Opinion
BANKRUPTCY CASE NO. 397-31267-HCA-7, CIVIL ACTION NO. 3:02-CV-2329-G CONSOLIDATED WITH 3:02-CV-2368-G
May 16, 2003
MEMORANDUM ORDER
This is a consolidated appeal by Gregory Wayne Ginn and Gregory Wayne Ginn, P.C. (collectively, "Ginn") from a final judgment of the bankruptcy court. Ginn also moves to withdraw the reference of this case to the bankruptcy court. After plenary appellate review of the bankruptcy court's judgment, that judgment is — for the reasons stated below — affirmed in part and remanded in part. Ginn's motion to withdraw the reference is denied.
I. Background and Procedural History A. From the Liquidation Plan to the Disgorgement Order
This appeal arises out of separate filings by Allied Physicians Group, P.A. ("Physician Group") and Allied Physicians of DFW, Inc. ("Physicians DFW") (collectively, "debtors") for protection under Chapter 11 of the Bankruptcy Code. Brief of Appellee Scott M. Seidel, Chapter 7 Trustee on Behalf of Allied Physicians Group, P.A. and Allied Physicians of DFW, Inc. (filed in case 3:02-CV-2329-G) ("Seidel Findings Brief") at 5. The primary asset of Physician Group was complete ownership of Physicians DFW. Id. Physicians DFW collected accounts receivable and paid salaries, benefits, as well as other administrative costs, for the member physicians. Id.
On January 21, 1998, the bankruptcy court approved a plan for the liquidation and distribution of all the debtors' assets to their creditors ("liquidation plan"). Designation for Appellant(s) Gregory Wayne Ginn and Gregory Wayne Ginn, P.C. ("Record") at 251-60; see also Seidel Findings Brief at 6. Ginn was appointed the plan agent. Id. at 231. As the plan agent, Ginn was responsible for implementing the directives of the liquidation plan and was "solely responsible for management and distribution of the [debtors'] Assets." Record at 237-40. On September 20, 1999, in a motion to show cause, the United States Trustee alleged that Ginn failed to comply with the terms of the liquidation plan and improperly authorized fees for himself and other professionals. Id. at 434-38. On October 1, 1999, the bankruptcy court issued an order requiring Ginn to show cause why he should not be removed as the plan agent and compelled to disgorge all payments for compensation and expenses. Id. at 527-32. Following an acrimonious show cause hearing, the bankruptcy court entered an order on November 22, 1999 ("disgorgement order") that enjoined Ginn from making any further payments as the plan agent, required Ginn to disgorge all fees previously paid, converted the case to Chapter 7, and ordered the Chapter 7 Trustee Scott Seidel ("trustee") to audit Ginn's bank accounts and records. Id. at 2878-79.
David A. Schiller ("Schiller") was also named in the bankruptcy court's show cause order. Record at 530-532.
MR. WEIL: Your Honor, may I be heard?
THE COURT: You may. But if you keep on, I'm going to have somebody take you out of here, Mr. Weil.
MR. WEIL: Is that a statement of present intention, Your Honor?
THE COURT: No. But if you don't be quiet, I'm going to have something done. You can't keep jumping up here like this. You're trying to filibuster.
Record at 2946.
On March 3, 2000, the bankruptcy court issued its Findings of Fact and Conclusions of Law ("March findings"). Record at 3137-52. In the March findings, the bankruptcy court held that Ginn owed the creditors a duty as a fiduciary under the liquidation plan. Id. at 3149-50. The bankruptcy court found that Ginn failed to hold the estate's assets in a "depository approved by the United States Trustee" and improperly lent $300,000 of estate funds "to a friend." Id. at 3144-45. The bankruptcy court further found that Ginn failed to comply with the terms of the liquidation plan regarding the payment of professional fees and that Ginn improperly appointed professional associates as members of an advisory committee created by the liquidation plan. Id. at 3146-48. The bankruptcy court noted that during the two years Ginn exercised authority over the debtors' estate, Ginn controlled over $2,600,000. Id. at 3149. From this amount, Ginn paid a single secured creditor's claim of approximately $40,000 but paid himself and other professionals fees totaling approximately $2,000,000. Id. Concluding, the bankruptcy court held that Ginn breached his fiduciary duty by "intentionally violating the [liquidation plan] through his unbridled use of trust funds, and by violation of applicable bankruptcy law and state law as to conduct of fiduciaries." Id. at 3151-52. Ginn appealed the disgorgement order and the underlying March findings. Id. at 3153-55 (amending first notice of appeal timely filed on December 9, 1999).
