In re: Jonathan Jone

Filing

OPINION filed : The bankruptcy court's decision is REVERSED and the Sanctions Order is VACATED, decision fully precedential pursuant to local BAP rule 8013-1(b). Marian F. Harrison, Guy R. Humphrey and C. Kathryn Preston (authoring judge), Bankruptcy Appellate Panel Judges.

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ELECTRONIC CITATION: 16 FED App.0001P (6th Cir.)
File Name: 2016b0001p.06
BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
In re: JONATHAN B. JONES,

)
)
Debtor.
)
__________________________________________)
)
DEAN S. HOOVER,
)
)
Appellant,
)
)
RYAN HARGER; JENNIFER HARGER,
)
)
Plaintiffs,
)
)
v.
)
)
JONATHAN B. JONES,
)
)
Defendant-Appellee.
)
)

No. 14-8006

Appeal from the United States Bankruptcy Court
for the Northern District of Ohio
Case No. 12-51440; Adv. No. 12-5238
Argued: May 11, 2015
Decided and Filed: March 3, 2016
Before: HARRISON, HUMPHREY and PRESTON, Bankruptcy Appellate Panel Judges.
____________________
COUNSEL
ARGUED: Scott H. Scharf, SCOTT H. SCHARF CO., LPA, Beachwood, Ohio, for Appellant. ON
BRIEF: Scott H. Scharf, SCOTT H. SCHARF CO., LPA, Beachwood, Ohio, for Appellant. Karen
H. Brouse, BROUSE LAW OFFICE, Fort Myers, Florida, for Appellee.

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____________________
OPINION
____________________
C. KATHRYN PRESTON, Chief Bankruptcy Appellate Panel Judge. An attorney who was
sanctioned pursuant to Federal Rule of Bankruptcy Procedure 9011 (“Rule 9011”) filed an appeal
asserting error by the bankruptcy court when it awarded opposing counsel attorneys’ fees pursuant
to Rule 9011(c)(2). Additionally, the attorney argued that the bankruptcy court abused its discretion
by levying sanctions based on clearly erroneous factual findings. For the reasons stated below, the
Panel holds that the bankruptcy court erred as a matter of law in awarding attorney fees as sanctions
on a sua sponte basis and abused its discretion in imposing any sanctions.
I. ISSUES ON APPEAL

Appellant Dean S. Hoover (“Hoover”) raised many issues on appeal. The Panel has
determined that there are two dispositive issues:

1. Did the bankruptcy court’s sanctions order violate Rule 9011(c)(2) because it awarded attorneys’
fees on the bankruptcy court’s own initiative?

2. Did the bankruptcy court abuse its discretion in awarding sanctions under Rule 9011 by relying
on clearly erroneous factual findings?

The Panel declines to address the other issues raised by Hoover as unnecessary based on the
disposition of this appeal.

II. JURISDICTION AND STANDARD OF REVIEW

Under 28 U.S.C. § 158(a)(1), this Panel has jurisdiction to hear appeals “from final
judgments, orders, and decrees” issued by the bankruptcy court. For purposes of appeal, an order
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is final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S. Ct. 1494, 1497
(1989) (citation and quotation marks omitted). “The concept of finality in the bankruptcy context,
however, should be viewed functionally, with appellate courts enforcing this threshold requirement
in a more pragmatic and less technical way in bankruptcy cases than in other situations.” In re
Thomas, 511 B.R. 89, 91 (B.A.P. 6th Cir. 2014) (quoting Simon v. Lis (In re Graves), 483 B.R. 113,
115 (E.D. Mich. 2012) (internal quotation marks and citations omitted)). See also In re Cyberco
Holdings, Inc., 734 F.3d 432, 437 (6th Cir. 2013). The Sixth Circuit allows appeals from “an order
in a bankruptcy case [that] finally disposes of discrete disputes within the larger case.” Lindsey v.
O’Brien, Tanski, Tanzer & Young Health Care Providers (In re Dow Corning Corp.), 86 F.3d 482,
488 (6th Cir.1996) (internal quotation marks, alteration, and citation omitted). “An order imposing
Rule 9011 sanctions is only final upon assessment of fees and expenses.” In re Wingerter, 394 B.R.
859, 862 (B.A.P. 6th Cir. 2008) rev’d on other grounds, 594 F.3d 931 (6th Cir. 2010) (citations
omitted).

Hoover’s notice of appeal includes the following orders: (1) Order Dismissing Complaint and
Counterclaim and Setting Show Cause Hearing Re: Rule 9011 (“Order to Show Cause”), Adv. Case
ECF No. 17, Jan. 29, 2013; (2) Order Setting [Evidentiary] Hearing Re: Rule 9011 (“Second Order
to Show Cause”)1 , Adv. Case ECF No. 24, Feb. 13, 2013; (3) Order Setting Deadline for Evidentiary
Hearing (“Order Adjourning Hearing”), Adv. Case ECF No. 27, March 8, 2013; and (4) Order Re:
Rule 9011 (“Sanctions Order”), Adv. Case ECF No. 33, Jan. 6, 2014. The Sanctions Order is a final
order. Accordingly, Hoover’s arguments regarding the three interlocutory orders issued prior to the
Sanctions Order are ripe for review.
We review the bankruptcy court’s imposition of sanctions using the
abuse-of-discretion standard. Corzin v. Fordu (In re Fordu), 201 F.3d 693, 711 (6th
Cir.1999). An abuse of discretion occurs where the reviewing court has “a definite
and firm conviction that the court below committed a clear error of judgment.”

1

The Order to Show Cause and Second Order to Show Cause are referred to collectively as the “Orders to
Show Cause.”
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Barlow v. M.J. Waterman & Assocs., Inc. (In re M.J. Waterman & Assocs., Inc.),
227 F.3d 604, 607-08 (6th Cir. 2000) (citation, alterations, and internal quotation
marks omitted). “The question is not how the reviewing court would have ruled, but
rather whether a reasonable person could agree with the bankruptcy court’s decision;
if reasonable persons could differ as to the issue, then there is no abuse of
discretion.” Id. at 608.
B-Line, LLC. v. Wingerter (In re Wingerter), 594 F.3d 931, 936 (6th Cir. 2010).
“An abuse of discretion is defined as a definite and firm conviction that the [court
below] committed a clear error of judgment.” Mayor of Baltimore v. W. Va. (In re
Eagle Picher Indus., Inc.), 285 F.3d 522, 529 (6th Cir. 2002) (internal quotation
marks and citation omitted). The abuse of discretion must be more than harmless
error to provide cause for reversal. Tompkin v. Philip Morris USA, Inc., 362 F.3d
882, 897 (6th Cir. 2004) (citations omitted). Sanctions based upon an erroneous
view of the law or an erroneous assessment of the evidence is necessarily an abuse
of discretion. Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405, 110 S. Ct. 2447,
2461 (1990); Sakil v. Mount Sterling Tp. Police Dept., 458 F.3d 520, 527-528 (6th
Cir. 2006). See also Parrott v. Corley, 266 F. App’x 412, 415 n. 1 (6th Cir. 2008)
(arguments concerning an error in statutory interpretation or due process related to
sanctions are reviewed de novo).
In re Royal Manor Mgmt., Inc., 525 B.R. 338, 346 (B.A.P. 6th Cir. 2015).

III. FACTS

A. Procedural History

Hoover represented Plaintiffs, Ryan and Jennifer Harger (collectively “the Hargers”), in a
state court action against Jonathan B. Jones (“Jones”)2 for intentional infliction of emotional distress,
civil conspiracy, and malicious prosecution. After Jones filed a bankruptcy petition, Hoover sought
relief from the automatic stay to continue the proceedings in state court. Hoover also filed an
adversary proceeding pursuant to 11 U.S.C. §§ 727(a)(3), 727(a)(4)(A), and 523(a)(6), seeking denial
of Jones’ discharge and a determination that the Hargers were owed a non-dischargeable debt arising

2

Jones is sometimes referred to as “Debtor” in quotations taken from the record.
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from the same facts as the state court proceeding. In the adversary proceeding, Jones filed a counterclaim which alleged abuse of process with the purpose of harassment.

Ultimately, the Hargers withdrew their motion for relief from the automatic stay and filed
a motion to dismiss the adversary proceeding. The bankruptcy court granted the motion to dismiss
the complaint and contemporaneously determined that it did not have jurisdiction over the counterclaim. However, in the order dismissing the complaint and counterclaim, the bankruptcy court sua
sponte entered the Order to Show Cause why the bankruptcy court should not find that the Hargers
and their counsel violated Rule 9011(b) by filing the complaint and prosecuting the adversary
proceeding and by seeking relief from the automatic stay in order to pursue matters in state court.

Prior to the hearing, counsel on both sides filed briefs and supplemental affidavits. On
February 6, 2013, the bankruptcy court held a hearing on the Order to Show Cause. At this hearing,
Hoover requested and the bankruptcy court agreed to limit any sanctions to Hoover directly and not
to sanction the Hargers. The bankruptcy court issued the Second Order to Show Cause following
the February 6, 2013 hearing. On March 8, 2013, the bankruptcy court entered the Order Adjourning
Hearing to March 15, 2013, to consider whether Hoover had further violated Rule 9011 in response
to the Order to Show Cause. The Order Adjourning Hearing also required Hoover to submit his
direct testimony by affidavit. The bankruptcy court conducted an evidentiary hearing on March 15,
2013, and May 9, 2013. On January 7, 2014, the bankruptcy court entered an order (the “Sanctions
Order”) which found that Hoover had repeatedly violated Rule 9011, directed him to pay over
$26,000 in attorneys’ fees to Jones’ attorney, and revoked Hoover’s electronic bankruptcy filing
authority, commonly referred to as “CM/ECF privileges.” The bankruptcy court also referred the
matter to both the District Court and the United States Attorney for consideration of whether
Hoover’s conduct should be criminally prosecuted. Hoover timely filed this appeal.

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B. Background Facts

The Hargers were Jones’ next door neighbors. Police reports indicate that there had been
issues between the neighbors dating back five or six years prior to the filing of the bankruptcy
petition. Both sides filed police reports alleging incidents of harassment by the other side.

