11 We are asked to answer two questions:
12 Our determination that an owner of real property placing trust funds with a general contractor pursuant to the Oklahoma construction trust fund statutes, 42 0.9.2001 §§ 152 and 158, is a beneficiary of the statutory construction lien scheme to the extent of any lienable claims arising from the contract between the owner and the general contractor is supported by: 1) our decisions in Manley v. Brown,
T3 We hold that 42 0.8.2001 §§ 152 and 153 4 create a fiduciary relationship between the owner of real property depositing construction funds with a general contractor and the contractor to the extent that there are lienable claims arising from a construction contract. In so doing, we align ourselves with the jurisdictions recognizing that statutes utilizing trust fund language like that of 42 0.8.2001 §§ 152 and 153 create a confidential affinity and with those federal decisions construing the Oklahoma statutes and acknowledging the statutorily created fiduciary relationship.
FACTS
T4 The debtor/defendant, Matthew Wayne Harris (Harris/debtor/contractor), is the sole proprietor of Harris Construction (the construction company). On July 29, 1999, the plaintiffs, Paul and Latricha Stevens (Stevens/owners), contracted with the construction company to repair and enlarge their Del City home. 5 Initially, the contract price totaled $90,000.00 and required three $30,000.00 disbursals-a first payment, a see-ond payment onee the home was "dried in", and a final payment. By agreement of the parties, the contract was modified subsequently to include additional work by the construction company and to boost the price to $100,000.00.
15 The owners paid Harris Construction $30,000.00 on August 6, 1999, and construction began in October. After the foundation was poured in November, the owners made additional payments totaling $40,000.00. Because construction was never completed, the Stevens did not disburse the final $80,000.00.
16 Northwest Roofing Company (roofer/subcontractor) filed a mechanies's and ma-terialmen's lien against Harris Construction and the Stevens' home on February 3, 2000. In response, the Stevens filed a breach of contract suit in district court against the construction company on June 7, 2000. Five months later, the contractor d/b/a Harris Construction filed a voluntary petition in bankruptcy.
17 On February 12, 2001, the Stevens filed an adversary pleading in the bankruptcy court seeking $70,000 for breach of contract and a determination that the damages are nondischargeable pursuant to 11 U.S.0.1998 § 523(a)(4)
6
for fraud or defaleation while acting in a fiduciary capacity.
7
A finding in favor of the owners under § 528(a)(d4) requires that they demonstrate a fiduciary relationship with the debtor and the commission of a defaleation within the confines of the relationship.
8
Recognizing that state law is important in determining the existence of a fiduciary relationship,
9
the bankruptey court
I.
T8 AN OWNER OF REAL PROPERTY PLACING TRUST FUNDS WITH A GENERAL CONTRACTOR PURSUANT TO THE OKLAHOMA CONSTRUCTION TRUST FUND STAT UTES, 42 0.9.2001 §§ 152 AND 153, IS A BENEFICIARY OF THE STATUTORY CONSTRUCTION LIEN SCHEME TO THE EXTENT OF ANY LIENABLE CLAIMS ARISING FROM THE CONTRACT BETWEEN THE OWNER AND THE GENERAL CONTRACTOR.
19 Both Stevens and Harris recognize that the Oklahoma lien construction statutes protect subcontractors and suppliers performing work under a contract between an owner of real property and a contractor. 10 The parties differ in that the homeowners assert that the same statutory scheme-42 0.8.2001 §§ 152 and 153, 11 benefits owners placing funds in trust with contractors for the payment of lienable claims. In contrast, Harris contends that the clear language of the statutes requiring that funds be held for the payment of "lienable claims" requires a construction of the statute limiting protection to those entitled to payment for work completed or supplies furnished, ie subcontractors and suppliers. Essentially, the contractor argues that owners simply have no standing to assert a claim arising under the lien construction statutes. 12 We disagree.
110 We have not addressed the precise issue of whether owners enjoy beneficiary status under 42 0.8.2001 §§ 152 and 153. Nevertheless, we have promulgated opinions instructive on the issue.
{11 The primary issues presented in Manley v. Brown,
"... [The cases} do not teach that the merits of an owner's claim against its contractor depend on a subcontractor's compliance with the notice requirements of the lien statute. Whether a subcontractor must give the § 142.1 notice (when it is due) for an owner to recover against its contractor who is alleged to have misapplied construction trust funds is a question unanswered by case law extant at the critical time here ... In sum, even if notice was the owner's due, the legal impact of a subcontractor's failure to give that notice upon a contractor's liability to the owner was then (and is now) far from clearly settled." [Emphasis in original.]