B. The Appeal of the March Findings to the District Court
On November 27, 2000, United States District Judge Joe Kendall heard oral arguments on the March findings. Record at 4971-5059. During that hearing, Judge Kendall expressed concern that Ginn and other appellants were "denied due process and a right to be heard." Id. at 5050. Accordingly, Judge Kendall withdrew the standing order of reference as to the "reasonableness and amount of professional fees," ordered Ginn and other appellants to file fee applications, and scheduled two hearings to review those fee applications. Id. at 5366-67. Pursuant to this order, Ginn submitted a lengthy fee application that requested $397,058.73 in fees and expenses. Record at 5060-5242.
On January 11, 2001, Judge Kendall approved a settlement agreement regarding the appellants Hiersche, Martens, Hayward, Drakeley Urbach, P.C. ("Urbach") and Anthony A. Petrocchi ("Petrocchi"). Id. at 5335-41. However, after hearing the objections of certain appellees, Judge Kendall declined to approve a settlement agreement regarding Schiller and Ginn. Id. at 5349-53. Instead, Judge Kendall referred the proposed settlement and corresponding objections back to the bankruptcy court for determination. Id. at 5353-55. While not ruling on the merits, Judge Kendall made the following observations based on the record before him:
Petrocchi is a law partner of Christopher M. Weil of Weil Petrocchi, P.C., which represents Ginn in this consolidated appeal.
I think that the only thing that — that strikes me that I would disagree with [the bankruptcy courts] handling on it from what I've seen thus far is the due process concerns with regard to the two settling defendants [Urbach and Petrocchi] today. And that's without making any ruling about the merits of anyone.
With regard to the evidence that is in front of me right now, I didn't know about a stack of billing records, but I would have some serious concerns and questions about the — the fee amounts. And Mr. Ginn is a whole 'nother story that I don't need to get into.
But I think the appropriate course of action at this time is to — and I've looked at it, and there was a hearing with regard to Ginn and Schiller. And having read what I have read, I'm going to treat this as the appeal that it was when it came to me. And with regard to Ginn and Schiller, I'm going to — to send it back to — remand it back to [the bankruptcy court]. I don't see that [the bankruptcy court] did anything wrong.
Record at 5353-54. Judge Kendall did, however, later approve a settlement agreement regarding Schiller, which consequently left Ginn as the sole remaining appellant. Id. at 5293-96.
In light of the settlement agreements reached on January 11, 2001, Judge Kendall dismissed the appeals of Urbach, Petrocchi, and Schiller as moot. Record at 5299-5300. Turning to the remaining appeal of Ginn, Judge Kendall affirmed both the disgorgement order and the March findings, reinstated the order of reference, and remanded the case back to the bankruptcy court for a determination of Ginn's fee application. Id. In dicta, Judge Kendall noted that, if necessary, the bankruptcy court was free to modify its March findings. Id. at 5300.
Although two hearings were initially scheduled, the agreements and rulings reached at the January 11, 2001 hearing, made a second hearing unnecessary. See Record at 5299-5300.
