ORDER

SUSAN WEBBER WRIGHT, District Judge.

Appellants Clear Sky Properties LLC ("Clear Sky") and LuAnn Deere ("Deere") commenced this adversary proceeding, seeking a determination that a judgment debt of Appellee Blake Roussel ("Roussel") is nondischargeable in bankruptcy under 11 U.S.C. §§ 523(a)(4) and 523(a)(6). Appellants appeal the final decision of the Bankruptcy Court,1 finding only a portion of Roussel's judgment debt nondischargeable.2 After careful consideration, and for the reasons that follow, the judgment of the Bankruptcy Court is reversed, and the case is remanded for further proceedings as provided in this order.

I. Standard of Review

In bankruptcy proceedings, a district court ordinarily acts as an appellate court, reviewing the bankruptcy court's legal conclusions de novo, and its findings of fact under the clearly erroneous standard. See In re Muncrief, 900 F.2d 1220, 1224 (8th Cir.1990). This Court may not reverse the Bankruptcy Court's factual findings unless after reviewing the record it is left with the "`definite and firm conviction that a mistake has been committed.'" In re Waugh, 95 F.3d 706, 711 (8th Cir. 1996) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)).

II. Background

The following facts are undisputed. In August 2006, Roussel and Deere formed Clear Sky, a member-managed limited liability company, for the purpose of opening an Exit Realty ("Exit") franchise in Conway, Arkansas. Exit's business model includes a "residual income" feature by which Exit real estate agents who bring new agents to the company earn a residual or percentage of the sales commissions earned by their recruits. Exit divides geographical areas into franchise territories, and only the owners of a given territory may open an Exit office within that territory. Exit mapped Conway for two franchise territories, hereinafter "Territory A" and "Territory B." On August 31, 2006, Deere and Roussel entered a franchise agreement covering Territory A.3

Roussel and Deere served as the sole members of Clear Sky, each owning fifty percent, and in September 2006 the company began doing business as Exit First Choice Realty ("Exit First Choice") in Territory A. Clear Sky's operating agreement set forth procedures governing the sale of members' ownership interests, and it provided that existing members would have a right of first refusal to buy a departing member's share.

In early 2007, Roussel proposed that he would sell his interest in Clear Sky to Rhonda Bletsh ("Bletsh") and Nathan Hutchins ("Hutchins"), licensed real estate agents who worked at the Exit First Choice office. Roussel's negotiations with Bletsh and Hutchins fell through, he offered to sell his interest to Deere, but she declined his offer.

In July 2008, Clear Sky moved the Exit First Choice office to a new building. Deere purchased the building with her own money, and she leased it back to Clear Sky. On July 31, 2008, Roussel presented Deere with a document titled "Consent to Sale of Membership Interests of Clear Sky Properties LLC," which provided that Roussel would sell one-third of his fifty percent interest to Bletsh and another one-third to Hutchins. However, the consent agreement was never executed, and Deere exercised her right of first refusal on August 28, 2008. Deere purchased two-thirds of Roussel's interest for $52,000, making her the majority owner of Clear Sky and leaving Roussel a sixteen percent share.

Unbeknownst to Deere, Roussel, Bletsh and Hutchins had plans to open another real estate office in Conway. On September 12, 2008, Roussel, Bletsh, and Hutchins filed articles of organization for Select Group Investments LLC. On October 8, 2008, Select Group Investments LLC, entered an Exit franchise agreement covering Territory B, and Roussel notified Deere by text message that he was opening another Exit real estate office, named Exit Realty Select, with Bletsh and Hutchins. After Deere received Roussel's message, she went to the Exit First Choice office and discovered that all data had been erased from the office computers. Deere also found files, monitors, signs, and lock boxes missing. Twelve real estate agents who worked for Exit First Choice and the office administrator followed Roussel to Exit Realty Select.

