TONY M. DAVIS, Bankruptcy Judge.
In this case, the Court must determine whether certain debts must be deemed non-dischargeable due to the debtor's failure to disclose side profits he made on land deals in which he served as fiduciary for passive investors.
This matter comes before the Court on the parties' extensively briefed cross-motions for summary judgment:
The Court has considered these submissions; the other pleadings in the record; the exhibits attached to the various briefs, including the affidavits and deposition transcripts;
The Court has jurisdiction under 28 U.S.C. §§ 157 and 1334, and this is a core proceeding. See 28 U.S.C. § 157(b)(2)(I); Morrison v. W. Builders of Amarillo, Inc. (In re Morrison), 555 F.3d 473 (5th Cir. 2009).
As far as constitutional authority, non-dischargeability actions were not "the stuff of the traditional actions at common law tried by the courts at Westminster in 1789." Stern v. Marshall, ___ U.S. ___, 131 S.Ct. 2594, 2609, 180 L.Ed.2d 475 (2011) (quoting Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (Rehnquist, J., concurring in judgment)). To the contrary, non-dischargeability actions "flow from a federal statutory scheme." Stern, 131 S.Ct. at 2614. Thus, the Court has constitutional authority to enter a final judgment.
Due to the tangle of entities, individuals, and transactions, this case has a patina of complexity, but its core is quite simple, and the parties are in essential agreement as to all relevant facts.
The case revolves around the purchases of four properties in the Buda/Kyle area south of Austin, Texas. The deals at issue (the "Challenged Transactions") were made by three partnerships (the "Investor Partnerships"): The Meadows at Buda, Ltd. ("Meadows at Buda"), The Meadows at Kyle, Ltd. ("Meadows at KyleI"), and The Meadows at Kyle II, Ltd. ("Meadows at Kyle II").
Robert Light, Stanley Light, George Gary Duncan (who goes by Gary), Adrianna Duncan, Robert Duncan, Diana Duncan (the "Individual Plaintiffs," and together with Meadows at Kyle II, "Plaintiffs") invested (on their own and through affiliated entities) as limited partners in the Investor Partnerships. See Pl. Resp. to Def. M.S.J., Exs. 10, 28, 46. The general partner of each Investor Partnership was an entity controlled by Defendant, Whittington.
What Whittington did not disclose to the limited partners — and what he affirmatively denied to Plaintiff Gary Duncan with respect to the Meadows at Kyle II deal — was that a portion of the purchase amounts paid by the Investor Partnerships never made it to the sellers of the properties. Rather, Whittington and some of his associates (acting through affiliated entities and various intermediaries) took a large cut of each purchase price. An entity called Gunn & Whittington Development I, Ltd. ("G & W"), of which Whittington was 50% owner, received a total of $378,126.80 out of the Meadows at Buda deal (the purchase of the Finley & Hale Properties) and $244,603 out of the Meadows at Kyle I deal (the purchase of the Whitten Property). See Pl. M.S.J. on Liab., Ex. 14 (Finley), Ex. 65 (Hale), Ex. 30 (Whitten); Def. Resp. to Pl. M.S.J. on Liab., ¶ 5 (Whittington 50% owner of G & W). An entity called Madras, Inc., of which Whittington was owner, took a $106,548.66 cut of the Meadows at Kyle II deal (the purchase of the Perron Property). See Pl. M.S.J. on Liab., Exs. 42, 48, 52, 53; Gunn Aff., ¶ 6. When secret cuts to individuals and entities that were not owned by Whittington but that benefited his associates are added in, the non-disclosed payments total more than $1,750,000, out of purchases totaling approximately $7 million. In other words, more than 20% of the purchase prices paid by the Investor Partnerships went not to the sellers but to Whittington and other third parties. See Pl. M.S.J. on Liab., 5-7 (collecting and summarizing the data).
Whittington and his associates had originally entered into purchase agreements with the sellers of the properties. Ultimately, however, these original agreements were assigned over to the Investor Partnerships. The Investor Partnerships then purchased the properties at a higher price, consisting of (1) the originally agreed-upon amounts, which were paid to the sellers, plus (2) the undisclosed "cuts," paid to Whittington and his associates. For example, Whittington's associates originally contracted to purchase the Hale and Finley Properties at the price of $16,500 per acre, about $3.4 million for the 207 acres of combined land. But the investors, through Meadows at Buda, ultimately paid $21,000 per acre, more than $4.3 million, for the properties. The difference of about $938,000 was kept by Whittington and his associates. The uncontested evidence shows that similar practices were followed with respect to the other properties. See generally Pl. M.S.J. on Liab., 3-8 (citing and summarizing exhibits).
Whittington has sought to justify the "cuts" as a sort of finder's fee or development fee (or both), merited because Whittington and his associates put work into identifying desirable properties and initiating development of the open land into residential subdivisions. See, e.g., Def. Resp. to Pl. M.S.J. on Affirm. Defs., ¶ 7; Def. Resp. to Pl. M.S.J. on Liab., ¶¶ 5, 14, 28, 35.
As further evidence that Whittington's nondisclosures were neither innocent nor inadvertent, Plaintiffs note that, in essence, two sets of closing accounts were kept of each transaction, only one of which sets revealed that funds were being diverted to Whittington and his associates instead of being paid to the sellers of each property. See generally Pl. M.S.J. on Liab., 3-8 (citing the exhibits that show two sets of figures and breakdowns of payments). Whittington has not provided any innocent explanation of this highly incriminating evidence. In his deposition, he stated only that he did not disclose the secret "fees" to the investors because he and his partner William Gunn "didn't think it was ... any of their business." See Whittington Dep., 48, 54, 98-99.
Plaintiffs point to yet more evidence of ill intent. As to the Meadows at Kyle II transaction, Whittington admitted that he affirmatively lied to Plaintiff Gary Duncan about whether he was reaping a side profit. This transpired because Whittington sent Duncan an incompletely redacted version of one of the contracts. The contract revealed that the sellers of the land were actually being paid a price significantly lower than what the investors were putting into the deal. Duncan questioned Whittington about the discrepancy and asked Whittington if any of the excess was profiting him. Whittington denied he was making side profits on the project. As he admitted to Duncan in a later deposition: "You called me and asked if I was making any money on the [Meadows at Kyle II/Perron Property] project because you saw the price per acre, and I was not truthful and told you no." Whittington Dep., 99; see also Duncan Dep., 49-51.
Not until December 2010 did the Individual Plaintiffs find out about the side profits. That is when Gunn, having become disgruntled with his partner Whittington, disclosed the scheme to Plaintiff Gary Duncan.
Bradley and Londa Whittington filed for relief under Chapter 7 of Title 11 of the United States Code (the "Code" or the "Bankruptcy Code") on May 31, 2013. Their meeting with creditors under section 341 of the Bankruptcy Code was originally set for June 28, 2013 [No. 13-11036, Dkt. No. 4]. Under Federal Rule of Bankruptcy Procedure 4007(c), the last date to commence a proceeding to object to the debtors' discharge was sixty days later, on August 27, 2013. Plaintiffs filed this adversary proceeding on August 26, 2013, seeking to bar the Whittingtons' discharge under § 523(a)(2)(A) and § 523(a)(4) of the Bankruptcy Code. Plaintiffs dismissed Londa Whittington as a defendant as of November 14, 2013 [Dkt. No. 23]. After the parties submitted their various motions for summary judgment, responsive briefs, and evidence, the Court held the Hearing, and the matter was taken under advisement.
Plaintiffs seek summary judgment on liability and damages as well as on all of Whittington's asserted defenses. Whittington seeks summary judgment on certain defenses, including standing and statute of limitations.
Under Federal Rule of Civil Procedure 56, made applicable in this adversary proceeding by Federal Rule of Bankruptcy Procedure 7056, a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R.CIV.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A "genuine issue" of "material fact" is one that could affect the outcome of the action or allow a reasonable fact finder to find in favor of the non-moving party. James v. Texas Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008).
Plaintiffs bear the burden of proof on non-dischargeability under § 523(a)(2)(A) and § 523(a)(4) of the Bankruptcy Code, as well as on the amount they are owed. Gen. Elec. Capital Corp. v. Acosta (In re Acosta), 406 F.3d 367, 372 (5th Cir.2005) ("A creditor must prove its claim of nondischargeability by a preponderance of the evidence."). Plaintiffs also bear the burden on the issue of whether the Court has jurisdiction, which includes Whittington's challenges to their constitutional standing. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("[T]he party invoking federal jurisdiction bears the burden of establishing its existence."). Cases suggest that Plaintiffs also bear the burden as to Whittington's challenge to prudential standing and the applicability of Federal Rule of Civil Procedure 17. See Triple Tee Golf, Inc. v. Nike, Inc., No. 4:04-CV-302-A, 2007 WL 4260489, at *25 (N.D.Tex. Aug. 10, 2007) (stating that the "plaintiff ... must show" that standing is warranted (quoting Wieburg v. GTE Sw., Inc., 71 Fed.Appx. 440, ___, 2003 WL 21417074, at *2 (5th Cir.2003) (unpublished))).
"If the movant bears the burden of proof on an issue at trial, a successful motion for summary judgment must present evidence that would entitle the movant to judgment at trial." Vulcan Constr. Materials v. Kibel (In re Kibel), Adv. No. 10-5086, 2011 WL 1042575, at *3 (Bankr.W.D.Tex. Mar. 16, 2011) (citing Malacara v. Garber, 353 F.3d 393, 403 (5th Cir.2003)). Thus, Plaintiffs
Whittington bears the burden of proving his affirmative defenses, including his argument that this action is barred by the statute of limitations. See, e.g., Elmo v. Oak Farms Dairy, No. A-3:07-CV2004-D, 2008 WL 2200265, at *1 (N.D.Tex. May 14, 2008) ("Under Texas law, limitations is an affirmative defense on which the movant bears the burden of proof."); Conan Props., Inc. v. Conans Pizza, Inc., 752 F.2d 145, 150 (5th Cir.1985) (laches). For Whittington to be entitled to "summary judgment pursuant to an affirmative defense," he has to "establish all of the elements of the defense." Tyler v. Cedar Hill Indep. Sch. Dist., 426 Fed.Appx. 306, 308 (5th Cir.2011) (unpublished) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986)). For Plaintiffs to win summary judgment as to Whittington's affirmative defenses, they "need only point to the absence of any fact issue in the record, and the evidentiary burden shifts to the non-moving party to show with `significant probative' evidence that there exists a triable issue of fact." Century Savings & Loan Assoc. v. Eastland, 21 F.3d 1107, 1994 WL 171463, at *2 (5th Cir.1994) (unpublished) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548); see also Parker v. Cooper Tire & Rubber Co., 546 Fed.Appx. 522, 526 (5th Cir.2014) (unpublished).
