                                   ___________

                                   No. 95-3835
                                   ___________


In re:    Jerry Waugh,                 *
                                       *
                Debtor.                *
                                       *
                                       *
--------------------------------*
                                       *
                                       * Appeal from the United States
Jerry Waugh,                           * District Court for the
                                       * Eastern District of Arkansas.
          Plaintiff - Appellant,       *
                                       *
     v.                                *
                                       *
Reuben Eldridge; Sandra                *
Eldridge;                              *
                                       *
          Defendants - Appellees.*
                                       *
                                       *
James C. Luker,                        *
                                       *
          Trustee.                     *


                                   ___________

                     Submitted:    April 12, 1996

                          Filed:   September 12, 1996
                                   ___________

Before MCMILLIAN, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

                                   ___________

JOHN R. GIBSON, Circuit Judge.
     Jerry Waugh appeals the district court's judgment holding that his
contingent debt to Reuben and Sandra Eldridge was non-dischargeable under
section 523(a)(6) of the Bankruptcy Code and reversing the decision of the
bankruptcy court.   Waugh argues that the bankruptcy court was correct in
its determination that the debt was dischargeable because Waugh did not
willfully and maliciously remove assets from Rising Fast Trucking Company
in violation of the Eldridges' rights as creditors.   We affirm the judgment
of the district court.


     Waugh and members of the Clem Moore family formed Rising Fast
Trucking in 1979.   Waugh was president of the company and a fifty- percent
shareholder.   The company grew from 5 trucks to approximately 150 trucks
by 1985.


     On July 14, 1986 a truck owned by Rising Fast Trucking and a
Trailways bus driven by Reuben Eldridge collided.     The Eldridges brought
suit against Rising Fast Trucking.   In the liability phase of a bifurcated
trial, the jury found Rising Fast Trucking liable for the accident and no
negligence on the part of Reuben Eldridge.   Before the damages phase could
begin, the parties entered into an agreed judgment for $3,000,000 in
compensatory damages.    Because of other claims arising from the accident,
the Eldridges received only $59,000 from Rising Fast Trucking's $1,000,000
liability insurance policy in partial satisfaction of their judgment
against the company.


     Waugh filed a voluntary Chapter 7 petition in bankruptcy in February
1993 and was granted a discharge on July 7, 1993.      No objections to his
discharge or the dischargeability of any debts were filed within the time
frame allowed by the Federal Rules of Bankruptcy Procedure.


     In an attempt to obtain satisfaction of their judgment, the Eldridges
filed suit in Arkansas state court to set aside transfers




                                     -2-
of property and pierce the corporate veil between Waugh and the company.
In his answer Waugh raised his bankruptcy discharge as a defense.


     Waugh   then   sought    to   reopen    his   bankruptcy   case,   asking   the
bankruptcy court to find that any personal liability arising from                the
state court action was discharged in bankruptcy.         The Eldridges responded
that the debt was non-dischargeable because they did not receive notice of
the bankruptcy proceeding in time to object to the discharge under section
523(a)(3) of the Bankruptcy Code.           See 11 U.S.C. § 523(a)(3) (1994).
Further, the Eldridges argued that Waugh violated section 523(a)(6) by
willfully and maliciously removing assets from the company, thus preventing
them from obtaining satisfaction of their judgment.


     The bankruptcy court ruled that the Eldridges did not receive notice
of Waugh's bankruptcy case.    See In re Waugh, 172 B.R. 31 (Bankr. E.D. Ark.
1994).   The court also found that the Eldridges had the burden of proving
that the debt was non-dischargeable under section 523(a)(6).             The court
concluded that section 523(a)(3)(B) preserves the right of a creditor not
receiving notice to litigate the dischargeability of a claim.1


     The bankruptcy court next addressed the section 523(a)(6) exception
to dischargeability and concluded that Waugh did not act willfully and
maliciously toward the Eldridges.      Thus, any debt that Waugh might owe to
the Eldridges was discharged in bankruptcy.
     In drawing this conclusion, the bankruptcy court found that Rising
Fast Trucking was a growth company where, until 1986, past profits and
additional shareholder capital were invested into the company.           The court
found that in 1986 "the shareholders authorized




     1
     Neither of the bankruptcy court's holdings regarding the lack
of notice or the burden of proof were appealed.

                                       -3-
nearly 1.5 million dollars in dividends and loans to the shareholders," all
of which were authorized before the July 14 accident.


