Memorandum Decision Granting in Part and Denying in Part Defendants' Motion for Summary Judgment

GUY R. HUMPHREY, Bankruptcy Judge.

This matter is before the court on the Defendants' Motion for Summary Judgment. The motion seeks summary judgment dismissing the trustee's claims against a lawyer and his law firm for malpractice and for recovery of attorney fees paid to them. For the reasons stated in this memorandum decision, the Motion is granted in part and denied in part.

I. Factual and Procedural Background

On September 17, 2009 Domin-8 Enterprise Solutions, Inc. and its former affiliates (collectively "Domin-8") filed voluntary Chapter 11 bankruptcy petitions. This adversary proceeding arises out of Domin-8's jointly administered bankruptcy cases. Domin-8 sought and obtained the approval of this court to employ Bricker & Eckler LLP ("Bricker & Eckler") as counsel to them as debtors-in-possession (Est. docs. 112 & 187),1 with David M. Whittaker ("Whittaker") serving as "lead counsel" for Domin-8 (Est. doc. 112) (collectively, "Bricker").

Domin-8 sought to sell substantially all of its assets under § 363 of the Bankruptcy Code (Est. docs. 19 & 69). After a vigorously contested sale process, the court approved the sale of Domin-8's assets to RealPage, Inc. under an Asset Purchase Agreement ("APA") for a cash purchase price of $14 million (the "Sale Proceeds") (Est. doc. 351). Following the consummation of the sale, Domin-8 proposed and the court confirmed the Third Amended Plan of Liquidation (Est. doc. 550) (the "Plan"). Confirmation Order (Est. doc. 555). The Plan was drafted by Bricker and provided for the liquidation of Domin-8's assets and the distribution of the Sale Proceeds through a liquidating trust (the "Liquidating Trust") established through the Liquidating Trust Agreement. Confirmation Order, ¶ 28 (Est. doc. 555) and Plan, Article V. The "Plan Trustee" was to take possession of and distribute the Sale Proceeds under the Plan and Liquidating Trust Agreement. Plan, Article V. At all relevant times, Tim Hock ("Hock") served as the Responsible Person for Domin-8 under Local Bankruptcy Rule 1074-1 until the Effective Date of the Plan and then upon the Effective Date of the Plan, became the Plan Trustee. Confirmation Order, ¶¶ 30 & 38 (Est. doc. 555). The Plan and the Liquidating Trust Agreement limit the Plan Trustee's and his employed professionals' liability to "acts or omissions resulting from willful misconduct or gross negligence." Plan, Article V § A. 2. e.; Liquidating Trust Agreement, Article IV § 4.4. The Confirmation Order approved the employment of Bricker & Eckler as the Plan Trustee's legal counsel. Confirmation Order at 15, ¶ H (Est. doc. 555).

Section 10.14 of the Liquidating Trust Agreement provided for the posting of a bond by the Plan Trustee. Specifically, that provision states:

Est. doc. 555 at 71. The evidence establishes that this bond requirement was included in the Liquidating Trust Agreement at the request of the United States Trustee. Specifically, MaryAnne Wilsbacher, an Assistant United States Trustee, in the process of the drafting and circulation of the Plan documents, insisted that the bond requirement be included in the Liquidating Trust Agreement. See Transcript of Deposition of David Michael Whittaker ("Whittaker Dep."), Adv. doc. 57 (Exhibit A at 28-29). The emails between Wilsbacher and Whittaker were as follows:

Defendants' Motion for Summary Judgment (the "Motion for Summary Judgment"), Adv. doc. 52 (Exhibit A-6 at 2, ¶ 5). In addition, the Plan provided for the Plan Trustee's "obtaining and paying the premiums for liability insurance and bond premium for the Plan Trustee." Plan, Article V § A. 2. d. (22). See also Article III § 3.1. w. of the Liquidating Trust Agreement providing for the Plan Trustee's payment of "the premiums for liability insurance and bond premium for the Plan Trustee[.]" Est. doc. 555 at 64.

On December 8, 2010 Whittaker sent an email to Hock suggesting the name of a bonding company which Hock could pursue to obtain the required bond. Hock responded to that email with the following email reply: "Thanks, meaning to ask you about this." Motion for Summary Judgment, Adv. doc. 52 (Exhibit A, Decl. of David Whittaker ("Whittaker Declaration") at ¶14); Exhibit A-8; and Whittaker Dep. at 31:6-7. The Effective Date of the Plan, at which time the Liquidating Trust became effective, was December 22, 2010. See Est. doc. 570, ¶ 11 and Est. doc. 550 at 6, ¶ 41 and at 16, Art. V § A. 1. Whittaker did not communicate further with Hock about the bond until sometime in February 2011, at which time Hock sent Whittaker an email "indicating that he had explored obtaining a bond, that it was going to take about 30 days and asked if, in view of the fact that the substantial portion of the intended distributions has been made would he still need to obtain a bond. And I had a brief follow-up telephone conversation with him where I said, `Yes, you must get a bond.'" Whittaker Dep. at 31. This appears to have been the last communication between Whittaker and Hock concerning the acquisition of the bond. See also Motion for Summary Judgment at 5. It is undisputed that a bond was never obtained by Hock.

On December 15, 2010 the court entered an Order Concerning Post-Confirmation Procedures, which required Domin-8 to "file a report pursuant to Local Bankruptcy Rule 3020-2 . . . on June 10, 2011, and every six months thereafter until a final report and motion for final decree is filed." Est. doc. 560.

Domin-8 filed post-confirmation reports every six months (Est. docs. 601, 610, 625, & 626) until July 16, 2013 when Bricker filed a Motion for an Order (1) Removing Timothy Hock as the Trustee of D8 2010 Inc. Liquidating Trust; (2) Appointing a Successor Trustee; (3) Placing an Administrative Freeze on the Bank Account(s) of D8 2010 Inc. Liquidating Trust; and (4) Waiving Notice (Est. doc. 629). The Motion asked for the removal of Hock as the Plan Trustee because he disappeared and stopped communicating with Bricker prior to the final distributions having been made to the creditors under the Plan and Liquidating Trust. On that same date, the court entered an order approving that motion, which removed Hock as the Plan Trustee (Est. doc. 630). Subsequently, Hock pled guilty in the United States District Court for the Southern District of Ohio to embezzlement from the Domin-8 bankruptcy estate and income tax evasion.

