Minnesota

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

COURT OF APPEALS OF MINNESOTA

No. C1-94-1586

1995.MN.22063

April 11, 1995

CENTRAL FINANCIAL SERVICES, RESPONDENT

v.

ROGER D. SAX, INDIVIDUALLY, AND D/B/A GREATLAND REALTY CO., APPELLANT

Appeal from District Court, Dakota County; Hon. John J. Daly, Judge. District Court File No. C0938639.

For Central Financial Services, Respondent: Gary D. Pihlstrom, Hatch, Eiden & Pihlstrom, Minneapolis, Mn.

Roger D. Sax, individually, and d/b/a Greatland Realty Co., Appellant, Pro Se, Rosemount, Mn.

Considered and decided by Norton, Presiding Judge, Parker, Judge, and Schumacher, Judge.

The opinion of the court was delivered by: Schumacher

SCHUMACHER, Judge

Roger D. Sax, individually, and d/b/a Greatland Realty Co., (Sax) appeals the judgment in favor of respondent Central Financial Services (Central Financial), arguing that the evidence did not support the jury's findings and the trial court misapplied a statutory definition of "transfer." We affirm.

FACTS

Central Financial obtained a $22,951.05 judgment against Leonard Peterson in 1989 and attempted several times to collect the money through garnishment. In the summer of 1992, Peterson received approximately $175,000 from a lawsuit settlement. Peterson and a business associate decided to establish a multi-level marketing business. Peterson agreed to use about $50,000 of his settlement to help finance the new business. Sax agreed to serve as a paid consultant in starting the business.

Sax accompanied Peterson to Peterson's attorney's office to collect the settlement and discussed with the attorney the fact that creditors were pursuing Peterson. Peterson used part of the settlement to pay some creditors and deposited $95,000 into Sax's real estate trust account to use in the creation of the new business.

There was no written agreement between Sax and Peterson about the operation of the trust account. Sax, who would give money to Peterson upon request, testified that he thought Peterson was using the money to pay off creditors. When litigation began, Sax was unable to locate the trust account records. He did, however, prepare a handwritten ledger indicating that $72,000 from the account was paid directly to Peterson, who used the money to satisfy other creditors, to pay living expenses, to gamble, and to give as a gift to his children. Sax received at least $3,000 as a consulting fee.

Central Financial brought suit, claiming Sax conspired with Peterson to defraud Central Financial. The trial court denied Sax's motion to dismiss the claim on the ground that there was no "transfer" within the meaning of the Uniform Fraudulent Transfer Act. By special verdict, the jury found that Sax conspired with Peterson to hinder, delay or defraud Central Financial.

DECISION

1. Sax argues there is insufficient evidence for the jury's finding that he conspired with Peterson to defraud Central Financial. We disagree.

We will not set aside answers to special verdict questions "unless they are perverse and palpably contrary to the evidence." Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), pet. for rev. denied (Minn. Feb. 12, 1993). We will not disturb the jury's finding if it can be reconciled on any theory." Id. "Conspiracy involves a combination of persons to accomplish either an unlawful purpose or a lawful purpose by unlawful means." Anderson v. Douglas County, 4 F.3d 574, 578 (8th Cir. 1993), cert. denied, U.S. (1994). A party must present facts tending to show an agreement in order to prove conspiracy. Id. Here, the jury was presented with facts from which it could reasonably conclude that Sax conspired with Peterson to defraud Central Financial. Sax admitted he knew that a creditor was trying to collect from Peterson; the trust account did not operate in a typical fashion; Sax drew a salary from the trust account; and Sax was unable to locate the account records. Furthermore, Sax himself testified that the trust account would allow Peterson to start a new business "without fear of creditors" and Peterson deposited more money into the account than he intended to contribute to the new business.

2. Sax argues that the trial court erred by concluding that the deposit of funds into a real estate trust account constitutes a "transfer" under the Uniform Fraudulent Transfer Act. Minn. Stat. § 513.41-51 (1992). We disagree.

Under the Act,

"transfer" means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.

Minn. Stat. § 513.41(12). Peterson parted with an interest in the money by granting legal title to Sax, who acted as a trustee. The Act's broad definition of transfer encompasses a deposit into a real estate trust account.

Affirmed.

ROBERT H. SCHUMACHER

4/5/1995

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