Dale L. Mccullough, Trustee in Bankruptcy for Briopetroleum, Inc., Plaintiff-appellant, v. Billy G. Young and Loretta M. Young, Defendants-appellees, 947 F.2d 953 (10th Cir. 1991)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Appellant/Trustee appeals the district court's affirmance of a bankruptcy court order denying his claims against Appellees under the Texas Business Corporation Act and the common law "trust fund" doctrine.¹  Although Appellant challenges several of the bankruptcy court's rulings as error and argues several points regarding its various claims against Appellees, we need only address one issue because its resolution is dispositive of Appellant's suit.

The sole remedy Appellant sought in this action is the imposition of a constructive trust on Appellees' homestead property in Mounds, Oklahoma. Brief of Appellant at 5; Complaint, Appellant's App. at 9. As the bankruptcy court correctly noted, before a court can impose a constructive trust, the plaintiff must be able to trace with some certainty the "tainted" funds to an identifiable res. Bankruptcy Court Order at 6. See Rosenberg v. Collins, 624 F.2d 659, 663 (5th Cir. 1980); Peirce v. Sheldon Petroleum Co., 589 S.W.2d 849, 853 (Tex.Ct.App.1979). The bankruptcy court found that Appellant's evidence on this point was insufficient. Bankruptcy Court Order at 9. This finding was affirmed by the district court. District Court Order at 2-3. The tracing requirement is a factual determination, therefore, our review of the bankruptcy court's finding is limited to a clearly erroneous standard. See In re General Coffee Co., 64 B.R. 702, 709 n. 13 (S.D. Fla. 1986), aff'd, 828 F.2d 699 (11th Cir. 1987), cert. denied, 485 U.S. 1007 (1988).

Our review of the record leads us to agree with the bankruptcy court's finding. Contrary to Appellant's assertion in his brief on appeal, at no time during the trial did Appellees admit that funds from the Brio loans²  were used to purchase or improve their homestead property. Although Appellant argues that strict tracing is not required, it is not enough to show that the Brio loan funds went into appellees' bank account. See In re Independent Clearing House Co., 41 B.R. 985, 1001 (Bankr.D. Utah 1984) (citing Texas & Pac. Ry. v. Pottorff, 291 U.S. 245, 261 n. 19 (1934)), rev'd in part on other grounds, 62 B.R. 118 (D. Utah 1986). Appellant must establish that Brio loan funds were used, even if only in part, to purchase or improve the Appellees' homestead property. See McMerty v. Herzog, 702 F.2d 127, 130 (8th Cir. 1983); Landry v. Williamson, 335 S.W.2d 400, 405 (Tex.Ct.App.1960). Appellant presented no evidence that connected the Brio loan funds with any certainty to Appellees' homestead.³ 

On this point, Appellant argues on appeal that the bankruptcy court improperly placed the burden on the Appellant to distinguish the Brio loan funds from the balance of funds in Appellees' bank account. The burden to trace the funds to an identifiable res is, in the first instance, on the party seeking to impress the property with a constructive trust, in this case, the Appellant. See Independent Clearing House, 41 B.R. at 1001; Sims v. Falvey, 234 S.W.2d 465, 470 (Tex.Ct.App.1950). Had the Appellant established that Appellees' homestead was purchased or improved, even in part, with the Brio loan funds, only then would the burden have shifted to Appellees. See Independent Clearing House, 41 B.R. at 1004 n. 19; Sheldon Petroleum Corp. v. Peirce, 546 S.W.2d 954, 958 (Tex.Ct.App.1977). Appellant failed to trace any Brio loan funds to Appellees' homestead; the bankruptcy court properly placed the burden on Appellant.

The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.