Plaintiffs have asserted the "discovery rule" as a means of avoiding Whittington's statute of limitations defense, and on this matter, assuming Whittington otherwise makes out his statute of limitations defense, they have the burden of proof. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988).
Plaintiffs allege that Whittington breached his fiduciary duties and committed fraud, and that they should be awarded a range of damages along with attorneys' fees as their claim against him. They also argue that under § 523(a)(2)(A) and § 523(a)(4) of the Bankruptcy Code, their claim against Whittington should be deemed non-dischargeable. Whittington denies that he owes any debt to Plaintiffs, denies that the debt (if any) should be held nondischargeable, and asserts numerous affirmative defenses.
As explained below, the Court holds as a matter of law that Plaintiffs have established that Whittington owes a nondischargeable debt under § 523(a)(2)(A) and § 523(a)(4) of the Bankruptcy Code as a result of his breach of fiduciary duty, false representation, fraud, and defalcation.
"Despite the more general purpose of the bankruptcy code, which is to give debtors a fresh start, § 523(a)(2)(A) captures a competing principle. Section 523(a)(2)(A) is not designed to protect debtors; rather it is designed to protect the victims of fraud." Tummel & Carroll v. Quinlivan (In re Quinlivan), 434 F.3d 314, 319 (5th Cir.2005). That said, even in the § 523(a)(2)(A) context, "[e]xceptions to discharge are strictly construed against the creditor and liberally construed in favor of the debtor." FNFS, Ltd. v. Harwood (In re Harwood), 637 F.3d 615, 619 (5th Cir.2011) (citing Hudson v. Raggio & Raggio, Inc. (In re Hudson), 107 F.3d 355, 356 (5th Cir.1997)).
Section 523(a)(2)(A) states that a debt will not be discharged "to the extent [it was] obtained by — false pretenses, a false representation, or actual fraud." Plaintiffs claim that Whittington owes them a debt as a result of "false representation[s]" and "actual fraud."
The Fifth Circuit has explained the elements of § 523(a)(2)(A) thus:
Acosta, 406 F.3d at 372.
As to the Meadows at Kyle II transaction, which involved the purchase of the Perron Property, Whittington concedes that he made a misrepresentation concerning whether he was making side profits.
As to the other transactions and properties, Whittington notes that he made no misrepresentation, and he argues this element is unmet. Plaintiffs retort that omitting to inform them about the
Plaintiffs are correct that Whittington was a fiduciary with respect to the Investor Partnerships and their limited partners, and as such, he had a duty to disclose material facts about the Challenged Transactions to them. "Managing partners owe their copartners the highest fiduciary duty recognized in the law." Hughes v. St. David's Support Corp., 944 S.W.2d 423, 425 (Tex.App.-Austin 1997, writ denied); see also LSP Inv. P'ship v. Bennett (In re Bennett), 989 F.2d 779, 783 (5th Cir.1993) (noting that under Texas law, the fiduciary obligation of managing partners to their limited partners is "one of the highest fiduciary duties recognized by law"); Crenshaw v. Swenson, 611 S.W.2d 886, 890 (Tex.Civ.App.-Austin 1980, writ ref'd n.r.e.) ("In a limited partnership, the general partner acting in complete control stands in the same fiduciary capacity to the limited partners as a trustee stands to the beneficiaries of the trust."); Cardwell v. Gurley, No. 4-10-CV-706, 2011 WL 6338813, at *8 (E.D.Tex. Dec. 19, 2011) ("The Fifth Circuit ... has held that persons exercising control of a business owe trust-type obligations to partners and shareholders that do not control the business...."). Whittington's one-step-removed status, as an individual who was manager of the general partner of the limited partnerships, does not insulate him from this duty. In light of the thorough control he exercised over the Investor Partnerships, which the partnership documents and the record make clear, he took on a fiduciary duty to the limited partners. See Harwood, 637 F.3d at 620-24 (concluding in § 523(a)(4) context that an individual's control over a corporate general partner of a limited partnership imposed "trust-type" fiduciary duties on that individual); Bennett, 989 F.2d at 787-90 (analyzing Texas case law and determining that control is the "critical fact" to consider in "imposing this high level of [fiduciary] responsibility" on an individual); McBeth v. Carpenter, 565 F.3d 171, 177-79 (5th Cir.2009) (finding that an individual serving as manager of managing partner owed duties to the partnership and limited partners of it); Mullen v. Jones (In re Jones), 445 B.R. 677, 708-13 (Bankr. N.D.Tex.2011) (analyzing the principles of Bennett, McBeth, and other cases and concluding that "it appears that managing partners still owe fiduciary duties to partnerships and their limited partners, and this concept applies even in a two-tiered structure where an individual is acting as the manager of the managing general partner"). At the Hearing, moreover, Whittington's counsel conceded that Whittington personally owed fiduciary duties to each partnership and the limited partners.
Under Texas law, Whittington's duty to disclose encompassed all material facts concerning the Challenged Transactions. "[P]artners owe each other a duty to make full disclosure of all material facts within their knowledge relating to partnership affairs." Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex.1997) (citing Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 787-88 (1938)); see also Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex.1984) (articulating this principle); Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988) (applying principle in attorney-client
The self-dealing side profits bring into question the fairness of the transactions and Whittington's ability to act as a trustworthy agent for the Investor Partnerships and the limited partners. They are plainly "material facts" that must be disclosed. See, e.g., Manheim Auto. Fin. Servs., Inc. v. Hurst (In re Hurst), 337 B.R. 125, 131-32 (Bankr.N.D.Tex.2005) (holding that failure to disclose that the defendant was "involved on both the seller's and buyer's side" of transactions "constitutes a concealment of a material fact sufficient to support a charge of fraud");
Whittington's only argument of any substance on this element is that the fiduciary relationship arose so late — at or after each closing — that his fiduciary duty could not have been breached by any failure to disclose.
It is true that Texas law teaches that a fiduciary duty must exist before it can be breached. "[T]he trust giving rise to the fiduciary relationship must exist prior to the act creating the debt, i.e. the debtor must have been a trustee prior to his or her wrongdoing." Cardwell, 2011 WL 6338813, at *8; Willis v. Donnelly, 199 S.W.3d 262, 276-77 (Tex.2006) (holding that there could be no claim for breach when allegedly wrongful actions occurred before the alleged fiduciary attained the position that triggered the duties); Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex.2005) (refusing to impose "informal fiduciary duty" in light of a lack of "preexisting relationship" other than in "arms-length transactions").
Whittington is not clear on when he believes his fiduciary duties did arise. He appears to contend that because "[t]he partnership documents in each transaction were signed at closing," as a result his duty "only arose
The situation is more complicated than either party states. Meadows at Buda was formed on May 25, 2004, and the partnership
Thus, based on uncontested evidence, Whittington is wrong about at least the Hale and Whitten Properties, both of which closed at least one day after the partnership agreements were signed. As to the other two properties, Finley and Perron, Plaintiffs admit the agreements were not signed until the day of closing. Plaintiffs state that these partnership agreements were signed before the closings, but the summary judgment evidence is not clear on this point. For summary judgment purposes, the Court construes the evidence in Whittington's favor, and accepts his contention that the Meadows at Buda and Meadows at Kyle II partnership agreements were signed "at closing" of the Finley and Perron Properties, and not before.
But even if all the partnership agreements were signed "at closing," Whittington cannot free himself of his duties so easily. He signed all of the closing documents on behalf of the Investor Partnerships. It is clear that at each closing, Whittington, his contractual counterparties, and his limited partners believed he had accepted and was acting in his capacity as manager of the general partner of each entity. In signing these documents, he indicated that he accepted this role — including the fiduciary duties incumbent on it. Regardless of when the documents were signed, the partnerships had to be effective before the purchase documents, because without a partnership there could be no purchaser. Once each partnership formed, the duty to disclose arose, and all necessary disclosures had to be made.
In other words, Whittington's own signature attests to his fiduciary relationship with each Investor Partnership. His signature only had power by virtue of his role as officer and fiduciary of each Investor Partnership. Whittington has provided no support for his idea that he could ignore corporate formalities by signing the transaction documents on behalf of each partnership as if that partnership were indeed formed, but then — having tidily and secretly profited on the transactions at the expense of his partners — turn around and challenge the very authority he claimed to have when he signed. This is wholly unlike the cases cited by Whittington in which duties truly arose after arm's-length transactions between parties who later entered into a fiduciary relationship. The Court is not springing any retroactive or unexpected duties upon Whittington.
In sum, Whittington's duties arose either before or at the time of signing — not later. It may be the case that, as Whittington argues, the underlying terms of each deal were agreed upon much earlier, and thus prior to the arising of a fiduciary relationship. But that is of no moment; it is not when the secret deal
There is an alternative argument on this element that bears mentioning. Plaintiffs have pointed to an unusual provision in each partnership agreement, explicitly imposing fiduciary duties on the limited partners for "exercis[ing] good faith or integrity" in their own affairs and in partnership affairs,
Pl. Resp. to Def. M.S.J., Exs. 10, 28, 46, § 7.9(b) (identical in each agreement).
G & W was a limited partner in each Investor Partnership. Whittington acted as manager of G & W — or rather, of its general partner, an entity titled Gunn & Whittington Development II, L.L.C. See Pl. M.S.J. on Liab., Exs. 6, 7.
As to the Meadows at Kyle II transaction, which involved the purchase of the Perron Property, Whittington concedes that he knew his misrepresentation was false. As to the other Challenged Transactions, Whittington does not contest this element, nor does the Court see how it can
Whittington asserts that Plaintiffs' "key failure" is their "lack of proof" regarding the intent to deceive. He states that since he did not have a duty to disclose the side deals — or at a minimum did not "know" he had such duty — he "could not have formulated the requisite intent to deceive." Def. Resp. to Pl. M.S.J. on Liab., ¶ 31.
"[I]ssues involving a person's intent usually require a trial." Nijjar v. Schott (In re Schott), Adv. No. 11-5030, 2011 WL 3862026, at *19 (Bankr.W.D.Tex. Aug. 30, 2011). "Summary judgment on issues of intent may be appropriate, however, `where the record of the case leaves no plausible honest explanation for the debtor's action.'" Id. (quoting PNC Bank v. Laskey (In re Laskey), 441 B.R. 853, 856 (Bankr.N.D.Ohio 2010)).