The need for the subcontractor's statutorily required lien notification was left undecided in Manley to the extent that it affected the owner's rights against a contractor. Nevertheless, the opinion recognizes that an owner may benefit, as against a contractor, from
{ 12 In Sandpiper North Apartments, Ltd. v. American Nat'l Bank & Trust Co. of Shawnee,
1 13 We considered the position of owners of real property under other provisions of Oklahoma's mechanics and materialmen's lien laws in Roofing & Sheet Metal Supply Co. of Tulsa, Inc. v. Golzar-Nejad Khalil, Inc.,
114 Our decisions in Manley, Sandpiper and Golzar-Nejad place us squarely in the majority camp which recognizes that owners enjoy the protection offered by construction trust fund statutes. 15 These courts reason that the primary purpose of such statutory schemes is to protect the owner involved in a fiduciary relationship with the contractor. 16 The property owner is considered the direct beneficiary of the statutorily ereated trust because of the owner's potential for double liability if the contractor does not pay laborers and materialmen 17 -the precise situation presented here as the owners must satisfy the subcontractor's lien although they have previously paid these funds to the contractor. Although these decisions are not binding, we do note that two federal courts considering the effect of our lien statutes have determined that owners are intended beneficiaries of the statutory trust provisions. 18
1 15 We hold that an owner of real property placing trust funds with a general contractor pursuant to the Oklahoma construction trust fund statutes, 42 0.98.2001 §§ 152 and 153, 19 is a beneficiary of the statutory construction lien scheme to the extent of any lienable claims arising from the contract between the owner and the general contractor.
I.
116 TITLE 42 0.8.2001 §§ 152 AND 153 CREATE A FIDUCIARY RELATIONSHIP BETWEEN THE OWNER OF REAL PROPERTY DEPOSITING CcoNSTRUCTION FUNDS WITH A GENERAL CONTRACTOR AND THE CONTRACTOR TO THE EXTENT THAT THERE ARE LIENABLE CLAIMS ARISING FROM A CONSTRUCTION CONTRACT.
#17 The owners contend that the duty imposed on the contractor by 42 0.8. 2001 §§ 152 and 153 20 to hold funds in trust for the payment of sub-contractors and suppliers creates a fiduciary duty between the owner and the contractor to the extent there are lienable claims due and owing by reason of a building or remodeling contract. The contractor argues that there is nothing to suggest facts sufficient to find a confidential relationship, ie. the substitution of one party's will for that of another.
118 Courts disagree on whether mechanic's lien statutes create an enforceable trust from which a fiduciary relationship between property owners and contractors arises.
21
Each decision is based, at least in part, on
{19 The contractor's argument that the relative bargaining powers between the parties controls whether a confidential relationship exists ignores the fact that a fiduciary relationship may arise from statute as was acknowledged in Lowrance v. Patton,
120 Lowrance involved an action by the administrator of a veteran's estate against the head of the Oklahoma Veterans Center to recover the veteran's funds which were kept in a special account at the Veterans Center and which were improperly paid to the veteran's son upon his father's death. At issue in
121 Just as the statute at issue in Lowrance imposed duties upon the Veterans Center in favor of its patients, the construction trust fund statutes impose a duty upon contractors to keep owner funds in trust for the payment of valid lienable claims. Section 153 29 specifically provides that no portion of the funds collected from owners by contractors under § 152 "shall be used for any other purpose until all lienable claims due and owing or to become due and owing shall have been paid." Here, as in Lowrance, the fidu-clary duty between the owner and the contractor arises from the clear language of the statutory scheme identifying the owner-deposited funds as "trust funds" 30 and imposing a mandatory duty 31 on the contractor to disburse those funds for payment of potential liens against the owner's property.
1 22 We align ourselves with those jurisdictions determining that statutes similar to Oklahoma's identifying owner deposited dollars as "trust fund" monies and with the federal courts who have previously determined that a fiduciary relationship exists between owners and their contractors under 42 ©.9.2001 §§ 152 and 158. As in Lowrance v. Patton, ¶ 19, supra, the confidential affinity between the owner and the contractor arises from the statutory scheme. We determine that 42 0.8.2001 §§ 152 and 153 32 create a fiduciary duty between the owner of real property depositing construction funds with a general contractor and the contractor to the extent that there are Henable claims arising from a construction contract.
CONCLUSION
123 We recognize that an important purpose of bankruptcy statutes is to relieve an honest debtor from the weight of oppressive indebtedness and to permit the person to start afresh.
33
Nevertheless, this Court does not extend it auspices, in statutory construction, to consider the statute's propriety, desirability, wisdom or practicability. These matters are left to the legislative department
34
Here, the Legislature has denominated owner monies placed with a contractor as "trust funds" in 42 O.S.2001 § 152
35
and provided in mandatory terms in § 153
36
that those funds shall not be disbursed for any purpose other than for the
Notes
. The Bankruptcy Court certified the following questions: '
1) Is an owner of real property, who has contracted with a general contractor for a building or remodeling project on the owner's property, entitled to beneficiary status under the Oklahoma Construction Fund statutes, OKLA. STAT. tit. 42, §§ 152 & 153, if and to the extent there are lienable claims due and owing by reason of such building or remodeling contract?
