1 Under 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except in

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50759

Summary Calendar

JAMES JERRY SMITH,

Executor of Estate of John Terry Smith,

Plaintiff-Appellant,

VERSUS

MARTIN PRAGER, ET AL.,

Defendants,

MARTIN PRAGER,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Texas

(A-93-CV-772)

July 23, 1998

Before WISDOM, WIENER, and DENNIS, Circuit Judges

PER CURIAM:1

James Jerry Smith, in his capacity as the executor of the

estate of John Terry Smith, filed this pro se, civil action

against several officers of BPR Grouting and Engineering, Inc.

(BPR). He alleged that Martin Prager, the president of BPR, and

M. Smith Townsend, the vice-president, breached their fiduciary 
 

2 29 U.S.C. §§ 801-1500.

 

3 United States v. Scurlock, 52 F.3d 531, 538 (5th Cir.

1995).

 

4 We review findings of fact for clear error and 

legal issues de novo. FDIC v. McFarland, 33 F.3d 532, 536 (5th

Cir. 1994); Fed. R. Civ. P. 52(a). A factual finding is clearly

erroneous “when, although there is enough evidence to support it,

the reviewing court is left with a firm and definite conviction

that a mistake has been committed.” United States v. Bermea, 30

F.3d 1539, 1575 (5th Cir. 1994). 

2

duties2 under the Employee Profit Sharing Plan and Trust. The

parties consented to proceed before the magistrate judge (MJ). 

Following a bench trial, the MJ ruled in favor of the defendants. 

Smith appeals.

I.

First, Smith argues that he “was not allowed to argue [his]

case based upon Exhibits P-83, P-84[,] and P-85 because [he] was

told by the Court that these exhibits were not part of the record

and not qualified for use in [his] argument.” These exhibits

were conditionally admitted by the court, subject to being

authenticated by Prager. The MJ instructed Smith, at length, on

how to authenticate this evidence as required by Fed. R. Evid.

901. Smith did not attempt to authenticate the evidence,

however. The MJ did not abuse his discretion in excluding these

exhibits.3

II.

Next, Smith argues that the MJ erred in finding that a

distribution of plan benefits was made in December 1988.4 Smith

argues that there was conflicting evidence with regard to when
3

the plan terminated and there was no evidence that any

distribution in the form of stock or otherwise was ever made.

In his affidavit, Prager swore that on or about January 18,

1989, “payment to the plaintiff of the full sum of all amounts

due Plaintiff” was made. On the following page, Prager stated

that “[o]n or about the distribution date of February 7, 1989,

John T. Smith’s balance in the Plan of $36,142.37 was distributed

in the form of 1292 shares of Luna Realty stock.” 

Susan E. Fenner, a lawyer who advised BPR concerning the

ERISA plan, also testified at the trial. She stated that a “net

distribution [was] made to each of the former participants,”

including Smith’s brother. 

Based upon this evidence, the MJ determined that a

distribution of plan benefits was made when the plan was

terminated in December 1988. Although there may be some

uncertainty as to when the distribution occurred, the fact

remains that the evidence presented at trial supports the MJ’s

finding that a distribution did in fact occur.

III.

Smith also argues that Fenner offered perjured testimony. 

Smith maintains that no “final 5500 report was filed for the

Plan,” thus showing that the plan was never terminated. He also

states that he has “a copy of the Form 5500 which was filed in

1989 and it was not a notification of termination for the plan

but rather a registration of the plan again.” Smith failed to

present this evidence in the district court. We do not consider
 

5 The MJ never reached the issue whether Prager breached

his fiduciary duties as a result of the prohibited transaction,

finding that Smith had failed to show that the plan sustained a

loss as a result of the prohibited transaction. R. 3, 809.

4

the evidence on appeal. See Leonard v. Dixie Well Serv. & Supply

Inc., 828 F.2d 291, 296 (5th Cir. 1987). 

IV.

Next, Smith argues that the MJ erred in finding that Prager

did not breach his fiduciary duty to the plan by engaging in a

prohibited transaction with plan assets and by borrowing money

from the plan.5 He further avers that the MJ erred in finding

that any loss incurred by the pension plan as a result of a

prohibited transaction was reimbursed to the plan from Prager’s

individual interest. Apart from arguing that the MJ erred in

making the above factual findings and legal conclusions, Smith

has failed to show that the MJ’s determinations were erroneous. 

Under § 1104(a)(1), plan fiduciaries have a duty to act

“solely in the interest” of the plan participants and

beneficiaries. To prevail on a claim of breach of fiduciary duty

as described in § 1104, an ERISA plaintiff must prove a prima

facie case of loss to the plan. McDonald v. Provident Idem. Life

Ins. Co., 60 F.3d 234, 237 (5th Cir. 1995). 

Fenner testified that there was no breach of fiduciary

obligation on the part of Prager. She further testified that

although Prager had engaged in a prohibited transaction, the

problem was corrected once it was brought to the attention of the

trustees. Fenner stated that even though the trustees had
5

engaged in a prohibited lease transaction with BPR, it was not

unlawful and did not constitute a breach of the trustees’

fiduciary duties. 

Fenner further testified that the proposed plan for

termination and distribution of plan benefits, i.e., issuing

shares of stock in Luna Realty, was not prohibited by ERISA and

did not represent a breach of the trustees’ fiduciary duties. 

She also stated that there was nothing inherently improper in

Prager, as a participant in the plan, taking out a loan against

his interest in the plan. 

Finally, Fenner testified that Prager’s distribution that he

received upon termination of the plan was reduced by the

outstanding lease-payment receivable and the interest thereon. 

She stated that there was nothing illegal or improper about

Prager taking a deduction in his distribution to cover the leasepayment receivable. Fenner testified that John Terry Smith’s

“share [did not] get charged with any of the accrued rent owed to

the profit sharing plan.” Fenner stated that Prager absorbed the

cost of the prohibited lease-payment transaction and the related

excise tax. Smith failed to present any admissible evidence to

refute Fenner’s testimony. The MJ chose to credit the testimony

of Fenner. We do not disturb that credibility determination on

appeal. Anderson v. City of Bessemer, 470 U.S. 564, 573-74

(1985). The MJ’s findings are not clearly erroneous.
6

V.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.