F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

AUG 25 1999

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

In re:
BRIAN C. MCGAVIN,
Debtor.

No. 98-4086

KAREN B. MCGAVIN; MCGAVIN

INVESTMENT COMPANY,
Appellants,
v.
ROGER G. SEGAL, Trustee,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 97-CV-776-K)
Submitted on the briefs:
Steven T. Waterman of Ray, Quinney & Nebeker, Salt Lake City, Utah, for
Appellants.
Julie A. Bryan of Cohne, Rappaport & Segal, Salt Lake City, Utah, for Appellee.
Before TACHA , BARRETT , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.

Appellants Karen McGavin and McGavin Investment Company (MIC)

appeal from the district courts affirmance of a bankruptcy court order which
imposed constructive and resulting trusts on certain real and personal property
owned by appellants, granted a money judgment against Karen McGavin, and
voided certain transfers of property to Karen McGavin, all in favor of the
bankruptcy estate of Brian McGavin (Debtor). We have jurisdiction over this
appeal pursuant to 28 U.S.C. 158(d) and 1291.

See Connecticut Natl Bank v.

Germain , 503 U.S. 249, 253 (1992). We review the bankruptcy courts legal
determinations de novo and its factual findings for clear error.

See Phillips v.

White (In re White) , 25 F.3d 931, 933 (10th Cir. 1994).

Following the filing of Debtors petition in bankruptcy, the Trustee
commenced this adversary proceeding against Debtors spouse, Karen McGavin;
MIC, a Utah limited partnership created for the benefit of the McGavins minor
children; and Debtors professional corporation, McGavin, Siebenhaar &

After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
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Reynolds (MSR).

The Trustee asserted eleven separate causes of action. After a

trial to the court, the bankruptcy court ruled in favor of the Trustee on four
claims. Specifically, the court imposed constructive and resulting trusts on the
McGavins home (the Prospector Property), which Debtor had transferred to
Karen McGavin, and granted a money judgment against Karen McGavin for one
half the amount of loans obtained after the filing of the adversary proceeding and
using the Prospector Property as collateral. The court also imposed constructive
and resulting trusts on certain artwork and photography equipment owned by
MIC. Finally, the court voided transfers from Debtor to Karen McGavin of
furnishings located at the Prospector Property and a 1991 Promissory Note in
favor of MIC.

The district court concluded that the bankruptcy court properly imposed
both constructive and resulting trusts against the Prospector Property and the
artwork and photography equipment and affirmed the bankruptcy courts
judgment on that basis. Appellants correctly note, however, that the

district court

MSR did not appeal from the bankruptcy courts ruling, and is not a
party to this appeal.
2

The complete facts underlying this appeal are fully set out in the
bankruptcy courts lengthy and detailed Findings of Fact and Conclusions of Law,
Segal v. McGavin , No. 94PB-2447 (Bankr. D. Utah July 25, 1997),
see
Appellants App., Vol. 4 at 1542-1605, and will not be repeated here except as
necessary to discuss the legal arguments on appeal.
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failed to address several other challenges they raised on appeal from the
bankruptcy courts ruling. They reargue those points on appeal to this court.
Constructive and Resulting Trusts
On appeal, appellants contend that the bankruptcy court misapplied the law
of both constructive and resulting trusts and that the imposition of a constructive
trust against the Prospector Property violates Utah law. As to the resulting trusts,
appellants acknowledge that there must be clear and convincing evidence of the
transferors intent at the time of transfer to retain a beneficial interest in the
property in question.

