      Case: 14-50023             Document: 00512912879    Page: 1   Date Filed: 01/23/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                          No. 14-50023                   United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
In the Matter of: BARRY JOE PLEDGER,                                      January 23, 2015
                                                                           Lyle W. Cayce
                                              Debtor                            Clerk

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

RATLIFF READY-MIX, L.P.,

                                              Appellant

v.

BARRY JOE PLEDGER,

                                              Appellee


                      Appeal from the United States District Court
                           for the Western District of Texas
                                USDC No. 6:13-CV-377


Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit
Judges.

EDITH H. JONES, Circuit Judge:*
        Barry Joe Pledger (“Pledger”) filed for Chapter 7 Bankruptcy and
attempted to discharge a debt that was owed to Ratliff Ready-Mix, L.P.



        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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(“Ratliff”). Ratliff filed an adversary proceeding against Pledger, alleging that
the debt resulted from fraud or defalcation while acting in a fiduciary capacity
and was therefore nondischargeable pursuant to 11 U.S.C. § 523(a)(4). Ratliff
argued to the bankruptcy court that Pledger’s fiduciary duty to Ratliff arose—
and was subsequently breached—when Pledger misapplied funds as described
in the Texas Construction Trust Fund Statute (“Trust Fund Statute”). Tex.
Property Code § 162.031. Both the bankruptcy court and district court held
that 11 U.S.C. § 523(a)(4) did not render the debt nondischargeable because
Pledger’s use of the funds was covered by an affirmative defense in the Trust
Fund. We AFFIRM.
                               BACKGROUND
      Pledger is the former President and CEO of Pledger Construction
Company (“Pledger Construction”), which contracted with Ratliff between
March 6, 2009, and December 10, 2009, for the supply of concrete to be used in
Pledger Construction’s ongoing projects. Although their relationship spanned
dozens of projects, only three are at issue in this case: (1) the L-3
Communications project, (2) the Midway High School project, and (3) the Waco
High School project. Ratliff was paid in full for all other jobs.
      For the L-3 Communications project, Ratliff supplied Pledger
Construction with $230,940 worth of concrete.       Pledger Construction’s total
costs for the project, including the cost of the concrete, were $776,211. The
upstream general contractor on the project paid Pledger Construction
$952,850, the full contract amount for the L-3 Communications project.
      For the Midway High School project, Pledger Construction received from
Ratliff $73,473 worth of concrete.          Including the concrete, Pledger
Construction’s costs for the project were $331,340.        Pledger Construction
received the full contract amount of $372,890 from the general contractor.


