Hutchison v. Parent et al
Filing
125
Memorandum Opinion and Order: the cross motions for summary judgment are denied. re 95 92 . Judge Jeffrey J. Helmick on 3/31/2014. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Scott Hutchison,
Case No. 3:12-cv-320
Plaintiff
v.
MEMORANDUM OPINION
& ORDER
John R. Parent,
Defendant
BACKGROUND
In July 2004, Scott Hutchison and John R. Parent went into business together and formed
JPSH, LLC, an Indiana limited liability company. The purpose of JPSH was to “purchase[ ], rebuild
[ ] and build[ ] apartment buildings throughout the United States.” (Doc. No. 1 at ¶ 6). Hutchison
provided the “labor and knowledge in performing the construction necessary to build/rebuild the
projects” while Parent’s “contribution was to finance those projects.” (Id. at ¶ 8). Hutchison and
Parent were the sole members of JPSH, with Parent having a 51 percent interest (Doc. No. 92-19 at
p. 22) and being the operating member of the entity.
Among his other business ventures, Parent was also a shareholder and officer of J-J Parent
Corporation.
JPSH sought properties offered for sale at auctions by the Department of Housing and
Urban Development. Among the properties purchased by JPSH between 2004 and 2005, one was
located in Salyersville, Kentucky (“Magoffin Manner”) and one in Eunice, Louisiana (“Beulah
Gardens”). There is no dispute that following the purchase of these properties by JPSH,
renovations ensued to the properties along with managing the current tenants.
Parent advanced funds to JPSH for renovations from 2004 to 2006. (Doc. No. 1 at ¶ 10).
Hutchison alleges those advances, initially designated as capital contributions, were “systematically
changed . . . from capital contributions to loans without approval of the other member of JPSH.”
(Id.)
Somewhere in this time frame, Parent also became aware of previous debts incurred by
Hutchison. (Doc. No. 84-1, p. 197-198). As a result, Parent advanced Hutchison $100,000 in return
for a promissory note dated February 2007. (Doc. No. 92-16, pp. 5 and 16). Additional monies
were advanced, according to Parent’s amended counterclaim. (Doc. No. 92-16, ¶¶ 48-50).
Parent’s concerns regarding Hutchison’s creditors and the protection of his (Parent’s)
investment led him to execute the following notes and mortgages, on behalf of JPSH, on these
properties:
Collateral Mortgage of Beulah Gardens for $1.5 million in favor of J-J Parent
Co. signed on July 18, 2008 (Doc. No. 92-2);
Collateral Promissory Note by JPSH to J-J Parent Co. for $1.5 million signed
on July 18, 2008 (Doc. No. 92-3);
Mortgage of Magoffin Manor for $1.5 million to J-J Parent and signed on
July 18, 2008 (Doc. No. 92-4);
Mortgage Note by JPSH to J-J Parent Co. for $1.5 million and signed on July
18, 2008 (Doc. No. 92-5); and
Hand Note by JPSH to J-J Parent Co. for $1.495 million signed on July 18,
2008. (Doc. No. 92-6).
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Hutchison also signed the notes on behalf of JPSH.
It is undisputed that JPSH did not make any of the monthly payments as required in the
mortgages and notes. JPSH’s federal tax returns for 2008-2009 show a net operating loss for each of
these years. (Doc. Nos. 92-7 to 92-12). After the execution of these documents, no payments were
remitted by JPSH on their obligations. Subsequently, J-J Parent Co. initiated foreclosure
proceedings against Magoffin Manor in Kentucky and against Beulah Gardens in Louisiana.
Beulah Gardens was sold at sheriff’s sale on March 20, 2009 to J-J Parent Co. for $897.13.
(Doc. No. 92-14). On July 31, 2009, Magoffin Manor was sold at auction to J-J Parent Co. for
$533.400.00. (Doc. No. 92-13). Following the acquisition of these properties, J-J Parent organized
two wholly-owned limited liability companies, Beulah Gardens, LLC and Magoffin Manor, LLC, to
hold title to these properties.
