In re: Sherri Nicodemu

Filing

OPINION filed : AFFIRMED, decision fully precedential pursuant to local BAP rule 8013-1(b). Guy R. Humphrey, Joan A. Lloyd, and C. Kathryn Preston (authoring judge), Bankruptcy Appellate Panel Judges. **Pursuant to the Opinion Correction Letter of 10/8/13, the opinion attached to this entry has been corrected.--[Edited 10/08/2013 by CL]

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ELECTRONIC CITATION: 2013 FED App. 0005P (6th Cir.)
File Name: 13b0005p.06

BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
In re: SHERRI J. NICODEMUS,

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Debtor.
______________________________________
LAVERNE K. LOWRY,
Plaintiff - Appellee,
v.
SHERRI J. NICODEMUS,
Defendant - Appellant.
______________________________________

No. 12-8050

Appeal from the United States Bankruptcy Court
for the Northern District of Ohio
Case No. 11-52963, Adv. No. 11-05189
Submitted: August 20, 2013
Decided and Filed: October 7, 2013
Before: HUMPHREY, LLOYD, and PRESTON, Bankruptcy Appellate Panel Judges.

____________________
COUNSEL
____________________

ON BRIEF: Michael J. Moran, GIBSON & LOWRY, Cuyahoga Falls, Ohio, for Appellant. Walter
R. Lawrence, Tallmadge, Ohio, for Appellee.
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___________________
OPINION
____________________

C. KATHRYN PRESTON, Bankruptcy Appellate Panel Judge. Sherri J. Nicodemus
(“Debtor” or “Defendant”) appeals the order of the bankruptcy court determining that the entire debt
owed to Laverne K. Lowry (“Plaintiff”) in the amount of $32,186.90 plus interest pursuant to a state
court judgment, is nondischargeable under § 523(a)(2)(A). The total sum consists of $9,386.90 in
damages for failure to comply with a settlement agreement and $22,800.00 in sanctions for
contemptuous failure to comply with a court order. Debtor argues that only the portion resulting
from breach of the settlement agreement, or $9,386.90, should be held nondischargeable. For the
reasons set forth below, the Panel AFFIRMS the decision of the bankruptcy court holding that the
entire debt, in the amount of $32,186.90 plus interest, is nondischargeable under § 523(a)(2)(A).

STATEMENT OF ISSUES

There are two issues presented in this appeal. The primary issue is whether the bankruptcy
court erred in determining that the $22,800.00 awarded as a sanction for contemptuous failure to
comply with a court order is nondischargeable under § 523(a)(2)(A). The second issue is whether
the bankruptcy court erred in denying Debtor’s motion to amend or make additional findings of fact
pursuant to Fed. R. Bankr. P. 7052.

JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel of the Sixth Circuit (“BAP”) has jurisdiction to decide this
appeal. The United States District Court for the Northern District of Ohio has authorized appeals to
the BAP, and no party has timely elected to have this appeal heard by the district court. 28 U.S.C.
§ 158(b)(6), (c)(1). A “final” order of a bankruptcy court may be appealed by right under 28 U.S.C.
§ 158(a)(1). For purposes of appeal, an order is final if it “ends the litigation on the merits and
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leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United
States, 489 U.S. 794, 797, 109 S. Ct. 1494, 1497 (1989) (internal quotations and citations omitted).
Determinations of dischargeability are final orders for purposes of appeal. Cash Am. Fin. Servs.,
Inc. v. Fox (In re Fox), 370 B.R. 104, 109 (B.A.P. 6th Cir. 2007) (quoting Hertzel v. Educ. Credit
Mgmt. Corp. (In re Hertzel), 329 B.R. 221, 224-25 (B.A.P. 6th Cir. 2005)).

Dischargeability determinations are conclusions of law reviewed de novo. Hogan v. George
(In re George), 485 B.R. 478 (B.A.P. 6th Cir. 2013) (table). Under a de novo standard of review,
the appellate court determines the law at issue “independently of, and without deference to, the trial
court’s determination.” Palmer v. Washington Mut. Bank (In re Ritchie), 416 B.R. 638, 641 (B.A.P.
6th Cir. 2009) (citing Gen. Elec. Credit Equities, Inc. v. Brice Rd. Devs., L.L.C. (In re Brice Rd.
Devs., L.L.C.), 392 B.R. 274, 278 (B.A.P. 6th Cir. 2008). However, “[t]he Panel must affirm the
underlying factual determinations unless they are clearly erroneous.” Hart v. Molino (In re Molino),
225 B.R. 904, 906 (B.A.P. 6th Cir. 1998). “[A] finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564,
573, 105 S. Ct. 1504, 1511 (1985) (citation omitted) (internal quotation marks omitted).