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      For the Waco High School project, Ratliff provided $39,094 worth of
concrete. Pledger Construction’s total costs, including concrete, were $108,479.
Pledger Construction received full payment for the job in the amount of
$139,200.
      In sum, Pledger Construction took in $1,464,940 in revenue for the three
projects. The company also incurred $1,216,030 of costs. Had Ratliff been
paid, Pledger Construction would have made a gross profit of $248,910. But
Pledger Construction’s cost figures did not account for overhead, which
included    costs   like     vehicle   repairs,   telephone     bills,   and   employee
compensation. Nor did those figures capture the overall health of the company,
since many other projects had negative gross profits, even before overhead
costs were calculated. Financial statements showed that Pledger Construction
lost $584,567 for the twelve months that ended May 31, 2010, and $277,713 for
the twelve months that ended May 31, 2009. Due to mounting losses, Pledger
had difficulty paying all of the subcontractors, but he stated in his deposition
that he tried to make the best of a bad situation by paying as many
subcontractors as he could.
      Ultimately, all of the subcontractors besides Ratliff were entirely paid in
full. Ratliff remains unpaid for the L-3 Communications project and the high
school projects, but was paid in full for all other projects during the relevant
time period. Pledger stated that he knew he could not afford to pay all of the
subcontractors at once and determined that if anyone could temporarily
withstand a late payment, it would be a “big dog” like Ratliff. Ratliff released
all liens and bond claims related to the projects and allowed Pledger
Construction to convert the indebtedness into a promissory note that was
personally guaranteed by Pledger.
      Pledger’s personal finances forced him to file for Chapter 7 bankruptcy
protection in October of 2011.          Ratliff filed an adversary proceeding the
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following January to request that the debt be deemed nondischargeable under
11 U.S.C. § 523(a)(4) (non- dischargeability of debts for “for fraud or defalcation
while acting in a fiduciary capacity”). Ratliff asserted that the Trust Fund
Statute created Pledger’s fiduciary duty, the breach of which supported
nondischargeability under title 11.
      The bankruptcy court initially granted Ratliff’s partial summary
judgment motion on the nondischargeability claim, but upon reconsideration,
reversed its prior order and ruled in favor of Pledger.           Ratliff filed an
interlocutory appeal to the district court, which affirmed the bankruptcy court
and remanded. After the bankruptcy court entered a final judgment, Ratliff
appealed once again to the district court, which adopted its previous
interlocutory order as a final judgment and again affirmed the bankruptcy
court’s order. This timely appeal followed.
                          STANDARD OF REVIEW
       We review de novo a district court’s decision affirming a bankruptcy
court’s application of the law. Richmond Leasing Co. v. Capital Bank, N.A.,
762 F.2d 1303, 1307–08 (5th Cir. 1985). The facts in this case are undisputed.
                                 DISCUSSION
      Among the Bankruptcy Code’s exceptions to dischargeability of debts is
Section 523(a)(4), which prevents discharge of “any debt for fraud or
defalcation while acting in a fiduciary capacity, embezzlement, or larceny.”
11 U.S.C. § 523(a)(4).    “Defalcation includes the failure to produce funds
entrusted to a fiduciary, even where such conduct does not reach the level of
fraud.” In re Swor, 347 Fed.Appx. 113, 116 (5th Cir. 2009).
      The Trust Fund Statute is one way in which the relevant “fiduciary
capacity” under Section 523 may be created. In re Nicholas, 956 F.2d 110, 114
(5th Cir. 1992). The statute requires payments for construction contracts for
the improvement of real property to be treated as “trust funds.” Tex. Property
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Code § 162.001. The recipient of those funds is the “trustee,” and the
subcontractors to whom the funds are owed are the beneficiaries.            Id. at
§§ 162.001–003. Trustees, including the officers of companies, who misapply
trust funds may face criminal penalties. Id. at §§ 162.031–032. In Nicholas,
this court analyzed the statute and determined that the requirement of a trust
fund, with rules covering how the funds may be spent, “creates fiduciary duties
encompassed by 11 U.S.C. § 523(a)(4).” Nicholas, 956 F.2d at 114. But the
statute only creates a fiduciary duty to the extent that activity is wrongful
under the statute. Id. For purposes of Section 523(a)(4), a fiduciary duty only
arises if there is a simultaneous wrongful misapplication of funds.
      The statutory language defining a misapplication of funds was changed
in 1987. This court addressed the pre-amendment version of the statute in
Matter of Boyle, 819 F.2d 583 (5th Cir. 1987). At that time, Section 162.031(a)
stated that “a trustee who, with intent to defraud, directly or indirectly retains,
uses, disburses, or otherwise diverts trust funds without first fully paying all
obligations incurred by the trustee to the beneficiaries of the trust funds has
misapplied the trust funds.” Boyle, 819 F.2d at 586 (emphasis added). That
misapplication standard, however, was subject to an exception in Section
162.031(b), which exempted the use of “trust funds to pay the trustee's
reasonable overhead expenses that are directly related to the construction or
repair of the improvement.” In 1987, the statute was amended in two relevant
ways: (1) the scienter requirement was lowered from “intent to defraud” to
“intentionally or knowingly or with intent to defraud,” and (2) the “overhead”
exception was changed to an affirmative defense and the phrase “reasonable
overhead expenses” was changed to “actual expenses.” Tex. Property Code
§ 162.031. This court has had two occasions to address the changes to the
Texas statute.


