FILED
JUN 2 2020
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. NV-19-1049-LBG
ROBERT JAMES HOUCHIN, Bk. No. 3:17-bk-51148-BTB
Debtor. Adv. No. 3:18-ap-05001-BTB
ROBERT JAMES HOUCHIN,
Appellant,
v. MEMORANDUM*
HALF DENTAL FRANCHISE, LLC;
HDM, LLC; CHAYSE MEYERS; MATT
BAKER,
Appellees.
Argued and Submitted on May 21, 2020
Filed – June 2, 2020
Appeal from the United States Bankruptcy Court
for the District of Nevada
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Honorable Bruce T. Beesley, Bankruptcy Judge, Presiding
Appearances: Holly E. Estes of Estes Law, P.C., argued for Appellant.
Before: LAFFERTY, BRAND, and GAN, Bankruptcy Judges.
INTRODUCTION
Chapter 71 debtor Robert Houchin appeals the bankruptcy court’s
order denying his motion to dismiss the adversary proceeding filed against
him by Appellees Half Dental Franchise, LLC (“HDF”), Chayse Myers, and
Matt Baker (collectively, “Plaintiffs”). Plaintiffs asserted claims for
nondischargeability under §§ 523(a)(2)(A) and (a)(6) based on allegations
that Dr. Houchin conspired with others to usurp business opportunities
from HDF. Those allegations also formed the basis for state law claims
asserted in a pre-petition lawsuit filed in Arizona Superior Court (the
“State Court Action”). Shortly after the adversary complaint was filed, the
state court dismissed the State Court Action as to Dr. Houchin.
In his motion to dismiss, Dr. Houchin argued that the dismissal of the
State Court Action after the expiration of the limitations period for the
underlying claims resulted in the nondischargeability claims being time-
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code,
11 U.S.C. §§ 101-1532, all “Civil Rule” references are to the Federal
Rules of Civil Procedure, and “Rule” references are to the Federal Rules of Bankruptcy
Procedure.
2
barred because Plaintiffs could not establish an underlying debt. He also
argued that both § 523 allegations failed to state a claim upon which relief
could be granted and that the § 523(a)(2)(A) claim was not pled with
sufficient particularity.
The bankruptcy court disagreed with Dr. Houchin and denied the
motion. We AFFIRM.
FACTUAL BACKGROUND
Timeline
Dr. Houchin, a dentist, filed a chapter 7 petition on September 29,
2017. At that time, he was among several defendants in the State Court
Action, which alleged claims for unfair competition, unjust enrichment,
trademark infringement, conspiracy, and tortious interference with
contract and/or business expectancy. Upon being notified of the
bankruptcy filing, the state court issued an order on October 9, 2017 (the
“October 2017 Order”), which stayed the State Court Action as to
Dr. Houchin and provided that the claims against him would be dismissed
after 60 days “unless a party requests otherwise.” Although no party
requested otherwise, the state court did not dismiss the State Court Action
immediately after the expiration of the 60 days, but it eventually did so on
February 13, 2018, entering an order dismissing the claims against Dr.
Houchin without prejudice (the “February 2018 Order”). In the interim, on
January 2, 2018, Plaintiffs filed a timely adversary proceeding seeking a
3
declaration of nondischargeability of their claims against Dr. Houchin
under §§ 523(a)(2)(A) and (a)(6).
Allegations of the Nondischargeability Complaint
The amended complaint (“FAC”) in the nondischargeability
proceeding alleged that Dr. Houchin conspired with others to usurp
business opportunities from HDF. HDF had been organized in 2013 by
Myers, Baker, and Brandon D’Haenens to franchise a dentistry practice
model to owners of dental practices across the country and to develop
related business opportunities. According to the FAC, D’Haenens and his
friend, Jason McKew, conspired with Dr. Houchin to usurp opportunities
to franchise dental practices in Arizona and California. As part of the
scheme, while he was secretly working with D’Haenens and McKew, Dr.
