court entered a $7,522,879.73 judgment for the Trust
against LIA. This amount represented the sum of the fair
value of the Trust’s 484 shares of LIA stock (as of June 30,
2000) minus the amount already paid by LIA to the Trust. The
judgment also included interest, expert fees and expenses,
and attorney’s fees and expenses. 2 LIA appealed to the Court
of Appeals of Indiana, which affirmed the judgment in March
2
The math appears to be off by a negligible amount, but that is not at issue
in this appeal.
No. 17-1582 5
2010. The Supreme Court of Indiana denied LIA’s transfer
petition.
II. Procedural Posture
In January 2012, Lester petitioned for Chapter 7
bankruptcy. In August 2013, the Trust initiated an adversary
proceeding to pierce LIA’s corporate veil and hold Lester
personally liable for the $7,522,879.73 judgment. In December
2014, Lester waived discharge. During the bankruptcy
proceedings, Lester testified he “[a]bsolutely” filed the
collusive lawsuit to make sure the Trust would not recover if
it obtained a judgment in the appraisal proceeding. He did
not dispute that he told Robert and Donald: “I will screw you
at every opportunity,” and “I will do everything I can to make
sure you never receive one dime from this company,” and “I’ll
guarantee you one thing, I’ll nail your ass to the wall.” Indeed,
Lester lists two of these quotes in his appellate brief’s recital
of the “largely stipulated” facts. (Appellant’s Br. at 14,
quoting Lees Inns, 924 N.E.2d at 149.)
In April 2015, the Trust moved for summary judgment. In
response, Lester failed to include a Statement of Material
Facts in Dispute and failed to designate any evidence creating
a genuine issue of material fact regarding veil piercing. In
December 2015, the bankruptcy court concluded there was no
genuine issue of material fact and granted summary
judgment to the Trust. The bankruptcy court noted it had
already heard testimony from Lester that he transferred all of
LIA’s assets while the dissenters’ rights action was pending.
He claimed he did this to keep the Trust from getting the
assets, and he “clearly appreciated that in so doing, he would
render futile the Dissenters’ Rights Action; that was his stated
intent.” In re Lee, Adv. No. 13-59056, DE 62 at 24. The
No. 17-1582 6
bankruptcy court held that remedies for Lester’s pre-merger
conduct were limited to the appraisal proceeding established
by Indiana’s Dissenters’ Rights Statute. Therefore, the
bankruptcy court held his pre-merger conduct could not
support piercing the corporate veil. But the bankruptcy court
held that his post-merger conduct could, and did, satisfy the
veil-piercing requirements under Indiana law: Lester “has
exhibited a clear pattern of conduct and fraudulent intent that
allows the Court to conclude as a matter of law that [he]
manipulated LIA post-merger to promote an injustice against
the Trust such that piercing the corporate veil is warranted.”
Id. Thus the bankruptcy court put Lester personally on the
hook for the entire balance due on the judgment against LIA.
The district court affirmed.
Lester raises three issues on appeal. First, he argues the
district court erred by allowing the Trust to pierce the
corporate veil to hold him personally liable for the appraisal
amount because Indiana’s Dissenters’ Rights Statute provides
the exclusive remedy. Second, he argues piercing is an
equitable remedy available only to third parties, and the
district court erred by allowing piercing in favor of the Trust,
which is a minority shareholder and not a third party. Third,
he argues the district court erred by affirming summary
judgment for the Trust on the piercing claim despite complex
economic questions involving allegations of fraud which
should render summary judgment inappropriate. We address
each issue in turn. We review a grant of summary judgment
de novo. Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir. 2018).
No. 17-1582 7
III. Discussion
A. Exclusive remedy?
Lester contends that piercing LIA’s corporate veil
circumvents the exclusivity provision of Indiana’s Dissenters’
Rights Statute (Ind. Code § 23-1-44-8(c) (1987)) and
contravenes the legislative policy precluding individual
liability of majority shareholders.
