Cardwell v. Hester (In re Hester)

559 B.R. 472
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedOctober 11, 2016
DocketBANKRUPTCY NO. 15-40930; ADV. NO. 15-04046
StatusPublished
Cited by4 cases

This text of 559 B.R. 472 (Cardwell v. Hester (In re Hester)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cardwell v. Hester (In re Hester), 559 B.R. 472 (Ky. 2016).

Opinion

MEMORANDUM

Alan C. Stout, United States Bankruptcy Judge

This matter came before the Court for trial on August 16,2016 and September 13, 2016. Both the Plaintiff, Harini Cardwell, and the Defendant, Albert M. Hester, ap-peared at trial and were represented by counsel. At the trial, the parties presented evidence, both written and documentary. Upon consideration of the evidence pre-sented the Court enters the following Findings of Fact and Conclusions of Law pursuant to Fed. R. Bank. P. 7052.

FINDINGS OF FACT

From 2007 to February 2015, the Plain-tiff worked at a gasoline service station. The Defendant frequented the gas station on occasion, and became acquainted with the Plaintiff. At some point, the Plaintiff and Defendant agreed to start a pawn business together. While.the Plaintiff had no experience in the pawn business, the Defendant was familiar with the operation of pawn shops due to his prior association with a different pawn store, Master Pawn. The parties agreed that they would be equal partners, with each sharing half the profits and half the expenses. Despite this arrangement, the Plaintiff provided the majority of the funding to start the business, including some $15,000 used as oper-ating capital. The parties jointly leased the real property to be used for the pawn store, and each had a key to the store. The operating funds were kept in a safe within the pawn store that had been left from the store’s previous owner. The safe was re-combinationed after the parties took con-trol of the pawn store, and only the parties possessed the combination to the safe. Ad-ditionally, the Defendant installed a lock on the front door and only the Defendant and the Plaintiff possessed a key to this door, with both parties testifying that no copy of the key was ever made.

The business officially opened on Febru-ary 1, 2015. The pawn store was stocked with merchandise brought in by each party, as well as property from the party’s family members, and items pawned at the store. The evidence was not at all clear which specific items were brought in by the Plaintiff or by the Defendant. The store made somewhere between thirty to forty pawns in its first week.

Shortly after the business began operat-ing, on February 5, 2015, the Defendant was arrested on felony drug charges re-sulting in his incarceration. A bond was set at $25,000 for his release from jail. The Defendant called the Plaintiff from jail and asked her to bail him out of jail. According to the Plaintiff, the Defendant promised to repay her the bond amount within a week. The Plaintiff agreed to assist the Defen-dant in his release from jail because she [475]*475still needed the Defendant to help her with the newly opened pawn store.

The Plaintiff testified that she provided the entire $25,000 bond amount. She testi-fied that she was able to put forward $5,000 of the bond funds, but that she had to borrow the other $20,000 from her for-mer employer at the service station, Sam Gollan. Plaintiff testified that no written agreement was created to document the loan from Mr. Gollan to the Plaintiff, and that she still was obligated to repay these funds to Mr. Gollan. Mr. Gollan testified corroborating these facts.

The Defendant testified to a different story. He testified that $20,000 of the funds were his and the other $5,000 be-longed to his cousin, Phillip Hester. He stated that he kept these funds in an un-locked briefcase under the counter at the pawn store. Due to asserting his Fifth Amendment right against self incrimination, the Defendant refused to testify where or how he came by these funds. The Defendant’s mother, Robin Griffith, also testified that she was told by her son that the funds belonged to him. Conversely, evidence was also admitted indicating that Ms. Griffith texted the Plaintiff stating that the funds belonged to the Plaintiff rather than the Defendant. Ms. Griffith’s testimony on this point was contradictory at best.

The bond was issued but the surety listed on the bond was Ms. Griffith, the Defendant’s mother. The Plaintiff testified that Ms. Griffith was listed rather than the Plaintiff because the Plaintiff was unfamil-iar with the criminal process.

The Defendant also called Ms. Christina Muffet to testify on his behalf regarding the origination of the bond funds. Ms. Muf-fet worked in the state court clerk’s office, and was charged with the handling of bonds in criminal cases in 2015. Ms. Muffet testified that she specifically remembered the Defendant’s criminal case, the Defen-dant, the Plaintiff, and the Defendant’s mother. She testified that the Defendant’s mother presented the bond, but acknowl-edged the Plaintiff was present as well. She also recalled there being a conversation between the Defendant’s mother and the Plaintiff as to whose name to put the bond. Ms. Muffet testified that neither the mother nor the Plaintiff wanted it in their name. Ms. Muffet also testified she was not aware who possessed the funds prior to the arrival at the courthouse. Finally, Ms. Muffet testified that the Plaintiff stat-ed it was the Defendant’s money.

After the criminal proceeding was com-pleted, the bond amount1 was returned to Ms. Griffith, who returned the funds to her son, the Defendant. The Plaintiff request-ed that the Defendant return the bail mon-ey to her, but the Defendant refused to repay the Plaintiff the $25,000. Instead, the Defendant used the funds to pay legal fees (both criminal and civil) and for gen-eral living expenses.

After the Defendant’s release from jail, the Plaintiff decided she no longer wanted to partner with the Defendant in the pawn business. On February 13, 2015, the Plain-tiff .and Defendant went to the Occupational License Fee Division and removed the Defendant’s name from the pawn shop ac-count. The Defendant, however, retained his key to the store. February 16th was to be the Defendant’s last day at the store.

On the night of February 15, 2015, the Defendant returned to the store, used his key and his knowledge of the combination [476]*476to the safe to remove $14,000 from the safe. After discovering the theft, the Plain-tiff contacted the Defendant. The Plaintiff testified that the Defendant admitted to her that he stole the $14,000 in cash. The Plaintiff further testified that the Defen-dant promised to repay the funds. To this end, the Defendant drafted a document setting forth his driver’s license number and date of birth, and agreeing to repay the Plaintiff the $14,000 stolen. The Plain-tiff testified that the Defendant signed this document in front of her and in her presence at the pawn shop.

, The Defendant denied admitting he stole the funds, denied drafting‘the agreement referenced by the Plaintiff, and denied signing that agreement. However, the Plaintiff presented evidence of the Defen-dant’s signatures on other documents, and, to the Court’s eye, the signatures oh the agreement to repay and the other docu-ments were identical.

The Plaintiff also, testified that the De-fendant returned at a later date and took another sum of money, in the $28,000 to $30,000 range, as well as large quantities of merchandise from the store. The Plain-tiff provided a list of items, and their supposed value, that were allegedly re-moved from the store. This list originated solely from the Plaintiffs memory, as the official store inventory list was also stolen. The list consisted of items that both the Defendant and the Plaintiff originally con-tributed to the store, as well as items that had been brought in to pawn.

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Cite This Page — Counsel Stack

Bluebook (online)
559 B.R. 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cardwell-v-hester-in-re-hester-kywb-2016.