Fred C. Moon v. Mark R. Anderson ( 2004 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 03-6093WM
In re: *
*
Mary Jo Hixon, *
*
Debtor. *
*
* Appeal from the United States
Fred C. Moon, * Bankruptcy Court for the
* Western District of Missouri
Plaintiff-Appellant *
*
v. *
*
Mark R. Anderson, *
*
Defendant-Appellee, *
*
Mary Jo Hixon, *
*
Defendant-Appellee. *
*
Submitted: November 10, 2004
Filed: December 10, 2004
Before KRESSEL, Chief Judge, SCHERMER and MAHONEY, Bankruptcy Judges.
MAHONEY, Bankruptcy Judge.
Fred Charles Moon, trustee of the Mary Jo Hixon Chapter 7 bankruptcy estate,
appeals the bankruptcy court1 order and judgment which determined that the
conveyance of Mark Anderson's residence to the Mary Jo Hixon Trust was not a valid
conveyance and that the residence never became an asset of the bankruptcy estate of
Mary Jo Hixon.
Issue
The issue is whether the bankruptcy court correctly determined that Mary Jo
Hixon forged the signature of Mark Anderson on a deed conveying Mark Anderson's
residence to the Mary Jo Hixon Trust and whether Mark Anderson knew of the
transfer, authorized the transfer, acquiesced in the transfer or benefitted from the
transfer of his residence to the Mary Jo Hixon Trust.
Standard of Review
On appeal, we review the bankruptcy court's factual findings for clear error and
its conclusions of law de novo. Fed. R. Bankr. P. 8013; McGehee v. Griffin (In re
Griffin), 310 B.R. 135, 137 (B.A.P. 8th Cir. 2004); Papio Keno Club, Inc. v. City of
Papillion (In re Papio Keno Club, Inc.), 262 F.3d 725, 728-29 (8th Cir. 2001). A
finding of fact will not be reversed as clearly erroneous unless, based on all of the
evidence, the reviewing court is left with a definite and firm conviction that a
mistake has been committed. Wintz v. American Freightways, Inc. (In re Wintz Cos.),
230 B.R. 840, 844 (B.A.P. 8th Cir. 1999) (citing Waugh v. Eldridge (In re Waugh),
95 F.3d 706, 711 (8th Cir.1996)).
1
The Honorable Arthur B. Federman, United States Bankruptcy Judge for the
Western District of Missouri.
2
Background
Mark Anderson is the debtor's nephew. In 1993, Anderson was convicted of
a drug offense. While Anderson was incarcerated, Hixon arranged, with Anderson's
knowledge and consent, for the establishment of the Mark R. Anderson Living Trust
("Anderson Trust"). Both she and Anderson are trustees of the Anderson Trust.
Anderson moved most of his assets into the Anderson Trust and granted Hixon a
durable power of attorney to control the acquisition and disposal of other assets still
in his name. Anderson did not at that time transfer his residence, a home located at
3327 West Lombard, Springfield, Missouri (“the Lombard House”), to the trust.
Anderson was released from prison at some point in time, then returned to
prison, then left the country, and returned at sometime thereafter. The record does not
reflect the exact dates of Anderson's incarceration, although there is some evidence
in the record that he was incarcerated at the time of the real estate transfer described
below.
On April 21, 1997, Hixon established the Mary Jo Hixon Revocable Trust
("Hixon Trust"), and transferred certain assets from the Anderson Trust to the Hixon
Trust.
The Lombard House was owned by Anderson individually, and not by the
trustee of the Anderson Trust, prior to the establishment of the Hixon Trust. The
bankruptcy court found that Mary Jo Hixon, in her individual capacity, not as trustee
of the Anderson Trust and not in a representative capacity pursuant to the grant of a
power of attorney from Anderson, signed Anderson's name to a general warranty deed
to the Lombard House on May 27, 1997. That warranty deed purports to transfer the
Lombard House from Mark R. Anderson, a single person, to Mary Jo Hixon, trustee
of the Mary Jo Hixon Revocable Trust of 1997.
3
Hixon has filed a Chapter 7 petition and Mr. Moon, the Chapter 7 trustee of the
Hixon bankruptcy estate, brought this adversary proceeding seeking a declaratory
judgment that the Lombard House and other assets in the Hixon Trust are assets of
the bankruptcy estate. Anderson counterclaimed, arguing that the transfer of the
Lombard House to the Hixon Trust is void.
Procedural History
In a separate adversary proceeding2, the bankruptcy court determined that
certain assets in the Hixon Trust which had previously been assets of Anderson are
assets of the Mary Jo Hixon bankruptcy estate. That adversary proceeding did not
deal with the Lombard House. The appeal of that bankruptcy court judgment to the
Court of Appeals for the Eighth Circuit had not been completed at the time this
appeal was argued to this panel in May of 2004. Following the argument, we entered
an order deferring ruling on the matter until final resolution of the other appeal
because of the possibility that the Court of Appeals determination could have an
impact on the issues in this case. The Court of Appeals filed its opinion on November
2, 2004. This panel met on November 10, 2004, and determined that this appeal is
now ready for decision.