Central to the underlying adversary proceeding is an incident involving a third party,
Jonathan Grad (“Grad”). At the time of the incident, Grad was an employee of CarMeds. CarMeds
was a limited liability company ostensibly owned by Jones’ mother and run by Jones. Grad worked
directly with Jones, occasionally meeting at Jones’ home for business purposes. Grad claimed to
have been assaulted by an unknown individual, after a meeting at Jones’ home. At the police station,
Grad identified Ryan Harger from a photo line-up as the assailant. Ryan Harger was arrested in
relation to the incident (the “State Criminal Case”). Ultimately, the charges were dropped without
prejudice. The Hargers filed a civil action against Grad and Jones asserting that they conspired to
have Ryan Harger falsely arrested (the “State Court Action”).

During the litigation, Jones filed a petition for relief under Chapter 7 of the Bankruptcy Code,
11 U.S.C. § 101, et seq. The State Court Action was automatically stayed upon the filing. Hoover,
as the Hargers’ attorney, filed a Motion to Modify Automatic Stay (“Motion for Relief”)3 in order
to pursue the State Court Action. Bankr. Case ECF No. 16, July 10, 2012. Hoover also filed a
complaint in the bankruptcy court (“Adversary Complaint”) seeking: (1) a determination that the
debt owed by Jones is non-dischargeable based on the same facts as the State Court Action, and
(2) denial of Jones’ discharge based on the assertion that Jones lied about the ownership of CarMeds.
However, the Hargers ultimately withdrew the Motion for Relief and filed a motion to dismiss the
adversary proceeding prior to any rulings from the bankruptcy court.

3

The Sanctions Order also refers to this motion as the “Motion for Relief.”
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The bankruptcy court dismissed the adversary proceeding on the Hargers’ motion, and the
counter-claim on jurisdictional grounds. In the order dismissing the adversary proceeding, the
bankruptcy court set a hearing sua sponte, directing the Hargers and Hoover, as their attorney, to
show that they had reasonable grounds to file the Motion for Relief and the Adversary Complaint.
Order to Show Cause, Adv. Case ECF No. 17, Jan. 29, 2013. In a response to the Order to Show
Cause, Hoover made several factual assertions that Jones’ counsel, Karen Brouse (“Brouse”),
vehemently contested. Brouse obtained affidavits from Noah Munyer (“Munyer”), Grad’s attorney
in the State Court Action and Christopher Parker (“Parker”), the prosecuting attorney in the State
Criminal Case, which accused Hoover of misrepresenting facts in his filings in the bankruptcy court.

The bankruptcy court found that Hoover violated Rule 9011 by bringing the Motion for
Relief and filing the Adversary Complaint without specific evidence. Additionally, the bankruptcy
court found that Hoover made knowing and intentional misrepresentations in his filings regarding
certain facts.

IV. DISCUSSION

A. Attorneys’ Fees Under Federal Rule of Bankruptcy Procedure 9011(c)(2)

Rule 9011(c)(2) only allows a court to award attorneys’ fees as a sanction when a motion is
brought by opposing counsel, and there is no such authority when an order to show cause is issued
by the court sua sponte. Rule 9011(c)(2) states, in part:
(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule
shall be limited to what is sufficient to deter repetition of such conduct or comparable
conduct by others similarly situated. Subject to the limitations in subparagraphs
(A) and (B), the sanction may consist of, or include, directives of a nonmonetary
nature, an order to pay a penalty into court, or, if imposed on motion and warranted
for effective deterrence, an order directing payment to the movant of some or all of
the reasonable attorneys’ fees and other expenses incurred as a direct result of the
violation.

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Fed. R. Bankr. P. 9011(c)(2) (emphasis added). See also In re Opra, 365 B.R. 728, 741 (Bankr. E.D.
Mich. 2007) (“Because this Rule 9011 matter was initiated by the Court rather than by a motion filed
by a party, the only available sanctions expressly authorized by Rule 9011(c)(2) are (1) nonmonetary
‘directives;’ and (2) a ‘penalty’ to be paid into court.”); Miller v. Cardinale (In re Deville), 280 B.R.
483, 494 (B.A.P. 9th Cir. 2002) aff’d,361 F.3d 539 (9th Cir. 2004).

In some cases, a court may award attorneys’ fees under its inherent authority following a Rule
9011 inquiry. In First Bank of Marietta v. Hartford Underwriters Insurance Co., the Sixth Circuit
Court of Appeals held that “‘in addition to Rule 11 and 28 U.S.C. § 1927, a district court may award
sanctions pursuant to its inherent powers when bad faith occurs.’” 307 F.3d 501, 512 (6th Cir. 2002)
(quoting Runfola & Assocs., Inc. v. Spectrum Reporting II, Inc., 88 F.3d 368, 375 (6th Cir. 1996)).
“The district court has the inherent authority to award fees when a party litigates ‘in bad faith,
vexatiously, wantonly, or for oppressive reasons.’” Hartford Underwriters, 307 F.3d at 512 (quoting
Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308, 313 (6th Cir.1997) (quoting Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S. Ct. 1612, 1622 (1975) (internal
quotation marks omitted)) In Hartford Underwriters, the district court had given notice that it was
considering using its inherent authority to sanction. The Sixth Circuit made a point of noting:
We initially note that the district court exercised caution in exercising its inherent
powers by giving notice of its consideration, conducting a separate hearing and
considering post-hearing briefs in determining whether First Bank acted in bad faith
and filed its claim without a colorable basis. This is in accord with our precedents.
Ray A. Scharer & Co. v. Plabell Rubber Prods., Inc., 858 F.2d 317, 320 (6th Cir.
1988).
Hartford Underwriters, 307 F.3d at 519.
In this case, the bankruptcy court’s Sanctions Order is titled “Order Re: Rule 9011.” It only
cites Rule 9011 as the basis for sanctions. It does not refer to any other statutory authority, such as
28 U.S.C. § 1927 or 11 U.S.C. § 105, or its own inherent authority. Thus, the Panel is compelled
to find that the sanctions were awarded solely pursuant to Rule 9011 and not on any other basis.
Accordingly, the bankruptcy court erred in awarding attorneys’ fees to Jones’ counsel because Rule
9011 does not permit “fee shifting” when the court enters an order to show cause on its own
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initiative. This leaves for consideration the propriety of the other sanctions imposed by the
bankruptcy court.

B. Clearly Erroneous Factual Findings

Hoover challenges many of the factual findings made by the bankruptcy court in its Sanctions
Order. Findings of fact are reviewed under the clearly erroneous standard. Brock v. Hammonds
(In re Triton Enters., Inc.), 464 B.R. 62 (B.A.P. 6th Cir. 2011).
Under the clearly erroneous standard, the Panel must give deference to the
bankruptcy court as the finder of fact. The bankruptcy court is in the best position
to assess the testimony and credibility of witnesses. Thus, however we might
individually view the evidence if we were the triers of fact, it is clear that we are
required to give great weight to the findings of the trial court which had the
opportunity to see the witnesses, to weigh their evidence as it was presented, to view
the demeanor of the persons who testified in court, and to determine all issues of
credibility.
Triton Enters., 464 B.R. at 62 (internal quotations marks and citations omitted). See also Fed. R.
Civ. P. 52(a).4 The Supreme Court has explained the clearly erroneous standard as follows:
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.
Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1166 (6th Cir.1996) (quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 573–74, 105 S. Ct. 1504, 1511 (1985)). With this standard in mind,
the Panel has carefully reviewed the voluminous record in this appeal.

4

Prior to December 2014, Federal Rule of Bankruptcy Procedure 8013 reiterated the
language of Federal Rule of Civil Procedure 52(a)(6) governing appeals. In
December 2014, Part VIII of the Federal Rules of Bankruptcy Procedure
(addressing appeals in bankruptcy cases) was extensively amended and renumbered.
The language of Bankruptcy Rule 8013 was omitted. However, the Panel holds that
the standard of review, which is well established by case law, has not changed.

In re Aubiel, 534 B.R. 300, 302 n.2 (B.A.P. 6th Cir. 2015).
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The bankruptcy court set forth two sections of factual findings in the Sanctions Order. The
bankruptcy court titled one section: “Background Facts.” The bankruptcy court labeled the other
section: “Findings of Fact re: Rule 9011.” Within these two sections the bankruptcy court went back
and forth between making specific findings of fact regarding representations made by Hoover during
the hearings and in his pleadings, and general factual conclusions about the merits of the underlying
cause of action that is the basis for the adversary proceeding. We now address each factual finding
regarding Hoover’s representations. To the extent that any factual finding is related to whether or
not there is an evidentiary basis for the underlying cause of action, it will be addressed in that context
in Part C of this opinion.

1. Representations Regarding State Court Action

The bankruptcy court found that Hoover made several representations that the State Court
Action was “ready for trial.” Sanctions Order at 1, 3, 4. For example, the bankruptcy court noted
that in his Proposed Findings of Fact and Conclusions of Law filed on September 7, 2012 in the
bankruptcy case in support of the Motion for Relief, Hoover asserted: “The parties are ready for trial
in the State Court Action.” Sanctions Order at 3 (citing Bankr. Case ECF No. 32 ¶ 16).
Additionally, the bankruptcy court cited paragraphs 8 and 9 of Hoover’s Proposed Findings of Fact
and Conclusions of Law for the assertion that “Mr. Hoover represented to this Court that discovery
in the State Court Action had been conducted and the trial of the matter was set to commence on
August 27, 2012.” Sanctions Order at 3. The bankruptcy court’s Sanctions Order appears to
interpret Hoover’s statements as indicating that discovery was complete. In actuality, when taken
as a whole the Proposed Findings of Fact and Conclusions of Law show only that: discovery was ongoing (¶ 7); Jones had actively participated in discovery (¶ 8); trial had been scheduled (¶ 9); but
the trial had been postponed and the matter stayed pending a decision on the Motion for Relief from
the automatic stay (¶ 11). Hoover does not convey any indication that the State Court Action trial
would start on August 27, 2012, or even that discovery had been fully completed.

