MEMORANDUM OPINION

ERIK P. KIMBALL, Bankruptcy Judge.

On October 27, 2017, October 31, 2017, and November 28, 2017, the Court held a trial in this adversary proceeding and a concurrent evidentiary hearing1 on objections to claim number 4-3 [ECF Nos. 146, 408 and 626].

After trial, the Court directed the parties to file post-trial briefs in the form of proposed findings of fact with citations to evidence admitted at trial. ECF Nos. 872 and 264 (adversary). Both parties filed post-trial briefs. ECF Nos. 304 (adversary) and 309 (adversary). The Court has carefully reviewed all of the evidence cited by the parties in their post-trial briefs and, with limited exceptions, relies exclusively on such evidence in this memorandum opinion.2

The Court has jurisdiction over this adversary proceeding and the objections to claim under 28 U.S.C. § 1334. All of the matters addressed in this memorandum opinion are core matters subject to entry of final orders and judgment by the bankruptcy court under 28 U.S.C. § 157 and the standing order of reference in this district.

SUMMARY OF RULING

Frederick J. Keitel, III3 is the debtor in this case and the defendant in this adversary proceeding. The plaintiff, FJK Tee Jay, Ltd. ("Ltd."), is a Florida limited partnership. Ltd. was formed to own and manage a commercial property which has a single tenant. For a time, Mr. Keitel was the president of the general partner of Ltd. Mr. Keitel was indirectly the owner of 50% of the equity interest in Ltd. Mr. Keitel was in dispute with his partners, and also in dispute with entities affiliated with his partners. Mr. Keitel was involved in litigation with these parties in connection with Ltd. and in connection with several unrelated transactions. Mr. Keitel opened a new bank account for Ltd., caused Ltd.'s sole tenant to make rent payments to that account, and used the account to pay substantial sums to himself and to others for Mr. Keitel's personal benefit. Mr. Keitel concealed from his partners the new bank account and the payments he made from that account. Mr. Keitel stymied his partners' efforts to obtain access to the rents and their efforts to obtain information about how he was spending those rents. Mr. Keitel did all this while Ltd. was subject to a sequestration order requiring Ltd. to pay all net rents to its foreclosing mortgage lender. In the end, Mr. Keitel used monies owned by Ltd. to fund Mr. Keitel's various disputes with his partners, those aligned with his partners, and other adversaries. Mr. Keitel knowingly took Ltd.'s funds with the intention of permanently depriving Ltd. of those funds and used the funds for his own benefit. Mr. Keitel's actions constitute civil theft under Florida law. Because Ltd. proved its case by clear and convincing evidence, Ltd. is entitled to treble damages for the sums Mr. Keitel took, plus reasonable attorneys' fees and costs. Mr. Keitel is a knowledgeable real estate investor and a lawyer with substantial litigation experience. Mr. Keitel did all of these things knowing that his actions would result in harm to Ltd. He acted with ill will. The entire sum owing to Ltd., trebled under Florida law, plus reasonable attorneys' fees and costs to be determined, will be allowed as an unsecured claim in this bankruptcy case and will be excepted from Mr. Keitel's discharge under both 11 U.S.C. § 523(a)(4) and 11 U.S.C. § 523(a)(6).

MATTERS BEFORE THE COURT

In its Amended Complaint to Determine Debt and Determine Dischargeability of Debt Under 11 U.S.C. § 523(a) [ECF No. 158 (adversary)] (the "Amended Complaint"), Ltd. seeks relief in three counts. These counts are labeled Count I, Count II and Count IV. Count III was deleted when the complaint was amended.

In Count I, Ltd. seeks liquidation of a claim against Mr. Keitel. In short, Ltd. alleges that Mr. Keitel, both during and after he was acting as president of the corporate general partner of Ltd., took funds owned by Ltd. intending to deprive Ltd. of the funds and used them for Mr. Keitel's personal benefit. Ltd. seeks treble damages under Fla. Stat. § 772.11(1), which provides for civil damages in cases where it is shown by clear and convincing evidence that the defendant committed theft. Ltd. also seeks attorneys' fees and costs under the provisions of certain corporate documents and under Fla. Stat. §§ 620.2005 and 772.11(1). According to Ltd.'s post-trial brief, the total amount of Ltd.'s claim is $1,726,315.38, three times the aggregate amount Ltd. alleges was taken by Mr. Keitel. This sum is included in proof of claim number 4-3,4 which is the subject of Mr. Keitel's objections to claim also heard at trial.5 In Count II, Ltd. seeks to have its claim excepted from discharge under section6 523(a)(4), arguing that the claim results from Mr. Keitel's embezzlement and/or larceny. In Count IV, Ltd. seeks to have its claim excepted from discharge under section 523(a)(6), arguing that the claim results from a willful and malicious injury by Mr. Keitel to Ltd.

Mr. Keitel asserted four affirmative defenses in this adversary proceeding. ECF No. 10 (adversary).7 Mr. Keitel argues that Ltd. acted with unclean hands, that Mr. Keitel acted honestly and reasonably under the circumstances (including that Mr. Keitel expended Ltd.'s funds for legitimate expenses), that Ltd. is estopped from pursuing the damages presented in claim number 4 (in part because the other principals of Ltd. agreed to all of Mr. Keitel's actions through a specific date), and that Ltd. failed to mitigate damages.

APPLICABLE LAW AND BURDEN OF PROOF

In Count I of the Amended Complaint, Ltd. seeks liquidation of its claim against Mr. Keitel, the same claim as it presented in proof of claim number 4-3. Ltd.'s claim against Mr. Keitel is stated as civil theft, embezzlement and/or conversion. To the extent Mr. Keitel is found to have been in lawful possession of funds owned by Ltd. at the time the funds were taken, the claim would sound in embezzlement. To the extent Mr. Keitel is found not to have been in lawful possession of funds owned by Ltd. at the time the funds were taken, the claim would sound in conversion. Under Florida law, the claim of civil theft encompasses both of these concepts.

