Smith et al v. Mid-South Maintenance, Inc., an Oklahoma Corporation et al
Filing
52
ORDER AFFIRMING BANKRUPTCY JUDGE RULING AND DISMISSING 1 Bankruptcy Appeal. CASE CLOSED. Signed by District Judge Michael P. Mills on 3/25/2019. (lpm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSSISSIPPI
STEPHEN PAUL SMITH
And JESSICA NICHOLE SMITH
APPELLANTS
vs.
CIVIL ACTION NO. 3:18cv111
MID-SOUTH MAINTENANCE, INC., et al
APPELLEES
ORDER
This is an appeal from a March 22, 2018 final judgment entered by U.S. Bankruptcy
Judge Jason Woodard against appellants Stephen Paul Smith and Jessica Nichole Smith in the
amount of $98,942.00. Judge Woodard reached his ruling after conducting a three-day trial on
November 29, 30, and December 1, 2017. In a thirty-five page order explaining his ruling, Judge
Woodard found appellants’ debts to be nondischargeable in bankruptcy pursuant to 11 U.S.C. §
523(a)(2)(A) and (a)(6), based on a conclusion that they had knowingly received funds which
were embezzled by Kimberly Cray Burk from appellee Mid-South Maintenance, Inc. It is
undisputed that Kimberly, who is Jessica’s mother and Stephen’s mother-in-law, has a lengthy
history of embezzlement, and she is presently serving her third incarceration for this offense. In
their appeal, Stephen and Jessica take issue with a number of procedural and substantive rulings
by Judge Woodard, but, for the reasons discussed below, this court concludes that these
objections are not well taken and that Judge Woodard’s ruling is due to be affirmed.
STANDARD OF REVIEW
On appeal, a bankruptcy court's findings of fact are reviewed for clear error, and issues of
law are reviewed de novo. UTSA Apts. L.L.C. v. UTSA Apts. 8, L.L.C., 886 F.3d 473, 485 (5th
Cir. 2018). A bankruptcy court's factual finding is "clearly erroneous only if on the entire
evidence, the court is left with the definite and firm conviction that a mistake has been
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committed." In re Dennis, 330 F.3d 696, 701 (5th Cir. 2003) (quoting Hibernia Nat'l Bank v.
Perez, 954 F.2d 1026, 1027 (5th Cir. 1992)). In reviewing factual findings, this court "must give
due regard . . . to the opportunity of the [bankruptcy] court to judge the credibility of the
witnesses." Hibernia, 954 F.2d at 1027 (quoting Fed. R. Civ. P. 52(a)) (alteration in original).
I. DID THE BANKRUPTCY COURT ERR AS A MATTER OF LAW BY
DENYING APPELLEES’ MOTION TO DISMISS UNTIMELY FILED
COMPLAINT?
This court considers first what it regards as the primary issue in this appeal, namely
whether Judge Woodard erred in finding that a June 1, 2017 Agreed Order which extended the
time for appellees to file an objection to “discharge” should also be read as extending the time
for them to file an objection to “dischargeability” of the debts at issue in this case. In objecting
to Judge Woodard’s ruling, appellants emphasize that the terms “discharge” and
“dischargeability” are distinct ones in the Bankruptcy Code. As noted by the Ninth Circuit:
Discharge and dischargeability “refer to distinct concepts and cannot be used
interchangeably” because they “are based on separate policies and are governed by
distinct procedural rules.” In re Billings, 146 B.R. 431, 435 (Bankr. N.D. Ill. 1992).
Denial of discharge under 11 U.S.C. § 727 is a remedy that “punishes debtors for
misconduct in the bankruptcy process.” Latman v. Burdette, 366 F.3d 774, 782 (9th Cir.
2004) (emphasis added) (citing 11 U.S.C. § 727(a)). . . . In contrast, the rationale for §
523(c)—which allows a creditor to have a specific debt declared nondischargeable—“is
that the debtor acted in an improper manner at the time [that] he or she incurred the
specific debt.” Billings, 146 B.R. at 434.
Willms v. Sanderson, 723 F.3d 1094, 1101 (9th Cir. 2013).
The meaning of these two terms is of considerable importance in this case, since it seems
clear that, if the deadline for filing objections to dischargeability under 523(c) was not extended,
then appellees failed to object in a timely manner to the dischargeability of appellants’ debts.
