IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 10-20253

In the Matter of: JAMES C. ROLLINGS,
Debtor

REX-TECH INTERNATIONAL, LLC, Appellant
v. JAMES C. ROLLINGS; W. STEVE SMITH, Appellees

Appeal from the United States District Court for the Southern District of Texas Civil Action No. 4:09-cv-00195

Before WIENER, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM: * Appellant Rex-Tech International, LLC (“Rex-Tech”) appeals the district court’s affirmance o f the bankruptcy court’s finding that James C. Rollings (“Rollin g s”) , ap p ell e e and debtor in this bankruptcy adversary proce e din g , own e d U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 12 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-20253 Document: 00511629228 Page: 1 Date Filed: 10/12/2011No. 10-20253

three pieces of oilfield equipment

. B e cause we find no errors of law and no clearly erroneous findings of fact, we affirm.

FA C T UA L AN D P R O C E D U R A L BA C K G R O U N D Rollings worke d f

o r Rex-Tech, an oilfield equipment repair and sales company, from 1999 throu gh 2003. In 2000 and 2001, Rollings served as RexTech’s production manager, overseeing equip m e n t repairs. In 2003, Rex-Tec h ceased operations and filed for Chapter 1 3 bankruptcy, and Rollings’ employment was terminated. Shortly thereafter, on Septemb e r 4, 2003, Rollings, through an attorney, s e nt a letter to Rex-Tech listing eight items at Rex-Tech’s facility which he claimed to be his, including a set of bookshelves with workbooks and manuals, a rotary table with its associated equipment, and

a National 1320M mechanical drawworks (“drawworks”), w h i c h allegedly included a drum shaft assembly (“drum shaft”). These items were exempt from the public foreclosure sale of Rex-Tech’s assets on October 22, 2003. On January 31, 2004, Rollings filed for Chapter 13 bankruptcy. On May 1 10, 2004, Rollings claimed ownership of a 14” ID 5’ long ram hydraulic cylinder (“cylinder”) at Rex-Tech’s facility in an amended schedule of assets that he filed in his Chapter 7 bankruptcy proceedings. W. Steve Smith, the Trustee of Rollings’ estate (“Trustee”), demanded the return of all of the items Rollings claimed were his, pursuant to Rex-Tech’s duty to return estate assets. By April 29, 2005, Rex-Tech had surre n d e r e d the rotary table to Rollings’ Trustee and

some furniture and books to Rollings, but insisted that it would not turn over the remaining equipment without documentation of ownership from Rollings.

The cas e conver ted to a Chapt er 7 liquid atio n o n J u n e 14, 2004. See In re Jam es 1 Cli nton Rol li ngs , N o . 04-3 1511- H3 -7, 2008 Bank r. LEXIS 993 (Bank r. S. D. Tex. Mar

. 31, 2008)

. There we re als o st ate cour t pr oce edi ngs that involved so me of the equip me nt. See RexTec h Int’le t a l. v . Rol li ngs , No. 200 3-38 112- A ( 55th Di st

. Ct. , Harri s County, Tex. ). 2 Case: 10-20253 Document: 00511629228 Page: 2 Date Filed: 10/12/2011No. 10-20253

On May 18, 2005, Rex-Tech brought a “Complaint for Declaratory Judgment and Determination of Interests in Property” against Rollings and his estate, asking the bankruptcy court to determine the ownership of the disputed items and to order Rollings to p r o vi d e documentation showing that the items

were his. Rollings and the Trustee asked t h e bankruptcy court to order Rex-Tech to turn over the drawworks, drum shaft, and cylinde r t o t h e estate. 2 On N ov e mber 18, 2008, the bankruptcy court commenced a bench trial to determine the ownership of the disputed assets. Seven witnesses testified over the course of the three-day trial. Rollings testified that he used his personal funds to purchase the cylinder in 2000 from IRI Internatio n a l C o r poration (“IRI”), his former employer. He 3 testified that he purchased the drawworks, which included the drum shaft, the following year, from Texas International (“TI”) with a $10,00 0 personal check. According to Rollings, he stored these items at Rex-Tech’s facility w i t h R e x Tech’s permission. John Fessenden (“Fessenden”) testified that as a plant manager at IRI, he sold a hydraulic cylinder to Rex-Tech, not to Rollings individually. He identified an invoice from IRI to Rex-Tech for the cylinder dated January 26, 2000. But, the invoice had a generic description and inaccurate terms, and Fessenden did not know the purchase order number and did not personally receive payment. Moreover, according to Fessenden, IRI sold dozens of cylinders while Fessenden was employed there, according to Fessenden’s testimony.

