                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


CAPITAL HAULING, INCORPORATED,           
                  Plaintiff-Appellee,
                 v.
DAVID HAROLD FORBES, SR.,
             Defendant-Appellant,                 No. 01-2329

                and
LUCILLE PATRICIA FORBES,
                            Defendant.
                                         
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                  Robert E. Payne, District Judge.
                    (CA-01-237, BK-98-39487)

                      Argued: September 25, 2002

                      Decided: September 17, 2003

  Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.



Reversed and remanded by unpublished per curiam opinion. Judge
Widener wrote a dissenting opinion.


                              COUNSEL

ARGUED: Richard Stephens Clinger, Richmond, Virginia, for
Appellant. Brian R.M. Adams, SPOTTS, FAIN, CHAPPELL &
ANDERSON, P.C., Richmond, Virginia, for Appellee. ON BRIEF:
2                     CAPITAL HAULING v. FORBES
Deanna H. Hathaway, SPOTTS, FAIN, CHAPPELL & ANDERSON,
P.C., Richmond, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   On August 31, 1998, pursuant to a warrant in debt filed by appellee
Capital Hauling, Inc., and after Lucille Forbes and appellant David
Forbes, Sr., failed to appear, the Richmond City General District
Court entered a default judgment against appellant. In appellant’s sub-
sequent bankruptcy proceeding, Capital Hauling contended that the
debt arising from the default judgment could not be discharged as it
arose from fraud. See 11 U.S.C. § 523(a)(2)(A); 11 U.S.C.
§ 523(a)(4). Capital Hauling moved for summary judgment, arguing
that the default judgment collaterally estopped appellant from litigat-
ing the issue of fraud. The bankruptcy court agreed with Capital Haul-
ing and granted summary judgment, and the district court affirmed.
Appellant now appeals.

   When determining whether collateral estoppel arises from a prior
state court judgment, federal courts apply the law of the state in
whose courts the prior judgment was entered. See In re Ansari, 113
F.3d 17, 19 (4th Cir. 1997). Under Virginia law, a default judgment
can create collateral estoppel, but all the requirements of collateral
estoppel must still be satisfied; in particular, "the factual issue sought
to be litigated actually must have been litigated in the prior action."
TransDulles Center, Inc. v. Sharma, 252 Va. 20, 22-23 (1996). In the
instant case, there is nothing in the record establishing that "testimo-
nial and documentary evidence was presented" in the state court pro-
ceeding, or that "proof was presented" of any kind as to whether
appellant committed fraud, or indeed that anything occurred at all at
the state court trial other than the entry of a money judgment. Id. at
24. Thus, for example, in TransDulles:
                       CAPITAL HAULING v. FORBES                      3
      [T]he tenant’s personal liability for rent and other charges,
      including attorney’s fees, under the lease actually was liti-
      gated in the prior action. Testimonial and documentary evi-
      dence was presented ex parte in the district court hearing.
      The circuit court record established that proof was presented
      in the district court through a bookkeeper for the landlord
      and through the landlord’s attorney, who presented the lease
      and other documents including an affidavit supporting the
      attorney’s fees claimed.

Id.

   Since there was no evidence that the issue of fraud was actually lit-
igated in the state court proceeding, the bankruptcy court erred by
finding that appellant was collaterally estopped from litigating this
issue, and hence we reverse the grant of summary judgment.

                                       REVERSED AND REMANDED

WIDENER, Circuit Judge, dissenting:

  I respectfully dissent.

   Because the majority opinion does not mention facts critical to the
outcome in this case, a brief recount of them is in order. Defendant
David H. Forbes served as stockholder, director, and president of
Capital Hauling until 1998. JA 7. David Forbes’s wife and co-
defendant, Lucille Patricia Forbes, served as secretary of Capital
Hauling. JA 8. On April 3, 1998, Capital Hauling filed a civil warrant
in debt for $15,000 in the Richmond City General District Court
charging the Forbes with conversion of corporate funds, breach of
fiduciary duty, and fraud. JA 64. The return date on the warrant was
set for May 19, 1998. JA 64.