The bankruptcy court’s denial of Debtor’s motion to amend or make additional findings of
fact pursuant to Fed. R. Bankr. P. 7052 is reviewed for abuse of discretion. Besser v. Sepanak,
478 F. App’x. 1001 (6th Cir. 2012). Abuse of discretion exists when the court “ ‘relies upon clearly
erroneous findings of fact or when it improperly applies the law or uses an erroneous legal
standard.’ ” Corzin v. Fordu (In re Fordu), 209 B.R. 854, 858 (B.A.P. 6th Cir. 1997) (citation
omitted). If a trial court’s decision determining dischargeability is based on the correct law and facts,
the court has not abused its discretion in denying a party’s motion to amend or make additional
findings of fact.

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FACTS

On July 29, 2011, Debtor filed a voluntary petition for relief under Chapter 13 (Case No. 1152963). In Debtor’s schedules, she listed Plaintiff as the holder of an unsecured non-priority claim
in the amount of $32,736.79 based on a civil judgment. On December 1, 2011, Plaintiff filed a proof
of claim in the amount of $32,186.90.

Prior to the petition date, Debtor was married to Plaintiff’s son, John Lowry. Plaintiff and
John Lowry had an extensive collection of model trains. On April 27, 2007, John Lowry died.
Following John Lowry’s death, a dispute arose between Plaintiff and Debtor over the train collection.
On July 18, 2007, Plaintiff filed suit against Defendant in the Portage County, Ohio, Court of
Common Pleas (“Court of Common Pleas”) seeking more than $25,000 in damages resulting from
the Debtor’s alleged conversion of the train collection, which he asserted belonged to him (“state
court litigation”).

On July 31, 2007, the Court of Common Pleas entered an agreed order tendered by Plaintiff
and Defendant, restraining and enjoining certain actions with respect to the train collection. The
order provided that Debtor was “restrained and enjoined from selling, transferring, removing,
moving, encumbering, or otherwise disposing of any trains, accessories, train memorabilia, displays
or other personal property associated with the train collection located at the [Defendant’s] premises.”
Stipulations, Exh. B, Docket No. 10.1

In September 2007, Debtor was appointed administratrix of John Lowry’s probate estate by
the Portage County, Ohio, Probate Court. On November 5, 2007, a magistrate judge of the Court
of Common Pleas entered another agreed order in the state court litigation directing that one Amy
Richards conduct an inventory of the train collection. On July 13, 2009, following the completion
of the inventory, Plaintiff and Defendant, individually and as administratrix of John Lowry’s estate,

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All references to docket entries are references to the bankruptcy court’s electronic case

docket.

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entered into a settlement agreement resolving the state court litigation and matters in Probate Court
(the “Settlement Agreement”). The Settlement Agreement identified certain parts of the train
collection as belonging to Plaintiff and required Defendant to deliver possession of those parts to
Plaintiff. The remainder of the train collection was to be sold at auction and the proceeds were to
be split among the parties to the Settlement Agreement. On August 5, 2009, the Court of Common
Pleas entered an order dismissing the state court litigation “pursuant to separate settlement agreement
entered by the parties” with prejudice. Stipulations, Exh. E, Docket No. 10. On September 23,
2009, Plaintiff filed a motion to enforce the Settlement Agreement in the Court of Common Pleas.

After Plaintiff filed his motion to enforce the Settlement Agreement, the Court of Common
Pleas held hearings and entered two orders, on January 29, 2010 and February 24, 2010, both
directing Defendant to comply with the terms of the Settlement Agreement to turn over certain trains
and accessories to Plaintiff. The court also scheduled a consolidated hearing for April 19, 2010, on
Plaintiff’s Motion to Enforce the Settlement Agreement and Motion for Contempt and Attorney
Fees.

