* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 97-40802

Summary Calendar

__________________

In The Matter Of: GEORGE ROBERT HOLLOWAY, JR.,

Debtor.

________________

GEORGE ROBERT HOLLOWAY, JR.

Appellant,

versus

ROSE ANN ROBERTS,

Appellee.

______________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

(4:95-CV-121)

______________________________________________

January 28, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

George Robert Holloway appeals from a decision of the district
1 The district court reversed and remanded on the question of

attorneys’ fees; that portion of the judgment was not appealed and

therefore is not before this court.

2

court, which affirmed in part a judgment of the bankruptcy court.1

Holloway challenges the finding that an obligation to Rose Ann

Roberts, stipulated in the amount of $146,649.50, which arose from

an assignment of interest in the McKinney 282 Joint Venture,

pursuant to an Agreement Incident to Divorce, is non-dischargeable

under 11 U.S.C. §§ 523(a)(2), (4) and (6). Holloway argues that

Roberts had a contractual right to, not a property right in, the

obligation in question, and that the debt therefore is not nondischargeable under 11 U.S.C. §§ 523(a)(4) and (6). Holloway also

argues that because his misrepresentations were made after the

obligation to Roberts arose, those misrepresentations cannot

support a finding of fraud under § 523(a)(2). 

Reviewing the bankruptcy court’s findings of law de novo, and

findings of fact for clear error, we have carefully considered the

arguments advanced by the parties in briefs to this court, the

Memorandum Opinion and Order of the district court, and the

transcript of the findings of the bankruptcy court. We agree with

the district court that the Agreement Incident to Divorce and the

McKinney 282 Assignment gave Roberts a property interest in the

McKinney 282 Joint Venture. See Twelve Oaks Tower I v. Premier

Allergy, 938 S.W.2d 102, 113 (Tex. App.-Houston [14th Dist.] 1996,

no writ) (Draughn, J. stating that “assignment” has a comprehensive
2 While, as the district court indicates, it is not clear

whether the bankruptcy court intended to make an express finding of

fact confirming all of Roberts’ factual assertions, it is clear

that the bankruptcy court accepted enough of her account that it

reached these conclusions. 

3

meaning, with two judges concurring in result); University of Tex.

Med. Branch v. Allen, 777 S.W.2d 450 (Tex. App.-Houston [14th

Dist.] 1989, no writ) (discussing broad effect of assignment);

Mundy v. Mundy, 653 S.W.2d 954, 957-58 (Tex. App.-Dallas 1983, no

writ) (division of partnership interests in divorce results in

vesting proportion of community interest in each party). Moreover,

we agree that Holloway, as a managing co-partner in the McKinney

282 Joint Venture, had a fiduciary duty to Roberts. Thus, in light

of the bankruptcy court’s findings that Holloway breached his

fiduciary duty to Roberts and willfully and maliciously converted

her property2--findings that certainly are not clearly erroneous--

the obligation is non-dischargeable under both §§ 523(a)(4) and

(6). 

Because the judgment of non-dischargeability can be sustained

upon an affirmance of the district court’s holding under any one of

the three subsections of the statute, we do not reach the question

of whether it is non-dischargeable under § 523(a)(2). We AFFIRM

the district court’s judgment affirming the bankruptcy court’s

finding with respect to non-dischargeability.
4