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The Sanctions Order also noted that Hoover represented to the bankruptcy court that the State
Court Action was viable as evidenced by the fact that it was going to trial. Sanctions Order at 4.
Hoover made this statement in closing argument during the hearing on the Motion for Relief (“R/S
Final Hearing”)5 to counter Brouse’s argument that the Hargers had not shown compelling evidence
that the State Court Action had merit. See R/S Final Hearing Tr. 66:13-16, Bankr. Case ECF No.
58, September 17, 2012. Hoover’s assertions that the State Court Action was going to trial and that
this proved the viability of the case were, of course, self-serving, and were clearly argument, not
statements of fact. It is obvious that Hoover’s argument during the R/S Final Hearing was that the
State Court Action was further along than the bankruptcy court adversary proceeding.6 Near the end
of his argument Hoover stated: “The parties, as I said, are nearly ready for trial in State Court up
here [sic]. And if we have to handle this through an adversary, we’re going to have to work our way
through that – that procedure up here. I don’t think its going to be any faster up here than it would
be down there.” R/S Final Hearing Tr. 68:8-13 (emphasis added).7 The bankruptcy court’s finding
that Hoover misrepresented the status of the State Court Action is clearly erroneous.

2. Representations Regarding Civil Protection Order (“CPO”) Hearing

In the Sanctions Order, the bankruptcy court found: “During the course of the hearings on
the Motion for Relief in this Court, Hoover implied to the Court that he was not involved in the CPO
hearing in state court.” Sanctions Order at 3. The bankruptcy court noted the following exchange
that occurred during Hoover’s examination of Jones at the hearing on the Motion for Relief:

5

The Sanctions Order refers to the September 17, 2012 hearing on the Motion for Relief as the “R/S Final

Hearing.”
6

The adversary proceeding had been filed just shortly prior to the R/S Final Hearing.

7

At different times the bankruptcy court corrected both parties’ use of “up here and down there” as indicating
an inappropriate hierarchy of federal versus state courts.
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Hoover: There was this civil protective order sought by my client, I wasn’t involved
in that, as you know, correct?
Jones: No, I think you were involved.

Sanctions Order at 3 (citing R/S Final Hearing Tr. 19:14-18). The bankruptcy court then found that
“[i]n contrast to the suggestion by Mr. Hoover during the R/S Final Hearing, the transcript of the
CPO hearing filed in support of the Debtor’s opposition to granting relief from stay clearly shows
that Hoover had been retained by the Hargers to represent them and that Hoover told Magistrate
Shoemaker that he failed to appear at the hearing due to a scheduling error.” Sanctions Order at 4.8
The bankruptcy court noted that Ryan Harger did proceed without counsel and that the CPO was
denied because the state court found Ryan Harger’s testimony lacked credibility and failed to
establish a basis for the relief sought. Id.

Because the bankruptcy court found this to be a specific misrepresentation by Hoover, it is
important to look at exactly what Hoover said. During the R/S Final Hearing, Hoover stated to the
court: “I wasn’t counsel in the CPO hearing.” R/S Final Hearing Tr. 6:12-13. The statement “I
wasn’t counsel in the CPO hearing” is not a misrepresentation. The initial CPO petition indicates
that Ryan Harger was proceeding pro se. Bankr. Case ECF No. 44. The transcript of the CPO full
hearing indicates that Ryan Harger stated that he had paid an attorney, Hoover, who he thought
would be present for the hearing. Ryan Harger also implies that Hoover was involved in obtaining
an earlier continuance of the hearing. But when the magistrate refused to grant a continuance at
Ryan Harger’s request, Ryan Harger decided to proceed pro se. CPO Hr’g Tr. 46:2–47:17, Bankr.
Case ECF No. 45, December 28, 2011. Later, on the record, the magistrate stopped the proceeding
to take a phone call from Hoover. The call took place in the magistrate’s chambers, but the
magistrate had the call recorded by a court reporter. During the phone call, Hoover stated “I do
represent the Hargers, and I appeared for the previous hearing.” Phone Conference Tr. 3:23-24,

8

Again, this example appears to be cited by the bankruptcy court both as a specific example of a
misrepresentation made by Hoover and as support for finding that he should have known he did not have an evidentiary
basis for filing his pleading. The latter will be addressed in Part C.
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Bankr. Case ECF No. 45, December 28, 2011. The magistrate and the opposing counsel both
pointed out to Hoover that he had not filed an official appearance in the case and that his client had
decided to proceed pro se. It appears that the phone call was very collegial. When the magistrate
went back on the record in court, he stated that the phone call cleared things up and that Ryan Harger
would continue pro se. Finally, at the conclusion of the hearing, the magistrate stated: “It appears
that Mr. Dean Hoover is not counsel of record in this case. He’s not filed anything so everything will
be sent to your house as a pro se party.” CPO Hr’g Tr. 115:7-13, Bankr. Case ECF No. 45,
December 28, 2011.

Accordingly, the record supports Hoover’s assertion that he was not “counsel in the CPO
hearing.” Further, even the implication that he “wasn’t involved in the CPO hearing” was reasonable
based on what the record reflects. Although it appears that some time during the CPO process the
Hargers retained Hoover to file the State Court Action and Hoover may have been involved in
obtaining a continuance of the CPO hearing, he did not file an official appearance or any pleadings
in the CPO process, nor was he involved in the hearing other than a quick phone call that verified
that he was not counsel of record for the matter. Accordingly, the bankruptcy court’s treatment of
this statement as a misrepresentation is clearly erroneous, and its reliance on it in determining
sanctions is an abuse of discretion.

3. Representations Regarding Mediation

In a footnote in the Sanctions Order, the bankruptcy court found: “Hoover represented to the
Court that mediation failed. However, the fact is that mediation never took place in the State Court
Action.” Sanctions Order at 5, n.4. The footnote followed a paragraph where the court explained:
After the R/S Final Hearing, the Court held an in chambers conference with counsel
wherein it was agreed that counsel would talk to their clients about the possibility of
pursuing mediation in state court. The Court agreed to grant limited relief from stay
for the purpose of pursuing mediation of this dispute in state court if the parties so
agreed. On September 27, 2012, Hoover filed a motion he styled as an “unopposed”
motion to modify the stay to permit mediation in state court. No proposed order
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reflecting this agreement was submitted to the Court. Instead, on October 23, 2012,
Plaintiffs filed a motion to dismiss their motion for relief from stay and a motion to
dismiss their adversarial complaint and the counterclaim asserted by the Debtor.
Sanctions Order at 4-5. In the Sanctions Order, the bankruptcy court did not articulate when and
where Hoover made this representation to the court. Neither the motion to withdraw the Motion for
Relief, nor the motion to dismiss the adversary proceeding mentioned any mediation attempt.
Likewise, Hoover never made any representations regarding any mediation attempt in his pleadings
in response to the Order to Show Cause and Second Order to Show Cause.

The record reflects two instances when mediation was referenced during the hearing on the
Orders to Show Cause. After Hoover rested his case, Brouse was allowed to cross examine him on
his affidavit. Brouse asked Hoover why he elected to dismiss the adversary proceeding just before
serious discovery was to begin. In response to that question, Hoover mentioned mediation:
Several reasons. First, I believe you made a demand for $53,000 and you wanted my
clients to enter into some kind of agreed judgment that would be forgiven if they
moved out of their house. I saw – I saw that as bad faith when I believed that we
were trying to resolve this issue through mediation. We also started formulating the
opinion that the remedy was worse than the disease. . . . So we talked about it and I
decided that – we decided jointly that instead of engaging with you any longer,
wasting our time in mediation where you were making demands that were– we
thought outrageous, with all due respect, that we would – we would try a new course.
And that is a nonlegal course, dismiss everything. . . . And the Hargers came up with
a plan to – with the help of their parents, Mr. Harger’s parents in particular – to get
the house fixed up enough that they could sell it and just let Mr. Jones win.

Orders to Show Cause Hr’g. Tr. 142:9-143:22 Adv. Case ECF No. 54, March 15, 2013 (“March 15,
2013 Hr’g Tr.”).
Following these comments by Hoover, the following exchange occurred:
Brouse: Sir, did you file a complaint against me in this court for negotiating in bad
faith?
Hoover: No.
Brouse: Do you happen to have a copy of this purported letter where I claimed
$53,000 in damages?
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Hoover: I do somewhere.
Brouse: I’d be interested to see that.
Hoover: I know you know it.
Brouse: What steps did you take to engage in mediation? Did you prepare the order
for this court?
Hoover: No. Neither one of us did. I think I contacted– I believe– I’m a little foggy
on what the court’s direction was with regard to that. But I know that I contacted the
Summit County Mediation Department and kind of took the – made the effort to get
it going.
Brouse: But you did not?
Hoover: Neither did you.
March 15, 2013 Hr’g. Tr: 144:18-145:9.9

The record reflects that both Brouse and Hoover were accurate in their accusation of the
other. In fact, it appears that neither of them submitted an order for the case to be mediated in state
court in spite of the bankruptcy court order directed at both of them to do so. However, the record
reflects that Hoover at least attempted to start the process. On September 27, 2012, he filed a motion
entitled Unopposed Motion to Modify Automatic Stay to Permit State Court Mediation (“Mediation
Motion”). Bankr. Case ECF No. 49. The exhibit attached to the Mediation Motion, consisting of
an email stream between Hoover and Brouse, appears to reflect a lack of cooperation from Brouse
on the issue of mediation. Bankr. Case ECF No. 49. In the email, Hoover asked Brouse to prepare
the order for the bankruptcy court while he prepared the motion for the state court but she refused
to do so, calling it “his motion.” Brouse never filed a response to the motion, and Hoover never
submitted a proposed order. In the adversary proceeding, the bankruptcy court entered an order on
October 10, 2012 regarding the pre-trial conference. In that order the bankruptcy court stated:
“Counsel shall promptly submit a proposed order with respect to the motion for relief from stay in
the main case to pursue mediation in state court.” Order and Memorandum of Pre-trial Conference
9

To the extent that the bankruptcy court sanctioned Hoover for an alleged misrepresentation that mediation
had failed, it appears that Hoover did not have specific notice as required by Rule 9011(c)(1)(B) because his comments
regarding mediation occurred after the Orders to Show Cause were entered. However, due to the disposition of this
appeal on other grounds the Panel will not reach this issue.
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Held on October 12, 2012, Adv. Case ECF No. 9. Neither counsel submitted a proposed order
regarding mediation following the October 10, 2012 order, however, on October 23, 2013, Hoover
filed the Movants[’] Withdrawal of Motion to Modify Automatic Stay (“Withdrawal”) in the
bankruptcy case and Plaintiffs’ Motion to Dismiss Claims and Counterclaims (“Motion to Dismiss”)
in the adversary proceeding.

