
    In re: Rodger BARWICK; Donnal Barwick, Debtors. Lucille Jean McGuire; Louise Aleatha Sandifer, Successors in Interest to Decedent Mary E. Sandifer, AppelleesAppellants, v. Rodger Barwick, Appellant-Appellee.
    No. 00-55617.
    BAP No. SC-99-01201-RRyMa.
    United States Court of Appeals, Ninth Circuit.
    Submitted Sept. 10, 2001.
    
    Decided Sept. 21, 2001.
    Before HUG, PREGERSON, and WARDLAW, Circuit Judges.
    
      
       Because the panel unanimously finds this case suitable for decision without oral argument, appellants' request for oral argument is denied. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Lucille Jean McGuire and Louise Aleatha Sandifer, successors in interest to Mary E. Sandifer, appeal from the Bankruptcy Appellate Panel’s (“BAP”) decision reversing the bankruptcy court’s summary judgment in favor of Mary Sandifer in her adversary proceeding seeking a declaration that a monetary judgment obtained in state court against Rodger Barwick was non-dischargeable pursuant to 11 U.S.C. § 523(a)(4). We have jurisdiction under 28 U.S.C. § 158(d). We review de novo decisions of the BAP, Cool Fuel, Inc. v. Board of Equalization of the State of Cal. (In re Cool Fuel, Inc.), 210 F.3d 999, 1001 (9th Cir.2000), and we affirm.

Reversal of summary judgment was proper because Barwick’s actions were legally insufficient to constitute the requisite fiduciary capacity for a defalcation to exist under 11 U.S.C. § 523(a)(4). See Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1185 (9th Cir.1996); see also Evans v. Pollard (In re Evans), 161 B.R. 474, 477-78 (9th Cir.BAP1993).

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
     