On February 13, 2009, Deere and Clear Sky filed a civil complaint against Roussel in the Circuit Court of Faulkner County Arkansas, alleging breach of fiduciary duty/breach of loyalty, fraud, breach of contract, and violation of the Arkansas Franchise Practices Act. The state court dismissed the fraud count, and the case proceeded to a jury trial on the breach of fiduciary duty claims and Deere's separate claim for breach of contract.

At trial, Roussel testified that before he opened Exit Realty Select with Bletsh and Hutchins, he and Deere shared the goal of expanding Exit First Choice's territory and purchasing Territory B, and he acknowledged that purchasing Territory B would prevent another Exit office from locating in Conway. Deere testified that she would never have exercised her option to purchase two-thirds of Roussel's fifty percent share if she had known that he had plans to open a competing Exit office in Conway.

Clear Sky and Deere presented evidence that after Roussel formed another LLC and opened Exit Realty Select, Clear Sky's commission revenues dropped, and Deere contributed $58,800 to Clear Sky. See ECF No. 1-10, at 140-144. Deere testified that she closed the Exit First Choice office in December 2010 to "stop the losses." ECF No. 1-21, at 470. The state court also admitted into evidence a list of personal property items totaling $1,480 that, according to Deere, were missing from the Exit First Choice office after Roussel announced that he was opening another office with Bletsh and Hutchins. See ECF No. 1-10, at 146-148.

The state court instructed the jury regarding Roussel's fiduciary duties as follows:

ECF No. 1-22, at 268-270. The state court further instructed that if the jury found in Clear Sky's favor, it should fix the amount of money that would compensate Clear Sky for the value of any lost income or property damage suffered as a result of Roussel's breach of fiduciary duty. With respect to Deere's damages, the court instructed jurors to consider the value of monetary harm or expense that Deere suffered as a result of the breach. See id., at 270.

The state court also instructed the jury regarding punitive damages, according to the standard set forth under Ark.Code Ann. § 16-55-206 and Arkansas Model Jury Instruction 2218, stating as follows:

Id. at 271-272.

The jury found that Roussel breached fiduciary duties to both Clear Sky and Deere. The jury awarded Clear Sky $300,000 in damages, which included $111,280.60 for past lost revenue, $73,403 for future lost revenue, $1,480 for damage to property, and $113,836.40 in punitive damages; and it awarded Deere compensatory damages in the amount of $58,800. The jury also found for Deere on her separate claim for breach of contract and awarded her $40,000. The trial court entered judgment in accordance with the jury's verdict and awarded Clear Sky and Deere $82,611.25 in attorney's fees and $4,912 in costs and expenses. See ECF No. 1, Attach. #9, at 87.

On July 11, 2011, Roussel and his wife filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code. Subsequently, Clear Sky and Deere initiated this adversary proceeding, seeking a determination that Roussel's judgment debt for breach of fiduciary duty5 is excepted from discharge under 11 U.S.C. §§ 523(a)(4) and 523(a)(6).

Employing the doctrine of collateral estoppel affirmatively, Appellants moved for summary judgment, arguing that the issues necessary for determining nondischargeability had been litigated and resolved in the state court action. Roussel filed a response in opposition to summary judgment, and he furnished the Bankruptcy Court an unedited copy of the state court record. The Bankruptcy Court denied Appellants' motion without deciding whether the state court findings were entitled to a preclusive effect. The order denying summary judgment states, in part, as follows:

ECF No. 1-28.

After denying Appellants' motion, the Bankruptcy Court held a two-day trial at which it heard evidence regarding the testimony and documentary evidence admitted during the during the state court jury trial. The Bankruptcy Court permitted additional testimony that was not part of the state court record on the ground that it was relevant to the show Roussel's state of mind. See ECF No. 1-38, at 27 (Tr. at 258). In its final order, the Bankruptcy Court summarized that additional testimony as follows:

In re Roussel, 483 B.R. 915, 921 (Bankr. E.D.Ark.2012).