        The court then found that because Rising Fast Trucking was unable to
raise additional working capital in the form of accounts receivable
financing from its bank, the formation of a new corporation called Rising
Fast Transport was authorized in June 1986.                However, the articles of
incorporation for this new corporation were not filed until August 29,
1986.       Waugh and the Moores each owned fifty percent of the new company
which together with Rising Fast Trucking operated as a single company,
hauling the same cargo, using the same drivers, and being dispatched from
a common pool of available trucks.


        The bankruptcy court found that because of economic conditions the
companies' operations decreased in 1989.            In November of that year, Rising
Fast        Trucking    and   Rising   Fast    Transport   were   sold   to   Alliance
Transportation.        Alliance paid $1,000 for the companies' names, trademarks,
telephone numbers, goodwill, and customer lists.              Alliance also employed
                                                2
Waugh at a yearly salary of $66,756.                Waugh also agreed to a four-year
consulting agreement for $25,000 per year.


        The court found that Waugh's "actions with regard to his corporations
were imprudent and lacking in business judgment," but were not targeted at
the Eldridges.         The court believed the Eldridges' expert who testified that
the dividends and loans made by Rising Fast Trucking to the shareholders
placed the company in a position where it would not be able to pay its
debts as they became due.              However, relying heavily on the corporate
minutes




        2
     The bankruptcy court indicated a salary of $1,000 per month.
However, the employment agreement introduced at the hearing
specifies a yearly salary of $66,756.

                                              -4-
introduced at the hearing, the bankruptcy court found that these dividends
and loans were authorized before the July 14 accident.            The minutes also
indicated that the formation of Rising Fast Transport was authorized
several weeks before the accident.      The court found that all available cash
had been extracted from the corporations before the accident, and at the
time of the accident, "there were few, if any, assets for unsecured
creditors to reach."


     Finally, the court stated that while it believed that Waugh had acted
imprudently and in a self-serving manner, he had been candid with the
court.   In particular, the bankruptcy court believed Waugh's explanation
of his comments to Dale Cole, president of Worthen National Bank of
Batesville,3 and his testimony regarding the formation of Rising Fast
Transport.   The court concluded that Waugh did not remove assets from the
corporation in violation of the Eldridges' rights.        Thus, any debt owed to
the Eldridges was discharged.


     The district court held that the bankruptcy court's factual finding
that Waugh's actions were not willful and malicious with respect to the
Eldridges was clearly erroneous.      See Eldridge v. Waugh, 198 B.R. 545 (E.D.
Ark. 1995).        The district court held that the entirety of the record
revealed "an intentional pattern of activity by [Waugh] targeted at harming
the financial interests of the Eldridges and other creditors and at
improving    the     financial   condition   of   the   [Rising   Fast   Trucking]
shareholders."


     The district court first concluded that even if Waugh's testimony
about the reasons for forming Rising Fast Transport were




     3
     Cole testified that Waugh had stated that he had transferred
assets to his children, to Clem Moore, and to trusts in order to
protect himself from other creditors and that the bank would be
repaid.   Waugh later testified that the conversation with Cole
concerned the assets of Rising Fast Rentals, not Rising Fast
Trucking.

                                       -5-
believed, his later actions showed an intent to remove assets from Rising
Fast Trucking.     The court noted that after the formation of Rising Fast
Transport, a corporation called Rising Fast Leasing purchased trucks
financed by Navistar Financial Corporation and leased them to Rising Fast
Transport.    Due to an interlocking guaranty with Navistar, Rising Fast
Leasing and Rising Fast Trucking each became liable for the other's
obligations to Navistar.       Thus, the district court found that while the new
assets were added to Rising Fast Leasing and leased to Rising Fast
Transport, Rising Fast Trucking incurred liabilities from the transaction.


       The district court next addressed the financial condition of Rising
Fast Trucking.    The court explained that the certified public accountant
responsible for auditing Rising Fast Trucking had issued a qualified audit
report because "there were related party transactions that were not
disclosed and because of the uncertainty of [Rising Fast Trucking's]
financial future due to the potential lawsuits from the 1986 wreck."


       The district court then turned to the issuance of dividends by Rising
Fast   Trucking   in   1986.     The   court   noted   that   the   corporation,   an
S-corporation, had never paid dividends before 1986.          However, in 1986 the
board of directors approved several dividend payments.              According to the
corporate minutes introduced at the hearing, dividends were declared in the
following amounts in 1986:         $550,000 on April 7; $10,000 on April 28;
$50,000 on May 12; $6,000 on May 20; $10,000 on June 11; $30,000 on June
23; and $40,000 on June 27.        Addressing the Eldridges' argument that the
dates in the corporate minutes could not be believed, the district court
noted that the certified public accountant responsible for auditing Rising
Fast Trucking testified that the audit showed no dividend payments until
after the July 14 accident, when a total of $800,000 was paid on July 28
and 31.   The accountant also testified that from the time the audit work
was completed in March 1986 and




                                        -6-
when the report was published on May 23, 1986, the auditing firm would have
inquired if the financial position of Rising Fast Trucking had materially
changed and included any such change in the final published audit.         The
accountant stated that the firm did not learn of any dividend payments
during this period of time, or it would likely have included them in the
audit report.