   The Forbes appeared on May 19, 1998, denied the claims asserted
by Capital Hauling, and requested trial. JA 29 & 64. The case was set
for trial for August 31, 1998 at 1:00 p.m. JA 64. The state court
ordered Capital Hauling to file a bill of particulars and the Forbes to
file grounds of defense within 21 days. JA 64. Although Capital Haul-
4                     CAPITAL HAULING v. FORBES
ing filed its bill of particulars on June 9, 1998, consisting of 17 pages
including exhibits (JA 64; 34-38), the Forbes did not file grounds of
defense. (JA 64)

   On August 31, 1998, the state court called the case for trial at 1:00
p.m. When the Forbes failed to appear as scheduled, the state court
entered judgment against them at 1:15 p.m. for $15,000, the sum sued
for. JA 64. Forbes acknowledges that the state court default judgment
was entered prior to their arrival at court an hour and a half after the
scheduled trial. Blue br. p. 3. The Forbes filed a motion for rehearing,
which the general district court denied on September 9, 1998. JA 64
& 29. The Forbes did not appeal and the judgment became final.

   On December 22, 1998, the Forbes filed for Chapter 13 bankruptcy
protection in the United States Bankruptcy Court for the Eastern Dis-
trict of Virginia. JA 6. On April 20, 2000, on petition by the Forbes,
the bankruptcy court converted the filing into a Chapter 7 bankruptcy
proceeding. JA 5.

   On July 21, 2000, Capital Hauling filed a complaint to determine
dischargeability of debt. Capital Hauling maintained that the state
court judgment on the warrant in debt was exempted from bankruptcy
discharge pursuant to 11 U.S.C. § 523(a). JA 7. On March 12, 2001,
the bankruptcy judge relied on the bill of particulars and granted Cap-
ital Hauling’s motion for summary judgment as to David Forbes,
holding that the judgment on the warrant in debt was excepted from
bankruptcy discharge pursuant to 11 U.S.C. § 523(a)(2)(A) and
§ 523(a)(4). JA 3, 73-76. The bankruptcy court, however, denied Cap-
ital Hauling’s motion as to Mrs. Forbes. JA 73, 76. On appeal the dis-
trict court affirmed the decision of the bankruptcy court in all
respects. JA 111. David Forbes filed his notice of appeal on Novem-
ber 6, 2001. JA 113.

   In my opinion the state court judgment on the warrant in debt
obtained by Capital Hauling against the Forbes was based solely on
nondischargeable causes of action, conversion and fraud by a corpo-
rate officer. While the "basis of this claim" stated in the warrant in
debt initiating the suit was "conversion of corp. funds; breach of fidu-
ciary duty; fraud," JA 64, the bill of particulars filed by Capital Haul-
ing on June 9, 1998, stated claims only for fraud and conversion by
                      CAPITAL HAULING v. FORBES                         5
a corporate officer. JA 34-38. Capital Hauling attached to the bill of
particulars corroborating exhibits A through G containing the direc-
tors’ resolutions and subscription lists for capital stock, illustrating
that Capital Hauling was asserting a fraud charge in the bill of partic-
ulars. JA 39-50.

   A bill of particulars has been a pleading in Virginia for some 52
years. "All bills of particulars and motions in writing are pleadings."
Miller v. Grier S. Johnson, Inc., 62 S.E.2d 870, 875 (Va. 1951) (quot-
ing Rules of Court). As a pleading, a proper function of a bill of par-
ticulars is to "limit the issues and narrow the proofs." Eubank v.
Spencer, 128 S.E.2d 299, 301 (Va. 1962). A bill of particulars "en-
able[s] the parties to prepare more intelligently for trial and prevent
surprise, by limiting them to proof of the particular matters therein set
out." West v. Anderson, 42 S.E.2d 876, 880 (Va. 1947). Accordingly,
when the state court trial judge called the case for trial, only the fraud
and conversion claims were asserted against the Forbes because the
initial warrant in debt had been limited by the bill of particulars which
omitted the claim for breach of fiduciary duty. In fact, David Forbes
concedes in his brief to this court that the bill of particulars states a
claim for fraud. See Forbes Initial Br. at 3 ("Capital Hauling subse-
quently filed a bill of particulars alleging fraud on the part of Forbes
and Lucille P. Forbes."). Forbes’ admission acknowledges that the bill
of particulars narrowed the complaint, and therefore the state court
action on the warrant in debt was limited to claims for fraud and con-
version by an officer of a corporation.