Houchin falsely represented to Myers and Baker that he intended to
operate the Arizona practice as an HDF franchisee and that he was
interested in working with HDF to franchise his two existing California
dental practices in Walmart stores. Around this same time period,
D’Haenens franchised the Arizona dental practice, and Dr. Houchin
secretly purchased it.
HDF eventually discovered D’Haenens’ and McKew’s (but not Dr.
Houchin’s) efforts to steal its business opportunities and obtained a
temporary restraining order enjoining them from taking any action that
could interfere with or be injurious to HDF’s business interests and
4
operations. Dr. Houchin then helped D’Haenens and McKew to circumvent
the TRO by representing to HDF that he had played no role in the efforts to
hurt HDF and was firmly allied with the company. In the meantime, he
continued to work with D’Haenens, McKew, and others in moving forward
with the Walmart deal.
At some point, the Arizona practice fell behind on franchise fees.
When HDF attempted to enforce the franchise agreement, Dr. Houchin
disclosed that he was the owner and resisted HDF’s efforts. The parties
went to arbitration, and the arbitrator found Dr. Houchin, D’Haenens, and
McKew liable for multiple wrongs and issued a multi-million dollar award,
permanent injunctive relief and punitive damages in favor of HDF. The
Nevada district court eventually affirmed that award in September 2017.
After the arbitration, in June 2015, HDF commenced the State Court
Action against Houchin and others, alleging claims for unfair competition,
unjust enrichment, trademark infringement, conspiracy, and tortious
interference with contract and/or business expectancy. The Arizona court
ordered Dr. Houchin, D’Haenens, and McKew to turn over the Arizona
practice to HDF. When Dr. Houchin failed to comply with the court order,
the Arizona court held him in contempt.
The FAC also alleged that Dr. Houchin acted deceitfully and
intentionally and that he had the subjective motive to inflict injury on
Plaintiffs or believed that injury was substantially certain to result from his
5
conduct.
Motion to Dismiss
Dr. Houchin filed a motion to dismiss the FAC under Civil Rule
12(b)(6), applicable via Rule 7012, on the grounds that: (I) the claims were
time-barred under state law; and (ii) the FAC failed to state a claim upon
which relief could be granted, in part because the § 523(a)(2)(A) claim was
not pleaded with sufficient particularity as required under Civil Rule 9(b),
applicable via Rule 7009. Plaintiffs filed an opposition, and the court held a
hearing. At the initial hearing, the court held that the FAC provided
sufficient notice of the claims against Dr. Houchin, and the issue regarding
particularity of the fraud claim had been cured by the amendments to the
original complaint. Dr. Houchin continued to assert that the
nondischargeability proceeding was time-barred, arguing that the October
2017 Order was self-executing so that the State Court Action should be
deemed dismissed 60 days after that order, in December 2017, before the
nondischargeability proceeding had been filed. The bankruptcy court
requested supplemental briefing regarding this issue.
After a further hearing, the bankruptcy court took the matter under
advisement and issued an oral ruling on November 19, 2018. The court
found that, based on Arizona law, the October 2017 Order was not self-
executing, and the operative order dismissing the State Court Action was
the February 2018 Order. Because the adversary proceeding had been filed
6
before the State Court Action was dismissed, the court found that the
statute of limitations had not run on the underlying claims. Accordingly, it
denied Dr. Houchin’s motion to dismiss.
Dr. Houchin timely appealed.2
JURISDICTION
The bankruptcy court had jurisdiction under
28 U.S.C. §§ 1334 and
157(b)(2)(I). We have jurisdiction under
28 U.S.C. § 158.
ISSUES
Whether the bankruptcy court erred in holding that the
nondischargeability claims were not time-barred.
Whether the bankruptcy court erred in denying Dr. Houchin’s
motion to dismiss the § 523(a)(2)(A) claim for failure to comply with Civil
Rule 9(b).
Whether the bankruptcy court erred in denying the motion to dismiss
the § 523 claims under Civil Rule 12(b)(6) for failure to state a claim upon
which relief can be granted.
