           IN THE MISSOURI COURT OF APPEALS
                   WESTERN DISTRICT
EMILY RIEGEL, et al.,             )
                  Respondents, )
                                  )
v.                                )          WD82279
                                  )
DAVID G. JUNGERMAN, et al.,       )          FILED: December 24, 2019
                      Appellants. )
              Appeal from the Circuit Court of Jackson County
                  The Honorable Kevin D. Harrell, Judge
                 Before Division Three: Alok Ahuja, P.J., and
                 Gary D. Witt and Anthony Rex Gabbert, JJ.
      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.




                                          2
       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


        1      At the time of the circuit court’s order refusing to vacate the receivership, the
operative petition named David Jungerman and Buesing as purported trustees of two
separate trusts: the Family Trust and the Irrevocable Trust. A First Amended Petition
filed on March 29, 2019, modifies these allegations, and alleges instead that Jungerman
and Buesing are or were trustees of a single trust: “the Jungerman Family Irrevocable
Trust” dated February 17, 2003. The parties have not addressed this discrepancy in their
briefing or arguments on appeal, and given our disposition we do not further address it.


                                               3
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;




                                           4
            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.




                                           5
      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 Jungerman Family Trust. Shortly after Jungerman was

sent a request for financial information in the Harris case, he removed himself as

trustee of the Jungerman Family Trust and Buesing became the trustee.

      On October 12, 2018, the court heard argument regarding the motion to

revoke the order appointing a receiver. At the hearing, Riegel argued that the

probable cause statement,




                                          6
       combined with the testimony of Mr. Jungerman in the Harris trial[,]
       . . . shows that his motive and intent was to move this money around to
       avoid – to essentially make him judgment-proof from the existing
       creditors in the Harris lawsuit, including Thomas Pickert and his
       family members, who now have a claim for the wrongful death that
       resulted from Mr. Jungerman’s actions.
       On October 19, 2018, the court entered an order denying Jungerman’s motion

to revoke the order appointing a receiver. Jungerman had also moved to disqualify

the receiver initially appointed by the circuit court on the ground that the receiver

was a member of the Kansas City Board of Police Commissioners, and therefore had

a conflict of interest because of the pending criminal charges against Jungerman for

Thomas Pickert’s murder. In its October 19 order, the court stated its view that no

conflict of interest existed. Nevertheless, in light of Jungerman’s objections, the

court appointed a new receiver.

       Jungerman appeals.2

       We note that, during the briefing of this appeal, the Farm Corporation filed a

voluntary bankruptcy petition on May 16, 2019. In re Jungerman Farm Corp., No.

19-4157-drd11 (Bankr. W.D. Mo.). As a result, this Court stayed further

proceedings. The bankruptcy case was dismissed without prejudice on August 28,

2019, and briefing resumed.

       We also note that, although all of the defendants initially joined in the Notice
of Appeal, Buesing and the Jungerman Farm Corporation moved to voluntarily

dismiss their appeals on November 26 and 27, 2019. We granted both motions on

November 27, 2019. Buesing also filed a separate motion, seeking to voluntarily

dismiss the Jungerman Family Irrevocable Trust as an appellant. That motion was

       2       Section 512.020(2) provides that “[a]ny party to a suit aggrieved by any
judgment of any trial court in any civil cause” “may take his or her appeal to a court having
appellate jurisdiction from any . . . [o]rder refusing to revoke . . . an interlocutory order
appointing a receiver.” A circuit court’s interlocutory order denying “a motion to revoke [a]
receivership appointment is appealable and need not be denominated a judgment prior to
the appeal being taken.” Meadowfresh Solutions USA, LLC v. Maple Grove Farms, LLC,
578 S.W.3d 758, 762 (Mo. 2019) (overruling Spiece v. Garland, 197 S.W.3d 594 (Mo. 2006)).