   In a negligence case with facts similar to those present here, one
of the defendants, although served with process, did not file respon-
sive pleadings. The effect of the failure was described by the Virginia
Supreme Court as follows:

     The failure of Million to plead responsively to the plaintiff’s
     motion for judgment was an admission that the plaintiff was
     entitled to recover some damages from him. Inherent in that
     admission was the acknowledgment by Million of the negli-
     gence charged against him as proximately causing the colli-
     sion and the concession that the deceased was free of
     contributory negligence.
6                     CAPITAL HAULING v. FORBES
       Thus, under the circumstances of this case, the only issue
     before the trial court when it acted upon the plaintiff’s
     motion for default was the amount of damages to be
     awarded . . . .

Funkhouser v. Million, 161 S.E.2d 725, 729 (Va. 1968). The effect of
the Forbes’ failure to file responsive pleadings and to appear in this
case must be the same as the failure to file responsive pleadings in the
Funkhouser case. Like the plaintiff in Funkhouser, the Forbes have
admitted the charges asserted in the default judgment action and a
valid judgment based on fraud and conversion has been entered.

   As to the effect of the judgment on subsequent proceedings, the
Virginia Supreme Court has refused to create a blanket exemption for
default judgment in collateral estoppel cases. In Transdulles, the Vir-
ginia Supreme Court stated that "a final default judgment ‘imports
absolute verity, and is as effectual and binding as if pronounced upon
a trial upon the merits.’" 472 S.E.2d at 276. The Transdulles court
held that collateral estoppel was applicable to the default judgment in
question, and the Transdulles defendant was precluded from contest-
ing liability based on a default judgment entered against him in a prior
proceeding. Transdulles, 472 S.E.2d at 275-76.

    While the majority takes the position that in order for the case to
be actually litigated, the record must show that "‘testimonial and doc-
umentary evidence was presented’" or "‘proof was presented’" of any
kind," slip, p. 2, or something "other than the entry of a money judg-
ment," slip, p. 2, occurred in the state court trial, an issue is actually
litigated and collateral estoppel applies if a party had a "full and fair
opportunity to litigate" the issue and the issue was determined by a
court. Allen v. McCurry, 449 U.S. 90, 95 (1980) (emphasis added);
see also In re McNallen, 62 F.3d 619, 624 (4th Cir. 1995). Transdul-
les rejects the argument that the holding in Horton v. Morrison, 448
S.E.2d 629 (Va. 1994), adopted a blanket exemption for collateral
effect of default judgments. The Transdulles court distinguished Hor-
ton because the question of Horton’s negligence became moot when
the claim made against Morrison by the passenger of Horton’s vehicle
was dismissed with prejudice, and therefore, Morrison’s claim for
contribution against Horton became moot. Accordingly, the issue of
Horton’s negligence was not decided by the default judgment. Trans-
                       CAPITAL HAULING v. FORBES                         7
dulles, 472 S.E.2d at 276-77. While it is certainly true that the taking
of evidence on a question may tend to show that the question is liti-
gated, it is just as true that the fact that the default judgment in Trans-
dulles was entered after the entry of testimonial and documentary
evidence does not mean that taking of evidence is required to give
default judgments preclusive effect. Cf. Hagans v. Lavine, 415 U.S.
528, 533-35, n.5 (1974) (the fact that a thing has been done in litiga-
tion is not authority for the proposition that it must be done).

    In Transdulles, the Virginia Supreme Court explicitly rejected the
view espoused by the Restatement (Second) of Judgments that default
judgments are not actually litigated. Transdulles, 252 Va. at 23. The
Virginia court stated, "We do not agree with the . . . view typified by
the Restatement comment" that "in ‘the case of judgment entered by
. . . default, none of the issues is actually litigated.’" Transdulles, 252
Va. at 23 (quoting Restatement Second of Judgments, § 27 cmt. e).
By explicitly rejecting the view of the Restatement, the Virginia
Supreme Court has certainly accepted and all but explicitly adopted
the full and fair opportunity definition of actually litigated used by the
United States Supreme Court. Thus collateral estoppel should apply
to this default judgment since the parties had a full and fair opportu-
nity to litigate the issue. As noted, Forbes even admits in his brief in
this court the bill of particulars alleged fraud. See Brief at 3. See
Allen v. McCurry, 449 U.S. at 95. The majority, however, uses a view
of default judgments much like that of the Restatement, which was
rejected in Transdulles, to hold that this case was not actually liti-
gated.

