Holloway v. Roberts ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 97-40802
Summary Calendar
__________________
In The Matter Of: GEORGE ROBERT HOLLOWAY, JR.,
Debtor.
________________
GEORGE ROBERT HOLLOWAY, JR.
Appellant,
versus
ROSE ANN ROBERTS,
Appellee.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
(4:95-CV-121)
______________________________________________
January 28, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
George Robert Holloway appeals from a decision of the district
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
court, which affirmed in part a judgment of the bankruptcy court.1
Holloway challenges the finding that an obligation to Rose Ann
Roberts, stipulated in the amount of $146,649.50, which arose from
an assignment of interest in the McKinney 282 Joint Venture,
pursuant to an Agreement Incident to Divorce, is non-dischargeable
under 11 U.S.C. §§ 523(a)(2), (4) and (6). Holloway argues that
Roberts had a contractual right to, not a property right in, the
obligation in question, and that the debt therefore is not non-
dischargeable under 11 U.S.C. §§ 523(a)(4) and (6). Holloway also
argues that because his misrepresentations were made after the
obligation to Roberts arose, those misrepresentations cannot
support a finding of fraud under § 523(a)(2).
Reviewing the bankruptcy court’s findings of law de novo, and
findings of fact for clear error, we have carefully considered the
arguments advanced by the parties in briefs to this court, the
Memorandum Opinion and Order of the district court, and the
transcript of the findings of the bankruptcy court. We agree with
the district court that the Agreement Incident to Divorce and the
McKinney 282 Assignment gave Roberts a property interest in the
McKinney 282 Joint Venture. See Twelve Oaks Tower I v. Premier
Allergy, 938 S.W.2d 102, 113 (Tex. App.-Houston [14th Dist.] 1996,
no writ) (Draughn, J. stating that “assignment” has a comprehensive
1
The district court reversed and remanded on the question of
attorneys’ fees; that portion of the judgment was not appealed and
therefore is not before this court.
2
meaning, with two judges concurring in result); University of Tex.
Med. Branch v. Allen, 777 S.W.2d 450 (Tex. App.-Houston [14th
Dist.] 1989, no writ) (discussing broad effect of assignment);
Mundy v. Mundy, 653 S.W.2d 954, 957-58 (Tex. App.-Dallas 1983, no
writ) (division of partnership interests in divorce results in
vesting proportion of community interest in each party). Moreover,
we agree that Holloway, as a managing co-partner in the McKinney
282 Joint Venture, had a fiduciary duty to Roberts. Thus, in light
of the bankruptcy court’s findings that Holloway breached his
fiduciary duty to Roberts and willfully and maliciously converted
her property2--findings that certainly are not clearly erroneous--
the obligation is non-dischargeable under both §§ 523(a)(4) and
(6).
Because the judgment of non-dischargeability can be sustained
upon an affirmance of the district court’s holding under any one of
the three subsections of the statute, we do not reach the question
of whether it is non-dischargeable under § 523(a)(2). We AFFIRM
the district court’s judgment affirming the bankruptcy court’s
finding with respect to non-dischargeability.
2
While, as the district court indicates, it is not clear
whether the bankruptcy court intended to make an express finding of
fact confirming all of Roberts’ factual assertions, it is clear
that the bankruptcy court accepted enough of her account that it
reached these conclusions.
3
4