WILLIAM M. CONLEY, District Judge.
In this appeal from an adversary proceeding in bankruptcy, plaintiff-appellant Katherine Hebl challenges a finding that her state court judgment against defendant-appellee Bradley Windeshausen was not excepted from discharge under 11 U.S.C. § 523(a). The appeal contests both the bankruptcy court's legal conclusion that Hebl did not establish the amount of the debt and its factual determination that Windeshausen lacked the intent required to prevent a discharge under 11 U.S.C. § 523(a)(4). Hebl also contends that the doctrine of issue preclusion should have barred the bankruptcy court from reviewing her state court judgment. For the reasons that follow, the court will affirm the bankruptcy court's orders.
Plaintiff-appellant Katherine Hebl began working as a waitress at a bar called Whiskey Dicks, which was co-owned and controlled by defendant-appellee Bradley Windeshausen, in 2006. Shortly after, the two became romantically involved. When Windeshausen's co-owner decided to leave the business in 2007, the three decided collectively that Hebl would buy out the co-owner's share of Whiskey Dicks. At the time, Hebl was 21 and Windeshausen was 38.
In keeping with their understanding, Hebl agreed to pay $65,000 over the course of 40 months to acquire an interest in Whiskey Dicks. Furthermore, Hebl and Windeshausen apparently agreed that in order to become a full, 50% owner, she would need to match his investment of $365,000 in the business. Hebl proceeded to borrow that amount from her family and invested it into Whiskey Dicks and into Untouchables Enterprises, LLC, which was also controlled by Windeshausen and held title to the real property on which the bar sat.
Around the same time, Hebl and Windeshausen signed a membership agreement that stated that they would split Whiskey Dicks' profits and losses equally. (Bankr. dkt. # 33-6 at pp.5-10.) However, that seemingly straightforward agreement was complicated by the practicalities of
No formal line delineated these duties, and sometimes each would assume different roles, but this was the general pattern for the three and a half years in which the two co-owned Whiskey Dicks. Meanwhile, apparently because the two were living together, Windeshausen would draw more than his expected 50% from Whiskey Dicks to pay their joint living expenses. In contrast, Hebl did not take a regular draw, beyond what was needed to repay the loans she took to acquire her interest in the business, but did take cash and occasionally charged expenses to Whiskey Dicks.
Sometime in 2011, both Hebl and Windeshausen's business and personal relationships deteriorated. In particular, Hebl discovered that Windeshausen had been concealing the extent of his withdrawals from the business, and he had taken more than she had realized, both for himself and for his separately-owned construction company. After this discovery, the two formed a new business arrangement to limit their interaction at the bar, which was predictably short-lived.
In 2012, Hebl brought a state court action against Windeshausen, alleging both conversion and breach of contract. (Bankr. dkt. # 33-3.)
Following the state court proceedings, Windeshausen filed for Chapter 7 bankruptcy in the Western District of Wisconsin. See In re Windeshausen, No. 15-10704 (Bankr. W.D. Wis. Feb. 28, 2015). Hebl filed an adverse proceeding, seeking a finding of nondischargeability of her $310,000 judgment under 11 U.S.C. § 523(a)(2) and § 523(a)(4). Hebl v. Windeshausen, No. 15-00083 (W.D. Wis. June 2, 2015). In response to Hebl's initial motion for summary judgment, the bankruptcy court held that the nondischargeability provision of the arbitration agreement was unenforceable, and further that the lack of findings in the state court judgment and underlying arbitration decision prevented the court from knowing whether the judgment stemmed from Hebl's contract claim or from her conversion claim. (Bankr. dkt. # 21.) Since the source of the state judgment was unknown, the bankruptcy court reasoned that an evidentiary hearing was necessary to determine whether the elements of any provision of 11 U.S.C. § 523(a) were satisfied by the arbitration
Shortly before the scheduled hearing, Windeshausen filed his own motion for judgment as a matter of law, which the bankruptcy court granted orally as to the § 523(a)(2) claim of nondischargeability, but denied as to § 523(a)(4). (Hearing Tr. (dkt. # 3-2) 7-14.) As to the § 523(a)(2) claim, the court determined that Windeshausen could not be found to have committed actual fraud absent some proof that he intentionally made a false statement regarding the distribution of business funds. (Id. at 10-11.) As to the § 523(a)(4) claim, the court again determined that an evidentiary hearing was necessary.