The Bankruptcy Court determined that only a portion of Roussel's judgment debt — specifically, the $1,480 award to Clear Sky for property damage—is excepted from discharge under § 523(a)(4) and that the remainder of the debt is dischargeable in bankruptcy. Appellants appealed the Bankruptcy Court's judgment and elected to have the appeal heard by this court, pursuant to 28 U.S.C. § 158(c)(1)(A).

III.

The Bankruptcy Court's memorandum opinion does not clearly delineate findings regarding the application of collateral estoppel and the merits of Appellants' claims. However it is clear that, in addition to determining that the doctrine of collateral estoppel did not apply, the Bankruptcy Court assessed testimony that was not part of the state court record and made an independent determination as to whether Roussel's judgment debt is nondischargeable under §§ 523(a)(4) and 523(a)(6). On appeal, Appellants argue that the Bankruptcy Court failed to give the state court findings the preclusive effect required under the doctrine of collateral estoppel and erred in finding that Roussel's judgment debt, with the exception of the award for property damage, fails to qualify for an exception to discharge under §§ 523(a)(4) and 523(a)(6).

A. Section 523(a)(4)

Section 523(a)(4) of the Bankruptcy Code provides that "a discharge [in bankruptcy] does not discharge an individual debtor from any debt ... for ... defalcation while acting in a fiduciary capacity...." 11 U.S.C. § 523(a)(4). Nondischarge under § 523(a)(4) requires a showing of two elements: (1) the existence of a fiduciary relationship between the debtor and the objecting party and (2) a defalcation committed by the debtor in the course of that fiduciary relationship. See Jafarpour v. Shahrokhi (In re Shahrokhi), 266 B.R. 702, 707 (8th Cir. BAP 2001). Appellants argue that both elements were decided in their favor in state court action and that the Bankruptcy Court was bound, under the doctrine of collateral estoppel, to declare the state court judgment nondischargeable under § 523(a)(4).

Collateral estoppel applies in bankruptcy discharge proceedings to bar the relitigation of factual or legal issues that were determined in a prior state action. It is a "general and well-settled rule that a judgment, not set aside on appeal or otherwise, is equally effective as an estoppel upon the points decided, whether the decision be right or wrong." Reed v. Allen, 286 U.S. 191, 201, 52 S.Ct. 532, 534, 76 L.Ed. 1054 (1932) (citations omitted). The full faith and credit statute, 28 U.S.C. § 1738,6 requires federal courts to give the same preclusive effect to state court judgments as the state from which the judgment emerged. See In re Bullard, 449 B.R. 379, 384 (8th Cir. BAP 2011) (citations omitted). The elements of collateral estoppel in Arkansas are as follows: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. See id.

As the Bankruptcy Court acknowledged in its final order, it is undisputed that the following questions of state law were actually litigated and answered in the affirmative in the state court proceeding: (1) whether Roussel owed fiduciary duties to Clear Sky and Deere; (2) whether Roussel breached his fiduciary duties to Clear Sky and Deere; (3) whether Roussel's fiduciary breach was a proximate cause of damages to Clear Sky and Deere; and (4) whether Clear Sky was entitled to punitive damages as a result of Roussel's fiduciary breach. Without question, the foregoing issues were actually litigated in state court, and the determination of those issues was essential to a valid and final judgment. The critical question here is whether the elements necessary for nondischarge under § 523(a)(4) — that is, the existence of a fiduciary relationship and defalcation — are the same as the issues already determined in state court.