                                              7
taken with the case. The Jungerman Family Irrevocable Trust is not an appellant

in this case, and indeed was not even named as a defendant until after the orders at

issue in this appeal were entered. See note 1, above. Moreover, we understand that

there is currently a dispute in the circuit court as to whether Buesing, David

Jungerman, or both, are the proper trustees entitled to act on behalf of the

Jungerman Family Irrevocable Trust. Jungerman’s counsel confirmed at oral

argument that the issues raised by the appellants in this case do not depend on the

particular identity or circumstances of any of the appealing parties; so long as one

appellant remains, the presence (or absence) of the other appellants does not affect

the issues we must decide. Given these circumstances, and given that we are

affirming the circuit court’s relevant orders, Buesing’s motion to voluntarily dismiss

the appeal of the Jungerman Family Irrevocable Trust is denied as moot.

                                Standard of Review
      “The power to appoint a receiver is within the sound discretion of the trial

court.” Sangamon Assocs., Ltd. v. Carpenter 1985 Family P’ship, Ltd., 165 S.W.3d

141, 146 (Mo. 2005) (citation omitted). “An abuse of discretion occurs when the trial

court’s ruling is clearly against the logic of the circumstances then before the trial

court and is so unreasonable and arbitrary that the ruling shocks the sense of
justice and indicates a lack of careful deliberate consideration.” Dieser v. St.

Anthony’s Med. Ctr., 498 S.W.3d 419, 436 (Mo. 2016) (citation and internal

quotation marks omitted).

                                       Analysis
      Jungerman raises two Points on appeal. In the first, he argues that the

circuit court erred in denying his motion to revoke the order appointing a receiver,

because he was not given proper notice under the Missouri Commercial




                                           8
Receivership Act, § 515.500 et seq.,3 and because he did not have a meaningful

opportunity to be heard before the receiver’s appointment. In his second Point,

Jungerman contends that Reigel failed to demonstrate that she had a legal right to

the appointment of a receiver, because her underlying wrongful death claims had

not been reduced to judgment.

                                             I.
       Jungerman makes two distinct arguments in his first Point. First, he

contends that the appointment of a receiver was unlawful because he did not

receive “[a]t least seven days’ notice of any application for the appointment of a

receiver,” as required by the Commercial Receivership Act. § 515.510.3. Second,

Jungerman argues that the appointment of a receiver violated his due process

rights because he did not have a meaningful opportunity to be heard before the

receiver was appointed.

       Jungerman’s opening Brief notes that “[t]he trial court’s order appointing the

receiver in this case cited three different authorities as the basis for its power to

appoint the receiver”: the Missouri Commercial Receivership Act; the Uniform

Fraudulent Transfer Act, § 428.005 et seq.; and Supreme Court Rule 68.02.

       The Fraudulent Transfer Act does not contain the seven-day notice
requirement on which Jungerman relies. He argues, however, that the Fraudulent

Transfer Act is inapplicable because it “merely provides a receiver as a possible

remedy for a fraudulent transfer claim that has been decided on the merits in favor

of a creditor.” We disagree.

       “The [Fraudulent Transfer Act] created a statutory cause of action that

provided specific equitable remedies for creditors invoking its sections.” Lewellen v.



      3      Statutory citations refer to the 2016 edition of the Revised Statutes of
Missouri, updated through the 2018 Cumulative Supplement.


                                             9
Universal Underwriters Ins. Co., 574 S.W.3d 251, 266 (Mo. App. W.D. 2019).

Section 428.024.1 provides:

      A transfer made . . . by a debtor is fraudulent as to a creditor, whether
      the creditor’s claim arose before or after the transfer was made . . . if
      the debtor made the transfer or incurred the obligation:
                    (1)    With actual intent to hinder, delay, or defraud any
             creditor of the debtor.
      Section 428.039 specifies the remedies available in actions asserting claims

under the Fraudulent Transfer Act:

             1.    In an action for relief against a transfer or obligation
      under sections 428.005 to 428.059, a creditor, subject to the limitations
      in section 428.044, may obtain:
                   (1)    Avoidance of the transfer or obligation to the extent
             necessary to satisfy the creditor's claim;
                    (2)   An attachment or other provisional remedy against
             the asset transferred or other property of the transferee in
             accordance with the procedure prescribed by applicable laws of
             this state;
                   (3)   Subject to applicable principles of equity and in
             accordance with applicable rules of civil procedure,
                           (a)    An injunction against further disposition by
                    the debtor or a transferee, or both, of the asset transferred
                    or of other property;
                          (b)    Appointment of a receiver to take charge
                    of the asset transferred or of other property of the
                    transferee; or
                          (c)    Any other relief the circumstances may
                    require.
            2.      If a creditor has obtained a judgment on a claim against
      the debtor, the creditor, if the court so orders, may levy execution on
      the asset transferred or its proceeds.
(Emphasis added.)

      Section 428.039.1(3)(b) does not merely authorize the appointment of a
receiver as part of a final judgment on a fraudulent transfer claim. Instead, it




                                          10
authorizes the appointment of a receiver as an interim remedy during the pendency

of litigation on a fraudulent transfer claim. Section 428.054 of the Fraudulent

Transfer Act provides that:

      Unless displaced by the provisions of sections 428.005 to 428.059, the
      principles of law and equity, including the law merchant and the law
      relating to principal and agent, estoppel, laches, fraud,
      misrepresentation, duress, coercion, mistake, insolvency, or other
      validating or invalidating cause, supplement its provisions.
“The UFTA therefore specifically incorporates pre-existing legal and equitable

principles related to the law of fraudulent conveyances insofar as those principles

do not conflict with the provisions of the UFTA.” Volk Constr. Co. v. Wilmescherr

Drusch Roofing Co., 58 S.W.3d 897, 900 (Mo. App. E.D. 2001).

      Prior to the enactment of the Fraudulent Transfer Act, Missouri courts had

recognized that a court could appoint a receiver during the pendency of litigation

where there was a likelihood of dissipation of assets during the pendency of the

litigation, and a reasonable likelihood that the plaintiff would succeed on the

merits.

      [W]here property not otherwise in the custody of the law is involved in
      litigation which has for its primary purpose some character of distinct
      equitable relief, and it appears that through fraud, mismanagement,
      misconduct, or otherwise, there is a likelihood that without the
      interposition of the court the property will be squandered, wasted,
      misappropriated, or unlawfully diverted, then the court will be
      authorized to appoint a receiver to take charge of and hold the
      property pending the litigation, if there is a reasonable probability that
      the plaintiff will ultimately succeed in securing the relief which he
      seeks in the suit in which the receivership is asked.
Robinson v. Nick, 136 S.W.2d 374, 385 (Mo. App. 1940).

      Applying the same Uniform Fraudulent Transfer Act provisions adopted in

Missouri, courts in other jurisdictions have held that the remedies authorized by




                                          11
subsection (3) of § 428.039.1 – including appointment of a receiver and injunctive

relief – may be awarded during the pendency of the fraudulent transfer litigation.4

       The official Comment to § 7 of the Uniform Fraudulent Transfer Act provides

further support for our conclusion that the Act authorizes appointment of a receiver

during the pendency of fraudulent transfer litigation. “[W]hen construing a model

or uniform act such as the UFTA, Missouri courts are to assume that statute was

enacted with the intention of adopting the accompanying interpretations placed

thereon by the drafters of the model or uniform act.” Volk, 58 S.W.3d at 900 n.2

(citation and internal quotation marks omitted). Comment 7 cites approvingly to a

case which expressly holds that a fraudulent conveyance plaintiff may “seek the

appointment of a receiver pendente lite to take charge of the real and personal

property alleged to have been fraudulently conveyed.” Matthews v. Schusheim, 235

N.Y.S.2d 973, 976 (N.Y. Sup. 1962), rev’d, 236 N.Y.S.2d 407 (App. Div. 1962),5 cited

at 7A UNIFORM LAWS ANNOTATED Part II at 491 (2017); see also John E. Sullivan III,