Judge Woodard ultimately found that Stephen and Jessica’s debts were non-dischargeable, and
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any conclusion that appellee’s objections to dischargeability were untimely might well serve to
cast doubt upon the legal basis for that ruling.
In considering these issues, this court first notes that this appellate issue involves a mixed
question of fact and law since, in making his ruling, Judge Woodard relied both upon his factual
findings and, implicitly, upon a legal interpretation of his authority to take action based upon
those findings. Judge Woodard’s December 14, 2016 order reads in relevant part:
On June 7, 2016, the Court held a telephonic status conference in these cases. Jeff Collier
appeared on behalf of the chapter 13 trustee, Hugh Armistead appeared on behalf of the
plaintiffs, and Robert Cornelius appeared on behalf of each of the defendants. At the
telephonic hearing, the parties understood that the plaintiffs were
going to be filing a [sic] adversary proceedings regarding their objections to
discharge or dischargeability against all of the debtors. The plaintiffs claims against
the defendants in these three adversary proceedings are based on the defendants’
alleged involvement in the same fraudulent scheme, and thus all negotiations
regarding and the timeline for filing complaints were consolidated into a single
discussion at the telephonic hearing. Based on the agreement of the parties, on July
7, 2016, the Court entered a consent order extending deadlines in the case (Jones
Bankr. Dkt. #34). The consent order provided that the plaintiffs had 45 days from
the entry of that order within which to “commence its adversary proceeding.” In the
Burk and Smith cases, the parties also agreed to extend the time to “object to the
discharge of the Debtor” until August 22, 2016 (Burk Bankr. Dkt. #26; Smith Bankr.
Dkt. #27). It is clear to the Court that the parties to these agreed orders intended that
the orders extend the deadline for complaints objecting either to the debtor’s general
discharge under 11 U.S.C. § 727 or to the dischargeability of the individual debts
owed to the plaintiffs under 11 U.S.C. § 523. In addition, the Court also intended
these orders to extend the deadline to file complaints objecting to the debtors’
discharge -- either the general discharge under §727 and/or the dischargeability of
certain debts under §523. The plaintiffs filed the Complaints in the adversary proceedings
on August 22, 2016, making the complaints timely filed. (citations omitted) Accordingly,
the Motion to Dismiss Complaint are due to be denied as to the statute of limitations
issue. (emph. added)
[Slip op. at 3].
Judge Woodard thus based his ruling largely upon his findings of the parties’ intent, as
expressed in the June 7 telephonic hearing, and it seems clear that these factual findings are
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subject to a “clearly erroneous” standard of review. In arguing that Judge Woodard erred in this
regard, appellants write in their reply brief that:
On page seven of their brief, appellees rely on an interlocutory order entered by the
bankruptcy court on December 14, 2016, referring to a telephonic hearing conducted on
June 7, 2016. The bankruptcy court states in the interlocutory order that the parties and
the court intended for the deadlines to be extended for complaints objecting either to the
debtors’ general discharge under 11 U.S.C. § 727 or to the dischargeability of the
individual debts owed to plaintiffs under 11 U.S.C. § 523. However, the case docket
sheet is devoid of any mention of the telephonic hearing, no record appears to have been
made and no order was subsequently entered altering the terms of the agreed order
entered on June 1, 2016. Furthermore, the telephonic hearing on June 7, 2016, was six
days after the agreed order was entered on June 1, 2016, and the bankruptcy court could
not have possibly known the intentions of the parties when the first agreed order was
entered.
[Reply brief at 5-6].
In the court’s view, this argument falls well short of casting doubt upon Judge Woodard’s
finding that the parties intended to extend the deadlines to object to both “dischargeability” and
“discharge.” In so stating, the court initially observes that appellants’ argument has a somewhat
disingenuous quality to it, since it appears to cast doubt upon matters which, they later concede,
actually occurred. Indeed, in one sentence of their argument, appellants appear to question
whether the June 7, 2016 telephonic hearing with Judge Woodard actually took place, noting that
the docket contains no reference to it. In their next sentence, however, appellants flatly assert
that “the telephonic hearing on June 7, 2016, was six days after the agreed order was entered on
June 1, 2016.” [Id.] Certainly, appellants are in a position to know whether the phone
conference with Judge Woodard actually took place, and since they seem to acknowledge that it
did, this court does not believe that the docket’s silence regarding this event is of any particular
significance.