(1) Same Issue — Fiduciary Duty of Loyalty

Whether a fiduciary relationship exists for purposes of § 523(a)(4) is a question of federal law, and it has long been held that a debtor acts in a fiduciary capacity in the bankruptcy context only if he serves in a technical or express trust. See In re Cochrane, 124 F.3d 978, 984 (8th Cir.1997) (citing Lewis v. Scott, 97 F.3d 1182, 1185 (9th Cir.1996)). The statute "`speaks of technical trusts, and not those which the law implies from the contract.'" In re Nail, 680 F.3d 1036, 1039 (quoting Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 79 L.Ed. 393 (1934) and Chapman v. Forsyth, 43 U.S. 202, 208, 2 How. 202, 11 L.Ed. 236 (1844)). "It is not enough that, by the very act of wrongdoing out of which the contested debt arose, the bankrupt has become chargeable as a trustee ex maleficio. He must have been a trustee before the wrong and without reference thereto." Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 79 L.Ed. 393 (1934).

The rule that § 523(a)(4) applies only in cases of special or technical trusts, as opposed to implied or constructive trusts, prevents an expansive application of § 523(a)(4) that would except ordinary commercial debts from discharge in bankruptcy.7 The technical trust requirement does not, however, require the that debtor serve as a trustee under a formal trust agreement. See In re Hayes, 183 F.3d 162, 169 (2nd Cir.1999) ("Notably, the Court in Chapman spoke of "special trusts" not in the modern sense of a legal relationship where a party (the trustee) is the legal owner of property beneficially held on behalf of others, but more generally of the class of relationships in which special trust is bestowed upon a party.").

Federal law dictates the boundaries of § 523(a)(4), but fiduciary relationships satisfying the statute can be created by state statute, common law, or contract. See In re Thompson, 686 F.3d 940, 944 -945 (8th Cir.2012) (citing In re Long, 774 F.2d 875, 878 (8th Cir.1985)). For example, the Eighth Circuit has held that the attorney-client relationship, without more, constitutes a fiduciary relationship within the meaning of § 523(a)(4), see In re Cochrane, 124 F.3d 978, 984 (8th Cir.1997), and that a "statute or other state law rule may create fiduciary status in [a corporate] officer which is cognizable in bankruptcy proceedings." In re Long, 774 F.2d 875, 878 (8th Cir.1985). And in Laughter v. Speight, 16 F.3d 287 (8th Cir.1994), the Court of Appeals found that a state court judgment "rendered in the context of an accounting on dissolution of a partnership, was quite plainly based on a finding that the debtor had committed a defalcation in the context of a fiduciary relationship." Laughter, 16 F.3d at 287.

Here, the state court did not charge Roussel with fiduciary duties under a constructive or implied trust theory. The court instructed the jury that Roussel owed fiduciary duties to both Clear Sky and Deere at all relevant times,8 and the undisputed evidence established that Roussel was a member of Clear Sky before, during, and after he sold a portion of his Clear Sky interest to Deere and started another LLC and a competing Exit real estate office.

The state court instructed the jury that Roussel owed Clear Sky and Deere the duty of loyalty, meaning that he would "act in the best interest of the company and its members, while subordinating his personal interests to that of the company and its members, while serving actively with the company, or even after he [severed] his day-to-day relationship with the company." ECF No. 1-22, at 269 (State Tr. at 1406). The court further instructed that Roussel owed Clear Sky and Deere additional duties, which are generally deemed subsidiary to the duty of loyalty, including the duty not to compete against the LLC, the duty to deal fairly and honestly with the LLC and its members and disclose conflicts of interest, and the duty to refrain from action that might result in injury to the company or deprive it of profit or advantage.

In determining whether Roussel's duty of loyalty compared to the fiduciary requirement under § 523(a)(4), the Bankruptcy Court focused on the identity of a "definable res" and the nature of the damages awarded in state court. The Bankruptcy Court associated Clear Sky's award for lost revenue and Deere's award for monetary harm with the duty of loyalty, but it associated Clear Sky's award for property damage with the duty of care,9 a duty that was not referenced in the state court's jury instructions.