The Dissenters’ Rights Statute in effect at the time of the
merger between LIA and LLL stated: “A shareholder … who
is entitled to dissent and obtain payment for the shareholder’s
shares under this chapter … may not challenge the corporate
action creating … the shareholder’s entitlement.” Ind. Code §
23-1-44-8(c) (1987).
The problem with Lester’s argument is simple. The statute
stops a dissenting shareholder from challenging the corporate
action creating its entitlement. But in seeking to pierce LIA’s
corporate veil, the Trust does not challenge the corporate
action creating its entitlement. In seeking to pierce the
corporate veil, the Trust does not challenge the merger. As the
district court aptly put it: “The Trust is not challenging the
merger itself in any way—i.e., it does not seek an injunction
to prevent the merger or to undo it.” Lee v. William R. Lee
Irrevocable Tr., No. 4:15-CV-182, 2017 WL 685379, at *5 (S.D.
Ind. Feb. 17, 2017).
Indiana’s Dissenters’ Rights Statute allows a shareholder
to dissent from a merger and obtain payment of the fair value
of its shares. Far from violating any exclusivity provision, the
Trust merely seeks to effectuate its statutory rights by seeking
to pierce the veil of a liable corporation Lester stripped of
assets after the merger. The statute supplies no shield to
No. 17-1582 8
prevent piercing LIA’s corporate veil based on post-merger
conduct.
Section 23-1-44-8 does not (and did not on the date of the
merger) use any version of the word “exclusive.” Other
Indiana statutes establishing exclusive remedies specify the
exclusivity in the text. See, e.g., Ind. Code § 22-3-2-6 (Worker’s
Compensation: “The rights and remedies granted to an
employee … shall exclude all other rights and remedies of
such employee … .”); Ind. Code § 22-3-7-6 (Worker’s
Occupational Diseases Compensation: “The rights and
remedies granted under this chapter to an employee … shall
exclude all other rights and remedies of such employee … .”);
Ind. Code § 32-30-16-1(e) (Utility Easements: “[T]his chapter
provides the exclusive remedy to a property owner … .”); Ind.
Code § 14-22-26-5(b) (Wild Animal Permit: “IC 4-21.5
provides the exclusive remedy available to a person
aggrieved by a determination … .”); see also Call v. Scott Brass,
Inc., 553 N.E.2d 1225, 1229 (Ind. Ct. App. 1990) (Concluding
Indiana Code § 34-4-29-1 was not the exclusive remedy for an
at-will employee discharged for appearing for jury duty, in
part based on the absence of textual support for exclusivity:
“Other statutes which have exclusive remedies specify their
exclusivity in the statute. … There is no mention of exclusivity
in I.C. 34-4-29-1.”).
True, other sections of the Dissenters’ Rights Statute use
versions of the word “exclusive.” See Ind. Code § 23-1-44-3
(1986) (defining “fair value” to exclude appreciation or
depreciation in anticipation of the corporate action unless
exclusion would be inequitable); Ind. Code § 23-1-44-19(d)
(1986) (providing that the jurisdiction of the court conducting
a proceeding to determine fair value is plenary and exclusive).
No. 17-1582 9
And true, the official comments to the version of § 23-1-44-8
effective on the merger date (June 26, 2000) mention that
subsection (c) “establishes the exclusivity of Chapter 44’s
dissenters’ rights remedies.” Official Comments to Ind. Code
§ 23-1-44-8 (1987). And true, several decisions regarding
subsection (c) refer to it as the “exclusive remedy” for
minority shareholders in the event of a merger. See Fleming v.
Int’l Pizza Supply Corp., 676 N.E.2d 1051, 1054–57 (Ind. 1997);
Young v. Gen. Acceptance Corp., 738 N.E.2d 1079, 1090–93 (Ind.
Ct. App. 2001), affirmed in part and vacated in part, 770 N.E.2d
298 (2002); Settles v. Leslie, 701 N.E.2d 849, 853 (Ind. Ct. App.