After Hock's removal, Richard D. Nelson was appointed as the Successor Trustee under the Liquidating Trust Agreement (Est. doc. 635). Shortly after Nelson was appointed as the Successor Trustee, he moved to convert the Chapter 11 cases to Chapter 7, which the court granted (Est. docs. 662 & 668).2 Thus, Nelson serves both as the Successor Trustee of the Liquidating Trust and as the Chapter 7 trustee for the Domin-8 bankruptcy estates and shall collectively be referred to as the "Trustee." The Trustee hired his law firm, Cohen, Todd, Kite & Stanford, LLC, to represent him as the Chapter 7 Trustee (Est. docs. 673 & 683).

The Trustee filed this adversary proceeding against Bricker, asserting claims against Whittaker for malpractice, breach of fiduciary duty, and for recoupment and disgorgement of attorney fees and expenses paid to him and against Bricker & Eckler for vicarious liability on account of Whittaker acting as an agent and employee, or partner of Bricker & Eckler (Est. doc. 660). Bricker filed an answer and counterclaims seeking recovery of $31,821.67 which they claim is still owed to them for services provided to the Liquidating Trust and for declaratory judgment on the Trustee's claim seeking disgorgement of attorney fees. No party has made a jury demand. After discovery was conducted and experts retained, Bricker filed this Motion for Summary Judgment and a separate Motion to Strike the Expert Report of Robert Goering and to Exclude His Testimony (Adv. docs. 53). The Trustee has opposed both of those motions. The court is addressing the Motion to Strike through a separate decision and order being contemporaneously entered with this decision.

II. Bankruptcy Court's Jurisdiction and Constitutional Authority to Enter a Final Judgment

The parties have not disputed this court's jurisdiction, nor its constitutional authority to enter a final order or judgment in this matter. They have asserted that this proceeding is a core proceeding and that "[a] non-core proceeding is not alleged." See Joint Preliminary Pretrial Statement of the Parties (Adv. doc. 21 at 2-3). Further, The Plan, Confirmation Order, and the Liquidating Trust Agreement provide to the maximum extent possible for the continued jurisdiction of this court over the affairs relating to the Plan, Confirmation Order, the Liquidating Trust Agreement, and the Trust.3

However, consent of the parties cannot create jurisdiction in a federal court if the court does not independently have statutory jurisdiction over the matter and it is always incumbent upon this court to police its own jurisdiction. As this court has previously stated:

Johnston v. City of Middletown (In re Johnston), 484 B.R. 698, 705 (Bankr. S.D. Ohio 2012). The Bankruptcy Appellate Panel for the Sixth Circuit has noted that "[w]hile the effect of [retention of jurisdiction] provisions would not be to deprive the court of jurisdiction otherwise afforded by 28 U.S.C. § 1334, retention of jurisdiction provisions might condition or limit the court's exercise of post-confirmation jurisdiction." Thickstun Bros. Equip. Co., Inc. v. Encompass Servs. Corp. (In re Thickstun Bros. Equip. Co., Inc.), 344 B.R. 515, 522 (B.A.P. 6th Cir. 2006).

This court's jurisdiction over and the ability to enter a final judgment with respect to the Trustee's claim concerning attorney fees and expenses paid to Bricker during the Chapter 11 cases (Count Three) is well-established. See 28 U.S.C. § 157(b)(1) and (2)(A), (B), and (O); 11 U.S.C. §§ 327-331; Nischwitz v. Miskovic (In re Airspect Air, Inc.), 385 F.3d 915, 920 (6th Cir. 2004); and Henderson v. Kisseberth (In re Kisseberth), 273 F.3d 714, 718-19 (6th Cir. 2001). However, the issues relating to whether the court has jurisdiction over and the ability to enter final orders relating to the malpractice (Count One), breach of fiduciary duty (Count Two), and vicarious liability (Count Four) claims require closer scrutiny.

The court must always be cautious when asked to pass judgment on a claim which strays from the ordinary day-to-day matters over which it presides, such as matters pertaining to the administration of bankruptcy cases, determining the extent of the bankruptcy estate, adjudicating proceedings to recover property of the estate, adjudicating avoidable transfer claims to bring property into the bankruptcy estate, determining the extent of the bankruptcy stay and of the debtor's discharge, approval of bankruptcy plans, resolving claims filed in the case, and reviewing and determining attorney fees in bankruptcy cases.4 After all, federal courts are courts of limited jurisdiction. Michigan Emp. Sec. Comm'n v. Wolverine Radio Co. (In re Wolverine Radio Co.), 930 F.2d 1132, 1137 (6th Cir. 1991); Robinson v. Michigan Consolidated Gas Co. Inc., 918 F.2d 579, 582 (6th Cir. 1990); Uber v. Nelnet, Inc. (In re Uber), 443 B.R. 500, 504 (Bankr. S.D. Ohio 2011). Bankruptcy courts have specific statutory limits on the cases, proceedings and matters which they may hear, rather than broad general jurisdiction over cases or controversies. As stated by the Supreme Court in Celotex Corp v. Edwards: "The jurisdiction of the bankruptcy courts, like that of other federal courts, is grounded in, and limited by, statute." 514 U.S. 300, 307 (1995) (quoted in Johnston, 484 B.R. at 705-06).

The bankruptcy court derives its jurisdiction from 28 U.S.C. § 1334 which provides, in pertinent part:

28 U.S.C. § 1334(a), (b), and (e)(1).5 In Wolverine Radio the Sixth Circuit determined that in considering its jurisdiction, a bankruptcy court need not "distinguish between the second, third, and fourth categories (proceedings `arising under,' `arising in,' and `related to' a case under title 11)" because those "references operate conjunctively to define the scope of jurisdiction." 930 F.2d at 1141 (citing In re Wood, 825 F.2d 90, 93 (5th Cir. 1987)). For purposes of determining its jurisdiction, the bankruptcy court need only determine whether a matter is at least "related to" the bankruptcy. Id.