Additionally, during his closing argument on the Orders to Show Cause, Hoover stated: “At
the end of that hearing the Court suggested that we consider mediation. We agreed to attempt
mediation. That attempt failed and it was at that point we decided to move to withdraw our motion
and to dismiss our case.” Orders to Show Cause Hr’g. Tr. 65:5-9, Adv. Case ECF No. 55, May 9,
2013 (“May 9, 2013 Hr’g Tr.”). During her closing argument, Brouse repeatedly asserted that
Hoover’s representation that “mediation failed” is a “complete mischaracterization” because “it
didn’t fail because it never happened.” May 9, 2013 Hr’g Tr. 71:18-20;74:2-5. The court appears
to have completely adopted Brouse’s position. The language of the Sanctions Order mirrors
Brouse’s argument.

The record does reflect an attempt by Hoover to seek leave to go to state court for mediation,
albeit a half-hearted attempt, in the form of an unopposed motion for which no proposed order was
submitted. Moreover, Hoover alleged that a demand was made outside of the formal process that
he and his clients considered “outrageous” and an indication that mediation would not be productive.
Hoover did not state that mediation had occurred and failed. Rather, he stated that the attempt at
mediation had failed. While formal mediation in state court may not have occurred, Hoover’s
statement during closing argument that the attempt at mediation had failed was not a
misrepresentation of the facts.

Therefore, the bankruptcy court’s finding that Hoover

“misrepresented the status of mediation of the State Court Action” is clearly erroneous. Sanctions
Order at 11.

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4. Representations Regarding CarMeds Ownership
One of the reasons the bankruptcy court sanctioned Hoover was its finding that Hoover
engaged in “intentional mischaracterization of evidence.” Sanctions Order at 6. The bankruptcy
court cited Hoover’s description of Jones’ deposition testimony regarding CarMeds as an example
of this intentional mischaracterization.

In his responsive brief to the Order to Show Cause, Hoover stated: “Debtor admitted that he
routes the money from the CarMeds business through his mother who gives it back to him.”
Plaintiffs’ Hr’g Br. Re: Rule 9011 (“Responsive Brief”), Adv. Case ECF No. 19 at 5, Feb. 5, 2013.
Hoover cited specific page and line numbers and attached a partial transcript of Jones’ deposition
to his brief. In the same section of his brief, Hoover also pointed the bankruptcy court to other
evidence that had been attached to the complaint, namely Grad’s deposition transcript wherein Grad
frequently refers to Jones as his employer and indicates that Jones’ mother had little involvement in
the business, and a letter from CarMeds to Grad which Jones signed as President of CarMeds.

There are two problems with the way that Hoover characterized Jones’ testimony. First is
the use of the word “admitted.” Second is use of the word “routes.” Jones did not “admit” that he
“routes” money through the CarMeds business. Rather, Jones stated: “My mother benefits from
CarMeds and gives me money.” The words “admit” or “admission” are legal terms of art. Jones’
statement does not amount to an “admission.” Further, the word “routes” implies that Jones controls
the money coming into CarMeds and how it is used. Jones’ statement does not admit or even imply
this level of control.

However, it appears to the Panel that Hoover was not trying to mislead the bankruptcy court.
If he was trying to mislead the bankruptcy court, he would not have cited to the exact page and line
number and provided the court with a copy of the deposition. Rather, Hoover was making an
argument that, based on Grad’s deposition, the letter signed by Jones as president, and Jones’ own
deposition, a court or jury could conclude that Jones was the defacto owner of CarMeds. Hoover

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was just being a zealous advocate. The Panel holds that the bankruptcy court’s finding that Hoover
“intentionally mischaracterized” Jones’ testimony is clearly erroneous. Accordingly, the bankruptcy
court abused its discretion by imposing sanctions beyond a simple admonition for Hoover’s
characterization of Jones’ testimony.10

5. Representations Regarding Grad’s Story

In response to the Order to Show Cause, Hoover made the following representation:
During the proceedings on the Hargers’ state court civil claims against Mr. Grad and
Mr. Jones, to possibly extricate his client from the case, Mr. Grad’s attorney admitted
to me that his client, Mr. Grad, was considering changing his story about what
happened and about Mr. Jones’ involvement but was afraid to do so because his
client might be charged with falsifying a police report. Mr. Grad’s attorney told me
he intended to talk to the prosecutor about that and later told me the prosecutor
threatened to prosecute if Mr. Grad changed his story.
Affidavit of Dean S. Hoover (“Initial Affidavit”), Adv. Case ECF No. 19-6 ¶ 6, Feb. 5, 2013.

In response to Hoover’s Initial Affidavit, Brouse obtained and filed affidavits from Munyer,
Grad’s attorney, and Parker, the prosecuting attorney. Both affidavits directly challenged Hoover’s
representations made in his Initial Affidavit. In his affidavit, Parker stated: “Paragraph 6 represents
that I threatened to prosecute Grad if he changed his story. This never happened.” Affidavit of
Christopher Parker (“Parker Affidavit”), Adv. Case ECF No. 21, Feb. 6, 2013. Munyer’s affidavit
refuted Hoover’s representations regarding the possibility of Grad changing his story.
6. During the pendency of that case, Attorney Hoover approached me claiming his
client had an alibi and asked if my client would change his story to inculpate Jones
(in a conspiracy to have Mr. Harger falsely arrested) in exchange for an agreement
that Mr. Grad would be dismissed from the case.
....

10

The Panel admonishes Hoover to more clearly distinguish when he is making an argument rather than stating
fact. Hoover should also be more precise in the use of legal terms of art such as the words “admits” or “admission.”
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10. I never, at any point, expressly or impliedly, told, conveyed, or “admitted to
[Attorney Hoover] that [my] client, Mr. Grad, was considering changing his story
about what happened and about Mr. Jones’ involvement but was afraid to do so
because [my] client might be charged with falsifying a police report.”
Affidavit of Noah Munyer (“Munyer Affidavit”), Adv. Case ECF No. 22 ¶¶ 6, 10 (emphasis and
alterations in original), Feb. 6, 2013.

The discrepancies between these affidavits caused the bankruptcy court great concern
because, as the court explained at the February 6, 2013 hearing, in addition to its concern that
Hoover had brought a case for which he should have known he did not have sufficient evidence to
corroborate his clients’ allegations, it appeared to the bankruptcy court that Hoover himself had filed
an affidavit that manufactured a story to support his clients’ case. In fact, the Sanctions Order quotes
a colloquy the bankruptcy court had with Hoover on the record which reveals the court’s view of
what it called “Hoover’s wholly unprofessional mindset.”
Hoover: . . . What we basically have here is two very different stories, each of which
has evidentiary value. . . . I believe Rule 9011 requires us to have a story. Not that
it’s
Court (interrupting): Rule 9011 doesn’t require you to have a story.
Hoover (interrupting): Evidence is what
Court (continuing): Rule 9011 requires you to deal with facts.
Hoover: I agree. I didn’t mean to be — to use “story” in a sense that it was fiction.
We believe that we have an obligation to deal with objective facts as we see those
facts. And we believe that we have those facts. And if you put Grad’s testimony
aside, we still have those facts. . . . So we went through each of the elements in 9011
and marshaled some of the evidence that shows we have facts. . . .
Court: The question that I put to you was statements that you made in the pleading
that you filed with this court yesterday dealing with a show cause with respect to
Rule 9011 in which Mr. Munyez (sic, Mr. Munyer) has provided an affidavit that is
Hoover (interrupting): disputed
Court: is at total odds
Hoover (interrupting again): and disputed . . . and disputed – his affidavit is false
– there’s a lot of parsing of words going on in the two affidavits from Parker and
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Munyer and we have a different version – what we consider to be the true version of
what happened. Now if the court wants to proceed on a 9011 against me for what I
filed as opposed to motion to lift stay and the adversary proceeding, I would welcome
the opportunity, but I would right now – those affidavits are hearsay and I would
move to strike them. I haven’t had an opportunity to discover the full story from
those two individuals. . . .
Sanctions Order at 9 (quoting Feb. 6, 2013 Hr’g Tr. 11:49:42-11:52:23).

The bankruptcy court cited this colloquy to demonstrate that Hoover just told “stories” and
spun “a convenient yarn that contradicts historical facts.” Sanctions Order at 9. A large portion of
the bankruptcy court’s Sanctions Order focused on the discrepancies between Hoover’s Affidavits
and the Munyer and Parker Affidavits as proof that Hoover’s narrative was contradictory to the facts
of the case. Sanctions Order at 6-8. When comparing Hoover’s Initial Affidavit to the Munyer
Affidavit and Parker Affidavit, there appears to be a huge difference in “stories.” The Munyer and
Parker Affidavits can be read as completely refuting the idea that Grad ever considered changing his
version of the facts. However, when all of the affidavits are compared along with the testimony
given at trial, it is clear that there were discussions between Hoover and Munyer regarding whether
Grad would alter his prospective testimony.

The bankruptcy court stated:
The Court also credits Munyer’s testimony that this conversation was initiated by
Hoover and took place following a conference at the state court, not in the presence
of Mrs. Dana Hoover following the deposition of Mr. Grad, as suggested by Hoover
in the Responding Affidavit and by Dana Hoover’s Affidavit, paragraph 4. The
Court also credits Munyer’s testimony that Hoover approached him. Dana Hoover’s
Affidavit, particularly with respect to her having overheard conversations between
Hoover and Munyer, appears to this court to be yet another part of the story
“manufactured” by Hoover.
Sanctions Order at 7-8 (discussing Affidavit of Dean S. Hoover (“Responding Affidavit”) Adv. Case
ECF No. 29, March 12, 2013). Thus, there are four factual findings to be addressed in this decision
regarding the bankruptcy court’s conclusions as to the discussions about a possible change in Grad’s
version of events: (1) how the conversation was initiated; (2) whether Munyer approached Hoover;

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(3) the location(s) of conversation(s); and (4) whether Dana Hoover, Hoover’s wife/legal assistant,
overheard any conversation(s).