In a similar vein, this court notes that appellants have submitted no evidence contesting
Judge Woodard’s finding that the parties led him to believe that they intended to extend the
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deadlines for filing objections to both dischargeability and discharge. The closest appellants
come to doing so is when they write that “the bankruptcy court could not have possibly known
[at the June 7 hearing] the intentions of the parties when the first agreed order was entered” six
days previously. This court disagrees. In the court’s view, if the statements of counsel at the
June 7 hearing led Judge Woodard to believe that their intent was to extend the deadlines to
object to both dischargeability and discharge, then it is entirely logical to assume that they had
the same intent six days previously. Certainly, appellants provide this court with no proof (or
even arguments) suggesting that any events had taken place in the intervening six days which
might have altered their intent vis a vis the extension of relevant deadlines.
In light of the foregoing, this court has little difficulty in concluding that Judge
Woodard’s factual finding that the parties’ intent was to extend the deadlines for objecting to
both dischargeability and discharge was not clearly erroneous. Having so found, this court next
considers whether Judge Woodard erred in, at least implicitly, finding that he had the legal
authority to enforce what he found to be the parties’ intent in executing the Agreed Order, rather
than relying on a strict reading of its actual terms. This issue of law is to be resolved on a de
novo basis, but this court has no reason to question Judge Woodard’s ruling even under this
standard. This court is, by inclination, opposed to “gotcha” litigation in its various forms, and, if
it believed, as Judge Woodard did, that the parties had intended to extend the deadlines to object
to both dischargeability and discharge, then it would almost certainly have made the same ruling
as he did.
In considering Judge Woodard’s interpretation of his legal authority in this context, this
court believes that a common-sensical review of the context for his ruling is helpful. There is a
rather subtle legal distinction between the terms “dischargeability” and “discharge,” and the
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words themselves are, obviously, quite similar. True enough, these are terms with distinct
meanings in the Bankruptcy Code, but that does not mean that the parties did not subjectively
intend for the term “discharge” to serve as a shorthand for both terms.
In their brief, appellees argue, with considerable force, that appellants’ contention that
they did not intend to extend the deadlines for objecting to “dischargeability” is less than
genuine:
That is a distinction without a difference in this case. For notice purposes, what could the
Defendants have believed was the purpose for the Plaintiffs’ objections to the bankruptcy
if the objection was not to the dischargeability of the debt owed? The Plaintiffs’ status as
creditors in the Defendants’ bankruptcy was not a mystery. The Plaintiffs had filed a state
court fraud, conversion, etc., action in Oklahoma against the Smiths. The Plaintiffs filed
the bankruptcy action in Mississippi to discharge the debt noted in the Oklahoma lawsuit.
The Plaintiffs were the only creditors whose debts were of any significance. The
Appellants can’t claim with a straight face they did not know or understand from the
bankruptcy court pleadings what the Plaintiffs were objecting to. Any argument of a
substantive difference in the Plaintiffs’ objecting to the Defendants discharge, but not
specifically objecting to the dischargeability of their debts, is pure sophistry.
[Appellee’s brief at 12]. This court agrees that there appears to be a disingenuous quality to
appellants’ arguments in this case. In so stating, this court notes that appellants themselves have
raised a point of error asserting that the “bankruptcy court erred in denying [them] a Chapter 7
discharge.” It thus appears that all parties to this appeal have, at one time or another, used the
term “discharge” as a blanket term for the issues at stake in the adversary proceeding below.
Clearly, Judge Woodward’s evaluation of the parties’ intent would be harder to justify if
he was dealing with two terms with very different meanings, but that is plainly not the case.
Moreover, there was a potential for serious injustice if Judge Woodard were to allow what he
found to be the parties’ intent to be overridden by a more technical reading of the Agreed Order.
In so stating, this court notes that Judge Woodard was dealing with issues relating to the
dischargeability of bankruptcy debts which arose from a large embezzlement from which, he
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eventually found, appellants knowingly benefitted. Given the importance of the issues at stake,
there was clearly a potential for a serious injustice if appellants had managed to avoid having the
merits of the claims against them considered based upon an overly technical reading of the
Agreed Order.
With the foregoing considerations in mind, this court believes that, properly framed, the
issue of law in this present context is whether Judge Woodard had the inherent authority as a
U.S. Bankruptcy Judge to make a reasonable interpretation of the Agreed Order based on what
he found to be the parties’ actual intent, in order to prevent what would otherwise be a manifest
injustice. This court believes that this question essentially answers itself, and it would be
surprised if a U.S. Bankruptcy Judge were held to lack the authority to make such a ruling.