Because Mr. Keitel objected to the proof of claim filed by Ltd., the Court must determine whether and to what extent the claim should be allowed. 11 U.S.C. § 502. In general, Ltd. has the burden of proving its claim by a preponderance of the evidence. However, this burden applies only to Ltd.'s claims based in embezzlement and conversion. Such claims would be limited to the aggregate sum Ltd. alleges Mr. Keitel took from Ltd. and used for Mr. Keitel's personal benefit. In this case, Ltd. seeks treble damages pursuant to Florida's civil theft statute, Fla. Stat. § 772.11(1). Under this statute, if Ltd. shows by clear and convincing evidence that it was injured by Mr. Keitel's violation of Florida's criminal theft statute, Fla. Stat. § 812.014, then Ltd. is entitled to judgment for threefold the actual damages sustained plus reasonable attorneys' fees and costs. United Technologies Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009). Fla. Stat. § 812.014 provides in pertinent part:

In Count II of the Amended Complaint, Ltd. seeks a judgment that its claim is excepted from discharge on the grounds that the claim arose from Mr. Keitel's embezzlement and/or larceny. Section 524(a)(4) provides that a debtor is not discharged from debts resulting from "fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." 11 U.S.C. § 523(a)(4). Claims based in embezzlement and larceny do not require a finding of fiduciary capacity. McDowell v. Stein (In re McDowell), 415 B.R. 584, 594 (S.D. Fla. 2009).8 A plaintiff seeking relief under section 523(a)(4) must establish fraud or fraudulent intent. NesSmith Elec. Co., Inc. v. Kelley (In re Kelley), 84 B.R. 225, 231 (Bankr. M.D. Fla. 1988); Synod of S. Atl. Presbyterian Church v. Magpusao (In re Magpusao), 265 B.R. 492, 497 (Bankr. M.D. Fla. 2001).

Although separate claims, the only difference between embezzlement and larceny under section 523(a)(4) is whether the debtor was lawfully in possession of the property at the time of the fraudulent misappropriation. Embezzlement is the "fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come." Moore v. United States, 160 U.S. 268, 269 (1895). Larceny is the "fraudulent taking and carrying away of property of another with intent to convert such property to his use without consent of another." Ford v. Pupello (In re Pupello), 281 B.R. 763, 768 (Bankr. M.D. Fla. 2002) (citing Ploetner-Christian v. Miceli (In re Miceli), 237 B.R. 510, 516 (Bankr. M.D. Fla. 1999)). Larceny is sometimes described as a "felonious taking of another's personal property with intent to convert it or deprive the owner of the same." Weinreich v. Langworthy (In re Langworthy), 121 B.R. 903, 907 (Bank. M.D. Fla. 1990) (citing Black's Law Dictionary, 5th Ed.).

In Count IV of the Amended Complaint, Ltd. seeks a judgment that its claim is excepted from discharge on the grounds that the claim arises from the willful and malicious injury by Mr. Keitel to Ltd. Section 523(a)(6) provides that a debtor is not discharged from debts "for the willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). An injury alleged as the basis for a non-dischargeable claim under section 523(a)(6) must be both willful and malicious. Stewart Tilghman Fox & Bianchi, P.A. v. Kane (In re Kane), 470 B.R. 902, 939 (Bankr. S.D. Fla. 2012).

In order to prove willfulness under section 523(a)(6), a plaintiff must prove that the debtor acted intentionally; proof that the injury resulted from reckless or negligent conduct is not sufficient. Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). A debtor acts willfully when the debtor either intended the injury that resulted or the debtor acted intentionally and the act in question was certain or substantially certain to result in the injury. Thomas v. Loveless (In re Thomas), 288 Fed. Appx. 547, 549 (11th Cir. 2008) (citing Hope v. Walker (In re Walker), 48 F.3d 1161, 1165 (11th Cir. 1995)); In re Kane, 470 B.R. at 939-41.

While proof that the defendant intended to cause the harm experienced by the plaintiff satisfies the willfulness standard, it is not necessary for a plaintiff to go that far. A debtor's intentional act may result in a non-dischargeable obligation under section 523(a)(6) where injury to the plaintiff was a substantial certainty. In re Kane, 470 B.R. at 941 (citing cases in support). In financial tort cases—as opposed to physical intentional tort cases—a subjective standard for substantial certainty is required. Id. at 941-42. It is not enough to show that a reasonable person would know that injury to the plaintiff was substantially certain to result from the defendant's intentional act. Id. at 942. The plaintiff must show that the defendant himself knew his act was substantially certain to cause injury to the plaintiff. Id.; Via Christi Reg'l Med. Ctr. v. Englehart (In re Englehart), 2000 U.S. App. LEXIS 22754 at *9 (10th Cir. 2000) (holding that the term "willful" in section 523(a)(6) requires the court to determine whether the defendant knew or believed the act was substantially certain to result in injury). Where proof of the debtor's knowledge is required, the debtor is unlikely to admit that he or she acted with actual knowledge that an injury would result to the plaintiff. "In addition to what a debtor may admit to knowing, the bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury-producing action." Carrillo v. Su (In re Su), 290 F.3d 1140, 1146 n.6 (9th Cir. 2002) (citing Spokane Ry. Credit Union v. Endicott (In re Endicott), 254 B.R. 471, 477 n. 9 (Bankr. Idaho 2000)). "The [d]ebtor is charged with the knowledge of the natural consequences of his actions." Ormsby v. First Am. Title Co. of Nev. (In re Ormsby), 591 F.3d 1199, 1206 (9th Cir. 2010) (citing Cablevision Sys. Corp. v. Cohen (In re Cohen), 121 B.R. 267, 271 (Bankr. E.D.N.Y. 1990)).

Section 523(a)(6) also requires that the debt arise from a "malicious" injury. 11 U.S.C. § 523(a)(6). "Malice can be implied when a debtor commits an act that is `wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill-will.'" In re Thomas, 288 Fed. Appx. at 549 (quoting In re Walker, 48 F.3d at 1164).

Ltd. has the burden of proof under sections 523(a)(4) and 523(a)(6). The evidentiary standard is preponderance of the evidence. Grogan et al. v. Garner, 498 U.S. 279 (1991).