On April 21, 2010, after an evidentiary hearing, the magistrate judge entered a decision,
finding that:

Defendant advanced no reasonable excuse why she had not complied
with the Court’s Order. Further the Defendant has not turned over all
the trains and/or accessories promised to the children. For some
reason Defendant has given the appearance and attitude to the Court
that she feels that if complying with the Court’s prior Orders is
inconvenient to her, she need not comply. Defendant admitted that
she did not seek to comply with the Court’s Order by giving the
remaining trains and/or the accessories to the Plaintiff. No items
were returned from March 2, 2010 to the days of hearing, even though
the Defendant could have returned those items. In fact Defendant
shipped those items to the auctioneer. Her actions have been dilatory
at the best and malicious at the worst.

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Stipulations, Exh. I, Docket No. 10. The Court of Common Pleas ordered Defendant to comply with
its prior orders and deliver to Plaintiff the trains. The magistrate’s decision also stated that
Defendant’s failure to return the trains would result in the imposition of a penalty on Defendant of
$100.00 per day, until the items were delivered to Plaintiff, and Defendant was charged with all court
costs incurred by Plaintiff. Id.

Evidently, Defendant failed to fully comply with the multitude of orders and finally, Plaintiff
moved the Court of Common Pleas for entry of a final judgment. The Court of Common Pleas
entered judgment for Plaintiff and against Defendant in the amount of $32,186.90 plus interest (the
“Judgment”). The Judgment provides as follows:

IT IS THEREFORE ORDERED that Plaintiff is granted a judgment
against the Defendant Sherri J. Lowry Nicodemus nka Miller, for a
deficiency in the amount of funds paid to Plaintiff from the proceeds
of the train collection auction, in the amount of $9,386.90, plus
interest at the statutory rate of 4% per annum from the date hereof.
IT IS THEREFORE ORDERED that Plaintiff is granted a judgment
against the Defendant Sherri J. Lowry Nicodemus nka Miller, for her
willful contempt of this Court’s Order filed herein on October 12,
2010, by failing to return the trains and/or accessories to Plaintiff, in
an amount of $22,800.00. Said judgment is calculated at the rate of
$100.00 per day from April 19, 2010 to 12/7/10, plus interest at the
statutory rate of 4% per annum from the date hereof.
Stipulations, Exh. J, Docket No. 10 (emphasis added).

After Debtor filed her petition for relief, Plaintiff filed a complaint with the bankruptcy court
seeking to except from discharge the entire debt owed to him by Debtor under 11 U.S.C. §
523(a)(2)(A) and (a)(7) (“Complaint”). The parties filed a joint stipulation of facts. On May 1,
2012, an evidentiary hearing was conducted. The bankruptcy court heard testimony from Debtor and
Plaintiff, received documentary evidence, and took the matter under advisement. On August 2,

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2012, the bankruptcy court issued a memorandum opinion holding that the entire debt in the amount
of $32,186.90 plus interest is nondischargeable under § 523(a)(2)(A).2

On August 13, 2012, the Debtor filed a motion to amend or make additional findings of fact
pursuant to Federal Rule of Bankruptcy Procedure 7052.3 The Debtor argued that although the court
set forth detailed findings of fact to support its conclusion that the $9,386.90 portion of the debt is
non-dischargeable, the court did not state sufficient findings of fact to support its conclusion that
the $22,800.00 entered against the Debtor due to her contempt of court was on account of the fraud.
Def.’s Mot. Req. Court to Amend or Make Add’l Findings of Fact at 2, Docket No. 24. On
November 29, 2012, the bankruptcy court entered an order denying Debtor’s motion to amend or
make additional findings of fact pursuant to Fed. R. Bankr. P. 7052.

On December 13, 2012, the Debtor filed a timely notice of appeal.

DISCUSSION

I.

Dischargeabililty under 11 U.S.C. § 523(a)(2)(A)

Section 523(A)(2)(A) of the Bankruptcy Code excepts from discharge “any debt . . . for
money, property, services, or . . . credit, to the extent obtained by . . . false pretenses, a false
representation, or actual fraud.” 11 U.S.C. § 523(a)(2)(A). Exceptions to discharge are narrowly
construed in favor of debtors in order to promote the Bankruptcy Code’s policy of providing debtors
with a fresh start. Grogan v. Garner, 498 U.S. 279, 286, 111 S. Ct. 654, 659 (1991). However, a
2

At the conclusion of trial, Plaintiff conceded that the debt at issue was not payable to a
government entity and therefore § 523(a)(7) was not applicable to the facts of the case. See Hughes v.
Sanders, 469 F.3d 475 (6th Cir. 2006). Plaintiff also moved the court at the close of trial to conform
the Complaint to the evidence presented and find that the debt owed by Debtor is excepted from
discharge pursuant to § 523(a)(6). The bankruptcy court held that the § 523(a)(6) claim was not ripe
for decision because “ ‘resolution of the issue has no meaningful effect until and unless the debtor
moves for a hardship discharge, a contingency that occurs [in] only [sic] a small percentage of Chapter
13 cases.’ In re Liescheidt, 404 B.R. 499, 505 (Bankr. C.D. Ill. 2009).” Mem. Op., p. 2 n. 2, Docket
No. 23.
3

The motion tolled the deadline for filing a notice of appeal under Fed. R. Bankr. P. 8002(b).