The dr aw wo rk s wa s so ld on May 8, 2008, f or $47, 000 and the pr oce eds we re plac ed 2 in es cro w pend ing a fina l det erm inati on of this act ion. The dr aw wo rk s had been “ca nnibali zed, ” acc ording t o Re x-Tec h.
In his tes tim ony Rollings ref err ed to IRI as Cardwe ll Inter natio nal, but at the rele vant 3 tim e IRI h ad alre ady pur chas ed Cardwe ll Inter natio nal. 3 Case: 10-20253 Document: 00511629228 Page: 3 Date Filed: 10/12/2011No. 10-20253

James E. Pet er s e n , Jr . (“P et ersen”), the manager and majority stockholder of Rex-Tech, identified an invoice fo r a used hydraulic cylinder dated January 26, 2000, and a check in the amount of $1082.50, relating to that invoice, dated March 7, 2 0 0 0 , payable to IRI. He also identified checks for $60,000 and $125,000, payable to CV International. But, the bankruptcy court found that the
p u r p o ses of these checks were not proved. Moreover, Petersen acknowledge d that he was not involved in Rex-Tech’s daily operations. The bankruptcy court also found that Petersen’s “credibility was impaired by his self interest and his personal dislike of Debtor.” T h e bankruptcy court concluded that Rex-Tech failed to show b y a preponderance of the evidence that it owned the disputed assets. It determined that Rollings’ testimony that he purchased the cylinder and the drawworks with the drum shaft as a component was credible. On January 16, 2 0 0 9, the bankruptcy court issued an order deeming the disputed assets to be the property of the Trustee. Rex-Tech appealed the bankruptcy court’s judgment and the district court affirmed. The district court held that the bankruptcy court correctly placed the burden of proof on Rex-Tech because Rex-Tech made an affirmative claim in its declaratory judgment action. The district court also found that the bankruptcy court’s findings of fact sufficiently laid out t h e b a s is for its decision, though it refused to consider t h e b a nkruptcy court’s supplemental findings, which the bankruptcy court had issued after the district court signed an or der divesting the bankruptcy court of jurisdiction. Finally, the district court rejected Rex-Tech’s argument that the bankruptcy court clearly erred in its findings of fact, and held that each of the bankruptcy court’s conclusions were supported by the evidence. Rex

- T e c h n ow appeals to this court, claiming that the bankruptcy court

e rr ed in assigning the burden of proof to Rex-Tech, in refusing to a p p l y a presumption of ownership to Rex-Tech, and in not treating Rollings’ sworn

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bankruptcy schedules as judicial admissions. Rex-T e c h also argues that the

c o u rt clearly erred in its findings regarding the testimony of Fessenden an d Petersen, and in according Rollings’ testimony greater weight t h an contemporaneous documents. Finally, Rex-Tech contends that the bankruptcy court made insufficient findings for appellate review because it failed to address the credibility of the testimony of Rollings, Richard Hellinger (“Hellinger”) (the general manager of TI) and Rex Shepperd (“She p p e rd”) (a half-owner of that company), the authenticity of Rollings’ alleged drawworks sale s c o n tract, and Rollings’ testimony relating to the drum shaft. S TAN D A R D O F R E V I EW “In reviewing cases originating in bankruptcy , w e ‘ p erform the same function, as did the di strict court: Fact findings of the bankruptcy court are reviewed under a clearly erroneous standard and issues of law are reviewed de novo.’” In re Soileau , 488 F.3d 302, 305 (5th Cir. 2007) (quoting In re Berryman Prods. , 159 F.3d 941, 943 (5th Cir. 199 8)). ANA LY S I S 1. Burden of proof R e x - Tech argues that the court should have imposed on Rollings th e burden of proving that he owned the disputed items. The bankruptcy court held that Rex-Tech, as the party seeking relief, had the burden of proving ownership because “[i]n a declaratory judgment action, the party seeking r e l i e f b e ars the burden of proof.” We agree. “[T]he bankruptcy court has the power to issue declaratory judgments when the matter in controversy regards t h e administration of a pending bankruptcy estate.” Sears, Roebuck and Co. v. O’Brien , 178 F.3d 962, 964 (8th Cir. 1999) ; s e e 28 U.S.C. § 157(b)(1),(2)(a) (“Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11.