The Sixth Circuit has adopted the Pacor standard for determining whether a matter is "related to" the bankruptcy:

Lindsey v. O'Brien, Tanski, Tanzer & Young Health Care Providers (In re Dow Corning Corp.), 86 F.3d 482, 489 (6th Cir. 1996) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)). Congress intended "to grant comprehensive jurisdiction to the bankruptcy courts so that they might deal efficiently and expeditiously with all matters connected with the bankruptcy estate." Celotex, 514 U.S. at 308 (citations omitted). Adhering to the Supreme Court's determination in Celotex, the Sixth Circuit has given "related to" jurisdiction a broad interpretation. See Dow Corning, 86 F.3d at 488-95. See also McKinstry v. Sergent, 442 B.R. 567 (E.D. Ky. 2011) (citing Susan Block-Lieb, The Case Against Supplemental Bankruptcy Jurisdiction: A Constitutional, Statutory, and Policy Analysis, 62 Fordham L. Rev. 721, 779-80, 784-85) ("The unqualified breadth of the phrase `related to'—a phrase elsewhere used to denote supplemental jurisdiction—might even suggest that it is as broad a grant of supplemental jurisdiction as Congress can constitutionally give."). Nevertheless, "`situations may arise where an extremely tenuous connection to the estate would not satisfy the jurisdictional requirement' of Section 1334(b)." Dow Corning, 86 F.3d at 489 (citing Robinson v. Mich. Consol. Gas Co., Inc., 918 F.2d 579, 584 (6th Cir. 1990)).

This definition of "related to" jurisdiction has engendered significant litigation and decisions. One such area of dispute is over Chapter 11 post-confirmation matters. As the Sixth Circuit has stated, "[a]t the most literal level, it is impossible for the bankrupt debtor's estate to be affected by a post-confirmation dispute because the debtor's estate ceases to exist once confirmation has occurred." Papas v. Buchwald Capital Advisors, LLC (In re Greektown Holdings, LLC), 728 F.3d 567, 577-78 (6th Cir. 2013) (quoting Binder v. Price Waterhouse & Co., LLP (In re Resorts Int'l, Inc.), 372 F.3d 154, 165 (3d Cir. 2004)). Nevertheless, courts have frequently found bankruptcy court jurisdiction to exist over some Chapter 11 post-confirmation matters. As noted by the Third Circuit:

Nuveen Mun. Trust v. Withumsmith Brown, .C., 692 F.3d 283, 294-95 (3rd Cir. 2012) (quoting Resorts Int'l, Inc., 372 F.3d at 164-65). As noted in In re Regional Diagnostics the "close nexus test" is applied to determine "related to" jurisdiction for post-confirmation Chapter 11 matters. Morris v. Zelch (In re Regional Diagnostics, LLC), 372 B.R. 3, 22-25 (Bankr. N.D. Ohio 2007). The "close nexus" test sweeps in such matters as those "that affect the interpretation, implementation, consummation, execution, or administration of the confirmed plan." Thickstun, 344 B.R. at 521 (quoting Resorts Int'l Fin., 372 F.3d at 167).

Many courts have found jurisdiction to exist over claims relating to post-confirmation trusts established through Chapter 11 plans, such as litigation trusts, liquidation trusts, and settlement trusts. See Mayor and City Council of Baltimore, Maryland v. State of West Virginia (In re Eagle-Picher Indus., Inc.), 285 F.3d 522, 524 (6th Cir. 2002) (post-confirmation jurisdiction existed over dispute involving a settlement trust); McKinstry v. Sergent, 442 B.R. 567 (E.D. Ky. 2011) (related to jurisdiction existed as to claims assigned to a post-confirmation trust involving "pre-petition and mid-bankruptcy conduct"); The ew Nat'l Gypsum o. v. The Nat'l Gypsum Co. Settlement Trust (In re Nat'l Gypsum Co.), 219 F.3d 478, 479, 493 (5th Cir. 2001) (jurisdiction existed over a post-confirmation proceeding when the court had to interpret the plan of reorganization in order to resolve a dispute concerning a settlement trust); Plotner v. AT&T Corp., 224 F.3d 1161, 1171 (10th Cir. 2000) (post-confirmation fraud proceeding involving a trust formed by the plan was related to the bankruptcy proceeding); and United States v. Unger, 949 F.2d 231, 233-35 (8th Cir. 1991) (post-confirmation jurisdiction existed over proceeding to recover trust funds deposited into personal account of a representative of the creditors committee).

However, some courts have been more circumspect with respect to a bankruptcy court's post-confirmation jurisdiction over Chapter 11 bankruptcy trusts, voicing concern that without limits such cases "would . . . raise the specter of `unending jurisdiction' over continuing trusts." Resorts Int'l Fin., 372 F.3d at 167. Courts, though, have been much less concerned with finding bankruptcy court jurisdiction to exist over claims relating to a liquidating trust, such as is involved in this case, because "the specter of unending" jurisdiction is not present because "by definition [a liquidating trust] cannot reenter the marketplace (unlike a reorganized debtor), and exists only until the debtor's remaining assets have been liquidated." Street v. The End of the Road Trust, 386 B.R. 539, 546 (Del. 2008); Boston Reg'l Med. Ctr., Inc. v. Reynolds (In re Boston Reg'l Med. Ctr., Inc.), 410 F.3d 100, 106-07 (1st Cir. 2005).

Whether a bankruptcy court has jurisdiction over professional malpractice claims has also engendered significant litigation and decisions within and outside the Sixth Circuit. Courts within the Sixth Circuit held that under the circumstances of these cases that the bankruptcy court did not have jurisdiction over the malpractice claims: Stewart v. Henry (In re Stewart), 62 F. App'x 610, 613 (6th Cir. Apr. 7, 2003) (malpractice claim removed from state court against attorney alleged to have "switched sides" from representing the debtors to representing the Chapter 7 trustee in litigating and settling a lender liability claim pursued against the debtors' former lender); Hart v. Logan (In re Hart), No. 05-8001, 2005 Bankr. LEXIS 1187 (B.A.P. 6th Cir. June 24, 2005) (malpractice action filed in state court and removed to bankruptcy court against debtors' former Chapter 12 counsel alleging that counsel mis-informed them as to the postponement of a foreclosure sale on some of their real property); Terlecky v. Baruch (In re Baruch), 446 B.R. 844, 848 (Bankr. S.D. Ohio 2011) (malpractice claim against debtors' former Chapter 7 counsel relating to a reaffirmation agreement); Sicherman v. Crosby (In re Rivera), 379 B.R. 728, 731 (Bankr. N.D. Ohio 2007) (debtor's malpractice claim against former personal injury attorney relating to advice given concerning disposition of the proceeds from his personal injury claim); and Newman v. Bamberger (In re Newman), No. 15-3100, 2016 Bankr. LEXIS 579 (Bankr. S.D. Ohio Feb. 17, 2016) (malpractice claim against former Chapter 7 bankruptcy counsel for collecting discharged attorney fees). The key to these decisions is that they all involved malpractice claims which the Chapter 7 or Chapter 12 debtors were pursuing for their individual benefit against their former legal counsel, not as a claim of the bankruptcy estate for the benefit of the estate's creditors. Thus, these claims were not property of estate over which the district court and bankruptcy courts had exclusive jurisdiction under 28 U.S.C. § 1334(e)(1) and there was no basis for them to be administered through the bankruptcy court.