"Intent of a kind sufficient to preclude discharge for debt for money obtained by debtor's false pretenses, false representation or actual fraud may be inferred where a debtor makes a false representation and knows or should know that the statement will induce another to act." Jones, 445 B.R. at 721 (quoting Hurst, 337 B.R. at 133). "A Court may infer an intent to deceive `from reckless disregard for the truth or falsity of a statement combined with the sheer magnitude of the resultant misrepresentation.' In addition, a Court can look at the totality of the circumstances to determine whether a debtor acted with an intent to deceive." Fine Lumber & Plywood, Inc. v. Higgs (In re Higgs), Adv. No. 12-1134, 2013 WL 3791501, at *3 (Bankr.W.D.Tex. July 19, 2013) (internal citations omitted) (quoting Acosta, 406 F.3d at 372); see also Morrison v. Western Builders of Amarillo (In re Morrison), 555 F.3d 473, 482 (5th Cir. 2009) (endorsing a "totality of the circumstances" approach to determining intent to deceive); Westwood Sq. Ltd. P'ship v. Broome (In re Broome), Adv. No. 11-5047, 2014 WL 61235, at *9 (Bankr.S.D.Miss. Jan. 8, 2014) ("Absent direct evidence of fraudulent intent, which rarely exists, courts look to surrounding circumstances to determine intent."). "When examining a debtor's intent under section 523(a)(2)(A), the Court is required to consider whether the circumstances in the aggregate present a picture of deceptive conduct on the part of the debtor, which betrays an intent on the part of the debtor to deceive his creditors." Ward Family Found. v. Arnette (In re Arnette), 454 B.R. 663, 699 (Bankr.N.D.Tex.2011).
Because Plaintiffs bear the burden of proof on the issue of intent, in order to prevail at summary judgment they are obligated to "present evidence that would entitle [them] ... to judgment at trial." Kibel, 2011 WL 1042575, at *3. If they can do so, the burden shifts to Whittington to "establish a genuine issue of material fact." Id. "An issue is `genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Sossamon, 560 F.3d at 326 (5th Cir.2009).
The totality of the circumstances shows a plain intent to deceive Plaintiffs. Most damning, of course, is the outright lie as to the Meadows at Kyle II transaction, which helps paint "a picture of deceptive conduct on the part of the debtor." Id. Whittington's failure to disclose the side profits on the other transactions has to be viewed in light of his outright lie as to the Meadows at Kyle II transaction. These were intentional, deceptive omissions, and
Plaintiffs have presented evidence that would entitle them to judgment at trial, so the burden has shifted to Whittington to establish a genuine issue of material fact. Whittington asserts that he "had no way of knowing he would have had a duty to disclose ... and therefore, could not have formulated the requisite intent to deceive." Def. Resp. to Pl. M.S.J. on Liab., ¶ 31; see Whittington Dep., 44-45 (explaining the deceptive deal documents by stating that "we didn't feel it was necessary to disclose"), 48 (claiming that he and Gunn "didn't think it was ... any of their [i.e., the limited partners'] business" whether they were making side profits). Even construing the facts in Whittington's favor and accepting Whittington's (rather implausible) claim that he did not understand his duty to treat Plaintiffs honestly, this element is still met as a matter of law, because the uncontroverted facts surrounding the acquisition of the properties and the side profits taken by Whittington establish that Whittington intended to deceive Plaintiffs. Whittington's allegedly mistaken view as to the nature of his fiduciary duties does not mean he lacked the intent to deceive under this element. It might mean that he did not appreciate the precise legal consequences of his deception, but it does not change the fact that he knew he was deceiving and intended to do so.
No reasonable fact-finder could look at the gains that Whittington stood to make on the transactions, the fact that he admits to having lied as to the Meadows at Kyle II transaction, and the production of dual sets of documents as to each transaction, and yet believe that Whittington did not intend to deceive Plaintiffs as to all of the Challenged Transactions. Whittington intended to (and did) pocket significant, secret gains for himself and his associates as a result of the Challenged Transactions. And he intended Plaintiffs to be deceived as to this fact.
Summary judgment is due to Plaintiffs on this element.
Actual reliance is straightforward. The Investor Partnerships and limited partners actually entered into the Challenged Transactions, and the uncontroverted evidence shows that they did so in actual ignorance of material information known to their fiduciary and hidden from them by
The record also compels a holding that the reliance was justifiable. "Justifiable reliance is a lesser standard than reasonable reliance ... but it does not leave reason out of the calculus." Baker v. Sharpe (In re Sharpe), 351 B.R. 409, 423 (Bankr.N.D.Tex.2006); see generally Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). "The justifiable reliance standard imposes no duty to investigate unless the falsity of the representation is readily apparent or obvious or there are `red flags' indicating such reliance is unwarranted." Hurst, 337 B.R. at 133-34. When confronted with a partially redacted contract with numbers that did not quite add up — the only arguable "red flag" here — Duncan asked a pointed question of Whittington, concerning whether he was making side profits on the deal. Whittington lied in response. Duncan trusted this representation by his fiduciary, and neither he nor his fellow Plaintiffs were under a further duty to investigate further. There was nothing "readily apparent or obvious" about Whittington's falsehood that should have triggered further inquiry, nor was there any reason Plaintiffs should have detected his failure to disclose the side profits in the other transactions. "[Whittington] cannot lie to his potential investors ... and then, when the lies are discovered, cry foul because they should have known better than to trust him." Arnette, 454 B.R. at 687-88. Justifiable reliance in the Perron Property transaction is met.
Justifiable reliance in the other transactions is equally established. There were no red flags to alert Plaintiffs to their fiduciary's breach of his duty to disclose material information.
Plaintiffs are entitled to a finding in their favor on this element.
Whittington claims that the Investor Partnerships and limited partners cannot demonstrate a "proximately caused loss" from his fraud and breach of fiduciary duty, because the partnerships paid a fair price for the land, even if part of what
The Kinzbach court continued that "if the fiduciary `takes any gift, gratuity, or benefit in violation of his duty, or acquires any interest adverse to his principal, without a full disclosure, it is a betrayal of his trust and a breach of confidence, and he must account to his principal for all he has received.'" Kinzbach, 160 S.W.2d at 514 (quoting United States v. Carter, 217 U.S. 286, 305, 30 S.Ct. 515, 54 L.Ed. 769 (1910)); Anderson v. Griffith, 501 S.W.2d 695, 702 (Tex.Civ.App.-Fort Worth 1973, writ ref'd n.r.e.) ("It is the law that when an agent breaches his fiduciary obligation to his principal, he forfeits all compensation for his services as agent, and he must also account to his principal for every profit, benefit or advantage that he received out of the transaction."). "When one's funds or other assets are used by a fiduciary to acquire property for himself, the aggrieved party may seek the property itself or its value." Lesikar, 33 S.W.3d at 304.
For this reason, Plaintiffs need not demonstrate that they suffered any further loss in order to sustain their cause of action under § 523(a)(2)(A). This element of § 523(a)(2)(A) is designed to insure that the debt that forms the basis of a creditor's claim arises from the relevant acts — that there is a causal link between them. The Supreme Court in Cohen v. de la Cruz upheld an award of treble damages
Thus, while the Fifth Circuit's test states that a creditor must show that it "sustained a loss as a proximate result of its reliance," Acosta, 406 F.3d at 372, that phrasing should not be read as adding an extrastatutory requirement that a plaintiff demonstrate an exact amount of a monetary "loss" in order to prevail in its nondischargeability suit. Rather, "loss" in this context is construed in a broad sense to include all grounds for recovery — "any debt," as the statutory language indicates — arising from fraud. The statute, in essence, renders nondischargeable the claim of a creditor against a debtor deriving from the prohibited acts. The scope of the term "loss" here is analogous to, for instance, the term "damages," which can include, for example, punitive damages and other forms of awards that do not, strictly speaking, conform precisely to the "damage" suffered by a plaintiff. The principle is demonstrated by the Supreme Court's approval of treble damages as nondischargeable in the Cruz case. In sum, another way of phrasing this element would be that the creditor's "claim arising from its reliance on the debtor's false representation" is nondischargeable.
There is clearly a causal link here between the debt Whittington owes the Investor Partnerships and limited partners and the conduct from which it "arises," although as discussed in the damages section below, the exact amount of the appropriate damages remains to be determined. This element is met, as are the other elements of § 523(a)(2)(A).
Under 11 U.S.C. § 523(a)(4), a debtor cannot receive a discharge "from any debt ... for fraud or defalcation while acting in a fiduciary capacity." According to the Fifth Circuit, "[t]his bar to discharge reaches `debts incurred through abuses of fiduciary positions ... [and] involv[ing] debts arising from the debtor's acquisition or use of property that is not the debtor's.'" FNFS, Ltd. v. Harwood (In re Harwood), 637 F.3d 615, 620 (5th Cir. 2011) (quoting Texas Lottery Comm'n v. Tran (In re Tran), 151 F.3d 339, 342 (5th Cir.1998)). "The term `fiduciary' in this context is construed narrowly, limited to `technical trusts' and to traditional fiduciary relationships involving `trust-type' obligations imposed by statute or common law." Id. at 619-20 (quoting LSP Inv. P'ship v. Bennett (In re Bennett), 989 F.2d 779, 784-85 (5th Cir.1993)). "The scope of the concept of fiduciary under [§ 523(a)(4)] is a question of federal law; however, state law is important in determining whether or not a trust obligation exists." Id. (quoting Bennett, 989 F.2d at 784). The fiduciary relationship between Whittington as the controlling manager of the general partner of each Investor Partnership
The Court now turns to the issue of whether Whittington incurred a debt to Plaintiffs by fraud or defalcation while acting in his fiduciary capacity.
Fraud in a fiduciary capacity, for purposes of § 523(a)(4), requires "positive fraud, or fraud in fact, involving moral turpitude or intentional wrong ... and not implied fraud." Bullock, 133 S.Ct. at 1759 (quoting Neal v. Clark, 95 U.S. 704, 709, 24 L.Ed. 586 (1878)). In other words, it requires a showing of "wrongful intent." Id. at 1760. In addition, "[f]raud typically requires a false statement or omission." Id. (internal quotation marks omitted).
