NOT RECOMMENDED FOR PUBLICATION File Name: 22a0189n.06
No. 20-5036
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 09, 2022 ) COY G. COX, JR., ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY SPECIALTY VEHICLE SOLUTIONS LLC, ) ) Defendant-Appellee. )
Before: GUY, CLAY, and WHITE, Circuit Judges.
The court issued a lead opinion joined by GUY, J. CLAY, J. (pg. 13), delivered a separate opinion concurring in the judgment. WHITE, J. (pp. 14–15), delivered a separate dissenting opinion.
Plaintiff-Appellant Coy G. Cox, Jr. filed two successive personal-injury actions against
Specialty Vehicle Solutions LLC (SVS), which was in bankruptcy proceedings at the time the first
action was filed. The district court dismissed the first suit as invalidly filed in violation of the
automatic bankruptcy stay and dismissed the second suit—filed more than thirty days after the
bankruptcy court granted relief from the stay—as untimely under the applicable Kentucky statute
of limitations. Cox appealed and we affirmed in part and reversed and remanded in part for the
district court to consider whether the stay relief granted by the bankruptcy court was intended to
apply retroactively to the first suit or be prospective only. The district court once again dismissed
the case, finding that the stay relief was intended to be prospective only. We AFFIRM. No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
I.
A detailed account of the factual and procedural history of this case can be found in this
panel’s prior opinion. See Cox v. Specialty Vehicle Sols., LLC, 715 F. App’x 443 (6th Cir. 2017).
Thus, we include only an abbreviated summary as relevant to the issues currently on appeal.
Cox was a police officer assigned to an IRS task force. On February 28, 2014, Cox was
conducting surveillance in a specially modified van sold to the IRS by SVS. Cox alleges that a
battery powering the van’s electronic equipment was negligently installed and released toxic liquid
and gaseous chemicals into the van, causing him severe and permanent injuries.
On March 5, 2014, Cox’s attorney wrote to SVS, stating that Cox intended to assert a claim
against SVS related to the February 28 incident. On September 26, 2014, Cox’s attorney and SVS
employees inspected the van.1
On October 20, 2014, SVS filed a Chapter 11 bankruptcy petition in the United States
Bankruptcy Court for the District of New Jersey (No. 14-31329-CMG) without listing Cox as a
creditor. Unaware of SVS’s bankruptcy, Cox sued SVS in Kentucky state court on February 23,
2015, asserting strict liability, negligence, and fraud claims. SVS filed a notice of the automatic
bankruptcy stay on March 18. Cox’s personal-injury attorneys hired Warren Levy, a New Jersey
bankruptcy attorney, to attempt to obtain relief from the bankruptcy stay. Levy filed a motion for
stay relief on Cox’s behalf, requesting that the court issue an order modifying the stay “so as to
enable the [c]reditor to obtain [r]elief.” Cox I, R. 15-1, PID 126. The proposed order attached to
the application requested permission to “institute or resume and prosecute” the Kentucky suit. Id.
at PID 136. Cox’s notice of motion for stay relief, which is a required part of a motion under Rule
1 There is no contemporaneous documentation of the results of the inspection in the record, but a March 9, 2015 email from SVS’s president (sent after receiving notice of Cox’s lawsuit) states that the batteries were intact at the time of the inspection.
-2- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
9013-1 of the District of New Jersey’s Local Bankruptcy Rules, see D.N.J. LBR 9013-1(a),
incorrectly described the Kentucky suit as a “pre-petition action.” Cox I, R. 15-1, PID 123, 136.
SVS’s bankruptcy attorney, Jennifer McEntee, objected to the motion, but indicated that “an
amicable resolution could possibly be reached if [Cox] agreed to limit the relief requested in [his]
proposed order to the extent of the insurance policy.” Cox I, R. 47, PID 377–78. Levy forwarded
the objection to Cox’s personal-injury attorneys, who passed the message along to Cox. Levi
James Daly, one of Cox’s personal-injury attorneys, confirmed that Cox was willing to limit his
recovery to the extent of SVS’s insurance coverage, and notified Levy of Cox’s consent to limit
his recovery in that manner.