The Bankruptcy Court found that the duty of loyalty "is simply not the type of fiduciary duty to which § 523(a)(4) refers" and that "the jury award for breach of fiduciary duty regarding ... lost revenue... and the amount awarded to Deere for breach of fiduciary duty ... is dischargeable pursuant to § 523(a)(4)." In re Roussel, 483 B.R. 915, 923 (Bankr.E.D.Ark. 2012). Citing In re Nail, 680 F.3d 1036 (8th Cir.2012), the Bankruptcy Court reasoned that a fiduciary duty under § 523(a)(4) is created and defined by the property at issue and that Roussel's duty of loyalty was not associated with a "definable res." According to the Bankruptcy Court, it was bound to "look at the `res' and examine what the duties are." In re Roussel, 483 B.R. 915, 923 (Bkrtcy. E.D.Ark.2012). The Bankruptcy Court concluded that Appellants failed to point to a definable res associated with Roussel's duty of loyalty, stating as follows:

Id.

The Court finds that the Bankruptcy Court placed too much emphasis on a "definable res" requirement. The value of experienced employees, business opportunities, and expected future revenue contribute the goodwill of a company, which although intangible, qualifies as a business asset. The Court also disagrees that the Eighth Circuit's decision in In re Nail mandates that the existence of a fiduciary relationship in this case depends on the identification of a "definable res."

In the case of In re Nail, the Eighth Circuit considered whether a state statute imposed fiduciary duties for the purpose of § 523(a)(4). The statute in question prescribed the legal effect when a party to an assigned account in good faith pays an assignor rather than the unknown assignee, and it provided that "the assignor ... shall be a trustee of any sums so paid and shall be accountable and liable to the prior assignee thereof." In re Nail, 680 F.3d 1036, 1039 (8th Cir.2012)(quoting Ark.Code Ann. § 4-58-105(b)(2)). The Eighth Circuit noted that the so-called trust created by the statute had a "purely nominal existence" until the debtor failed to remit proceeds to the proper party and that the debtor was not a trustee "before the wrong and without reference thereto." In re Nail, 680 F.3d at 1041 (citing Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 79 L.Ed. 393 (1934)). Under those circumstances, the Eighth Circuit found that "the mere use of the word `trustee,' when viewed in the context of the statute as a whole, does not reflect a legislative intent to create the kind of express or technical trust required in the strict and narrow sense under § 523(a)(4)." Id.

In reaching its decision, the Court of Appeals noted: "[T]o meet the requirements of § 523(a)(4), a statutory trust must (1) include a definable res and (2) impose `trust-like' duties." Id. (citing Matter of Tran, 151 F.3d 339, 342-43 (5th Cir.1998)). But the requirement of a "definable res" with respect to a statutory trust merely serves to ensure that the alleged trust exists before and without reference to the wrong. Unlike In re Nail, this case does not involve a statutorily-created "trust" that imposes ex post facto trustee duties as a remedial measure in the context of an ordinary commercial transaction. The duty of loyalty owed by Roussel pre-existed and was independent of the wrongful conduct that gave rise to his judgment debt.10

"`An issue may be `actually' decided even if it is not explicitly decided, for it may have constituted, logically or practically, a necessary component of the decision reached in the prior litigation.'" In re Smith, 270 B.R. 544, 548 (Bankr.D.Mass. 2001) (citing Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30-31 (1st Cir. 1994)). In this case, the Court finds that Roussel's fiduciary duty of loyalty to Clear Sky and Deere, as determined by the state court, is equivalent to a finding that he acted in a fiduciary capacity as required under § 523(a)(4). Accordingly, relitigation of that particular issue is precluded under the doctrine of collateral estoppel.

(2) Same Issue — Defalcation

The second element required to find the state court judgment nondischargeable under § 523(a)(4) is that Roussel committed a defalcation while acting in his fiduciary capacity. Because the Bankruptcy Court found that Roussel's fiduciary duty of loyalty did not qualify as a fiduciary duty under § 523(a)(4), it never addressed whether Roussel's fiduciary breach amounted to a defalcation under § 523(a)(4).