2) Do the Oklahoma construction fund trust statutes, OKLA. STAT. tit. 42 §§ 152 and 153, create a fiduciary relationship as between a contractor and the owner of real property upon which building or remodeling has occurred pursuani to a contract between such contractor and owner, to the extent there are 'lienable claims due and owing by reason of such building or remodeling contract?
The questions are reformulated pursuant to 20 0.$.2001 § 1602.1.
. Title 42 0.$.2001 §§ 152 provides:
"(1) The amount payable under any building or remodeling contract shall, upon receipt by any contractor or subcontractor, be held as trust funds for the payment of all lienable claims due and owing or to become due and owing by such contractors or subcontractors by reason of such building or remodeling contract.
(2) The monies received under any mortgage giver: for the purpose of construction or remodeling any structure shall upon receipt by the mortgagor be held as trust funds for the payment of all valid lienable claims due and owing or to become due and owing by such mortgagor by reason of such building or remodeling contract.
(3) The amount received by any vendor of real property under a warranty deed shall, upon receipt by the vendor, be held as trust funds for the payment of all valid lienable claims due and owing or to become due and owing by such vendor or his predecessors in title by reason of any improvements made upon such property within four (4) months prior to the delivery of said deed."
Section 152 was last amended in 1968. Therefore, reference is made 'to the current statute.
. Title 42 0.$.2001 § 153 provides:
"(1) The trust funds created under Section 152 of this title shall be applied to the payment of said valid lienable claims and no portion thereof shall be used for any other purpose until all lienable claims due and owing or to become due and owing shall have been paid.
(2) Any person willfully and knowingly appropriating such trust funds to a use not permitted. by subsection (1) of this section, upon conviction, shall be guilty of the felony of embezzlement and shall be punished by imprisonment in the State Penitentiary for a period not to exceed five (5) years or by a fine not to exceed Ten Thousand Dollars ($10,000.00), or by both such imprisonment and fine.
(3) If the party receiving any money under Section 152 of this title is an entity having the characteristics of limited liability pursuant to law, such entity and the natural persons having the legally enforceable duty for the management of the entity shall be liable for the proper application of such trust funds and subject to punishment under subsection (2) of this section. For purposes of this section, the natural persons subject to punishment shall be the managing officers of a corporation and the managers of a limited liability company.
(4) The existence of such trust funds shall not prohibit the filing or enforcement of a labor, mechanic or materialmen's lien against the affected real property by any lien claimant, nor shall the filing of such a lien release the holder of such funds from the obligation created under this section or Section 152 of this title."
Section 153 remains unaltered since the contract was entered between the owner and the general contractor except to the extent that subsection 3 of the statute refers to corporate liability. Therefore, reference is made to the current statute.
. Title 42 0.$.2001 § 152, see note 2, supra; 42 ©.$.2001 § 153, see note 3, supra.
. We agree with Harris that in answering a certified question, the Court does not presume facts outside those offered by the certification order. Jones v. University of Central Oklahoma,
. 11 U.S.C.1998 § 523(a)(4) provides:
"(a) A discharge under section 727, 1141, 1128(a), 1128(b), or 1328(b) of this title does not discharge an individual debtor from any debt-
(4) for fraud or'defalcation while acting in a fiduciary capacity, embezzlement, or larceny . . ."
. Currently, the Stevens are in danger of losing their home. Although no sheriff's sale has been conducted, judgment has been entered against the owners in foreclosure. Further, the roofer's lien remains unpaid.
. A defalcation within the meaning of 11 U.S.C. 1998 § 523(a)(4), see note 6, supra, is misappropriation of trust funds or money held in a fidu-clary capacity-thé failure to properly account for such funds. In re Banks,
. In re Young,
. Manley v. Brown,
. Title 42 0.$.2001 § 152, see note 2, supra; 42 0.$.2001 § 153, see note 3, supra.
. The contractor's contention that the owners only protection in the mechanics and material-men's statutes is to be found in 42 0.$.2001 §§ 142.1 and 143 is unpersuasive. These statutes deal with the necessity of notice to the property owner from the sub-contractor prior to the enforcement of a sub-contractor's lien against the owner's property. At issue here is not the relationship between the owner and the subcontractor, but the protections which an owner may receive in its dealings with a general contractor.
. Although the statutory provisions have been amended since our decision in Sandpiper North Apartments, Ltd. v. American Nat'l Bank & Trust Co. of Shawnee,
"(1) The amount payable under any building or remodeling contract shall, upon receipt by any contractor or subcontractor, be held as trust funds for the payment of all lienable claims due and owing or to become due and owing by such contractors or subcontractors by reason of such building or remodeling contract...."