During the hearing on the Orders to Show Cause, Munyer confirmed that there was a
conversation between himself and Hoover about Grad changing his testimony. March 15, 2013 Hr’g
Tr. 60:21-23. Munyer’s version of the conversation was that he and Hoover were discussing the case
following a pre-trial hearing in state court. The conversation took place in the hallway outside of
the courtroom. Munyer testified that he stated “something like my guy doesn’t have any money . . .
what are we going to do here?” In that conversation Hoover raised the idea of Grad changing his
story. March 15, 2013 Hr’g Tr. 61:2-62:3. The bankruptcy court found Munyer’s version of events
believable, describing Munyer’s testimony as “completely trustworthy in contrast to the self-serving
Initial Hoover Affidavit, Responding Affidavit and affidavit of Dana Hoover[.]” Sanctions Order
at 8. The bankruptcy court did not explain in the Sanctions Order why it did not credit Munyer’s
own testimony on re-cross examination.

On re-cross examination, Munyer testified that the concept that Grad might change his story
was Hoover’s idea, that Munyer indicated that he would discuss it with his client, and that he did so
on June 25, 2012 when he met with his client and his client’s mother. March 15, 2013 Hr’g Tr. 65:619. Munyer also testified that the first time the idea was discussed between himself and Hoover was
after one of two hearings, but he was not sure which one. Tr. 66:21-25. Munyer agreed that they had
a pre-trial hearing in February, but he did not remember the conversation with Hoover taking place
at that time. He testified that it could have been June 18, 2012, or May 25, 2012. Tr. 67:3-23.
Munyer also testified regarding an email exchange that took place on June 25, 2012 and a possible
phone call on July 5, 2012. When Hoover asked him how many times they talked about the
possibility of Grad changing his story, Munyer responded: “I’m not sure. I know we talked once in
court in person and we probably spoke once on the telephone.” Tr. 72:4-7. When Hoover asked
Munyer if he could put a date on the conversation that occurred in the courthouse, Munyer responded
“I thought it was after the Magistrate Shoemaker date, which was in – I think May 25. Is that what

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it was? . . . I’m not – but, again, I’m not sure. I didn’t – I didn’t keep copious notes on those
conversations.” Tr. 72:12-19.

When Munyer’s testimony on redirect and re-cross examination is compared to Hoover’s
Responding Affidavit, they are very similar. Hoover stated that he did not initially approach
Munyer, but rather Munyer approached him after their first in-person meeting, which he believed
was the pre-trial conference in the State Court Action on February 27, 2012. Hoover asserted that
Munyer raised the subject by a comment that his client, Grad, did not have the money to pay any
judgment and asked what he could do to get his client out of the lawsuit. Hoover’s narrative was that
he shared his theory of the case that Grad was lying for Jones, and he offered to consider letting Grad
out if he changed his story and told the truth. Responding Affidavit ¶ 19, In his Responding
Affidavit, Hoover accused Munyer of making false assertions in his affidavit when he denied that
he ever indicated that Grad was considering changing his story and denied that Grad was afraid to
do so because of potential criminal charges for falsifying a police report. Hoover reiterated: “The
conversations I recall took place over the time period from the above pretrial conference on February
27, 2012, at my office on March 27, 2012 after Mr. Grad’s deposition, in the hallway of the Summit
County courthouse after [a] hearing on June 18, 2012 and ending about July 5, 2012 when I returned
Mr. Munyer’s phone message as well as points in between.” Responding Affidavit ¶ 24. Clearly,
Munyer and Hoover agree that an ongoing conversation occurred on multiple dates through multiple
methods of communication. Moreover, the parties agreed that Munyer walked up to Hoover and
started a conversation intended to reach a resolution for his client and in that conversation Hoover
raised the idea of Grad changing his story. March 15, 2013 Hr’g Tr. 61:2-62:3.

Generally, appellate courts give great weight to a trial court’s determinations of credibility
because the trial court is the court that observes the parties’ demeanor. However, in this case the
bankruptcy court seemed to credit Munyer and discredit Hoover on points where their testimonies
are actually consistent. Both Munyer and Hoover testified that Hoover was the one who raised the
concept of Grad changing his story after Munyer opened a conversation with a comment about
Grad’s limited means. It appears that Munyer interpreted Hoover’s Initial Affidavit as claiming that
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the concept of Grad changing his story was Munyer’s idea. In his affidavit, Munyer so vehemently
rejected this concept, that it ended up reading as if Munyer denied that there was ever any discussion
or possibility that Grad might change his story. However, during Munyer’s testimony on cross and
re-cross examination, he clearly admitted that there was some sort of on-going discussion about the
possibility of Grad changing his testimony (although he insisted it was never likely). In his Initial
Affidavit, Hoover did not say that Munyer approached him and did not say that the concept of Grad
changing his story was Munyer’s idea. Additionally, in his Responding Affidavit, when Hoover
stated that Munyer approached him, Hoover only conveyed that Munyer walked up to him and
started a conversation. Hoover stated that during this conversation, Munyer raised the idea of getting
Grad out of the case, and that Hoover was the one who suggested that Grad change his story. Hoover
also indicated that this first conversation occurred at the courthouse. Responding Affidavit ¶ 19.
Accordingly, two of the matters that the bankruptcy court found to be misrepresentations by Hoover,
i.e. who initiated the conversation and whether Munyer approached Hoover, were areas where the
parties were not actually in disagreement.

Two details that Munyer and Hoover disagreed about are whether they had a conversation
at Hoover’s office following Grad’s deposition and whether Dana Hoover could have overheard any
of their conversations. Munyer testified about a conversation with Jones in the parking lot of
Hoover’s office but clearly recalls being in a hurry to leave because it had been his first deposition
and he had found it “contentious.” March 15, 2013 Hr’g Tr. 62:7-22. On re-cross examination,
Hoover attempted to elicit testimony from Munyer regarding the possibility of Dana Hoover having
overheard any of the conversations. When asked if he denied ever having a conversation in front of
Dana Hoover, Munyer responded:”I don’t think that ever occurred. I don’t know when it would have
occurred, because she wasn’t at the court with us and you and I were on the telephone[.]” Tr. 72:2325. Hoover then prompted Munyer “and you and I were in my office, correct?” Tr. 73:2. At that
point the bankruptcy court interrupted, stating that Munyer had already answered the question about

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what had happened after the deposition. The bankruptcy court then instructed Hoover to “Move on.”
Tr. 73:6.11

Munyer never directly addressed Dana Hoover’s claims that she had communicated directly
with Munyer via telephone and email. Dana Hoover Affidavit ¶ 5. Nor did he ever address her
claim that she overheard the July 5, 2012 phone conversation. Dana Hoover Affidavit ¶ 6. Dana
Hoover was not called to testify at the hearing on the Orders to Show Cause. The bankruptcy court’s
conclusion that Dana Hoover’s affidavit was not credible appears to be based solely on its
comparison to the limited statement from Munyer that the bankruptcy court found credible. Even
if Dana Hoover’s statements about overhearing conversations are not credible, those statements are
not misrepresentations made by Hoover inasmuch as he was not the affiant and did not sign the
affidavit. While Hoover does assert that he remembers a conversation following Grad’s deposition
(Responding Affidavit ¶ 24), he does not assert that Dana Hoover overheard that conversation.
Accordingly, the Panel holds that to the extent that sanctions were awarded against Hoover for
statements made in Dana Hoover’s affidavit, the bankruptcy court abused its discretion.

6. Representations Regarding State Criminal Case

Another key part of the bankruptcy court’s reasoning for sanctioning Hoover was that the
bankruptcy court believed that Hoover mischaracterized why the State Criminal Case was dismissed.
The bankruptcy court observed that “[t]he story Hoover tells is that the State Court Criminal Case

11

During Hoover’s own testimony at the hearing (under cross examination by Brouse), Hoover attempted to
explain the layout of his office. It appears that this testimony may have been going to the possibility that Dana Hoover
could have overheard a conversation between him and Munyer without being noticed. This testimony was cut off by
the court as “irrelevant.” Tr. 132:18-23. The court was correct that the testimony was not responsive to the question
asked on cross examination. In her affidavit, Dana Hoover stated that she was in the office on M arch 27, 2012, for the
deposition of Grad and that after the deposition Munyer and Hoover talked in her presence. Affidavit of Dana T. Hoover
(“Dana Hoover Affidavit”), ECF No. 30 ¶ 4, March 12, 2013. Dana Hoover also asserted that over the next few months,
she had several conversations and emails with Munyer while trying to schedule more discovery and during those
conversations she urged Munyer to get Grad to tell the truth. Dana Hoover Affidavit ¶ 5. Finally, Dana Hoover claimed
to have overheard a telephone conversation between Munyer and Hoover on July 5, 2012, in which Munyer indicated
that Grad would not change his story and that Parker would pursue penalties against Grad if he did. Dana Hoover
Affidavit ¶ 6.
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against Mr. Harger was dismissed because Mr. Grad wanted to recant and instead place
responsibility [for the plot to inculpate Mr. Harger] on the Debtor.” Sanctions Order at 6. The
bankruptcy court also observed that it was “Hoover’s assertion that the reason the prosecutor
dropped the case was because Grad was going to change his story.” Sanctions Order at 8. The
bankruptcy court did not give any citations to the record for these alleged statements.

Conversely, the bankruptcy court found credible “Munyer’s testimony that Grad had no
intention of and never considered changing his testimony.” Sanctions Order at 7. Additionally, the
bankruptcy court found:
During the cross examination of Mr. Munyer, Hoover attempted to show that
Munyer’s statement that Mr. Grad was prepared to testify against Harger . . . was a
false statement. Hoover was not successful in this attempt. Rather this is another
example of Hoover’s inability to discern fiction from fact.
Sanctions Order at 7. Later in the order, the bankruptcy court stated: “In short, Grad would have
testified against Harger in the State Court Criminal Case, had it not been dropped by the prosecutor
for reasons not related in any way to a change in position by Grad.” Id.

The record, however, demonstrates that Hoover never asserted that the State Criminal Case
was dropped because Grad was going to change his story. Rather, he posited two reasons why the
State Criminal Case was dismissed. First, he stated that the State Criminal Case was dismissed
because Parker knew that Grad’s statements were inconsistent with the facts. Initial Affidavit ¶ 5;
Pl. Hr’g Br. RE: Rule 9011 (“Pl. 9011 Br.”), Adv. Case ECF No. 19, Feb. 5, 2013 at 19; Responding
Affidavit ¶ 13. Second, Hoover asserted that Parker dismissed the State Criminal Case because
Grad refused to cooperate. Responding Affidavit ¶ 13.

