Opinion
Case No. 17-31480 Adv. No. 17-3066
06-14-2018
In re: GINGER MICHELLE BROWNING, Debtor HOEYHEJ, LTD, Plaintiff v. GINGER MICHELLE BROWNING, Defendant
Copies to: Thomas G. Eagle (Counsel for the Plaintiff) Stephen J. Malkiewicz (Counsel for the Defendant)
Chapter 13 Decision Granting in Part, and Denying in Part, Defendant's Motion for Summary Judgment
On August 16, 2017 the plaintiff, HOEYHEJ, Ltd. dba Servpro of Middletown/Springboro ("Servpro") filed a dischargeability complaint against the debtor, Ginger Michelle Browning ("Ginger"), alleging that Browning owes Servpro a non-dischargeable debt in the amount of $9,713.96, plus interest and costs. Servpro pled nondischargeability counts under 11 U.S.C. § 523(a)(4), (a)(6) and (a)(15). Servpro voluntarily dismissed the § 523(a)(6) and (a)(15) counts. doc. 29. Ginger has moved for summary judgment on the remaining count under § 523(a)(4), arguing that she has no liability for the debt in question. doc. 15.
Unless otherwise noted, all statutory references are to the Bankruptcy Code of 1978, as amended, 11 U.S.C. §§ 101-1532.
Jurisdiction
This court has jurisdiction pursuant to 28 U.S.C. § 1334, this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). This court has constitutional authority to enter a final judgment in a dischargeability proceeding. Hart v. Southern Heritage Bank (In re Hart), 564 Fed. App'x 773 (6th Cir. Apr. 24, 2014).
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a), made applicable to adversary proceedings through Federal Rule of Bankruptcy Procedure 7056, sets forth the standard to address Ginger's motion. The court shall grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "To meet such a burden on a motion for summary judgment, the moving party may 'point[] out to the district court that there is an absence of evidence to support the nonmoving party's case.'" Connolly v. Deutsche Bank Nat'l Trust Co., 581 Fed. Appx. 500, 503 (6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
On summary judgment, the defendant's burden as the movant is to show, as a matter of law, that the plaintiff cannot meet the standard for a non-dischargeable debt.
Admissibility of Bank Records
Ginger has contested the admissibility of her personal bank statements from May and June 2016, arguing they were not subpoenaed as required by Federal Rule of Civil Procedure 45 (applicable by Federal Rule of Bankruptcy Procedure 9016). Specifically, Ginger complains, in a reply brief, that she had no prior notice of the subpoena requesting these documents. See Fed. R. Civ. P. 45(a)(4) ("If the subpoena commands the production of documents . . . then before it is served on the person to whom it is directed, a notice of a copy of the subpoena must be served on each party.").
The records were originally requested during Ginger's deposition. Transcript of Deposition of Ginger M. Browning ("Ginger Deposition"), doc. 20 at 59-60. Servpro's counsel sent a follow-up email on January 9, 2018. doc. 34-1. On January 11, 2018, Ginger's counsel indicated that she was unable to obtain the records. doc. 34-2. Servpro's counsel also subpoenaed the records from MID-USA Credit Union on December 28, 2017, the day after Ginger's deposition, and notified Ginger's counsel by letter. doc. 34-4 (letter to Ginger's counsel and the subpoena, both dated December 28, 2017). Ginger's counsel states that he never received this letter. On March 6, 2018 Servpro's counsel sent a copy of the bank statements received from Mid USA Credit Union to Ginger's counsel as an attachment to another letter. Finally, Servpro's counsel, after issuing the subpoena, sought again to voluntarily obtain the records, this time by email c0mmunication with Ginger's counsel, providing further notice. Even assuming Ginger's counsel did not receive the December 28, 2017 letter about the subpoena prior to it being served upon the credit union, any such error was not prejudicial. No dispute has been raised about whether these are Ginger's bank records. Any technical deficiency does not justify prohibiting Servpro from submitting the bank records as evidence to oppose Ginger's dispositive motion. Kitchen v. Corizon Health Inc., No. 1:16-cv-1068, 2017 WL 5099892, at *5 (W.D. Mich. Nov. 5, 2017) (technical deficiency does not provide a basis to quash a subpoena); Sys. Prods. And Solutions, Inc. v. Scramlin, No. 13-CV-14947, 2014 WL 3894385 (E.D. Mich. Aug. 8, 2014) (similar).