C. The Fifth Circuit, Summary Judgment, and Two Appeals
Dissatisfied with the resolution of his appeal to the district court, Ginn filed an appeal with the Fifth Circuit, which was dismissed for lack of jurisdiction on May 31, 2001. Record at 5371-72, 5330. On the same day that the Fifth Circuit dismissed Ginn's appeal, Ginn answered the trustee's objections to his fee application. Id. at 3510-17. On November 16, 2001, the trustee filed a motion for partial summary judgment asking the court to find that Ginn breached his fiduciary duty and therefore forfeited his compensation. Id. at 3566-80. The bankruptcy court granted the trustee's motion for partial summary judgment. Id. at 4816-26. In reaching its decision, the bankruptcy court relied on the March findings to conclude that Ginn, who owed the duty of a fiduciary to the estate's creditors, breached that duty through conduct "`beneath a standard of any reasonable business judgment.'" Id. at 4822 (quoting March findings). On April 11, 2002, the trustee filed a motion for summary judgment requesting the dismissal of Ginn's counterclaims, which the bankruptcy court granted on July 15, 2002. Id. at 4858-63. On September 24, 2002, the bankruptcy court dismissed all remaining claims against Ginn and entered a final judgment denying Ginn all compensation. Id. at 4862-63.
On December 10, 2001, the Supreme Court of the United States denied Ginn's petition for a writ of certiorari to the Court of Appeals for the Fifth Circuit. Record at 5331.
From the above orders, Ginn filed two separate appeals. Record at 3451, 5362. The first appeal, filed on October 4, 2002, sought review of the disgorgement order and the March findings ("findings appeal"). Id. at 3452 (assigned civil case number 3:02-CV-2329-G). The second appeal, filed on October 7, 2002, sought review of the bankruptcy court's summary judgment orders ("summary judgment appeal"). Id. at 5362-63 (assigned civil case number 3:02-CV-2368-L). However, the pleadings demonstrate that both appeals arose out of a common nucleus of facts and circumstances. Compare Brief of Appellants Gregory Wayne Ginn and Gregory Wayne Ginn, P.C. (filed in case 3:02-CV-2329-G) (hereinafter "Ginn Findings Brief") with Brief of Appellants Gregory Wayne Ginn and Gregory Wayne Ginn, P.C. (filed in case 3:02-CV-2368-L) (hereinafter "Ginn Summary Judgment Brief"). Accordingly, the findings appeal and the summary judgment appeal were consolidated for determination by this court. See Order (entered March 4, 2003).
II. Issues on Appeal
Ginn raises a myriad of issues on appeal that pose overlapping and redundant questions. See Ginn Findings Brief at 1-2; Ginn Summary Judgment Brief at 1-2. Those issues, however, can be fairly collapsed into two points of error. The first point of error seeks review of the bankruptcy court's disgorgement order and March findings while the second point of error seeks review of the bankruptcy court's summary judgment orders. See id. By classifying Ginn's issues on appeal under one of these two points of error, this court not only economizes judicial resources but also preserves the original focus of Ginn's separately filed appeals. Compare Record at 3452 (appeal from March findings) with Record at 5363 (appeal from the summary judgment orders).
III. Analysis A. Jurisdiction
This court exercises jurisdiction over this bankruptcy appeal pursuant to 28 U.S.C. § 158(a)(1) and Federal Rule of Bankruptcy Procedure 8001. 28 U.S.C. § 158(a)(1); FED. R. BANKR. P. 8001.
B. Standard of Review
In reviewing a decision of the bankruptcy court, this court functions as an appellate court and applies the standards of review generally applied in federal court appeals. Matter of Webb, 954 F.2d 1102, 1103-04 (5th Cir. 1992); Matter of Coston, 991 F.2d 257, 261 n. 3 (5th Cir. 1993) (en banc) (citing Matter of Hipp, Inc., 895 F.2d 1503, 1517 (5th Cir. 1990)). Conclusions of law are reviewed de novo. Matter of Herby's Foods, Inc., 2 F.3d 128, 131 (5th Cir. 1993). Findings of fact, on the other hand, whether based on oral or documentary evidence, are not to be set aside unless clearly erroneous, and due regard must be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses. See Bankruptcy Rule 8013; see also Herby's Foods, Inc., 2 F.3d at 130-31. A finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed." Matter of Missionary Baptist Foundation of America, 712 F.2d 206, 209 (5th Cir. 1983) (quoting United States v. United States Gypsum Company, 333 U.S. 364, 395 (1948)). Mixed questions of law and fact are reviewed de novo. Matter of National Gypsum Company, 208 F.3d 498, 504 (5th Cir.), cert. denied, 531 U.S. 871 (2000); see also Matter of Southland Corporation, 160 F.3d 1054, 1057 (5th Cir. 1998). Finally, this court reviews the bankruptcy court's grant of summary judgment de novo. See Cooper Cameron Corporation v. United States Department of Labor, Occupational Safety and Health Administration, 280 F.3d 539, 543 (5th Cir. 2002).