Professional malpractice claims arising out of Chapter 11 bankruptcy cases test the outer limits of bankruptcy court jurisdiction. Thus, the Third Circuit held that the bankruptcy court did not have "related to" jurisdiction over accounting malpractice claims against Price Waterhouse brought by the trustee of a litigation trust when, despite that fact that recovery on the claims would affect the prepetition creditors of the debtor as litigation trust beneficiaries, resolution of the claims would not affect the bankruptcy estate; would only have an incidental effect on the reorganized debtor; and would not interfere with the implementation of the Chapter 11 plan. Resort Int'l, 372 F.3d 154. The Court determined that the prepetition creditors no longer had a close nexus to the bankruptcy plan or proceeding because they "exchanged their creditor status" to obtain rights as beneficiaries of the litigation trust. On the other hand, the Third Circuit also found that the bankruptcy court did have jurisdiction over a municipal trust's malpractice claims against an accountant and attorney when resolution of those claims could reduce the plaintiff's claims against the bankruptcy estate. Nuveen, 692 F.3d at 298. Finally, the Third Circuit found that the bankruptcy court had "arising in" jurisdiction over accountant malpractice claims against Ernst & Young. Geruschat v. Ernst Young LLP (In re Seven Fields Dev. Corp.), 505 F.3d 237, 260 (3d Cir. 2007). The Court emphasized that Ernst & Young's services in the bankruptcy case, including preparation of the schedules and its opining on the debtors' insolvency, and the court's review and approval of its fees paid for the work it performed for the debtors "implicated the integrity of the entire bankruptcy process" and was "inseparable from the bankruptcy context." Id. at 260-61 (citation omitted). In Schwab the court synthesized the cases finding bankruptcy court jurisdiction to exist over malpractice claims arising out of Chapter 11 cases as follows:

Schwab v. Oscar (In re SII Liquidation Co.), 10-60702, 2012 Bankr. LEXIS 4374, at *9-10 (Bankr. N.D. Ohio Sept. 20, 2012) (finding that the bankruptcy court had "arising in" jurisdiction over malpractice claim against debtors' lead counsel when the claim was "a collateral attack on the bankruptcy case.").6

The parties have asserted that their claims and counterclaims are core proceedings and no party has disputed this court's jurisdiction over any of the claims. The Plan, Confirmation Order, and the Liquidating Trust Agreement provide to the maximum extent for the continuation of the jurisdiction of this court. The fact that all of those claims, except the Trustee's disgorgement claim, arise out of post-confirmation conduct and that the malpractice, breach of fiduciary duty, and vicarious liability claims are state law claims, sway the jurisdictional analysis towards this court not having jurisdiction over the state law claims. However, the malpractice, breach of fiduciary duty, and vicarious liability claims arise out of the Liquidating Trust Agreement formed through the Plan and Confirmation Order and, specifically, raise issues as to whether Bricker's conduct in relation to the implementation of the Trust and Hock's handling of the Trust funds fell below the standard of care required of legal counsel to such post-confirmation trusts. Those claims, in essence, seek to recover funds which Hock diverted from the bankruptcy estate or the Liquidating Trust which would have been distributed to the beneficiaries of the Trust in lieu of their claims against Domin-8 and the bankruptcy estate.

The Confirmation Order specifically provided for the employment of Bricker & Eckler as counsel to Hock (Est. doc. 555 at 15, ¶ H). The Plan provides that the bankruptcy "[e]state shall survive and be transferred to the Trust and administered by the Liquidating Trust and shall continue to be subject to the jurisdiction of the Court following Confirmation of the Plan until distributed to holders of Allowed Claims in accordance with the provisions of the Plan." Est. doc. 550, Article V § A. 2. f. The Liquidating Trust Agreement has folded all of these claims and the Trust assets back into Domin-8's bankruptcy estate through § 2.8 of that agreement which provides that: "Should the Chapter 11 Cases be converted to proceedings under Chapter 7 of the Bankruptcy Code, then the Chapter 7 trustee (whether by appointment or election) shall immediately be substituted as Successor Plan Trustee hereunder." Est. doc. 550 at 47, § 2.8. Further, § 10.19 of the Liquidating Trust Agreement wraps that Agreement into the Plan, stating that: "The principal purpose of this Agreement is to aid in the implementation of the Plan and, therefore, this Agreement incorporates and is subject to the provisions of the Plan." Est. doc. 550 at 55, § 10.19. Thus, the Liquidating Trust Agreement's creation was not tangential, but central to the confirmation of the Plan. The state law claims relate to the implementation, consummation, execution, and administration of the confirmed Plan. The Trustee has been appointed as the Chapter 7 trustee over the converted bankruptcy estate. Under these circumstances, these claims satisfy the close nexus test and arise in or are related to the Domin-8 bankruptcy case and the court has jurisdiction over them.

The last issue which must be addressed concerning the court's ability to adjudicate this proceeding is this court's authority to issue a final order or judgment. A bankruptcy court's ability to render final judgments over state law claims came into question in Stern v. Marshall, 564 U.S. 462 (2011). In that case the Supreme Court determined that, even if Congress has identified a particular type of proceeding in a bankruptcy case as a "core" proceeding under 28 U.S.C. § 157(b)(2), a bankruptcy court, as an Article I court, does not have the constitutional authority to enter final judgments on the claim if it is a state law claim which would not be resolved in the process of allowing or disallowing claims against the estate. Further, as noted in Waldman v. Stone, mere overlap of the facts involving allowance of a claim and the facts pertaining to the state law claim, such as claims arising out of the same transaction or occurrence, does not allow the court to enter final judgment as to a state law claim which would not be completely resolved through the claims allowance process. 698 F.3d 910, 921 (6th Cir. 2012). "[F]or a bankruptcy court to enter final judgment as to claims that seek an award of money damages to the estate, there must have been, at the outset of the claims-disallowance process, `reason to believe that the process of adjudicating [the] proof of claim would necessarily resolve' the damages claim." Id. (citing Stern, 564 U.S. at 497).

