USA v. Dale D. Mitchell, Jr

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3449
___________
In the Matter of: Timothy M. Kurmel; *
Mary Jo Kurmel, *
*
Debtors. *
_______________________ *
*
Judith O. Letrud; Shelly A. Koehler; *
Heartland Physical Therapy, Inc., *
*
Plaintiffs - Appellees. * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Timothy M. Kurmel; * [UNPUBLISHED]
*
Defendant - Appellant, *
*
Mary Jo Kurmel, *
*
Defendant. *
___________
Submitted: April 21, 2006
Filed: April 26, 2006
___________
Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.

-- 1 of 2 --

1 The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
-2-
Judith O. Letrud, Shelly A. Koehler, and Heartland Physical Therapy, Inc. filed
a complaint in the bankruptcy court seeking a determination that a prior state court
judgment entered in their favor against Timothy M. Kurmel was a nondischargeable
debt. Both sides moved for summary judgment, and the bankruptcy court entered
judgment in favor of the plaintiffs. Kurmel appealed to the district court 1, arguing that
the debt was dischargeable in bankruptcy. The district court affirmed the judgment,
and Kurmel again appeals.
The plaintiffs prior judgment had resulted from a complaint filed by the
plaintiffs against Kurmel and his corporation, Partners in Physical Therapy
("Partners"), alleging that Kurmel had used Partners to overcharge them for contract
labor. After a bench trial, the state court found that Kurmel had "violated the trust
placed in him by the plaintiffs", that there was "overwhelming" evidence Kurmel used
Partners as an "alter ego", and that "it is apparent that Mr. Kurmel violated his
fiduciary duties" to the plaintiffs. It entered judgment against Kurmel in the amount
of $378,386.30. Subsequent to the ruling, Kurmel filed for bankruptcy protection.
Under 11 U.S.C. § 523(a)(4), a debt is nondischargeable if it is for "fraud or
defalcation while acting in a fiduciary capacity". After de novo review, see Kasper
v. Federated Mut. Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005), we conclude that the
debt is nondischargeable under § 523(a)(4) for the reasons explained by the district
court. Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________

-- 2 of 2 --