On September 7, 2009, Hutchison filed suit in the Lucas County Court of Common Pleas
against Parent and J-J Parent Corp. The case was placed on the commercial docket and assigned to
Judge Gene Zmuda. Hutchison v. Parent et al., Case No. CI 2009-6662 (“Hutchison I”). Hutchison
alleged a willful failure to make payments on the notes which resulted in the foreclosures. Parent
counterclaimed on personal loans by Hutchison to JPSH as well as misappropriation of funds for a
total of $177,000.00. (Doc. No. 92-16, p.6).
In November 2010, Hutchison filed a second amended complaint against Parent and J-J
Parent. (Doc. No. 92-15). On February 8, 2012, Hutchison filed a notice of voluntary dismissal of
his amended counterclaim. (Doc. No. 92-17). The case was scheduled for trial in April 2012. On
April 18, 2012, the parties entered into a consent judgment, which Judge Zmuda approved,
regarding Parent’s counterclaims against Hutchison in the amount of $153,000.00. (Doc. No. 9218).
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One day after the notice of his voluntary dismissal in state court, Hutchison filed the instant
action alleging the same claims against Parent and additional claims against Parent’s accountant
Thomas Danford. On January 15, 2014, I dismissed Danford from this litigation by granting his
motion to dismiss for lack of personal jurisdiction. (Doc. Nos. 118 and 119).
This matter is now before me on cross-motions for summary judgment by the remaining
parties. Also before me are the relevant responses, replies and surreplies. The Court has jurisdiction
over this action pursuant to 28 U.S.C. § 1332. For the reasons stated below, the motions for
summary judgment are denied.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). The moving party bears the initial responsibility of “informing the district court of the basis
for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The movant may meet this burden by demonstrating the absence of evidence
supporting one or more essential elements of the non-movant’s claim. Id. at 323-25. Once the
movant meets this burden, the opposing party “must set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV.
P. 56(e)).
Once the burden of production has so shifted, the party opposing summary judgment
cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient “simply
[to] show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) “requires the nonmoving party to go
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beyond the pleadings” and present some type of evidentiary material in support of its position.
Celotex, 477 U.S. at 324; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000).
Summary judgment must be entered “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex, 477 U.S. at 322.
“In considering a motion for summary judgment, the Court must view the facts and draw all
reasonable inferences therefrom in a light most favorable to the nonmoving party.” Williams v.
Belknap, 154 F. Supp. 2d 1069, 1071 (E.D. Mich. 2001) (citing 60 Ivy Street Corp. v. Alexander, 822
F.2d 1432, 1435 (6th Cir. 1987)). However, “‘at the summary judgment stage the judge’s function is
not himself to weigh the evidence and determine the truth of the matter,’” Wiley v. U.S., 20 F.3d
222, 227 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 249); therefore, “[t]he Court is not required
or permitted . . . to judge the evidence or make findings of fact.” Williams, 154 F. Supp. 2d at 1071.
The purpose of summary judgment “is not to resolve factual issues, but to determine if there are
genuine issues of fact to be tried.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F.
Supp. 2d 928, 930 (S.D. Ohio 1999). Ultimately, this Court must determine “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52; see also Atchley v. RK Co.,
224 F.3d 537, 539 (6th Cir. 2000).
CROSS-MOTIONS FOR SUMMARY JUDGMENT
Hutchison moves for summary judgment on his claims of breach of fiduciary duties and
breach of contract. He contends there is no genuine issue of material fact that Parent violated
fiduciary duties and the operating agreement, thereby entitling him to summary judgment. Parent
advances three1 arguments in support of his motion for summary judgment. He contends that
1 Parent also moved for dismissal of the seventh cause action for noncompliance with Fed. R. Civ. P. 9(b). (Doc. No. 921 at pp. 17-18). The seventh cause of action, conspiracy, was alleged as against both Parent and Thomas Danford. (Doc.
No. 1). Judge Zouhary dismissed this claim on May 30, 2012, without prejudice. (Doc. No. 18). The docket does not
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Hutchison’s voluntary dismissal of his state court claims bars his claims from consideration under
the doctrine of res judicata. Second, any actions by Parent which allegedly breach the Operating
Agreement were subsequently ratified by JPSH. Third, the foreclosures on JPSH were not in breach
of Parent’s fiduciary duties.