C. The Disgorgement Order and the March Findings
The law of the case doctrine bars an appellate court from reexamining an issue of fact or law decided in a previous appeal. Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir.), cert. denied ___ U.S. ___, 123 S.Ct. 105 (2002); see also Messinger v. Anderson, 255 U.S. 436, 444 (1912) (stating that the law of the case doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided"). The primary goal of this doctrine is to "`maintain consistency and avoid [needless] reconsideration of matters once decided during the course of a single continuing lawsuit.'" Royal Insurance Company of America v. Quinn-L Capital Corporation, 3 F.3d 877, 880 (5th Cir. 1993), cert. denied, 511 U.S. 1032 (1994) (quoting 18 Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 4478, at 788 (1981)); see also Tollett, 285 F.3d at 363-64; In re Thornburg, 277 B.R. 719, 724 (Bankr. E.D. Tex. 2002) ("The doctrine is intended to achieve uniformity of decision, judicial economy, and efficiency.") Undergirding this goal is the "salutary and sound public policy that litigation should come to an end." White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967). However, unlike the kindred doctrine of res judicata, which compels judgment, the law of the case doctrine is a rule of practice and as such guides discretion. Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983). In erecting guideposts, the Fifth Circuit declines to reexamine its previously decided issues of fact or law in a subsequent appeal unless "`(i) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work manifest injustice.'" Royal Insurance, 3 F.3d at 880 (quoting North Mississippi Communications, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir.), cert. denied, 506 U.S. 863 (1992)); see also Goodwin v. Johnson, 224 F.3d 450, 457-58 (5th Cir. 2000) (noting these three exceptions to the law of the case doctrine), cert. denied, 531 U.S. 1120 (2001); cf. Loumar, 698 F.2d at 762 ("The law of the case doctrine is not, however, a barrier to correction of judicial error."). Mindful of these exceptions, the court turns to Ginn's appeal.
Ginn asserts that the March findings and related orders should be vacated. Findings Brief at 8, 23-46. Repeating many of the same arguments originally advanced during the appeal before Judge Kendall, compare Findings Brief at 1-2 (listing the issue on appeal before this court) with Record at 4916-17 (listing issues presented in appeal before Judge Kendall), Ginn contends that the bankruptcy court denied Ginn due process and fabricated facts to "mete out [the bankruptcy court's] own brand of justice." Findings Brief at 21, 23-46. However, as discussed above, the March findings have already been appealed to — and subsequently affirmed by — Judge Kendall of this court. Consequently, because Ginn raises issues of law and fact previously decided in the appeal to Judge Kendall, Ginn is precluded by the law of the case doctrine from reasserting those issues in the instant appeal unless one of the exceptions applies. See Tollett, 285 F.3d at 363.
Applying the possible exceptions to Ginn's arguments, the court concludes that unless the March findings were "clearly erroneous and would work manifest injustice," Ginn is precluded from reasserting an appeal of the March findings and related orders. See Royal Insurance, 3 F.3d at 880. This clearly erroneous standard, however, is very exacting; "[m]ere doubts or disagreement about the wisdom of a prior decision of this or a lower court will not suffice for this exception." City Public Service Board v. General Electric Company, 935 F.2d 78, 82 (5th Cir. 1991). The clearly erroneous standard requires (in language counterbalancing Ginn's shrill and often hyperbolic prose) a decision that "strike[s] [the court] as wrong, with the force of a five-week-old, unrefrigerated dead fish." Parts and Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988), cert. denied, 493 U.S. 847 (1989), quoted in Gochicoa v. Johnson, 238 F.3d 278, 292 (5th Cir. 2000).