   The position advanced by the majority calls into question the final-
ity and certainty of a default judgment and contrary to Virginia law
does not afford default judgments the same dignity and respect given
to other judicial proceedings. David Forbes was provided a full and
fair opportunity to litigate the issues in question, and he should not
be permitted to argue that the issues were not litigated because he
failed to avail himself of the opportunity.

   Therefore, the only other issue left for resolution in this case is
whether the basis of the debt—i.e. grounded on dischargeable or non-
dischargeable acts—was actually litigated. Transdulles, 472 S.E.2d at
275. The warrant in debt, which was originally issued on the theory
8                       CAPITAL HAULING v. FORBES
of three causes of action, was subsequently limited to two causes of
action by the bill of particulars stating claims only for fraud and con-
version by a corporate officer. Therefore, when the Virginia general
district court judge decided the case, judgment could only have been
based on either conversion or fraud. Unlike mere breach of fiduciary
duty which may be a dischargeable act only under certain circum-
stances, see R.E. Am. v. Garver (In re Garver), 116 F.3d 176, 178-80
(6th Cir. 1997) (concluding that common law breach of fiduciary
duty, without more, insufficient to preclude discharge of debt under
§ 523(a)(4)); Fowler Bros. v. Young (In re Young), 91 F.3d 1367,
1372 (10th Cir. 1996) (stating that breach of "general fiduciary duty
of confidence, trust, loyalty, and good faith . . . [in]sufficient to estab-
lish a fiduciary relationship for purposes of dischargeability"), judg-
ments based on such fraud or conversion, as here, are both
nondischargeable under the bankruptcy code. 11 U.S.C. § 523(a)(4)
(stating "fraud or defalcation while acting in a fiduciary capacity,
embezzlement, or larceny" not dischargeable); 11 U.S.C.
§ 523(a)(2)(A) (exempting money or property obtained by false pre-
tenses from discharge). Because the judgment could have been based
only on conversion or fraud by a corporate officer, both of which are
nondischargeable in bankruptcy, the question of whether the debts are
based on nondischargeable acts has been actually litigated in the prior
state proceedings.

   Especially when we consider that 945,810 civil cases were filed in
the General District Courts in Virginia in 2002,1 the reason is patent
for the rule of the Supreme Court of the United States that a "full and
fair opportunity to litigate" is the equivalent of actual litigation, and
the corresponding and similar rejection by the Supreme Court of Vir-
ginia of the Restatement rule that "[i]n the case of a judgment entered
by . . . default, none of the issues is actually litigated." While I do not
suggest that all of the 945,810 cases in the General District Courts
end up in the bankruptcy and district courts of the United States, a
significant number of them do, as all of us know. People who seek
the protection of the bankruptcy laws are people who have judgments
against them. A re-trying of a significant number of those cases under
the procedure required by the majority decision would destroy much
of the efficacy of default judgments which have been upheld by both
    1
     Virginia, State of the Judiciary Report, 2002.
                       CAPITAL HAULING v. FORBES                       9
of those courts of last resort in, e.g., Riehle v. Margolies, 279 U.S.
218 (1929); Transdulles, 472 S.E.2d at 276; Neal v. Utz, 75 Va. 480,
488 (1881).

   Especially when a case is handled as carefully as this one was by
the judge of the General District Court,2 no reason is suggested to reli-
tigate the judgment.

  Even the quotation on page 3 of the slip opinion of the majority is
not a complete quotation and omits the holding of the case which is
entirely consistent with my dissent. The omitted part of the majority’s
quotation follows:

      We disagree with the tenant’s argument that before an issue
      may be "actually litigated" in a court proceeding, the defen-
      dant must personally appear at the hearing and contest the
      matter. Indeed, this Court has said that a final default judg-
      ment "imports absolute verity, and is as effectual and bind-
      ing as if pronounced upon a trial upon the merits." [citing]
      Neale v. Utz, 75 Va. 480, 488 (1881). (Italics added.)
  2
   Even the suggestion by Forbes as to the ascertainment of damages,
which is not contested, Brief, p. 10, seems to have been followed by the
General District Court judge. See Rule 7B:9(c) of General District Court
Civil Rules.
