Cook v. Knight (In re Knight)

574 B.R. 800
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedAugust 24, 2017
DocketCASE NUMBER 15-11059-WHD; ADVERSARY PROCEEDING NO. 15-1042-WHD
StatusPublished
Cited by8 cases

This text of 574 B.R. 800 (Cook v. Knight (In re Knight)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Knight (In re Knight), 574 B.R. 800 (Ga. 2017).

Opinion

ORDER

W. Homer Drake, U.S. Bankruptcy Court Judge

The Debtor in the above-styled bankruptcy case filed his Chapter 7 petition on May 18, 2015. On August 24, 2015, Barbara Cook (hereinafter the “Plaintiff’), acting in her capacity as administrator of the estate of her late husband, Paul H. Cook, filed the complaint initiating the instant adversary proceeding. The Plaintiffs complaint contains four counts: (I) the debt the Debtor owes to the Plaintiff should be declared nondischargeable pursuant to § 523(a)(4); (II) the debt should be declared nondischargeable pursuant to § 523(a)(6); (III) the Debtor should be denied a discharge pursuant to § 727; and (IV) the Plaintiff is entitled to attorney’s fees pursuant to O.C.G.A. § 13-6-11.

On April 18, 2017, the Plaintiff filed a motion for summary judgment, seeking judgment on all counts of her complaint. Three days later, the Debtor filed his own motion for summary judgment, seeking judgment as to Count III of the Plaintiff’s complaint. These cross motions for summary judgment are currently before the Court. As this proceeding concerns dis-chargeability and entitlement to discharge, it is a core proceeding, see 28 U.S.C. § 157(b)(2)(I), (J), over which this Court has subject matter jurisdiction, see 11 U.S.C. §§ 157(a), 1334.

Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that 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); see also Fed. R. Bankr. P. 7056. In supporting its motion, “[t]he movant must point to the pleadings, discovery responses or supporting affidavits which tend to show the absence of a genuine issue of material fact.” First Nat’l Bank of Griffin v. Wyatt-Frizzell (In re Frizzell), No. 02-6443, 2006 WL 6589889, at *2 (Bankr. N.D. Ga. Aug. 8, 2006) (Drake, J.). Once that burden is met, the burden shifts to the non-movant “to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

[807]*807A fact is material if its truth or falsity will affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This means that “[f]actual disputes that are irrelevant or unnecessary” to coming to a decision under the controlling substantive law “will not be counted.” Id.; accord Philadelphia Indem. Ins. Co. v. Manitou Constr., Inc., 115 F.Supp.3d 1378, 1382 (N.D. Ga. 2015). Consequently, summary judgment is appropriate where there is “a complete failure of proof concerning an essential element of the nonmovant party’s case” because such failure “necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 317-18, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

As a final note, a court must view all of the evidence in the light most favorable to the non-movant. U.S. v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004); Bank of N. Ga. v. McDowell (In re McDowell), 497 B.R. 363, 368 (Bankr. N.D. Ga. 2013) (Drake, J.). With these guiding principles in mind, the Court turns to the motions at hand.

Background

Paul H. Cook (hereinafter “Cook”), the Plaintiffs late husband, was a certified public accountant practicing in Griffin, Georgia. Cook and the Debtor were co-members of a Georgia limited liability company, AWKPHC, LLC (hereinafter the “LLC”), which did business as “Knight and Cook CPAs.” Cook died on July 28, 2013, and the Plaintiff became administrator of his estate. At some point, a disagreement arose between the Debtor and the Plaintiff concerning the ownership and disposition of Cook’s client list and interest in the LLC. Per the LLC’s operating agreement, the parties submitted their dispute to arbitration.

The arbitrator held his hearing on February 15, 2015. The hearing appears to have contained all of the trappings of a normal court proceeding: the parties had legal counsel, the arbitrator heard opening statements and closing arguments, the parties presented evidence, the parties had the opportunity to cross-examine witnesses, and the parties were permitted to submit post-hearing briefs.

On March 13, 2015, the arbitrator rendered his decision. The arbitrator found that the Plaintiff had met with the Debtor in August of 2013. At that meeting, the parties “agreed that [the Debtor] would collect [Cook’s] outstanding receivables, bill for his unbilled services, and would attempt to find a CPA-purchaser for both [Cook’s] clients and those of [the Debtor].” However, when the Plaintiff asked “for financial information on [Cook’s] practice and that of the LLC, and for a copy of [Cook’s] client list,” the Debtor, “for whatever reason,.. .‘stonewalled’ [the Plaintiff], refused to deliver [Cook’s] client list and financial information, paid out only about $2,800 of funds to [the Plaintiff] from the LLC,... and refused any accounting.” Additionally, the arbitrator found that the Debtor “had decided not to sell his client base, was not attempting to sell [Cook’s] client base to a third party CPA, and claimed that the LLC owned [Cook’s] client base.” The arbitrator found that the Debtor had “refused to account for sums belonging to [Cook’s] estate from the LLC” and that the Debtor “has refused to liquidate the LLC, although that is specifically required by the Operating Agreement upon the death of one of the two Members.”

These findings led the arbitrator to conclude as follows:

[T]he Debtor has violated his duties under the LLC Operating Agreement and under Georgia law, has not dealt in good [808]*808faith with the widow and estate adminis-tratrix of his deceased colleague and fellow LLC Member, that he has converted for his own benefit the client base of the decedent, and has not paid to [the Plaintiff] amounts due her from the LLC.

The arbitrator awarded the Plaintiff the following sums: $150,000 for Cook’s client base; $45,000 “representing [Cook’s] capital and other interests in the cash accounts of the LLC”; $17,000 in partial attorney’s fees; and $11,006.25 as the Plaintiffs share of the costs of arbitration. The award totals $223,006.25.

On April 17, 2015, the Plaintiff filed an action to confirm the award in the Superi- or Court of Spalding County. However, that action was stayed when the Debtor filed his bankruptcy petition on May 18, 2015.

Discussion

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Cite This Page — Counsel Stack

Bluebook (online)
574 B.R. 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-knight-in-re-knight-ganb-2017.