In his Responding Affidavit, Hoover described a phone call between himself and Parker two
days before trial in the State Criminal Case: Parker had called Hoover to tell Hoover that the case
would be dismissed. Hoover explained:

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I agreed with the dismissal because, if he had looked at any of the discovery
materials, he would know Mr. Grad was lying and so Mr. Parker would lose. I went
over the evidence . . . . I then asked whether Mr. Parker was dismissing the charges
“with prejudice” or “without prejudice”. Mr Parker said “without”. I told him I
would object to a dismissal without prejudice because the defense was prepared for
trial, we thought we would win based on what I had just told him, we did not want
a “without prejudice” dismissal to possibly stand in our way of filing following civil
suits and we did not want any possibility remaining that the charges might be re-filed.
Mr. Parker responded that he would not agree to dismiss with prejudice but added
words similar to “I will never re-file the charges”. I remember he put emphasis on
the word “I” which I took to be further confirmation that he did not believe in the
case. I attempted to pry out Mr. Parker’s reasoning for a dismissal without prejudice
. . . and Mr. Parker simply did not respond. . . . For all of the above reasons, I had
good grounds for what I said at paragraph 5 of my previous affidavit. If Mr. Parker
had any other reasons for dismissing the case, they were not known to me until I
appealed his dismissal without prejudice . . . . In the appellate brief he filed, Mr.
Parker said he dismissed because Mr. Grad refused to cooperate or words to that
effect.
Responding Affidavit ¶ 13.

During the trial on the Orders to Show Cause, Parker agreed with Hoover’s general
assessment of the phone conversation. May 9, 2013 Hr’g Tr.15:10-16:21. Hoover asked Parker:
“Now, did you disagree with any of those statements?” Parker responded: “I don’t know if I said,
I disagree with that. I just listened to you . . . .” Parker also stated that he did not know whether
Hoover took his silence as an agreement of Hoover’s assessment of the evidence. During his cross
examination, Parker acknowledged that some of the inconsistencies between his own affidavit and
Hoover's could be reconciled, as they were based on perspective. May 9, 2013 Hr’g Tr. 42:2-4.
Parker also twice agreed that some of what he had labeled as “false statements” in Hoover’s Initial
Affidavit were really matters of opinion. May 9, 2013 Hr’g Tr. 47:2-5; 49:6-8.

Thus, the Panel finds that the trial testimony from Parker shows that he knew prior to
dismissal about Hoover’s insistence that inconsistencies existed between Grad’s statements and the
evidence. While his testimony clarifies that those inconsistencies were not the reason he dismissed
the State Criminal Case, his testimony also indicates that, from Hoover’s perspective, the

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inconsistencies might have seemed like a reason for dismissal. More importantly, Parker’s testimony
shows that Hoover was absolutely correct when he represented to the bankruptcy court that the State
Criminal Case was dropped because Grad no longer wanted to proceed. May 9, 2013 Hr’g. Tr. 17:610. In addition to Parker’s testimony, Hoover elicited testimony at the trial from Munyer about a pro
se handwritten pleading filed by Grad in the State Court Case wherein Grad stated that he had
“revoked the charges” against Ryan Harger rather than the prosecutor dismissing for his own
reasons. Munyer did not deny that Grad made the statement, although he attempted to discount it
by noting that it was “a layman’s written response without the advice of counsel.” March 15, 2013
Hr’g Tr. 43:19-44:12. Munyer testified:
I’ve spoken to Chris Parker and to Jonathan Grad about this exact issue, and they’re
both in sync. [B]efore the trial Chris Parker contacted his victim, who was Jonathan
Grad, and said something to the effect of, do you care about this case? You know,
do you want to prosecute? Do you want to go forward? Something of that nature.
And he [Grad] said, I don’t live there. I don’t know those people. I’m never coming
back. I don’t care what happens with it.
Tr. 44:17-25.

The statement by Parker, who the bankruptcy court found credible, and Grad’s own statement
support Hoover’s representation that the State Criminal Case was dropped because Grad did not
want to proceed. Even Jones testified that Parker advised him that the matter was not going forward
because Grad was not going to pursue it. R/S Final Hearing Tr. 16:17-18. While the parties may
not agree on what story Grad would have told if he had been forced to testify, all of the witnesses’
statements lead to the conclusion that Grad’s lack of desire to proceed led Parker to drop the case.
Accordingly, the bankruptcy court’s finding that Hoover had asserted that the case was dropped
because Grad was going to change his story is clearly erroneous. Further, the bankruptcy court’s
finding that this was “another example of Hoover’s inability to discern fiction from fact” is clearly
erroneous. To the extent sanctions were based on these findings, they are an abuse of discretion.12
12

In his affidavit, Parker stated: “Paragraph 6 [of Hoover’s Initial Affidavit] represents that I threatened to
prosecute Grad if he changed his story. This never happened.” Parker Affidavit ¶ 8. Hoover responded that his Initial
Affidavit only relayed statements by Munyer, not statements of fact from personal knowledge. Responding Affidavit
¶ 14. Later, during cross examination, Parker admitted that in Hoover’s affidavit, Hoover merely reported what he
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7. Alleged Misconduct in the State Court Action

In its Sanctions Order, the bankruptcy court recounted an allegation made by Munyer of
misconduct by Hoover in the State Court Action. Sanctions Order at 7, n.5 (quoting Munyer
Affidavit ¶ 14).
Mr. Hoover attempted to obtain sanctions and attorney fees of $1,378.50 against
Jonathan Grad for failure to appear at a deposition without excuse. Sanctions were
denied. What Mr. Hoover did not know when he moved for sanctions was that Mr.
Grad had contacted the court, at or around the deposition date, and advised the court
of his attempts to reschedule the deposition. Mr. Hoover hung up on him. The court
noted in its order that Mr. Hoover did not deny Mr. Grad’s claims. Sanctions against
Mr. Grad were denied.
Id. The bankruptcy court then noted, “As Munyer points out, the story Hoover told to the [state]
Court failed to mention that Mr. Grad had called him to attempt to reschedule.” Id.

During his cross examination of Munyer, Hoover was able to establish that Munyer’s
affidavit had not related the complete story of this event to the bankruptcy court. Munyer admitted
that Grad had “probably” told him that Hoover had informed Grad that Grad still had to appear at
the deposition. Munyer also admitted that Hoover had told Grad that he could not talk to Grad
because Grad had retained an attorney. March 15, 2013 Hr’g. Tr. 33:1-36:6. Further, the state court
did not sanction Hoover for a misrepresentation, and, although the state court did not sanction Grad

claimed that Munyer told him and that Parker would not know whether or not Munyer had said that. May 9, 2013 Hr’g
Tr. 21:22-22:19.
In his Responding Affidavit, Hoover attempted to make sense of the seemingly conflicting accounts of Grad’s
possible prosecution if he changed his story. Hoover recounted that “it was my recommendation to Mr. Munyer that,
before Mr. Grad changed his story, Mr. Munyer had better confer with Mr. Parker to make sure Mr. Grad would not end
up being prosecuted.” Responding Affidavit ¶ 14 (emphasis in original). Additionally, Hoover noted that Laura Grad
had testified in a deposition that Munyer had told her that “Mr. Grad faced prosecution if Mr. Grad changed his story[.]”
Id. (Jonathan Grad’s mother, Laura, was present during a meeting between Munyer and Grad when they discussed
Hoover’s suggestion that Grad reconsider his prospective testimony. Her deposition is not part of the record on appeal.)
The Panel notes that in the Sanctions Order the bankruptcy court did not focus on whether Munyer made any
representations regarding what Parker said about the possible prosecution of Grad. The Panel finds that the bankruptcy
court imposed sanctions based in part on its findings that Hoover had made assertions that the State Criminal Case was
dismissed because Grad was going to change his story. Those findings were clearly erroneous. Therefore, the Panel does
not need to reconcile the different accounts regarding whether prosecution of Grad was threatened or who reported such.
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for his failure to appear at the deposition, it did grant Hoover’s motion to compel. Debtor’s Reply
Br. RE: 9011 Sanctions, Ex. 3, Adv. Case ECF. No. 20-3, March 2, 2012.

In the Sanctions Order, the bankruptcy court recounted this “misconduct” by Hoover in a
footnote. Perhaps the bankruptcy court recognized that because it was not misconduct during the
bankruptcy case, it was not sanctionable by the bankruptcy court. But the inclusion of this footnote
in the order is an example of how the bankruptcy court credited Munyer’s affidavit, even when
Munyer’s own testimony at trial contradicted it or cast doubt on it. The inclusion of this footnote
is an indication that the bankruptcy court considered this allegation as part of the cumulative
evidence of Hoover’s dishonesty and the need for severe sanctions. In fact, the bankruptcy court
specifically stated in the Sanctions Order: “Hoover has mischaracterized to this Court matters that
have taken place elsewhere.” Sanctions Order at 11. The Panel finds that the bankruptcy court
abused its discretion when it considered this allegation in determining sanctions. Not only did this
alleged misconduct occur in a nonbankruptcy forum, Munyer’s own testimony cast serious doubt
about whether Hoover’s conduct in the state case even amounted to misconduct at all.

8. Conclusion Regarding Factual Findings

The

bankruptcy

court

summarized

its

factual

findings

regarding

Hoover’s

mischaracterizations thus:
Hoover appears to misunderstand the nature of his role. He is not to be the
author of an uncorroborated story. In his advocacy, he can frame a narrative of prior
events that is supported by admissible evidence. As an officer of the court, however,
he cannot simply spin a convenient yarn that contradicts historical facts. Examining
affidavits executed by Hoover and filed in this case in relation to the Rule 9011
issues leads me to conclude that he sought to defend against Rule 9011 issues with
further violations of that rule and worse. When the assertions in the Initial Hoover
Affidavit were promptly controverted in the Munyer and Parker Affidavits, Hoover
continued to expand the scope of his self-serving and inaccurate prior statements by
filing a Responding Affidavit.