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fresh start and discharge of debts is only afforded to the “ ‘honest but unfortunate debtor.’ ” Id. at
287 (citation omitted). A creditor objecting to the dischargeability of a debt under § 523(a)(2)(A)
bears the burden of proving by a preponderance of the evidence, that:

(1) the debtor obtained money through a material misrepresentation
that, at the time, the debtor knew was false or made with gross
recklessness as to its truth; (2) the debtor intended to deceive the
creditor; (3) the creditor justifiably relied on the false representation;
and (4) its reliance was the proximate cause of the loss.
Old Republic Title Co. of Tenn. v. Looney (In re Looney), 453 B.R. 252, 259 (B.A.P. 6th Cir. 2011)
(citing Rembert v. AT & T Universal Card Servs. (In re Rembert), 141 F.3d 277, 280-81 (6th Cir.
1998)).

In this appeal, the bankruptcy court concluded that Plaintiff met his burden of proof regarding
every element of § 523(a)(2)(A). Specifically, the bankruptcy court held that “[e]ither the Defendant
did not intend to comply with the Settlement Agreement or she entered into it with reckless disregard
to her ability to perform as promised. Either way, by entering into the Settlement Agreement, the
Defendant made a material misrepresentation with intent to deceive.” Mem. Op. at 9, Docket No.
23. The bankruptcy court also held that the Plaintiff justifiably relied on the Defendant’s
representations that she would comply with the terms of the Settlement Agreement based on the fact
that the trains in dispute were last in her possession or control. Finally, the court found that the
Plaintiff suffered damages as a result of his reliance on Debtor’s representations and held that the
entire amount, $32,186.90 plus interest, is nondischargeable. Debtor does not challenge the
bankruptcy court’s decision regarding the $9,386.90 portion of the debt owed to Plaintiff for failure
to deliver to Plaintiff some of the trains and accessories, and a portion of the auction proceeds. Thus,
the primary issue before the Panel is whether the state court’s contempt sanction of $22,800 is a debt
for money obtained by false pretenses, a false representation, or actual fraud and therefore
nondischargeable under § 523(a)(2)(A).

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In order to make this determination, the Panel must examine § 523(a)(2)(A) and caselaw
interpreting the statute. The Supreme Court in Cohen v. De La Cruz, 523 U.S. 213, 118 S. Ct. 1212
(1998), provides guidance on the scope of § 523(a)(2)(A). In Cohen, tenants were charged rent in
excess of rent control amounts and the landlord was ordered by the city to refund $31,382.50. The
landlord did not comply with the city’s order and filed a Chapter 7 bankruptcy case seeking to
discharge the debt. The tenants filed a complaint arguing that their claim was nondischargeable
under § 523(a)(2)(A). Following a trial, the bankruptcy court determined that in addition to
compensatory damages, treble damages should be held nondischargeable because they arose out of
the same fraudulent conduct of the landlord. The landlord appealed and the Third Circuit Court of
Appeals affirmed. The Supreme Court granted certiorari and affirmed.

A critical point made by the Supreme Court in Cohen is that § 523(a)(2)(A) prevents
discharge of “any debt” as long as the debt sought to be discharged is assessed “on account of the
fraud.” Cohen, 498 U.S. at 218; see also Archer v. Warner, 538 U.S. 314, 321, 123 S. Ct. 1462,
1467 (2003) (citations omitted). The Supreme Court in Cohen explains that the phrase “to the extent
obtained by” in § 523(a)(2)(A)
does not impose any limitation on the extent to which “any debt”
arising from fraud is excepted from discharge. “[T]o the extent
obtained by” modifies “money, property, services, or . . . credit” – not
“any debt” – so that the exception encompasses “any debt . . . for
money, property, services, or . . . credit, to the extent [that the money,
property, services, or . . . credit is] obtained by” fraud.
Cohen, 523 U.S. at 218. This means that as long as the debt in question arises out of the debtor’s
fraud, false pretenses, or false representation, the debt should be held nondischargeable under §
523(a)(2)(A).