Levy and McEntee engaged in discussions regarding relief from the stay. McEntee
conditioned her consent to the stay language that Levy submitted with his motion on the removal
of the term “institute,” thus allowing Cox only to “resume and prosecute” the state civil suit
identified in the proposed order.
The bankruptcy court entered the parties’ agreed order on August 7, 2015. The order states
in relevant part:
it is ORDERED that the automatic stay is vacated to permit [Cox] to resume and prosecute to conclusion the civil action identified specifically as:
Coy G. Cox, Jr. v. Specialty Vehicle Solutions, LLC, Civil Action No.: 15-CI-00040, Commonwealth of Kentucky, Letcher Circuit Court
only to permit [Cox] to seek to liquidate the claims for recovery made against [SVS] . . . provided . . . that [Cox] shall limit any claim for recovery . . . to the extent of any available and applicable insurance coverage.
Cox I, R. 10-5, PID 71.
SVS filed a notice of the lifting of the stay in state court on August 13, 2015, and removed
the Kentucky state-court action to the United States District Court for the Eastern District of
-3- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
Kentucky (“Cox I”). SVS then filed a motion to dismiss arguing that notwithstanding the
bankruptcy order lifting the stay, the suit was “null and void” because it was filed in violation of
the bankruptcy stay. Cox I, R. 10, PID 48. Cox then filed a new action against SVS in the Eastern
District of Kentucky on September 11, 2015 (“Cox II”), repeating essentially the same claims.
SVS filed a motion to dismiss Cox II on the ground that the applicable statute of limitations had
run.
The district court dismissed Cox I on the ground that the equitable exception in Easley v.
Pettibone Michigan Corp., 990 F.2d 905 (6th Cir. 1993), did not apply, and the suit was therefore
void as a matter of law because it was filed in violation of the automatic stay; the district court
dismissed Cox II, reasoning that Cox had actual notice of the bankruptcy court’s August 7, 2015
order on the day it was issued and failed to file the complaint within the thirty days allowed. After
filing his claims of appeal, Cox returned to the bankruptcy court asking that court to clarify its
order lifting the automatic stay, but the bankruptcy court declined to do so. On appeal, this court
affirmed the district court’s dismissal of Cox II. See Cox, 715 F. App’x at 449–50. As to Cox I,
we determined that the district court had erred by failing to consider the second aspect of Easley—
whether the bankruptcy court had exercised its statutory power to “grant relief from the stay . . .
by . . . annulling such stay.” Id. at 447–48 (quoting 11 U.S.C. § 362(d)). This court held that the
district court should have considered whether the bankruptcy court’s order vacating the stay was
intended to be retroactive—thus validating the otherwise void complaint—or prospective only. Id.
We acknowledged that the interpretation of a court order is a question of law, but found that the
bankruptcy court’s order (negotiated by the parties) was ambiguous as to its intended retroactive
or prospective effect, and thus remanded for the district court to determine, in the first instance,
the context of the order and the parties’ intent in drafting it. See id. at 448–49.
-4- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
On remand, after limited discovery, the district court considered the evidence produced by
the parties, converting the original motion to dismiss into a motion for summary judgment pursuant
to Federal Rule of Civil Procedure 56. The district court found that there was no evidence that the
parties negotiating the agreed order intended to retroactively validate Cox’s state civil suit against
SVS and granted summary judgment to SVS on that basis.
As an initial matter, the district court rejected Cox’s argument that the plain meaning of
the stay-relief order, specifically its use of the word “resume,” required a finding that the order
was meant to apply retroactively. The district court noted that this court already considered the
plain meaning of the order and found it ambiguous, and thus concluded that consideration of the
language of the order itself should not weigh in favor of either party’s interpretation. The district
court also rejected Cox’s argument that ambiguity in the agreed stay order should be construed
against SVS as the drafter. The court declined to apply this rule of construction because it found
that the parties had equal bargaining power and that the agreed order was the product of
negotiations.