The undisputed evidence presented in state court established that Roussel sold some of his interest in Clear Sky without informing Deere that he would compete with Clear Sky, and that Roussel, while a member of Clear Sky, engaged in direct competition with the LLC without obtaining Deere's consent. The state jury found that Roussel breached his fiduciary duty of loyalty to both Clear Sky and Deere, and it is clear that a fiduciary's breach of the duty of loyalty comes within the ambit of conduct that qualifies as a "defalcation" under § 523(a)(4). See Bullock v. BankChampaign, N.A., ___ U.S. ___, 133 S.Ct. 1754, 1760, 185 L.Ed.2d 922 (2013) (noting that the term "defalcation" as commonly used and as Congress might have understood it, can encompass a breach of fiduciary obligation that involves neither conversion, nor taking and carrying away another's property, nor falsity) (citing Black's Law Dictionary 479 (9th ed. 2009)); see also In re Baylis, 313 F.3d 9, 20 (1st Cir.2002) ("Defalcation may be presumed from breach of the duty of loyalty, the duty not to act in the fiduciary's own interest when that interest comes or may come into conflict with the beneficiaries' interest"); In re Cochrane, 124 F.3d 978, 984 (8th Cir.1997) (holding that debtor's conduct resulting in a state court judgment for breach of fiduciary duties, including the failure to disclose his stake in an investment aimed at buying out his client's failing business, fell within the fiduciary defalcation to discharge). But the inquiry does not end there because not every debt that arises from a breach of a fiduciary duty amounts to a defalcation for purposes of § 523(a)(4).

The Eighth Circuit has held that a finding of "defalcation" under § 523(a)(4) does not require evidence of intentional wrongdoing. See In re Cochrane, 124 F.3d 978, 984 (8th Cir.1997). During the pendency of this appeal, however, the Supreme Court issued a decision in Bullock v. BankChampaign, N.A., ___ U.S. ___, 133 S.Ct. 1754, 185 L.Ed.2d 922 (2013), holding that the term "defalcation" under § 523(a)(4) "includes a culpable state of mind requirement" which involves the "knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior." Bullock, 133 S.Ct. at 1756.11

In a unanimous decision, the Bullock Court held that "where the conduct at issue does not involve bad faith, moral turpitude, or other immoral conduct, the term [defalcation] [under § 523(a)(4)] requires an intentional wrong." Id. at 1759. The Court included as intentional, "not only conduct that the fiduciary knows is improper but also reckless conduct of the kind that the criminal law often treats as the equivalent." Id. Quoting the Model Penal Code, the Court stated: "Where actual knowledge of wrongdoing is lacking, we consider conduct as equivalent if the fiduciary `consciously disregards' (or is willfully blind to) `a substantial and unjustifiable risk' that his conduct will turn out to violate a fiduciary duty." Id. (quoting ALI, Model Penal Code § 2.02(2), p. 226 (1985)). The Court added: "That risk `must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." Id.

The state court's jury instructions permitted the jury to award punitive damages if the plaintiff proved one or both of the following aggravating factors: (1) that Roussel knew or ought to have known in the light of surrounding circumstances that his conduct would naturally and probably result in damages, and that he continued such conduct in reckless disregard of the consequences from which malice may be inferred or (2) that Roussel intentionally pursued a course of conduct for the purpose of causing damage. Given the disjunctive nature of the jury instruction, it is impossible, but unnecessary, to know the jury's specific finding.

