      Case: 15-40926          Document: 00513429799    Page: 1    Date Filed: 03/18/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                          No. 15-40926
                                                                                   Fifth Circuit

                                                                                 FILED
                                        Summary Calendar                   March 18, 2016
                                                                            Lyle W. Cayce
In the matter of: JAMES ROBERT WHITAKER,                                         Clerk


                Debtor

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

JAMES ROBERT WHITAKER,

                 Appellant

v.

MORONEY FARMS HOMEOWNERS' ASSOCIATION,

                 Appellee




                      Appeal from the United States District Court
                           for the Eastern District of Texas
                                USDC No. 4:14-CV-700


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*




        *Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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      In this pro se appeal, James Robert Whitaker challenges the bankruptcy
court’s conclusion, affirmed on appeal by the district court, that some of his
debts are non-dischargeable under 11 U.S.C. § 523(a)(4). We find no reversible
error in the well-reasoned opinions of those two courts and affirm.
                                  BACKGROUND
      The debt that Whitaker seeks to discharge stems from his role as the
president and director of the Moroney Farms Homeowners’ Association
(“HOA”) from January 2006 to July 2007. During this time, a homeowner
properly requested documents from the HOA. Whitaker fought the request
and incurred substantial attorneys’ fees and litigation expenses on behalf of
the HOA.     Separately, he received money as a personal benefit from a
contractor who was performing work for the HOA and also had the HOA
reimburse him for personal expenses.
      Citing these three episodes, the HOA sued Whitaker for breach of
fiduciary duty in the 296th District Court in Collin County, Texas. The state
court held a multi-day trial and found Whitaker liable.        The state court
published findings of fact and conclusions of law and entered a judgment of
over $30,000.
      Whitaker filed a petition for chapter 7 bankruptcy in January 2010.
Among his debts was the state court judgment.         The HOA filed a timely
adversary proceeding objecting to the discharge of that debt. The bankruptcy
court held a trial on the issue of dischargeability and ruled that the debt was
non-dischargeable. Whitaker appealed to the district court, which affirmed.
Whitaker now appeals to this court.
                                   DISCUSSION
      In this appeal, we review questions of law de novo and factual findings
for clear error. See Gupta v. E. Idaho Tumor Inst., Inc. (In re Gupta), 394 F.3d
347, 349 (5th Cir. 2004).
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                                 No. 15-40926
      The bankruptcy court barred Whitaker from relitigating the essential
facts of his state court action in the dischargeability proceeding. We begin with
Whitaker’s complaints about the bankruptcy court’s application of collateral
estoppel.
      In an adversary proceeding under § 523(a)(4), a bankruptcy court may
apply collateral estoppel “to preclude religitation of state court findings that
are relevant to dischargeability.”     Id. (citing Schwager v. Fallas (In re
Schwager), 121 F.3d 177, 181 (5th Cir. 1997)). Here, the bankruptcy court
correctly applied Texas’s rules of preclusion because the preclusive judgment
is from a Texas court. Thus, to have preclusive effect: 1) “the facts sought to
be litigated in the second action” must have been “fully and fairly litigated in
the prior action,” 2) those facts must have been “essential to the judgment in
the first action,” and 3) the parties (in the second action) must have been “cast
as adversaries in the first action.”     Schwager, 121 F.3d at 181 (quoting
Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984)).
      Whitaker first seems to argue that the bankruptcy court did not apply
Texas’s rules of preclusion to this case. This argument is without merit; the
bankruptcy court applied the proper rules.
      Whitaker next argues that the bankruptcy court erred in finding that
the facts were “fully and fairly litigated.” However, the state court held a
multi-day trial and admitted witness testimony and exhibits. The state court
published a written, reasoned opinion containing findings of fact and
conclusions of law. Furthermore, the testimony before the bankruptcy court
more than established “record evidence” that “the state court conducted a
hearing in which [Moroney Farms] was put to its evidentiary burden.”
Pancake v. Reliance Ins. Co. (In re Pancake), 106 F.3d 1242, 1245 (5th Cir.
1997). These procedures constituted a full and fair litigation of the facts.


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                                    No. 15-40926
          The bankruptcy court also correctly found that the facts to be precluded
were essential to the state court judgment. The state court made “specific,
subordinate, factual findings” on an issue identical to the dischargeability
issue: the source of Whitaker’s fiduciary duty to the HOA and whether
Whitaker knowingly breached that duty. See Raspanti v. Keaty (In re Keaty),
397 F.3d 264, 273 (5th Cir. 2005).
          Finally, there is no question that Whitaker and Moroney Farms were
cast as adversaries in the state court action. In sum, the bankruptcy court
correctly found the state court judgment against Whitaker to have preclusive
effect.
          Next, we consider whether Whitaker’s debt to Moroney Farms is non-
dischargeable under 11 U.S.C. § 523(a)(4) because it stems from “fraud or
defalcation while acting in a fiduciary capacity.”
          Whitaker’s status as a fiduciary is a question of federal law. Gupta,
394 F.3d at 350.       But federal law will recognize state laws as creating a
fiduciary relationship. See Shcolnik v. Rapid Settlements Ltd. (In re Shcolnik),
670 F.3d 624, 628 (5th Cir. 2012). Texas has such a law: The directors and
officers of a nonprofit corporation (such as the HOA) must discharge their
duties “in good faith, with ordinary care, and in a manner the director
reasonably believes to be in the best interest of the corporation.” Tex. Bus.
Orgs. Code §§ 22.221(a), 22.235(a); see also FNFS, Ltd. v. Harwood (In re
Harwood), 637 F.3d 615, 620 (5th Cir. 2011) (“Under Texas law, corporate
officers and directors owe fiduciary duties to the corporations they serve . . . .”).
The provisions of Texas law that Whitaker cites as eliminating his fiduciary
status do no such thing. Those provisions merely align the fiduciary duties of
nonprofit directors with those of directors in for-profit corporations. The state
court found and Whitaker does not dispute that he was a director and officer
of the HOA. Thus, Whitaker was a fiduciary under federal law.
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                                 No. 15-40926
      Defalcation is the neglect of a fiduciary duty. Shcolnik, 670 F.3d at 628.
The Supreme Court recently clarified that the state of mind necessary to prove
defalcation is “one involving knowledge of, or gross recklessness in respect to,
the improper nature of the relevant fiduciary behavior.”             Bullock v.
BankChampaign, N.A., 133 S. Ct. 1754, 1757 (2013). The state court concluded
that Whitaker breached his fiduciary duties to the HOA when he:
1) “knowingly incur[ed] attorney’s fees and litigation and settlement expenses
on behalf of the [HOA] to oppose a homeowner’s proper request for association
documents,” 2) “knowingly sought and received money from the [HOA] for
reimbursement of personal expenses,” and 3) “knowingly sought and received
money as a personal benefit from a third party contractor that was performing
work paid for by the [HOA].” See Tex. Soc. v. Fort Bend Chapter, 590 S.W.2d
156, 164 (Tex. Civ. App.—Texarkana 1979, no pet.) (“[T]he [longstanding] law
in this State [is] that a corporate fiduciary may not derive a personal benefit
in dealing with the corporation’s funds or its property.”). In sum, Whitaker
knowingly neglected his fiduciary duties and thus committed acts of
defalcation.
      The bankruptcy court and district court correctly concluded that
Whitaker was a fiduciary under federal law and that he committed acts of
defalcation while acting in that capacity. Thus, those courts correctly found
his debts to the HOA non-dischargeable under § 523(a)(4).
      For the foregoing reasons, the judgment is AFFIRMED.




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