     Case: 16-11512      Document: 00514040040         Page: 1    Date Filed: 06/20/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fif h Circuit
                                      No. 16-11512                                 FILED
                                                                               June 20, 2017

In the Matter of: DENNIS H. BIRENBAUM,                                        Lyle W. Cayce
                                                                                   Clerk
              Debtor

BRIAN O'GRADY, M.D.; THE O'GRADY FAMILY PARTNERSHIP,
LIMITED,

              Appellants

v.

DENNIS BIRENBAUM, M.D.,

              Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CV-1898


Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This is a bankruptcy dispute between two doctors. Dr. Brian O’Grady, a
neurosurgeon, lent $1,000,000 to Dr. Dennis Birenbaum, an oncologist,
without ever having met him. Dr. Birenbaum failed to repay, then filed for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-11512    Document: 00514040040     Page: 2   Date Filed: 06/20/2017



                                 No. 16-11512
bankruptcy protection. Dr. O’Grady intervened in Dr. Birenbaum’s bankruptcy
proceeding and objected to the discharge of the $1,000,000-plus debt owed to
him, claiming that it was obtained by fraud and therefore exempt from
discharge. After a three-day evidentiary hearing, the bankruptcy court
disagreed and overruled Dr. O’Grady’s objection to discharge. The district court
summarily affirmed. We affirm as well.
      Dr. Birenbaum founded, owns, and operates a Dallas-area cancer center
called Texas Hematology/Oncology Center, P.A. (“THOC”). In 2006, THOC
found itself in dire financial trouble, operating at a net loss and showing a
stockholders’ equity of negative $6,500,000. In Dr. Birenbaum’s words, THOC
“desperately needed money.” Dr. Birenbaum enlisted the help of a financial
consultant named David Miller.
      In early 2007, Miller approached Dr. O’Grady to seek his investment in
THOC. Miller knew Dr. O’Grady, having previously advised Dr. O’Grady on
financial matters. Dr. O’Grady had significant cash from the sale of his
investment in a surgical center. Miller brought with him a package of
information that he had compiled relating to THOC’s finances. What
documents were included and whether they painted an accurate financial
picture of THOC are subject to dispute. Dr. O’Grady centers some of his fraud
claims on alleged inaccuracies and omissions in this information.
      After reviewing the information, Dr. O’Grady signed a contract
presented to him by Miller called an “Art Purchase Agreement”—the peculiar
instrument creating the debt at the heart of this dispute. Under the Art
Purchase Agreement, Dr. O’Grady was immediately obligated to pay
$1,000,000 to Dr. Birenbaum and THOC. After 90 days, Dr. O’Grady would
then have the option either (A) to purchase certain art owned by Dr.
Birenbaum for an additional $150,000, or (B) to receive his $1,000,000 back
along with an additional $150,000. The Agreement calls the upfront $1,000,000
                                       2
    Case: 16-11512     Document: 00514040040      Page: 3   Date Filed: 06/20/2017



                                  No. 16-11512
“earnest money” and the $150,000 additional return if Dr. O’Grady chose not
to purchase the art “liquidated damages.”
      The Agreement contains a section titled “Representations and
Warranties of Seller,” stating that “Sellers represent and warrant that they
own the Art free and clear of all debts and encumbrances, and that the security
interest of Buyer will be a first lien position.” It also states that “Buyer may
fully rely upon the representations, warranties, and covenants made to Buyer
in this Agreement and on the accuracy of any document, certificate, or other
instrument given or delivered to Buyer pursuant to this Agreement.” Despite
this representation, Dr. O’Grady offered evidence that the art in question was
subject to a lien in favor of a company called Siemens Financial Services, Inc.
(“Siemens”) at the time of the Agreement.
      On the same day, Dr. O’Grady also executed a “Security Agreement” that
purported to create a lien in favor of Dr. O’Grady on all of Dr. Birenbaum’s
“[a]rt, accounts, accounts receivable, equipment, general intangibles, goods,
fixtures,   health   care   insurance    receivables,   inventory,   instruments,
investment property, and the proceeds thereof.” Dr. O’Grady never recorded or
otherwise perfected this “lien.” That Security Agreement included the
provision that “Debtors agree not to . . . [s]ell, transfer, or encumber any of the
Collateral, except in the ordinary course of Debtor’s business.” Despite this
representation, Dr. O’Grady offered evidence that Dr. Birenbaum was
negotiating with a company called TAC to sell some of the artwork around the
same time that Miller solicited Dr. O’Grady; that negotiation eventually
resulted in a final sale of some of the art.
      After Dr. O’Grady had executed the Art Purchase Agreement, a
$1,300,000 judgment was entered against Dr. Birenbaum in an unrelated
contract action, and within a week of that judgment, that plaintiff applied for