Ginger notes the absence of any evidence of a notice of the subpoena on the docket. The court may take judicial notice of its own docket, but the court does not require a notice of a subpoena to a party be docketed.
For these reasons, the court finds Exhibit 11 may be considered as part of the evidentiary record for this summary judgment motion.
The parties also disputed whether any lack of compliance with Rule 45 would affect the admissibility of the bank records under the current version of Rule 56. Having determined Servpro sufficiently complied with Rule 45 in these circumstances, the court finds no reason to address this issue.
Findings of Fact
Ginger lived in a house with her husband, Travis Browning ("Travis" and collectively, the "Brownings"), at the time the relevant events occurred. Ginger Deposition at 5 and 21. On April 3, 2016, the basement sump pump failed due to a power outage and the partially finished basement flooded. doc. 15 (Ginger affidavit at ¶1). When the flooding occurred, Ginger was out of town and Travis called her about what had occurred. Ginger Deposition at 17. Ginger told him she would address it when she returned. Id. at 20-21. During this time the Brownings were in the process of separating, and Travis was to be looking for a new place to live. Ginger Deposition at 21. Travis did move out in April 2016. Id. at 46.
When Ginger returned home after the basement flooding, she contacted her insurance carrier, Motorists Mutual ("Motorists"), through her insurance agent, Wade Insurance. Ginger told the individual from Motorists that she had never filed an insurance claim and was "not [] sure what . . . to do." Id. at 22. Ginger was told to call Servpro, that Motorists will pay Servpro and would send the Brownings a check for damages and losses to personal property that was in the basement. Ginger called Servpro and told them who her insurance company was. Servpro said that "we'll take care of it." Id. at 23. See also Transcript of 341 Hearing ("Ginger 341 Testimony"), doc. 18 at 12 (indicating she hired Servpro, but Travis signed all the papers, and later stating "I don't know" if I hired them, and Travis handled it). Ginger testified that "Servpro said they would pay for the - they'd pay the company and then they would send me a check for the - the damages and losses - loss of content." Ginger Deposition at 23. She asked Servpro for an estimate. Id. at 24. Ginger indicated that this was her only interaction with Servpro or Motorists before the work was done. She testified that her next interaction with Servpro was when she received a bill. Id.
Ginger stated that "[d]ue to my work schedule, I tasked [Travis] to obtain estimates for repairs, and without my authority or consent, Travis entered into a contract on April 4, 2016, with the first company to come out and examine damages without obtaining an estimate." Ginger affidavit, ¶3. Ginger testified that she did not see any of the itemized estimates and bids until her deposition. Ginger Deposition at 51-53 and Deposition Exhibits 3, 4 and 5.
Exhibits 1 through 10 are from the Ginger Deposition, and were not renumbered by Servpro for this motion.
On April 4, 2016 Travis signed a document with Servpro to clean and restore the basement. The document was titled "Authorization to Perform Services and Direction of Payment." (the "Authorization"). Ginger's name is listed on the Authorization as the "customer", but she did not sign it. Exhibit 1. Ginger testified that she did not see this document until her deposition. Ginger Deposition at 48-49. The Authorization indicated that Motorists was authorized to pay Servpro directly, but also provided that if any check is received by the homeowners, Servpro should be paid immediately and even gave Servpro authority to endorse the check as attorney-in-fact. Servpro also provided an estimate that Ginger testified she did not see until her deposition.
Mary Hafenbrack, a representative of Servpro, stated that "[on] or about April 4, 2016, we were contacted by Ginger Browning to provide [property damages restoration] services at her home in Franklin, Ohio. [Servpro] then provided [such] services to Ginger Browning and Travis Browning, at their home, pursuant to contractual arrangements between the parties." doc. 21-1 (Hafenbrack affidavit, ¶4).
Ginger never went in the basement to inspect the work while it was in progress. Ginger noted the lack of lighting, exposed wires, dust and mold, and that, as a respiratory therapist, she did not want to breathe in anything in basement until it was repaired. Ginger Deposition at 19 and 27. During this time, the Brownings were in the process of separating and had limited conversations. Id. at 20. Ginger did inspect the work after completion and raised no concerns. The work was completed on or about April 14, 2016. Exhibit 2.