Appellants have certainly presented this court with no authority suggesting that Judge Woodard
lacked such authority, and the authorities upon which they do rely are clearly distinguishable.
Appellants’ primary authority is Kontrick v. Ryan, in which the U.S. Supreme Court held that a
debtor forfeits the right to rely on the time limit for a creditor to file an objection to discharge if
he fails to raise the issue before the bankruptcy court reaches the merits of the creditor's
objection. 540 U.S. 443, 445 (2004). Clearly, however, Kontrick does not address the issue in
this case, which is whether Judge Woodard had the legal authority to conclude, based upon the
representations of counsel at a hearing, that the June 1 order extending time to object to
“discharge” was also intended to encompass the deadline for objecting to dischargeability.
This court notes that, in their brief, appellees rely upon the very same Kontrick decision,
specifically the portion of the opinion which refers to the relevant Bankruptcy Code time
limitations as “non-jurisdictional.” Specifically, appellees write in their brief that:
Kontrick specifically rejected a claim that an extension of time for cause pursuant to Fed.
Rule Bkrtcy. Proc. 4004 is jurisdictional. At 540 U.S. 447, the Court held, “We agree
7
that Rule 4004 is not ‘jurisdictional.’” The Court further noted that, “Only Congress may
determine a lower federal court’s subject matter jurisdiction,” that Congress authorized
bankruptcy court to adjudicate, inter alia, objections to discharge,” and that, “The
provision conferring jurisdiction over objections to discharge, however, contains no
timeliness condition.” Id, at p. 552. The Court ultimately concluded that the Bankruptcy
procedure rules for objections are not jurisdictional. “In short, the filing deadlines
prescribed in Bankruptcy Rules 4004 and 9006(b)(3) are claim-processing rules that do
not delineate what cases bankruptcy courts are competent to adjudicate.” Id., at p. 454.
[Brief at 8-9].
While this court agrees with appellees’ reading of Kontrick, it is not clear that it need
even reach the question of whether Rule 4004 is jurisdictional or not. In so stating, this court
reiterates that Judge Woodard found as follows in his ruling:
It is clear to the Court that the parties to these agreed orders intended that
the orders extend the deadline for complaints objecting either to the debtor’s general
discharge under 11 U.S.C. § 727 or to the dischargeability of the individual debts
owed to the plaintiffs under 11 U.S.C. § 523. In addition, the Court also intended
these orders to extend the deadline to file complaints objecting to the debtors’
discharge -- either the general discharge under §727 and/or the dischargeability of certain
debts under §523.
[Id.]. It thus seems clear to this court that Judge Woodard found, in reading the parties’ Agreed
Order in light of their actual intent (and his own), that there was no non-compliance with
relevant deadlines at all, so as to raise the question of whether Rule 4004 is jurisdictional or not.
Assuming that this court’s conclusion in this regard is erroneous, then it would still agree with
appellees that, in light of Kontrick, Judge Woodard had the authority to excuse any noncompliance with the relevant deadlines, since they are non-jurisdictional. Either way, this court
concludes that Judge Woodard’s ruling on the timeliness issue is due to be affirmed, and this
court will turn to the next point of error.
II. SUBSTANTIVE CHALLENGES TO JUDGE WOODARD’S DENIAL OF A
DISCHARGE TO APPELLANTS.
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Having addressed the issue of the timeliness of appellee’s objections, this court will next
address appellants’ challenge to the substance of Judge Woodard’s ruling denying discharge.
In their brief, appellants list as separate points of error the following challenges to Judge
Woodard’s rulings:
- THE BANKRUPTCY COURT ERRED IN DENYING APPELLANTS A
CHAPTER 7 DISCHARGE BASED ON THE EVIDENCE PRESENTED
- THE BANKRUPTCY COURT ERRED BY FAILING TO GIVE ANY
EVIDENTIARY WEIGHT TO THE UNCONTRADICTED TESTIMONY
AND ADMISSIONS OF THE WITNESSES FOR DEFENDANTS
- THE BANKRUPTCY COURT ERRED BY HOLDING APPELLANTS TO A
HIGHER STANDARD THAN THE REPRESENTATIVE OF APPELLEE
-THE BANKRUPTCY COURT ERRED BY HOLDING APPELLANTS
TO A DIFFERENT STANDARD THAN ZACHARY ALAN BURK
This court will consider these arguments together, since they each relate to the substantive merits
of Judge Woodard’s ruling finding appellants’ debts to be non-dischargeable.