The elements of embezzlement and larceny under section 523(a)(4) correlate to the elements of Florida's criminal theft statute. Petty v. Petty (In re Petty), 333 B.R. 472, 479-80 (Bankr. M.D. Fla. 2005) (applying collateral estoppel to Florida civil theft judgment and holding the debt non-dischargeable under section 523(a)(4)'s embezzlement exception); David M. Landis, P.A. v. Britt (In re Britt), 200 B.R. 409, 411 (Bankr. M.D. Fla. 1996) (holding that plaintiff's proof of embezzlement under section 523(a)(4) amounts to clear and convincing evidence and, therefore, plaintiff is entitled to treble damages as well as attorney's fees and costs pursuant to Fla. Stat. § 772.11(1)); R & R Turf Farms, L.L.P. v. Tucker (In re Tucker), 2013 Bankr. LEXIS 2349, *8 (Bankr. M.D. Fla. 2013) (applying collateral estoppel to Florida civil theft judgment and holding the debt non-dischargeable under section 523, including section 523(a)(4)'s larceny exception). Likewise, the elements of willful and malicious injury under section 523(a)(6) correlate to the elements of Florida's criminal theft statute. Sunco Sales, Inc. v. Latch (In re Latch), 820 F.2d 1163, 1165 (11th Cir. 1987) (finding that the criminal intent requirement in the Florida civil theft statute satisfied the willful and malicious injury requirements of section 523(a)(6)); In re Tucker, 2013 Bankr. LEXIS 2349, *8 (applying collateral estoppel to Florida civil theft judgment and holding the debt non-dischargeable under section 523, including section 523(a)(6)'s willful and malicious injury exception); Sidney v. Ragucci (In re Ragucci), 433 B.R. 889, 894-97 (Bankr. M.D. Fla. 2010) (applying collateral estoppel to Florida civil theft default final judgment and holding the debt non-dischargeable under section 523(a)(6)); Duguid v. Rogers (In re Rogers), 193 B.R. 55, 60 (Bankr. M.D. Fla. 1996) (holding that "treble damages awarded by the state court upon a finding of liability under Fla. Stat. § 812.014(1) is excepted from Defendants' discharge under 11 U.S.C. § 523(a)(6)."). If Ltd. proves by clear and convincing evidence that Mr. Keitel committed embezzlement or larceny under section 523(a)(4) or willful and malicious injury under section 523(a)(6), Ltd. will be entitled to treble damages and reasonable attorneys' fees and costs under Fla. Stat. § 772.11(1) and the entire claim will be excepted from Mr. Keitel's discharge. Cohen v. De La Cruz, 523 U.S. 213, 223 (1998); In re Tucker, 2013 Bankr. LEXIS 2349, *11; In re Britt, 200 B.R. at 412; Parker v. Padgett (In re Padgett), 235 B.R. 660, 664 (Bankr. M.D. Fla. 1999).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Ltd. was formed in 1998 as a Florida limited partnership for the sole purpose of owning, managing and leasing an office building located at 241 Royal Palm Way, Palm Beach, Florida. Ltd. has two limited partners, Tee Jay of Florida RLLP ("RLLP") and FJK IV Properties, Inc. Each limited partner owns 49.5% of the equity interest in Ltd. One limited partner, RLLP, is owned and controlled by Jonathan D'Agostino ("Jonathan") and Thomas D'Agostino, Jr. ("Jr."), who are brothers. The other limited partner, FJK IV Properties, Inc., is owned and controlled by Mr. Keitel. The general partner of Ltd. is a corporate entity, FJK Tee Jay, Inc. ("Inc."). The general partner owns the remaining 1% of the equity interest in Ltd. During all times relevant to this matter, the two limited partners each also owned 50% of the equity interest in Inc.9 So, at all times material to this case, Mr. Keitel indirectly owned 50% of the equity interest in Ltd., and Jonathan and Jr. indirectly owned the other 50% of the equity interest in Ltd.

Mr. Keitel was for a time the president of Inc. and also a director of Inc. On July 9, 2013, Mr. Keitel was removed as a director of Inc. The board elected Jonathan as a director to replace Mr. Keitel. The re-constituted board of directors of Inc. then removed Mr. Keitel as president of Inc. On or about July 19, 2013, Mr. Keitel received notice of his removal as president and director of Inc. Mr. Keitel was properly removed as director and president of Inc. consistent with the corporate documents of Inc. Even if the evidence admitted at trial did not support this finding, the Court is bound by a June 23, 2015 ruling of a Florida circuit court which found that Mr. Keitel was properly removed from the board of directors and as president of Inc. in July 2013. The Florida circuit court's finding has collateral effect here.10 As of July 9, 2013, Mr. Keitel had no authority to act on behalf of Inc. and thus had no authority to act on behalf of Ltd.

Thomas D'Agostino, Sr. ("Sr.") is the father of Jonathan and Jr. Mr. Keitel and Sr. have entered into a series of real estate investment transactions. Those transactions typically involve Mr. Keitel obtaining loans from Sr. For several years, including nearly all of the period relevant to this case, Mr. Keitel and Sr. have engaged in various lawsuits against one another arising from their other investment activities. Mr. Keitel testified that Sr. somehow actively participated in the business and management of Ltd. However, neither the relevant corporate documents nor any of the other credible evidence admitted at trial supports this contention. As far as the Court can tell, Sr.'s only connection with Ltd. is that Mr. Keitel pledged his stock in Inc. to Sr. as collateral in connection with an unrelated transaction.11

At the center of this case are Ltd.'s allegations that Mr. Keitel set up a new bank account in the name of Ltd., caused rents payable to Ltd. to be deposited into that account, and used funds in that account for his own benefit rather than for the benefit of Ltd. Ltd. argues that Mr. Keitel never had authority to set up the new bank account in the first place, and that even if Mr. Keitel had such authority Mr. Keitel used Ltd.'s funds solely for his own benefit.

Prior to February 8, 2013, Ltd. maintained its primary operating account at Citibank. All rent payments received from Ltd.'s sole tenant were deposited in the Citibank account. The only signatories for the Citibank account were Jonathan and two members of the New York accounting firm retained by Ltd. Mr. Keitel was not a signatory on the Citibank account.

In 2012, Ltd. defaulted on its mortgage financing and the lender commenced a foreclosure action. In October 2012, the state court entered an agreed order requiring that rents from Ltd.'s property be sequestered. Under that order, Ltd. was required to remit to the mortgage lender or its servicer all net rental income from its property. Because Ltd.'s sole tenant had already made its rent payment for October 2012 by wire transfer to the Citibank account, Ltd., acting through its accountant, wired funds from the Citibank account to the mortgage lender. Tellingly, Mr. Keitel objected to that payment, asking that the funds instead be wired to Mr. Keitel's counsel, Robert Stone, Esq., in spite of the agreed order of sequestration.