     In addition, the district court highlighted a transaction described
by Waugh that appears to contradict the dividend authorization dates in the
minutes.   Waugh testified that he received $275,000 from the first $550,000
dividend payment.   The minutes showed that this dividend was declared on
April 7.   Waugh testified:   "I went to the bank and borrowed $265,000.   The
same day I wrote Rising Fast a check for $262,000.       The next day Rising
Fast Trucking Company paid me a dividend of $275,000 and that same day I
went and paid the bank back where I'd borrowed it, so [it was] just a swap
out to get the debt I owed Rising Fast off the books.       I paid the debt.
They paid me a dividend actually so I could pay the debt."          On cross
examination, Waugh was asked why the March 31, 1986 Rising Fast Trucking
balance sheet did not reflect the debt he owed to Rising Fast Trucking.
Waugh responded that it was because he had paid off the debts the "day
before that report."   The district court recognized that it would have been
impossible for Waugh to use an April 7 dividend payment to pay off his debt
to Rising Fast Trucking on March 31.


     A certified public accountant who testified as an expert for the
Eldridges testified that it was uncommon for an S-corporation like Rising
Fast Trucking to distribute dividends that did not result from the current
or immediately previous year's profits.    In addition, the court noted the
bankruptcy court's finding that at the time the dividends were paid
reasonable grounds existed to believe that the corporation would be unable
to pay its debts as they became due.




                                     -7-
     Finally, the district court focused on the sale of Rising Fast
Trucking to Alliance.        The court noted that at the time of the sale, Waugh
was jointly and severally liable for the $1.8 million that Rising Fast
Trucking and Rising Fast Leasing owed to Navistar.                    However, in exchange
for assigning the four $25,000 payments from his consulting agreement with
Alliance, Waugh and the Moores were released from liability on the debt.
Waugh later agreed with Navistar to a $2.9 million consent judgment against
Rising Fast Trucking and Rising Fast Leasing, a judgment which released him
individually.    The court determined that "[t]hese actions, taken after the
accident,     harmed   the     Eldridges'    interests    by     selling     [Rising       Fast
Trucking's] assets for a low price."


     The district court concluded:                "After the accident, Waugh used
[Rising Fast Trucking's] assets to receive debt release for himself, to the
detriment of the Eldridges. . . . [A]fter the accident Waugh engaged in an
intentional     course    of   conduct   designed    to   insulate       assets     from    the
Eldridges."    Thus, the district court held that any debt owed by Waugh to
the Eldridges was non-dischargeable because it was within the willful and
malicious     exception   to    dischargeability,     and       the    bankruptcy    court's
                                                            4
findings to the contrary were clearly erroneous.


     Waugh argues that his conduct was not willful and malicious under
section 523(a)(6) of the Bankruptcy Code.            He contends that the findings
of the bankruptcy court were not clearly erroneous and the district court
erred in so holding.


           When reviewing a bankruptcy court's decision to deny
     discharge, we apply the same standard of review that the




       4
       In addition to the factors discussed above, the district
court also mentioned the bankruptcy court's discussion of several
facts excluded from evidence at trial. While the bankruptcy court
refused to allow Waugh to testify regarding other accidents and
claims against Rising Fast Trucking, the bankruptcy court discussed
this evidence in its decision.

                                            -8-
     district court is supposed to apply: we review the bankruptcy
     court's factual findings for clear error and its conclusions of
     law de novo. Although the district court's conclusions about
     the bankruptcy court's decision may carry some persuasive
     weight, our appellate review of the bankruptcy court's decision
     is independent of the district court's opinion.


United States v. Foust (In re Foust), 52 F.3d 766, 768 (8th Cir. 1995) (per
curiam) (citations omitted).