Under Bullock, the crucial inquiry is whether the fiduciary knows that his conduct will violate the applicable standard of care. A conscious disregard of or willful blindness to a substantial and unjustifiable risk that conduct will breach a duty satisfies the knowledge requirement, and whether a risk is substantial and unjustified depends on the fiduciary's purpose and the circumstances known to him. The first aggravating factor set forth in the state jury instructions required the jury to find that malice may be inferred from the defendant's conduct and his reckless disregard of the consequences. This standard is more stringent than the objectively reckless standard that the Bullock decision rejects. Furthermore, the second and alternative aggravating factor requires the jury to find that the defendant intentionally caused damage and therefore meets the statutory requirement for nondischargeability. Accordingly, the Court finds that the requisite state of mind for defalcation was actually litigated and decided in state court.

For the reasons stated, the Court finds that Roussel is collaterally estopped from contesting whether his judgment debt for damages to Clear Sky and Deere is nondischargeable under § 523(a)(4). Accordingly, the portion of Roussel's judgment debt awarding compensatory and punitive damages for breach of fiduciary duty is nondischargeable under § 523(a)(4), and the Bankruptcy Court's determination to the contrary is reversed.

B. Section 523(a)(6)

Pursuant to 11 U.S.C. § 523(a)(6), debts "for willful and malicious injury by the debtor to another entity or to the property of another entity" are nondischargeable. The terms "willful" and "malicious" connote two distinct elements, and both must be proven by a preponderance of the evidence. See In re Porter, 539 F.3d 889, 893 (8th Cir.2008).

In the context of § 523(a)(6), the word "willful" modifies the word "injury," thus nondischargeability requires a deliberate or intentional injury, not merely a deliberate or intentional act that leads to an injury. See Kawaauhau v. Geiger, 523 U.S. 57, 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Debts resulting from injuries caused by reckless or negligent conduct fail to satisfy the willfulness standard — at the least, willfulness requires a showing that the debtor knows that the consequences were certain, or substantially certain, to result from his conduct. See In re Porter, 539 F.3d 889, 894 (8th Cir.2008) (citing In re Patch, 526 F.3d 1176, 1180 (8th Cir.2008)). The separate malice requirement mandates a heightened level of culpability and requires a showing that the debtor's willful conduct was "`targeted at the creditor ... at least in the sense that the conduct is certain or almost certain to cause ... harm.'" In re Scarborough, 171 F.3d 638, 641 (8th Cir.1999) (quoting In re Miera, 926 F.2d 741, 743-44 (8th Cir. 1991)).

Clear Sky maintains that the state court's punitive damage award establishes that all damages awarded to Clear Sky for breach of fiduciary duty are excepted from discharge under § 523(a)(6). The Bankruptcy Court disagreed because it found that the state court's jury instructions did not require a finding that Clear Sky's injury was both "willful and malicious." After concluding that the doctrine of collateral estoppel had no application, the Bankruptcy Court specifically addressed the question of Roussel's state of mind and found as follows:

In re Roussel, 483 B.R. 915, 924 -925 (Bankr.E.D.Ark.2012).

Appellants' precise argument is that a finding of either or both of the aggravating factors set forth in the state court's punitive damage instruction amounts to a finding of malice and that Roussel's willfulness was established by the undisputed fact that at all relevant times, he knew that he was a managing member of Clear Sky. This Court agrees with both assertions.

The state court's jury instruction permitted an award of punitive damages only if the jury found that Roussel intentionally pursued a course of conduct for the purpose of causing damage or that he acted with such conscious indifference to consequences that malice could be inferred. Regardless of the jury's exact finding, the award of punitive damages shows that the jury found, at the very least, that Roussel's conduct was certain or almost certain to result in damage or harm to Clear Sky, which meets the "malicious injury" requirement under § 523(a)(6). See In re Porter, 539 F.3d 889, 894 (8th Cir.2008) (quoting In re Nangle, 274 F.3d 481, 484 (8th Cir.2001) (quoting In re Long, 774 F.2d 875, 881 (8th Cir.1985) ("Maliciousness is conduct `targeted at the creditor... at least in the sense that the conduct is certain or almost certain to cause ... harm.'"))). Accordingly, Roussel is collaterally estopped from contesting whether his judgment debt for compensatory and punitive damages to Clear Sky is for a "malicious injury" under § 523(a)(6).