At that time, Mr. Keitel was at odds with Jr., Jonathan and Sr. In December 2012, Mr. Keitel and Sr. were litigating with each other in connection with a real estate transaction unrelated to Ltd. or its property. Mr. Keitel began pressing Jr. and Jonathan to permit sale of Ltd.'s property, apparently to provide Mr. Keitel with access to the equity potentially payable to him from such a sale, or to negotiate foreclosure of Ltd.'s property in a manner favorable to Mr. Keitel. Jr. and Jonathan resisted Mr. Keitel on these points and, in light of the corporate documents of Ltd., they had appropriate authority to do so. Mr. Keitel pushed back aggressively, threatening to litigate with Jr. and Jonathan.

It is in this context that Mr. Keitel took action to re-direct rent payments due to Ltd. to Mr. Keitel's own control. Mr. Keitel was then the president of the general partner of Ltd. and thus had apparent authority to act on behalf of Ltd. Initially, Mr. Keitel instructed Ltd.'s sole tenant to send rent payments to Mr. Keitel's counsel, Mr. Stone. In December 2012 and January 2013, the tenant sent two rent payments to Mr. Stone, which were deposited into Mr. Stone's trust account.

Jonathan and Jr. soon realized that rent payments were not being deposited to the Citibank account consistent with previous practice. Andrew Rose, Esq., as counsel for RLLP, Jonathan and Jr., began emailing Mr. Keitel and Mr. Stone in late December 2012. In all, through the beginning of February 2013, Mr. Rose sent at least six emails to Mr. Keitel and/or Mr. Stone demanding to know where the rents were being deposited and what Mr. Keitel was doing with funds owned by Ltd. Mr. Rose also attempted to reach Mr. Stone by telephone regarding the same. He learned nothing.

During this period, Ltd. was not generating sufficient cash flow to provide any distributions to its owners. Indeed, on top of the foreclosure action and the sequestration order, Ltd. was being pursued in another suit for payment of a commission of more than $435,000.00 allegedly owed to a broker that claimed to have procured Ltd.'s sole tenant.

On February 8, 2013, Mr. Keitel opened a new bank account at Wells Fargo Bank in the name of Ltd. Mr. Keitel was the sole signatory on that new account. Mr. Keitel did not inform his partners, Jonathan and Jr., or Ltd.'s accountants about the new bank account. That same day, Mr. Stone wired $43,900.00 to the new account at Wells Fargo. Mr. Stone retained $43,941.66 from the two rent payments he had previously received. Mr. Keitel instructed Ltd.'s sole tenant to make all future rent payments to the Wells Fargo account, which it did.

In March 2013, Sr. and entities controlled by him filed three lawsuits against Mr. Keitel and entities controlled by Mr. Keitel, in connection with real estate investments unrelated to Ltd. or its property. Ltd. was not a party to any of those suits. The timing of those disputes is important as the evidence shows that Mr. Keitel later used Ltd.'s funds to pay his own legal expenses in connection with those disputes.

Although Jonathan, Jr., Mr. Rose, and Ltd.'s accountants knew that Mr. Keitel had diverted the rent payments being made to Ltd., they did not know of the Wells Fargo account or how Mr. Keitel was using the funds. Mr. Rose, acting for Jr., Jonathan and RLLP, sent an additional eight emails to Mr. Keitel continuing to demand information, to no avail. Only once did Mr. Keitel suggest how he had used some of the funds. In an April 21, 2013 email to Mr. Rose, Mr. Keitel claimed he "used money from the rent payments . . . to pay WorkflowOne, on behalf of [Ltd.]." Not only does it appear from the evidence admitted here that this statement was false, but by that time Mr. Keitel was already withdrawing funds from the Wells Fargo account to pay himself and to pay Mr. Stone.

In May 2013, RLLP filed suit against Mr. Keitel for conversion of the rent payments, among other claims, and sought an accounting of all rent payments diverted from the Citibank account. As discussed above, two months later in July 2013 Mr. Keitel was formally removed as president and director of Inc., and so had no authority to act on behalf of Ltd. after that date. Even so, Mr. Keitel refused to disclose the existence of the Wells Fargo account or to provide any information to his partners regarding how he had used and continued to use funds owned by Ltd.

In November 2013, while Mr. Keitel was continuing to use Ltd.'s funds without authority, RLLP requested a temporary injunction against Mr. Keitel in the conversion action. In the motion for temporary injunction, RLLP sought, among other relief, an order requiring Mr. Keitel to relinquish control over all bank accounts in the name of Ltd. and related records.

Between his removal as president and director of Inc. in July 2013 and April 2014, Mr. Keitel made sixteen withdrawals and/or transfers from the Wells Fargo account. During this time, Mr. Keitel paid more than $300,000.00 to himself, to Taj Anderson, and to attorneys Michael Keenan and Leslie Evans who were representing Mr. Keitel and entities controlled by Mr. Keitel.

It took nearly a year for Mr. Keitel's partners to learn of the Wells Fargo account. In January 2014, in RLLP's conversion action against Mr. Keitel, RLLP served a subpoena duces tecum on Wells Fargo to obtain the bank records that Mr. Keitel had to that point refused to turn over. Amazingly, in a continued effort to conceal his personal use of Ltd.'s funds, Mr. Keitel caused Mr. Keenan to object to that discovery request, but the state court ultimately overruled the objection. Later, Mr. Keitel used Ltd.'s own funds to pay Mr. Keenan for that work.

In late March 2014, Ltd. sued its sole tenant in an attempt to interplead future rent payments, so as to remove future rents from Mr. Keitel's control. About five weeks later, at the beginning of May 2014, Mr. Keitel essentially emptied the Wells Fargo account by purchasing a cashier's check payable to Mr. Keenan in the amount of $40,000.00 and by issuing a check to himself in the amount of $46,000.00. A few days after that, the state court entered a stipulated order of interpleader, directing Ltd.'s sole tenant to pay future rents into the state court registry. In a document filed in the interpleader action, Mr. Keitel admitted that he knew of the possibility of entry of the stipulated interpleader order the day before he essentially emptied the Wells Fargo account. Mr. Keitel testified that he removed funds from the Wells Fargo account so the funds would be available to pay the broker's commission claim made in other litigation, noted above. Yet none of the funds were used for that purpose. There is no doubt that, realizing he would soon lose control of the rents payable to Ltd., Mr. Keitel grabbed what he could, leaving the Wells Fargo account nearly empty. However, Mr. Keitel remained the sole signatory on the Wells Fargo account.