However, if a Stern claim is involved, the parties may nevertheless expressly or impliedly waive or consent to a bankruptcy court's entering of final judgment on such claims if that consent is knowing and voluntary. Wellness Int'l Network LTD. v. Sharif, 135 S.Ct. 1932, 1939 (2015). "[T]he key inquiry is whether `the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case' before the non-Article III adjudicator." Id. at 1948 (citing Roell v. Withrow, 538 U.S. 580, 588 (2003)).

The Trustee's malpractice, breach of fiduciary duty, and vicarious liability claims have the trappings of being claims of the nature described in Stern. They are state law claims which would not have been resolved in the process of allowing or disallowing claims against the estate. See In re Renewable Energy Dev. Corp., 792 F.3d 1274, 1279 (10th Cir. 2015) (Malpractice and breach of fiduciary duty claims against former trustee arising out of allegations of conflicts of interest were Stern claims which the district court could not transfer to the bankruptcy court without the parties' consent.). However, in response to an Order from this court, all of the parties to this adversary proceeding have consented to this court's entering of final judgment on all of the claims of the parties. See Adv. docs. 61, 63, and 64.

III. Positions of the Parties

The Trustee alleges that:

Complaint, ¶¶ 22-24, 34, and 39-58. Bricker, on the other hand, alleges that:

Answer and Counterclaims, Adv. doc. 8, ¶¶ 13-29; Motion for Summary Judgment at 1.

IV. Substantive Analysis

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a), made applicable to adversary proceedings through Bankruptcy Rule 7056, sets forth the standard to address the parties' filings. It states, in part, that a court must grant summary judgment to the moving party if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.

In order to prevail, the movant, if bearing the burden of persuasion at trial, must establish all elements of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If the burden is on the nonmovant at trial, the movant must: 1) submit affirmative evidence that negates an essential element of the nonmovant's claim or 2) demonstrate to the court that the nonmovant's evidence is insufficient to establish an essential element of the nonmovant's claim. Id. at 331-32. Thereafter, the nonmovant "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). All inferences drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587-88.

B. Summary Judgment is Denied as to Count One Alleging Professional Negligence of Whittaker

Bricker asserts that it is entitled to summary judgment on the malpractice claim against Whittaker because Whittaker advised Hock to obtain the bond required under the Liquidating Trust Agreement and Hock's failure to follow that advice cannot, as a matter of law, constitute gross negligence7 — the standard provided by the Liquidating Trust Agreement.8 In addition, Bricker argues that Whittaker had no duty to monitor or supervise Hock's conduct in a manner which would have revealed Hock's misappropriation of funds. These conclusions require an analysis of the standard of care and duties owed by bankruptcy practitioners under such circumstances.

"`[M]alpractice' refers to professional misconduct, i.e. the failure of one rendering services in the practice of a profession to exercise that degree of skill and learning normally applied by members of that profession in similar circumstances." Nat'l Union Fire Ins. Co. v. Wuerth, 913 N.E.2d 939, 942 (Ohio 2009) (quoting Strock v. Pressnell, 527 N.E.2d 1235, 1239 (Ohio 1988)). To establish a cause of action for legal malpractice based on negligent representation, the following must be established: "1) the attorney owed a duty or obligation to the plaintiff; 2) that there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law; and 3) that there is a causal connection between the conduct complained of and the resulting damage or loss." Envtl. Network Corp. v. Goodman Weiss Miller, L.L.P., 893 N.E.2d 173, 176 (Ohio 2008) (quoting Vahila v. Hall, 674 N.E.2d 1164, syllabus (Ohio 1997)); and Krahn v. Kinney, 538 N.E.2d 1058, 1061 (Ohio 1989). See also Hustler Cincinnati, Inc. v. Cambria, 625 F. App'x 712, 715 (6th Cir. 2015) and Antioch Litigation Trust v. McDermott Will & Emery LLP, 738 F.Supp.2d 758, 764 (S.D. Ohio 2010) (both applying Ohio law and breaking these three elements into five elements).

The existence of a duty is a question of law for the court to determine, at least "in the first instance." Frano v. Red Robin Int'l, Inc., 907 N.E.2d 796, 804 (Ohio Ct. App. 2009); Clemets v. Heston, 485 N.E.2d 287, 290 (Ohio Ct. App. 1985); Studniarz v. Sears Roebuck & Co., No. 2009-L-159, 2010 Ohio App. LEXIS 2551, at *6 (Ohio Ct. App. June 30, 2010). As stated by an Ohio appellate court:

Wagar v. Brinkman, No. 23019, 2009 Ohio App. LEXIS 2047, at *13 (Ohio Ct. App. May 22, 2009) (citing Prosser & Keeton, Law of Torts (5th ed. 1984) at 356, § 53).

The attorney's duty to a client is to "exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated, and to be ordinarily and reasonably diligent, careful, and prudent[.]" Pierson v. Rion, No. CA23498, 2010 Ohio App. LEXIS 1492, at *19 (Ohio Ct. App. Mar. 23, 2010) (quoting Marbury v. Schaengold, No. 21120, 2006 Ohio App. LEXIS 1659, at *5 (Ohio Ct. App. Apr. 7, 2006)). See also Harrell v. Crystal, 611 N.E.2d 908 (Ohio Ct. App. 1992). Expert witness testimony is required in a legal malpractice action to establish the attorney's breach of this duty to the client, unless "the breach or lack thereof is so obvious that it may be determined by the court as a matter of law, or is within the ordinary knowledge and experience of laymen." Bloom v. Dieckmann, 464 N.E.2d 187, 188 (Ohio Ct. App. 1983); Carolina Cas. Ins. Co. v. Sharp, 940 F.Supp.2d 569, 578 (N.D. Ohio 2013) (citing Kreuzer v. Merritt, 18442, 2000 WL 1643794, at *2 (Ohio Ct. App. Nov. 3, 2000)) ("Expert testimony is not required, however, in cases in which the breach is `so obvious that it may be determined by the court as a matter of law.'") See also imacchia v. Burke, 904 F.2d 36, 1990 U.S. App. Lexis, at *2 (6th Cir. June 7, 1990) (table decision) and McInnis v. Hyatt Legal Clinics, 461 N.E.2d 1295, 1297 (Ohio 1984).

