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Riegel v. Jungerman

Court of Appeals of Missouri, Western District, Third Division

December 24, 2019

EMILY RIEGEL, et al., Respondents,
v.
DAVID G. JUNGERMAN, et al., Appellants.

          Appeal from the Circuit Court of Jackson County The Honorable Kevin D. Harrell, Judge.

          Before: Alok Ahuja, P.J., and Gary D. Witt and Anthony Rex Gabbert, JJ.

          Alok Ahuja, Judge.

         David Jungerman, his daughter Angelia Buesing, and related entities (collectively "Jungerman") are defendants in an action pending in the Circuit Court of Jackson County, in which the plaintiffs assert wrongful death and fraudulent transfer claims. Jungerman appeals from an interlocutory order in which the circuit court refused to revoke its appointment of a receiver over his property and assets. Jungerman asserts two Points on appeal. First, he argues that he was not provided adequate notice of the plaintiffs' motion for appointment of a receiver, and did not have a meaningful opportunity to be heard before the receiver was appointed. Second, Jungerman argues that the plaintiffs failed to demonstrate that they had a sufficiently mature claim to support appointment of a receiver, because their wrongful death claims had not been reduced to judgment. We affirm.

         Factual Background

         The plaintiffs in the underlying action are Emily Riegel, and husband and wife Allan and JoAnn Pickert. Riegel is the surviving spouse of attorney Thomas Pickert, who was murdered on October 25, 2017. Allan and Joann Pickert are Thomas Pickert's parents. We refer to the plaintiffs collectively as "Riegel."

         The current case arises from an earlier personal injury lawsuit brought by Jeffery Harris against David Jungerman in the Circuit Court of Jackson County, Harris v. Jungerman, No. 1416-CV22910. Thomas Pickert and his law firm represented Harris in that case. In the Harris lawsuit, Harris alleged that Jungerman had unjustifiably shot Harris when Jungerman discovered Harris at a warehouse building owned by Jungerman in the early morning hours of September 25, 2012. Among other injuries, Harris' right leg was amputated below the knee as a result of the shooting.

         A jury awarded Harris $750, 000 in compensatory damages for battery, and an additional $5 million in punitive damages. The circuit court entered judgment on the jury verdict on August 3, 2017. David Jungerman did not post an appeal bond to secure payment of the Harris judgment. Accordingly, while the case was pending on appeal, Thomas Pickert began proceedings against Jungerman to execute on the Harris judgment. Jungerman was served with documents related to those execution efforts on October 24, 2017.

         On October 25, 2017, after walking his children to school, Thomas Pickert was shot and killed in front of his home. David Jungerman has been charged with first-degree murder and armed criminal action for causing Thomas Pickert's death. State v. Jungerman, No. 1816-CR01619-01 (Jackson Cnty. Cir. Ct.). The criminal case is currently pending.

         This Court affirmed the judgment against David Jungerman in the Harris case in an opinion issued on August 7, 2018. Harris v. Jungerman, 560 S.W.3d 549 (Mo. App. W.D. 2018).

         On May 17, 2018, Riegel filed her petition in the Circuit Court of Jackson County. Riegel's petition names David Jungerman and his daughter Buesing as defendants, both individually and in their capacities as trustees of the Jungerman Irrevocable Trust and the Jungerman Family Trust.[1] The petition also names the Jungerman Farm Corporation and Baby Tenda Corporation as defendants. We refer to these parties collectively as "Jungerman" in this opinion.

         The petition alleges wrongful death claims for battery and negligence against Jungerman for causing the death of Thomas Pickert. The petition also asserts a fraudulent transfer claim, alleging that Jungerman has made various property transfers to hinder or delay his creditors, including Riegel, from collecting on their lawful claims.

         The petition alleges that David Jungerman is the owner and sole shareholder of Baby Tenda. The petition further alleges that Baby Tenda, the Farm Corporation, and the Family and Irrevocable Trusts are alter egos of David Jungerman. The petition alleges that, as a result, "any assets held by or fraudulently transferred to or from [the corporations or trusts] constitute a transfer by Jungerman himself . . . ." The petition further alleges that David Jungerman's actions were taken in the course and scope of his employment or agency for the corporations and trusts, and that Jungerman, Buesing, the corporations, and the trusts were acting as a joint venture at all relevant times. Accordingly, the petition alleges that the corporations, trusts, and Buesing are vicariously liable for David Jungerman's actions.