Whittington has committed fraud in a fiduciary capacity. As discussed in the preceding sections of this opinion, there is no genuine issue as to whether Whittington had a fiduciary duty that arose at or before he signed the closing documents in the Challenged Transactions on behalf of each Investor Partnership. His fiduciary duties required him to disclose the side profits to the limited partners in each Investor Partnership before signing the documents on their behalf and taking his secret profits. He intended to deceive Plaintiffs, not only in the misrepresentation that he made but in his omissions as to the other transactions. "This discharge exception `was intended to reach those debts incurred through abuses of fiduciary positions ....'" In re Miller, 156 F.3d 598, 602 (5th Cir.1998) (quoting In re Boyle, 819 F.2d 583, 588 (5th Cir.1987)). Whittington's abuse of his position as a fiduciary was a necessary predicate for the injuries suffered by the Investor Partnerships and the limited partners. He would have been unable to commit this fraud if he had not been in a fiduciary position; if one of the Individual Plaintiffs had been acting as general manager of each Investor Partnership, the partnership would have become aware of the side profits, and at a minimum, have made an informed decision as to whether to proceed with the purchase.
A finding of defalcation in a fiduciary capacity can also be sustained. "Even without the necessity of a fraud finding ... self-dealing and wrongful diversion of ... funds [in the context of a fiduciary relationship] constitutes a defalcation for the purposes of § 523(a)(4)." Smiedt v. Williams (In re Williams), No. 13-40856, 2014 WL 2624911, at *8 (Bankr. E.D.Tex. June 12, 2014). This is true even under the "heightened culpability standard for defalcation" announced by the Supreme Court in Bullock, because intentional self-dealing "clearly meets the [Bullock] definition [of defalcation]." Id. at *8-9.
The Court construes all relevant facts in Whittington's favor (as the Court must at summary judgment), but nonetheless, any reasonable fact-finder would have to find that he met the "culpable state of mind requirement" in light of his "gross recklessness in respect to the improper nature of the relevant fiduciary behavior." Bullock, 133 S.Ct. at 1759. He "`consciously disregard[ed]' (or [was] ... willfully blind to) `a substantial and unjustifiable risk' that his conduct [would] ... turn out to violate a fiduciary duty." Id. (quoting ALI, Model Penal Code § 2.02(2)(c), p. 226 (1985)). His "culpable state of mind" is
Thus, in addition to his debts to Plaintiffs being established and held nondischargeable under § 523(a)(2)(A), Whittington's discharge of these debts must be denied under § 532(a)(4) as well.
Whittington has urged several affirmative defenses in response to Plaintiffs' claims. He argues that the Individual Plaintiffs lack standing to bring their claims, that the statute of limitations bars all Plaintiffs' claims, and that the equitable doctrines of fraud, unclean hands, and laches should bar recovery.
Under Federal Rule of Bankruptcy Procedure 4007(c), the deadline for objecting to discharge in this case was August 27, 2013. Plaintiffs filed their complaint on August 26, the day before the deadline ran. But as Whittington points out and Plaintiffs do not dispute, Texas law does not permit claims such as this to be brought by individual limited partners. See, e.g., Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 250 (Tex.App.-Dallas 2005, no pet.) ("[D]amages for loss in value of the partnership interest ... are subsumed in the partnership's causes of action.");
Pursuant to assignment agreements executed several months later, however, the Individual Plaintiffs acquired the relevant claims from Meadows at Buda and Meadows at Kyle I. See Pl. M.S.J. on Affirm. Defs., Ex. 56 (assignment agreement stating in relevant part that Meadows at Buda assigns "right, title, and interest" in its legal claims against Whittington to the Individual Plaintiffs), Ex. 57 (assignment
Whittington disagrees. He does not challenge the effectiveness of these assignments in themselves, but he argues that the claims, even if validly assigned, were already dead by the time of the assignments — and they remain dead. In other words, as counsel for Whittington colorfully put it, a valid assignment can "cure the sick but not raise the dead": if a claim is merely infirm (due to the identity of the party bringing it), then an assignment can successfully cure the defect; but where a claim is dead (because it has been forfeited prior to the assignment by the party who could have brought it but failed to), then an assignment cannot resurrect it. Whittington's theory sounds plausible, but he points to no law really supporting it — and as is discussed below, there are numerous cases running in the other direction, including in practically the exact same context as here.
Whittington does not clearly delineate whether his "standing" argument is Article III/constitutional or prudential/statutory in nature. Insofar as Whittington challenges Plaintiffs' constitutional standing, that challenge is plainly wrong, under clear Fifth Circuit law. See, e.g., Ensley v. Cody Res., 171 F.3d 315, 319-20 (5th Cir.1999) (holding that the lack of shareholder standing under Texas law does not implicate constitutional standing). Constitutional, "injury in fact" standing requires (1) "invasion of a legally protected interest which is (a) concrete and particularized... and (b) actual or imminent"; (2) "causal connection between the injury and the conduct complained of"; (3) "likel[ihood]... that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs bear the burden of proof on constitutional standing, which is jurisdictional. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
Plaintiffs have plainly demonstrated their status as investors who were concretely and actually injured by Whittington's conduct (though of course the extent of that injury remains to be determined), and that a favorable decision by the Court would redress this harm. This was decided by the Fifth Circuit in Ensley. 171 F.3d at 319-20. The requirements of constitutional standing are met.
It is prudential standing that was lacking on the day this adversary proceeding was filed. The difference between constitutional and prudential standing defects is crucial. For instance, Fifth Circuit precedent teaches that a prudential standing defect, such as this one, can be waived if not raised promptly. In the Ensley case, the court found that a defendant who waited until the plaintiff had put on its case-in-chief to object to the plaintiff's standing had waived its opportunity to raise the objection. 171 F.3d at 320, accord
Prudential standing involves "judicially created limits concern[ing] (1) whether a plaintiff's grievance arguably falls within the zone of interests protected by the statutory provision invoked in the suit, (2) whether the complaint raises abstract questions or a generalized grievance more properly addressed by the legislative branch, and (3) whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties." St. Paul Fire & Marine Ins. Co. v. Labuzan, 579 F.3d 533, 539 (5th Cir.2009) (quoting Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir.2001) (numbering added by St. Paul court)).
It is the third element that was lacking here: As of the filing of their complaint, the Individual Plaintiffs were in effect "asserting ... the legal rights and interests of third parties," i.e., the Investor Partnerships. Id. "A plaintiff that does not possess a right under the substantive law is not the real party in interest with respect to that right and may not assert it." In re Enron Corp. Secs., Derivative & ERISA Litig., 279 F.R.D. 395, 409 (S.D.Tex.2011) (citing United States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir.1969)). "[W]hile the question of whether a claimant is the real party in interest is a procedural one, `that question must be answered with reference to substantive state law.'" BAC Home Loans Servicing, LP v. Texas Realty Holdings, LLC, 901 F.Supp.2d 884, 907 (S.D.Tex. 2012) (quoting Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt B.V. v. Schreiber, 407 F.3d 34, 48 (2d Cir.2005)). Here, the parties agree on the underlying substantive question: Under Texas law, the Individual Plaintiffs did not have standing until the assignments were made. With that state law premise in place, the Court looks to federal procedural law to determine the effect of the assignments, including whether dismissal is merited or whether relation back to the original filing of the complaint should be permitted.
What to do when parties are "asserting... the legal rights and interests of third parties," St. Paul Fire & Marine, 579 F.3d at 539, is addressed by Federal Rule of Civil Procedure 17, which requires that "[a]n action must be prosecuted in the name of the real party in interest." FED. R.CIV.P. 17(a)(1); see FED. R. BANKR.P. 7017 (applying FED.R.CIV.P. 17 to bankruptcy adversary proceedings (except as provided in FED. R. BANK. P. 2010(b), which is not relevant here)). "Some courts have described Rule 17's real-party-in-interest requirement as essentially a codification of this nonconstitutional, prudential limitation on standing." Rawoof v. Texor Petroleum Co., 521 F.3d 750, 757 (7th Cir.2008). In the Ensley case, which dealt with an analogous situation involving a shareholder seeking to assert rights purportedly held by the corporation, the Fifth Circuit looked to Rule 17 and explained that "[b]ecause the Federal Rules of Civil Procedure address this prudential standing requirement, they govern our inquiry." 171 F.3d at 320. Rule 17 itself prescribes the means of correcting a Rule 17 violation:
FED.R.CIV.P. 17(a)(3). As explained below, what happened in this case tracks the rule quite well: There was an objection based on a real-party-in-interest defect within a reasonable time (within a few months), there was a ratification of the action by the real party in interest, and now, the action is going to proceed as if it had been originally commenced by the real party in interest.
To get to its holding, the Court will analyze: (1) whether the post-complaint assignments of the causes of action from Meadows at Buda and Meadows at Kyle I to the Individual Plaintiffs successfully ratified them as the real parties in interest in this suit, and, if so, (2) whether this case should be treated "as if it had been originally commenced by the real party in interest" under Rule 17(a)(3). These questions are decisive for the Individual Plaintiffs: If this "relation back" were not permitted, then the Individual Plaintiffs would have to be dismissed from this suit with prejudice, because a new suit for nondischargeability would be time-barred under Federal Rule of Bankruptcy Procedure 4007.
There is no doubt that assignments can transform a party into the "real party in interest." See, e.g., Decorative Ctr. of Houston v. Direct Response Publ'ns, 264 F.Supp.2d 535, 543-44 (S.D.Tex.2003) (rejecting argument that "a party cannot cure a standing defect by subsequent assignment"); Pyramid Transp., Inc. v. Greatwide Dallas Mavis, LLC, No. 3:12-CV-0149-D, 2013 WL 3834626, at *3 (N.D.Tex. July 25, 2013) (noting that a plaintiff who is not the correct party in interest "could become the real party in interest through an assignment"); S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 465 (Tex.App.-Corpus Christi 2000, no pet.) ("[W]hen a cause of action is assigned or transferred, the assignee becomes the real party in interest with the authority to prosecute the suit to judgment."); Integon Life Ins. Corp. v. Browning, 989 F.2d 1143, 1153-54 (11th Cir.1993) (finding a successful ratification based on an affidavit from the original party in interest). Indeed, causes of action under § 523 of the Bankruptcy Code have been successfully assigned by one real party in interest to another. Turbo Aleae Invs. v. Borschow (In re Borschow), 467 B.R. 410, 419 (W.D.Tex.2012) (holding that "an assignee of a debt can step into the shoes of the original creditor for purpose of § 523(a)(2)(A)"); Sierra Chems. v. Mosley (In re Mosley), Adv. No. 12-1166-T, 2013 WL 1137061, at *3 (Bankr.D.N.M. Mar. 19, 2013) (collecting cases and holding that an assignment can support a § 523 claim).