Travis signed another document titled "Certificate of Satisfaction: Job Completion." on April 16, 2016. Id. Ginger testified that she did not see this document until her deposition. Ginger Deposition at 51. On April 25, 2016 an invoice in the amount of $4,449.27 was issued for the completed work. A separate invoice was issued for $5,264.69. Ginger stated that, due to her work schedule, "she never witnessed any work being performed and was unaware of which company was performing the restoration services." Ginger affidavit, ¶4. Ginger further stated, in response to an interrogatory, that "[d]efendant is unsure of damages and expenses incurred. Defendant did not handle. Defendant has no knowledge of estimates for services, repair, cleaning, or restoration of the property. [Travis] handled all matters pertaining to the services, repair, cleaning or restoration of the property. The property is still in disarray and in need of additional repairs." doc. 15 (Exhibit A).
Motorists sent a check, dated April 20, 2016, payable to the Brownings for the $10,000 policy limit. Exhibit 8. Travis and Ginger each endorsed the check and it was deposited in Ginger's individual account. Ginger stated that "[u]pon completion of services, Travis asked me to sign a check received from our insurance company indicating this represented funds for actual losses we incurred above and beyond the cost of restoration services." Ginger stated that she does not know what happened to the funds, but became aware "soon after that Travis was in fact addicted to drugs, leading to his incarceration." Ginger affidavit, ¶6. By contrast, at the meeting of creditors, Ginger stated that the funds were used "to pay for the repairs and damage that was done to the house." Ginger 341 Testimony at 8. See also Ginger affidavit, ¶5. A deposit slip shows Ginger deposited the funds in her individual account with Mid USA Credit Union on April 23, 2016. At the time the funds were deposited, Ginger had $2,333 in this account. By May 31, 2016, the account had a balance of $4,951.53.
The parties dispute the admissibility of Ginger's bank records for purposes of this motion, but the court, as explained in a separate section of this decision, finds the bank records may be considered.
Ginger testified that her next contact with Servpro, after the original phone call for the estimate, was when she received bills in mail. The bills were dated April 25, 2016. Ginger Deposition at 32 and Exhibits 6 and 7. Following the receipt of the bills, Ginger called Servpro. Ginger testified that, up to this time, she believed the insurance check was for personal property losses and the insurance company would pay Servpro directly. Ginger Deposition at 39, 56-57. A representative from Servpro informed Ginger that the insurance check was to be used to pay Servpro. Id. at 40. Ginger also spoke to her insurance adjuster who told her $10,000 was all her policy would cover and the check was to be used to take care of Servpro. Id. at 67. Ginger stated by the time she received the bills, the insurance funds were "pretty much" spent. Id. at 62. Ginger indicated that, although the bills were dated April 25, 2016, the Brownings received them "weeks later." Id.
Ginger filed for divorce on September 27, 2016. Exhibit 9. Following the Brownings' divorce on April 21, 2017, title to the house was transferred from the Brownings to Ginger alone by the separation agreement being incorporated into the divorce decree. Exhibit 10 at 1 and 11.
Servpro sued Ginger in state court, with Ginger becoming aware of the litigation on March 1, 2017. Ginger affidavit, ¶8. Ginger filed her Chapter 13 bankruptcy petition on May 8, 2017. Ginger affidavit, ¶9.
Analysis
Section 523(a)(4) contains three separate bases for non-dischargeability. DeWine v. Dudley (In re Dudley), 582 _B.R . 708, 727 (Bankr. S.D. Ohio 2017). In order for the debt to be non-dischargeable, the creditor must show it can meet one of these standards by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291 (1991). Exceptions to discharge are construed narrowly. Rembert v. AT & T Universal Card Svcs., Inc. (In re Rembert), 141 F.3d 277, 281 (6th Cir. 1998); Perry v. Ichida (In re Ichida), 434 B.R. 852, 859 (Bankr. S.D. Ohio 2010) (quoting Ker v. Ker (In re Ker), 365 B.R. 807, 812 (Bankr. S.D. Ohio 2007) ("In order to afford the honest but unfortunate debtor a fresh start, the Court narrowly construes exceptions to discharge)).