In June 2014, Mr. Keenan issued a check to Ltd. in the amount of $27,835.96, which Mr. Keitel deposited in the Wells Fargo account. On the same day as that deposit, Mr. Keitel wrote a check to himself and made a separate, in-branch cash withdrawal, again essentially emptying the Wells Fargo account.

In November 2014, as a prerequisite to recovery under Florida's civil theft statute, Fla. Stat. § 772.11, Ltd., RLLP, Jr. and Jonathan sent to Mr. Keitel a civil theft demand letter regarding all funds Mr. Keitel paid to himself and to others from the Wells Fargo account.

In June 2015, Mr. Keitel filed a voluntary chapter 11 petition with this Court. His case was converted to chapter 7 in November 2016.

At trial, the parties focused significant attention on the question of whether Mr. Keitel was authorized to open the Wells Fargo account and direct payment of funds owned by Ltd. To answer this question, the Court looks to the corporate documents of Ltd. and its general partner, Inc.

The limited partnership agreement for Ltd. is in a form typical for a Florida limited partnership. As is customary, Article 7 of the limited partnership agreement gives Inc., as general partner, nearly complete authority over the day-to-day management of Ltd. That authority specifically includes the power to open bank accounts in the name of Ltd. Any corporate officer of Inc., as general partner, and any other person designated by Inc., may direct withdrawals from such accounts. Mr. Keitel was president of Inc. until July 9, 2013. Until that date, Mr. Keitel had authority to open bank accounts in the name of Ltd. and to make payments from any such account for the benefit of Ltd.

Ltd. points to certain provisions of the bylaws of Inc., suggesting that they prohibited Mr. Keitel from opening a bank account in the name of Ltd. and directing payment of funds owned by Ltd. But it is clear from the text of the bylaws of Inc. that the referenced provisions of the bylaws govern actions taken on behalf of Inc. with regard to its own assets and funds, not the assets and funds of Ltd. The "corporation" identified in the bylaws of Inc. is Inc. itself, not Ltd. The bylaws of Inc. have no impact on the determination of whether Mr. Keitel had corporate authority to open a bank account in the name of Ltd. or whether Mr. Keitel had authority to direct payments from that account.

The shareholder agreement for Inc. makes it clear that the sole purpose of Inc. is to be the general partner of Ltd. In addition to addressing concerns central to the corporate governance of Inc. itself, the shareholder agreement includes several provisions explicitly governing activities of Inc. in its capacity as general partner of Ltd. Section 8.1 of the shareholder agreement lists a number of actions that may be taken only with unanimous vote of the shareholders of Inc. These include major transactions such as the sale of all or substantially all of the assets of Inc. or Ltd., the incurrence of debt for borrowed money or the giving of liens by Inc. or Ltd., the filing of a voluntary bankruptcy petition by either Inc. or Ltd., and the dissolution of Inc. or Ltd. In the midst of this list of significant events requiring unanimous approval of the shareholders of Inc., subsection E requires such approval to "[t]ake any action or actions on behalf of [Ltd.] or otherwise other than in accordance with Resolutions adopted by the Board of Directors of [Inc.] in accordance with this Agreement and the By-Laws." One might interpret this provision to severely constrain Mr. Keitel's authority, as president of the general partner of Ltd., to take actions on behalf of Ltd. Indeed, read in a vacuum, this provision seems to require that any and all activity of Inc. on behalf of Ltd. requires a resolution of the board of directors of Inc. or unanimous approval of the shareholders of Inc. This would include simple, day-to-day operating activities, such as paying the bills of Ltd. But it is necessary to construe section 8.1 of the shareholder agreement as a whole. The nature of the other, more specific items for which unanimous shareholder approval is required is telling. Without exception, the listed items are significant corporate actions. Similarly, this provision should be read in light of the limited partnership agreement of Ltd. itself, which specifically authorizes officers of Inc. to manage Ltd.'s funds. Viewing all of the corporate documents of Ltd. and Inc. together, the Court does not interpret section 8.1 of the shareholder agreement of Inc. to require Mr. Keitel, while president of Inc., to seek unanimous approval from the shareholders of Inc. or a resolution from the board of directors of Inc. to open a bank account in the name of Ltd., collect amounts owing to Ltd., deposit those amounts in the bank account, and use the funds of Ltd. to pay the legal obligations of Ltd. Indeed, if unanimous approval of the shareholders of Inc. or resolution of the board of directors of Inc. was required to transact any and all business of Ltd., there is no evidence that anyone was authorized to act on behalf of Ltd. in any regard. This was clearly not so as Ltd. had been operating for an extended period before the circumstances giving rise to the claims presented here. In any case, in its post-trial brief, Ltd. did not rely in any way on section 8.1 of the shareholder agreement of Inc. and so has waived the right to do so.

In the end, whether Mr. Keitel ever had corporate authority to open a new bank account for Ltd. and direct use of funds owned by Ltd. is a red herring. To be sure, if Mr. Keitel lacked authority to even open the new bank account in the name of Ltd., this would be further support for the Court's ruling here. But the fact that Mr. Keitel, while president of Inc., had corporate authority to open the Wells Fargo account, cause funds payable to Ltd. to be deposited in that account, and use those funds to pay the legal obligations of Ltd. does not eliminate his liability in this case. The overwhelming evidence in this case indicates that Mr. Keitel used funds owned by Ltd. not for the benefit of Ltd. but for his own personal benefit. That he did this in part during a period when he had authority to handle those funds, and during a later period when he was no longer acting as president and director of the general partner and therefore lacked that authority, makes no difference. All of the credible evidence in this case shows that Mr. Keitel took control of rents payable to Ltd., hid them from his partners, and then used most of the funds to pay himself and lawyers representing only his interests. None of the funds Mr. Keitel took from Ltd. and which are at issue in this adversary proceeding were used for the benefit of Ltd.