Plaintiffs assert that the assignments here amount to a "ratification" of the suit, in compliance with Rule 17(a)(3). They argue that "[Meadows at] Buda and [Meadows at] Kyle I acknowledge the existence of this suit and have ratified its maintenance by the Plaintiffs, who are now the real parties in interest." Pl. Reply to Def. Resp. to Pl. M.S.J. on Affirm. Defs., 6.
Ratification requires the ratifying party to agree to the lawsuit's continuation and be "bound by any settlement or judgment." Wieburg v. GTE Southwest
As noted above, the assignments here transfer to the Individual Plaintiffs all of Meadows at Buda's and Meadows at Kyle I's "right, title, and interest" in their legal claims against Whittington and numerous of his associates. Pl. M.S.J. on Affirm. Defs., Exs. 56, 57. This broad assignment meets the test for ratification. It authorizes the Individual Plaintiffs' continuance of the action, binds the assignor partnerships to the results of this case, and prevents Whittington from having to defend himself "against the claims again in a later action." Wieburg, 272 F.3d at 307. Meadows at Buda and Meadows at Kyle I have ratified the Individual Plaintiffs' pursuit of this cause of action.
Once the Court has decided that the real party in interest has ratified the action, the language of the rule might seem mandatory: "[T]he action proceeds" as if the real party in interest had commenced it originally; in other words, the post-ratification suit should relate back to the time the suit was originally filed. FED. R. CIV. P. 17(a)(3). But, relying in part on the guidance of the advisory committee on the federal rules, Fifth Circuit law "has put a gloss on Rule 17's unqualified language. It holds that a plaintiff must have a reasonable basis for naming the wrong party to be entitled to ratification, joinder, or substitution." Magallon v. Livingston, 453 F.3d 268, 273 (5th Cir.2006); Wieburg, 272 F.3d at 308 ("According to the Advisory Committee's Notes, this provision was added `simply in the interests of justice' and `is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.'" (quoting FED. R.CIV.P. 17(a), advisory committee's notes, 1966 Amendment)).
When the Wieburg case returned to the Fifth Circuit after remand, the court, summarizing its prior opinion, stated: "To avoid dismissal ... a plaintiff who is not the real party in interest must show, first, that he sued in his own name based on an understandable mistake and, second, that he did not have a reasonable time to correct the pleading deficiency." Wieburg v. GTE Sw., Inc., 71 Fed.Appx. 440, 2003 WL 21417074, at *2 (5th Cir.2003) (unpublished) (citing Wieburg, 272 F.3d at 308). Without an "understandable mistake," or if ratification was unreasonably delayed, a court must dismiss the suit insofar as the real party in interest is absent.
Determining whether the failure to properly plead was an "understandable mistake" requires analysis of the particular circumstances that led to the failure, as well as the steps taken to correct the mistake. See, e.g., Magallon, 453 F.3d at 273 (finding that a counsel's "belief, not wholly unfounded, that [defendant] ... was incompetent" was a sufficiently "reasonable explanation" to avoid dismissal); Jacobson v. Ormsby (In re Jacobson), 67 Fed. R. Serv.3d 1310, 2007 WL 1644346, at *14 (W.D.Tex.2007) (declining to "second-guess" the bankruptcy's court's "credibility determination" concerning the plaintiff's
Plaintiffs have provided no real argument concerning how "understandable" their mistake was. Nonetheless, the record is clear in several respects. First, there was little delay between the Individual Plaintiffs' being alerted to their error and their remedying it. Plaintiffs' amended complaint [Dkt. No. 6] was filed on September 16, 2013. Whittington's answer, which raises the issue of standing, was filed on October 16, 2013. Answer [Dkt. No. 19], ¶¶ 5-6, 42-43, 61. Uncontroverted deposition testimony shows that while the assignments bear earlier dates, they were actually executed in November of 2013. See Duncan Dep., 67; Gist Dep., 29-31. Plaintiffs' first motion for partial summary judgment was filed December 6, 2013, and it discusses and attaches the assignment documents. See Pl. M.S.J. on Affirm. Defs., 2-5, Exs. 56-57. In other words, the mistake was corrected quickly, thus preventing any prejudice to Whittington or any delay to this proceeding. Whittington has not argued that he was in any way prejudiced or strategically disadvantaged because of the timing of the assignments.
In addition to being promptly remedied, the mistake is of a relatively technical
Whittington points to a statement of experience that Plaintiff Gary Duncan put in the record, and he argues that Plaintiffs' mistake should not be considered understandable because the statement shows that "Duncan is an extremely experienced and talented commercial trial lawyer." Id. In fact, however, as far as the statement of experience reveals, Duncan has neither a license to practice in Texas nor experience with Texas law, nor does his experience appear directly pertinent to assessing the questions of partnership law relevant here. See generally Dkt. No. 49, Ex. A, 10-16 (reflecting a career focused on plaintiff's law since 1979). The mistake made by Plaintiffs in this case resembles that made in Asset Funding Group, in which the plaintiff failed to include some affiliate entities to whom particular claims belonged, and in which the plaintiff moved promptly to correct the mistake and was permitted to do so by the court. 2009 WL 799752, at *4-6. Here, as in Asset Funding Group, the technical nature of the mistake and the speedy correction speak in Plaintiffs' favor.
As limited partners aggrieved by the general partner of the partnership, Plaintiffs' mistake in seeking to sue in their own names was understandable. There is no hint of strategic manipulation in the record, nor is there a reason to think the assignments could not have been executed earlier if the need for them had been recognized. Nor does the alteration appear to have caused any prejudice or vexation to the defendants. Whittington has failed to provide any reason to doubt any of this. Thus, the Court holds that the Individual Plaintiffs are now the real parties in interest with respect to the Meadows at Buda transaction and Meadows at Kyle I transaction.
The remaining issue is whether the lawsuit (as ratified) "relates back" to the time the complaint was originally filed. There is no merit in Whittington's argument that because the Individual Plaintiffs were not the real parties in interest at the inception of this lawsuit, they cannot be made so after the fact, or that that their alteration in status cannot "relate back" to the date of the original complaint. Courts commonly allow "relation back" of Rule 17(a) corrections of the real party in interest, including in situations where plaintiffs' claims would otherwise be time-barred. See, e.g., Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 18-21 (2d Cir.1997) (reversing dismissal by the district court and allowing amendment under
Given this clear law, Whittington's only hope is to argue that there is something particular to non-dischargeability actions that would alter this usual practice. But contrary to his arguments, Bankruptcy Rule 4007 requires no special treatment in this respect. Missing the deadline for an objection to discharge is not a "jurisdictional" defect and may be waived if not timely made. Kontrick v. Ryan, 540 U.S. 443, 447, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (holding that failure to comply with Bankruptcy Rule 4004 may be waived); id. at 448 n. 3, 124 S.Ct. 906 (acknowledging that Bankruptcy Rule 4007 establishes "essentially the same time prescriptions" for denial-of-discharge actions as Bankruptcy Rule 4004 for dischargeability-of-a-debt deadlines, and that cases concerning one rule have been applied to the other); Owen v. Miller (In re Miller), 333 B.R. 368, 371 (Bankr.N.D.Tex.2005) (applying Kontrick to Bankruptcy Rule 4007 context, citing to other courts that have done so, and noting that "[b]ecause the language of the two rules is virtually the same, the Court ... concludes that the sixty-day deadline of Rule 4007(c) is not jurisdictional"), aff'd, No. 04-80905-HDH-7, 2006 WL 6507922 (N.D.Tex. Mar. 28, 2006).
The nondischargeability context does not differ from the other situations in which Rule 17 has been applied to permit a claim to proceed when it would otherwise be barred by the statute of limitations. It is true that the filing deadline of Bankruptcy Rule 4007 is interpreted strictly. "The strict time limitation placed upon creditors who wish to object to a debt's dischargeability reflects the Bankruptcy Code's goal of providing debtors with a fresh start." State Bank & Trust, N.A. v. Dunlap (In re Dunlap), 217 F.3d 311, 315 (5th Cir.2000); Neeley v. Murchison, 815 F.2d 345, 347 (5th Cir.1987) (stating that Rule 4007 "places a heavy burden on the creditor to protect his rights"). But Bankruptcy Rules 4004 and 4007 can be and have been harmonized with other principles and rules without losing their strictness. See, e.g., Coston v. Bank of Malvern (In re Coston), 987 F.2d 1096, 1099 (5th Cir.1992) (holding that the deadline ran from the second setting of § 341 meeting when the initial proceedings were stayed due to the pendency of a related action in another state); Dunlap, 217 F.3d at 314-17 (holding that the "first date set" for creditors meeting does not mean the date set in the first notice if circumstances (like dismissal or an order of abatement) prevent creditor from filing timely complaint objecting to discharge); Official Comm. of Unsecured Creditors of the Project Grp., Inc. v. Crawford (In re Crawford), 347 B.R. 42,
The Court does not believe that Federal Rule 17 conflicts with Bankruptcy Rule 4007, be it however so strict. The rules are compatible, and both should be given force. What was in doubt here was the real-party-in-interest requirement of Federal Rule 17, not the timeliness requirement of Bankruptcy Rule 4007. As the Fifth Circuit has explained, a purpose of the strict time limits of Bankruptcy Rules 4004 and 4007 is "to promote the expeditious and efficient administration of bankruptcy cases by assuring participants in bankruptcy proceedings `that, within the set period of 60 days, they can know which debts are subject to an exception to discharge.'" Grossie v. Sam (In re Sam), 894 F.2d 778, 781 (5th Cir.1990) (quoting Neeley, 815 F.2d at 347-48) (emphasis added); see also Dunlap, 217 F.3d at 315 (quoting same language); Eric D. Fein, P.C. & Assoc. v. Young (In re Young), 425 B.R. 811, 817 (Bankr.E.D.Tex.2010) (quoting same language); Laboratory Corp. of Am. v. Avalos (In re Avalos), 361 B.R. 129, 132 (Bankr.S.D.Tex.2007) (quoting same language); FDIC v. Meyer (In re Meyer), 120 F.3d 66, 68 (7th Cir.1997) ("The force of Rule 4007(c) ... should fall first and foremost on whether a complaint was filed against a specific debt, not so much on who makes the complaint."). As this oft-quoted language reflects, participants in bankruptcy proceedings need to know which debts are being challenged — not necessarily who is challenging them. The "who" is, under Federal Rule 17, correctable after the fact. Here, for instance, whether the Individual Plaintiffs brought this action on their own behalf as limited partners or on behalf of the Investor Partnerships as assignees would appear to be of no importance to any participant in Whittington's bankruptcy. The alleged debt against which the complaint was filed, however, was a very important fact — and was the subject of a timely complaint.