See Parks v. Zions First Natl Bank

, 673 P.2d 590, 598

(Utah 1983). They argue, however, that the bankruptcy courts finding of intent
in this case, based on certain enumerated underlying factual findings, amounts to
a per se rule such as that rejected by this court in
133 F.3d 1336 (10th Cir.),

Taylor v. Rupp (In re Taylor) ,

cert. denied, 119 S. Ct. 172 (1998). In

Taylor this

court reversed the bankruptcy courts imposition of a resulting trust on the family
home, commenting:
The bankruptcy judge appears to have adopted a per se rule that when
a husband conveys to his wife his interest in the home but intends to
continue to reside there and help pay real estate taxes, insurance, and
other household bills that accrue, he intends to continue to hold a
fifty percent beneficial interest in the property. As a practical matter
such a rule would prevent transfers of title to the home between
spouses to accomplish such objectives as avoiding probate and
arranging the two estates to take advantage of the estate and
inheritance tax laws exemptions.
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Id. at 1342.
Appellants assert that this case is factually similar to

Taylor and that the

bankruptcy courts conclusion that Debtor intended to structure his assets to

remain judgment proof is not supported by record evidence. Despite many factual
similarities to Taylor , this case is nonetheless distinguishable. Here, Debtors use
and control of the Prospector Property went far beyond residing in the home and
paying taxes, insurance, and other household bills. The bankruptcy court made
numerous and specific findings about Debtors continued control and use of the
Prospector Property as collateral for various loans whose proceeds he controlled
and used to enter into personal and business transactions for his benefit. These
findings alone distinguish this case from

Taylor , where the debtor had only

cosigned a line of credit using the home as collateral. As to the artwork and
photography equipment, the bankruptcy court based its ruling on similar specific
findings that this property was purchased or obtained with funds from the
Debtors income and used and controlled by the Debtor after its transfer to MIC.
Those findings adequately support the courts imposition of a resulting trust.
As did the district court, we conclude that the bankruptcy court did not
apply a per se rule here with regard to the imposition of a resulting trust; its
determination that Debtor intended to retain a beneficial interest in the Prospector
Property, the artwork, and the photography equipment is supported by record
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evidence and underlying factual findings which are not clearly erroneous. Those
same findings support the courts conclusion that, in light of Debtors intent to
retain a beneficial interest in this real and personal property, the transfers to
Karen McGavin and MIC were an attempt to structure his assets to shield them
from creditors, although that conclusion was not required to support the courts
imposition of the resulting trusts on the property.
Appellants also argue that reversal is compelled by this courts decision in
Pate v. United States Department of Treasury Internal Revenue Service

, 949 F.2d

1059 (10th Cir. 1991). Although this court noted that the wife, owner of the
property, had mortgaged the home to secure loans her husband advised were
necessary, and that he repaid,

id. at 1061, there were no findings that the

husband controlled and used the loan proceeds in the ways that Debtor did in this
case. Further, in Pate , the district court imposed a resulting trust based on the
general rule that such a trust is proper when title to real property is taken in one
persons name, but the purchase price is paid by another, a rule that finds
exception when applied to a husband and wife.

See id. at 1060-61. This case

does not require reversal on those same grounds, because neither the bankruptcy
court nor the district court applied the general rule.
In contrast to resulting trusts, constructive trusts do not require a finding of
intent, but may arise where a person holding title to property is subject to an
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equitable duty to convey it to another on the ground that he would be unjustly

enriched if he were permitted to retain it.

Parks , 673 P.2d at 599 (further

quotation omitted). Here, appellants contend that the bankruptcy court ignored
Utah law in imposing a constructive trust absent fraud, duress, or mistake.
Appellants Br. at 27. However, and as the bankruptcy court noted,

See

see

Appellants App., Vol. 4 at 1580-81, Utah law bases constructive trust on the
principle of unjust enrichment.

See Parks , 673 P.2d at 599. The elements of

unjust enrichment under Utah law do not include active wrongdoing by the
propertys owner.

See Jeffs v. Stubbs , 970 P.2d 1234, 1247-48 (Utah 1998)

(setting out elements of unjust enrichment claim under Utah law),

119 S. Ct. 1803 (1999).

cert. denied,

Appellants point out that Debtors creditors in bankruptcy did not exist
when the Prospector Property was deeded to Karen McGavin and contend that the
bankruptcy court misapplied the law because it did not apply equitable principles
from the Debtors point of view.