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      In Nicholas, this court considered whether the lowering of the scienter
requirement also broadened the fiduciary responsibilities cognizable under the
bankruptcy code. In re Nicholas, 956 F.2d 110, 114 (5th Cir. 1992). This court
held in Boyle that the Texas statute only created fiduciary duties under Section
523 of the Bankruptcy Code to the extent that a trustee should not divert funds
with intent to defraud. Boyle, 819 F.d2 at 592. In Nicholas, a subcontractor
argued that the lowered scienter requirement had brought the Texas statute
in line with broader construction trust fund statutes in other states that had
been held to create a general, broad fiduciary duty. Nicholas, 956 F.2d at 113.
This court agreed with the subcontractor that the scienter requirement had
been lowered to encompass more activity within the statute. But the court also
recognized that the “overhead” exception had been changed to cover “actual
expenses,” thus “refining” the scope of coverage. Id. at 112. The “actual
expenses” language was interpreted as, at a minimum, continuing the Boyle
era understanding that contractors could spend money from one project on
another to keep the business going. The court also approvingly quoted the
bankruptcy court, which read the statute as asking whether the contractor had
diverted funds for his own use or some frivolous use not connected with the
operation of business. Id. at 114. The statute criminalized fewer activities
than other trust fund statutes with similar scienter requirements, and
therefore did not create a general fiduciary duty. This court held that the
statute continued to create a fiduciary duty only to the extent that funds are
misapplied, as defined in the statute.
      This court revisited the Texas statute in In re Swor, 347 Fed.Appx 113
(5th Cir. 2009). The Swors, a bankrupt contractor and his wife, had withdrawn
money from the business, claiming that they were repaying loans they had
made to the business. The Swors argued that loans were actual expenses
directly related to a project and were therefore exempted from the Trust Fund
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Statute. Noting that repayment was made at the Swors’ discretion, this court
determined that the loans were actually capital contributions.                 And
withdrawing capital contributions was not permissible under the statute,
because it is not an actual expense directly related to a project. Repaying one’s
investment is not an expense of a project at all, even indirectly. In that
scenario, withdrawing capital just guided the business towards its eventual
bankruptcy.
      Before reaching its legal conclusions in Swor, this court recognized that
under the Texas statute’s “actual expenses” exception, trust funds could be
spent on “expenses related to general business overhead.” Swor, 347 F. App’x
at 116. Though the reference to general overhead had no application in Swor,
it appears germane to this case.       Accordingly, Ratliff argues that Swor
incorrectly stated the law by improperly referencing the pre-amendment
version of the Texas statute when it cited Boyle and used the word “overhead,”
which had been removed from the statute. Ratliff contends that changing the
statute’s exception from “reasonable overhead expenses directly related to the
construction” to “actual expenses directly related to the construction” removed
overhead expenses from the scope of the exception to misapplying funds. That
is not the case. Swor, although an unpublished and non-precedential opinion,
correctly restated the law as Nicholas, a published opinion, interpreted it.
      Swor’s explanation that trust funds may be spent on general overhead
without liability was correct. First, Ratliff argues that the citation to Boyle
indicates that general overhead was once covered by the part (b) exception in
the statute, but that no longer holds true for the current “actual expenses”
affirmative defense. However, citing Boyle does not in and of itself indicate
that the principle no longer is correct and that Swor was mistaken. As was
stated in Nicholas, various aspects of Boyle’s statutory interpretation hold true
post-1987 amendment.       See, e.g., Nicholas, 956 F.2d at 113 (“[G]eneral
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contractors may use the payments they receive from construction projects to
keep those projects going…. What Boyle said still almost precisely describes
the Texas statute….”). Second, in Nicholas, this court explained that paying
for one project with the funds of another project to keep the business going fell
within “actual expenses directly related to a project” and was not a
misapplication of funds under the Trust Fund Statute. Id. If spending money
on a project can be actual expenses directly related to an entirely separate
project, then spending on general overhead for a single project surely must also
qualify as actual expenses directly related to that project. This is supported by
Nicholas’s recognition that the scope of activities that qualify as a Part (a)
misapplication and the scope of activities that fall under the Part (b)
affirmative defenses were expanded by the 1987 amendment.                      Therefore,
“actual expenses” includes overhead and additional categories not included in
the pre-1987 version of the statute. 1 Swor correctly noted that contractors may
“spen[d] on other projects or on expenses related to general business overhead”
without misapplying trust funds.
       But this court has never said that all spending on expenses incurred by
the company is automatically within the scope of the “actual expenses”
affirmative defense. Although this statute does not criminalize poor business
acumen or misfortune, it also does not absolve the contractor who forces a
subcontractor to be a creditor for something frivolous, like a luxury company