In seeking to overturn Judge Woodard’s order denying discharge, appellants face a quite
difficult challenge. As discussed previously, a “clearly erroneous” standard of review applies to
Judge Woodard’s findings of fact, which he only made after personally viewing the testimony of
numerous witnesses. This court, by contrast, is limited to a written record on appeal, and it has
not had the same opportunity that Judge Woodard did to gauge the credibility of witnesses.
Moreover, Judge Woodard carefully set forth his reasons for denying discharge in a lengthy
order which he issued on March 22, 2018. Finally, Judge Woodard has far greater experience
than this court in determining the circumstances under which misconduct by debtors is (and is
not) sufficiently severe to deny them a discharge in bankruptcy. Under these circumstances, this
court believes that a great deal of deference to Judge Woodard’s ruling is appropriate.
Deferential standard of review aside, this court would find Judge Woodard’s written
reasons for ruling as he did to be quite clear and persuasive, even under a de novo review. In so
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stating, this court notes that Judge Woodard’s order directly or indirectly addressed most, if not
all, of the objections raised by appellants in their brief. For example, appellants question why
Judge Woodard reached a different result as to their younger brother Zachary, but he carefully
explained his reasons for doing so in his ruling. Specifically, Judge Woodard found that
“Zachary did not know or have reason to know of his mother’s scheme” and that “[b]ecause he
did not know that he was spending embezzled funds, he did not have the subjective intent to
cause Mid-South harm” as appellants did. [Slip op. at 32].
In reaching this conclusion, Judge Woodard relied heavily upon his evaluation of the
relative credibility of Zachary and appellants. As to Zachary, Judge Woodard wrote that:
Zachary was completely unaware that he was spending embezzled money. He believed
that he was spending money that his mother legitimately earned. Zachary had no reason
to believe that he was involved in a scheme, and thus had no intent to deceive. . . .
Zachary did spend freely, but he had always been able to spend whatever he wanted and
his mother would manage his account balance. Most adults would have realized that
Zachary was spending more than his mother was making, but he did not. While his
actions may have been negligent, they do not amount to the level of willful blindness
necessary to establish wrongful intent. Thus, Zachary did not have the intent required to
commit actual fraud.
[Slip op. at 20-21]. These factual findings by Judge Woodard may only be overturned if this
court were to find them “clearly erroneous,” and appellants have not even come close to
establishing that this is the case.
It appears to this court that, in their briefing, appellants are more eager to question Judge
Woodard’s leniency as to Zachary than they are to address his findings that they themselves were
aware of their mother’s scheme. At the end of the day, appellants, and not Zachary, are the ones
seeking to overturn Judge Woodard’s ruling, and he clearly found that they were aware of, and
knowingly benefitted from, Kimberly’s embezzlement from MidSouth. For example, Judge
Woodard wrote that:
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Jessica and Stephen’s debt to Mid-South is nondischargeable under the actual fraud
portion of § 523(a)(2)(A). This Court finds and concludes that the they knew of
Kimberly’s scheme. Their spending money that they knew was embezzled demonstrates
their intent to deceive. By knowingly receiving stolen funds and then spending that
money, Jessica and Stephen committed actual fraud. At a minimum, they recklessly
disregarded the truth. Jessica and Stephen knew of Kimberly’s past. They were
suspicious of Kimberly’s activities and the money that was being deposited into their
accounts, but they did not fully investigate the source of the funds. They chose not to do
so in order to ensure that they had no “knowledge” and would be able to continue
spending in excess. Therefore, even if they had no actual knowledge, Jessica and
Stephen’s willful blindness satisfies the intent element.
[Slip op. at 21-22].
In reaching these conclusions, Judge Woodard relied largely upon his finding that
appellants’ testimony was simply not credible. Specifically, Judge Woodard wrote that:
Jessica and Stephen testified that they had no idea of Kimberly’s scheme or that they
were spending embezzled funds. The Court does not find this testimony credible. Even
after withdrawing cash for Kimberly, Jessica and Stephen knew that a lot of money was
going through their accounts and that they were receiving, and ultimately spending, a
large amount of money that they did not earn. This raised their suspicions and they both
questioned the source of the money in their accounts. When rebuffed by Kimberly, they
did not force the issue because they were more concerned with spending the funds than
ensuring their legitimacy.