Future Creditors and Fraudulent Transfers, 22 DEL. J. CORP. L. 955, 961 & n.19

       4      See, e.g., Janvey v. Alguire, 647 F.3d 585, 602–03 (5th Cir. 2011) (Texas law;
holding that Uniform Fraudulent Transfer Act authorized issuance of preliminary
injunction barring disposition of property); Biliouris v. Sundance Res., Inc., 559 F. Supp. 2d
733, 739 (N.D. Tex. 2008) (“[T]he Court holds that [Texas’ Uniform Fraudulent Transfer
Act] provides creditors—secured and unsecured alike—with the substantive right to seek
quickly the appointment of a receiver to secure their interests and prevent further
fraudulent conduct without first enduring the long delay necessary to reduce their claims to
judgment.”); Robinson v. Coughlin, 830 A.2d 1114, 1120 (Conn. 2003) (“[The] UFTA
provides protection by allowing creditors to obtain prejudgment relief upon a showing of
probable cause.”); Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601,
608-10 (Tex. App. 2002) (holding that Texas’ Uniform Fraudulent Transfer Act authorized
issuance of temporary injunction barring foreclosure of property subject to fraudulent
conveyance claim).
       5      The Appellate Division reversed “in the exercise of discretion,” on the
condition that the defendant post a bond sufficient to satisfy any judgment the plaintiff
ultimately received. 236 N.Y.S.2d at 408. The court concluded that, “[i]n our opinion, on
the record presented, the furnishing of an undertaking in the amount specified will
adequately protect plaintiff's rights. In the peculiar circumstances of this case, a
receivership should not be required in the event the undertaking be furnished.” Id. The
Appellate Division’s disposition did not question the Supreme Court’s conclusion that the
relevant statutes authorized the appointment of a receiver pendente lite.


                                             12
(1997) (noting that the Uniform Fraudulent Transfer Act authorizes a creditor to

“obtain a variety of equitable pre-judgment relief,” and “allows a court to appoint a

receiver, issue injunctions (including a freeze order against the transferee and

transferor), order pre-judgment attachment on the property, or fashion any other

provisional remedies as the circumstances of the case may require”).

      Jungerman cites to a series of cases to support his claim that the Fraudulent

Transfer Act only authorizes the appointment of a receiver following the entry of

final judgment on a fraudulent transfer claim. None of the cases he cites address

whether interim relief is available under § 428.039.1(3), however. Instead, those

cases address remedy issues unrelated to the argument Jungerman makes here.

See Lewellen, 574 S.W.3d at 267–68 (holding that “[t]he remedies of the UFTA are

equitable in nature and plainly do not include a suit against a third party based on

the co-conspirator theory of civil liability for legal remedies”); May v. Williams, 531

S.W.3d 576, 586 (Mo. App. W.D. 2017) (holding that a money judgment against the

alleged transferees of fraudulent conveyances, based on a breach of contract by the

transferor, was not among the remedies authorized by § 428.039); Fisher v.

Brancato, 174 S.W.3d 82, 87 (Mo. App. E.D. 2005) (successful Fraudulent Transfer

Act plaintiff may recover on underlying judgment against assets which were
returned to the judgment debtor after a fraudulent transfer was set aside).

      Jungerman also cites to Mark VII, Inc. v. Barthol, 926 S.W.2d 128, 131 (Mo.

App. W.D. 1996). Mark VII is not relevant to whether the remedies contemplated

by the Fraudulent Transfer Act are available prejudgment, because the creditors in

Mark VII did not assert a fraudulent transfer claim under the Act. Id. at 131–32;

see RehabCare Group E., Inc. v. Stratford Health Care Props., LLC, No. 14-0886-CV-

W-FJG, 2016 WL 11469771, at *3–4 (W.D. Mo. Feb. 8, 2016) (noting that Mark VII

“fails to even mention MUFTA, possibly because the facts giving rise to the claim




                                           13
dealt with in that case occurred in 1989, before the Missouri legislature passed

MUFTA”).