A. Ginger has not Proven as a Matter of Law that she has no Liability to Servpro
Ginger argues that she is not liable on the debt to Servpro, and, therefore, there is no basis for a finding of non-dischargeability. See Lawson v. Conley (In re Conley), 482 B.R. 191, 205 (Bankr. S.D. Ohio 2012) (non-dischargeable debt first requires a debt owed by the debtor to the creditor). The court finds Ginger has not shown she is not liable for the underlying debt as a matter of law and therefore denies summary judgment under this theory.
Ginger did not sign the contract with Servpro, but instead was listed as the customer. Ginger notes correctly that, under Ohio contract law, only a party, or someone in privity with that party, may be liable under the contract. Samadder v. DMF of Ohio, Inc., 798 N.E.2d 1141, 1147 (Ohio Ct. App. 2003).
However, Servpro argues that Ginger is liable on an agency theory. Actual agency occurs under Ohio law when there is a consensual relationship between the agent and the principal. Brainard v. Am. Skandia Life Assurance Corp., 432 F.3d 655, 661 (6th Cir. 2005). "Such actual agency may be informally created and the assent of the parties thereto may be either express or implied." Id. (citation omitted). Express authority "is that authority which is directly granted to or conferred upon the agent or employee in express terms by the principal, and it extends only to such powers as the principal gives the agent in direct terms[.]" Id. (quoting Damon's Missouri, Inc. v. Davis, 590 N.E.2d 254, 257 (Ohio 1992). Implied authority may "arise from the express delegation of actual authority and unless its extent is otherwise expressly limited, implied authority carries with it the power to do all that which is reasonably necessary to carry into effect the power actually conferred." Id. at 661-62 (quoting Damon's Missouri, 590 N.E.2d at 257) (citation omitted)). In some instances, a principal can ratify an earlier act. DRFP L.L.C. v. República Bolivariana de Venezuela, No. 2:04-cv-0793, 2016 WL 3996719, at *46 (S.D. Ohio July 22, 2016) (quoting Chase Bank of Ohio v. Mentor Food Mart, No. 90-L-14-055, 1991 WL 117011, at *5 (Ohio Ct. App. June 28, 1991) ("Ratification is effectuated where the principal, with full knowledge of the fact, conducts himself in a way which manifests his intention to approve an earlier act performed by his agent which did not bind him.")).
Apparent authority requires "(1) that the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority, and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority." Brainard v. Am. Skandia Life Assurance Corp., 432 F.3d at 662-63 (quoting Master Consol. Corp. v. BancOhio Nat'l Bank, 575 N.E.2d 817, 822 (1991)).
One spouse acting as agent for the other is recognized under Ohio law. Chevrolet v. Calhoun, No. 03AP-816, 2004 WL 397140, at *2 (Ohio Ct. App. Mar. 4, 2004) (citing Bretzfelder v. Demaree, 13o N.E. 505, 507 (Ohio 1921)). However, a presumption of agency may not be found based "merely upon their marital relationship." Id. (citing McSweeney v. Jackson, 691 N.E.2d 303, 307 (Ohio Ct. App. 1996) and Sowers v. Birkhead, 157 N.E.2d 459, 462-63 (Ohio Ct. App. 1959)). See also Ohio Rev. Code §§ 3103.08 ("Neither husband nor wife, as such, is answerable for the acts of the other.") and 3103.05 (A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried.").
As noted, the contract was not signed by Ginger, but she was listed as the "customer" by Servpro. Ginger made the initial contact with Servpro and was told of this vendor, and only this vendor, by her insurance company. Ginger was living at the house throughout the period the work was done and was aware the work was being completed. She testified that she did not see the contract or the estimates until her deposition in this litigation. Nevertheless, the record, including the Hafenbrack affidavit and inconsistent statements by Ginger, supports an interpretation that Travis was given authority to address these issues on behalf of both of them. Actual agency may exist based on Ginger giving Travis the implied authority to address the basement remediation with Servpro. The record also has some evidence to at least support apparent authority, because Ginger contacted Servpro initially and then Travis addressed the details of the work that needed to be done. Servpro may have had fair reason to consider Ginger the "customer" based upon the initial interaction. Finally, by taking no action, Ginger arguably ratified Travis's actions as the other party with an interest in the house. Whether Servpro can show agency under any of these theories at trial remains to be seen, but it cannot be said the record does not support it as matter of law.
