United States Bankruptcy Appellate Panel

For the Eighth Circuit

___________________________

No. 13-6030

___________________________

In re: Tri-State Financial, LLC, doing business as North Country Ethanol

lllllllllllllllllllllDebtor

------------------------------

Thomas D. Stalnaker, Trustee

lllllllllllllllllllll Plaintiff - Appellant

v.

George Allison; Frank Cernik; Phyllis Cernik; Chris Daniel; Amy Daniel;

Distefano Family LTD Partnership; Mark E. Ehrhart; Robert G. Griffin; John

Hoich; Denise Hoich; James G. Jandrain; American Interstate Bank; George

Kramer; Bernie Marquardt; Radio Engineering Industries, Inc.; Joseph Vacanti,

Trustee of The Joseph and Cynthia Vacanti Trust; 

lllllllllllllllllllll Defendants - Appellees

Centris Federal Credit Union

lllllllllllllllllllll Defendant - Appellant

------------------------------

Centris Federal Credit Union

lllllllllllllllllllllCounterclaim and Cross-Claim Plaintiff - Appellant

v.
Thomas D. Stalnaker

lllllllllllllllllllllCounterclaim Defendant - Appellant

and

George Allison; Frank Cernik; Phyllis Cernik; Chris Daniel; Amy Daniel;

Distefano Family LTD Partnership; Mark E. Ehrhart; Robert G. Griffin; John

Hoich; Denise Hoich; James G. Jandrain; American Interstate Bank; Timothy

Jackes; George Kramer; Bernie Marquardt; Radio Engineering Industries, Inc.;

Joseph Vacanti, Trustee of The Joseph and Cynthia Vacanti Trust

lllllllllllllllllllllCross-Claim Defendants - Appellees

___________________________

No. 13-6036

___________________________

In re: Tri-State Financial, LLC, doing business as North Country Ethanol

lllllllllllllllllllllDebtor

------------------------------

Thomas D. Stalnaker, Trustee

lllllllllllllllllllll Plaintiff - Appellee

v.

George Allison; Frank Cernik; Phyllis Cernik; Chris Daniel; Amy Daniel;

Distefano Family LTD Partnership

lllllllllllllllllllll Defendants - Appellants

Mark E. Ehrhart; Robert G. Griffin; John Hoich; Denise Hoich

lllllllllllllllllllll Defendants
James G. Jandrain; George Kramer; Bernie Marquardt

lllllllllllllllllllll Defendants - Appellants

Radio Engineering Industries, Inc.; Joseph Vacanti, Trustee of The Joseph and

Cynthia Vacanti Trust; American Interstate Bank

lllllllllllllllllllll Defendants

Centris Federal Credit Union

lllllllllllllllllllll Defendant - Appellee

------------------------------

Centris Federal Credit Union

lllllllllllllllllllllCounterclaim and Cross-Claim Plaintiff - Appellee

v.

Thomas D. Stalnaker

lllllllllllllllllllllCounterclaim Defendant - Appellee

------------------------------

George Allison; Frank Cernik; Phyllis Cernik; Chris Daniel; Amy Daniel;

Distefano Family LTD Partnership

lllllllllllllllllllllCross-Claim Defendants - Appellants

Mark E. Ehrhart; Robert G. Griffin; John Hoich; Denise Hoich

lllllllllllllllllllllCross-Claim Defendants

James G. Jandrain
lllllllllllllllllllllCross-Claim Defendant - Appellant

American Interstate Bank

lllllllllllllllllllllCross-Claim Defendant

Timothy Jackes; George Kramer; Bernie Marquardt

lllllllllllllllllllllCross-Claim Defendants - Appellants

Radio Engineering Industries, Inc.; Joseph Vacanti, Trustee of The Joseph and

Cynthia Vacanti Trust

lllllllllllllllllllllCross-Claim Defendants

____________

 Appeal from United States Bankruptcy Court 

for the District of Nebraska - Omaha

____________

 Submitted: December 10, 2013

 Filed: February 5, 2014

____________

Before KRESSEL, SCHERMER and NAIL, Bankruptcy Judges.

____________

NAIL, Bankruptcy Judge.

Trustee Thomas Stalnaker and Centris Federal Credit Union appeal the May 21,

2013 judgment of the bankruptcy court to the extent it determined certain funds were

not property of the bankruptcy estate. James G. Jandrain, Distefano Family Ltd.

Partnership, George Allison, Jr., Frank and Phyllis Cernik, Chris and Amy Daniel,

Timothy Jackes, George Kramer, and Bernie Marquardt appeal the same judgment to

the extent it awarded Stalnaker certain fees and expenses and surcharged those fees

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and expenses against the funds the bankruptcy court determined were not property of

the bankruptcy estate. We reverse and remand for further proceedings consistent with

this opinion.