Like the petitioner in Cohen, the Debtor in this appeal contends that Plaintiff is only entitled
to recover “actual losses” under § 523(a)(2)(A). Appt’s Br. at 10. This argument, however,
contradicts the Supreme Court’s broad reading of § 523(a)(2)(A), which concludes that recovery
under this section of the Code is not limited to the value of any “money, property, services, or . . .
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credit” fraudulently obtained by a debtor, but includes even compensatory, punitive or statutory
liability.4 Cohen, 523 U.S. at 216. The Court found support for its interpretation of § 523(a)(2)(A)
in the history of the Bankruptcy Code’s nondischargeability provision, noting in Cohen that
originally § 523(a)(2)(A) only covered judgments sounding in fraud. Cohen, 523 U.S. at 221. The
exception was later broadened to include all such

“liabilities for obtaining property by false pretenses or false
representations,” § 5, 32 Stat. 798, language that, a fortiori,
encompasses liability for punitive damages. See Brown, 442 U.S., at
138, 99 S.Ct., at 2212-2213 (interpreting the provision as prohibiting
discharge of “all debts arising out of conduct specified” therein); In
re St. Laurent, 991 F.2d, at 679 (noting “practice of holding debts for
punitive damages nondischargeable” under this exception “if
compensatory damages . . . were themselves nondischargeable”).
And the Bankruptcy Act of 1978 enacted a “substantially similar”
provision, Brown, supra, at 129, n. 1, 99 S.Ct., at 2208, n. 1, barring
discharge of “any debt . . . for obtaining money, property, services, or
. . . credit, by . . . false pretenses, a false representation, or actual
fraud.” 11 U.S.C. § 523(a)(2)(A) (1982 ed.).
Id. To the Court in Cohen, this signaled Congress’ intent not to limit the exception to only “the
portion of debtor’s liability representing a restitutionary – as opposed to compensatory or punitive
– recovery for fraud . . . . ” Cohen, 523 U.S. at 222. The Cohen opinion makes clear that to the
extent that debts in the nature of a sanction arose from an underlying nondischargeable debt, such
sanctions are also nondischargeable under § 523(a)(2)(A).

The Sixth Circuit has not directly addressed whether a contempt judgment is
nondischargeable under § 523(a)(2)(A). Most cases dealing specifically with the dischargeability
of contempt judgments have been decided instead under § 523(a)(6), and have uniformly held that
such judgments may constitute a nondischargeable debt. See, e.g., Musilli v Droomers (In re

4

In Cohen, the Supreme Court states that § 523(a) defines several categories of liabilities that
are excepted from discharge, and the words “debt for” introduces many of them. “ ‘[D]ebt for’ is used
throughout to mean ‘debt as a result of,’ ‘debt with respect to,’ ‘debt by reason of,’ and the like, . . .
connoting broadly any liability arising from the specified object.” Cohen, 523 U.S. at 220 (emphasis
added).

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Musilli), 379 Fed. Appx. 494 (6th Cir. 2010) (holding that the debtors’ actions that led them to be
held in contempt constitute willful and malicious injury); The Spring Works, Inc. v. Sarff (In re
Sarff), 242 B.R. 620 (B.A.P. 6th Cir. 2000) (state court judgment holding debtor liable both for
compensatory and punitive damages, and for sanctions, was excepted from discharge); Dentrust
Dental Int’l v. Rosenberg (In re Rosenberg), Bankr. No. 05-23111, Adv. No. 05-1587, 2007 WL
2156282 (Bankr. N.D. Ohio July 23, 2007) (holding that state court findings regarding debtor’s
violation of preliminary injunction, resulting in a $250,000 contempt sanction, satisfied the criteria
for nondischargeability under § 523(a)(6)). Other circuits have reached the same conclusion under
§ 523(a)(6). See, e.g., Siemer v. Nangle (In re Nangle), 274 F.3d 481, 484 (8th Cir. 2001) (state
court criminal contempt judgment entered against debtors prepetition for disobeying a court order
was “willful,” and “malicious” and thus nondischargeable under § 523(a)(6)) (citation omitted);
Williams v. Int’l Brotherhood of Elec. Workers Local 520 (In re Williams), 337 F.3d 504, 511-13
(5th Cir. 2003) (a contempt judgment resulting from debtor’s violation of an agreed judgment was
nondischargeable because the judgment “made him substantially certain that his acts would inflict
injury” should he not comply with its directives).