. . . Core proceedings include, but are not limited to

. . . matters concerning the

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administration of the estate”). The parties do not dispute that Tex a s l a w go v e r n s the ownership dispute. See Butner v. United States , 440 U.S. 48, 55 (1979) (“Property int erests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interest should be analyzed differently simply because an interested party is involved in

a bankruptcy proceeding.”). But, though the district court, i n r e vi ewing the issue of burden of proof, cited Texas law, we believe that federal law governs the preliminary issue of what burden of proof applies here. As stat e d ab o v e , o ur jurisdiction over this mat t e r stems from federal bankruptcy law. Thus, we do not look to state law in determining the burden of proof here. See In re Willcox , 329 B.R. 554, 562 (Bankr. D.S.C. 2005), rev’d on other grounds , 467 F.3d 409 (4th Cir. 2006) (applying federal law in determining what burden of proof applies in declaratory judgment action in a property dispute related to the administration of a bankruptcy estate); I n re B ig V Holding Corp. , 267 B .R. 71, 90-91 ( Bankr. D. Del. 2001) (where court had jurisdiction under 28 U.S.C. § 157(a) and (b)(1), it relied on federal case law for conclusion that burden of proof is on the plaintiff seeking decl a r a t o ry judgment though the parties agreed New Jersey law controlled the underlying contract interpretation question); cf. Liberty Mut. Ins. Co. v. Sweeney , 216 F.2d 209, 211 (3d Cir. 1 954) (“[T]his matter of burden of proof [in a declaratory judgment a c t i o n] is one in which the federal court in a diversity case will follow state decisions.”). 4

In any case , w heth er w e app ly Texas or fe der al law has litt le eff ect on howwe pl ace 4 the bur den, as Texas andfede ral co urt s app ly the sam e princip le in det erm ining the bur den of pr oof in dec larat ory judgm ent act ions

. See Ha rki ns v. Crew s , 907 S. W

. 2 d 51, 58 (Tex. App .–S an Antoni o 1995, w r i t d e n ied) (“ Ge nera lly, the burd en of pr oof in a dec larat ory judgm ent act ion is on ‘th e par ty wh o, on the ple adin gs, ass ert s the aff irm ative clai m, and wh o in the abs ence of evide nce wi ll be def eate d, and is not cont roll ed by the pos itio n of the par tie s on the doc ke t as plai ntif f or def enda nt in the dec larat ory act ion. ’” (quo ting Mi tchel l v. Ranc ho Vi ejo, Inc. , 736 S. W.2 d 757, 760 (Tex. App .–Co rp us Chris ti 1987, wr it ref ’d n.r .e. ) (i n t e r nal quot atio n m ark s and cit atio n o mi tte d) ))

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“It is a fundamental rule that the burden of pro o f i n i t s p rimary sense

r e s t s upon the party who, as determined by the pleadings, asserts the affirmative of an issue.

. . .” Pacific Portland Cement Co. v. Food Machinery & Chemical Corp. , 178 F.2d 541, 547 (9th Cir. 1949) (placing bu r d e n of proof on party that brought the de cl ar atory j u d gm e nt actio n b ecause it sought affirmative relief of declaration of nonliability and relief from overcharges and also because that party presented extensive evidence at trial)

. H e re, Rex-Tech made an affirmative claim in asking the bankruptcy court to determine the ownership of the disputed property. We also decline to place the burden of proof on Rollings because Rex-Tech accepted the risk of provi n g i t s case by filing suit. In a similar case, In re Willcox , 329 B.R. at 562, a debtor filed a declaratory action asking the court to determine the ownership of historic papers the debtor found in his closet. The In re Willcox court found that the burden of proof fell on the debtor because he brought the de c l a r a tory judgment action, explaining, “the burden of proof in declaratory judgment actions lies, as a general principle of law, with the moving party who is held to ‘have assumed the risk of nonpersuasion.’” 329 B.R. at 562 ( qu o ting 10B C H AR L E S ALA N WR I G H T , AR T H U R R. M I L L E R & MARY K AY K A N E , F E DE R A L P R A C T ICE AN D P R O CE D U R E § 2770 (3d ed. 1998)); see In re Weller , 316 B.R. 708, 711 (Bankr. W.D. Mo. 2004) (implying that party seeking declaratory judgment when the mat t e r p e n ding involves administration of a bankruptcy

e s t ate always bears the burden of proof, stating, “[t]he party seeking a declaratory judgment must bear the burden o f proof in these proceedings”). Because we c o n s t r ue Rex-Tech’s complaint as asserting an affirmative claim, and because Rex-Tech assumed the risk of non-persuasion by filing the