See Appellants Br. at 28. We reject this

argument because we agree with the bankruptcy court that the Trustee, standing in
the Debtors shoes, can claim all property of the Debtor, legal or equitable.

See

Appellants App., Vol. 4 at 1585 n.12. Further, the point-of-view argument is not
In contrast, the bankruptcy court noted that Oklahoma law clearly
requires active wrongdoing before imposing a constructive trust.
See Appellants
App., Vol 4, at 1581 n.9.
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persuasive here in light of the bankruptcy courts finding that Debtor had
structured his assets to make them judgment proof, while still retaining an
equitable and beneficial interest in those assets.
We agree with the bankruptcy court and

Cf. Taylor , 133 F.3d at 1342 .

district court that the facts of this

case take it beyond those facts found insufficient to support a constructive trust in
Taylor . The imposition of a constructive trust on the Prospector Property, the
artwork and the photography equipment was proper and based on sufficient
factual findings which are not clearly erroneous.
Factual Findings
Appellants contend that a number of the bankruptcy courts factual findings
are clearly erroneous. Specifically, appellants challenge the bankruptcy courts
findings that: 1) Debtor intended not to cooperate with the Trustee in the sale of
his business, MSR; 2) Debtor intended to retain beneficial ownership of the
photography equipment; 3) Debtor intended to retain beneficial ownership of the
artwork; 4) there was no conclusive evidence tracing the proceeds from sale of
the McGavins first home to the purchase of the Prospector Property; and 5)
Debtor retained Derk Rasmussen to prepare a solvency analysis of MSR. We
have reviewed the record to determine if these findings lack factual support
therein or if we are left with a firm conviction that a mistake has been made.
Las Vegas Ice & Cold Storage Co. v. Far West Bank
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See

, 893 F.2d 1182, 1185 (10th

Cir. 1990). Our review convinces us that the bankruptcy courts findings of fact
are well grounded in the record and are not clearly erroneous. Further, we agree
with appellees that the fifth fact challenged is not relevant or necessary to the
bankruptcy courts analysis of the legal issues involved.
Burden of Proof
Appellants contend that the bankruptcy court erroneously shifted the burden
of proof from the Trustee to appellants because the court commented on a lack of
certain kinds of evidence in support of: 1) purported gifts of the MIC property to
the McGavin children and the childrens contributions to MIC; and 2) Debtors
intent regarding the 1989 transfer to Karen McGavin of the furnishings located in
the Prospector Property. Our review of the record indicates that the comments
about which appellants complain did not result in an impermissible shift of the
burden of proof to appellants. Ample affirmative evidence on the record
supported the Trustees claims and the bankruptcy courts findings that Debtor
intended to retain a beneficial interest in the property in question. The
bankruptcy court did not rely on an absence of evidence in reaching its
conclusions.

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Personal Property
Appellants claim that the bankruptcy court improperly granted judgment to
the Trustee with regard to the furnishings transferred to Karen McGavin in 1989.
They argue that the Trustee did not prove intent to defraud by clear and
convincing evidence because the bankruptcy court recited a presumption that a
transfer to an insider without consideration was performed with intent to hinder,
delay, or defraud. They also note that the exhibit to the transfer document was
blank. These arguments lack merit. The bankruptcy court determined that the
transfer of the furnishings was marked with badges of fraud, and discussed
those points with particularity.

See Appellants App., Vol. 4 at 1595-96. The

presumption noted above was only one point recited by the court. The bankruptcy
courts finding that those furnishings were transferred with intent to hinder, delay,
or defraud creditors is not clearly erroneous.

Further, testimony from Karen

McGavin supports the bankruptcy courts conclusion that certain furnishings at

the Prospector Property were purchased with funds from Debtors income,
providing support for the bankruptcy courts ruling.

