Big Cat Rescue Corp. v. Schreibvogel
| Decision Date | 01 June 2020 |
| Docket Number | Case No. CIV-16-155-SLP |
| Parties | BIG CAT RESCUE CORP., Plaintiff, v. SHIRLEY M. SCHREIBVOGEL and GREATER WYNNEWOOD DEVELOPMENT GROUP, LLC, Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
Before the Court are the remaining issues for determination in this case.
Plaintiff Big Cat Rescue Corp. sued Defendant Shirley M. Schreibvogel and Greater Wynnewood Development Group, LLC. ("GWDG"). See Am. Compl., Doc. No. 21. Big Cat Rescue and Ms. Schreibvogel reached a settlement, and the Court entered judgement as to Big Cat Rescue's claims against Ms. Schreibvogel. See ADR Report, Doc. No. 136; Notice, Doc. No. 141; Agreed J. & Permanent Inj., Doc. No. 144. No issues remain for the Court's resolution regarding Big Cat Rescue's claims against Ms. Schreibvogel.
The Court previously granted GWDG's counsel leave to withdraw from their representation of GWDG in this case and warned GWDG that it was to obtain new counsel within 30 days because it, as a business, could not represent itself. See Order of Sept. 6, 2018, at 2, Doc. No. 133 (citing L. Cv. R. 17.1; Tal v. Hogan, 453 F.3d 1244, 1254-55 (10th Cir. 2006)). No new counsel appeared for GWDG. Accordingly, Big Cat Rescue filed a Motion for Default Judgment against Defendant Greater Wynnewood Development Group, LLC [Doc. No. 137]. GWDG did not respond. The Court issued a show-cause order for why default judgment should not be entered as to Big Cat Rescue's claims against GWDG. See Order of July 11, 2019, Doc. No. 139. Therein, the Court expressly warned GWDG that "a possible result of [GWDG's] failure to obtain new counsel would be entry of default judgment on Big Cat Rescue's claims against GWDG." Id. at 1. Pursuant to the Court's instructions, GWDG's former counsel forwarded the Court's order to GWDG by mail, email, and certified mail, and it appears that GWDG receive notice of the Court's Order of July 11, 2019. See Notice of Compliance, Doc. No. 140. GWDG did not respond to the Court's show-cause order and new counsel still has not appeared on GWDG's behalf.
Pursuant to Federal Rule of Civil Procedure 16(f)(1), the Court entered default against GWDG (and indicated its intention to issue a default judgment) because GWDG willfully failed to comply with the Court's order regarding securing replacement counsel, as well as its other failures to obey or respond to the Court's orders in this case. See Order of Aug. 29, 2019, Doc. No. 142. Big Cat Rescue sought attorneys' fees from GWDG. See Mot., Doc. No. 147.1 Thereafter, the Court conducted a hearing regarding the amount of damages and other remedies to be awarded to Big Cat Rescue against GWDG pursuant to the Court's default judgment decision, as well as regarding Big Cat Rescue's attorneys' fees request. See Notice of Hr'g, Doc. No. 143; Minute Sheet of Proceedings, Doc. No. 150. No counsel for or representative of GWDG appeared at the hearing.
The Court finds that GWDG's Amended Answer [Doc. No. 87] to Big Cat Rescue's Amended Complaint [Doc. No. 21] should be stricken as a result of GWDG's default, and the Court finds that the well-pleaded factual allegations in Big Cat Rescue's Amended Complaint [Doc. No. 21] are deemed admitted by GWDG. The admission by GWDG of such allegations supports judgment on all of Plaintiff's claims against GWDG unless otherwise indicated herein. In light of such admitted allegations, the Court finds that Ms. Schreibvogel acted in concert with GWDG, and others, to fraudulently transfer certain real and personal property of and belonging to one or more of Big Cat Rescue's judgment debtors, including Joseph Allen Schreibvogel, n/k/a Joseph Maldonado-Passage, G.W. Exotic Animal Memorial Foundation, and The Garold Wayne Interactive Zoological Foundation (collectively, the "Judgment Debtors"), with the design and intent of removing the real and personal property from the reach of Big Cat Rescue so that it could not be used to satisfy Big Cat Rescue's judgments2 against the Judgment Debtors. No consideration was received by Ms. Schreibvogel or GWDG for the fraudulent transfers of real and personal property at issue in this action, as set out in the Amended Complaint [Doc. No. 21], and the transfers are fraudulent as to Big Cat Rescue under Okla. Stat. tit. 24, §§ 116(A)(1) and 116(A)(2), and under Okla. Stat. tit. 24, §§ 119(A)(1) and 120(B), and are avoided as to Big Cat Rescue. See id. § 119(A)(1).