       Jungerman’s sole argument in Point I concerning the applicability of the

Fraudulent Transfer Act is his claim that the Act does not authorize the

appointment of a receiver as an interim remedy. That argument is mistaken. We

therefore conclude that the Fraudulent Transfer Act authorized the circuit court’s

appointment of a receiver in this case. The Act does not contain the seven-day

notice requirement on which Jungerman’s first Point depends. We therefore reject

Jungerman’s argument that the appointment of a receiver was void because he was

purportedly not provided with seven days’ advance notice before the receiver was

appointed.6

       Jungerman also makes a constitutional due process argument, contending

that he was not given a meaningful opportunity to be heard before the receiver was

appointed. Jungerman did not preserve this argument in the circuit court, however.

“To properly raise a constitutional challenge, a party must: (1) raise the

constitutional question at the first opportunity; (2) state with specificity the

        6       Jungerman’s opening Brief also points out that § 428.039.1(3) of the
Fraudulent Transfer Act makes the appointment of a receiver “subject to . . . applicable
rules of civil procedure.” He then argues, without citation, that the Commercial
Receivership Act provides the “applicable rules of civil procedure.” Generally, the “rules of
civil procedure” are understood to refer to Rules 41 through 103 promulgated by the
Missouri Supreme Court to govern civil actions in the circuit courts. Jungerman’s
abbreviated argument does not persuade us otherwise. And his claim that the Commercial
Receivership Act somehow amended Rule 68.02 (which is itself a “rule of civil procedure”)
runs headlong into the principle that, to amend or annul a procedural rule promulgated by
the Supreme Court, a statute “must refer expressly to the rule and be limited to the
purpose of amending or annulling” it. State ex rel. Collector of Winchester v. Jamison, 357
S.W.3d 589, 592 (Mo. 2012) (citation and internal quotation marks omitted). Apart from
arguing that the Commercial Receivership Act provides the “applicable rules of civil
procedure” within the meaning of § 428.039.1(3), Jungerman makes no argument that the
procedures specified in the Commercial Receivership Act should be employed to supplement
the provisions of the Fraudulent Transfer Act. Cf. State ex rel. Praxair, Inc. v. Mo. Pub.
Serv. Comm’n, 344 S.W.3d 178, 184 (Mo. 2011) (“To the extent that there are matters not
addressed by the PSC statutes and the administrative rules adopted by the PSC pursuant
to section 386.410, [the Missouri Administrative Procedure Act] operates to fill gaps not
addressed within the PSC statutes.” (citation and internal quotation marks omitted)).


                                             14
constitutional provision on which the challenge rests; (3) set forth facts showing the

violation; and (4) preserve the question throughout the proceedings for appellate

review.” Med. Plaza One, LLC v. Davis, 552 S.W.3d 143, 156 (Mo. App. W.D. 2018)

(citation and internal quotation marks omitted). Here, Jungerman failed to raise a

constitutional claim in the memorandum in support of his motion to revoke the

appointment of the receiver, and failed to argue at the October 12 hearing that the

appointment of a receiver violated his due process notice rights.7 This

constitutional issue was waived.

      Even if this argument was preserved, it is without merit. Jungerman was

given notice on multiple occasions that Riegel was seeking the appointment of a

receiver, and had multiple opportunities to be heard on that request. First, Riegel

requested in her petition that a receiver be appointed. Then, the parties argued at

the August 22 hearing about the appointment of a receiver. At the hearing,

Jungerman’s counsel requested “the opportunity to brief the Court on the

receivership issue,” and that request was granted. The court did not enter an order

appointing a receiver until August 29, 2018, after receiving Jungerman’s briefing

and oral argument concerning the propriety of such an appointment. Further,

Jungerman was able to file a motion to revoke the order appointing the receiver,
and the court conducted a further hearing on that motion before denying it.

Jungerman was given a meaningful opportunity to be heard concerning the

appointment of a receiver.