STANDARD OF REVIEW
We review de novo a bankruptcy court’s order on a Civil Rule
12(b)(6) motion to dismiss. Movsesian v. Victoria Versicherung AG,
670 F.3d
1067, 1071 (9th Cir. 2012) (en banc); Cedano v. Aurora Loan Servs., LLC (In re
Cedano),
470 B.R. 522, 528 (9th Cir. BAP 2012). We also review de novo the
2
A BAP motions panel granted leave to appeal this interlocutory order.
7
bankruptcy court’s order on a motion to dismiss under Civil Rule 9(b) for
failure to plead a fraud claim with particularity. Kearns v. Ford Motor Co.,
567 F.3d 1120, 1124 (9th Cir. 2009).
Under de novo review, we look at the matter anew, as if it had not
been heard before, and as if no decision had been rendered previously,
giving no deference to the bankruptcy court’s determinations. Freeman v.
DirecTV, Inc.,
457 F.3d 1001, 1004 (9th Cir. 2006).
DISCUSSION
In reviewing the bankruptcy court’s decision on a motion to dismiss,
we apply the same standards to Civil Rule 12(b)(6) dismissal motions that
all other federal courts are required to apply. Barnes v. Belice (In re Belice),
461 B.R. 564, 572–73 (9th Cir. BAP 2011). Under Civil Rule 12(b)(6), made
applicable in adversary proceedings by Rule 7012, we may dismiss a
complaint for “failure to state a claim upon which relief can be granted.”
To survive a Civil Rule 12(b)(6) dismissal motion, a complaint must present
cognizable legal theories and sufficient factual allegations to support those
theories. See Johnson v. Riverside Healthcare Sys., LP,
534 F.3d 1116, 1121–22
(9th Cir. 2008). As the Supreme Court has explained:
a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face. . . . A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. . . .
Threadbare recitals of the elements of a cause of action,
8
supported by mere conclusory statements, do not suffice.
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citations and internal quotation
marks omitted). In reviewing the sufficiency of a complaint under Civil
Rule 12(b)(6), we must accept as true all facts alleged in the complaint and
draw all reasonable inferences in favor of the plaintiff. See Newcal Indus.,
Inc. v. Ikon Office Sol.,
513 F.3d 1038, 1043 n.2 (9th Cir. 2008). However, we
do not need to accept as true conclusory allegations or legal
characterizations cast in the form of factual allegations. See Bell Atl. Corp. v.
Twombly,
550 U.S. 544, 555–56 (2007).
A. The bankruptcy court did not err in holding that the underlying
state law claims were not time-barred.
As set forth above, the State Court Action was pending when Dr.
Houchin filed his bankruptcy case in September 2017. Plaintiffs filed a
timely nondischargeability complaint that was based on the same conduct
as the State Court Action. The state court thereafter dismissed the State
Court Action. Despite the fact that the nondischargeability action was then
pending, Dr. Houchin insists that those claims are now time-barred
because the statute of limitations has run on the underlying state law
claims and therefore Plaintiffs cannot establish a debt. 3
The dischargeability analysis requires two steps: first, “the
3
On appeal, Dr. Houchin has abandoned his argument that the October 2017
Order was self-executing.