The real property fraudulently transferred to GWDG included 16.439 acres, more or less, of land located in Garvin County, Oklahoma, together with any improvements thereon from May 31, 1999 to the date of this Judgment, referred to herein as the "Zoo Land."3 The two quit claim deeds, as recorded in the real property records of Garvin County, Oklahoma, at 1-2015-006819, Book 2112, Page 291, on 9-9-2015, and at 1-2016-000991, Book 2128, Page 363, on 2-12-2016, respectively (collectively, the "Sham Deeds") were fraudulent transfers as to Big Cat Rescue, were sham deeds, and are void. Id. § 119(A)(1). At the time the Sham Deeds were executed, GWDG and any other transferees of the Zoo Land had knowledge of Big Cat Rescue's Judgments and therefore were not good faith transferees of the Zoo Land. See Agreed J. & Permanent Inj., Doc. No. 144. Accordingly, GWDG's title to the Zoo Land is void, and Big Cat Rescue is granted a constructive trust over the Zoo Land from and after February 20, 2015.4 See In re Pardee, 433 B.R. 377, 386-87 (Bankr. N.D. Okla. 2010) (in part, quoting and applying Cacy v. Cacy, 619 P.2d 200, 202 (Okla. 1980)); Restatement (First) of Restitution § 160 cmts. c-d, g (1937). Further, Ms. Schreibvogel executed a quit claim deed on September 21, 2018 to 25803 North Country Road 3250 LLC, attached hereto as Exhibit 1. The Court determines GWDG's title to the Zoo Land is void, and that title should be vested in 25803 North Country Road 3250 LLC based on Big Cat Rescue's request for the same. As the Sham Deeds are void, title to the Zoo Land was vested in Shirley M. Schreibvogel when she executed the September 21, 2018 deed, naming 25803 North Country Road 3250 LLC as grantee, and title to the Zoo Land is therefore transferred to 25803 North Country Road 3250 LLC by that deed effective as of the date of this Order and the Judgment issued contemporaneous hereto. Title to the Zoo Land shall be and hereby is confirmed in 25803 North Country Road 3250 LLC. The Court finds that no lesser remedy than those imposed herein will be effective as to GWDG based on the factual and procedural histories of the parties' dispute—both in this case and in Case No. CIV-14-377-SLP (W.D. Okla.).
Because its title is void, GWDG does not have the right to occupy or use the Zoo Land; nor does it have the right to lease the Zoo Land to a third party. Under the guise of its void title to the Zoo Land and holding itself out as owner, GWDG has—since February 15, 2016—purported to lease part or all of the Zoo Land to Greater Wynnewood Exotic Animal Park, LLC, to operate an exotic animal park (the "Lease," Exhibit 2 hereto). The Lease states that Greater Wynnewood Exotic Animal Park, LLC shall compensate GWDG for use of the Zoo Land in the amount of $50,000 per year, or $4,166 per month. The Court finds the Lease payment term to be a reasonable valuation of use of the Zoo Land under the constructive trust being imposed in favor of Big Cat Rescue against GWDG as further described herein.5
In addition, based on the Court's previous entry of judgment against Ms. Schreibvogel (see Agreed J. & Permanent Inj., Doc. No. 144), any right, title, or interest GWDG may claim in the following vehicles, their proceeds, or the proceeds of any insurance on them are void: 2014 Blue Ford F-150 Crew Cab Half-Ton Pickup, VIN # 1FTFW1EF2EKF43788, purchase date February 28, 2015; 2014 RAM 3500 Pickup, VIN # 3C63RRNL3EG176027, purchase date June 7, 2014; 2008 GMC Sierra 2500, VIN # 1GTHK23628F179434, purchase date March 19, 2015; and 2012 Dodge RAM 3500, VIN # 3C63DRKL5CG286500, purchase date June 9, 2014 (collectively, the "Vehicles"). The Court finds that Big Cat Rescue should be awarded judgment against GWDG in the form of a constructive trust and equitable lien in, on, and to the Vehicles, their proceeds, and the proceeds of any insurance on the Vehicles, from the date of the respective purchase of each of the Vehicles as set out above. See In re Seneca Oil Co., 906 F.2d 1445, 1450-53 (10th Cir. 1990); Hoxworth v. Blinder, 170 B.R. 438, 442 (D. Colo. 1994). The Court further finds that Big Cat Rescue, in the materials submitted to the Court in this action and in Case No. CIV-14-377-SLP (W.D. Okla.), has sufficiently traced funds to allow for the imposition of a constructive trust under Oklahoma law. Big Cat Rescue's constructive trust and equitable lien in and to the Vehicles shall survive any physical or title transfer of the Vehicles and shall follow any proceeds, except as to a good faith purchaser for value.
In addition, based on the Court's previous entry of judgment against Ms. Schreibvogel (see Agreed J. & Permanent Inj., Doc. No. 144), any right, title, or interest GWDG may claim in the following portable buildings, their proceeds, or the proceeds of any insurance on them are void: 12x36 Cabin - Building Inventory No. C-9-23-14-12-36-1789 - purchase date December 29, 2014 from Parks Leasing, LLC; 12x36 Cabin - Building Inventory No. C-12-29-14-12-36-1811 - purchase date December 29, 2014 from Parks Leasing LLC; 12x40 Lofted Porch Cabin - Building Inventory No. LPC-05-27-14-12-40-1581 - purchase date March 30, 2015 from Bradford Leasing, LLC; and 12x20 Utility - Building Inventory No. UT-01-27-15-12-20-1813 - purchase date January 30, 2015 from Bradford Leasing, LLC (collectively, the "Buildings").6 See Ex. 3. The Court finds that Big Cat Rescue should be awarded judgment against GWDG in the form of a...
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