                                         3
     Case: 16-11512       Document: 00514040040         Page: 4     Date Filed: 06/20/2017



                                       No. 16-11512
turnover of THOC stock. Dr. O’Grady now bases his fraud claim in part on Dr.
Birenbaum’s failure to disclose this fact to him.
       Pursuant to the Agreement, Dr. O’Grady transferred $1,000,000 to Dr.
Birenbaum. Thereafter, to make an informed decision whether to exercise his
option to buy the art, Dr. O’Grady looked up art valuation on the internet,
called some storage facilities, spoke with his art collector friends, and spoke
with the appraisers who had evaluated Dr. Birenbaum’s art collection.
Ultimately, he settled on declining the option to purchase the art and instead
asked for his $1,000,000 back (plus the additional $150,000). Dr. Birenbaum
and THOC have not paid any of the $1,150,000 due to Dr. O’Grady under the
Agreement. 1
       Dr. O’Grady sued Dr. Birenbaum and THOC in Texas state court and
obtained injunctions against them from selling any of the art. However, while
that state-court action was pending, Dr. Birenbaum filed for Chapter 7
bankruptcy protection—the case currently before the court. Dr. O’Grady
intervened and filed a proof of unsecured claim with the bankruptcy court. 2 He
then filed an adversary complaint seeking a determination that the $1,150,000
owed to him was excepted from discharge under 11 U.S.C. § 523(a)(2)(A) & (B),
two provisions making nondischargeable debt resulting from fraud. Dr.
Birenbaum denied any fraud.




       1 Dr. O’Grady may have been partially compensated for this loss through settlements
reached in other lawsuits against Dr. O’Grady’s own financial advisor and Dr. Birenbaum’s
accountant. One of Dr. Birenbaum’s arguments in the bankruptcy court was that these
collateral sources of compensation offset any nondischargeable debt he owed. However, the
bankruptcy court did not reach the issue, and neither do we.
        2 Previously, Dr. O’Grady had intervened in THOC’s Chapter 11 bankruptcy

proceeding and filed a proof of secured claim, but the bankruptcy court ruled that Dr. O’Grady
did not possess a valid lien on the artwork. In the instant case, Dr. Birenbaum’s personal
bankruptcy, Dr. O’Grady recognizes that he is bound by that prior judgment and asserts only
an unsecured claim.
                                              4
     Case: 16-11512        Document: 00514040040          Page: 5     Date Filed: 06/20/2017



                                        No. 16-11512
       After hearing the testimony of three witnesses—the doctors themselves
and Dr. Birenbaum’s accountant—over three days, the bankruptcy court found
that neither exception applied to bar discharge. Dr. O’Grady appealed to the
district court, which summarily affirmed. He timely appealed to this court.
       “Generally, a bankruptcy court’s findings of fact are reviewed for clear
error and conclusions of law are reviewed de novo.” 3 “However, for a ‘mixed
question of law and fact,’ the ‘factual premises’ are reviewed for clear error but
the ultimate ‘legal conclusion’ is reviewed de novo.” 4
       Upon careful review of the record, the findings of the bankruptcy court,
the applicable law, and the arguments of the parties, we detect no clear error
in the bankruptcy court’s rejection of Dr. O’Grady’s claims. For that reason, we
affirm the judgment of the district court, which in turn affirmed the judgment
of the bankruptcy court.




       3  In re Renaissance Hosp. Grand Prairie Inc., 713 F.3d 285, 294 (5th Cir. 2013)
(quoting In re Gerhardt, 348 F.3d 89, 91 (5th Cir. 2003)).
       4 Id. (quoting Whitehouse Hotel Ltd. P’ship v. C.I.R., 615 F.3d 321, 333 (5th Cir. 2010)).

                                               5