BACKGROUND

In June and July 2003, a group of investors referred to as "the Omaha Group"

transferred $2,000,000.00 to Tri-State Financial, LLC. Over the following year, TriState Financial transferred $793,654.42 ofthose funds to Tri-State Ethanol Company,

LLC, which was in chapter 11 bankruptcy in the District of South Dakota, and

$1,190,000.00 of those funds to one of Tri-State Ethanol's vendors.

In July 2004, Tri-State Ethanol's case was converted to chapter 7, and John

Lovald was appointed chapter 7 trustee. Tri-State Financial filed a request for

payment of an administrative expense and a proof of claim seeking recovery of both

the $793,654.42 and the $1,190,000.00. In July 2006,Lovald paid Tri-State Financial

the $793,654.42. Tri-State Financial distributed the entire sum to the Omaha Group.

In November 2008, Tri-State Financial filed a petition for relief under

chapter 11 of the bankruptcy code. In January 2009, Stalnaker was appointed chapter

11 trustee. Sometime thereafter, Lovald paid Stalnaker the $1,190,000.00.

In September 2010, Stalnaker filed an adversary proceeding to determine

ownership of the $1,190,000.00. Stalnaker claimed the funds were property of the

bankruptcy estate. Centris agreed the funds were property of the bankruptcy estate,

but it claimed the funds were subject to its blanket security interest in Tri-State

Financial's assets. James G. Jandrain, Distefano Family Ltd. Partnership, George

Allison, Jr., Frank and Phyllis Cernik, Chris and Amy Daniel, Timothy Jackes,

George Kramer, and Bernie Marquardt (collectively, "Jandrain, et al.") claimed the

funds were held in trust by Tri-State Financial and were thus not property of the

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estate. The matter was tried, and on February 13, 2013, the bankruptcy court entered

an order: (1) determining the funds were not property of the bankruptcy estate; (2)

determining the bankruptcy estate was entitled to be reimbursed both for the legal

fees and expensesit incurred in litigating and eventually settling with Lovald and for

the attorney fees, costs, and expensesit incurred in the adversary proceeding; and (3)

outlining the procedure for Stalnaker to request reimbursement for those fees, costs,

and expenses.

Stalnaker requested $35,944.45 for the legal fees and expensesthe bankruptcy

estate incurred in litigating and eventually settling with Lovald and $61,886.90 for

the attorney fees, costs, and expenses the bankruptcy estate incurred in the adversary

proceeding. No party in interest objected to the amounts requested or to the

$35,944.45 being surcharged against the $1,190,000.00. However, several partiesin

interest, including Jandrain, et al., objected to the $61,886.90 being surcharged

against the $1,190,000.00. The matter was heard, and on May 21, 2013, the

bankruptcy court entered an order allowing the amounts requested and surcharging

both the $35,944.45 and the $61,886.90 against the $1,190,000.00.

On May 21, 2013, the bankruptcy court entered a judgment incorporating the

terms of its February 13, 2013 and May 21, 2013 orders. Stalnaker and Centris timely

filed a notice of appeal. Jandrain, et al., timely filed a notice of cross appeal.

STANDARD OF REVIEW

We review the bankruptcy court's findings of fact for clear error and its legal

conclusions de novo. Islamov v. Ungar(In re Ungar), 633 F.3d 675, 678-79 (8th Cir.

2011).

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DISCUSSION

Stalnaker and Centris identify fifteen issues presented on appeal. Jandrain, et

al., identify an additional fifteen issues presented on appeal and identify three issues

presented on cross-appeal. These issues may all be boiled down to two: (1) whether

the bankruptcy court erred in concluding the $1,190,000.00 was not property of the

bankruptcy estate; and (2) whether the bankruptcy court erred in surcharging

Stalnaker's attorney fees, costs, and expenses against the $1,190,000.00. Having

reviewed the record and having considered the arguments of the parties, we believe

any consideration of either issue is premature. 

In their post-trial brief, Stalnaker and Centris argued, inter alia, "[Tri-State

Financial] is judicially estopped from having any intent or position imputed upon it

other than the [$1,190,000.00] belong[s] to [Tri-State Financial]." Stalnaker and

Centris also argued a "sweeping release" executed in August 2006 by all but two

members of the Omaha Group–Jandrain and Radio Engineering Industries,

Inc.–"includes any claimed obligation of [Tri-State Financial] to turn over the

[$1,190,000.00] to [those parties.]" Finally, Stalnaker and Centris argued the Omaha

Group "should be estopped from asserting ownership to the [$1,190,000.00]." Both

the bankruptcy court's February 13, 2013 order and its May 21, 2013 order are silent

with respect to these arguments. 

We could, perhaps, interpret the bankruptcy court's silence as an implicit

rejection of Stalnaker and Centris's arguments and render an opinion on that basis. 

However, we believe the better course is to afford the bankruptcy court an

opportunity to consider those arguments, if it did not in fact do so, and explain its

reasoning for accepting or rejecting them.

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CONCLUSION

For the foregoing reasons, we reverse and remand for further proceedings

consistent with this opinion.

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