Numerous cases, addressing the issue in various circumstances, support the Court's holding as to the intersection of Federal Rule 17 and Bankruptcy Rule 4007. These cases have allowed relation back after the correction of a "real party in interest" defect, including where the Bankruptcy Rule 4004 or 4007 deadlines would have been missed but for the relation back, where there is no prejudice to the defendant, and where Rule 17's requirements are met. One leading case is Meyer, out of the Seventh Circuit. 120 F.3d at 68. In Meyer, due to a chain of bank failures and takeovers, a large, non-dischargeable claim against the debtor had passed through the hands of numerous entities. One of these former creditors sought extension of the Rule 4007 deadline, and ultimately filed a timely complaint. It was not until almost a year later that, prompted to recognize its error by the debtor's objection, it substituted in the correct party in interest as the plaintiff. The court noted that the original complaint, while defective as to the party in interest, "put [defendant] ... on notice" that "some creditor in a daisy chain would contest the discharge" of the debt in question. Id. at 68. The court noted also that no prejudice was even alleged as a result of the "nominal error." Id.
There are numerous other, similar cases. See, e.g., Capobianco v. Trew (In re Capobianco), 248 B.R. 833, 836-41 (9th Cir.
For these reasons, the Court concludes that Plaintiffs meet the requirements of both constitutional and prudential standing, and that they may continue as Plaintiffs in this cause of action as if they were the real parties in interest as of the date the complaint was originally filed.
Under Texas law, claims for breach of fiduciary duty must be brought within four years of the alleged breach. TEX. CIV. PRAC. & REM.CODE § 16.004(a)(5); Suter v. Univ. of Tex. at San Antonio, 495 Fed.Appx. 506 (5th Cir.2012) (unpublished). Usually, causes of action, including breaches of fiduciary duty, "accrue[] when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury." Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998). As noted above, the Finley Property closing was June 11, 2004; the Hale Property closing was June 15, 2004; the Whitten Property closing was December 16, 2005; and the Perron Property closing was August 8, 2006. See supra note 4. If each claim accrued when each transaction occurred, as per the usual rule, then these claims — which were not brought until August 26, 2013, over seven years later — would be barred by the statute of limitations. For this reason, Whittington has moved for summary judgment on grounds that Plaintiffs' claims are time-barred.
Plaintiffs respond that the "discovery rule" defers accrual of their claim against Whittington. The Fifth Circuit has noted that "[u]nder Texas law, the discovery rule is an exception to the general rule that a cause of action accrues when a wrongful act causes some legal injury." TIG Ins. Co. v. Aon Re, Inc., 521 F.3d 351, 357 (5th Cir.2008); see S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996); Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996). "When applied, the discovery rule `defer[s] accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to a cause of action.'" TIG, 521 F.3d at 357 (quoting HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998)); see also Computer Assocs., 918 S.W.2d at 455.
A close companion to the discovery rule — and sometimes conflated with it — is the principle that estops a defendant from relying on a statute of limitations defense in cases "in which the wrongdoing is fraudulently concealed." S.V., 933 S.W.2d at 7. As the Texas Supreme Court has explained:
Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 n. 1 (Tex.1990).
In its thorough discussion of these linked principles in the case of S. V. v. R.V., the Texas Supreme Court, after surveying numerous cases, noted that Texas courts "have sometimes used the phrase [`discovery rule'] to refer generally to all instances in which accrual is deferred, including fraud and fraudulent concealment," and that "[a]t other times we have distinguished between fraudulent concealment and the discovery rule." 933 S.W.2d at 4. The Texas Supreme Court stated that it would "observe the distinction between the two categories because each is characterized by different substantive and procedural rules," but the court explained that in both categories, "the general principle is this: accrual of a cause of action is deferred in cases of fraud or in which the wrongdoing is fraudulently concealed, and in discovery rule cases in which the alleged wrongful act and resulting injury were inherently undiscoverable at the time they occurred but may be objectively verified." Id. at 4, 6.
Plaintiffs cited the "discovery rule" as their response to the statute of limitations defense, but they may also be entitled to deferral of the limitations on grounds of fraudulent concealment, which courts have characterized as "[t]he equitable estoppel effect of fraudulent concealment." A.W. v. Humble Indep. Sch. Dist., 25 F.Supp.3d 973, 991-92 (S.D.Tex.2014). To benefit from estoppel, Plaintiffs must show "(1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations." Id. (quoting Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex. 1998)).
While the preceding sections demonstrate that elements (1), (2), (3), and (5) are easily met, element (4) requires further analysis. Even if a plaintiff is "without knowledge," this element has been held to require "reasonable diligence" in investigation. "In an arm's-length transaction the defrauded party must exercise ordinary care for the protection of his own interests and is charged with knowledge of all facts which would have been discovered by a reasonably prudent person similarly situated." Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197, 205 (1957); see Kerlin v. Sauceda, 263 S.W.3d 920, 925 (Tex.2008) (requiring "exercise of reasonable diligence"). Of course, here, the parties were not transacting on an arm's-length basis, because they were within a fiduciary relationship. While "diligence in discovering the breach of fiduciary duty or fraud is required" in a fiduciary relationship as in an arm's-length relationship, nonetheless, the presence of a fiduciary relationship "affects ... the application of the rule." G. Prop. Mgmt., Ltd. v. Multivest Fin. Servs. of Tex., Inc., 219 S.W.3d 37, 49 (Tex.App.-San Antonio 2006, no pet.); Douglass v. Langehennig (In re Douglass), Adv. No. 08-1007, 2008 WL 2944568, at *12 (Bankr.W.D.Tex. July 25, 2008) (holding that fiduciary relationship should be a consideration in "determining whether the fraud might have been discovered through reasonable diligence" (quoting Powers v. McDaniel, 785 S.W.2d 915, 918 (Tex.App.-San Antonio 1990, writ denied))).
Courseview, 312 S.W.2d at 205; Duthu v. Pena, 228 F.3d 409, 2000 WL 1056126, at *7-9 (5th Cir.2000) (unpublished) (collecting cases).
This case presents precisely the sort of intentional concealment of ill-gotten profits (in the face of a duty to disclose such profits) that allows a plaintiff to benefit from equitable estoppel. See Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983) (holding that because a physician has a duty to "disclose a negligent act or fact that an injury has occurred," and physician failed to do so, cause of action was deferred until victim learned of the right of action); Gibson v. Burkhart, 650 S.W.2d 185, 188-89 (Tex.App.-Corpus Christi 1983) (applying doctrine to estop statute of limitations defense when fraud arose within fiduciary relationship); Zimmerman v. First Am. Title Ins. Co., 790 S.W.2d 690, 699 (Tex. App.-Tyler 1990) (same). As discussed extensively in the preceding sections of this opinion, Plaintiffs have more than met their "burden of coming forward with proof to support the allegation" of Whittington's fraudulent concealment of the facts underlying Plaintiffs' causes of action. Weaver v. Witt, 561 S.W.2d 792, 793 (Tex.1977) (noting that burden of proof to support fraudulent concealment allegations is on plaintiff).
Against this view, Whittington argues that Plaintiffs could and should have investigated more than they did. Whittington points to the fact that Gunn revealed the side-profits scheme to Plaintiffs in 2010, and he reasons that "[i]f [Plaintiff Gary Duncan] ... had just asked William Gunn, [Whittington's] ... partner, in 2006 he would have gotten the information he needed." Def. Resp. to Pl. M.S.J. on Affirm. Defs., ¶ 32. Similarly, he suggests that Plaintiffs "could have followed up with the title companies" to discover the true destination of their investment funds, back at the time of the transactions. Id. But the uncontroverted evidence is that Gunn and Whittington had consciously chosen not to reveal their profiteering scheme, and that Gunn revealed it only after he himself felt betrayed or ill-treated by Whittington, years after the transactions. Pl. M.S.J. on Affirm. Def., Duncan Aff., ¶ 11, Gunn Aff., ¶¶ 7-8. It is true that now, long after the fact, Gunn's retroactive deposition testimony is that, if he had been called in 2006, he "probably would have had to tell" Duncan about the scheme. Gunn Dep., 43. But this half-hearted statement is preceded by several pages that cast considerable doubt on it: There
But even crediting Whittington's assertion that Plaintiffs could have discovered the truth simply by asking Gunn, the Court cannot find that that Plaintiffs were obliged to engage in such an investigation. As the evidence shows, great care was taken to make sure that a parallel set of documents was produced to hide the side profits. The only conceivable "red flag" was the partially redacted Meadows at Kyle II/Perron Property contract that was sent to Plaintiff Gary Duncan. Far from "neglecting every precaution," Duncan followed up on this surprising document by specifically asking Whittington if he was receiving a side profit on the deal. Whittington answered that he was not. Whittington's suggestion that Duncan should have distrusted his fiduciary and sought more details from Gunn or from the relevant title companies is difficult to sustain — even construing the facts fully in Whittington's favor. "[Whittington] cannot lie to his potential investors ... and then, when the lies are discovered, cry foul because they should have known better than to trust him." Ward Family Found. v. Arnette (In re Arnette), 454 B.R. 663, 687-88 (Bankr.N.D.Tex.2011). Whittington apparently admitted to Duncan that there was a gap between the purchase price and the price the Investor Partnership was paying, and thus implicitly acknowledged that someone involved in the purchase was taking a developer's or finder's fee out of the purchase price. But he denied, when directly asked, that he was taking a piece of this excess. Thereafter, the Perron Property payments were structured so as to hide Whittington's cut: They were made through an intermediary (Gannaway) who then paid them into the trust fund of a lawyer (Jesse Whittenton), from which they were paid to Whittington or Whittington's fully owned entity, Madras. See Pl. M.S.J. on Liab., Exs. 48, 52, 53. In other words, far from being apparent, this fraud was covered over with great care. Even if a thorough investigation might have yielded insight into the discrepancies between the different sets of sale documents and allowed Duncan to clear his way through this layered fraud, Plaintiffs had no reason to engage in such investigation at the time of the transactions, or at any time before they were given more reason to be suspicious, in 2010.
In the cases where courts have denied equitable estoppel despite fraud by a fiduciary, the parties have been informed of at least some particulars indicating suspicious or fraudulent behavior. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 623-24 (Tex.2011) (declining to apply fraudulent concealment doctrine because plaintiffs were aware of numerous suspicious facts underlying their cause of action); Doe v. Henderson Indep. Sch. Dist., 237 F.3d 631, 2000 WL 1701752, at *4-5 (5th Cir.2000) (unpublished) (denying equitable estoppel because plaintiffs were aware of the facts of the injury they suffered even if they did not fully appreciate its practical or legal consequences); KPMG Peat Marwick v.