9
establishment of the debt itself, which is subject to the applicable state
statute of limitations; and, second, a determination as to the nature of that
debt, an issue within the exclusive jurisdiction of the bankruptcy court and
thus governed by Bankruptcy Rule 4007.” Banks v. Gill Distribution Ctrs.,
Inc.,
263 F.3d 862, 868 (9th Cir. 2001) (citing Resolution Tr. Corp. v. McKendry
(In re McKendry),
40 F.3d 331, 337 (10th Cir. 1994)).
The parties do not dispute that, under Arizona Revised Statutes § 12-
542, the statute of limitations for the relevant underlying state law claims
(tortious interference with contract and/or business expectancy, civil
conspiracy, and unfair competition) is two years. The parties also do not
dispute that the State Court Action was timely filed. Mr Houchin posits the
novel theory that the statute of limitations ran, at the latest, on June 9, 2017,
two years after the State Court Action was filed, and 112 days before the
bankruptcy petition was filed.4 Under his theory, when the State Court
Action was dismissed, it was effectively a dismissal with prejudice because
the statute of limitations had expired, and Plaintiffs were thus barred from
pursuing their nondischargeability claims because they could not establish
an underlying debt. In support, he cites this Panel’s unpublished decision
in Domingo v. Portugues-Santana (In re Domingo), No. NV-17-1135-BHTa,
2017 WL 6601773 (9th Cir. BAP Dec. 26, 2017). Although Dr. Houchin
4
This argument makes no sense. The limitations period did not expire on that
date because the State Court Action had been timely filed and was pending.
10
contends that Domingo is factually analogous, it is not.
In Domingo, plaintiff filed a timely nondischargeability proceeding
seeking to have a federal court judgment excepted from discharge in the
debtor’s chapter 7 case. The bankruptcy court dismissed the original
complaint under Civil Rule 12(b)(5) for insufficient service of process; it
also dismissed the complaint under Civil Rule 12(b)(6) for failure to state a
claim upon which relief could be granted and granted leave to amend. The
plaintiff filed an amended complaint after the deadline under Rule 4007(c)
had expired. The bankruptcy court denied the debtor’s motion to dismiss
the amended complaint as untimely and, after trial, entered a judgment
finding the debt nondischargeable. On appeal, the Panel vacated the
judgment, holding that because the original complaint had been dismissed
under Civil Rule 12(b)(5) for failure to comply with Civil Rule 4(m), it was
as though the original complaint had never been filed, and thus the
amended complaint could not relate back to the original filing date.
Accordingly, “even though the dismissal was nominally ‘without
prejudice,’ it was effectively ‘with prejudice’ because a new action was
barred by the statute of limitations.”
2017 WL 6601773 at *6 (citations
omitted).
Although Domingo involves a statute of limitations issue and a
nondischargeability complaint, the similarities end there. This appeal does
not involve a motion to dismiss under Civil Rule 12(b)(5), which was the
11
critical issue in Domingo. Here, the nondischargeability action was pending
when the State Court Action was dismissed. Under these circumstances,
although Plaintiffs could not have refiled the State Court Action, their
pending nondischargeability claims, which are within the bankruptcy
court’s exclusive jurisdiction, were not time-barred. In other words, once
the nondischargeability action was filed, the state law statute of limitations
ceased to have any relevance, and certainly could not be deemed to have
“run” pre-petition given that the State Court Action was pending on the
petition date.
Dr. Houchin also argues that the filing of the adversary complaint
did not relate back to the state court complaint so as to preserve the state
statute of limitations, and that if Plaintiffs had wanted to do so, they should
have removed the State Court Action to the bankruptcy court. He cites no
authority that removal of a state court action is required in the
circumstances presented here. He also notes that Plaintiffs did not ask the
bankruptcy court to liquidate their underlying state law claims but “merely
requested the bankruptcy court make a determination as to whether their
unliquidated State Court Claims were nondischargeable.”5 While true, he
did not make this argument in the bankruptcy court; thus we need not
5
We note that bankruptcy courts have jurisdiction and constitutional authority to
liquidate a debt in conjunction with finding a debt nondischargeable. See Dietz v. Ford
(In re Dietz),
760 F.3d 1038, 1050 (9th Cir. 2014).
12
consider it. See Price v. Lehtinen (In re Lehtinen),
332 B.R. 404, 410 (9th Cir.
BAP 2005), aff’d,
564 F.3d 1052 (9th Cir. 2009). In any event, he cites no
authority supporting the conclusion that a failure to explicitly request that
a claim be liquidated is grounds for dismissing a nondischargeability
complaint. 6
B. The bankruptcy court did not err in finding that the allegations
supporting the § 523(a)(2)(A) claim complied with Civil Rule 9(b).
