In re Treadwell
| Decision Date | 09 March 2011 |
| Docket Number | No. 10–1499.,10–1499. |
| Citation | 637 F.3d 855 |
| Parties | In re Larry Weldon TREADWELL; Carole Elaine Treadwell, Debtors.Larry Weldon Treadwell; Carole Elaine Treadwell, Appellees,v.Glenstone Lodge, Inc., Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Lee J. Viorel, III, argued, Springfield, MO, for appellant.Kenneth Reynolds, argued, Springfield, MO, for appellees.Before RILEY, Chief Judge, MELLOY and COLLOTON, Circuit Judges.RILEY, Chief Judge.
Larry Weldon Treadwell and his wife, Carole Elaine Treadwell, arranged and presented a Red Hat Society event for hundreds of women at Glenstone Lodge, Inc. (Glenstone) in Gatlinburg, Tennessee. The Treadwells promised to pay the hotel bill, but skipped town without paying. As a result, the Treadwells owe Glenstone over $150,000. When Glenstone tried to foreclose on the Treadwells' Missouri home to satisfy the debt, the Treadwells filed for Chapter 7 bankruptcy. As relevant here, the bankruptcy court discharged Larry's debt to Glenstone. The Bankruptcy Appellate Panel for the Eighth Circuit (BAP) affirmed. Glenstone appeals. We reverse and remand to the bankruptcy court for further proceedings.
I. BACKGROUNDA. Gatlinburg Spring Fling
In 2003, the Treadwells registered Memory Travel as a fictitious name with the Missouri Secretary of State's Corporations Division. See Mo.Rev.Stat. § 417.210 (2001). The registration form, which the Treadwells ostensibly signed, 1 reflects that Larry and Carole each owned 50% of Memory Travel. The form lists the Treadwells' home in Branson, Missouri, as Memory Travel's business address.
In 2005, Memory Travel advertised the Gatlinburg Spring Fling (Fling) to members of the Red Hat Society (Redhatters), “a corporation with social chapters, primarily for women over age fifty, which organizes events and gatherings for its members around the country.” Redhatters are known to dress flamboyantly in large red hats and red and purple clothes. The Fling included a luau with hula dancers, a sock hop with band, a fashion show, an Elvis impersonator, cloggers, and “Jimmy Buffett style” entertainment.
Although the Red Hat Society did not sanction the Fling, Carole testified Memory Travel was allowed to use the Red Hat Society's logo in its promotional materials because Carole is Queen of the Red Hat Society's Dixie Ladybugs Chapter.
In April 2005, Carole contacted the Gatlinburg Department of Tourism to find a facility to host the Fling. The Department contacted local hotels with sufficient lodging and meeting space to accommodate 200 to 250 Redhatters in early 2006. One of these hotels was the Glenstone Lodge. During contract negotiations with Glenstone, Carole insisted Redhatters “book through me” and promised to pay Glenstone “via one check” for services provided.
In June 2005, Memory Travel and Glenstone entered into a written contract, which Carole and Glenstone's Director of Sales, Claudette Geoffrion, signed. In exchange for $77 per room per night (room-night), Glenstone agreed to set aside 150 room-nights during April 20–23, 2006. The contract required Memory Travel to (1) pay a $250 deposit immediately; (2) provide a rooming list and pay the first night's deposit on or before March 31, 2006; and (3) remit the balance at check-in. In a series of addenda to the contract, Memory Travel agreed to pay Glenstone a total of over $64,000 for lodging, meeting space, food, entertainment, and other services. Memory Travel paid the $250 deposit.
In the ensuing months, Memory Travel collected approximately $33,000 from Redhatters. As early as October 2005, Carole realized she had undercharged the Redhatters and Memory Travel would be unable to pay for the Fling. Carole misspent nearly $9,600 and underestimated Memory Travel's costs, including expenses for entertainment and a large off-site lunch for the Redhatters. Carole decided not to tell Glenstone because she “did not feel it was their problem.” Carole hoped to cover the shortfall by encouraging Redhatters to prepay for future Memory Travel events.
On March 15, 2006, Memory Travel sent a rooming list to Glenstone but did not pay the first night's lodging expenses by the March 31 deadline. On April 18, 2006, the Treadwells arrived in Gatlinburg for the Fling. Memory Travel did not pay the balance due under the contract, although Carole acknowledged the costs of Glenstone's services by signing a “trip resume” and initialing a series of invoices. The Treadwells “kept offering [Glenstone] reasons why they couldn't finalize” the contract and promised to pay when they checked out. Glenstone's manager, Urcella House, testified Glenstone “expected [full payment] on the day of checkout,” April 24, 2006. Glenstone supplied the Treadwells with room keys and a registration table, so Redhatters could check-in directly with the Treadwells in the hotel's lobby.