The case of Thomas v. Barton Lodge II, Ltd. provides a useful contrast to this case. 174 F.3d 636 (5th Cir.1999).
Typically, application of the fraudulent concealment doctrine requires fact-specific inquiries into reasonableness. But on this record, even with all facts construed in Whittington's favor, no reasonable fact-finder could hold that Plaintiffs "knew or should have known of [their] ... wrongful injury." USPPS, Ltd. v. Avery Dennison Corp., 326 Fed.Appx. 842, 848-50 (5th Cir. 2009) (unpublished). Without more reason for suspicion, Plaintiffs were entitled to trust the documents and explanation provided by their fiduciary Whittington. Equitable estoppel applies under these circumstances.
Even if the application of the statute of limitations were not equitably estopped by
"The determination of whether the discovery rule applies to a particular cause of action is a question of law." TIG, 521 F.3d at 357; see also Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 567 (Tex.2001) ("[W]hen a cause of action accrues is a question of law, not fact."); Computer Assocs., 918 S.W.2d at 456 (declining to extend discovery rule to misappropriation of trade secret cases). "Importantly, the Texas [Supreme] court explained that whether the discovery rule applies is determined categorically," by general inquiry into the relevant type of injury, as opposed to factual inquiries regarding a specific injury. TIG, 521 F.3d at 358 (citing HECI, 982 S.W.2d at 886); cf. Kerlin, 263 S.W.3d at 925-26 (noting that "the discovery rule differs from fraudulent concealment in that its applicability is determined on a categorical basis"). Under the "categorical approach," the Court analyzes the aspects of a cause of action to determine whether such actions should benefit from the discovery rule.
Even if the discovery rule applies to a cause of action "categorically," the delayed accrual of the claim can present fact issues — including what would have been a reasonably diligent investigation under the circumstances of a particular case. See, e.g., Willis, 760 S.W.2d at 647 (deciding as a matter of law that the discovery rule applied to attorney-client negligence cases, and then stating that "the claimant has the burden of pleading and proving facts suspending operation of a statute of limitations"); Barker v. Eckman, 213 S.W.3d 306, 312 (Tex.2006) (refusing to find that the trial court "could have determined that the discovery rule applied as a matter of law under the state of pleadings and the record" because "exactly when [plaintiff] should have known [of the wrong] ... was disputed"). Here, for purposes of ruling on Plaintiffs' summary judgment motion, the Court construes fact issues in Whittington's favor. As discussed in the preceding section, that means that the Court will accept Whittington's assertions that Gunn would have told the truth earlier if he had been asked about the side profits by Plaintiffs, and that an investigation of the documents with the title company could eventually have led Plaintiffs to discover the well-hidden destinations of significant portions of their investments. The discussion that follows assumes those facts are true.
In order to determine the discovery rule's applicability, Texas law requires "that the nature of the injury must be inherently undiscoverable and that the injury itself must be objectively verifiable." Id. (quoting HECI, 982 S.W.2d at 886).
There is no dispute over the second requirement, that the injury be objectively verifiable. The cases where courts have found this element lacking are, for instance, cases where subjective impressions and extensive expert testimony are required to establish an injury. See generally S.V., 933 S.W.2d at 7-8 (collecting and discussing cases). By contrast, cases where documents, records, or other objective evidence reflect the injury — including injury by self-dealing, misrepresentation, and breach of fiduciary duty — courts have held that the "objectively verifiable" element is met. See id. Whittington's self-dealing is, as Plaintiffs put it, "a prototypical example of an objectively verifiable injury." Pl. M.S.J. on Affirm. Defs., 12. Whittington did not contest this element in his responsive briefs, and the Court holds that Plaintiffs have fulfilled its requirement.
The other element of the discovery rule test requires that the injury be
Looking to the facts of this case, Plaintiffs assert that they were unaware of any injuries until December 20, 2010, and Whittington does not contest that. Whittington claims that they should have become aware of the wrongdoing earlier. But Whittington's suggestion that Plaintiffs could have asked Gunn concerning side profits or pressed an investigation with the title company does little to refute the presumption of inherent undiscoverability in this fiduciary context.
The Court disagrees with Whittington's idea that Plaintiffs had to look behind the answer of their fiduciary to ask the same questions of Gunn or of the title company, who did not owe them the same duties that Whittington did. Again, the relevant principle seems to be that "[Whittington] cannot lie to his potential investors ... and then, when the lies are discovered, cry foul because they should have known better
The cases cited by Whittington are not analogous. For instance, in the Fifth Circuit case of Suter v. University of Texas at San Antonio, a professor alleged that her university employer mishandled funds that were meant to support her in establishing a laboratory when she began employment with the university. 495 Fed.Appx. 506, 510-11 (5th Cir.2012) (unpublished). She alleged that university administrators failed to inform her of deadlines related to the availability and use of her research funds. But the professor had received a letter that highlighted that there was a schedule for when she needed to use her available funds; although the actual deadline was not specified, the letter put her on notice that there was a deadline, particularly because she could have inquired of the university or of the National Institutes of Health to request more information. Id. at 511. Importantly, the Fifth Circuit noted that there was no reason to think that if she had inquired, the university "would have misrepresented such information or otherwise withheld it from her." Id. Obviously, Whittington's breach is very different from the university's alleged breach in Suter, since he very clearly misled Plaintiffs — by affirmative misstatement, by intentionally withholding material information, and by the related document-based deceptions. To the degree they were put on notice by the Meadows at Kyle II/Perron Property contract, they investigated, and Whittington misrepresented the relevant information.
Even construing the contested facts in Whittington's favor, the discovery rule applies to this situation. It delayed the accrual of Plaintiffs' cause of action until they actually learned of their injury in 2010. Accordingly, Whittington's statute of limitations defense is denied.
Whittington has alleged that certain equitable doctrines, namely fraud, unclean hands, and laches, should bar Plaintiffs' recovery. On these affirmative defenses, Whittington bears the burden of proof. Elmo, 2008 WL 2200265, at *1. Thus, for Plaintiffs to win summary judgment on these defenses, they must "point to the absence of any fact issue in the record, and the evidentiary burden shifts to the non-moving party to show with `significant probative' evidence that there exists a triable issue of fact." Century Savings & Loan, 1994 WL 171463, at *2 (unpublished) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548). Plaintiffs have pointed to the absence of fact issues concerning these claims, and Whittington must point to evidence of triable issues supporting his defenses.
The only factual basis on which Whittington suggests these doctrines should apply is Duncan's denying Whittington a promised commission for the September 2012 closing of a resale of the Meadows at Kyle I property. See Def. Resp. to Pl. M.S.J. on Affirm. Defs., ¶¶ 35-38; Duncan Dep., 57-58 (Duncan acknowledging that "[a]t some point I made a decision" not to pay Whittington's commission on the September 2012 deal). The parties settled this dispute, and the settlement provided in part that the commission that was owed to Whittington "was forfeited by you" (i.e.,
"The clean hands doctrine requires that one who seeks equity, does equity. Equitable relief is not warranted when the plaintiff has engaged in unconscionable, unjust, or inequitable conduct with regard to the issue in dispute." Dunnagan v. Watson, 204 S.W.3d 30, 41 (Tex. App.-Fort Worth 2006, pet. denied) (internal citations omitted). "The clean hands doctrine should not be applied unless the party asserting the doctrine has been seriously harmed and the wrong complained of cannot be corrected without the application of the doctrine." Id. Even crediting Whittington's account of the events fully, under the circumstances it is difficult to see how Plaintiffs' actions could be considered inequitable. Plaintiffs were in a tough spot due to what they discovered in 2010 concerning the earlier land purchases. They had discovered that their fiduciary had violated his duties, yet they were unavoidably involved in land partnerships with him and his associates. Some strategic behavior on their part is understandable and, as a matter of law, does not rise to the level of inequity. That fact is further underscored by the settlement agreement that the parties signed, which essentially resolved the September 2012 issues, i.e., the "wrong complained of." In addition, the settlement agreement undermines the notion that Whittington ever was or remained "seriously harmed" enough to trigger this doctrine. Finally, the relevant behavior, even if inequitable, is not sufficiently connected "to the issue in dispute," which is of course not the re-sale of the land by the partnership in September 2012, but rather its original sale to the partnership. Unclean hands is, here, no defense.
"The defense of laches requires proof of (1) a party's unreasonable delay in asserting a legal or equitable right, and (2) a good-faith detrimental change of position by another because of the delay." Fox v. O'Leary, No. 03-11-00270-CV, 2012 WL 2979053, at *3 (Tex. App.-Austin July 10, 2012, pet. denied) (unpublished). Whittington provides no explanation of what "good-faith detrimental change of position" was caused by Plaintiffs' delay in bringing this cause of action. Nor does he provide any reason to think the delay was unreasonable, given when the conduct actually came to light, and given the breach of trust that was at the core of the problem. Whittington simply states that Duncan "for his own economic benefit, intentionally delayed filing this action for three (3) years." Def. Resp. to Pl. M.S.J. on Affirm. Defs., ¶ 37.1. But his allegations do not describe an unreasonable delay. There is nothing inherently unreasonable about acting to one's own "economic benefit," nor in delaying for a time to assert one's rights, particularly when significant investigation into land documents and other facts is required, or when one wants to extricate oneself from certain investments or partnerships before bringing suit. In fact, Texas courts have held that "[a]s a general rule, laches will not bar a plaintiff's suit before the statute of limitations has run absent `extraordinary
As far as fraud, Texas law requires the following elements to make out a fraud claim:
Fluorine On Call, Ltd. v. Fluorogas Ltd., 380 F.3d 849, 858 (5th Cir.2004) (quoting Coffel v. Stryker Corp., 284 F.3d 625, 631 (5th Cir.2002)). Even if the behaviors as alleged could meet some of these elements, the sixth element, loss, is difficult to sustain in light of the settlement agreement. The parties reached a comprehensive set of agreements based on their obligations to one another at that time, and the Court is reluctant to look past the settlement document into what remaining "loss," if any, Whittington can be said to have suffered at that time.
Furthermore, even if Whittington could make out an independent fraud claim based on the September 2012 transaction, he does not explain how it could serve as an affirmative defense to the claims at hand, which are based on distinct activities from years before. There is simply no nexus between the alleged fraud and the dispute at hand. Whittington's fraud defense must fail.