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The 1991 Note

Appellants contend that the bankruptcy court erred in granting judgment to
Trustee on his claims regarding the 1991 Note because the Trustee failed to
present evidence about the balance due and owing on the Note. As appellee
points out, however, Debtor himself testified about the balance of the Note.

See

Appellants App., Vol. 2 at 712. This argument mischaracterizes the record and
lacks merit.
Money Judgment
Because Karen McGavin had encumbered the Prospector Property with
loans following the Trustees filing of this adversary action, the bankruptcy court,
in fashioning its equitable remedy in favor of the Debtors estate as to the
Prospector Property, entered a money judgment against Karen McGavin for
one-half the amount of those loans. Appellants contend they lacked notice of this
potential remedy and argue that the Trustee somehow disguised the true nature of
his claims, hiding a legal claim for money damages. We disagree. While it is
true that the Trustees complaint sought only imposition of constructive and
resulting trusts as to the Debtors equitable interest in the Prospector Property, it
is also true that the encumbrances which are the subject of the money judgment
against Karen McGavin did not arise until after the Trustee filed suit. Further,
the courts fashioning of an equitable remedy which includes a money judgment
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does not somehow transmute the Trustees claims against the Prospector Property
into legal claims.

See Golden v. Kelsey-Hayes Co.

, 73 F.3d 648, 660 (6th Cir.

1996) (stating that equitable relief can include money damages, and noting that
trust remedies are equitable in nature, citing

Massachusetts Mut. Life Ins. Co. v.

Russell , 473 U.S. 134, 154 n.10 (1985) (Brennan, J., concurring));

Crocker v.

Piedmont Aviation, Inc. , 49 F.3d 735, 746 (D.C. Cir. 1995) ([C]ourts of equity
have long had the power to give pecuniary relief should specific performance or
other traditionally equitable remedies be insufficient.).
Statute of Limitations
Appellants argue that the Trustees claims for resulting and constructive
trusts as to the Prospector Property and the artwork are barred by the applicable
four-year statute of limitations, 78-12-25(3), Utah Code Ann., because Debtor
transferred his interests to Karen McGavin and MIC more than four years before
the Trustee filed this adversary proceeding. The bankruptcy court held that the
statute begins to run when an adverse position to any beneficial interest is
asserted and concluded that Debtors filing of schedules in his bankruptcy,
claiming no interest in the Prospector Property, artwork or photography
equipment, was an assertion of that adverse position. Appellants App., Vol. 4, at
1572.

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Appellants contend that the bankruptcy courts ruling was in error because
its conclusion that the statute of limitations begins to run from the date of
repudiation of any beneficial interest applies only to resulting trusts, which
requires a finding of intent.

They argue that application of the repudiation

analysis to constructive trusts would vitiate the statute of limitations with respect
to these kinds of equitable actions. The repudiation required, however, is not tied
to the intent of the parties, but to the retained equitable interest.

See Taylor , 133

F.3d at 1340. The court found that Debtor retained an equitable interest in the
Prospector Property and the artwork as a result both of the intent of the parties
and equitable considerations.

See Appellants App., Vol. 4 at 1579, 1585. We

have held that these factual findings are not clearly erroneous. Because the
statute of limitations is intertwined with Debtors equitable interest in the
Prospector Property,

see Taylor, 133 F.3d at 1340, it began to run only when he

repudiated that interest. Here, the bankruptcy court found his first act of
repudiation to be the filing of his bankruptcy schedules. We agree with the

Although appellants continue to argue that the statute of limitations

bars both the constructive and resulting trust claims, based on their factual
assertions that Debtor did not intend to retain any equitable interests in the
Prospector Property, see Reply Br. at 5-6, in making the argument that the statute
of limitations should not apply to nonintentional trusts, they apparently concede
the legal point that the statute of limitations would not bar resulting trust claims
where intent is found.
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bankruptcy court that the statute of limitations did not bar the Trustees resulting
and constructive trust claims against the Prospector Property.
For the foregoing reasons, the judgment of the United States District Court
for the District of Utah is AFFIRMED.

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