1. Effect of State Court Voluntary Dismissal
Parent argues that under Ohio Civil Rule 13(A), Hutchison’s voluntary dismissal in state court
was ineffective insofar as it renders Hutchison’s claims, refiled in this instant litigation, subject to the
doctrine of res judicata. This is because the counterclaims filed by Parent in the state court litigation
were compulsory counterclaims. Parent charges the Plaintiff’s Ohio Civil Rule 41(A) dismissal as
ineffective in dismissing those claims without prejudice.
A voluntary dismissal without prejudice is addressed by Ohio Civil Rule 41(A) as follows:
(A)
(1)
Voluntary dismissal; effect thereof.
By plaintiff; by stipulation. Subject to the provisions of Civ. R. 23(E), Civ. R.
23.1, and Civ. R. 66, a plaintiff, without order of court, may dismiss all claims asserted by
that plaintiff against a defendant by doing either of the following:
(a)
Filing a notice of dismissal at any time before commencement of trial unless a
counterclaim which cannot remain pending for independent adjudication by the court
has been served by that defendant; . . .
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without
prejudice, except that a notice of dismissal operates as an adjudication upon the merits of
any claim that the plaintiff has once dismissed in any court.
A compulsory counterclaim is addressed in Ohio Civil Rule 13(A) as follows:
(A)
Compulsory counterclaims. A pleading shall state as a counterclaim any
claim which at the time of serving the pleading the pleader has against any
opposing party, if it arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction. But the
reflect an amended complaint which renewed this cause of action. Additionally, Danford was dismissed from this case
in January 2014. (Doc. No. 119).
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pleader need not state the claim if (1) at the time the action was commenced the
claim was the subject of another pending action, or (2) the opposing party
brought suit upon his claim by attachment or other process by which the court
did not acquire jurisdiction to render a personal judgment on that claim, and the
pleader is not stating any counterclaim under this Rule 13.
Hutchison’s Second Amended Complaint was based upon conduct involving the notes and
mortgages regarding the Kentucky property (Magoffin Manor) and the Louisiana property (Beulah
Gardens). That conduct alleged misrepresentations made to Hutchison which caused him to sign
multiple notes and mortgages as a member of JPSH. Additionally, Hutchison charged that Parent,
on behalf of JPSH failed to make mortgage payments, causing default on the notes and set up the
subsequent foreclosure, which benefited J-J Parent Corporation.
Parent asserted the following three counterclaims in the state court litigation:
FIRST CLAIM
46.
John R. Parent, II advanced money to Scott Hutchison upon his
promise to repay, and subsequently received from Scott Hutchison his Balloon
Payment Promissory Note, dated February 13, 2007, in the face amount of
$100,000.00, a duplicate of which is attached hereto and incorporated herein as
Exhibit A.
47.
Scott Hutchison owes John R. Parent, II the amount of the Note,
together with Interest thereon as set forth in the instrument.
SECOND CLAIM
48.
On or about July 24, 2006, John R. Parent, II advanced the sum of
$27,000.00 to Scott Hutchison upon his promise to repay it.
49.
Scott Hutchison has failed to repay the sum advanced.
50.
Scott Hutchison owes John R. Parent, II the sum of $27,000.00,
together with interest at the statutory rate.
THIRD CLAIM
51.
Scott Hutchison has misappropriated funds from JPSH, LLC by
purportedly borrowing such from JPSH, LLC, but without permission to do so, in an
amount not yet fully determined but reasonably believed to be in excess of
$50,000.00.
52.
Scott Hutchison owes John R. Parent, II the sum of $50,000.00,
together with interest at the statutory rate.
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(Doc. No. 92-16 at p. 6).
A plaintiff has an undisputed right to dismiss an action once, without prejudice, and before
the commencement of trial unless it involves a counterclaim which cannot be adjudicated
independently. Holly v. Osleisek, 40 Ohio App.3d 90, 91 (1988), citing Ohio Civil Rule 41(A)(1)(a).