The district court considered the limited evidence submitted by both parties, specifically
affidavits from Cox and the parties’ attorneys—Levy excluded—regarding their intent in
negotiating and ratifying the agreed stay order. Cox and his personal-injury attorneys, James Ryan
Turner and Daly, submitted affidavits stating their belief that the intent behind the agreed order
was to annul the stay and allow Cox to retroactively reinstate his civil suit against SVS.
SVS submitted an affidavit from its personal-injury attorney Maines, in which she claims that she
was unaware that Cox had sought relief from the stay in bankruptcy court, and that had she been
aware, she would have brought the mistaken assertion that the suit was pre-petition to the lawyers’
and the bankruptcy court’s attention. SVS also submitted an affidavit from its bankruptcy attorney
-5- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
McEntee stating that due to the language in Cox’s motion for stay relief, she believed that the state
civil suit was a pre-petition action; that she removed the term “institute” from the proposed order
based on that belief; and that at no point in drafting or agreeing to the order did she contemplate
that it would apply retroactively to validate a post-petition action.
Ultimately, the district court decided that it would only rely on evidence concerning the
intent of the parties who actually negotiated and drafted the order—Levy and McEntee—rather
than the intent of Cox and SVS, and their personal-injury attorneys, who were at most indirectly
involved. The court determined that “[f]rom the affidavits, it appears the agreed order was
negotiated on mistaken beliefs or oversights.” R. 54, PID 549.2 Because there was no affidavit or
other testimony from Levy, the court could not determine whether his designation of the state civil
suit as a pre-petition action was due to a “scrivener’s error” or a mistaken understanding. Id. But
the district court noted that there was unrefuted testimonial evidence, in the form of affidavits from
SVS’s personal-injury attorney and McEntee, that McEntee was not informed and did not discover
on her own that Cox’s suit was filed after the bankruptcy stay was in effect. And McEntee stated
that she negotiated under the assumption that the suit was filed pre-petition, and thus that a
prospective stay would allow the action to resume.
Taking the language of Levy’s notice of motion for stay relief along with McEntee’s
affidavit, the district court concluded that the bankruptcy attorneys were both under the mistaken
impression that Cox’s civil suit was filed before SVS’s bankruptcy petition, and thus that the
parties negotiating the agreed stay order did not intend for Cox’s suit to be retroactively reinstated.
Based on that finding, the district court granted summary judgment in favor of SVS. The district
court denied Cox’s subsequent motion to alter or amend the judgment. Cox v. Specialty Vehicle
2 The remainder of the record citations refer to the record in Cox I.
-6- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
Sols., LLC, No. 7:15-80-KKC-HAI, 2019 WL 6873866, at *6 (E.D. Ky. Dec. 17, 2019). This
appeal followed.
II.
We review a district court’s grant of summary judgment de novo. Med. Mut. of Ohio v. k.
Amalia Enters. Inc., 548 F.3d 383, 389 (6th Cir. 2008). “Summary judgment is proper if the
evidence, taken in the light most favorable to the nonmoving party, shows that there are no genuine
issues of material fact and that the moving party is entitled to a judgment as a matter of
law.” Id. (quoting Mazur v. Young, 507 F.3d 1013, 1016 (6th Cir. 2007)).
The sole task to be undertaken by the district court on remand was to ascertain what the
agreed order was intended to execute, taking into account the order itself, the context, and the
intent of the parties. “Where a contractual provision . . . is deemed ambiguous . . . the court may
look to extrinsic evidence—‘additional evidence that reflects the intent of the contracting
parties’—to help construe it.” In re AmTrust Fin. Corp., 694 F.3d 741, 750 (6th Cir. 2012)
(quoting Wulf v. Quantum Chem. Corp., 26 F.3d 1368, 1376 (6th Cir. 1994)). The district court
determined that the intent of the parties, as manifested through the bankruptcy lawyers, was to
permit a pre-petition case to resume, and not to retroactively validate a post-petition action.