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declaratory judgment action, we conclude that the bankruptcy court did not err in placing the burden of proof on Rex-Tech. 5 2. Legal presumption of ownership Nor was it error for the bankruptcy court to refuse to a p p ly a legal presumption of ownership to Rex-Tech. The bankruptcy court held that “given that there was a dispute ab initio as to the ownership of the property in dispute

. . . it is not clear from the evidence that Rex-Tech ‘possessed’ the property.” The bankrup t c y c ourt also provided that “[e]ven if a presumption of ownership is accorded t o R e x-Tech as a result of the location of the disputed items, the presumption is rebutted by Debtor’s credible testimony as to his purchase of the property.” Under Texas law, “[o]ne in possession (or control) of property is presumed to be the owner of it.” Smith v. Briggs , 168 S.W.2d 528, 531 (Tex. Civ. App.–San Antonio 1943, writ ref’d w.o.m.) (citation omitted); see Hickey v. Couchman , 797 S.W.2d 10 3 , 1 1 0 (Tex. App.–Corpus Christi 1990, writ denied) (presumption applied where evidence showed assets were in possession of the debtor); Worth Tool & Die Co. v. Atlantis Electronics Corp. , 398 S.W.2d 656, 657 (Tex. Civ. App.–Dallas 1965, writ dism’d by agr.) (“At the time the suit was filed and the writ levied the property was in possession of appellant, whic h f act alone gives rise to the inference that appellant had a legal right to such possession.”). RexTech argues th a t t h e bankruptcy court incorrectly interpreted Chenoworth v. Flannery , 202 S.W.2d 480, 481 (Tex. Civ. App.–Amarillo 1 947, no writ), to require Rex-Tech to show exclusive possession to trigger the presumption. The Chenoworth court refused to apply the presumption based solely on the evidence

In any c ase , if the bank rup tcy cour t had plac ed the burd en of pr oof of ow ners hip on 5 Rollings , it wo uld st ill have conc lude d that Rollin g s o w n e d the pr ope rty. The bank rup tcy cour t’s finding that Rollings ’ evide nce of ow ners hip rebu tte d any pr es ump tio n that Rex-Tec h ow ned the pr ope rty cons tit uted a find ing that Rollings had demo nst rat ed proof of ow ners hip by a pr epo nder anceof t he evide nce. 8 Case: 10-20253 Document: 00511629228 Page: 8 Date Filed: 10/12/2011No. 10-20253

that a “deposit box was maintained i n [ o n e ] name” and the disputed property

was found in the envelope upon which that person’s name was w ritten. Id. at 481-82. Rather, the Chenowo r th court held, “because the evidence was to the effect that the deposit box was maintained for the ben e f i t o f b oth,” “[i]t was a joint tenancy,” and “it contained numerous articles belonging to each of them,” such that no exclusive possession was shown. Id

. at 481. Citing Chenoworth , the bankruptcy court found that the presumption of ownership based on possession did not ap p ly to Rex-Tech in this case because Rex-Tech allowed employees to store and work on their own equipment at the Rex-Tech facility. We agree with the bankruptcy court that the presumption does not apply here. The presumption is to be used when there is no “evidence to the contrary” regarding possession. See Bradshaw v. Ashley , 180 U.S. 59, 63 (1901) (“If there be no evidence to the contrary, proof of possession, at least under a color of right, is sufficient proof of title.”). Rex-Tech is obviously correct that the evidence that Rex-Tech permitted Rollings to store his property on the Rex-Tech facility is not

as indicative of joint control over the property as the evidence of a joint tenancy in Chenoworth

. Furthermore , th ere w a s al s o undisputed evidence that Rex-Tech used a n d p r o f

ited from the hydraulic cylinder and drum shaft. But, this case 6 is more similar to Chenoworth than to those c a ses that have applied the presumption, because in those cases there was no evidence indicating that the party in possess i o n did not actually own the disputed items. Compare Chenoworth 202 S.W.2d at 481 with Cathey v. Shields , 385 S.W.2d 889, 893 (Tex. Civ. App.–Austin 1965, writ ref’ d n . r . e . ) (“The fact that the money was in a building on h i s land raises a presumption that the money belonged to the deceased.”); Hickey , 797 S.W.2d at 110 (applying presumption where items were at the debtor’s condominium). The evidence that Rollings was permitted to store

