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Morin v. Dubois dissenting opinion.

ROBERTS, J., with whom WATHEN, C.J., joins, dissenting.
  
	[¶9]  I must respectfully dissent because the Court disregards the
proper function of an appellate court and ignores much of the factual
findings of the trial court.  Although the record could support a finding that
Paul transferred his interest in the property with the actual intent to
hinder, delay, or defraud his creditors, there is competent evidence to
support the court's contrary finding that he did not act with that intent.

I.
	[¶10]  Initially, I will elaborate on the various transfers at issue.  In
September 1989 Paul conveyed to Dana four parcels of real estate.  One of
the parcels-the Fort Kent property-had been previously owned by Paul's
mother.  The other three parcels were co-owned by Paul's wife, Beulah.  The
consideration on the warranty deeds for those transfers was nominal.  The
plaintiffs, however, submitted transfer tax forms that listed the
consideration paid on one of the parcels-the camp-at $10,000 and on
another parcel-the office building-at $70,000.  The plaintiffs failed to
provide any evidence regarding the value of the Fort Kent property or the
fourth parcel of land-the residential property.  There is evidence that both
the office building and the residential property were encumbered by a
mortgage and that both properties have been subsequently subject to a
foreclosure sale.  There is no evidence as to the amount due on those
mortgages at the time the parcels were transferred to Dana.  
	[¶11]  In December 1990 Paul transferred two businesses to his son. 
The bill of sale stated the value of the businesses as $150,000.  At trial Dana,
however, testified that the assets of both businesses were approximately
$6,000 to $7,500 at the time of the transfer.  
	[¶12]  To support their assertions that the transfers depleted Paul of
his assets, the plaintiffs submitted a copy of his bankruptcy petition
completed in May 1991, nearly two years after Paul transferred the parcels
of real estate to Dana.  Paul's deposition, in which he stated that he did not
have any assets after he transferred the real estate to Dana and that he put
the property in Dana's name "for the simple reason that ... I did not want to
have anything in case of high medical bills,"{4} was also submitted at trial.