“The party asserting preclusion bears the burden of demonstrating that the claim or issue is barred.”
Leatherworks Partnership v. Berk Realty, 247 Fed. App’x. 676, 679 (6th Cir. 2007), citing Goodson v.
McDonough Power Equip., Inc., 2 Ohio St.3d 193 (1983).
The test for determining a compulsory counterclaim under Ohio Civil Rule 13(A) was
enunciated by the Supreme Court of Ohio as follows:
(1) Does the claim exist at the time of serving the pleading [ ]; and (2) does the
claim arise out of the transaction or occurrence that is the subject matter of the
opposing claim.
Geauga Truck & Implement Co. v. Juskiewicz, 9 Ohio St.3d 12, 14 (1984). Another consideration is
whether the counterclaim could have been brought as a separate action and was capable of being
adjudicated independently per Ohio Civil Rule 41(A)(1)(a). See e.g., Wells Fargo Bank, Nat’l Assn. v.
Wick, 2013 WL 6571830 *3 (Ohio App.8 Dist. 2013); Howard v. Sunstar Acceptance Corp., 2001 WL
481936 (Ohio App. 10 Dist. 2001).
While the loans to Hutchison were made during the life of JPSH, LLC, I cannot find they
arise out of the same transaction or occurrence to characterize them as compulsory counterclaims.
Parent’s claim as to misappropriation of funds is related insofar as it is alleged to have occurred
during Hutchison’s affiliation with JPSH, but otherwise has no affiliation to the notes and mortgages
which form the basis of Plaintiff’s claims sufficient to render them compulsory. Similarly, Parent’s
allegation on the misappropriation of funds, while occurring during the life of JPSH, is a claim
which could stand on its own, independent of Hutchison’s claims. As Parent’s counterclaims are
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capable of independent adjudication, they are not, in my opinion, compulsory counterclaims.
Therefore, Defendant’s argument on this issue is without merit.
1. Fiduciary Duties and Indiana Limited Liability Companies
As both parties move for summary judgment on the issue of fiduciary duties and the operating
agreement, those arguments are considered in tandem.
The history and status of limited liability law was best summarized by an Indiana appellate court
as follows:
Limited liability companies, such as the ones at issue here, were not available
in Indiana until the enactment of Indiana’s Business Flexibility Act in 1993.
Ind.Code § 23-18-1 et seq. The popularity of LLCs has forced courts nationwide to
address traditional business issues in terms of this statutory creation. In Indiana,
there is little case law regarding LLCs and hardly any case law concerning fiduciary
duties in the LLC context. In light of this limitation, we decided in Purcell v. Southern
Hills Investments, LLC, 847 N.E.2d 991, 997 (Ind. Ct. App. 2006), that “common law
fiduciary duties, similar to the ones imposed on partnerships and closely-held
corporations, are applicable to Indiana LLCs.”
Shareholders in a closely-held corporation, . . . , owe each other fiduciary
duties. G & N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 240 (Ind. 2001). In such a
corporation, “[t]he fiduciary must deal fairly, honestly, and openly with his
corporation and fellow stockholders. He must not be distracted from the
performance of his official duties by personal interests.” Id.
Abdalla v. Qadorh-Zidan, 913 N.E.2d 280, 285 (Ind.Ct.App.2009).
In the context of a breach of fiduciary duty, an Indiana federal court expanded on the
statutory framework in the following manner:
The Indiana Business Flexibility Act includes several requirements of a
limited liability company and its members to provide information about the company
to other members consistent with Indiana common law. Members of a limited
liability company owe fiduciary duties to one another similar to those of shareholders
in a closely-held corporation. . . Specifically, members of a limited liability company
“shall give to the extent the circumstances allow just, reasonable, true and full
information on all things affecting the members to any member. . . upon reasonable
demand for any purpose reasonably related to a member’s interest as a member of
the limited liability company.” Ind. Code § 23-18-4-8(c).
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Grant v. Van Natta, 2013 WL 466212 *9 (S.D. Ind. 2013).