Rex-Tec h expla ins that it inte grate d the hydra ulic cylind er into a vert ical pr es s that 6 genera tedin com e f

or Rex-Tec h, and it tra dedt he dr um sha ft

. 9 Case: 10-20253 Document: 00511629228 Page: 9 Date Filed: 10/12/2011No. 10-20253

items on Rex-Tech’s property while he was an employee there undermines the contention that Rex-Tech had control of the property. The fact that Rex-Tech, with Rollings’ permission, used the cylinder to profit does not eliminate the fact that there was a plausible reason, aside from ownership, that Rex-Tech’s facility housed Rollings’ oilfield equipme n t

. In light of the evidence that Rex-Tech permitted Rollings to use its facility for storage, the presumption of ownership does not apply in this case. 7 3. Judicial admissions Rex-Tech argues that the bankruptcy court erred by failing to determine that Rollings’ statements in his bankruptcy schedule and amended bankruptcy schedul e s w e r e binding judicial admissions. Rollings did not list any oilfield equipment when he originally filed his bankruptcy case on January 31, 2004, nor when he amended the schedule on F eb r u a ry 1 4 , 2004. In both schedules he

a f firmatively swore that he did not own equipment or machinery of any kind. Approximately four months later, in May 2004, he amended the p e t i t i o n to include the rotary table, drawwork s , a nd cylinder, and listed them as exempt from his bankruptcy estate. Rex-Tech asserts that because Rollings did not list the drawworks on his first two schedules, and never listed the drum shaft in any of his six amended bankruptcy schedules, he has made a judicial admission that he does not own these items. See, e.g. , In re Sissom , 366 B.R. 677, 697 (Bankr. S. D

. Tex. 2007) (explaining that statements in bankruptcy schedules can be treated as judicial admissions). We will briefly address the issue, though we need not, as Rex-Tech never argued to the bankruptcy court or district court that

Becaus e t h e b ank rup tcy court dec ide d in the alte rnat ive that Rollings rebu tte d the 7 pr es ump ti o n o f ow ners hip, a conc lus ion that the pr es ump tio n of ow ners hip app lied to RexTech wo uld not be dis pos itive of the iss ue of ow ners hip. See Bullard v. Oa tma n , 271 S. W. 422, 423 (Tex. Civ. App .–S an Antoni o 1925, no wr it) (p os se ss o r w ould not “re cover agains t the clai ms of any one wh o [] es tablish [es ] a bett er right t o t h e pr ope rty than that of the pos se ss or” ). 10 Case: 10-20253 Document: 00511629228 Page: 10 Date Filed: 10/12/2011No. 10-20253

the statements in the bankruptcy schedules should be considered binding judicial admissions. See Ingalls Shipbuilding v. Fed. Ins. Co , 410 F.3d 214, 228 (5th Cir. 2005) (“It is the obligation of the party to direct the court’s attention to the facts and law supporting its argument

. . . [and] failure to raise the argument properly before the district court [relieves] our obligation to address it.”). “Statements in bankruptcy schedules are executed under penalty of perjury and when offered against a debtor are eligible for treatment as judicial admissions.” In re Bohrer , 266 B.R. 200, 201 ( B a n kr. N.D. Cal. 2001). “Admissions made in superseded pleadings are as a general rule considered to lose their bindi n g force, and to have value only as evidentiary admissions.” White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 n.5 (5th Cir. 1983) (citation

o m itted). Rollings’ original schedules are superseded by the third a m e n d e d schedule. The sta t e m e n t s in the original schedules are therefore not binding admissions, though they may be considered as evidence. Because Rex-Tech did 8 not argue to the courts below that Rollings’ failure to claim the drum shaft on his bankruptcy schedule foreclosed him from cl a i ming that he owned the drum shaft, he cannot now do so. “By failing to contend that [a party’ s ] admissions barred his subsequent assertion of the contrary position, [the opposing parties] effectively waived the argument that the issue was irreversibly settled.” White , 720 F.2d at 1396. Consequently, under White , this evidence is admissible, but is not a binding judicial admission. See id. We find that the bankruptcy court did not err on this issue. 4. Clear error in weighing the evidence Rex-Tech argues that the bankruptcy court clearly erred in weighing the testimony of “ di s i n terested witnesses” Fessenden and Petersen, and the