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Sanctions Order at 8-9. Setting aside that the last sentence seems to ignore the fact that the
bankruptcy court required Hoover to file the Responding Affidavit as his direct testimony, the
bankruptcy court appears to have been so offended by the discrepancies between the Hoover’s Initial
Affidavit and the Munyer and Parker Affidavits that it rejected all evidence presented that countered
the version of events described in the Munyer Affidavit, even when that evidence was Munyer’s
own later testimony at trial.13 In its Sanctions Order, the bankruptcy court did not address any of the
trial testimony by Munyer and Parker that corroborated parts of Hoover’s affidavits or contradicted
their own. This one-sided analysis of the evidence led to the bankruptcy court making several clearly
erroneous factual findings. All of the attorneys were advocates in a highly contentious legal battle
that involved both the state court and bankruptcy court in civil and criminal matters. Parker, the state
court prosecutor, who appeared to be the most neutral, admitted that much of Hoover’s Initial
Affidavit that he had originally declared false could be attributed to perspective or advocacy. The
bankruptcy court should have come to the same conclusion. The bankruptcy court’s conclusion that
Hoover’s narrative contradicted historical fact is clearly erroneous.

While there are some

inconsistencies between Hoover’s narrative and others’, those differences do not rise to the level
required to support sanctions pursuant to Rule 9011.

C. Evidentiary Basis for Filings

The original issue to be addressed by the Order to Show Cause was whether Hoover was
justified in filing the Motion for Relief and the Adversary Complaint. The bankruptcy court cited
the correct standard for making its determination. “To determine whether the reliance is reasonable,
the bankruptcy court must evaluate the attorney’s conduct based on what was reasonable to believe
at the time the motion was submitted.” Sanctions Order at 10 (citing In re Downs, 103 F.3d 472, 481
(6th Cir. 1996); McGhee v. Sanilac County, 934 F.2d 89 (6th Cir. 1991)). The bankruptcy court then
held:

13

See Section IV.B.5.
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At the time this case was filed, none of the Harger’s [sic] allegations against the
Debtor had been independently verified, and Hoover knew that the evidence on
which he had intended to rely in the state court did not exist. Hoover’s continued
insistence that he had evidence to prove his clients’ claims, without identifying the
evidence specifically, is not reasonable. Hoover had a duty to verify the existence
of the alleged video evidence. He was remiss in relying upon its purported existence
without having seen it for himself. Prior to the point of commencing an adversary
proceeding seeking a determination of non dischargeability, verifying the existence
of such purported evidence was essential under the circumstances. His failure to do
so was unreasonable, again particularly as Harger’s lack of credibility grew.
Sanctions Order at 11. The bankruptcy court had previously found:
Hoover, though he may initially have credited the statements of his clients, was not
reasonable in continuing to believe their claim. According to Hoover, he conducted
extensive discovery in the State Court Action and claimed to have been prepared for
trial in the State Court Action; given these representations to this court, he is charged
with knowledge that there were no videos and no police reports to corroborate his
clients’ version of events.
Sanctions Order at 6. Additionally, the bankruptcy court stated:
Hoover continues to suggest that he has an evidentiary basis for the allegations in the
State Court Action, the Motion for Relief and the Adversary Complaint. However,
he has not pointed to any specific evidence supporting any of his allegations. As
previously noted, perhaps at first he could have reasonably believed Harger’s factual
contentions had evidentiary support. However, as it became clear that the Hargers
did not have the video tape evidence as they originally claimed, nor the police reports
to show they were upset by the alleged harassment by Mr. Jones, Mr. Hoover’s
reliance on his clients’ self-serving and uncorroborated statements became
unreasonable, particularly in light of his client’s documented aggressive actions.
Sanctions Order at 8.

The problem with the bankruptcy court’s findings is that, even though the bankruptcy court
acknowledged that it must judge Hoover’s actions based on what was reasonable for him to believe
about his clients’ case at the time he filed the Motion for Relief and the Adversary Complaint, the
Sanctions Order does not demonstrate that the bankruptcy court applied that standard. The
bankruptcy court stated: “Hoover knew that the evidence on which he had intended to rely in the
state court did not exist.” Sanctions Order at 11. However, the Sanctions Order did not directly cite
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to the record where Hoover described what he would rely on in the state court. Because the
Sanctions Order repeatedly stated Hoover was charged with the knowledge that there were no video
tapes or police reports, the Panel presumes that this is the evidence that the bankruptcy court referred
to. Additionally, the bankruptcy court specifically noted that: “During the R/S Final Hearing,
Hoover submitted no exhibits for use during the hearing.” Sanctions Order at 4. The Panel will
consider that statement in the context of the bankruptcy court’s conclusion that Hoover violated Rule
9011 by filing the Motion for Relief and Adversary Complaint without a sufficient evidentiary basis.
Finally, the Panel will consider whether the bankruptcy court’s findings regarding the outcome of
the CPO hearing had any impact on its conclusion. The Panel will consider each of these in turn.

Because Hoover is judged on what he knew at the time the pleadings were filed, not on future
discovery or the outcome of the case, it is important to note the timing of the proceedings. After the
State Criminal Case was dropped, Ryan Harger sought the CPO against Jones based on alleged
threats against his family. The Hargers hired Hoover sometime during the CPO process but Hoover
was not counsel of record for that proceeding.14 On behalf of the Hargers, Hoover filed the State
Court Action against Grad and Jones alleging conspiracy and intentional infliction of emotional
distress on the theory that they had conspired to have Ryan Harger arrested on false assault charges.
The state court denied the CPO, but discovery in the State Court Action was ongoing and a trial date
had been set prior to the filing of Jones’ bankruptcy petition. While the State Court Action was
stayed as to Jones, there was still some discovery as to Grad until July 5, 2012, when the state court
decided to stay the case as to Grad as well. Hoover filed the Motion for Relief on July 10, 2012.
The bankruptcy court held a preliminary hearing regarding the Motion for Relief on August 15,
2012, and scheduled a final hearing for September 17, 2012. Hoover timely filed the Adversary
Complaint on August 17, 2012. Hoover did not file the Adversary Complaint until after he
attempted to obtain relief from the stay to pursue the action in state court. He asserts that he filed
the Adversary Complaint in order to preserve his clients’ rights. Responding Affidavit ¶ 8.

14

See Section IV.B.2.
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1. Lack of Video Tape Evidence

In the Sanctions Order, the bankruptcy court repeatedly mentioned the lack of video tape
evidence as proof that Hoover should have known that there was not a sufficient evidentiary basis
for the underlying cause of action. But the bankruptcy court failed to make a factual finding
regarding when Hoover knew or should have known there were no video tapes. Sanction Order at
8. The bankruptcy court noted that at the R/S Final Hearing, Ryan Harger testified that he thought
there were some videos. Sanctions Order at 4, n.3; R/S Final Hearing Tr. 52:12-23. Jennifer Harger
admitted in her testimony during the Rule 9011 hearing that although they have surveillance
cameras, they did not have video evidence because they were either recorded over or erased.
Sanctions Order at 4, n.3. Hoover testified that he did not know if there was video evidence. He had
never been given any. He had been told there was, the Hargers had previously thought there was,
but he and they no longer believed so. March 15, 2013 Hr’g Tr. 127:25-128:11. The bottom line
is that the vast majority of cases do not have video evidence of alleged events. The fact that they
have cameras, but no video evidence might weaken the Hargers’ case, but the lack of video evidence
alone does not mean that they never should have brought the case. More importantly, there is
absolutely nothing in the record showing that Hoover either lied to the bankruptcy court regarding
video evidence or that he knew conclusively that his clients were lying about video evidence prior
to his filing the Motion for Relief or the Adversary Complaint. In fact, during the hearing on the
Motion for Relief, Hoover never asserted that he was relying on video evidence.

2. Lack of Police Reports

In the Sanctions Order, the bankruptcy court found that there were no police reports that
corroborated the Hargers’ version of events. However, Exhibit F attached to Hoover’s response to
the Order to Show Cause is such a report. Adv. Case ECF No. 19-7. Although the weight of this
report may be questionable since, as Jennifer Harger stated to the officer at the time she made the
report, it was “for documentation purposes,” it is a report that was made prior to the bankruptcy
filing and it corroborates the story that Hoover’s clients told him. Again, the question is not whether
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Hoover would win the underlying case, the question is whether at the time he filed the Motion for
Relief and Adversary Complaint, Hoover, as an attorney, was unreasonable in believing his clients.
Moreover, at the hearing on the Motion for Relief, Jones testified that there had been numerous
reports to the police of alleged infractions on both sides. R/S Final Hearing Tr. 10:19-22.
Accordingly, the bankruptcy court’s factual finding that there were no police reports that
corroborated the Hargers’ version was clearly erroneous.

3. Lack of Exhibits

In the Sanctions Order, the bankruptcy court found: “During the R/S Final Hearing, Hoover
submitted no exhibits for use during the hearing. He continued to maintain, however, that the State
Court Action was ready for trial in state court.” Sanctions Order at 4. While it is true that Hoover
did not submit exhibits during the R/S Final Hearing, this fact does not have the significance
attributed to it by the bankruptcy court. Because of the way Hoover interpreted the factors to
consider when determining a motion for relief from the automatic stay set forth in Sonnax Industries,
Inc. v. Tri Component Products Corp. (In re Sonnax Industries, Inc.), 907 F.2d 1280 (2d Cir.
1990),15 he relied solely on the State Court Action docket, complaint, answer, and order staying the

15

In Sonnax, the Second Circuit Court of Appeals listed a number of factors (“the Sonnax Factors”) that may
be relevant in deciding whether the stay should be lifted in order to permit litigation to continue in another forum. These
factors include:
(1) whether relief would result in a partial or complete resolution of the issues; (2) lack of any
connection with or interference with the bankruptcy case; (3) whether the other proceeding involves
the debtor as a fiduciary; (4) whether a specialized tribunal with the necessary expertise has been
established to hear the cause of action; (5) whether the debtor’s insurer has assumed full responsibility
for defending it; (6) whether the action primarily involves third parties; (7) whether litigation in
another forum would prejudice the interests of other creditors; (8) whether the judgment claim arising
from the other action is subject to equitable subordination; (9) whether movant’s success in the other
proceeding would result in a judicial lien avoidable by the debtor; (10) the interests of judicial
economy and the expeditious and economical resolution of litigation; (11) whether the parties are
ready for trial in the other proceeding; and (12) impact of the stay on the parties and the balance of
harms.
Sonnax, 907 F.2d at 1285-86. W hile citing Sonnax with approval regarding the standard of review, the Sixth Circuit
Court of Appeals has not expressly adopted these factors in reviewing a bankruptcy court’s decision whether or not to
grant relief from the automatic stay. See Garzoni v. K-Mart Corp. (In re Garzoni), 35 Fed. App’x 179, 2002 W L 962154
at *2 (6th Cir. 2002) (“The bankruptcy court considers the following factors in deciding whether to lift a stay: 1) judicial
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State Court Action due to the bankruptcy case. The bankruptcy court took judicial notice of these
state court documents at the beginning of the hearing, and Hoover offered no additional exhibits
during the hearing. R/S Final Hearing Tr. 4:7-13, 7:24-8:3.