An attorney's role as to the client is fiduciary in nature. Tonwe v. Harris-Miles (In re Harris-Miles), 187 B.R. 178, 182 (Bankr. N.D. Ohio 1995). As stated by another Ohio appellate court:

Adams v. Fleck, 154 N.E.2d 794, 799-800 (Ohio Prob. Ct. 1958), aff'd 172 N.E.2d 126 (1961).9 Thus, in this case, Whittaker's relationship to Domin-8, as the debtors-in-possession, and then Hock as the Plan Trustee was fiduciary in nature.

The Ohio Rules of Professional Conduct are also instructive on the duty of care owed by an Ohio attorney to a client. While violation of such a rule does not give rise to a cause of action against the lawyer, nor give rise to any type of presumption, a lawyer's violation of a Rule of Professional Conduct may be evidence of the breach of an applicable standard of conduct. Ohio Rules of Professional Conduct, Preamble: Scope, ¶ 20.10 See also Krischbaum v. Dillon, 567 N.E.2d 1291, 1301 (Ohio 1991) (citing Eisenhuth v. Moneyhon, 119 N.E.2d 440, 444 (Ohio 1954)) ("While the failure to comply with general rules of conduct, like the rules of conduct involved in the case before us [the Ohio Code of Professional Responsibility which preceded the Ohio Rules of Professional Conduct], will not ordinarily constitute negligence per se, it is a circumstance that can be considered, along with other facts and circumstances, in determining whether the actor has acted with reasonable concern for the safety and welfare of others — that is, with due care."); and Perin v. Spurney, No. 05AP-428, 2005 Ohio App. LEXIS 6112, at *19 (Ohio Ct. App. Dec. 22, 2005) (Court may consider an attorney's responsibilities under the Rules of Professional Responsibility in determining whether to disqualify the attorney from a matter.). The court will now discuss a few of the Ohio Rules of Professional Conduct which will help to inform the court as to the standard of care owed by Whittaker in this case and whether that standard of care was breached.

First, an attorney owes the client the duty to provide competent representation. Ohio Rule of Prof. Conduct 1.1. Factors relevant in determining an attorney's competence on a matter include: "the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question." Ohio Rule of Prof. Conduct 1.1 Comment 1. The competent handling of a matter entails: a) adequate preparation, which varies depending upon the significance of the matter — the more complex and significant the matter is, the greater preparation and attention that is required; b) inquiry into and analysis of the factual and legal components of the matter; and c) utilization of an approach which meets the standards of competent practitioners. Ohio Rule of Prof. Conduct 1.1 Comment 5.

Second, an attorney must act diligently. This requires that the attorney act promptly to address the tasks for which the lawyer has been employed; be committed and dedicated to the task; manage the lawyer's work load to perform all matters competently; and execute the tasks to conclusion unless the attorney-client relationship is terminated prior to the conclusion of those matters. Ohio Rule of Prof. Conduct 1.3 and Comments 1-4.

Third, as an advisor, an attorney must exercise independent professional judgment. This task involves not only the rendering of legal conclusions, but advice on moral, economic, social, and political factors pertinent to the circumstances. In this role, the attorney is to render candid, honest guidance which may be disconcerting to the client. Ohio Rule of Prof. Conduct 2.1 and Comments 1-3.

With respect to the post-confirmation reports filed in this case by Hock and Whittaker, as Hock's counsel, Goering analogizes to Bankruptcy Rule of Procedure 9011(b) regarding the investigation which he asserts that Whittaker should have conducted concerning the information provided by Hock and included in the post-confirmation reports. See also Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) ("Rule 11 defines a new form of legal malpractice"). Goering points out that under the Rule Whittaker had a duty to conduct a reasonable investigation into the facts supporting any filing made with the court. However, this investigation need only be a "reasonable" one and "[c]ourts must be very, very, very careful not to impose on . . . counsel burdens which are impractical under the circumstances of their representation." In re Withrow, 391 B.R. 217, 227 (Bankr. Mass. 2008). In the preparation of the petition, schedules, and other preliminary filings of a bankruptcy case, the Withrow court noted that any analysis of the attorney's performance under Rule 9011 is an objective one and suggested the following as considerations under that analysis:

Id. at 228. See also In re Hanson, No. 8-13-73855-las, 2015 Bankr. LEXIS 607, at *17 (Bankr. E.D.N.Y. Feb. 27, 2015); and In re Mathews, No. 08-10871, 2009 Bankr. LEXIS 2016, at *11 (Bankr. Kan. July 2, 2009) (applying this five-question analysis to determine whether an attorney should be required to disgorge attorney fees under Code § 329(b)).

In Elam v. Hyatt Legal Services, 541 N.E.2d 616 (Ohio 1989), the Ohio Supreme Court held that: a) it is the duty of a fiduciary to serve as a representative to the entire estate; b) the fiduciary owes a duty to the beneficiaries of the estate to act in a manner which protects the beneficiaries' interests; c) the fiduciary's duties to the beneficiaries results in the beneficiaries being in privity with the attorney for the fiduciary; and d) where such privity exists, the attorney has malpractice liability exposure to the beneficiaries. Then in Arpadi v. First MSP Corp., 628 N.E.2d 1335, 1336 (Ohio 1994) the Ohio Supreme Court extended this concept to the partners of a limited partnership. Thus, an attorney retained by a fiduciary owes a duty not only to the fiduciary, but also to those with whom the fiduciary has a fiduciary relationship. Brinkman v. Doughty, 748 N.E.2d 116, 118 (Ohio Ct. App. 2000). The upshot of these principles is that Hock owed his fiduciary duties to the entire Liquidating Trust estate and that Whittaker, when he assumed his role as attorney for the Liquidating Trust upon the Effective Date of the Plan, owed his fiduciary duties and obligations as an attorney not only to Hock as the Plan Trustee, but also to the creditors as the beneficiaries of the Litigation Trust. See also Ohio Rule of Professional Conduct 1.13 (Organization as Client).