Contrary to the Bankruptcy Court's findings, this Court finds that the "willful... injury" requirement is also met. The scope of a "willful ... injury" under § 523(a)(6) is not confined to circumstances in which the debtor desires to bring about the harmful consequences of his conduct. "It is enough `[i]f the debtor knows that the consequences are certain, or substantially certain, to result from his conduct.'" In re Porter, 539 F.3d 889, 894 (8th Cir.2008) (quoting In re Patch, 526 F.3d 1176, 1180 (8th Cir.2008)).

Here, the undisputed evidence leaves no question that Roussel knew that his conduct would give rise to the injury at issue — the breach of his duty of loyalty to Clear Sky.12 Roussel's own testimony shows that he was aware that he was a member of Clear Sky when he purchased Territory B on behalf of Select Group Investments LLC, when he opened a competing Exit realty office in Conway, and when he engaged in direct competition with Clear Sky — all without Deere's consent. Furthermore, Roussel's own testimony demonstrated that he knew that Clear Sky had an interest in purchasing Territory B and preventing another Exit office from opening in Conway. After careful review of the entire record, the Court finds that the Bankruptcy Court clearly erred in its assessment of whether Roussel willfully breached his fiduciary duty to Clear Sky. Accordingly, the decision of the Bankruptcy Court on the issue of the dischargeability under § 523(a)(6) should be, and hereby is, reversed.

C. Attorney's Fees and Costs

The state court awarded Appellants $82,611.25 in attorney's fees and $4,912 in costs. In support of their motion for a fee award, Appellants argued that Clear Sky's operating agreement provided that in any dispute arising between Clear Sky members, the losing party would pay the prevailing party reasonable costs and expenses, including attorney's fees. See ECF No. 1-9, at 59-60. Appellants also claimed a right to attorney's fees under Ark.Code Ann. § 16-22-308, which provides:

Ark.Code Ann. § 16-22-308 (emphasis added). In a two-sentence order, the state court granted the motion for fees and costs, stating: "Based on the arguments in the Motion and Brief, the Motion is hereby GRANTED...." See ECF No. 1-9 at 87.

Consistent with the state court's order, the Bankruptcy Court attributed Appellants' fee award to the operating agreement fee provision or Ark.Code Ann. § 16-22-308. The Bankruptcy Court reasoned that because the state court awarded fees and costs based on "contract or breach of contract, which is dischargeable in Bankruptcy[,]" In re Roussel, 483 B.R. 915, 925 (Bankr.E.D.Ark.2012), Appellants' fee award was also dischargeable in bankruptcy.

"Ancillary obligations such as attorneys' fees ... may attach to the primary debt; consequently, their status depends on that of the primary debt." In re Hunter, 771 F.2d 1126, 1131 (8th Cir.1985) (citation omitted) (emphasis added). The Eighth Circuit has held that when parties have included a provision authorizing recovery of attorney's fees in a contractual agreement, and those fees are incurred in connection with a debt determined to be nondischargeable in bankruptcy, the creditor may be entitled to recover such fees as part of the nondischargeable debt. See In re Alport, 144 F.3d 1163, 1168 (8th Cir. 1998) ("The Ritters' attorney fees were properly included in the nondischargeable debt ... because attorney's fees provided by contract, like accrued interest, can become part of the debt."). Accordingly, on remand, the Bankruptcy Court should consider whether the fee provision set forth in Clear Sky's operating agreement renders all or any part of Appellants' fee award part of the nondischargeable debt in this case.

IV.

For the reasons stated, the judgment of the Bankruptcy Court is reversed and the case is remanded for further proceedings addressing whether the fee provision set forth in Clear Sky's operating agreement renders all or any part of Appellants' fee award part of the nondischargeable debt.

IT IS SO ORDERED.