Dresser v. Arient

33 F. App'x 860

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 2002
• Docket: No. 00-56645; BAP No. SC-99-01713-RyMaR
• Status: Published

Opinion

MEMORANDUM

*

Darrell A. Dresser appeals a decision of the Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy court. We have jurisdiction over appeals from the BAP pursuant to 28 U.S.C. § 158(d), and we affirm.

Dresser filed an adversary proceeding in the bankruptcy case of Marie-Antoinette Arient, contending that a debt owed to him by Arient was not dischargeable pursuant to 11 U.S.C. § 523(a)(4) or (a)(6).¹ The bankruptcy court held that the debt was dischargeable because neither exception to dischargeability applied; the BAP affirmed. We review decisions of the BAP de novo, independently reviewing the bankruptcy court’s rulings. Contractors’ State License Bd. v. Dunbar (In re Dunbar) 245 F.3d 1058, 1061 (9th Cir.2001).

11 U.S.C. § 523 provides, in part, that a discharge in bankruptcy does not discharge a debtor from a debt “for fraud or defalcation while acting in a fiduciary capacity,” or “for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(4) & (6).² In order to fall within the meaning of § 523(a)(4), the fiduciary relationship must arise from an express or technical trust, not a constructive, resulting, or implied trust. Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1185 (9th Cir.1996). Dresser argues that an express trust was created by virtue of Arient’s agreement to hold the stock for his benefit as part of his estate plan. However, Dresser has submitted no documentary evidence to support this contention, and the transfer of the stock is absolute on its face. The only evidence of Dresser’s intent to create a trust is Dresser’s word, and the Supreme Court of Arizona has stated that “[t]he law is settled in this jurisdiction that an express trust based upon an oral promise modifying the terms of a conveyance absolute upon its face may not be shown.” King v. Uhlmann, 103 Ariz. 136, 437 P.2d 928, 936 (Ariz.1968) (citation and internal quotation marks omitted).

Furthermore, the record does not support Dresser’s contention that the divorce decree “conclusively established” that Dresser placed the stock in Arient’s name solely for estate planning purposes and that Arient agreed to such a plan. The divorce decree did not address Dresser’s allegations that he transferred the stock to Arient for estate planning purposes only, and the Arizona Court of Appeals declined to address the issue.

Nor can Dresser rely on the stock’s being community property in order to establish that Arient was acting in a fiduciary capacity. The title to the stock was in Arient’s name, and Dresser transferred it to her prior to their marriage; the divorce decree subsequently awarded the stock to Dresser as his separate property. The stock therefore was either Arient’s separate property or Dresser’s separate property; it was not community property. Dresser’s claim that the debt was nondischargeable under § 523(a)(4) accordingly must fail. The BAP’s order affirming the bankruptcy court is therefore

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.

1 . Because the parties are familiar with the complicated facts and procedural history of this case, we do not recite them there.

2 . Dresser does not raise any argument in his briefs regarding the bankruptcy court’s finding that Arient did not act with malice within the meaning of § 523(a)(6). This issue is therefore deemed waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (“[0]n appeal, arguments not raised by a party in its opening brief are deemed waived.”); Brookfield Communications, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1046 n. 7 (9th Cir.1999) (deeming waived arguments the party chose not to argue in its opening brief). Even if the issue is not waived, there is no showing in the record of malice in connection with the conversion of the stock.