Bricker's Motion understates the obligations owed by bankruptcy counsel under the prevailing standards for bankruptcy counsel. Counsel for a Chapter 11 debtor-in-possession owes fiduciary obligations. While there is some debate in the case law and legal literature as to whether those fiduciary obligations flow just to the debtor-in-possession or also to the bankruptcy estate and the creditors, there is no dispute that the role of counsel to a debtor-in-possession creates fiduciary obligations. See In re Count Liberty, LLC, 370 B.R. 259, 280 (Bankr. C.D. Calif. 2007) ("According to the majority of courts addressing this issue, an attorney for a debtor in possession is a fiduciary of the bankruptcy estate."); and Hansen, Jones & Leta, P.C. . Segal, 220 B.R. 434, 465 (Utah 1998) ("The `fiduciary duty to the estate' language interspersed throughout the above-cited opinions is no doubt intended to impress on counsel for debtor-in-possession his/her obligation to assist the debtor-in-possession in carrying out its responsibility to act in the best interest of the estate."). As stated in Hansen, Jones & Leta:

Id at 454. See also In re Mushroom Transportation Co., Inc., 366 B.R. 414, 441 (Bankr. E.D. Pa. 2007). In Lee Way Holding the court emphasized not only this fiduciary obligation owed to the bankruptcy estate, but also to the court:

In re Lee Way Holding Co., 100 B.R. 950, 961 (Bankr. S.D. Ohio 1989) (citations omitted).

However, Whittaker served as counsel not just for Domin-8, the debtors-in-possession during the pendency of the Chapter 11 case, but also for the Liquidating Trust and through the transition from the debtors-in-possession to the Liquidating Trust. Nevertheless, from a tort duty perspective the standard of care is the same, except that until Whittaker switched hats from serving as counsel to Domin-8 to serving as counsel for the Liquidating Trust, negligence rather than gross negligence is the standard against which his conduct must be measured.11 Regardless of the hat he was wearing, though, he owed the fiduciary obligations to the clients, whether the clients were the debtors-in-possession or the Plan Trustee and Liquidating Trust.

Applying all of these principles concerning the duties of counsel, particularly bankruptcy counsel under the context of this case; the principles governing legal malpractice claims in Ohio; and the facts and circumstances of this case as presented through the parties' summary judgment filings, the court must deny Bricker's Motion as to the First Count for malpractice. First, the Motion is largely premised upon the proposition that the standard of care which Whittaker owed in this case did not go beyond advising the Plan Trustee that he was obligated under the Liquidating Trust Agreement to obtain a bond. See Motion for Summary Judgment, Adv. doc. 52 at 1, 7, and 13. However, that issue is a question of fact, and a very contested one in this case. As previously noted, whether an attorney violated the standard of care required of the attorney and, therefore, breached the attorney's duty, must be established by expert witness testimony absent such breach being obvious to a layperson, which it is not in this case. The Trustee's expert, Robert A. Goering, has opined through his expert report that Whittaker's conduct breached that standard of care. Bricker's expert, Kim Martin Lewis, has opined that the conduct did not breach that standard of care.

Bricker's argument that Whittaker simply had a duty to advise, and nothing more, appears to understate the duties owed by attorneys in Ohio, and particularly bankruptcy counsel to fiduciaries. As noted, regardless of what period of time is analyzed and what hat Whittaker was wearing, he owed fiduciary duties. While legal counsel are not insurers, their fiduciary obligations to bankruptcy estates and trusts extend beyond merely giving advice. See County Liberty, LLC, 370 B.R. 259, 287 (Bankr. C.D. Cal. 2007) ("When counsel fails to act diligently to ensure that the debtor in possession's management protect the estate from dissipation, the court may order a reduction, denial or forfeiture of compensation in the case."). As stated in In re Wilde Horse Enterprises, Inc.:

136 B.R. 830, 840 (Bankr. C.D. Cal. 1991) (citations omitted). See also eisler & Zeisler, P.C. v. Prudential Ins. Co. of Am. (In re JLM, Inc.), 210 B.R. 19, 26-27 (B.A.P. 2d Cir. 1997). Counsel "cannot simply close his or her eyes to matters having an adverse legal and practical consequence for the estate and creditors." Grubin v. Rattet (In re Food Mgmt. Group, LLC), 380 B.R. 677, 710 (Bankr. S.D.N.Y. 2008).

The court cannot, as a matter of law, determine that Whittaker had no duty under the circumstances of this case beyond advising Hock to obtain a bond, especially given the following facts established in the summary judgment filings: a) an earlier draft of the Liquidating Trust Agreement failed to contain a provision for a bond (Whittaker Declaration at ¶ 12); b) the United States Trustee requested that the Liquidating Trust Agreement contain a provision requiring the posting of a bond by the Plan Trustee, expressly noting in the email making that request:

Motion for Summary Judgment, Adv. doc. 52 (Exhibit A-6); c) Whittaker is and has been for a substantial period of time a bonded Chapter 7 trustee and, thus, understands the function of such a bond (Whittaker Declaration at ¶ 1; Whittaker Dep. at 14-15); d) Whittaker agreed to inclusion of such a provision in the Liquidating Trust Agreement (Whittaker Declaration at ¶ 12; Whittaker Dep. at 29); e) Whittaker provided the name of a company for Hock to pursue to obtain a bond (Whittaker Declaration at ¶ 14); and f) Hock advised Whittaker that no bond had been obtained and inquired whether it was still necessary and Whittaker confirmed that it was necessary (Motion for Summary Judgment, Adv. doc. 52 (Exhibit A-8)); Whittaker Dep. at 31:9-32). Given all of these facts, there is a disputed material issue of fact whether Whittaker breached the standard of care required of him as counsel to Domin-8, as the debtors-in-possession, the Plan Trustee, and the Liquidating Trust relating to Hock's failure to obtain a bond. Finally, even if the standard is whether Whittaker was grossly negligent, there is a disputed issue of material fact as to whether Whittaker's conduct fell below that standard.12

For similar reasons, there is also a material question of fact as to whether Whittaker was negligent or grossly negligent in failing to detect from the information which Hock provided to him for the post-confirmation operating reports which Whittaker signed under Bankruptcy Rule 9011 that something was awry. Again, there are competing expert reports on this point. The trial will be the proper forum for the experts to explain to the court why they arrived at their respective conclusions and for each party to cross-examine the opposing expert witness. This court has no basis to determine as a matter of law that Whittaker met the standard of care required of him relating to the post-confirmation operating reports.