Following that hearing, the bankruptcy court rejected Hebl's claim of nondischargeability for several reasons. (Bankr. dkt. # 51.) Initially, the court found that because Hebl had equal access to and control over the business finances, Windeshausen was not her "fiduciary" under § 523(a)(4), and so he could not have committed fraud or defalcation. Next, the court held that Windeshausen had not committed embezzlement as defined in § 523(a)(4), relying primarily on a factual finding that Windeshausen had not intended to hold money belonging to Hebl, but rather made draws to pay for joint expenses to which Hebl had acquiesced. Similarly, the court determined that Windeshausen had not committed larceny because he had the legal authority to make draws from the business. Finally, the bankruptcy court found that Hebl had not established the amount of any arguable nondischargeable debt, since she failed to provide enough credible evidence as to how much of the state court judgment stemmed from her conversion claim, as opposed to a breach of contract.
In her adversary proceeding below, Hebl asserted nondischargeability of the debt owed to her by Windeshausen under 11 U.S.C. § 523(a)(2)(A) and (a)(4), which provides in pertinent part:
While on appeal, Hebl appears to pursue only her claim under § 523(a)(4). The court will consider the exceptions to discharge under § 523(a)(2)(A) as well because both provisions require a finding of an intent to defraud.
True to its express language, a finding on nondischargeability under § 523(a)(2)(A) requires a showing of fraud. "To prove that a debt is non-dischargeable because of fraud, a creditor must prove by a preponderance of evidence that `(1) the debtor made a false representation or omission, (2) that the debtor (a) knew was false or made with reckless disregard for the truth and (b) was made with the intent to deceive, (3) upon which the creditor justifiably relied.'" Burse v. Gottlieb, 621 F. App'x 852, 855 (7th Cir. 2015) (quoting Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir. 2010)).
Section 523(a)(4) effectively provides two exceptions to discharge: (1) fraud or defalcation while acting as a fiduciary; and (2) embezzlement or larceny, which does not require a showing a fiduciary relationship. See In re Pawlinski, 170 B.R. 380, 390 (Bankr. N.D. Ill. 1994) ("While Green had to show the existence of fiduciary relationships to establish that certain parts of the judgment debts arose from defalcation, the establishment of a fiduciary relationship is not necessary when embezzlement is proven." (citing 3 Collier on Bankruptcy, ¶ 523.14, p. 523-102 (15th ed. 1992)).
Hebl purports to appeal four of the bankruptcy court's rulings, asserting reversible error as to each: (1) the refusal to find issue preclusion with respect to the arbitration award; (2) the legal conclusion that plaintiff did not establish the amount of the nondischargeable debt; (3) the admission of new evidence that had not been presented at the state arbitration; and (4) the determination that defendant's conduct lacked the intent required to fall under the exceptions to discharge in 11 U.S.C. § 523(a). Although appellant portrays these arguments as independent bases for reversal, the first three all speak to the same underlying issue: whether the state court arbitration award and judgment established the elements necessary for non-dischargeability under § 523(a) as a matter of law? The last challenge to the court's finding of a lack of fraudulent intent or deceit is obviously based on a claimed error of fact. This court reviews the bankruptcy court's findings of fact deferentially for clear error and its legal conclusions de novo. See In re Doctors Hosp. of Hyde Park, Inc., 474 F.3d 421, 426 (7th Cir. 2007) (citing Fed. R. Bankr. P. 8013; In re Crosswhite, 148 F.3d 879, 881 (7th Cir. 1998)).
The court reviews the bankruptcy court's refusal to apply issue preclusion de novo as a question of law. Reeves v. Davis (In re Davis), 638 F.3d 549, 553 (7th Cir. 2011) ("Whether the issue of intent was litigated and resolved in the state court action, as required for application of collateral estoppel, is [a] question of law."). Hebl contends that "[t]he state court judgment, arising from the arbitration is a final judgment on the merits of the conversion claim," and therefore entitled to preclusive effect. (Appellant's Opening Br. (dkt. # 6-1) 14.) The determination of whether issue preclusion applies is governed by Wisconsin law. See Stephan v. Rocky Mountain Chocolate Factory, Inc., 136 F.3d 1134, 1136 (7th Cir. 1998) ("Because a Colorado court rendered the default judgment, Colorado
Appellant's argument for issue preclusion fails to clear even the first requirement because the elements for satisfying § 523(a)(2)(A) or § 523(a)(4) were not actually litigated and determined by the state court judgment. As described above, Hebl brought claims for both breach of contract and conversion. Unfortunately, the arbitrators provided no explanation for their finding in Hebl's favor and awarding her $310,000. As Judge Furay pointed out, "[b]ecause there were no findings of fact or conclusion of law in the arbitration award, it is not possible to determine whether the elements for any claim under section 523 were present and satisfied by the arbitration award." (Bankr. dkt. # 21 at 12.) Appellant nevertheless again contends on appeal that the arbitrators must have relied on her conversion claim because: (1) "the arbitration briefs, the damage analysis and the other evidence indicate that [the breach of contract claim] was not the claim at arbitration"; and (2) "[t]he trial court did not make a finding that the debt arose out of a breach of contract claim, nor could such a finding be made on this evidence." (Appellant's Opening Br. (dkt. # 6-1) 17.) This argument, however, falls short of demonstrating that the arbitrators actual found conversion in Hebl's favor for purposes of issue preclusion under Wisconsin law.