1998). But the content and context of the statute, the official
comments, and the decisions make clear that this
“exclusivity” does not inoculate a majority shareholder from
piercing based on his post-merger conduct. After the merger,
Lester devalued LIA in an effort to render the Trust’s
judgment worthless. Lester bought property from LIA on
terms favorable to him. Subsidiaries of LIA were transferred
for little or no consideration to The Lee Group Holding
Company, LLC. And Lester perpetrated the collusive lawsuit
leading to an agreed judgment. The statute does not protect
these post-merger chicaneries.
Consider as an analogy Indiana’s worker’s compensation
system. Indiana Code § 22-3-2-6—titled “Exclusive
remedies”—provides that worker’s compensation is
generally the exclusive remedy against an employer for
certain work-related injuries. But it would seem to make no
sense for that section to stop a victim from piercing the
corporate veil of the entity on the hook to pay worker’s
compensation if someone hiding behind the veil manipulated
structures, ignored formalities, stripped assets, or otherwise
No. 17-1582 10
satisfied the piercing requirements after entry of a worker’s
compensation award.
Lester relies heavily on the Supreme Court of Indiana’s
decision in Fleming. There, the court held “the exclusive
remedy available to a shareholder seeking payment for the
value of the shareholder’s shares is the statutory appraisal
procedure.” Fleming, 676 N.E.2d at 1056. And the court
acknowledged “the appraisal remedy does not provide for
the individual liability of majority shareholders … .” Id. at
1058.
But Fleming involved allegations of breach of fiduciary
duty and fraud before the asset sale 3 from which the minority
shareholder dissented: “the problem is whether the value of
the corporation was depleted prior to the asset sale by breach
of fiduciary duty and fraud … .” Id. at 1056. Fleming did not
involve, as here, an effort to pierce a corporate veil to hold an
individual personally liable for the judgment against the
corporation based on wrongdoing after the corporate action
from which the minority shareholder dissented. 4 Moreover,
3An asset sale is analogous to a merger for present purposes. Both an asset
sale (as in Fleming) and a merger (as in the case before us) can be
“corporate actions” triggering a shareholder’s right to dissent and obtain
payment under § 23-1-44-8(a).
4 Indeed, Fleming discussed a Supreme Court of California case, Steinberg
v. Amplica, Inc., 729 P.2d 683 (Cal. 1986), holding that appraisal was an
adequate remedy for particular misconduct, which would be factored into
the calculation of the value of the stock. Fleming, 676 N.E.2d at 1057–58.
Timing matters. The Steinberg court concluded that “where the plaintiff
was aware of all the facts leading to his cause of action for alleged
misconduct in connection with the term of the merger prior to the time the
merger was consummated but deliberately opted to sue for damages
instead of seeking appraisal, section 1312(a) acts as a bar.” Steinberg, 729
No. 17-1582 11
part of the rationale for restricting allegations of pre-
corporate-action conduct to the statutory appraisal process is
that these allegations can be “considered as part of the
appraisal process” (Id. at 1058) because these allegations
involve conduct occurring before (or perhaps during) the
appraisal process. But this rationale disappears after the
appraisal process ends and after the liable corporation
dissolves.
Contrary to Lester’s argument that the Trust is attempting
to circumvent the exclusive remedy provided by the
Dissenters’ Rights Statute, it is Lester who attempted to evade
this remedy by stripping LIA of its assets after the merger. As
the Trust argues, the goal of Lester’s post-merger conduct was
to thwart the statute by preventing the Trust from collecting
the judgment it obtained in the appraisal proceeding. Lester’s
proposed immunity would encourage and reward post-
merger “trickery, evasion, procrastination, spoliation,
botheration,” 5 shell games, and fourberies. Lester’s proposed
immunity makes no sense. As the bankruptcy court
concluded, Lester acted with “fraudulent intent” and
“manipulated LIA post-merger to promote an injustice
against the Trust such that piercing the corporate veil is
warranted.” In re Lee, Adv. No. 13-59056, DE 62 at 24.