For these reasons, Bricker's Motion for Summary Judgment as relates to Count One is denied.

C. Summary Judgment is Granted in Favor of Bricker as to Count Two Alleging a Breach of Fiduciary Duty by Whittaker and, Therefore, That Claim Shall be Dismissed

Bricker asserts that the breach of fiduciary duty claim must be dismissed because a party who is pursuing a claim for malpractice may assert a separate claim for breach of fiduciary duty, breach of contract, or fraud only if the conduct underlying those claims is separate and distinct from the conduct underlying the malpractice claim. See Psychiatric Solutions v. Waller Lansden Dortch & Davis, LLP, No. 1:13CV0098, 2014 U.S. Dist. LEXIS 183594, at *19 (N.D. Ohio June 4, 2014); Waite, Schneider, Bayless & Chesley Co., L.P.A., 5 F.Supp.3d 922, 926 (S.D. Ohio 2014); Sapienza v. Materials Engineering and Technical Support Services Corp., No. 15AP-101, 2015 Ohio App. LEXIS 3229, at *18 (Ohio Ct. App. Aug. 18, 2015). In response, the Trustee asserts that the breach of fiduciary duty claim is separate and distinct because while the malpractice claim is held by the Trustee as the Successor Trustee for the Liquidating Trust, the breach of fiduciary claims are held by the beneficiaries of the Liquidating Trust. See mega Riggers & Erectors, Inc. v. Koverman, 65 N.E.3d 210, 220 (Ohio Ct. App. 2016) (citing Elam v. Hyatt Legal Services, 514 N.E.2d 616, 618 (Ohio 1989)).

The Trustee's argument fails for several reasons. First, under Wait and Psychiatric Solutions, the conduct underlying the malpractice and breach of fiduciary claims must be distinct, not the asserted holders of the claims. The Trustee has not alleged that the conduct underlying the breach of fiduciary claim is separate and distinct from the conduct which underlies the malpractice claim and Count Two, which is the Breach of Fiduciary Duty claim, simply incorporates the general statement of facts described for both the malpractice and the breach of fiduciary claims. Second, Elam and its progeny and similar cases stand for the proposition that beneficiaries of a trust or other stakeholders similarly situated are in privity with the attorney who represents the trustee of the trust, such that the beneficiaries or other such persons similarly situated could sue the trustee or other party in privity for malpractice. Thus, in this case, the beneficiaries of the Liquidating Trust could conceivably sue Bricker directly for any alleged malpractice. That line of cases does not stand for the proposition that the existence of beneficiaries of a trust allows for additional claims against a lawyer to be pursued if those claims would otherwise be subsumed by a malpractice claim. Finally, the very fact that an attorney is a fiduciary who owes fiduciary duties to the client and those in privity with the client, as held in Elam and its progeny, highlights that a malpractice claim and a claim for breach of a fiduciary duty against an attorney in this context are generally indistinguishable.13 For these reasons, the court is dismissing Count Two of the Complaint through the order entered on this Memorandum.

D. Count Three Alleging an Action for Recoupment and Disgorgement of Fees and Expenses Paid to Bricker Has Been Withdrawn

The Trustee has withdrawn Count Three of the Complaint seeking recoupment and disgorgement of attorney fees. Objection of Plaintiff Richard D. Nelson, Successor Trustee of D8 2010, Inc. Liquidating Trust, To Defendants' Motion for Summary Judgment, Adv. doc. 57 at 26.

E. Summary Judgment is Denied as to Count Four Alleging a Claim for Vicarious Liability of Bricker

In Nat'l Union Fire Ins. Co., on certification of the issue by the Sixth Circuit, the Ohio Supreme Court determined that under Ohio law a law firm cannot be directly liable for legal malpractice. 913 N.E.2d at 944. Rather, the law firm can be held vicariously liable for a member attorney's malpractice under the doctrine of respondeat superior "when one or more of its principals or associates are liable for legal malpractice." Id. at 945. Bricker's argument is solely that this Count should be dismissed "if Plaintiff's claims for malpractice and breach of fiduciary duty do not survive summary judgment." See Motion for Summary Judgment, Adv. doc. 52 at 3 n. 1. Since the Trustee's malpractice claim is surviving summary judgment, his claim for vicarious liability also survives summary judgment.

F. Summary Judgment is Denied as to the First and Second Counterclaims Alleging a Breach of Contract and Quantum Meruit against the Trustee

Bricker asserts that it is entitled to judgment on its claim for $31,821.67 in attorney fees for post-confirmation legal services rendered to the Trustee and Liquidating Trust. The Trustee asserts that nothing is owed to Bricker on this claim because: a) the Trustee disputes that Bricker has earned any such legal fees; b) if Bricker is awarded judgment for any fees, that judgment should be set off against any judgment which the Trustee obtains against Bricker; and c) under the Liquidating Trust Agreement, Bricker may only be paid to the extent the Liquidating Trust has funds in its Operating Reserve or from proceeds of a Litigation Claim, neither of which the Liquidating Trust has at the present time. There is a genuine issue of material fact as to whether Bricker is owed any funds by the Successor Trustee or Liquidating Trust, both from a performance standard and due to the Liquidating Trust having no funds from which to pay those fees, which is a condition precedent to Bricker being paid under the Liquidating Trust Agreement. Accordingly, the order on this decision will deny summary judgment to Bricker on its First and Second Counterclaims for breach of contract and quantum meruit.

G. Summary Judgment is Denied as Moot as to the Third Counterclaim

Based upon the withdrawal of Count Three of the Trustee's Complaint, Bricker's request for summary judgment as to its Third Counterclaim is denied as moot.

V. Conclusion

For the reasons explained in this Memorandum, the Defendants' Motion for Summary Judgment is granted in part and denied in part. The court is contemporaneously entering an order incorporating this decision.

IT IS SO ORDERED.