     The     bankruptcy   court's   determination   of   whether   a   party    acted
willfully and maliciously inherently involves inquiry into and finding of
intent, which is a question of fact.     See First Nat'l Bank v. Phillips (In
re Phillips), 882 F.2d 302, 305 (8th Cir. 1989).          We may not reverse the
bankruptcy court's factual findings unless after reviewing the record we
are left with the "definite and firm conviction that a mistake has been
committed."    Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)
(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948)).     Even when based on witness credibility, the bankruptcy court's
factual findings are not completely insulated from appellate review.             See
Griffin v. City of Omaha, 785 F.2d 620, 626 (8th Cir. 1986).                   "Where
physical, documentary or other forms of objective evidence contradict a
witness's story, or that story is so internally inconsistent or implausible
that a reasonable factfinder would not credit it, a reviewing court may
find clear error even `in a finding purportedly based on a credibility
determination.'" Id. (quoting Anderson, 470 U.S. at 575).


     Section 523(a)(6) of the Bankruptcy Code provides that a debt may not
be discharged when the debtor has willfully and maliciously injured another
entity or the property of another entity.       11 U.S.C. § 523(a)(6) (1994).
Willful is defined as "`headstrong and knowing' conduct," while malicious
is "conduct `targeted at the creditor at least in the sense that the
conduct is certain or almost certain to cause harm.'"       Johnson v. Miera (In
re Miera),




                                       -9-
926 F.2d 741, 743-44 (8th Cir. 1991) (quoting Barclays Am./ Business
Credit, Inc. v. Long (In re Long), 774 F.2d 875, 881 (8th Cir. 1985)).
"While intentional harm may be very difficult to establish, the likelihood
of harm in an objective sense may be considered in evaluating intent."
Long, 774 F.2d at 881 (footnote omitted).


      After carefully studying the record before us, we hold that the
bankruptcy     court's    findings   regarding    Waugh's     conduct    under   section
523(a)(6) of the Bankruptcy Code were clearly erroneous.                As illustrated
by the district court's opinion, the record is replete with documentary
evidence and inconsistencies that contradict Waugh's testimony and the
findings of the bankruptcy court.       See Anderson, 470 U.S. at 575; Griffin,
785 F.2d at 626.


      When viewed in its entirety, the record reveals that Waugh, as
president and fifty-percent shareholder of Rising Fast Trucking, repeatedly
engaged   in     transactions   to   the    benefit    of    himself    and    the   other
shareholders and to the detriment of Rising Fast Trucking creditors.


      There are two statements in the district court's opinion that are
troublesome.      The court stated it believed that the evidence as a whole
revealed "an intentional pattern of activity by the debtor targeted at
harming the financial interests of the Eldridges and other creditors and
at   improving    the    financial   condition    of   the   [Rising    Fast   Trucking]
shareholders."     The court concluded by saying that it believed "that after
the accident Waugh engaged in an intentional course of conduct designed to
insulate assets from the Eldridges."         When these statements are considered
closely, however, we do not see them as evidencing factual findings, but
rather as being introductory or conclusory statements in a careful analysis
under the clearly erroneous test.       This court has held on several occasions
that the district court reviews an order of the bankruptcy court as an
appellate court, and may not make its own




                                           -10-
independent factual findings or take additional evidence to support such
findings.     Wagner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir. 1987);
Foust, 52 F.3d at 768.    We conclude that the district court scrupulously
followed its responsibility to review the bankruptcy court order under the
clearly erroneous analysis.       It analyzed the bankruptcy court order in
light of the entire record, demonstrating numerous internal inconsistencies
and the implausibility of the testimony.          We are satisfied that the two
statements using the word "believe," statements which have caused us some
concern, do not constitute factual findings and do not nullify the district
court's detailed analysis determining whether the factual findings are
clearly     erroneous.   In     any   event,    this   court    has    the   ultimate
responsibility of making an independent determination as to whether the
findings of the bankruptcy court were clearly erroneous.


     Without elaboration, the bankruptcy court accepted as true the dates
shown on the Rising Fast Trucking minutes.         The court also found Waugh's
testimony    credible.    The    Eldridges     argue   that    these   findings    are
inconsistent and cannot be reconciled.


     The minutes show that the $550,000 dividend was authorized on April
7, 1986.    Waugh testified that he received $275,000 of this dividend and
used it to repay a bank loan whose proceeds he had used to repay loans from
Rising Fast Trucking.    When asked why the Rising Fast Trucking loans did
not appear on the March 31, 1986 balance sheet, Waugh testified that he
repaid the Rising Fast Trucking loan the day before the balance sheet was
issued.     He also testified that the day after he repaid the Rising Fast
Trucking loan, he received the dividend payment and repaid the bank.              Thus,
Waugh stated he repaid a bank loan with a dividend that was not authorized
by the board of directors until about a week later.           As the district court
recognized, it would have been impossible for Waugh to have used the April
7 dividend to repay a loan he testified was paid off several days earlier.
This is the type of internal inconsistency discussed in Anderson, 470 U.S.
at 575, a




                                       -11-
contradiction of Waugh's testimony by objective evidence, that undermines
the underpinnings of the bankruptcy court's finding and       causes us to
conclude it is clearly erroneous.