Discussion
At trial, the trustee attempted to prove that Anderson either signed the deed
himself, thereby conveying the Lombard House to the Hixon Trust, or that he knew
about the deed, ratified it, and benefitted from it because the conveyance enabled him
to hide the asset from his former wife, who had a tendency to execute on his property
2
Moon v. Anderson (In re Hixon), Adv. Case No. 02-6052, Docket No. 60
(Order of Judgment in Favor of Plaintiff entered February 18, 2003), aff'd,, 295 B.R.
866 (B.A.P. 8th Cir. 2003), aff'd, 387 F.3d 695 (8th Cir. 2004).
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when he became delinquent in payments ordered by the decree of dissolution of their
marriage. Alternatively, the trustee suggested that the conveyance was valid because
Mary Jo Hixon had been granted a power of attorney by Anderson and pursuant to the
specific authority granted in the power of attorney, she had the right to deal with
Anderson's property and convey it.
However, the bankruptcy court found as a fact that Mary Jo Hixon admitted
signing Anderson's name as his signature on the deed. She admitted that she had not
signed his name to transfer other assets, but that she generally transferred his assets
by acknowledging her capacity as trustee or her capacity under the power of attorney.
In addition, the court accepted the testimony of Anderson that he did not authorize
the execution of the deed in his name or the conveyance of the property to the Hixon
Trust.
Hixon testified that Anderson was aware of the Hixon Trust and the
conveyance of the Lombard House to the Hixon Trust, and that they had discussed
transferring the property back out of the Hixon Trust but had not gotten around to
doing so. Anderson, on the other hand, testified that he knew nothing of the Hixon
Trust until the Hixon bankruptcy case was filed and that he did not know Hixon had
purported to convey his interest in the Lombard House to the Hixon Trust prior to the
Hixon bankruptcy case.
Although the bankruptcy court made no specific finding with regard to the
difference in testimony concerning Anderson’s knowledge, we infer from the
bankruptcy court's ultimate conclusion that the Lombard House did not become
property of the Hixon bankruptcy estate that the bankruptcy court accepted as a fact
Anderson's testimony on that subject.
We find no clear error in the bankruptcy court's determination that Hixon
forged Anderson's signature to the deed and that Anderson had no knowledge of the
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Hixon Trust or the purported conveyance. Although the evidence presented in the
record could be susceptible to different interpretations, we may not hold that the
bankruptcy court's chosen interpretation is clearly erroneous where there is more than
one permissible view of the evidence. Moon v. Anderson (In re Hixon), 387 F.3d 695,
700 (8th Cir. 2004) (citing Ramsay v. Dowden (In re Cent. Ark. Broad. Co.), 68 F.3d
213, 215 (8th Cir. 1995) (per curiam)).
Under Missouri law, a forged deed is ineffective to convey title. Ryan v.
Stubblefield, 100 S.W.2d 444 (Mo. 1936); Jamieson v. Jamieson, 912 S.W.2d 602,
605 (Mo. Ct. App. 1995); Lewis v. Barnett, 694 S.W.2d 743 (Mo. Ct. App. 1985).
Although a grantor can adopt a signature made by another person, he must have
knowledge of the signature and must take affirmative steps to make a ratification.
Gruetzmacher v. Hainey, 373 S.W.2d 45 (Mo. 1963); Spaeth v. Larkin, 325 S.W.2d
767 (Mo. 1959). However, a deed signed in blank and later filled in with an invalid
acknowledgment, and made without authority from a grantor, is void and must be set
aside. West v. Witschner, 482 S.W.2d 733, 737 (Mo. 1972).
Alternatively, the appellant takes the position that Anderson, through the grant
of a power of attorney to Hixon, authorized Hixon to control and transfer his
property. The bankruptcy judge, however, found that Missouri law concerning the
use of a power of attorney requires that if a durable power of attorney is used by an
attorney-in-fact to deal with transactions affecting real estate, the durable power of
attorney must be recorded.3 Because the conveyance at issue is a real estate
transaction and there was no evidence presented that either Anderson or Hixon ever
recorded the durable power of attorney, the bankruptcy court found that neither Hixon
nor the trustee could rely on the authority vested in the durable power of attorney to
transfer the real estate held in Anderson's name to the Hixon Trust. Such a finding
3
Mo. Stat. Ann. § 404.705.3 (2001).
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is a conclusion of law and, upon a de novo review of such conclusion, we find that
it is a correct statement of Missouri law.
Conclusion
The bankruptcy court correctly determined that the deed purporting to convey
Anderson's real property, the Lombard House, to the Hixon Trust was a forgery and
was not effective to legally transfer the property to the Hixon Trust. Because it was
not properly transferred to the Hixon Trust, it did not become an asset of the Hixon
bankruptcy estate and remains the property of Mark R. Anderson. Accordingly, we
affirm.
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