The sc hedu les we re ame nded to inclu de the c yl inde r and dr aw wo rk s aft er Rollings 8 ret ained a new att orne y. An att orne y’s fai lure to lis t ite ms on a sc hedu le doe s not im mun ize the rep res ente d party fr om the eff ect of the sc hedu les

. See Wol ins ky v. Oa k Tre e Ima ging, LP, 362 B.R. 770 , 780 (Bank r. S .D

. Tex. 2007)

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contemporaneous documents in evidence, such as invoices, against Rollings’ testimony. Under Federal Rule of Civil Proc e d u r e 5 2 ( a) “ [f ] i n di n g s of fact, wheth e r b a s e d on oral or other evidence, must not be set aside unless clearly

e rroneous, and the reviewing court must give due regard to the trial c o u rt ’ s opportunity to judge the witnesses’ credibility.” “The rationale for deference to the original finder of fact is not limited to the superiority of t h e trial judge’s position to make determinations of credibility. The trial judge’s major role is the d e termination of fact, and with experience in fulfilling that role comes expertise.” Anderson v. Bessemer City , 470 U.S. 564, 574 (1985). When, as here, t h e t ri a l court “is faced with testimony that may lead to more than one

conc l usion, its factual determinations will stand so long as they are plausible–even if we w o u l d have weighed the evidence otherwise.” Nielsen v. United States , 976 F.2d 951, 956 (5th Cir. 1992). “Where the court’s finding is based on its decision to credit the testimony of one witness over that of another, ‘that finding, if not internally inconsistent, can virtually never be clear error.’” Schlesinger v. Herzog , 2 F.3d 135, 139 (5th Cir. 1993) (internal citation omitted). We find no reversible error in the bankruptcy court’s fact determinations. The bankruptcy court made a credibility determination that Rollings’ testimony was truthful. Moreover, the bankruptcy court w a s u n c onvinced by Rex-Tech’s evidence that it had purchased the items. This determination was within the discretion of the factfinder. We briefly review the evidence and Rex-Tech’s arguments regarding ownership of each item.

a. The hydraulic cylinder Rex-Tech argues that the bankruptcy court made the follow ing clearly

erroneous findings in concluding t h a t Rollings owned the cylinder: Fessenden could not confirm whether he sold the cylinder to Rex-Tech; Fessenden testified t h a t I RI sold more than one cylinder; nothing in Petersen’s testimony

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established Rex-Tech’s ownership; an d R o l lings’ testimony was more credible than the contemporaneous documents. First, there was an evidentiary basis for the bankruptcy court to arrive at its conclusions regarding Fessenden’s testimony. Whil e Fe s s e n den testified that he was positive he had sold the disputed cylinder, his unequivocal testimony was undermined by the fact that he admitted that he did not personally receive the payment and did not know the purchase order number of the cylinder. Because Fessenden admitted that he did not personally receive payment from Tex-Tech, it was per m i s s ible for the bankruptcy court to discount Fessenden’s assertion that he had s o l d the disputed cylinder and conclude that Fessenden could not confirm that he had indeed sold the cylinder to Rex-Tech. Fessenden testified that he only knew of one sale of a hydraulic cylinder to Rex-Tech, but that other employees sold hydraulic cylinders. Because Fe s s e n de n a d mitted that, although he only knew of one sale of a hydraulic cylinder to Rex-Tech, other employees of IRI also sold hydraulic cylinders, it was permissible for the bankruptcy court to infer that IRI sold more than one cylinder to Rex-Tech. See Anderson , 470 U.S. at 574 (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on . . . inferences from other facts.”) (internal citations omitted). Next, the bankruptcy court’s finding that nothing in Petersen’s testimony establishes that Rex-Tech purchased any of the disputed pieces of equipment

was within its discretion. Petersen testified that one of his responsibili t ies at Rex-Tech was to sign checks, and at trial Petersen identified a check payable to IRI, dated March 7, 2000, and a related check stub and invoice, dated January 26, 2000, for a used hydraulic cylinder. But, the bankruptcy court was free to find, as it did, that Peterse n’s credibility was impaired by his self interest and his personal dislike of Rollings. See Schlesinger , 2 F.3d at 139. Mo r e o v e r ,
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Petersen could not confirm that the transaction was definitely affiliated with a specific piece of equipment. His testimony regarding Rex-Tech’s purchase of the cyli nder was plausibly weakened by the fact that he testified that he was not involved in the day-to-day operations of Rex-Tech and that he had w ri t t en checks for other cylinders, as it diminished the likelihood that he had familiarity with the disputed cylinder. Finally, the bankruptcy court did not erroneously give Rollings’ testimony greater evidentiary weight than it gave to the contemporaneous documents. If oral “testimony is in conflict with contemporan e o u s documents we can give it little weight.