[Slip op. at 13].
In the court’s view, Judge Woodard’s assessment of the parties’ credibility clearly
explains why Zachary was granted a discharge which appellants were denied, and they have
given this court no basis to overturn this assessment. In attempting to do so, appellants write in
their brief that:
Mr. Smith testified that she (Kimberly Burk) opened a bank account for him when he was
17 because he could not open his own account. Mr. Smith dropped out of high school in
the 10th grade and went to work. Mr. Smith testified like Ms. Smith that he did not look
at bank statements. He also testified that he can barely read a bank statement now.
The findings of the bankruptcy court on page 34 that a reasonable person, knowing what
[appellants] did, would be acting with substantial certainty that they were spending illgotten gains are just not supported by the facts and testimony. The testimony of
appellants clearly shows that they were young and inexperienced in financial matters. Ms.
Smith testified that her mother bought her a brand new car and was paying for it. Her
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testimony also reveals that her mother was the source of her money, that she obeyed her
mother and requested permission to spend money including using a debit card. Ms. Smith
further testified that she did not ever know how much money was in her account because
her mother took care of all of that.
[Appellants’ brief at 16-17 (record citations omitted)].
This argument is typical of appellants’ briefing as a whole, which relies heavily upon
their own self-serving testimony, which Judge Woodard found to be non-credible for reasons
which he fully explained in his ruling. As Judge Woodard wrote in his ruling:
The defendants in each adversary proceeding told basically the same story: although tens
of thousands of embezzled dollars went through their accounts, none of the defendants
had any knowledge that they were spending embezzled funds because they never looked
at their bank statements, which went to Kimberly. All of the defendants claim that
Kimberly perpetrated this embezzlement without their knowledge, even though the
defendants, not Kimberly, spent the majority of the money, which greatly exceeded their
own personal incomes.
[slip op. at 3].
In the court’s view, there is a basic implausibility to appellants’ story in this case, and this
court finds it quite unsurprising that Judge Woodard did not regard it as credible. In their brief,
appellants emphasize that Kimberly admitted “to the embezzlement and testified there was no
way that her kids could have known” about it, [brief at 19] but this court regards a mother’s
attempt to protect her children as entirely unsurprising. Judge Woodard noted that Kimberly “is
a persistent criminal” who is “currently serving her third prison term for embezzlement,” [slip
op. at 4], and this is clearly not a personal history which lends itself to a finding of credibility.
In their brief, appellants also rely upon a damaging admission made by MidSouth owner
Dennis Jones, in which he conceded on cross-examination that he himself did not look at his
bank statements. [Appellants brief at 21]. While it appears that appellants did score some minor
points in getting Jones to admit that he is guilty of the same practice for which he faults them,
this testimony does not come close to establishing that Judge Woodard’s findings as to
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appellants’ state of mind was clearly erroneous. Obviously, it is appellants, and not Jones, who
are appealing Judge Woodard’s ruling, and it is their conduct which is at issue in this case. At
the end of the day, the fact that Jones may have been less than diligent in discovering the
embezzlement in this case by no means serves to exonerate appellants for what Judge Woodard
found to be their acts of knowingly expending embezzled funds. Considering the record as a
whole, this court believes that it provides very strong support for Judge Woodard’s ruling
denying appellants a discharge in bankruptcy, and appellants’ substantive objections to that
ruling will therefore be denied.1
It is therefore ordered that appellants’ objections to Judge Woodard’s ruling are
overruled, and his ruling denying appellants a discharge will be affirmed in its entirety. This
case is now closed.
SO ORDERED, this the 25th day of March, 2019.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
1
In their brief, appellants also object to the manner in which Judge Woodard organized the trial,
namely by choosing to sequester the party defendants and by failing to grant a continuance so
that Kimberly Burk could be released from prison and testify in person. Notably, however,
appellants cite no authority whatsoever in support of their arguments, and, in their reply brief,
they do not even attempt to rebut appellee’s arguments that these trial decisions were well within
Judge Woodard’s discretion. This court therefore does not regard these points of error as being
adequately briefed, and it will deny appellants’ motion to set aside Judge Woodard’s ruling on
these bases, for essentially the reasons stated in appellee’s brief.
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