In this circuit, a creditor asserting nondischargeability of a debt under
§ 523(a)(2)(A) must establish five elements: “(1) misrepresentation,
fraudulent omission or deceptive conduct by the debtor; (2) knowledge of
the falsity or deceptiveness of his statement or conduct; (3) an intent to
deceive; (4) justifiable reliance by the creditor on the debtor’s statement or
conduct; and (5) damage to the creditor proximately caused by its reliance
on the debtor’s statement or conduct.” Turtle Rock Meadows Homeowners
6
Dr. Houchin also addressed in his appellate brief several issues that were raised
by Plaintiffs but not ruled upon by the bankruptcy court, probably because disposition
of those issues was unnecessary to its ruling. None are relevant to this appeal. First, he
contends that § 108(c) did not operate to toll the statute of limitations because the
limitations period had run pre-petition, relying on the same flawed theory that the
statute of limitations ran while the State Court Action was pending. Second, Dr.
Houchin argues that dismissal of the State Court Action did not violate the automatic
stay. Third, Dr. Houchin argues that Plaintiffs could not have taken advantage of
Arizona Revised Statutes § 12-504, which permits a plaintiff to commence a new action
within six months, even if the limitations period has expired, if a timely filed action "is
terminated in any manner other than by abatement, voluntary dismissal, dismissal for
lack of prosecution or a final judgment on the merits." He argues that the State Court
Action was dismissed for lack of prosecution, and in any case the six months has
passed.
13
Ass’n v. Slyman (In re Slyman),
234 F.3d 1081, 1085 (9th Cir. 2000). A
fraudulent omission in the face of a duty to disclose may constitute a false
representation. Harmon v. Kobrin (In re Harmon),
250 F.3d 1240, 1246 (9th
Cir. 2001). In cases where a plaintiff establishes the nondisclosure of a
material fact that the debtor was under a duty to disclose, the reliance and
causation elements are established and need not be separately proven. Apte
v. Japra, M.D., F.A.C.C., Inc. (In re Apte),
96 F.3d 1319, 1323 (9th Cir. 1996).
See also Citibank (South Dakota), N.A. v. Eashai (In re Eashai),
87 F.3d 1082,
1089 (9th Cir. 1996).
Because a claim under § 523(a)(2)(A) sounds in fraud, it must comply
with Civil Rule 9(b), which provides, “[i]n alleging fraud or mistake, a
party must state with particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a person's
mind may be alleged generally.” To comply with Civil Rule 9(b),
allegations of fraud must be specific enough to give the defendant notice of
the particular misconduct that is alleged to constitute the fraud so that they
can defend against the fraud claim and not just deny that they have done
anything wrong. Bly-Magee v. California,
236 F.3d 1014, 1019 (9th Cir. 2001).
Thus, a complaint alleging fraud must “identify the who, what, when,
where, and how of the misconduct charged, as well as what is false or
misleading about the purportedly fraudulent statement, and why it is
false.” Davidson v. Kimberly-Clark Corp.,
889 F.3d 956, 964 (9th Cir. 2018),
14
cert. denied,
139 S. Ct. 640 (2018) (citations omitted).
The FAC alleges that in June 2014, Dr. Houchin bought the Tucson,
Arizona, practice (MBDT) via a stock purchase agreement and did not tell
Myers about it. It also alleges that in late July or early August 2014, Dr.
Houchin led Plaintiffs to believe he was interested in franchising his two
California dental practices, and that he was continuing to finalize the
purchase of MBDT from D’Haenens, telling Myers that he had signed
franchise agreements for all three practices. In the meantime, Dr. Houchin,
along with D’Haenens and McKew, continued to negotiate with the master
lease holder for dental practices in Walmart stores, leading Plaintiffs to
believe that HDF was still part of the Walmart deal. After HDF obtained a
TRO against D’Haenens and McKew, Houchin told Myers and Baker that
he had played no role in the ongoing efforts to hurt HDF.