Cox presents several grounds on which he believes the district court erred: (1) by failing to
begin with the language of the order before considering extrinsic evidence, (2) by refusing to
construe ambiguities in the agreed stay order against SVS as the drafter, (3) “by relying exclusively
on the alleged intent of the bankruptcy attorneys while ignoring the intent of the parties, and by
drawing all inferences in favor of SVS,” and (4) “by using the wrong standard of proof in finding
-7- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
that the plain terms of the agreed order should be discounted because they were procured through
misrepresentation.” Appellant’s Br. at 13–14. We address each argument in turn.
Cox’s argument that the district court erred by “failing to ascribe the plain meaning to
the terms of the consent order” is without merit. In Cox’s prior appeal, we held that the terms of
the agreed order were ambiguous regarding the dispositive question whether it was intended to
retroactively validate the post-petition personal-injury action, and that resolving that ambiguity
required consideration of the intent of the parties in negotiating the order. Cox, 715 F. App’x at
448–49. Cox insists that the plain language of the order resolves this case, and that at the very
least, at summary judgment, the district court was required to make all inferences in his favor and
was thus required to infer that the inclusion of the word “resume” could be interpreted to mean
that the order was retroactively applicable. Appellant’s Br. at 14–19. But if that were the case,
there would have been no reason for this court to remand the case for inquiry into the intent of the
negotiating parties. To be sure, the actual language of the order is not rendered irrelevant simply
because it is ambiguous regarding its retroactivity. Any asserted intended meaning that cannot be
reconciled with the language of the order and the circumstances of its entry would be
impermissible. But the district court’s interpretation here looked at the language together with all
the circumstances.
The district court also did not err by declining to apply the rule of contra proferentem—
that an agreement should be construed against the drafter—to construe ambiguities in the agreed
stay order against SVS. This court remanded for the district court to determine whether the order
was intended to retroactively validate the post-petition action based on the intent of the negotiating
parties. “Unlike contract rules that help to interpret the meaning of a term, and thereby uncover
the intent of the parties, contra proferentem is by definition triggered only after a court determines
-8- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
that it cannot discern the intent of the parties.” Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1417
(2019). Here, the district court determined that the rule was inapplicable because the agreed order
was the product of negotiations between equal parties. We also note that the district court
ultimately determined that it was able to discern the parties’ intent. We find no error.
Cox next argues that the district court erred by “relying exclusively on the alleged intent
of the bankruptcy attorneys while fully ignoring the intent of the parties.” Appellant’s Br. at 19.
According to Cox, the district court should have considered what Cox believed he was agreeing to
when he consented to the terms of the agreed order, rather than the intent of the attorneys who
negotiated it. Id. at 19–22. Cox asserts in his affidavit that he would not have “agreed to include
the word ‘resume’ in the order if, by ‘resume and prosecute to conclusion[,]’ what it really meant
was ‘void the civil action identified.’” R. 49, PID 490. There is little question that it would have
made no sense for Cox to agree to an order for relief from the stay that did not encompass the
action he had brought, and the district court does not appear to have questioned Cox’s intent. The
problem with Cox’s position is that although SVS and McEntee also believed that the agreed order
would grant the relief Cox sought, they believed the order properly allowed a pre-petition suit to
move forward, not a post-petition suit.
Cox is correct that the meaning of an ambiguous contract is determined by the intent of the
parties. But when a party to an agreement authorizes an attorney to negotiate on his behalf and
consents to the terms negotiated by his attorney, but the attorney fails to effectuate the party’s
intent by making representations that are inconsistent with that intent, the party is bound by the
attorney’s representations. Cf. Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 524 (6th Cir. 2006)
(explaining that “clients must ‘be held accountable for the acts and omissions of their chosen
counsel’”) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396–
-9- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
97 (1993)). Attorneys attempting to resolve a dispute on behalf of their client must be able to
depend on the good-faith representations of opposing counsel. This is particularly true given that
in most states, it is considered an ethical violation for an attorney to directly negotiate with an
opposing party who is represented by counsel. See Model Rules of Prof’l Conduct R. 4.2.