       7      Jungerman’s criminal counsel entered a limited appearance at the October 12
hearing, and argued that Jungerman’s due process rights were violated because the original
receiver was a member of the Kansas City Board of Police Commissioners. The due process
argument made by Jungerman’s criminal-defense attorney is wholly distinct from the
notice argument he now raises on appeal.


                                           15
                                           II.
      In his second Point, Jungerman argues that there was no legal basis to

appoint a receiver. He contends that Riegel was not entitled to seek appointment of

a receiver because she does not have a right or title to Jungerman’s property,

because her wrongful death claim has not been reduced to judgment.

      As noted above, the circuit court relied on both the Commercial Receivership

Act and the Fraudulent Transfer Act (as well as Rule 68.02) to justify its order

appointing a receiver. After arguing that Riegel did not have a right to

appointment of a receiver under the Commercial Receivership Act, Jungerman’s

brief continues:

             The UFTA does not change any of this. It, too, requires the
      plaintiff to establish that he is a “creditor” of the defendant.
      § 428.024.1, R.S.Mo. It, too, defines a “creditor” as “a person who has a
      claim.” § 428.009(4), R.S.Mo. It defines a “claim” as “a right to
      payment . . . .” Id. at (3). So, even there, in order to be a “creditor” and
      obtain the relief of a receivership, the plaintiff must prevail on its
      underlying claim and establish its right to payment.
      Jungerman’s argument relies on a truncated – and misleading – quotation of

the relevant statutory provisions. Jungerman’s brief asserts that the Fraudulent

Transfer Act defines a “claim” as a “right to payment . . .,” and continues by arguing

that “the plaintiff must [therefore] prevail on its underlying claim” in order to
establish a sufficient “right to payment.” What Jungerman’s brief conceals by an

ellipsis, however, is that the Act defines a “claim” to include

      a right to payment, whether or not the right is reduced to
      judgment, liquidated, unliquidated, fixed, contingent, matured,
      unmatured, disputed, undisputed, legal, equitable, secured, or
      unsecured.
§ 428.009(3) (emphasis added). The emphasized language – wholly omitted from

Jungerman’s opening and reply briefs – on its face establishes the fallacy of

Jungerman’s argument: the statute plainly defines individuals as “creditors” even
if their claims against a debtor have not been reduced to judgment, and even if


                                           16
those claims are unliquidated, contingent, and disputed. The fact that Riegel’s

wrongful death claim has not been litigated to final judgment does not prevent her

from being a “creditor” possessing a “claim” within the meaning of the Fraudulent

Transfer Act.

      The Eastern District applied the plain language of the Fraudulent Transfer

Act’s definition of a “claim” in Curtis v. James, 459 S.W.3d 471 (Mo. App. E.D.

2015). Curtis held that, “under the plain language of the statute, a creditor is not

required to obtain a judgment in order to pursue an action under the Act.” Id. at

475. Acknowledging that there was “no Missouri precedent interpreting the

definition of a ‘claim’ under the” Fraudulent Transfer Act, the Court examined

caselaw from other jurisdictions. Id. at 475–76. It concluded that its “holding that

a creditor is not required to obtain a judgment [on the underlying cause of action]

before pursuing an action under the Act is consistent with the interpretation of

other jurisdictions that a pending or threatened lawsuit is a ‘claim’ under the

Uniform Fraudulent Transfer Act or similar state provisions.” Id. (citing In re

Advanced Telecomm. Network, Inc., 490 F.3d 1325, 1335 (11th Cir. 2007); United

States v. Green, 201 F.3d 251, 257 (3d Cir. 2000); Bishop v. Patton, 706 S.E.2d 634,

640 (Ga. 2011); Baker v. Geist, 321 A.2d 634, 636 (Pa. 1974); Tolle v. Fenley, 132
P.3d 63, 66 (Utah App. 2006)).8