An Indiana LLC operating agreement may “eliminate or limit the personal liability of a
member or manager for monetary damages for breach of a duty . . . .” Ind. Code § 23-18-4-42. In
the absence of a stance on the duties of LLC members or managers, the Indiana courts apply
traditional common law principles regarding fiduciary duties. Credentials Plus, LLC v. Calderone, 230
F.Supp.2d 890, 899 (N.D. In. 2002).
The Operating Agreement for JPSH addresses the management of the LLC in the following
pertinent sections:
4.1.
Management Authority of Members. The business, operations and affairs of
the Company shall be managed by all of the Members, who shall have the powers,
duties and authority described in this Section and under the Act and the Articles.
The Members shall have the power on behalf of the Company to: enter into
contracts; acquire property and to lease all or any portion thereof; sell, assign, or
transfer for value all or any portion of the property of the Company; borrow money
and, as security therefore, assign, mortgage, encumber, hypothecate or pledge all or
any part of the property of the Company; obtain replacements for any such mortgage
or mortgages; prepay, in whole or in part, refinance, recast, increase, modify or
extend any mortgages; lend money or guarantee loans to affiliates; enter into
contracts to provide construction, renovation, repair, organizational, managerial or
other services; exercise and fulfill the rights, powers and duties of the Company,
acting in its capacity as general or limited partner of any partnership in which it is a
partner; to employ from time to time persons, firms or corporation in the operation
of the company business, including, without limitation, accountants and attorneys,
on such terms and for such reasonable compensation as the Members shall
determine, do all lawful things under the Act; and, to execute, acknowledge and
deliver any and all instruments to effectuate the foregoing. By way of extension of
the foregoing and not in limitation thereof, the Members shall, except as otherwise
provided in this Agreement, have all the management rights and powers granted to
members by the Act and the Articles. No assignee or transferee for value of all or
any portion of the property of the Company shall be required to investigate the
Members’ authority to sell, assign, transfer for value, if executed by the Members,
shall bind the Company.
In April 2013, the statute was amended as follows: (a) A written operating agreement may do one (1) or more of the
following:
(1) modify, increase, decrease, limit, or eliminate the duties (including fiduciary duties) or the liability of a
member of manager for breach of the duties set forth in section 2(a) of this chapter.
2
Ind. Code § 23-18-4-4(a)(1). (Eff. July 1, 2013).
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4.2.
Operating Member. Notwithstanding the terms of Section 4.1 above, John
Rex Parent, II, who shall have the title of “Operating Member”, shall oversee and
direct the day-to-day operations of the Company in accordance with the policies and
decisions adopted by the Members. Without limiting the foregoing, the Operating
Member shall have the authority to employ persons, make contracts, and sell or
encumber property of the Company so long as each such activity will not result in
the expenditure of funds of the Company of more than $100,000.00 and so long as a
report of such activity is delivered to the Members at the beginning of the month
after which it occurs.
Further, the Operating Member shall have the power to execute or file any
document required or permitted to be executed or filed on behalf of a limited liability
company under the Act. The Operating Member shall only be entitled to
compensation from the Company for his duties as Operating Member as it
specifically approved by a Majority in Interest of the Members.
4.3.
Conflicts of Interest. The validity of any transaction, agreement or payment
involving the Company and Member or any affiliate thereof otherwise permitted by
the terms of this Agreement shall not be affected by reason of the relationship
between the Company and the Member or such affiliate, if all of the non-interested
Members consent in writing thereto.
4.4.
Exculpation. Except as otherwise expressly provided by the Act or herein,
no Member shall be liable, responsible or accountable in damages or otherwise to the
Company, or to any Member for any acts or omissions performed or omitted in
good faith and in a manner reasonably believed by the Member to be within the
scope of the authority conferred upon him by this Agreement and in the best
interests of the Company. Specifically, and without limiting the scope of the
foregoing, the Operating member shall not be liable, responsible or accountable in
damages or otherwise to the Company or any other Member for any action taken by
the Operating member in good faith, including, but not limited to, any actions taken
by the Operating member as “tax matters partner” in connection with the
examination by the Internal Revenue service of the Company’s federal or state
income tax returns or the determination, protest, adjustment or adjudication of any
federal or state income tax liability of any Member resulting from the Company’s
activities.