Even if such a finding could be made, however, the appellant has a more fundamental problem: fraud is not an element of a conversion claim under Wisconsin law. Assuming again that the arbitrators found conversion, they need only have found: (1) intentional control or taking of property belonging to Hebl; (2) without Hebl's consent; which (3) resulted in serious interference with Hebl's right to possess the property. See First Weber, 738 F.3d at 773 (citing H.A. Friend & Co. v. Prof. Stationery, Inc., 294 Wis.2d 754, 720 N.W.2d 96, 100 (Wis. Ct. App. 2006)). Moreover, even appellant acknowledged that the embezzlement exception under § 523(a)(4) requires a showing of conversion "with fraudulent intent." (See also Appellant's Opening Br. (dkt. # 6-1) 18 (emphasis added).) Having reviewed the arbitration award and the state court judgment confirming that award, the court must affirm the bankruptcy court's legal
More narrowly, appellant also argues that the bankruptcy court committed an error of law by finding that she had not established the existence and amount of the appellee's debt to her. However, this is an obvious mischaracterization of that court's holding. Rather, the bankruptcy court held the appellant had failed to establish the existence and amount of any nondischargeable debt. That finding in turn springs from the larger dispute concerning the basis of the state court judgment already addressed. In short, the bankruptcy court certainly did not hold that appellant had not established the existence of a $310,000 debt. Indeed, the judgment in that amount is what gave her standing to pursue full payment in the bankruptcy court to begin with. That court held the appellant failed to establish by a preponderance of the evidence how much — if any — of that debt was nondischargeable. Accordingly, this argument is a non-starter.
Appellant last argues that the bankruptcy court considered evidence the appellee had the opportunity to introduce as part of the state court arbitration but failed to do so, and that the court's reliance on that evidence in determining the appellee's lack of a fraudulent intent or deceit was an error of law. Appellant may well be correct that a party should not relitigate in bankruptcy court an issue already decided in state court. As discussed above, however, the issue of appellee's fraudulent intent was not litigated in the state court, or, at the very least, not under the standard applicable in this bankruptcy proceeding. Since the bankruptcy court made the factual determination that the arbitration had not established conversion, let alone fraudulent intent, it was not precluded from hearing the parties' evidence and argument on intent never before the state court and arbitrators.
Having found no error in the bankruptcy court's treatment of the state court judgment, the court now considers the bankruptcy court's determination that appellant failed to demonstrate non-dischargeability, and in particular, failed to establish fraudulent intent on the part of appellee. Despite appellant's best efforts to show otherwise, the question of appellee's fraudulent intent for purposes of § 523(a) is one of fact, which "is subject to the highly deferential `clearly erroneous' standard of review." Reeves, 638 F.3d at 553.
In both the oral opinion and written decision, the bankruptcy court thoroughly reviewed the testimony and other evidence, explaining in detail the reasoning behind the finding that appellant had failed to meet her burden of demonstrating fraudulent intent, among other elements of nondischargeability. (Bankr. dkt. # 51; Hearing Tr. (dkt. # 3-2) 7-14.) Specifically, the bankruptcy court considered Hebl's and Windeshausen's respective testimony and found Windeshausen more credible in
Moreover, Judge Furay reviewed the testimony of other employees of the LLC, concluding that the testimony supported a finding that (1) both Hebl and Windeshausen regularly took cash out of the business and (2) Hebl was aware of Windeshausen's removal of funds. Thus, the evidence undermines a finding of larceny, which requires that the property was taken unlawfully, with respect to some, if not most, of the money that Windeshausen took from the business. Finally, with respect to the embezzlement claim, the bankruptcy court concluded that in light of the fact that the "funds taken were also used for joint living expenses and Hebl consented to — or at least acquiesced in — having Windeshausen pay those expenses from LLC funds," appellant failed to demonstrate that Windeshausen acted with the necessary fraudulent intent or deceit. (Bankr. dkt. # 51 at p.15.) The bankruptcy court's treatment of the evidence and thorough explanation of its ultimate findings is, therefore, more than sufficient to satisfy the clear error standard of review. See Dexia Credit Local v. Rogan, 629 F.3d 612, 628 (7th Cir. 2010) ("When there are two permissible views of the evidence, the [court]'s choice between them cannot be clearly erroneous.").
IT IS ORDERED that the bankruptcy court's denial of appellant Katherine Hebl's claim for nondischargeability is AFFIRMED.