Although there are no Sixth Circuit cases on point, cases decided after Cohen adhere to the
Supreme Court’s interpretation of the scope of § 523(a)(2)(A), holding that punitive damages are
nondischargeable under § 523(a)(2)(A).5 See, e.g., Miller v. Grimsley (In re Grimsley), 449 B.R.
602, 621 (Bankr. S.D. Ohio 2011) (citing to Cohen, the bankruptcy court held that in addition to
actual damages, the “ ‘full liability traceable to the sum[,]’ including any liability for items such as
treble and other punitive damages, attorney’s fees and costs,” is also nondischargeable); Kibler v.
Winters (In re Winters), 159 B.R. 789 (Bankr. E.D. Ky. 1993) (citing St. Laurent v. Ambrose (In re
St. Laurent), 991 F.2d 672 (11th Cir. 1993), holding that a debt for punitive damages is
nondischargeable under § 523(a)(2) and (a)(6) where both compensatory and punitive damages flow
from same conduct). These cases are instructive to this appeal because like contempt sanctions,

5

Debtor contends that the punitive nature of contempt sanctions means that they are unrelated
to the underlying fraud and therefore dischargeable. The caselaw cited above contradicts Debtor’s
argument.

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punitive damages are awarded not to compensate the prevailing party, but rather are intended to
punish and deter its repetition. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 493, 128 S. Ct.
2605, 2621 (2008). The record in this appeal reveals that Debtor was given multiple opportunities
to comply, to no avail. As a result, the contempt sanction was issued and its purpose was to force
Debtor to comply and punish Debtor if she continued to ignore the court’s orders.

The cases cited by Debtor are distinguishable from the instant case and therefore are
inapplicable. Debtor first cites West Coast Rentals, Inc. v. Perez (In re Perez), 415 B.R. 546 (Bankr.
D.N.M. 2009). In Perez, the plaintiff had filed a complaint in state court for breach of confidentiality
and non-compete provisions contained in an employment contract. The state court found that the
debtor lied under oath and entered a contempt judgment against him. Unlike the contempt judgment
in this appeal, the conduct (lying under oath) leading to the contempt judgment in Perez was
completely unrelated to the underlying claims for breach of contract. Accordingly, the bankruptcy
court could not conclude that the debt represented an amount obtained by false pretenses, a false
representation, or actual fraud. Perez is also distinguishable because in that case the plaintiff could
not establish all the elements necessary to sustain a claim under § 523(a)(2)(A).

In addition, Debtor relies on Tatton v. Jahke (In re Jahke), Bankr. No. 05-22989, Adv. No.
05-2320, 2006 WL 4846384 (Bankr. S.D. Utah Oct. 10, 2006) and Ghomeshi v. Sabban (In re
Sabban), 384 B.R. 1 (B.A.P. 9th Cir. 2008), to support the theory that a claim for nondischargeability
of a contempt judgment may not be brought under § 523(a)(2)(A). The Jahke and Sabban cases are
based on facts similar to the facts in Perez. Therefore, the bankruptcy courts held similarly that the
plaintiffs’ claims under § 523(a)(2)(A) were not properly supported by the facts, and thus were
discharged. Debtor’s reliance on these three cases is misplaced.

II.

Whether the Contempt Judgment May Be Determined to “Arise out of Fraud” and
thus is Nondischargeable under § 523(a)(2)(A).

In reviewing the bankruptcy court’s findings of fact to determine whether the contempt
judgment arises out of Debtor’s fraud and misrepresentations, this Panel applies the clearly erroneous
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standard. Pursuant to the clearly erroneous standard, the Panel must give deference to the
bankruptcy court as the finder of fact. Sicherman v. Diamoncut, Inc. (In re Sol Bergman Estate
Jewelers, Inc.), 225 B.R. 896, 904 (B.A.P. 6th Cir. 1998). The bankruptcy court is in the best
position to assess the evidence presented. Kaye v. Agripool, SRL (In re Murray, Inc.), 392 B.R. 288,
297 (B.A.P. 6th Cir. 2008). The Supreme Court has explained the clearly erroneous standard:

If the district court’s account of the evidence is plausible in light of
the record viewed in its entirety, the court of appeals may not reverse
it even though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently. Where there are two
permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.
Such deference to the trial court is necessary because the trial judge
is in the best position to determine the credibility of witnesses.
Anderson v. City of Bessemer City, 470 U.S. 564, 573-75, 105 S. Ct. 1504, 1511-12 (1985).