Here, there is little evidence regarding Levy’s understanding of the agreement. Because
Levy did not submit an affidavit, the only direct evidence we have of his intent in negotiating the
agreed order is the language of the notice of motion for stay relief Levy submitted to the
bankruptcy court, the application, and the order. The notice characterized the state-court suit as a
pre-petition action. As the district court acknowledged, it is entirely possible that this was a
typographical error, rather than a misunderstanding of the nature of the case. But neither Cox nor
any of his attorneys corrected the mischaracterization. And, ultimately, the purpose of the agreed
stay-relief order was to grant the relief Cox sought in the motion on terms acceptable to SVS.
Whether intentional or not, the relief sought in the motion was a stay to resume a pre-petition suit,
not a stay to retroactively validate an otherwise void post-petition suit.
Further, the district court did not err in deciding the issue on a motion for summary
judgment. Cox presented no evidence to dispute the fact that McEntee, acting on behalf of SVS,
believed that the stay relief was prospective in nature based on the representation in the notice of
motion that the action was pre-petition. Cox’s affidavit merely presented his own, albeit
reasonable, assumptions regarding the meaning of the agreement, which were never directly
communicated to SVS, SVS’s counsel, or, apparently, even Levy.
Ultimately, an agreement is supposed to represent a meeting of the minds. McGeorge v.
White, 174 S.W.2d 532, 533 (Ky. 1943) (“To consummate a binding contract[,] . . . there must be
a meeting of the minds of the parties or mutual assent to the same thing, and all material terms and
-10- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
conditions of the contract, including a certainty of the subject matter, must be agreed on.”). Taking
the evidence in the light most favorable to Cox, there is a dispute whether there was ever a meeting
of the minds to validate a post-petition suit, and thus, ever a valid agreement, but the district court
did not clearly err in finding that SVS and its attorney did not intend that the order grant
retrospective relief. In other words, there are two possibilities based on the evidence presented:
either Levy and McEntee came to an agreement, on behalf of their clients, to grant prospective
relief on the mutual misunderstanding that the action to be resumed was filed pre-petition, or there
was no meeting of the minds as to the meaning of the terms of the agreement.
If this were a simple issue of contract interpretation, rather than interpretation of the
bankruptcy court’s agreed order, whether there was a meeting of the minds as to the terms of the
contract would arguably be a trial issue unsuitable for summary judgment. But because this is an
order of the bankruptcy court, and because Cox has not obtained relief from the order, simply
treating the order as a nullity is not an option available to this court or the district court. In any
event, that course would not change the outcome; if the agreed order were rescinded, Cox’s suit
would be dismissed just the same. The only way Cox’s pre-petition suit remains viable is if the
order vacating the stay was intended to be retroactive. Because the district court reasonably found
that SVS and McEntee did not intend to enter such an order, and that the order contemplated the
pursuit of a pre-petition suit, the district court did not err in granting summary judgment in favor
of SVS.