Ginn cannot satisfy this standard. In the previous appeal before Judge Kendall, the legal and factual issues surrounding the March findings were fully briefed and later extensively discussed at two hearings. Record at 4909-65, 4971-5059, 5332-57, 5299-5300; see also discussion supra Part I.B-C. The court also notes that Ginn has not significantly augmented or altered his arguments supporting reversal of the March findings since filing his appeal before Judge Kendall. Compare Findings Brief at 1-2, 23-46 with Record at 4916-17, 4926-64. Moreover, Ginn fails to point to any exceptional circumstances demonstrating that Judge Kendall's decision was clearly erroneous so as to warrant a departure from the law of the case doctrine. Accordingly, as that doctrine commands, the court adheres to Judge Kendall's prior order affirming the bankruptcy court's March findings.
D. The Summary Judgment Orders
The bankruptcy court's summary judgment rulings were appropriate if the pleadings and evidence in the record show that no genuine issue of material fact exists and that the trustee is entitled to judgment as a matter of law. Matter of Criswell, 102 F.3d 1411, 1414 (5th Cir. 1997). However, this court may look beyond the basis for the bankruptcy court's decision and affirm summary judgment on any legal ground raised below by the movant. See Matter of Williams, 298 F.3d 458, 462 n. 5 (5th Cir. 2002) (gathering cases). Here, the bankruptcy court concluded that the summary judgment evidence demonstrated that a fiduciary duty existed and that Ginn breached that duty, thereby entitling the trustee to summary judgment as a matter of law. Record at 4824-26.
1. The Summary Judgment Evidence
The liquidation plan created a mechanism for the distribution of the debtors' estate for the sole benefit of the creditors. Record at 3596-3622 (summary judgment record). Ginn, as the plan agent, controlled this mechanism and was "solely responsible for management and distribution of the [debtors'] Assets." Id. at 3610 (summary judgment record). In addition to this general authority over the debtors' estate, Ginn exercised sole discretion over matters pertaining to distributions, litigation, the sale of assets, and the employment of professionals. Id. at 3609-12 (summary judgment record). Indeed, Ginn was relieved under article 7.13 of the liquidation plan, except in matters regarding compensation of professionals, from consulting with the bankruptcy court "with respect to any actions by the Plan Agent." Id. at 3611 (summary judgment record). These facts are undisputed. Moreover, in a letter to the creditors supporting adoption of the liquidation plan, Ginn represented that the purpose of the liquidation plan was to serve the creditors' interest. Id. at 4606 (summary judgment record). In light of these facts, the bankruptcy court concluded that Ginn owed the creditors "a duty as a fiduciary." Id. at 4822.
During the show cause hearing held by the bankruptcy court on November 8, 1999, Ginn admitted in open court that he lent $300,000 of estate funds to an individual on a handshake. Record at 3685-89 (summary judgment record). Moreover, Ginn acknowledged that this decision stood in opposition to the terms of the liquidation plan. Id. at 3687-88 (summary judgment record). Although Ginn offered the self-serving justification that he thought his charge under the liquidation plan was "to maximize the yield of the [estate] assets," id. at 3688, a careful review of the liquidation plan reveals no rational basis for that belief. See id. at 3596-3622 (summary judgment record). Indeed, the liquidation plan provides that Ginn, as the plan agent, "shall conserve, protect, collect and liquidate or otherwise convert into cash all assets" comprising the debtors' estate. Id. at 3610 (summary judgment record). Reflecting on these facts, the bankruptcy court concluded that Ginn's statements in open court amounted to an admission that he knowingly violated the terms of the liquidation plan and breached the fiduciary duty he owed the creditors. Id. at 4824 (summary judgment record). Having found a breach of fiduciary duty, the bankruptcy court concluded that Ginn was required to forfeit all compensation as a matter of law. Id. at 4825-26.