In Ginger's reply brief, the argument for summary judgment shifts to whether fraud can be imputed from one spouse to another. Generally, a new argument cannot be raised in a reply brief, but a brief comment is warranted. Regardless of the Servpro contract, the Brownings received a check paid to both spouses, and both spouses endorsed it. The check was deposited in Ginger's individual account and at least a significant portion of the funds were spent, possibly after Ginger received bills from Servpro and had spoken to Servpro and her insurance agent. The exact timeline and Ginger's understanding will be settled at trial, and innocent explanations may prevail, but there is sufficient evidence from the bank records that Ginger may have spent funds knowing those funds were intended for Servpro.
On the other hand, Servpro's argument that Ginger's liability is clear as a matter of law is also unavailing. First, Servpro argues that the facts may support a finding of liability under a quantum meruit or unjust enrichment theory:
The elements of unjust enrichment and quantum-meruit are identical." Coyne v. Hodge Const., Inc., 9th Dist. No. 03CA0061-M, 2004-Ohio-727, 2004 WL 298688, ¶ 5, fn. 3. "A successful claim of unjust enrichment requires that: (1) a benefit has been conferred by a plaintiff upon a defendant; (2) the defendant had knowledge of the benefit; and (3) the defendant retained the benefit under circumstances where it would be unjust to do so without payment." Chef Italiano v. Crucible Dev. Corp., 9th Dist. No. 22415, 2005-Ohio-4254, 2005 WL 1963027, at ¶ 26. Unjust enrichment occurs when a person "has and retains money or benefits which in justice and equity belong to another." Hummel v. Hummel (1938), 133 Ohio St. 520, 528, 11 O.O. 221, 14 N.E.2d 923. "When there is an express contract related to the same subject matter, * * * a claim for unjust enrichment cannot be sustained." **362 Wochna v. Mancino , 9th Dist. No. 07CA0059-M, 2008-Ohio-996, 2008 WL 623731, ¶ 18.Bldg. Industry Consultants, Inc. v. 3M Parkway, Inc., 911 N.E.2d 356, 361-62 (Ohio Ct. App. 2009) (emphasis added). The parties agree there is a written contract as to the basement remediation. The only question is how to interpret Ginger's liability under that contract according to various agency theories recognized under Ohio law. Accordingly, because of the contract, the equitable theories of unjust enrichment and quantum meruit are not available as a basis for Ginger's liability.
Second, Servpro also argues that, based on issue preclusion, the issue of Ginger's liability has been determined by the Brownings' divorce decree and may not be re-litigated. Issue preclusion under Ohio law requires the following elements:
1) A final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; 2) The issue must have been actually and directly litigated in the prior suit and must have been necessary to the final judgment; 3) The issue in the present suit must have been identical to the issue in the prior suit; 4) The party against whom estoppel is sought was a party or in privity with a party to the prior action.Gonzalez v. Moffitt (In re Moffitt), 252 B.R. 916, 921 (B.A.P. 6th Cir. 2000) (citations omitted).
The Brownings' Judgment Entry and Decree of Divorce, dated April 21, 2017, incorporated their Separation Agreement. Exhibit 10. The Separation Agreement provides that the Brownings had certain joint marital debt, including the Servpro debt, that Ginger was "responsible for," and the list of "marital joint debt" includes Servpro. Exhibit 10 (Separation Agreement at 7, Part D, Item 4). But marital debt has no set definition under Ohio law. Elliott v. Elliott, No. 03CA2737, 2004 WL 1531888, at *3 (Ohio Ct. App. Mar. 31, 2004). As one Ohio state court noted "[i]n most states, a marital debt is any debt incurred during the marriage for the joint benefit of the parties or for a valid marital purpose." Id. For example, a credit card account established in one spouse's name does not preclude a finding that such credit card debt is marital debt. Id. at *4. A finding of marital debt in a divorce in Ohio simply does not represent a full and fair litigation of the question of a particular spouse's contractual obligation to a third-party creditor. Instead, such findings are part of an equitable distribution of assets and debts between the litigants to the divorce. See, e.g. Kaletta v. Kaletta, No. 98821, 2013 WL 1791809 (Ohio Ct. App. Apr. 25, 2013) (student loan debt incurred by husband alone for determined to be a marital debt). Debts incurred during the marriage are presumed be marital and the burden is on the party seeking a finding that it is a separate debt of one spouse only. Nemeth v. Nemeth, No. 2007-G-2791, 2008 WL 2582517, at *8 (Ohio Ct. App. June 27, 2008). Of course, it is binding precedent in the Sixth Circuit that bankruptcy courts look to definitions of marital property in determining property interests in fraudulent transfer actions. See Suhar v. Bruno (In re Neal), 541 F. Appx. 609, 613 (6th Cir. 2013) (in determining property interests of ex-spouses, "it simply does not matter that Defendant was not liable under nonmarital law."). But the court is unaware of any case law suggesting a determination, or even a stipulation or admission of a "marital debt" in Ohio divorce litigation is preclusive to the separate question of whether one of the spouses is contractually or otherwise liable for that debt to a third-party creditor. Such a determination of marital property or debt could no more create contractual rights to a third party than a hold harmless debt provision in favor of one spouse could, absent a bankruptcy, discharge that spouse's underlying obligation. The issues are not identical and were not necessary to the divorce court's decision.
