Circuit City Stores, Inc. v. Pioneer Investment Services Co. (In re Pioneer Investment Services Co.)

190 B.R. 96, 1994 U.S. Dist. LEXIS 20830
CourtDistrict Court, E.D. Tennessee
DecidedJune 30, 1994
DocketNo. 3-94-cv-0124
StatusPublished

This text of 190 B.R. 96 (Circuit City Stores, Inc. v. Pioneer Investment Services Co. (In re Pioneer Investment Services Co.)) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Circuit City Stores, Inc. v. Pioneer Investment Services Co. (In re Pioneer Investment Services Co.), 190 B.R. 96, 1994 U.S. Dist. LEXIS 20830 (E.D. Tenn. 1994).

Opinion

MEMORANDUM OPINION

JORDAN, District Judge.

This is an appeal from an order entered by the United States Bankruptcy Court for the Eastern District of Tennessee.

These parties brought this contested matter before this court once before. When Pioneer proposed its plan of reorganization for confirmation, the parties resolved an objection filed by Circuit City by agreeing that Pioneer would be entitled to a setoff or credit against its debt owed to Circuit City, measured by reference to the value of certain improved real property which Pioneer would abandon to Circuit City. The bankruptcy court then held a valuation hearing, on the debtor’s motion, which resulted in the first order from which Circuit City appealed. This court affirmed the bankruptcy court’s order, and Circuit City appealed to the United States Court of Appeals for the Sixth Circuit.

The court of appeals, in an unpublished, per curiam opinion filed in ease no. 92-5566 on August 13, 1993, affirmed in part and reversed in part this court’s decision. The appellate court upheld the decision to value the property abandoned by Pioneer to Circuit City in accordance with evidence concerning its fair market value, as opposed to its liquidation value. With respect to the bankruptcy court’s decision not to deduct from this fair market value the estimated cost of disposition of the property, however, the court of appeals found the bankruptcy court’s ruling insufficiently explicit, and so remanded the case to allow the bankruptcy court to supplement its reasons for denying the disposition cost deduction. The court of appeals listed possible justifications for the bankruptcy court’s decision: there was a lack of sufficient credible evidence that Circuit City would sell the property abandoned to it, the disposition cost deduction was generally inappropriate, or the evidence was insufficient to support a calculation of such a deduction on any basis other than speculation.

Upon remand, this court, of course, remanded the case to the bankruptcy court, to comply with the court of appeals’ mandate. In a memorandum filed on December 1,1993, United States Bankruptcy Judge Richard [98]*98Stair, Jr., ruled, “Circuit City did not present sufficient evidence during the trial to permit this court to determine the disposition cost.” Judge Stair noted that in the valuation hearing, Pioneer’s expert witness, testifying on cross-examination, offered a “guess” that disposition costs would run “somewhere between 5 and 10 percent” of fair market value, and Circuit City’s expert witness offered his estimate of such costs at eight to 10 percent of the value of the property, but that neither of these guesses or estimates was supported by evidence concerning “the specific cost items [the experts] included within the general category of disposition cost.” Judge Stair wrote, “The court is presented with no solid evidence of the disposition cost associated with a sale of the [property in issue].” The bankruptcy court therefore denied a disposition cost deduction from the credit or offset given to the debtor by reason of its abandonment of this property, and, upon denial of Circuit City’s motion for rehearing, which the bankruptcy court read as a motion to alter or amend findings, Circuit City appealed to this court.

On appeal to this court, Circuit City argues that some speculation is part of any expert testimony concerning valuation and anticipated costs, and that it was the duty of opposing counsel to inquire into Circuit City’s expert witness’ factual bases for his testimony; that the bankruptcy court should have taken judicial notice of the usual range of costs of dispositions of commercial real property in this region; and that the bankruptcy court could have accepted the lowest percentage figure for cost of disposition on which both expert witnesses agreed.

The court agrees with the appellee’s position that the bankruptcy court’s decision addressed an issue of fact, and is therefore subject to the “clearly erroneous” standard of review on appeal. Bankr.R. 8013. “The standard of review on appeal is determined by the nature of the action taken below by the bankruptcy court.” In re Terex Corp., 984 F.2d 170, 172 (6th Cir.1993).

The bankruptcy court in this case weighed the evidence, and found it insufficient to carry Circuit City’s burden of establishing the cost of disposing of the property abandoned to it. This is analogous to rendering a judgment on partial findings under Fed.R.Civ.P. 52(c) after hearing a party fully on a single issue, which is distinguished from summary judgment under Fed.R.Civ.P. 56 as being subject to the more deferential “clearly erroneous” standard of appellate review. See 28 U.S.C.A., Fed.R.Civ.P. 52, Advisory Committee’s Note to the 1991 amendment.

In re Balbus, 933 F.2d 246 (4th Cir.1991), on which Circuit City relies, is to be distinguished. In Balbus, while the bankruptcy court likewise performed a valuation of property of the debtor under 11 U.S.C. § 506(a), and decided not to take into account hypothetical costs of sale of the property, it did so in the context of determining whether un-dersecured claims against the debtor, combined with unsecured claims, exceeded the limit under which the debtor was eligible to be a chapter 13 debtor. The issue presented was one of statutory interpretation, whether the language in § 506(a), “the value of such creditor’s interest in the estate’s interest in such property, ... determined in light of the purpose of the valuation and of the proposed disposition or use of such property,” requires calculation of such value net of the hypothetical costs of sale in a case in which the debtor proposes, to retain the property. Being an issue of statutory interpretation in this context, the court of appeals in Balbus properly applied the de novo standard of review.

Pioneer argues that the bankruptcy court’s decision was not clearly erroneous, because not only were the experts’ opinions concerning the projected cost of disposition, measured as a percentage of the fair market value of the property in issue, speculative, but also because no witness provided any evidence concerning what the components of the projected cost of disposition might be. In opposition on this point, Circuit City cites decisions dealing with the existence of substantial evidence to support a tribunal’s decision, which is a very different issue from whether there is sufficient evidence to justify relief in the first instance. As for United States v. L.E. Cooke Company, Inc., 991 F.2d 336 (6th Cir.1993), a decision in a condemnation case cited by Circuit City, it deals with [99]*99issues of admissibility, not sufficiency, of expert evidence.

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Bluebook (online)
190 B.R. 96, 1994 U.S. Dist. LEXIS 20830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/circuit-city-stores-inc-v-pioneer-investment-services-co-in-re-pioneer-tned-1994.