         The petition alleges that, shortly after the jury's verdict in the Harris case was announced, David Jungerman approached Thomas Pickert in a threatening manner in the courtroom, and told him that "[n]one of this matters. I have 186 guns. I did it once before. I will do it again. You can't touch me." The petition alleges that Jungerman attempted to coerce and intimidate Thomas Pickert and his firm to dissuade them from attempting to collect on the Harris judgment. The petition alleges that Jungerman's threats to Thomas Pickert were consistent with a long history of violent and threatening actions. The petition also alleges that, subsequent to Thomas Pickert's murder, Jungerman "admitted to being responsible for the fatal shot 'because a lawyer stole his money.'"

         The petition contains detailed allegations concerning property transfers by Jungerman, which the petition alleges were designed to frustrate his creditors. Thus, the petition alleges that, shortly after entry of the Harris judgment on August 3, 2017, Jungerman "began, or continued, a scheme to fraudulently transfer assets to hinder, delay, and defraud" present and/or future creditors. The petition alleges the following specific transfers:

• On August 8, 2017, Jungerman ordered a $144, 487.63 cashier's check for Buesing from an account at UMB Bank;
• On August 14, 2017, Jungerman deposited a set of checks totaling $4, 970, 864.39 into the UMB Bank account, and withdrew the same amount three days later;
• Between August 19 and 22, Jungerman opened seven accounts at another bank, and deposited over $250, 000 across the accounts;
• On August 24, 2017, Jungerman made a $900, 000 deposit into the Irrevocable Trust;
• On August 24, 2017, Jungerman made a $1, 573, 200 deposit into a bank account in the name of the Farm Corporation;
• On August 25, 2017, Jungerman transferred his home and other property to Buesing; and On October 12, 2017, Jungerman withdrew $2, 100, 000 from the Farm Corporation's account and on October 13, 2017, Jungerman withdrew $900, 000 from a trust account, in the form of cashier's checks made payable to a title company.

         The petition alleges that "[n]one of these financial transactions were made for legitimate business purposes, represented a sale or exchange for reasonably equivalent value, or were made to satisfy some real obligation." Instead, the petition alleges that "Jungerman had moved assets in and around various entities in an attempt to hinder, delay, and/or defraud creditors and future creditors."

         The petition prays that the circuit court void and set aside all of Jungerman's fraudulent transfers. The petition further states:

Based on Defendants' history of fraudulent transfers, [and] the express and complicit participation by all Defendants, Plaintiffs request that a receiver be appointed to take charge and manage Defendants' assets, including the above described bank accounts, the Irrevocable Trust, the Family Trust, the assets [of] Baby-Tenda, the Farm Corporation, any real property owned by Defendants Jungerman and/or Buesing, and any other relief needed that becomes apparent through discovery, and appoint a receiver to control and manage Jungerman's assets.

         Jungerman filed a motion to dismiss the petition, and Riegel moved for entry of a default judgment. The circuit court held a hearing on these and other pending motions on August 22, 2018. After hearing argument, the court took the motions under advisement. Riegel then orally requested that the court appoint a receiver because of "the apparent transfer of assets." Riegel's counsel referenced the sworn probable cause statement from Jungerman's criminal case, which described the fraudulent transfers specifically alleged in the petition. The court indicated its intention to appoint a receiver, but directed the parties to brief the issue.

         The day after the hearing, Riegel filed a proposed order appointing a receiver. On the same day, Jungerman filed an objection to the appointment of a receiver.

         On August 29, 2018, the circuit court entered an order appointing a receiver "to take charge over all of the Defendants' property and assets." The court took judicial notice of the probable cause statement filed in the pending criminal case against Jungerman. Based on the evidence and the allegations in Riegel's petition, the court found that "the facts presented show the existence of conduct on the part of Defendants which constitutes a great emergency and places this matter in an urgent posture sufficient to require and justify the appointment of a receiver immediately to take charge of, manage, preserve, and protect the assets of the Defendants."

         On September 4, 2018, Jungerman filed a motion to vacate and revoke the order appointing a receiver. In her opposition, Riegel submitted excerpts of testimony by Jungerman and a former employee from the Harris trial, in which the witnesses described additional transactions involving Jungerman's property or assets between the time of the Harris shooting and the trial. Thus, the testimony indicated that, shortly after Jungerman shot Harris, Jungerman granted the employee a life estate in a 425-acre property that is worth over $1 million, without the employee's knowledge, and granted the remainder interest to his granddaughter. The testimony also indicated that Jungerman transferred 5, 000 acres of farmland to the ...


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