Servpro further asserts that a determination of whether a finding should be preclusive is more relaxed when it applies to a consent judgment. The Separation Agreement was voluntarily entered by Ginger, but the divorce decree that incorporated the Separation Agreement is not a consent judgment. Ginger had originally sought a dissolution agreement but it was converted to a contested divorce. See Exhibit 10 at 1 (Judgment Entry and Decree of Divorce). The judgment entry was signed by Ginger only. But even if the incorporation of the separation agreement somehow makes the decree similar to a consensual dissolution, more central to the flaw in this argument is that the marital debt finding does not answer the question of Ginger's liability. See also Flanders v. Lawrence (In re Flanders), 517 B.R. 245, 260 n.6 (Bankr. D. Colo. 2014) (debtor's discharge of personal liability did not bar divorce court from characterizing a debt as marital under Colorado law).
Servpro cited Ferguson v. Enciso (In re Enciso), 300 B.R. 235 (Bankr. W.D. Pa. 2003) to support this argument, but that decision is inapposite. Ferguson determined that a spouse was collaterally estopped, under Pennsylvania law, from denying that she agreed to pay a mortgage loan based upon a prior oral agreement.
For these reasons, the court denies Ginger's motion for summary judgment seeking a determination that she has no liability to Servpro as a matter of law and finds that her liability is subject to material disputes of fact to be determined at trial.
B. Summary Judgment is Granted to Ginger as to the Larceny Prong of § 523(a)(4)
Ginger did not make any legal argument for summary judgment as to any particular prong of § 523(a)(4). Nevertheless, even assuming under the contract that the check was to be immediately turned over to Servpro without endorsement by the Brownings, the court can find no issue of material fact as to whether the insurance check was lawfully received by the Brownings. Regardless of what occurred after the check was received, larceny is not at issue. See Conley, 482 B.R. at 210 (quoting Chapman v. Pomainville, 254 B.R. 699, 705 (Bankr. S.D. Ohio 2000) ("Embezzlement differs from larceny in that the debtor's original acquisition of possession of the property was lawful.")). There is no question of fact whether the Brownings lawfully received the Motorists' check. Having lawfully received the check, Ginger cannot have committed larceny. For that reason, the court grants Ginger summary judgment as to the larceny prong of § 523(a)(4).
Recognizing Ginger moved for summary judgment on all counts, albeit under the theory an underlying debt did not exist, Servpro addressed the larceny count in the briefing. Accordingly, the court finds no need for any further notice or filings under Federal Rule of Civil Procedure 56(f). All other issues of fact and law concerning the other § 523(a)(4) counts will be addressed at the trial and the court expresses no opinion at this time. --------
Conclusion
For the reasons stated, Defendant's motion for summary judgment is granted as to Servpro's claim as relates to the larceny prong of 11 U.S.C. § 523(a)(4). The court denies summary judgment to Ginger on Servpro's claims under § 523(a)(4) for embezzlement and fraud or defalcation in a fiduciary capacity. The court will enter a separate order.
This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
/s/ _________
Guy R. Humphrey
United States Bankruptcy Judge Dated: June 14, 2018 Copies to: Thomas G. Eagle (Counsel for the Plaintiff) Stephen J. Malkiewicz (Counsel for the Defendant)