The allegations specific to the § 523(a)(2)(A) claim are that
Dr. Houchin made representations to HDF that led it to believe that he was
entering into a franchise agreement with HDF for MBDT and that he
obtained property diverted from MBDT as a result of false representations
upon which Plaintiffs relied. The FAC also alleges that Dr. Houchin made
false representations by “secretly negotiating to cut Half Dental out of
negotiations with perspective [sic] Half Dental customers, including
Walmart, while leading Myers and Baker to believe Half Dental was still
part of the negotiations . . . .” and by “secretly negotiating to purchase
15
MBDT from D’Haenens to be part of a non-Half Dental alliance while
representing to Plaintiffs that Half Dental was still part of the
negotiations.” It further alleges that Dr. Houchin acted deceitfully and
intentionally and caused Plaintiffs to lose property or money.
The FAC cannot plausibly be characterized as conclusory. The
allegations are very detailed and sufficiently state the who, what, when,
where, and how of the fraud claim. The FAC identifies numerous examples
of specific false statements or failures to disclose, the specific parties
involved, the general timing of the representations, and the benefit
received by Dr. Houchin. As noted, where the fraud at issue is a failure to
disclose, reliance and causation are established. And Civil Rule 9(b)
permits a plaintiff to allege states of mind generally.
On appeal, Dr. Houchin complains that the FAC lacks specific dates
and contains “vague allegations and double talk.” Although the FAC is not
precise about the dates of many of the events, it is clear that most of the
relevant representations occurred in the summer of 2014 and thereafter. As
for the “double talk,” Dr. Houchin complains that the allegation that
Plaintiffs did not know he had purchased MBDT is inconsistent with the
allegation that Myers sent Dr. Houchin a text acknowledging that he might
have an interest as a minority or absentee investor in MBDT. But a closer
reading of the FAC shows that what Plaintiffs did not know was that
Dr. Houchin had purchased MBDT outright until he sent an email to Myers
16
telling him as much. Dr. Houchin also points out that paragraph 21 of the
FAC indicates that HDF had agreed that Dr. Houchin would buy MBDT
outside of any franchise agreement, which is inconsistent with the
allegation that Dr. Houchin purchased MBDT without HDF or Myers’
consent. But, again, the FAC alleges that by the time Dr. Houchin
purchased MBDT, the original anticipated deal had fallen through and
MBDT had been franchised to D’Haenens, an alleged co-conspirator.
Dr. Houchin has not shown that the bankruptcy court erred in
denying his motion to dismiss on this ground.
C. The bankruptcy court did not err in holding that the FAC
adequately stated a claim for relief under § 523(a)(6).
To prevail on a § 523(a)(6) claim, the plaintiff must establish that the
debt at issue is “for willful and malicious injury by the debtor to another
entity or to the property of another entity.” The willful and malicious
prongs of the claim must both be established. Barboza v. New Form, Inc. (In
re Barboza),
545 F.3d 702, 706 (9th Cir. 2008). A “willful” injury is a
“deliberate or intentional injury, not merely a deliberate or intentional act
that leads to injury.”
Id. (quoting Kawaauhau v. Geiger,
523 U.S. 57, 61 (1998).
And a malicious injury involves (1) a wrongful act, (2) done intentionally,
(3) which necessarily causes injury, and (4) is done without just cause or
excuse.
Id. (citations omitted).
The FAC adequately pleads these elements. Dr. Houchin erroneously
17
asserts that the complaint does not allege that he acted willfully and
maliciously or intended to injure Plaintiffs. But the FAC includes
allegations of tortious conduct and alleges that Dr. Houchin had the
subjective motive to inflict injury on Plaintiffs or believed that injury was
substantially certain to result from his conduct, and that he intentionally
harmed Plaintiffs knowing that his conduct was wrong. While the words
“willful” and “malicious” do not appear, the allegations satisfy those
elements. Again, Dr. Houchin has not shown that the bankruptcy court
erred in denying his motion to dismiss on this ground.
CONCLUSION
For the reasons explained above, Dr. Houchin has not established
that the bankruptcy court erred in denying his motion to dismiss.
Accordingly, we AFFIRM.
18