Plaintiffs have pointed to a lack of a "fact issue in the record" concerning any of these issues. Thus the burden shifted to Whittington. He has failed to show "significant probative evidence" of a "triable issue of fact." Century Savings & Loan, 21 F.3d at 1107. The Court grants summary judgment to Plaintiffs on Whittington's affirmative defenses of unclean hands, fraud, and laches.
In relevant part, § 523(a)(2)(A) covers "any debt ... for money ... to the extent obtained by ... a false representation, or actual fraud...." This section has been held to cover "all liability arising from fraud," including for instance restitution, exemplary damages, and attorneys' fees. Cohen v. de la Cruz, 523 U.S. 213, 215, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998); see also In re Gober, 100 F.3d 1195, 1208 (5th Cir.1996) (analyzing whether damages claims "arise out of the same set of transactions ... underlying [creditor's]... objection to dischargeability"). The same principle applies to claims under § 523(a)(4), which covers "any debt ... for fraud or defalcation while acting in a fiduciary capacity"; a court must ascertain the degree to which the debt in question "arises from" the fraud while in a fiduciary capacity. See Smiedt v. Williams (In re Williams), Adv. No. 13-4062, 2014 WL 2624911 (applying Cohen "arising from" test to § 523(a)(4) context).
Here, because there is no pre-existing judgment on Plaintiffs' claims, the Court must determine the amount of Whittington's liability arising from fraud and breach of fiduciary duty by looking to the damages that Whittington owes Plaintiffs under the relevant Texas state law. See Morrison v. W. Builders of Amarillo, Inc. (In re Morrison), 555 F.3d 473, 479 (5th Cir.2009) (finding that bankruptcy courts have jurisdiction to determine the amount of a debt arising under state law causes of action, and noting that "[l]ogically, the litigation necessary to prove nondischargeability
Whittington argues that even if the Court finds him liable for fraud or a breach of fiduciary duty, damages are not due to Plaintiffs because the Investor Partnerships and limited partners did not suffer any losses. Indeed, he argues, they got a good deal, paying a fair price under the circumstances then existing, no matter whether some of the money ended up in his pocket instead of with the actual sellers of the land.
But Texas precedent teaches that having breached his fiduciary duties, committed fraud, and received secret profits as a result, Whittington may not escape Plaintiffs' claims by appealing to some hypothetical, alternate world in which his fees might have been deemed acceptable or reasonable, if they had been disclosed. Plaintiffs are entitled to recover at least what Whittington himself gained through his fraud.
Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 514 (1942) (quoting United States v. Carter, 217 U.S. 286, 305, 30 S.Ct. 515, 54 L.Ed. 769 (1910)). Whittington cannot receive a commission for his alleged efforts at development, because, as the Fifth Circuit has held, "[u]nder Texas law, a fiduciary who breaches his duties forfeits his right to compensation as a matter of law." LSP Inv. P'ship v. Bennett (In re Bennett), 989 F.2d 779, 791 (5th Cir.1993); see also Watson v. Ltd. Partners of WCKT, Ltd., 570 S.W.2d 179, 182 (Tex.Civ.App.-Austin 1978, writ ref'd n.r.e.) (breach of fiduciary duty "automatically results in the forfeiture of the agent's compensation" (quoting Russell v. Truitt, 554 S.W.2d 948, 952 (Tex.Civ. App.-Fort Worth 1977, writ ref'd n.r.e.))). While the parties (and some courts, see, e.g., Bennett, 989 F.2d at 790) discuss this remedy as "restitution," it can also be characterized more specifically as "disgorgement." The Fifth Circuit has explained that:
S.E.C. v. Huffman, 996 F.2d 800, 802 (5th Cir.1993) (internal citations omitted); see also Restatement (Third) of Restitution and Unjust Enrichment § 51, comment a (2011) ("Restitution measured by the defendant's wrongful gain is frequently called `disgorgement.'"). Whatever term is used, the bottom line is that under clear Texas law, Whittington will owe a non-dischargeable debt for the gains that he, G & W, and Madras received from the Challenged Transactions. This, at a minimum, is the debt — proximately caused by his deceit, his breach of duty, and fraud — that has been here held non-dischargeable.
But Plaintiffs request more than this easily supported damages award, claiming they are entitled to the entire difference between what they paid for the land and what the sellers of the land received — approximately $1.7 million. In other words, they seek to put Whittington on the hook not only for the profits he made from the transactions (including through G & W and Madras, Inc.), but also the profits taken — with his knowledge — by his associates (including through Hays Land Partners, Ltd.; C.L.A.F. Co., LLC; and John Trube).
Some cases support an extension of liability beyond the breacher of fiduciary duties, to his associates who knowingly participate in the breach. The Kinzbach court noted that "[i]t is settled as the law of this State that where a third party knowingly participates in the breach of duty of a fiduciary, such third party becomes a joint tortfeasor with the fiduciary and is liable as such." 160 S.W.2d at 514. In Daniel v. Falcon Investment Realty Corp., as a result of a fiduciary's breach of duty, the other associates (his family members)
There is some evidence in the record suggestive of knowledge of the scheme on the part of Trube, Gannaway, and the rest. But at this point, the evidence does not establish their knowing participation in a breach of fiduciary duty. See Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 722 (Tex.App.-Austin 2001, pet. denied) (no claim against supposed joint tortfeasor where no showing of knowing participation). Nor, of course, could the Court, consistent with Due Process, find these non-parties liable as "joint tortfeasors," as they have had no opportunity to defend themselves. What Plaintiffs seek is to put Whittington on the hook for all of the amounts taken secretly on top of what was paid to the sellers of each property, including the amounts taken by his associates.
Case law provides some support for extending a fiduciary's liability beyond what the fiduciary himself directly took. For instance, the bankruptcy court in Jones awarded restitution in the form of a non-dischargeable § 523 debt, based on partnership funds misappropriated by the debtor and his associates (who used the partnership funds as the debtor's "own personal piggy bank"), after a close review of business records and with the aid of expert testimony. Mullen v. Jones (In re Jones), 445 B.R. 677, 717-18 (Bankr. N.D.Tex.2011). As noted, § 523 exempts from discharge all liabilities arising from the misrepresentations, failures to disclose, and fraudulent acts in a fiduciary capacity. Cohen, 523 U.S. at 223, 118 S.Ct. 1212. The case law suggests that the Court has some discretion in determining the appropriate quantum of damages. See, e.g., Taylor Publ'g Co. v. Jostens, Inc., 216 F.3d 465 (5th Cir.2000) (noting that "because damages are difficult to prove in breach of fiduciary duty cases, litigants and courts must be flexible and imaginative in calculating the proper measure of damages"); Jones, 445 B.R. at 716 (citing Bennett, 989 F.2d at 790-91, and noting that various remedies are available for breach of fiduciary duty to limited partners); ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 873 (Tex.2001) (noting that "courts may fashion equitable remedies such as profit disgorgement and fee forfeiture to remedy a breach of fiduciary duty" and outlining considerations to be taken into account).
While the Court may eventually award further damages, the record is inadequate to support a further award at this time. The Court will consider additional testimony and evidence concerning whether Whittington should be held accountable for the amounts that went to the third parties, as misappropriated partnership funds. Even the funds that did not go to Whittington personally may have benefitted his commercial associates at the expense of the partners and partnerships to whom he owed duties, including the duties to advise them of all material information concerning the transactions.
At a hearing on this issue, the Court's considerations will include each transaction as a whole, each player's role in it, and the value (if any) provided by the recipients of payments. If it becomes apparent that the funds that went to Whittington's associates
Plaintiffs have also requested an award of attorneys' fees, interest, and exemplary damages. Under Texas case law, "exemplary damages would be proper where `a fiduciary has engaged in self-dealing,'" and where the plaintiff can prove by clear and convincing evidence that the debt arose by actual fraud, malice, or gross negligence. Jones, 445 B.R. at 719 (Bankr.N.D.Tex.2011) (quoting Murphy v. Canion, 797 S.W.2d 944, 949 (Tex. App.-Houston 1990, no pet.) (citing TEX. CIV. PRAC. & REM.CODE §§ 41.001, 41.003)); see also Lesikar v. Rappeport, 33 S.W.3d 282, 311 (Tex.App.-Texarkana 2000, pet. denied) (upholding punitive damages award where fiduciary engaged in self-dealing, because in such a situation fraudulent intent is presumed); Natho v. Shelton, No. 03-11-00661-CV, 2014 WL 2522051, at *2 (Tex.App.-Austin May 30, 2014, no. pet. h.) ("When a fiduciary intentionally breaches his duty by self-dealing and thereby gaining a benefit for himself, willful and fraudulent acts are presumed."); Drexel Highlander Ltd. P'ship v. Edelman (In re Edelman), No. 13-3078, 2014 WL 1796217, at *29-31 (Bankr.N.D.Tex. May 6, 2014) (applying the presumption of intent in Lesikar, 33 S.W.3d at 311, to support an exemplary damages award). As noted, bankruptcy law permits these additional awards to be deemed part of a nondischargeable debt so long as they arise from the acts that led to this Court's nondischargeability finding. Cohen, 523 U.S. at 223, 118 S.Ct. 1212.
Plaintiffs may well be entitled to these additional grounds for relief, but making all the findings necessary to support awards of exemplary damages, attorneys' fees, and interest will require more evidence than is in the record at this point. The Court will set a hearing to consider all these remaining matters so that this adversary proceeding may be brought to an end.
For the reasons stated above, the Court will grant summary judgment to Plaintiffs on all matters but their request for damages, which is granted only in part, as to the amounts taken by Whittington and the entities in which had a direct stake. Whittington's motion will be denied in its entirety.
The amount of Whittington's non-dischargeable debt, which may include awards of restitution/disgorgement, interest, attorneys' fees, and punitive damages, will be determined a future hearing.
An order will issue to this effect.
Fluorine On Call, Ltd. v. Fluorogas Ltd., 380 F.3d 849, 858 (5th Cir.2004) (quoting Coffel v. Stryker Corp., 284 F.3d 625, 631 (5th Cir. 2002)). Similarly:
Drexel Highlander Ltd. P'ship v. Edelman (In re Edelman), No. 13-3078, 2014 WL 1796217, at *34 (Bankr.N.D.Tex. May 6, 2014).
Although formally speaking, Whittington's debt arises under Texas law concerning fraud and breach of fiduciary duty, and then is held nondischargeable under federal bankruptcy law, as a practical matter, insofar as the bankruptcy elements are met, these Texas law tests have been met as well. The Court will focus (as the parties did) on the federal non-dischargeability requirements, providing additional comments on the state liability standards as needed.