Debtor agrees that the bankruptcy court’s findings of fact as they relate to the damage award
for violation of the Settlement Agreement are not clearly erroneous. The question before the Panel
then becomes whether the facts leading to the contempt judgment arise out of the same conduct.
Applying the policy and principles set forth in Cohen to the facts of this case, the Panel concludes
that the entire debt stems from Debtor’s fraudulent conduct and misrepresentations, and therefore
is not dischargeable. First, it was established at the evidentiary hearing in the bankruptcy court that
in full settlement of the state court action, Defendant agreed that certain trains would be sold and that
others would be turned over to the Plaintiff. Plaintiff failed to do so in violation of the Settlement
Agreement and orders of the Court of Common Pleas, resulting in the court entering a contempt
judgment. Moreover, despite being given ample opportunity to turn over the Plaintiff’s property
after the parties entered into the Settlement Agreement, Debtor repeatedly failed to do so. Finally,
Debtor failed to provide to the state court and the bankruptcy court any valid cause or excuse for not
turning over the property to Plaintiff. The bankruptcy court determined that Debtor’s actions were
intentional, considering that the trains were in her possession and control the entire time.

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Both judgments are based on the same conduct of the Debtor, namely: (1) Debtor’s
misrepresentations that she would deliver the trains as set forth in the Settlement Agreement; (2)
Debtor’s intent to deceive Plaintiff that she would turn over the trains; (3) Plaintiff’s reliance on
Debtor’s misrepresentation, and (4) damages suffered by Plaintiff as a result of Debtor’s repeated
misrepresentations. The Judgment entered in the Court of Common Pleas regarding the $22,800
sanction specifically states that it was due to Debtor’s “willful contempt of this Court’s Order . . .
by failing to return the trains and/or accessories to Plaintiff.” Stipulations, Exh. J, Docket No. 10.
Based on a review of the bankruptcy court’s findings, the applicable law, and relevant caselaw, the
Panel concludes that the bankruptcy court’s findings of fact are not clearly erroneous, and the
contempt judgment should not be discharged.

III.

Debtor’s Motion to Amend or Make Additional Findings of Fact

In light of the foregoing, Debtor’s argument that the bankruptcy court erred in denying her
motion to amend or make additional findings of fact has no merit. Federal Rule of Bankruptcy
Procedure 7052 makes Rule 52 of the Federal Rules of Civil Procedure applicable to adversary
proceedings. Fed. R. Bankr. P. 7052. Rule 52(a)(1) states that “[i]n an action tried on the facts
without a jury . . . the court must find the facts specially and state its conclusions of law separately.”
Id. “Findings [of fact] are to be liberally construed in support of a judgment, even if the findings are
not as explicit or detailed as might be desired.” Corzin v. Fordu (In re Fordu), 201 F.3d 693, 710
(6th Cir. 1999) (citation omitted). In Orlett v. Cincinnati Microwave, Inc., the Sixth Circuit Court
of Appeals held that

[i]t is not necessary for the [Bankruptcy] Judge to prepare elaborate
findings on every possible issue raised at trial. However, there must
be findings, in such detail and exactness as the nature of the case
permits, of subsidiary facts on which an ultimate conclusion can
rationally be predicated. The findings should be explicit so as to give
the appellate court a clear understanding of the basis of the trial
court’s decision, and to enable it to determine the grounds on which
the trial court reached its decision.

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Case: 12-8050

Document: 006111842506

Filed: 10/07/2013

Page: 15

Orlett v. Cincinnati Microwave, Inc., 954 F.2d 414, 418 (1992) (citing Grover Hill Grain Co. v.
Baughman-Oster, Inc., 728 F.2d 784, 792-93 (6th Cir. 1984)). As stated, the bankruptcy court issued
detailed findings of fact sufficient to support its decision. Therefore, the bankruptcy court did not
abuse its discretion in denying Debtor’s motion to amend or make additional findings of fact
pursuant to Rule 7052.

CONCLUSION

For the reasons stated above, the Panel AFFIRMS the decision of the bankruptcy court
holding that the entire debt, in the amount of $32,186.90 plus interest, is nondischargeable.

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