2. A De Novo Review
Ginn now argues that the bankruptcy court erred in granting summary judgment because the trustee's motion for summary judgment "was based [on a] number of statements which were unsupported by the summary judgment record and were demonstrably and materially inaccurate." Summary Judgment Brief at 43. The court disagrees. Ginn fails to designate a single "specific fact showing that a genuine issue exists." Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991); see also FED. R. CIV. P. 56(c). Instead, Ginn asserts that because the liquidation plan does not contain the words "fiduciary" or "trust," he cannot be characterized as a fiduciary. Summary Judgment Brief at 35. In addition to this elevation of form over substance, Ginn makes irrelevant arguments regarding the individual to whom he lent $300,000 of estate funds and whether the withdrawal of those funds was recorded by the bank as cash or a certificate of deposit. Id. at 44-45. Ginn must point to specific summary judgment evidence in the record and articulate how that evidence demonstrates the existence of a genuine issue of fact. See Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998). He fails to do so and "`Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" Id. (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992)). Therefore, given the level of responsibility and control exercised by Ginn over the assets of the debtors' estate and his decision to lend estate funds in violation of the express terms of the liquidation plan, the bankruptcy court properly concluded that Ginn owed a fiduciary duty which he later breached. See Matter of Southmark Corporation, 163 F.3d 925, 931 (5th Cir.), cert. denied, 527 U.S. 1004 (1999) ("A sine qua non in restructuring the debtor-creditor relationship is the court's ability to police the fiduciaries, whether trustees or debtors-in-possession and other court-appointed professionals, who are responsible for managing the debtor's estates in the best interest of creditors."); Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 199 (Tex. 2002) (noting the difficulty in precisely defining the term fiduciary but that "`[g]enerally speaking, it applies to any person who occupies a position of peculiar confidence towards another.'") (quoting Kinzbach Tool Company v. Corbett-Wallace Corporation, 160 S.W.2d 509, 512 (Tex. 1942)).
Ginn argues that once the "tainted" summary judgment evidence is "discarded," the remaining summary judgment evidence is sufficient to grant his breach of contract, quantum meruit, unjust enrichment, and indemnification claims as a matter of law. Summary Judgment Brief at 47-48. The bankruptcy court concluded that these claims were subsumed by the order granting partial summary judgment. Record at 4858-61. In the one-and-a-half pages dedicated to supporting these four claims, Ginn fails to articulate how the presumptively "untainted" summary judgment evidence supports his entitlement to judgment as a matter of law. Summary Judgment Brief at 47-48; see also Ragas, 136 F.3d at 458. Therefore, he has failed to carry his burden as appellant to demonstrate how the bankruptcy court erred in denying these claims.
Once a breach of fiduciary duty is found, Texas law does not require proof of injury or causation where the remedy sought is partial or complete forfeiture. Burrow v. Arce, 997 S.W.2d 229, 240 (Tex. 1999) ("An agent's breach of fiduciary duty should be deterred even when the principal is not damaged."); see also Matter of Segerstrom, 247 F.3d 218, 226 n. 5 (5th Cir. 2001). However, an award of actual damages, unlike forfeiture, requires a showing of injury and causation. Longaker v. Evans, 32 S.W.3d 725, 733 n. 2 (Tex.App.-San Antonio 2000, no writ); see also Segerstrom, 247 F.3d at 226 n. 5. Although the bankruptcy court found that Ginn breached his fiduciary duty and ordered the "total forfeiture of Ginn's compensation," the actual amount of the forfeiture is unclear. Record at 4826. Ginn initially disgorged $366,590.79, but later requested $397,058.73 in his fee application. Compare Record at 2908 with id. at 5061. The trustee, in its motion for partial summary judgment, sought the forfeiture of $397,058.73. Id. at 3578-79. Therefore, because the bankruptcy court did not address injury or causation, the court must remand this case to the bankruptcy court for the limited purpose of determining the actual amount subject to forfeiture and whether any portion of that amount constitutes damages that requires a showing of injury and causation.
IV. Conclusion
For the reasons discussed above, the judgment of the bankruptcy court is AFFIRMED in part and REMANDED in part. On remand, the bankruptcy court shall determine the actual dollar amount to be forfeited by Ginn, and if this amount includes actual damages, the bankruptcy court must make a sufficient finding of injury and causation to support any award of actual damages. In all other respects, the bankruptcy court's judgment is affirmed.
Ginn's motion to withdraw the reference of this case to the bankruptcy court is, to the extent not rendered moot by the disposition ordered above, DENIED.
SO ORDERED.
.