. . .” United States v. United States Gypsum Co. , 333 U.S. 364, 396 (1948). But, here there was no conflict between Rollings’ oral testimony and the contemporaneous documents. The evidence showed that the invoice and check for the hydraulic cylinder could have been for a different cylinder. Additionally, though Rollings’ testimony and interrogatories did vary on some minor details, 9 these inconsistencies could be attributed to memory lapse. Nor was it fatal to Rollings’ case t h a t he did not have any documentation of his purchase. See Schlesinger , 2 F.3d at 139-40 (“This allege d link between the two transactions is not subject to any writing whatsoever.

. . . Thus, the court’s dec i sion rested almost entirely on credibility determinations.”). We find no clear error in th e bankruptcy court’s determination that Rollings owned the hydraulic cylinder.

b. The drawworks Rex-Tec h a r gues that the bankruptcy court clearly erred by crediting R o l lings’ testimony regarding his purchase of the drawworks over th e

For examp le, Rollingstes tif iedthat he pur chas ed the dis put ed cyli nderin 2000 and 9 in his inte rro gatory st ated 2001 wa s the purchas e year. Additio nally, Rollings ’ dis covery res pons e st ated that the cyli n d e r “w as acqui red fr om Mr

. Fes se nden ,” but his tes tim ony at tri al wa s that he “co uld not ans we r” wh ethe r Fes se nden wa s pr es ent wh en Rollings pic ke d up the cylind er. Rollings ’ se em ingly cont radict ory st atem ents regar ding wh ethe r Fes se nden wa s pr es ent at the fac ilit y coul d be justifi ed by the fac t that Rollings pic ke d up equip me nt for RexTech on othe r occ asi ons , and thathi s me mo ry w as fla we d due to the pas sageof t im e. 14 Case: 10-20253 Document: 00511629228 Page: 14 Date Filed: 10/12/2011No. 10-20253

contemporaneous documents, and over the testimony o f H ellinger, Shepperd, and Petersen. Variations in Rollings’ testimony as to how he paid for the drawworks did not necessarily undermine Rollings’ testimony th a t h e was absolutely certain that he purchased the drawworks from TI for $10,000 with check number 100, using money from his savings account, in early 2001. His bank savings account record showed a withdrawal of $10,000 on February 21, 2001. Rollings testified that he did not remember if he paid in cash, and later, while looking at a bank record, he testified that he used a $10,000 check to pay for the drawworks. But, the inconsistency in these two st a t e m e nts can be explained by memory lapse. Rollings testified that he re c a l l e d t he event because his wife at the time was angry about this purchase. His only documentary evidence of the purchase was

a sales contract which he acknowledged was drafted by Betty Ochoa (“Ochoa”), his girlfriend at the time, not a TI employee. But, the bankruptcy court was free to believe Rollings’ testimony as it was not inconsistent or implausible. This evidence provided a credible basis for the bankruptcy court to find that Rollings purchased the drawworks. As with the testimony regarding the cylinder, i t w as permissible for the bankruptcy court to credit Rollings’ testimony reg a r di n g the drawworks over Shepperd’s and Hellinger’s. Shepperd’s testimony unequivocally recounts that TI did not sell a drawworks to Rollings in the time that Rollings claimed he bought it. Shepperd testified that “[a] c o mplete 1320M never was sold to Mr. R o l l i n g s,” and that he did not recall TI having a complete 1320M drawworks

. Hellinger testified that he never received a check from Rollings for a drawworks. But, “a trial judge does not have to believe any witness

. . . if there is reasonable

c a use not to believe him,” such as conflicting testimony. Gee Chee On v . Brownell , 253 F.2d 814, 817 (5th Cir . 1 9 5 8)

. The bankruptcy court did not specifically discuss Shepperd’s and Hellinger’s testimony. Nonetheless, because

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it made a global finding that Rollings’ testimony was credible, it was permissible for the bankruptcy court to credit Rollings’ testimony over that of Shepperd and Hellinger without further discussion. The bankruptcy court al s o acted within its discretion in crediting Rollings’ testimony over P et er s e n’ s t e s ti m o ny th at RexTech purchased the dra w w o rks from CV International. The bankruptcy court did not have to believe Petersen’s testimony that Rex-T e c h u s ed the $125,000 check in evi d e nce to purchase the drawworks. Thus, the bankruptcy court’s finding that Rollings owned the drawworks was not clearly erroneous.