4.5
Indemnification. The Company shall indemnify and hold harmless each
Member from and against any loss, expense, damage or injury suffered or sustained
by him by reason of any acts or omissions or alleged acts or omissions arising out of
his activities on behalf of the Company or in furtherance of the interests of the
Company, including, but not limited to , any judgment, award, settlement, reasonable
attorney’s fees and other costs or expenses incurred in connection with the defense
of any actual or threatened action, proceeding or claim, provided that the act or
omissions, or alleged acts or omissions, upon which such actual or threatened action,
proceeding or claim is based were preformed or omitted in good faith and in a
manger reasonably believed by the Member to be within the scope or the authority
conferred upon the Member by this Agreement and in the best interests of the
Company. Such indemnification shall be made only to the extent of assets of the
Company.
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4.6.
Right of Members to Pursue Other Ventures. The Members shall devote to
the conduct of the Company business so much of their time as may be reasonably
necessary for the efficient operation of the Company business. The Members may
engage in and/or possess an interest in other business ventures of every nature and
description, independently or with others, including, but not limited to, the
ownership, financing, leasing, operation, management, syndication, brokerage, and
development of reason and/or personal property wherever located, and neither the
Company nor the Members shall have any rights in and to said independent ventures
or the income or profits derived therefrom.
(Doc. No. 92-19 at pp. 6-8).
With those guiding principles in place, I now turn to the parties’ arguments
supporting their respective positions.
Per the terms of the Operating Agreement Parent contends he had authority to
authorize the execution of notes and mortgages, to enforce his affiliate’s rights on the notes
and mortgages, and no duty to contribute additional capital to JPSH to prevent a default on
the notes and mortgages. Upon these arguments, Parent seeks summary judgment on all
claims.
Hutchison seeks summary judgment on two of the five remaining claims, breach of
fiduciary duty and breach of the operating agreement. In support of his motion, Hutchison
contends Parent failed meeting his fiduciary duties by “fraudulently obtaining a note and
mortgage signed by the Plaintiff, failing to pay the mortgage payment due and owing by
JPSH, and then not notifying Plaintiff of the problems, failure to make payment on the
notes, and then buying the properties at the foreclosure sales”, without advising Plaintiff in
advance of these events.
Having carefully reviewed the briefs and admissible evidence in support, I find there
to be genuine issues of material fact when considering Indiana common law fiduciary duties,
thereby precluding summary judgment for either side.
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The parties are unable to agree on the duties in question. For example, Parent states
he had no affirmative duty to continue his funding of JPSH, LLC, nor did he violate any
duties in foreclosing on the relevant mortgages per the terms of the Operating Agreement.
However, Hutchison’s quarrel with Parent is how he went about achieving these goals
without notifying the other member of JPSH, LLC:
The Defendant traveled to Ohio to have a note signed by the Plaintiff in the amount
of $1.5 million. After obtaining the note, the Defendant, as operating member and
sole custodian of the checking account records, made no payments on the note.
Defendant then hired an attorney to represent his other companies in a foreclosure
action to collect on the note, and never responded to offers to purchase the real
property that were in amounts in excess of the note amount. The Defendant never
hired an attorney to represent JPSH in the foreclosure action even though he owned
51% of the company and was the operating member. Defendant never notified
Plaintiff of the default in payment or the foreclosure action and failed to take into
consideration the affect [sic] it would have on Plaintiff.
(Doc. No. 95, p. 6).
The diametrically opposing positions present questions of fact regarding the
common law fiduciary duties of dealing fairly, honestly, and openly with other members.
Credentials Plus, LLC, 230 F.Supp.2d at 898. Therefore, summary judgment as a matter of
law cannot be granted with these factual disputes unresolved.
CONCLUSION
Accordingly, the cross-motions for summary judgment (Doc. Nos. 92 and 95) are
denied.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
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