From December 2012 through June 2014, Mr. Keitel had exclusive control of $711,778.04 of Ltd.'s money. Ltd's sole tenant made two payments in the amount of $43,920.83 each to Mr. Stone's trust account. Ltd's tenant made four payments in the amount of $43,920.83 each directly to the Wells Fargo account. Mr. Keitel deposited a check payable to Ltd. in the amount of $260.56 to the Wells Fargo account. Ltd's tenant made ten payments in the amount of $44,799.25 each directly to the Wells Fargo account.

Of the funds subject to Mr. Keitel's control, $573,680.70 was either paid directly to Mr. Keitel or Mr. Keitel paid it to attorneys or other professionals who represented the interests of Mr. Keitel or his other entities.12 It is this sum that Ltd. seeks to have liquidated as a claim against Mr. Keitel and have trebled pursuant to Florida law. Ltd. then seeks a judgment that the entire amount, with attorneys' fees and costs to be determined, be excepted from discharge in Mr. Keitel's bankruptcy case.

Ltd.'s damages claim is broken down as follows: Mr. Keitel made thirteen payments to himself, all in round figures, aggregating $320,000.00. Mr. Stone directly received two rent payments totaling $87,841.66 and then transferred $43,900.00 to the Wells Fargo account, meaning he retained $43,941.66. In addition, Ltd.'s claim here includes two checks Mr. Stone received from the Wells Fargo account in the total amount of $20,350.00. In the aggregate, Mr. Stone received $64,291.66. Mr. Keenan received a total of $167,164.04 from the Wells Fargo account. Mr. Evans received $21,000.00 from the Wells Fargo account. Finally, Mr. Anderson received $1,225.00 from the Wells Fargo account.

Mr. Keitel claims that all persons he paid with Ltd.'s funds — Mr. Keitel himself, Mr. Stone, Mr. Keenan, Mr. Evans and Mr. Anderson — were paid for their work as counsel representing Ltd.13 It is arguable that until he was removed as president and director of Inc., effective July 9, 2013, Mr. Keitel had authority to retain counsel to represent Ltd. But even if Mr. Keitel had authority to hire himself and these other people to represent Ltd., the evidence is overwhelming that none of them actually acted for the benefit of Ltd. Even where Mr. Keitel and Mr. Stone appeared in the foreclosure action as counsel for Ltd., it is abundantly clear that Mr. Keitel and Mr. Stone were acting solely for the benefit of Mr. Keitel, personally, and not for the benefit of Ltd. Likewise, in the interpleader action with Ltd.'s sole tenant, Mr. Keitel was eventually removed by the state court as counsel for Ltd. on the grounds that, nearly two years prior, he had been removed as president and director of Inc. and so lacked authority to hire himself as counsel. In the end, Mr. Keitel was taking money from Ltd. and using it to finance litigation against his partners, their father and other adversaries. That he sometimes did this in Ltd.'s own name only highlights the brazenness of his actions.

In his post-trial brief, Mr. Keitel argues that between February 2013 and June 2014 there was a dispute as to who was properly in control of Ltd. Mr. Keitel argues that since it was not clear who was authorized to act on behalf of Ltd., he cannot be held liable for conversion of funds owned by Ltd. To begin with, Mr. Keitel was no longer authorized to act on behalf of Ltd. as of July 2013. But even when Mr. Keitel was authorized to act on behalf of Ltd., he did not have the power to transfer funds of Ltd. solely for his own personal benefit.

Mr. Keitel testified that he had been routinely retained by Ltd. and by Inc. to act as counsel to those entities. Jonathan testified credibly to the contrary, stating that those entities never retained Mr. Keitel. The evidence includes no engagement agreement, invoice or other document to support Mr. Keitel's contention that Ltd. ever hired Mr. Keitel as its counsel. The documentary evidence shows only that Mr. Keitel paid himself a total of $320,000.00 from the Wells Fargo account, all in round figures, from February 2013 through June 2014. There is no credible evidence that any portion of that sum was expended for the benefit of Ltd. Mr. Keitel misappropriated these funds for his own benefit.

The evidence includes an undated retainer agreement executed by Mr. Keitel and Mr. Stone. It is signed by Mr. Keitel in his personal capacity. That agreement states that Mr. Stone was retained to represent Mr. Keitel, personally, in connection with several of his investment activities, including Mr. Keitel's interest in Ltd. Mr. Stone testified that it was a "ministerial or a clerical error" that Ltd. was not reflected as a client in that engagement agreement. There is no credible evidence to support that contention. In light of the text of the engagement agreement itself, Mr. Stone was engaged to represent Mr. Keitel's personal interests in a number of matters. That the engagement included representation of Mr. Keitel with regard to his interest in Ltd. does not mean that Mr. Stone in any way represented Ltd. The evidence also includes a number of invoices sent by Mr. Stone to Mr. Keitel, at the post office box Mr. Keitel still uses in connection with this case. Some of those invoices are addressed to Mr. Keitel personally, and some are addressed to Mr. Keitel as general partner of Ltd. But even those invoices mentioning Ltd. do not lead the Court to believe that Mr. Stone did any work for the benefit of Ltd. Mr. Stone's invoices, as a whole, support the Court's conclusion that Mr. Stone consistently represented Mr. Keitel's personal interests in the various matters addressed, including in connection with Ltd.

Mr. Stone appeared as co-counsel for Ltd. in the foreclosure action brought by Ltd.'s mortgage lender. But the credible evidence is unequivocal that Mr. Stone was acting solely for the benefit of Mr. Keitel at that time and not for the benefit of Ltd. itself. Among other things, Mr. Stone testified that he represented Ltd. on a redemption issue in the state court foreclosure matter. Ltd. was unable to redeem its own property from foreclosure. Mr. Rose, acting for RLLP, paid off the judgment in lieu of Ltd. doing so. Mr. Stone, ostensibly acting on behalf of Ltd., sought to have the redemption undone. The question presented was whether a party other than Ltd. as mortgagor could redeem the property. Yet, based on the evidence before the Court, Ltd. had nothing to gain from pressing that argument. As a result of the redemption, Ltd. was permitted to retain its sole asset. Indeed, Ltd. still owns the property. If Ltd.'s property had not been redeemed, Ltd. almost certainly would have lost the property in foreclosure. The redemption dispute was yet another attempt by Mr. Keitel to stymie his partners' actions, in this instance their attempts to save Ltd.'s property from foreclosure.

