SMC Holdings v. Aaron McCann ( 2019 )

United States Bankruptcy Appellate Panel
For the Eighth Circuit
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No. 19-6009
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In re: Aaron James McCann,
as surety for Switching Gears, LLC,
as surety for 7 Flags Promotions, LLC,
as surety for 7 F Food & Beverage, LLC,
as surety for 2100 Club, LLC
Debtor.
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SMC Holdings, LLC
Plaintiff – Appellee,
v.
Aaron James McCann
Defendant – Appellant
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Appeal from United States Bankruptcy Court
for the District of Minnesota - Duluth
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Submitted: June 27, 2019
Filed: July 9, 2019
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Before SALADINO, Chief Judge, NAIL and SHODEEN, Bankruptcy Judges.
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SHODEEN, Bankruptcy Judge,
The Debtor, Aaron McCann, appeals the bankruptcy court’s1 February 11, 2019
judgment determining SMC Holdings, LLC’s claim against him was
nondischargeable.
BACKGROUND
SMC Holdings, LLC filed an adversary proceeding to except its debt from
McCann’s discharge under 11 U.S.C. §523(a)(2)(A). At the end of the trial, after
presenting no defense, McCann’s counsel made an oral motion for judgment on
partial findings on the basis that SMC was not the real party-in-interest. Fed. R. Civ.
P. 17(a); Fed. R. Bankr. P. 7017; Curtis Lumber Co. v. La. Pac. Corp., 618 F.3d 762,
771 (8th Cir. 2010); Samuel J. Temperato Revocable Tr. v. Unterreiner (In re
Unterreiner), 459 B.R. 725, 730 (B.A.P. 8th Cir. 2011). The bankruptcy court denied
McCann’s request and entered judgment in favor of SMC for $2,500,000. McCann
appeals the judgment.
STANDARD OF REVIEW
Our jurisdiction extends to “the events and rulings leading to a final order.”
Zahn v. Fink (In re Zahn), 526 F.3d 1140, 1143 (8th Cir. 2008). We review the
bankruptcy court's findings of fact for clear error and legal conclusions related to the
entry of judgment pursuant to Rule 52(c) de novo. Minn. Laborers Health & Welfare
Fund v. Scanlan, 360 F.3d 925, 927 (8th Cir. 2004); Clark v. Runyon, 218 F.3d 915,
918 (8th Cir. 2000).
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The Honorable Robert J. Kressel, Judge, United States Bankruptcy Court for the
District of Minnesota.
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DISCUSSION
McCann and his business Switching Gears, LLC (collectively McCann) began
discussions with Renewtech, LLC to manufacture and install wind turbines on tribal
lands. To move the project forward the parties agreed that contributions in exchange
for an ownership interest in Switching Gears were required. SMC operated as an
investment vehicle for Vinco, Inc. and Renewtech. Total contributions of $2.7
million were completed under this arrangement before it became clear that the project
could not proceed. The focus of McCann’s argument is that Vinco was the entity that
wired funds and issued him a check making it the proper party to assert this claim
against him.
In his answer McCann admits that SMC provided the funds. The testimony
reflects that on the date of the transfer time was of the essence for the funds to be
paid. Because SMC did not have immediate access to the amount necessary to fund
the request Vinco made the transfer to McCaan as an entity under common
ownership. This transfer was reflected on the companies’ books as a loan from Vinco
to SMC. The parties’ term sheet specifically stated that should the agreement not be
executed the money would be returned to SMC, not Vinco.
The bankruptcy court viewed the evidence as demonstrating Vinco was only
acting on SMC’s behalf and that SMC was the real party in interest; Debtor views the
evidence as demonstrating the funds came from Vinco and that Vinco was the real
party in interest. The bankruptcy court's view is certainly permissible in light of the
evidence. For that reason alone, even assuming Debtor's view is also permissible, we
cannot say the bankruptcy court's finding was clearly erroneous. Anderson v. City of
Bessemer City, North Carolina, 470 U.S. 564, 574 (1985) (“Where there are two
permissible views of the evidence, the factfinder's choice between them cannot be
clearly erroneous.”).
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CONCLUSION
Based upon our de novo review the bankruptcy court’s conclusion that SMC
is the proper party holding the claim against McCann was not clearly erroneous.
Accordingly, the judgment is AFFIRMED.
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