c. The drum shaft Finally, Rex-Tech contends that the bankruptcy court clearly erred in finding that Rollings purchased the drum shaft. The drum shaft was a part of the drawworks. Rex-Tech claims that because Rollings admitted that Rex-Tech acquired the drum shaft by providing Diamond Offshore with a trade-in credit

on the purchase of another drum shaft, Rollings could not have been the owner of the drum shaft. But, Rex-Tech’s argument ignores the explanation given by Rollings. According to Rollings, he permitted Rex-Tech to sell the drum shaft from his drawworks to Diamond Offshore with the understanding that the drum shaft traded in by Diamond Offshore would be repaired and replaced t o him. Thus, he was to be restored a w o rking, useable drum shaft in exchange for

a l l o wing Rex-Tech to provide Diamond Offshore with his drum shaft. T h e b ankrup tcy c ourt was free to accept Rollings’ explanation, and the trade-in cre dit to Diamond Offshore does not negate Rollings’ ownership of the drum shaft. 5. Sufficiency of the findings for appellate review Rex-Tech argues that the bankruptcy court failed to sufficiently describe its reasoning regarding t h e following issues: conflicting contemporaneous documents; the credibility of Rollings; the te s t i m o ny of TI’s principals; the all e ged forgery of the sales contract; and Rollings’ testimony pertaining to the drum shaft. “Rule 52(a) exacts neither punctilious detail nor slavish tracing of

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the claims issue by issue and witness by witness.” Collins v. Baptist Memorial Geriatric Cent. , 937 F.2d 190, 194 (5th Cir. 1991) (internal quotation marks and ci t a t i o n s omitted). It only “require[s] findings that are explicit and detailed enough to enable us to review them under the applicable standard.” Id. (internal quotation marks and citations omitted). “If a trial judge fails to make a specific finding on a particular fact, the reviewing court may assume that the court impliedly made a finding consistent with its general holdi n g s o l o ng as the implied finding is supported by the evidence.” Century Marine v. United States , 153 F.3d 225, 231 (5th Cir. 1998). Ov e r al l , the bankruptcy court’s eight-page findings of fact and conclusions of l a w a r e sufficiently detailed to adequately state the factual and legal bases for the bankruptcy court’s denial of Rex-Tech’s ownership claim. They provide a sufficiently definite predicate for app e l l ate review. Each o f the court’s evidentiary choices that Rex-Tech challenges are supported by the evidence. We can assume that the bankruptcy court impliedly made a finding consistent with its general holding on these issues. First, there

was evidence that the alleged contemporaneous documents were not necessarily associated with the equipment at issue because Rex-Tech’s witnesses could not definitively associate the documents with the disputed equipment. Nor did the bankruptcy court err by failing to issue any findings concerning the testimony of TI’s principals, Hellinger and Shepperd. “A court may not arbitrarily reject the testimony of a witness whose testimony appears credible,” Gee Chee On , 253 F.2d at 817, but it has no obligatio n t o describe the weight of the testimony of
every witness. The bankruptcy court’s global finding that Rollings’ testimony is credible is a suff

i c i e n t basis from which to conclude that the bankruptcy court made the determination that it was picking Rollings’ testimony over Shepperd’s and Hellinger’s. Despite Rex-Tech’s argument to the contrary, the bankruptcy court described that it found Rollings’ testimony at trial credible. Nor was the

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bankruptcy court required to make any findings concerning whether or not the sales contract was forged. That was not a material issue because to the extent that Rex-Tech argues that the bill of sale is not an original, Rollings’ testimony itself acknowledges that. Finally, as stated above, we find Rollings’ admission that “Rex-Tech provided its customer with a trade-in credit in exchange for the Drum Shaft,” to be consistent with the other evidence. In sum, the bankruptcy court’s findings meet the requirements of Rule 52(a). We do not review the sufficiency of the evidence de novo a n d we cannot substitute our judgment for that o f t h e factfinder. The evidence supports the bankruptcy court’s findings. Because there is evidentiary support, there is sufficient support for the findings of the bankruptcy court and we find no clear error in its conclusions. C O N C L U S I O N For the aforementioned reasons, the judgment of the district court is AFFIRMED.

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