Mr. Stone received two rent payments, one on December 28, 2012 and another on January 30, 2013, directly from Ltd.'s sole tenant; these rent payments were deposited into Mr. Stone's trust account. This was prior to Mr. Keitel opening the Wells Fargo account. The two rent payments total $87,841.66. On the same day that Mr. Keitel opened the Wells Fargo account, Mr. Stone transferred $43,900.00 to the Wells Fargo account. Thus, Mr. Stone retained a total of $43,941.66 from the two rent payments. In addition, on April 19, 2013, Mr. Keitel wrote a check from the Wells Fargo account to Mr. Stone in the amount of $9,500.00. On May 15, 2013, Mr. Keitel wrote a second check from the Wells Fargo account to Mr. Stone in the amount of $10,850.00. In total, Mr. Keitel used Ltd.'s funds to pay Mr. Stone $64,291.66 for which Ltd. received no benefit. Mr. Keitel misappropriated these funds for his own benefit.

In September 2013, Mr. Keitel executed an engagement agreement with Mr. Keenan. Mr. Keenan agreed to represent Mr. Keitel in his individual capacity and in his capacity as general partner in connection with several matters including Mr. Keitel's interest in Ltd. There is nothing in that engagement agreement that would cause the Court to conclude that Mr. Keenan represented Ltd. Indeed, in September 2013 Mr. Keitel had no authority to hire counsel for Ltd. as he had been removed as president and director of Inc. some two months prior.

The Court took judicial notice of three notices of appearance filed in January 2014 by Mr. Keenan in state court litigation matters related to Mr. Keitel. Ltd. was not a party in any of those matters.

From October 2013 through August 2014, Mr. Keenan issued eleven invoices for services rendered to Mr. Keitel in connection with a state court action involving Ltd., Sr., Jr., Jonathan, other entities controlled by Mr. Keitel, and others. The invoices are addressed to Ltd., at the post office box address which is the same as that used by Mr. Keitel in this bankruptcy case. Mr. Keenan's invoices do not cause the Court to conclude that Mr. Keenan was representing Ltd., as claimed by Mr. Keitel. Consistent with the engagement agreement, all of Mr. Keenan's work was aimed at representing Mr. Keitel's personal interests. Yet Mr. Keitel paid the vast majority of these invoices from Ltd.'s Wells Fargo account.

From March 2014 through June 2014, Mr. Keenan issued an additional four invoices totaling $59,977.74 for services rendered in a state court action filed by Sr. against Mr. Keitel and another entity controlled by Mr. Keitel. Ltd. was not a party to that action. Nevertheless, Mr. Keitel paid each of those invoices with funds from Ltd.'s Wells Fargo account.

The September 2013 engagement agreement between Mr. Keenan and Mr. Keitel references a $35,000.00 retainer received by Mr. Keenan. Mr. Keitel paid that retainer by issuing a check from Ltd.'s Wells Fargo account. Over the next eight months, through early May 2014, Keenan received six additional checks from the Wells Fargo account totaling $160,000.00. In all, Mr. Keenan received $195,000.00 from the Wells Fargo account. However, in June 2014, Mr. Keenan wrote a check from his trust account to Ltd. for $27,835.96, which was deposited in the Wells Fargo account. Accordingly, between September 2013 and May 2014, Mr. Keenan received a net of $167,164.04 from the Wells Fargo account. None of these funds were expended for the benefit of Ltd. Mr. Keitel misappropriated these funds for his own benefit.

In June 2013, Mr. Evans was representing Mr. Keitel and an entity controlled by Mr. Keitel in connection with another real estate transaction. Ltd. was not involved in that matter. In July 2013, Mr. Keitel paid $21,000.00 to Mr. Evans from the Wells Fargo account. There is no evidence that Mr. Evans provided any benefit to Ltd. or that Ltd. had any obligation to Mr. Evans. Mr. Keitel misappropriated these funds for his own benefit.

In July 2013, Mr. Keitel paid $1,225.00 to Mr. Anderson from the Wells Fargo account. There is no evidence that Mr. Anderson provided any benefit to Ltd. or that Ltd. had any obligation to Mr. Anderson. Mr. Keitel offered no evidence to suggest that this payment was a proper expenditure for Ltd. Mr. Keitel misappropriated these funds for his own benefit.

Mr. Keitel concealed that he opened the Wells Fargo account, that he caused rents owned by Ltd. to be deposited in that account, and that he paid himself and others for his own benefit from the Wells Fargo account. Mr. Keitel obstructed his partners when they inquired as to where the rents were going and how they were being used. Mr. Keitel refused to provide any documentation for payments he made from the Wells Fargo account. He kept his partners completely in the dark about where Ltd.'s money was going, forcing them to seek redress in the courts. All the while, Mr. Keitel used Ltd.'s money to pay himself and to pay others to assist in his pitched battles with his partners, their affiliates and others. There is no credible evidence that any of the amount claimed by Ltd. in this adversary proceeding was used for the benefit of Ltd. itself. It matters not whether Mr. Keitel had, at the time of each payment from the Wells Fargo account, corporate authority to direct payment of funds owned by Ltd., because he did not use the funds for the benefit of Ltd. In total, Mr. Keitel fraudulently misappropriated the sum of $573,680.70 with the intent to convert such monies for his own benefit.

In his post-trial brief, Mr. Keitel argues that he acted in the good faith belief that he was still the president of Inc. and that this negates any assertion that he acted with the requisite fraudulent intent. To the contrary, there is no credible evidence that Mr. Keitel acted in good faith in connection with any of the matters at issue in this case. But even if Mr. Keitel honestly believed that he continued to act with corporate authority on behalf of Ltd. at all times relevant to this case, that belief would not empower him to abscond with Ltd.'s funds and use those funds for his own purposes.

The evidence offered by Ltd. and admitted in this case is more than sufficient to meet the heightened standard of proof, clear and convincing evidence, required for treble damages under Fla. Stat. § 772.11(1). As a result, Ltd. has a claim of $1,721,042.10, plus attorneys' fees and costs in an amount to be determined, all of which is excepted from discharge in Mr. Keitel's bankruptcy case pursuant to section 523(a)(4).