II.
	[¶13]  We have repeatedly stated that "the function of an appellate
court is not to review a cold transcript and draw its own factual inferences
...."  Lewisohn v. State, 433 A.2d 351, 354 (Me. 1981).  Rather, we review
the record to determine whether there is any evidence to support the trial
court's findings.  VanVoorhees v. Dodge, 679 A.2d 1077, 1080 (Me. 1996). 
These findings are conclusive on us even if there is evidence in the record
that could have supported a contrary determination.  Crowley v. Dubuc, 430
A.2d 549, 551 (Me. 1981).  
	[¶14]  Despite these principles, the Court declares "that [the trial
court] clearly misapprehended the meaning of the evidence and that the
evidence compels a finding for the plaintiffs."  The Court ignores, for
example, the trial court's finding that the Fort Kent property was never a
viable asset of Paul and that his father transferred the property to Paul to
hold for his mother.  The Court also ignores the trial court's findings that
Beulah co-owned the other three parcels of property.  
	[¶15]  The Court further disregards the superior position of the trial
court to assess the credibility of the various witnesses and nontestimonial
evidence.  See, e.g., Crowley v. Dubuc, 430 A.2d at 552.  Contrary to the
Court's assertions, the trial court was not compelled to believe that the
$150,000 listed on the bill of sale reflected the true value of the businesses. 
Nor was the court compelled to believe that the amounts listed as
consideration on the tax forms were the actual values of the real estate.  
	[¶16]  The failure on the part of the plaintiffs to bring forth credible
evidence of the value of the property made it impossible for the court to
discern whether the transfers were even voidable pursuant to the Uniform
Fraudulent Transfer Act, 14 M.R.S.A. §§ 3571-3582 (Supp. 1997).  Section
3572(12) defines "transfer" as "every mode, direct or indirect, absolute or
conditional, voluntary or involuntary, or disposing of or parting with an asset
or an interest in an asset ...."  (Emphasis added).  Excluded from the
definition of the term "asset" is "[p]roperty to the extent that it is
encumbered by a valid lien."  14 M.R.S.A. § 3572(2)(A).  Both the office
building and the residential property were encumbered by a lien at the time
of the transfer.  The plaintiffs failed to provide the court with any evidence
as to the value of the residential property or the amount of the mortgages
encumbering both pieces of property.  The court was therefore unable to
determine whether those parcels of real estate were even "assets" within
the meaning of the Uniform Fraudulent Transfer Act.  Without this
determination, Paul's conveyances to Dana of the property was not a
"transfer," let alone a fraudulent transfer, within the meaning of the Act.  
	[¶17]  The failure on the part of the plaintiffs to provide the court with
sufficient evidence as to the value of the property transferred also resulted
in an inability on the part of the court to assess damages.  14 M.R.S.A.
§ 3579(2) provides that a creditor "may recover judgment for the value of
the asset transferred ... or the amount necessary to satisfy the creditor's
claim, whichever is less."  (Emphasis added).  Only the camp is still in the
possession of Dana.  The residential property and the office building have
been subject to a foreclosure sale, and the Fort Kent property has been
returned to Paul's mother who is not a party to this litigation.  Because these
transfers cannot be avoided, evidence regarding the value of these parcels of
real estate is essential.  The plaintiffs, however, did not bring forth any
evidence as to the value of the Fort Kent property or the residential
property.  Moreover, the evidence as to the value of the businesses, the
camp, and the office building was subject to a credibility assessment by the
court.  Without credible evidence regarding the value of the property
transferred, it was impossible for the court to draft a remedy.  
	[§18]  Finally, the Court states that the trial court failed to address the
plaintiffs' claim that Paul violated section 3575(1)(B)(2).  The Court's failure
to address this issue is understandable in light of the plaintiffs' failure to
argue for the application of section 3575(1)(B)(2).  The trial instead focused
on whether Paul transferred the property with the intent to hinder, delay,
or defraud his creditors and whether Dana actively participated in the
scheme.  The only mention of this section was in the post-trial brief of the
plaintiffs' counsel.  Moreover, rather than explain how the section applied to
the facts of this case, he made a one-sentence, perfunctory reference to the
section.  Hence, whether the plaintiffs have adequately preserved the
applicability of section 3575(1)(B)(2) is debatable.
	[¶19]  For these reasons, I cannot conclude that the evidence was
such that the court was compelled to believe that the transfers were
fraudulent and therefore I would affirm the judgment of the trial court. 
                                                                                                                                      

Attorney for the Appellant: William J. Smith, Esq. 55 Main St. P.O. Box 7 Van Buren, Maine 04785 Attorney for the Appellee: E. Allen Hunter, Esq. Solman & Hunter 495 Main St. P.O. Box 665 Caribou, Maine 04736
FOOTNOTES******************************** {1}. The plaintiffs in this matter are Adrien, Fernand, Edgar and Joseph Morin; Michael Abbott; Richard Paradis; and Raymond Freeman. At the trial the plaintiffs also included Riola, and Marie Rose Morin; Claudette Freeman; and Diane Paradis. {2}. Richard, Dana's brother, was a codefendant at the trial, but Morin does not challenge the trial court's determination that Richard was not a "transferee" within the meaning of the Act. {3}. 14 M.R.S.A. § 3578 provides in pertinent part: 1. Action for relief. In any action for relief against a transfer or obligation under this Act, a creditor, subject to the limitations provided in section 3579, may obtain: A. Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim; B. An attachment, trustee process or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by law; or C. Subject to applicable principles of equity and in accordance with applicable civil rules of procedure: (1) An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property; (2) Appointment of a receiver to take charge of the asset transferred or of other property of the transferee; (3) Damages in an amount not to exceed double the value of the property transferred or concealed; or (4) Any other relief the circumstances may require. {4}. Both of these statements appear to be in direct contradiction to other evidence adduced at trial. In September 1989 Paul still owned his two businesses. Moreover, at the deposition he acknowledged that he had health insurance that would pay his medical bills.

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