Cox’s final argument is that the district court employed the wrong standard of proof in
determining that the agreement was procured by misrepresentation. Appellant’s Br. at 22–23. But
the district court did not grant summary judgment based on a finding that the terms of the
-11- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
agreement were unenforceable due to fraud or misrepresentation; it merely found that there was
no evidence to support Cox’s interpretation of the agreement.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
-12- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
CLAY, Circuit Judge, concurring in the judgment. This case comes before us once
again to address the same question that the Court declined to take up the first time around: did the
bankruptcy court’s order allow Cox to proceed with a lawsuit that he filed after SVS filed for
Chapter 11 bankruptcy.1 I agree with the district court’s finding that the bankruptcy court’s order
did not annul the automatic stay, and, therefore, Cox cannot proceed with his initial lawsuit. See
Cox v. Specialty Vehicle Solutions, LLC, 715 F. App’x 443, 454 (6th Cir. 2017) (Clay, J.,
dissenting). However, I continue to disagree with the majority’s assertion that the district court
needed to look to the parties’ intent to determine the effect of the bankruptcy court’s ambiguous
order. The effect of that order can be determined by the language of the order, the parties’ filings
that were before the bankruptcy judge, and underlying principles of bankruptcy law. See id. at
453–54. Cox’s petition for relief to the bankruptcy court shows that he “requested the continuation
of a pre-petition rather than a post-petition law suit.” Id. at 453. Accordingly, the filings in the
bankruptcy litigation show that “the bankruptcy judge never intended the allowance of a lawsuit
filed after the automatic stay was in place.” Id. Because the district court ultimately came to this
conclusion (after an unnecessary detour), I respectfully concur in the judgment to affirm the district
court’s order granting SVS’s motion for summary judgment.
1 I agree with the majority opinion’s recitation of the relevant facts and procedural history and will not restate them here.
-13- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
HELENE N. WHITE, Circuit Judge, dissenting. This is a most unfortunate outcome.
As Cox argues, SVS would not be harmed by applying the stay relief retroactively because any
recovery has been limited to the applicable insurance.
In our first opinion, we declined to interpret the agreed order entered by the bankruptcy
court in the first instance because the district court had dismissed Cox I without considering the
meaning of the order. We determined that the order was ambiguous because, on the one hand, it
used the terms “vacate” and “resume,” but, on the other, it did not use the statutory term
“annulling,” or otherwise state that it was intended to apply retroactively. We concluded that it
would be unfair to interpret the order ourselves without giving the parties an opportunity to present
evidence in support of their intent and understanding of the language of the order.
It is unfortunate that on remand Levy did not provide evidence of his own understanding
and purpose in using the chosen words. And it is also unfortunate that the parties did not delve
further into the asserted understanding and intent of the lawyers in using the chosen language. For
example, the use of the word “vacated” in contrast to “lifted” or “terminated” was not examined.
Nor was the materiality of the suit being post-petition rather than pre-petition addressed, other than
by McEntee’s simple assertion that she would not have agreed to the order had she known that the
suit was post-petition. But, the reason for that is not self-evident given the agreement to limit
recovery to the insurance coverage. And, it is also unfortunate that the parties did not return to the
bankruptcy court to see if it would clarify the order in light of this court’s remand.
What was established is that there was either a mutual mistake of fact or no meeting of the
minds. In this regard, inquiry into the intent of the agreed order’s authors proved to be unhelpful
in establishing the meaning of the chosen language. As such, we are once again left with the
language of the order.
-14- No. 20-5036, Cox v. Specialty Vehicle Solutions LLC
Although ambiguous regarding its retroactivity, it is clear that the intent of the order was
to permit the identified suit to go forward provided recovery was limited to the extent of coverage
under the insurance policy. On remand, SVS failed to show that “vacate” had an intended meaning
contrary to its ordinary and accepted meaning. And given the identification of a particular civil
action that was to “resume” and the elimination of the word “institute,” SVS’s evidence did not
establish that the parties shared an understanding that the identified lawsuit would not be permitted
to proceed. It is true that SVS makes a strong case that McEntee did not realize that the action
was filed post-petition when she agreed to vacate the stay and permit the lawsuit to resume, but
SVS has failed to show that the chosen words meant something else.
To be sure, suits in violation of a bankruptcy stay are against public policy, but the
undisputed facts are that Cox did not have notice of the bankruptcy petition or the stay until after
the personal-injury action was filed, and Cox honored the stay by seeking relief in the bankruptcy
court. On this record, there is no reason to believe that the stay relief would not have been granted
conditioned on damages being limited to the available coverage had the true facts been known to
the bankruptcy court.
I would reverse and permit Cox I to proceed.
-15-