Nonetheless, the bankruptcy court noted that “when Debtor’s counsel requested production
of such evidence [from Hoover in support of the Motion for Relief], he produced none.” Sanctions
Order at 3. The bankruptcy case docket reflects that Brouse served Hoover with the notice of request
for production of documents and interrogatories on August 16, 2012, which were due the day before
the R/S Final Hearing. The bankruptcy court seemed to attribute the failure to offer exhibits at the
hearing and the failure to respond to the discovery request to be an admission that evidence does not
exist. However, the bankruptcy court never made a specific ruling that any issue or fact was deemed
admitted due to a discovery violation. Even if that were the case, such an admission would not
support the conclusion that, as the attorney, Hoover knew that evidence did not exist prior to the time
he filed the Motion for Relief and the Adversary Complaint.

The bankruptcy court concluded that Hoover should have known just how weak his case was
prior to filing the Motion for Relief and the Adversary Complaint; in drawing this conclusion, the
bankruptcy court relied on an erroneous factual finding that discovery in the State Court Action was
complete. As the Panel has already noted, Hoover did not represent to the bankruptcy court that
discovery was complete. In his Motion for Relief, Hoover asserted that discovery in the State Court
Action was “ongoing” at the time the bankruptcy petition was filed. See Motion for Relief, Bankr.
Case ECF No. 16. During the hearing on the Motion for Relief, Hoover asserted only that the State
Court action was “nearly ready for trial.” R/S Final Hearing Tr. 68:9. In both of his affidavits,
Hoover again asserted that if discovery in the State Court Action were to proceed, he expected to

economy; 2) trial readiness; 3) the resolution of preliminary bankruptcy issues; 4) the creditor’s chance of success on
the merits; and 5) the cost of defense or other potential burden to the bankruptcy estate and the impact of the litigation
on other creditors.”) The bankruptcy court did not expressly state that it would follow the Sonnax Factors, but the court
did give some indication that it was not looking for substantial evidence on the merits of the underlying State Court
Action, stating: “W hat I’m hearing today is a motion for relief from stay. . . . You’ve been allowed a lot of latitude. W ith
respect to this matter. . . . But the relevance of this testimony to the motion for relief from stay is certainly not clear to
me.” R/S Final Hearing Tr. 38:14-22.
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uncover further evidence to corroborate his clients’ case. Initial Affidavit ¶ 7, Responding Affidavit
¶ 7.

During the March 15, 2012 show cause hearing, Hoover admitted he had a circumstantial
case when he was asked to point to specific evidence. He stated that he was relying primarily on the
parties’ testimony, depositions, and police reports. March 15, 2013 Hr’g Tr. 120:18-123:10. Thus,
it is apparent that Hoover was not relying on videos and had specific evidence in support of the
underlying State Court Action, and by extension, the Motion for Relief and the Adversary
Complaint.

4. CPO Hearing

The bankruptcy court held that Hoover should have known that the Hargers were not credible
and lacked evidence in support of their case, apparently relying on the outcome of the CPO hearing.
This ruling was clearly erroneous. The bankruptcy court noted that at the CPO hearing, Ryan Harger
asserted that he would have video evidence of some of the alleged incidents of Jones’ aggression.
But since Hoover was not present at this hearing and was not counsel of record,16 Ryan Harger’s
statements at this hearing cannot be impugned to Hoover. Indeed, the State Court Action had just
been filed at that point in time; so clearly, there had been no discovery upon which Hoover could
reach any conclusions regarding his clients’ credibility.

The bankruptcy court stated: “The CPO was denied because the state court found Mr.
Harger’s testimony lacked credibility and failed to establish a basis for the relief sought.” Sanctions
Order at 4. It is unclear what the bankruptcy court was relying on as support for this statement. In
the CPO case, the magistrate found: “[Ryan Harger’s] oral testimony failed to support his claim that
[Jones] is or has been guilty of menacing by stalking . . . .” January 13, 2012 CPO Judgment Entry,
Bankr. Case ECF No. 44. In the Judgment Entry, the magistrate did not state that the testimony

16

See Section IV.B.2.
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lacked credibility. Perhaps the bankruptcy court assumed that the magistrate reached his conclusion
due to a finding that Ryan Harger lacked credibility, but the magistrate’s decision simply did not
state that. It is possible that the magistrate believed everything that Ryan Harger said and still did
not find cause for a protective order.

Therefore, the bankruptcy court abused its discretion in holding that Hoover violated Rule
9011 for believing his clients.

5. Evidence Regarding the Objection to Discharge

The Adversary Complaint included a count objecting to Jones’ discharge, alleging that Jones
failed to disclose an ownership interest in CarMeds. The Panel finds that there is at least some
evidence to support Hoover’s theory. In Grad’s deposition, he called himself an employee of Jones.
In Jones’ deposition, he seemed to admit that Grad was his employee. Jones’ deposition testimony
can be interpreted to at least imply that Jones runs the CarMeds business even though his mother is
the owner. Further, Jones signed a letter identifying himself as “President” of CarMeds. Finally,
Jones stated that his mother gives him money, although he did not say why. These factors lead the
Panel to conclude that there is at least a colorable argument that Jones is a de facto owner of
CarMeds. Moreover, although the bankruptcy court focused on what it viewed as Hoover’s
mischaracterization of Jones’ deposition testimony, Hoover did present this evidence to the
bankruptcy court in response to the Order to Show Cause. Accordingly, the factual finding that
Hoover did not present specific evidence in support of this cause of action is clearly erroneous.

6. Conclusion Regarding Evidentiary Support

The Fourth Circuit has explained the standard for a determining whether the filing of a
complaint is grounds for Rule 9011 sanctions:
We have aptly observed that “the Rule does not seek to stifle the exuberant spirit of
skilled advocacy or to require that a claim be proven before a complaint can be filed.
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The Rule attempts to discourage the needless filing of groundless lawsuits.”
Cleveland Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984, 988 (4th Cir.1987).
And we have recognized that “creative claims, coupled even with ambiguous or
inconsequential facts, may merit dismissal, but not punishment.” Brubaker v. City
of Richmond, 943 F.2d 1363, 1373 (4th Cir.1991) (quoting Davis v. Carl, 906 F.2d
533, 536 (11th Cir.1990)).
Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153 (4th Cir. 2002).

There are several problems with the bankruptcy court’s conclusion that Hoover should have
known that the cause of action lacked merit at the time he filed the Motion for Relief and the
Adversary Complaint. First, nothing in the record supports a finding that Hoover intended to rely
upon video evidence in the State Court Action but then knew that none existed prior to the filing of
the Motion for Relief. Second, the bankruptcy court’s conclusion that there were no police reports
that supported the Hargers’ “story” is clearly erroneous. Third, the bankruptcy court did not clearly
demonstrate that it was able to distinguish what Hoover knew or should have known regarding his
clients’ credibility as of the filing of the Motion for Relief and the Adversary Complaint from what
was discovered at later hearings. The bankruptcy court stated: “Mr. Hoover’s reliance on his clients’
self-serving and uncorroborated statement became unreasonable, particularly in light of his client’s
documented aggressive actions.” Sanctions Order at 8. The bankruptcy court did not state when
Hoover’s reliance became unreasonable, but the implication is that the bankruptcy court was judging
the Hargers’ credibility based on their testimony at the hearings held during the pendency of the
bankruptcy. The bankruptcy court’s conclusion failed to recognize that Hoover filed the Motion for
Relief and the Adversary Complaint prior to that testimony. Moreover, the statement regarding Mr.
Harger’s “documented aggressive actions” implies that the bankruptcy court had already determined
what it believed as to the outcome of the underlying case.

It is not generally unreasonable for an attorney to file a Motion for Relief to allow a pending
lawsuit to proceed. Further, failure to file an adversary proceeding can be malpractice under certain
circumstances. Thus, Hoover’s actions were not per se egregious. Moreover, Hoover cannot be
sanctioned based on the bankruptcy court’s anticipation of the result of the case. The record in this
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case reveals conflicting stories from all the players. It is extremely difficult to tell how a jury would
rule. The Panel concludes that the evidence is not so clearly one sided that Hoover is guilty of Rule
9011 violations for bringing a frivolous Motion for Relief and filing a baseless Adversary Complaint.
The bankruptcy court does not cite sufficient support in its Sanctions Order for its finding that
Hoover was unreasonable in filing the Motion for Relief and the Adversary Complaint. Accordingly,
the Panel holds that the bankruptcy court abused its discretion.

V. CONCLUSION

“An abuse of discretion is defined as a definite and firm conviction that the court below
committed a clear error of judgment.” Mayor of Baltimore v. W. Va. (In re Eagle-Picher Indus.,
Inc.), 285 F.3d 522, 529 (6th Cir. 2002) (internal quotation marks and citation omitted). “The
question is not how the reviewing court would have ruled, but rather whether a reasonable person
could agree with the bankruptcy court’s decision; if reasonable persons could differ as to the issue,
then there is no abuse of discretion.” Id. (citations omitted). In this case, the Panel has a firm and
definite conviction that the bankruptcy court abused its discretion in sanctioning Hoover because it
relied on multiple clearly erroneous factual findings. Moreover, the Panel finds that, having
reviewed the record as a whole, no reasonable person could agree with the bankruptcy court’s
decision. Further, the bankruptcy court also made an error of law when it imposed attorneys’ fees
as a sanction under Rule 9011 given that the Order to Show Cause was issued sua sponte.
Accordingly, the bankruptcy court’s decision is REVERSED and the Sanctions Order is
VACATED.

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