Title 42 O.$.1971 § 153 provides in pertinent part:
"... (2) Such trust funds shall be applied to the payment of said valid lHenable claims and no portion thereof shall be used for any other purpose until all lienable claims due and owing or to become due and owing shall have been paid...."
. Title 42 0.$.2001 §§ 142 and 143 are the mechanisms through which a subcontractor or supplier may file a valid lien against real property. Respectively, they provide in pertinent part:
"Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor, furnish material or lease or rent equipment used on said land for the erection, alteration or repair of any building, improvement or structure thereon or perform labor in putting up any fixtures, machinery in, or attachment to, any such building, structure or improvements ... shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances... ."
"Any person who shall furnish any such material or lease or rent equipment used on said land or perform such labor as a subcontractor, or as an artisan or day laborer in the employ of the contractor, may obtain a lien upon such land, or improvements, or both, from the same time, in the same manner, and to the same extent as the original contractor, for the amount due him for such material, equipment and labor ... The risk of all payments made to the original contractor shall be upon such owner until the expiration of the ninety (90) days herein specified, and no owner shall be Hable to an action by such contractor until the expiration of said ninety (90) days ..."
The statutes remain unchanged from their 1991 version. Therefore, references are to the current statutory compilation.
. Matter of Thomas,
. In re Specialized Installers, Inc., 12 BR. 546, 551 (Bkrtcy.D.Colo.1981); Maull v. Stokes, see note 15, supra.
. First Commercial Corp. v. First Nat'l Bancorporation, Inc., see note 15, supra; In re Specialized Installers, Inc., see note 16, supra.
. Carey Lumber Co. v. Bell,
. Title 42 0.$.2001 § 152, see note 2, supra; 42 ©.$.2001 § 153, see note 3, supra.
. Title 42 0.$.2001 § 152, see note 2, supra; 42 0.$.2001 § 153, see note 3, supra.
. Cases finding such a relationship include: Carey Lumber Co. v. Bell, see note 18, supra; In re Romero,
Cases holding that no fiduciary relationship exists between contractors and owners include: Matter of Cross, see note 23, infra; In re Pedrazzini, see note 23, infra; Matter of Dloogoff, see note 23, infra; In re Thornton, see note 23, infra; In re Shaffer, 206 BR. 95, 98 (Bkrtcy.M.D.Penn.1997); In re Sigler, 196 BR. 762, 765 (Bkrtcy.W.D.Ky.1996); In re Gropp, 153 BR. 350-51 (Bkrtcy.M.D.Fla.1993); In re Marino,
. In re Sigler, see note 21, supra; In re Ballard,
. Matter of Cross,
. In re Schultz,
. In re Romero,
. In re Romero, see note 25, supra; In re Morris Ketchum, Jr. & Assoc., see note 21, supra; In re Edmond, see note 21, supra; Heyerdale v. Haneman, see note 21, supra; Maull v. Stokes, see note 18, supra. See also, In re Turner, 134 BR. 646, 655 (Bkrtcy.N.D.Okla.1991) [In suit brought by materialman, bankruptcy court recognized that contractor was acting in a fiduciary when it received sums to pay materialman from owner].
. Carey Lumber Co. v. Bell, see note 18, supra; In re Manley, see note 21, supra; In re Turner, see note 21, supra. See also, Matter of Cross, note 23, supra, in which the 5th Circuit noted that the Oklahoma lien trust statutes imposed express fiduciary duties on the contractor for the benefit of a home buyer. But see, In re Baird,
. Title 72 0.$8.1981 § 222 provides in pertinent part:
".. »[EJxcept nothing contained herein prohibits the establishment and utilization of special agency accounts by the Department of Veterans Affairs and its constituent institutions, as may be approved by the Special Agency Account Board, for receipt and disbursement of the personal funds of Veteran Center patients and members and/or for receipt and disbursement of charitable contributions and donations for use by and for patients and members."
. Title 42 0.8.2001 § 153, see note 3, supra.
. Title 42 0.$.2001 § 152, see note 2, supra.
. "Shall" can be used permissively. Walker v. Group Health Serv., Inc.,
. Title 42 0.$.2001 § 152, see note 2, supra; 42 0.$.2001 § 153, see note 3, supra.
. Williams v. United States Fidelity & Guaranty Co.,
. See, State ex rel. Cartwright v. Dunbar,
. Title 42 O.S.2001 § 152, see note 2, supra.
. Title 42 O.S.2001 § 153, see note 3, supra.
. Title 42 0.$.2001 § 152, see note 2, supra; 42 ©.$.2001 § 153, see note 3, supra.