       1 This also comports with an opinion from the Texas Attorney General and a debate
in the Texas legislature. The Texas Attorney General stated that the change from
“reasonable overhead expenses” to “actual expenses” was meant to change the standard from
subjective to objective. It was not meant to narrow the exception. The Attorney General also
directly stated that overhead remained covered by 162.0031(b) after the amendment. Tex.
Atty. Gen. Op. JM–945 (1988). Similarly, Representative Jim Parker, the author of House
Bill No. 1160, stated on the House floor that payroll, vehicle expenses, and administrative
expenses were covered under the “actual expenses” language. Debate on H.B. 1160 on the
Floor of the House, 70th Leg., R.S. (May 30, 1987) (Point of Order—Tape 112, Side B)
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car. In Nicholas, we stressed the acceptability of diverting funds to keep
projects alive and approvingly quoted a bankruptcy court opinion that
distinguished between a contractor who diverts funds to keep the business
going and a contractor who “divert[s] funds for his own use.”                   Nicholas,
956 F.2d at 114. A purchase made in the name of a business may still be for a
contractor’s “own use,” resulting in a misapplication of funds, even if it is
technically overhead or a bill paid by the business.
      Therefore, under Nicholas, a creditor claiming Section 523(a)(4)
nondischargeability through the Texas Construction Trust Fund Statute must
show that (1) the contractor intentionally, knowingly, or with intent to defraud
diverted trust funds and (2) the affirmative defenses in the statute do not
apply. 2 To disprove the affirmative defense in this case, Ratliff had to establish
that the payments made by Pledger were not “actual expenses directly related
to the construction.” Specifically, Ratliff must show that (a) these were not
payments made on the project or overhead, or (b) they were made for Pledger’s
own uses rather than to benefit the health of his failing business.
      Because the parties agree that Pledger intentionally diverted trust funds
that should have gone to Ratliff for the L-3 Communications project and the
two high school projects, the scienter element is not at issue. The only issues
before us are whether Ratliff has proven that (a) these payments were not
made on other projects or overhead, or (b) they were made for Pledger’s own
uses rather than to benefit the health of his failing business, thus establishing
that the affirmative defense should not have applied.




      2  In the bankruptcy context, the burden is on the creditor to establish that an
affirmative defense is inapplicable—rather than on the debtor to establish that one is
applicable—because the creditor has the ultimate burden of proving that a debt falls within
the scope of 11 U.S.C. § 523(a)(4). Nicholas, 956 F.2d at 114.
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                                  No. 14-50023
      The parties represented to the bankruptcy court that there was no
factual issue in dispute. It is undisputed that the diverted funds were used to
“pay expenses such as telephone bills, salaries, and other overhead.”          As
already explained, Nicholas supports the inclusion of payments for overhead
under the “actual expenses” affirmative defense. These payments are all bills
for other projects or project overhead and are therefore covered by the
affirmative defense.
      Ratliff, however, also asserts that the financial records of the three
projects show that Pledger made unaccounted profits. Pledger’s records detail
the costs of each job and the estimated gross profit. The records for each project
do not account for overhead, so a positive gross profit does not mean that the
project actually made money. Pledger estimated that overhead for each project
was roughly an additional 30% of the costs of the job. Ratliff has added up the
costs of the L-3 and high school projects and pointed out that 30% of that
figure—an approximation of the overhead for those jobs—is less than the sum
of the estimated gross profit and money owed to Ratliff—Ratliff’s
approximation of the amount of money available to Pledger to pay bills. The
point of this arithmetic is to contend that Pledger must have pocketed some of
the money owed to Ratliff, since his overhead for the three projects was less
than the amount of money he obtained from them. But that inference is
unfounded.
      The fact that the money paid for the three projects at issue—including
the amount owed to Ratliff—exceeded the costs for those projects does not
mean that his other projects were similarly successful. In fact, the financial
records indicate that his company as a whole lost hundreds of thousands of
dollars in 2009 and 2010. There were plenty of other leaky holes to plug.
Therefore, that Pledger lined his pockets with Ratliff’s money does not logically
follow from the fact that the money available from the three projects exceeded
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                                 No. 14-50023
costs and estimated overhead. Pledger has maintained that all the money
went to paying the bills of the company resulting from overhead and general
business expenses and Ratliff has not introduced anything that conflicts with
that contention. Since Nicholas makes clear that a contractor may borrow from
healthy projects to support failing ones in order to keep the business going, all
of the transactions were of the type covered by the affirmative defense.
      Ratliff’s only hope would be to show that Pledger diverted the trust funds
for some reason other than the health of the company, even if the money went
through the company. But Ratliff has failed to meet that burden. It would be
hard to argue that paying taxes, repairing vehicles and equipment, and
compensating employees could be categorized as anything other than
maintaining the business. The only fact that cuts remotely in Ratliff’s favor
would be Ratliff’s assertion that Pledger made optional 401k payments for his
employees, which were unnecessary for the health of the company and
somehow called into question Pledger’s motivations. But Ratliff does not show
why they were optional or how that made them improper: 401k contributions
are like any other form of compensation an employer agrees to provide.
Pledger could have stopped making those contributions in the same way he
could have lowered salaries, but either course might have risked employee
resignations. Without more, it would seem any continued 401k contributions
would be for the health of the company.         Therefore, Ratliff has failed to
establish that trust funds were diverted for an improper use.
      Accordingly, Ratliff has not shown that the affirmative defense is
inapplicable to Pledger and the judgment of the bankruptcy court is
AFFIRMED.




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