The Fling otherwise was a success. From April 17 to 24, 2006, Memory Travel booked 429 room-nights for more than 300 Redhatters, who hailed from at least twenty states, the United Kingdom, and Australia. Glenstone “did a beautiful job,” “[e]verything went extremely well,” and the Redhatters' reviews were “nothing but great.” At the Fling's farewell breakfast, the Treadwells distributed a flyer imploring Redhatters to “sign up now with the Treadwells so that [the Redhatters] could get their dibs in ... [and avoid] los[ing] out on ... the next year.”
On or about April 24, 2006, the Treadwells left without checking out, leaving a note, or notifying anyone of their departure and without settling the bill, which exceeded $60,000. For two days, Glenstone unsuccessfully attempted to contact the Treadwells via telephone, fax, and email. Glenstone needed to meet its payroll, which was particularly burdensome because it had employed additional staff and paid overtime to support the Fling.
On April 26, 2006, Carole sent Glenstone an email, explaining the Treadwells left the hotel without checking out and paying the bill because there was “a medical emergency and [the Treadwells] had to leave.” Carole complained the bill contained minor errors, said that she was “dressing to take it to the bookkeeper for checking,” and promised to “overnight $20,000.00 right now.” Carole did not have a bookkeeper, and Glenstone did not receive a $20,000 check the next day.
Glenstone asked Carole about the missing check. Carole then promised to wire Glenstone $20,000, $15,000 that day and $5,000 the following Monday, in lieu of the check. Carole wired $15,000, but did not wire $5,000 on Monday.
Glenstone later received a $20,000 check in a FedEx package. The check was drawn from “The Treadwell Family Revocable Living Trust, Larry W. Treadwell, Carole E. Treadwell” (trust), and the FedEx package was addressed from Larry.2 When Glenstone deposited the check, Carole had stopped payment on the check. Memory Travel never paid the remainder of Glenstone's bill.
B. Tennessee Lawsuit
Glenstone sued the Treadwells in Tennessee state court, alleging fraud, conversion, and breach of contract under Tennessee common law, as well as violations of various statutory provisions, including the Tennessee Consumer Protection Act of 1977 (TCPA), Tenn.Code Ann. § 47–18–101 et seq. Glenstone prayed for a $50,000 judgment and requested the judgment be trebled pursuant to the TCPA. The TCPA provides for treble damages when there is “a willful or knowing violation” of its terms. See Tenn.Code. Ann. § 47–18–109(a)(3).
When the Treadwells did not answer Glenstone's complaint, Glenstone moved for default judgment.3 See Tenn. R. Civ. P. 55.01. After an evidentiary hearing which is not part of the record before us, the Tennessee state court entered judgment against the Treadwells and the trust in the amount of $153,611.44. This sum represents treble the Treadwells' outstanding balance with Glenstone as of August 21, 2006, plus legal fees incurred in collection attempts to that date.4
Glenstone registered its Tennessee judgment in Missouri, placing a judicial lien on the Treadwells' Branson home. See Mo.Rev.Stat. § 511.350. Glenstone began proceedings to foreclose on its lien and a sheriff's sale was scheduled for September 2, 2008.
On August 27, 2008, the Treadwells filed for Chapter 7 bankruptcy, staying the foreclosure, see 11 U.S.C. § 362(a), and seeking discharge of their debt to Glenstone, see 11 U.S.C. § 727. The Treadwells then brought this adversary action against Glenstone to avoid Glenstone's lien as a preferential transfer. See 11 U.S.C. § 522(f)(1)(A). Glenstone answered and counterclaimed for a declaration that the Treadwells' debt was a non-dischargeable debt “for money, property, [or] services ... obtained by ... false pretenses, a false representation, or actual fraud.” See 11 U.S.C. § 523(a)(2)(A).5
To prove non-dischargeability under § 523(a)(2)(A), a creditor ordinarily must show, by a preponderance of the evidence, (1) the debtor made a representation, (2) with knowledge of its falsity, (3) deliberately for the purpose of deceiving the creditor, (4) who justifiably relied on the representation, which (5) proximately caused the creditor damage. See R & R Ready Mix v. Freier (In re Freier), 604 F.3d 583, 587 (8th Cir.2010). If the creditor proves a partnership between two of its debtors, non-dischargeability may be imputed from one partner to the other. See Strang v. Bradner, 114 U.S. 555, 561, 5 S.Ct. 1038, 29 L.Ed. 248 (1885). Under our precedent, imputation only is proper if the otherwise innocent debtor knew or should have known of his partner's fraud. See Walker v. Citizens State Bank of Maryville, Mo. (In re Walker), 726 F.2d 452, 454 (8th Cir.1984) (per curiam).6 Reckless indifference is evidence the innocent debtor should have known of the fraud. See id.
In April 2009, the bankruptcy court held a two-day trial to determine whether the Treadwells' debt to Glenstone was dischargeable.7 Glenstone sought to prove Larry...
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