       Furthermore, Waugh's testimony fails to mesh with the testimony of
Rising Fast Trucking's auditor.     The auditor testified that no dividend
payments were reported or discovered between the time when the audit was
completed in March and when it was published in May.     We are well aware
that   "[w]here there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous."   Anderson,
470 U.S. at 574.     This is not, however, a question of two permissible
views.     Instead, it involves a situation where the testimony of the
principle witness is contradicted by other parts of his testimony, by
documentary evidence, and by the testimony of other witnesses.   If Waugh's
testimony was internally consistent, the auditor's testimony would have
verified the payment of dividends during the time frame shown in the
minutes.   Simply put, the unbiased independent evidence in the record does
not confirm that the dividends were declared or paid before the July 14
accident, and Waugh's own testimony contradicts the dates shown in the
minutes upon which he relies.5


       The record also demonstrates that Waugh's actions with regard to
Rising Fast Trucking were knowing and certain to harm the Eldridges.   See
Miera, 926 F.2d at 743-44.


       The Eldridges' expert, whom the bankruptcy court found to be well
qualified and credible, testified that it would be unusual for




       5
      While we must not second guess the availability of certain
items of evidence, or the reason for not introducing a particular
item of evidence at trial, we find it interesting that neither
party introduced bank records or cancelled checks showing when the
dividends were actually paid and cleared through Rising Fast
Trucking's bank.


                                    -12-
an S-corporation such as Rising Fast Trucking to pay dividends like it did
in   1986.    Further, the bankruptcy court also accepted the expert's
testimony that at the time "when the dividends were authorized in 1986,
there were reasonable grounds to believe that the corporation would be
unable to pay creditors as debts became due."    This testimony, accepted by
the court, is objective evidence contradicting Waugh's testimony and the
bankruptcy court's finding that Waugh's actions were not directed at the
Eldridges and other creditors.    Thus, we must conclude that the bankruptcy
court's finding was clearly erroneous.


        As the district court pointed out, these practices continued after
the accident and harmed the Eldridges' interest as contingent creditors,
while    continuing to benefit Waugh and the other shareholders.         The
corporation received only $1,000 for the sale of Rising Fast Trucking.
Waugh, however, received an employment contract for $66,756 and a four-year
consulting contract for $25,000 per year.       On December 4, 1989, Waugh
assigned the proceeds from the consulting contract to Navistar in exchange
for the release of Waugh and the Moores from personal liability on the
debts owed to Navistar.    Waugh testified that Rising Fast Trucking was also
released from liability, but the record fails to support this testimony.
The assignment releases only Waugh and the Moores.      Further, the consent
judgment executed on December 14, 1989, not discussed by the bankruptcy
court, dismissed Waugh and the Moores, but continued to hold Rising Fast
Trucking and Rising Fast Leasing jointly and severally liable for debts
owed to Navistar.   Again, this illustrates the internal inconsistencies in
Waugh's testimony that are contradicted by objective evidence in the
remainder of the record.    Moreover, it demonstrates an ongoing pattern of
intentional conduct continuing well after the accident--a pattern certain
to harm the Eldridges' financial interests, while benefiting Waugh and the
other shareholders.




                                     -13-
      We realize that the bankruptcy court found that Waugh had been candid
with it, and that Waugh did not remove assets from the corporation in
violation of the Eldridges' rights.         While Anderson, 470 U.S. at 575,
underscores the great deference that is given to credibility findings such
as these, it also demonstrates that there is a limit to that deference when
"the story itself [is] so internally inconsistent or implausible on its
face that a reasonable factfinder would not credit it."          We conclude that
the   bankruptcy   court's   findings,   even   though   based    on   credibility
determinations, were clearly erroneous under the scope of review outlined
in Anderson.


      In sum, we are left with the "definite and firm conviction that a
mistake has been committed."      Id. at 573.     We hold that the bankruptcy
court's finding that Waugh did not act willfully and maliciously with
respect to the Eldridges was clearly erroneous, and we affirm the district
court's judgment holding that Waugh's contingent debt to the Eldridges was
not discharged in bankruptcy.


      A true copy.


            Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                     -14-