      If the plain language of the statute were not clear enough, the official

Comments to the Uniform Fraudulent Transfer Act note on multiple occasions that


        8      See also, e.g., Oiye v. Fox, 151 Cal. Rptr.3d 65, 82 (Cal. App. 2012)
(“Certainly, for purposes of the Uniform Fraudulent Conveyance Act, a tort claimant before
judgment is rendered is a ‘creditor’ within the meaning of Civil Code section 3439.01.”
(citation omitted)); Bedwell v. Rucks, 127 So.3d 533, 535 (Fla. App. 2012) (“Indeed, the
Fraudulent Transfer Act does not even require that the creditor first obtain a judgment
against the debtor for the underlying claim.” (Citing Friedman v. Heart Inst. of Port St.
Lucie, Inc., 863 So.2d 189, 193 (Fla. 2003))); Sargeant v. Al Saleh, 512 S.W.3d 399, 414
(Tex. App. 2016) (“Under [Texas’ Uniform Fraudulent Transfer Act], the claim can be
equitable and need not be matured or reduced to judgment.” (Citation omitted)).


                                            17
a “claim” need not have been reduced to judgment. Thus, the “Prefatory Note” to

the Uniform Act notes that “[a]n important reform effected by” the Act’s

predecessor, and retained in the Uniform Fraudulent Transfer Act, “was the

elimination of any requirement that a creditor have obtained a judgment or

execution returned unsatisfied before bringing an action to avoid a transfer as

fraudulent.” 7A UNIFORM LAWS ANNOTATED Part II at 247 (2017); see also id. at 260

(Comment 4 to § 1; “the holder of an unliquidated tort claim or a contingent claim

may be a creditor protected by this Act”); id. at 491 (Comment 4 to § 7; “a creditor is

not required to obtain a judgment against the debtor-transferor or to have a

matured claim in order to proceed under” the Act’s remedial provisions).

      We therefore reject Jungerman’s argument that Riegel was not entitled to

proceed under the Fraudulent Transfer Act because she had not yet prevailed on

her underlying wrongful death claim.

      We recognize that § 428.039.1(3) states that the remedies authorized by that

subsection are “[s]ubject to applicable principles of equity.” Under common-law

principles,

      [i]t is essential to the appointment of a receiver over property, funds or
      assets, that the applicant show either that he has a clear right or
      apparent right or title in or to the property itself, that he has some lien
      upon it, or that the property constitutes a special fund to which he has
      a right to resort for the satisfaction of his claim. That is to say, the
      property itself must be involved directly, not incidentally. Without
      such a showing the property is not involved in the proceeding, and the
      court is without power to appoint a receiver at any stage of the
      controversy.
Camden Cnty. ex rel. Camden Cnty. Comm’n v. Lake of the Ozarks Council of Local

Govts., 282 S.W.3d 850, 859 (Mo. App. S.D. 2009) (quoting Kansas City v. Markham,

99 S.W.2d 28, 30 (Mo. 1936)). Although not fully developed in Jungerman’s

briefing, at argument his counsel argued that this requirement of a right or title to
specific property is one of the “principles of equity” which must be satisfied before a



                                          18
receiver is appointed under the Fraudulent Transfer Act. We disagree. The Act

provides that a receiver may be appointed “to take charge of the asset transferred or

of other property of the transferee.” § 428.039.1(3)(b) (emphasis added). Plainly, by

permitting a receiver to be appointed over property of a transferee beyond the

property actually transferred by the debtor, the Act enlarges the right to obtain a

receiver beyond any specific property in which the plaintiff may have an interest.

                                    Conclusion
      We recognize that the appointment of a receiver over a civil defendant’s

property, during the pendency of litigation, is an extraordinary remedy which

should be employed only in highly unusual and compelling circumstances. The

circuit court justifiably concluded that this case presents such extraordinary

circumstances. The arguments raised by Jungerman on appeal fail to establish any

abuse of discretion or error of law by the circuit court. We accordingly affirm the

circuit court’s denial of Jungerman’s motion to vacate the order appointing a

receiver.



                                               _________________________________
                                               Alok Ahuja, Judge
All concur.




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