P.2d at 694. Fleming observed that commentators to Steinberg noted the
plaintiffs there knew of the alleged breach of fiduciary duty and fraud
before the merger, and had they not known until after the time for asserting
appraisal rights passed, appraisal might not have been the exclusive
remedy. Fleming, 676 N.E.2d at 1058 n.12. But, as Fleming noted, that
concern was not implicated in Fleming given the timing. Id.
5
Charles Dickens, Bleak House, chapter 1
(www.gutenberg.org/files/1023/1023-h/1023-h.htm, Donald Lainson,
1997) (1853).
No. 17-1582 12
The lower courts correctly concluded that the Trust may
pierce LIA’s corporate veil based on Lester’s post-merger
conduct. 6 Nothing in the plain language of the statute, or in
Indiana case law, prevents such piercing.
B. Third parties?
Lester argues only a third party can pierce a corporate veil,
so the Trust cannot pierce LIA’s corporate veil because as a
minority shareholder, the Trust was part of LIA and not a
third party to it.
But, again, the problems with this argument are simple.
First, Lester likely forfeited this argument by failing to raise it
in his summary judgment response before the bankruptcy
court. Reeves v. Davis (In re Davis), 638 F.3d 549, 555 (7th Cir.
2011). Second, even absent forfeiture, this argument fails
because once the Trust was “merged out,” it ceased being a
shareholder and became a third-party creditor of the
corporation. Lester admitted as much. He argued to the
bankruptcy court that he owed no fiduciary duties to the
Trust because his “fiduciary duty to the shareholders ended
when the Trust ceased being a shareholder and the merger
took place.” (Lee’s Mem. Opp’n Mot. Summ. J., 4:15-CV-182,
6
The Trust sought piercing based on pre- and post-merger conduct. The
bankruptcy court denied piercing for pre-merger conduct in light of
Fleming, but granted piercing for post-merger conduct. Of course, no party
appealed the pre-merger issue to the district court, so that issue never
percolated up to us. We express no opinion on whether, when, or in what
circumstances piercing might be possible under Indiana law based on pre-
merger conduct. But even if Indiana’s Dissenters’ Rights Statute bars
piercing for pre-merger conduct, it does not bar piercing for post-merger
conduct. The Trust pursued the statutory remedy and won a judgment.
Now, the Trust merely seeks to collect on that judgment from the man
behind the curtain who stripped LIA’s assets after the merger.
No. 17-1582 13
DE 5-7 at 15 of 26.) He argued that once the merger happened,
the minority shareholders “were no longer shareholders, but
only creditors of the corporation.” (Id.) Third-party creditors
generally may obtain relief through piercing, if the piercing
elements are met. The court committed no error in this regard.
C. Complex economic questions involving fraud?
Finally, Lester argues that the decision to pierce a
corporate veil involves a highly fact-sensitive inquiry
ordinarily inappropriate for summary judgment, given the
involvement of complex economic questions and allegations
of fraud. But in this case, Lester admits “the facts are
undisputed.” (Appellant’s Reply Br. at 3, 7.) And below he
failed to designate any evidence creating a genuine issue of
material fact and failed to include a Statement of Material
Facts in Dispute in his summary judgment response brief, as
required by local rule. S.D.Ind. B-7056-1(b); see also S.D.Ind.
L.R. 56-1(b). Instead, he argues the facts give rise to conflicting
inferences. But he did not properly present these alleged
inferences to the bankruptcy court, and anyway the district
court did an excellent job dismantling them, showing they
“represent nothing more than baseless speculation, and that
is not enough to stave off summary judgment.” Lee, 2017 WL
685379, at *7. The court committed no error in this regard.
IV. Conclusion
Lester engaged in post-merger conduct to strip LIA’s
assets to render the Trust’s judgment worthless. The
bankruptcy court issued a thorough, sound order concluding
Lester is personally liable to the Trust for the balance due on
the judgment. The district court issued a rigorous, solid order
affirming the judgment of the bankruptcy court. We decline
No. 17-1582 14
Lester’s invitation to certify a question to the Supreme Court
of Indiana. Finding no error, we AFFIRM.