Anchor Founds. Inc. v. Ingalls, SUPREME COURT DOCKET NO. 2011-062

• Decision Date: 09 November 2011
• Docket Number: SUPREME COURT DOCKET NO. 2011-062
• Court: Vermont Supreme Court
• Parties: Anchor Foundations, Inc. v. R. Scott Ingalls d/b/a Ingalls & Ingalls Builders, Inc. and Casing Development, Inc.

Anchor Foundations, Inc. v. R. Scott Ingalls d/b/a Ingalls & Ingalls Builders, Inc. and Casing Development, Inc.

SUPREME COURT DOCKET NO. 2011-062

Supreme Court of Vermont

NOVEMBER TERM, 2011

Dated: November 9, 2011

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

APPEALED FROM:

Superior Court, Franklin Unit, Civil Division

DOCKET NO. S52-09 Fc

Trial Judge: Ben W. Joseph, A. Gregory Rainville

In the above-entitled cause, the Clerk will enter:

Plaintiff Anchor Foundations, Inc. (Anchor) appeals a summary judgment dismissing claims for money owed and fraudulent conveyance against R. Scott Ingalls and Casing Development, LLC, and from an order denying a motion to add Elizabeth Ingalls as a named defendant. Anchor contends the orders were erroneous because the trial court failed to allow adequate time for discovery. We affirm.

The record evidence may be summarized as follows. Ingalls & Ingalls, Inc., a construction company based in Essex Junction, hired Anchor to perform concrete work on several projects. In February 2009, Anchor filed a complaint against Ingalls & Ingalls, Inc., its principal owner R. Scott Ingalls, and Casing Development, LLC for approximately $45,000 allegedly owed on the projects. Anchor also alleged that Ingalls had conveyed property located at 125 Bridge Street in the City of Richmond to Casing Development with the intent to defraud, and moved for a writ of attachment against the property. The court (Judge Rainville) held a hearing on the motion in March 2009, and issued a written decision in July 2009, denying the motion.

The court found that Ingalls and his wife Elizabeth had purchased the subject property at 125 Bridge Street in 2005 from Casing, a development company that Ingalls then jointly owned with his cousin John Caswell. The property that the Ingalls purchased was a small portion of a 6-acre parcel that Casing hoped someday to develop. The Ingalls purchased the property for $60,500 with the intention of building a home on it to be used as their principal residence. The Ingalls experienced financial problems, however, and in October 2008 a complaint for foreclosure was filed against their residence in Essex Junction. To raise money and forestall the foreclosure, in November 2008, Ingalls sold most of his interest in Casing Development to his partner Caswell for about $80,000, and Ingalls and his wife reconveyed the Bridge Street property to Casing Development for about $133,000.

In its complaint and motion for writ of attachment, Anchor claimed that Ingalls was personally liable for the $45,000 debt and that he fraudulently conveyed the Bridge Streetproperty to Casing to avoid payment, in violation of 9 V.S.A. § 2288. The trial court found, however, that Anchor had adduced no evidence that the indebtedness was incurred by Ingalls individually or in any capacity other than as a representative of Ingalls & Ingalls, Inc. Furthermore, the court noted that even if Ingalls could somehow be held personally liable, the property in question was held by R. Scott Ingalls and Elizabeth Ingalls as husband and wife, and was therefore protected from husband's sole creditors. See RBS Citizens, N.A. v. Ouhrabka, 2011 VT 86, ¶ 11 (reaffirming rule that property held by husband and wife in tenancy by entirety cannot be reached by husband's creditors). Accordingly, the court denied the writ of attachment.

Ingalls and Casing subsequently moved for summary judgment, and Anchor moved to amend its complaint to add Elizabeth Ingalls as a named defendant. The court (Judge Joseph) initially denied the motion...