Ltd. also seeks exception from discharge of its entire claim, trebled under Florida law, plus attorneys' fees and costs in an amount to be determined, pursuant to section 523(a)(6). Ltd. met its burden of proving that, by diverting the rent payments from Ltd.'s sole tenant, opening the Wells Fargo account, and paying himself and others acting for him hundreds of thousands of dollars, all while concealing these facts, Mr. Keitel acted intentionally. Mr. Keitel is a knowledgeable real estate investor and lawyer. Mr. Keitel well knew that Ltd. would be harmed by Mr. Keitel's intentional actions. Indeed, to a great extent, Mr. Keitel used Ltd.'s funds to do battle with his partners and those aligned with his partners. The evidence admitted in this case is overwhelming that Mr. Keitel acted with ill will, taking Ltd.'s money for his own benefit, and using that money to obstruct every attempt by his partners to recover those monies on behalf of Ltd. Mr. Keitel's actions were obviously wrongful. There is nothing in the evidence that would cause the Court to believe Mr. Keitel had just cause for any of his actions. Thus, Mr. Keitel's actions were also malicious within the meaning of section 523(a)(6).

The evidence offered by Ltd. and admitted in this case is more than sufficient to meet the heightened standard of proof required under Fla. Stat. § 772.11(1), that is, clear and convincing evidence. As a result, Ltd.'s entire claim of $1,721,042.10, which represents treble damages under Fla. Stat. § 772.11(1), plus attorneys' fees and costs in an amount to be determined, is also excepted from discharge in Mr. Keitel's bankruptcy case under section 523(a)(6).

In his post-trial brief, Mr. Keitel argues that any judgment entered against him should be "offset by the distributions and income due to" Mr. Keitel as an equity owner of Ltd. The idea is that, as indirect one-half owner of Ltd., Mr. Keitel had a right to one-half of the funds he took, and so he cannot be held liable for stealing his own money. In light of the circumstances of the case, this is an amazing argument. At the time Mr. Keitel was taking Ltd.'s funds and using them for his personal benefit, Ltd. was in default of its mortgage loan, was involved in a foreclosure action, had been ordered to deliver all net rents to its mortgagee, and was also subject to a separate large collection action. None of Ltd.'s assets were subject to distribution to its owners, as Ltd. was then unable to pay its creditors. There was no potential distribution to offset any claim by Ltd. against Mr. Keitel. But even if Mr. Keitel had a claim for potential distributions not made by Ltd. to its partners, that claim would be held by his bankruptcy estate and would be collectible only by the chapter 7 trustee on behalf of Mr. Keitel's creditors. Mr. Keitel would have no ability to use that claim in this case or otherwise.

In his post-trial brief, Mr. Keitel argues that he is shielded from liability by the litigation immunity doctrine as "all of the actions for which LTD seeks to impose liability on Keitel occurred during the course of judicial proceedings on the very subject of Keitel's purported conversion." But Mr. Keitel is not here pursued because of statements he made or positions he took in litigation. Mr. Keitel is liable to Ltd. because he took money owned by Ltd. with the intent to deny Ltd. the benefit of that money and either paid himself or paid others solely for Mr. Keitel's personal benefit. This fact pattern does not in any way implicate the litigation immunity doctrine.

Mr. Keitel raised four affirmative defenses in this adversary proceeding. ECF No. 10 (adversary). Mr. Keitel argues that Ltd. acted with unclean hands, that Mr. Keitel acted honestly and reasonably under the circumstances (including that Mr. Keitel expended Ltd.'s funds for legitimate expenses), that Ltd. is estopped from pursuing the damages presented in claim number 4 (in part because the other principals of Ltd. agreed to all of Mr. Keitel's actions through a specific date), and that Ltd. failed to mitigate damages. There is no credible evidence to support these affirmative defenses.

In proof of claim number 4-3, Ltd. requested pre-judgment interest on its claim. Ltd. presented no evidence or argument at trial to support this request. Pre-judgment interest will not be awarded.

In proof of claim number 4-3, Ltd. sought an award of its reasonable attorneys' fees and costs, citing the shareholder agreement of Inc., the limited partnership agreement of Ltd., and Fla. Stat. §§ 620.2005 and 772.11(1). Fla. Stat. § 620.2005 applies only in connection with derivative actions brought by a partner on behalf of a limited partnership. The present action is brought by Ltd. in its own behalf, and so Fla. Stat. § 620.2005 provides no basis for Ltd.'s request for fees and costs. Similarly, the attorneys' fees provisions of both the shareholder agreement of Inc. and the limited partnership agreement of Ltd. apply only in circumstances where the dispute centers around enforcement and/or interpretation of those agreements. Here, Ltd. seeks damages in the nature of tort and to have such damages excepted from Mr. Keitel's discharge, rather than enforcement of the provisions of the corporate documents, and so may not rely on those documents as a basis for its request for fees and costs.14 However, Ltd. is entitled to reasonable attorneys' fees and costs under Fla. Stat. § 772.11(1), and that sum will be included in its non-dischargeable claim. The Court will permit Ltd. to file an affidavit of attorneys' fees and costs, and give Mr. Keitel an opportunity to file an objection to the affidavit based solely on the reasonableness of the requested fees and costs. The Court will either enter a separate order regarding Ltd.'s request for attorneys' fees and costs or, if the Court deems necessary, set a hearing to address that request.

ORDER

For the foregoing reasons, the Court ORDERS and ADJUDGES as follows:

1. Ltd. has an allowed unsecured claim in this bankruptcy case in the amount of $1,721,042.10 plus reasonable attorneys' fees and costs in an amount to be determined.

2. Not later than June 8, 2018, Ltd. may file an affidavit of attorneys' fees and costs with supporting documentation. If Ltd. files such an affidavit, not later than July 6, 2018, Mr. Keitel may file an objection to the affidavit, addressing only the reasonableness of the fees and costs requested therein. The Court will either enter a separate order regarding Ltd.'s request for an award of attorneys' fees and costs or set a hearing to address the same.

3. The sum of the claim allowed in paragraph 1 of this order and the reasonable attorneys' fees and costs awarded under paragraph 2 of this order, if any, shall be excepted from discharge in this bankruptcy case pursuant to 11 U.S.C. § 523(a)(4) and, independently, pursuant to 11 U.S.C. § 523(a)(6).

4. The Court will enter judgment in favor of Ltd. after determination of Ltd.'s request for an award of reasonable attorneys' fees and costs under paragraph 2 above.

5. Mr. Keitel's objections to claim number 4 [ECF Nos. 146, 408 and 626] are OVERRULED.