Pamaco Partnership Mgmt. Corp. v. TMC Terraplan Mgmt. Corp.

158 B.R. 61, 1993 U.S. Dist. LEXIS 12272
CourtDistrict Court, W.D. Virginia
DecidedAugust 25, 1993
DocketCiv. A. No. 93-0033(C)
StatusPublished
Cited by1 cases

This text of 158 B.R. 61 (Pamaco Partnership Mgmt. Corp. v. TMC Terraplan Mgmt. Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pamaco Partnership Mgmt. Corp. v. TMC Terraplan Mgmt. Corp., 158 B.R. 61, 1993 U.S. Dist. LEXIS 12272 (W.D. Va. 1993).

Opinion

MEMORANDUM OPINION

MICHAEL, District Judge.

The case appears before this Court on the motion of TMC Terraplan Management Corp. (“TMC”) to dismiss the appeal filed by Pamaco Partnership Management Corp. (“Pamaco”) and Hans Wiethoff (“Wieth-off”), President of Pamaco, from the April 2, 1993 Order of the United States Bankruptcy Court for the Western District of Virginia. The motion to dismiss involves procedural requirements with which TMC claims Appellants failed to comply in order to bring an appeal.

[63]*63FACTS

Pamaeo and Wiethoff were the original general partners in two Virginia partnerships, Hot Springs Auto Wash (L.P.) Partnerships 2 (“HSP2”) and 5 (“HSP5”), the debtors in the underlying case. The partnerships each own certain property used as a car wash. After experiencing financial difficulties, the partnerships went into receivership on January 16, 1992, allegedly a defaulting event in the partnership agreements which led to the removal of Pamaeo and Wiethoff as general partners.

At a meeting on May 13, 1992, the limited partners of HSP5 voted to remove Wiethoff and Pamaeo as general partners, based on Wiethoff s alleged acts of gross negligence in the proposed sale of the car wash without the consent of the limited partners. The limited partners elected TMC to replace Pamaeo and Wiethoff and to serve as the general partner for the partnerships. On July 8, 1992, the same actions occurred with regard to HSP2. Subsequent to the votes, written consents were obtained by the requisite number of limited partners to ratify their votes.

On August 7, 1992, the partnerships filed petitions for Chapter 11 bankruptcy, and TMC assumed management over the assets of both ear washes. The partnerships filed reorganization plans on December 2, 1992, with the limited partners agreeing to pay all allowed creditors’ claims on the condition that the bankruptcy court determine that TMC was the general partner of both HSP2 and HSP5.1 On April 2, 1993, the Bankruptcy Court entered an order and memorandum opinion finding that Pamaeo and Wiethoff were properly removed and directing TMC to file with the Virginia State Corporation Commission amendments to the certificates of limited partnership reflecting such removal.

On April 12, 1993, Pamaeo and Wiethoff filed a notice of appeal from the Bankruptcy Court’s April 2nd order but failed to request a stay of the court’s order pursuant to Bankruptcy Rule 8005. Appellants also failed to pay a $105 filing fee due with the notice. According to TMC, Pamaeo and Wiethoff failed to submit the sufficient number of copies of the notice of appeal to the Bankruptcy Court under Rule 8004 and failed to list the names and addresses of all parties to the appeal.

Judge Anderson entered an order on April 12,1993, authorizing TMC, as general partner, to manage the assets of the car washes. Appellants also failed to file a notice of appeal from this order. Subsequently, TMC executed the provisions of the April 2nd and 12th orders by filing amended certificates with the State Corporation Commission indicating Appellants’ removal as general partners and the subsequent election of TMC. TMC performed other actions, including: changing the names of the car washes; abandoning the touchless car wash system with a system using mitters; installing a new, employee compensation system; appointing a new statutory agent; removing the management books to Arizona; receiving new tax identification numbers for the partnerships and other changes.

On April 23, 1993, Pamaeo and Wiethoff filed a statement of the issues and designation of the record on appeal, missing the April 22nd deadline for filing under Rule 8006. The appellants paid the requisite filing fee at this time.

On May 11, 1993, Judge Anderson entered an order confirming the HSP5 reorganization plan and TMC as the general partner. Pamaeo and Wiethoff failed to file a notice of appeal therefrom.

DISCUSSION

TMC argues that Appellants’ failure to comply with certain procedural requirements requires dismissal. Under Bankruptcy Rule 8001, the district court can impose appropriate sanctions, including dismissal, for a party’s noncompliance with [64]*64procedural rules. TMC argues that Appellants have failed to do the following: 1) to comply with the requirements of Rule 8006 by filing the designation of the record on appeal and statement of issues one day late; 2) to comply with Rule 8002 for paying a filing fee with the notice of appeal; 3) to file the notice of appeal in proper form; and 4) to file the correct number of copies of the notice of appeal under Rule 8004. Combined with the failure of the Appellants to secure stays of the Bankruptcy Court’s April 2nd, April 12th and May 11th orders, TMC contends that the appeal is moot.

The Court disagrees with TMC’s assertion that the late payment of the filing fee renders the appeal moot. In Lowe’s of Virginia, Inc. v. Thomas, 60 B.R. 418 (W.D.Va.1986), the court held that the filing fee is not determinative of compliance with Rule 8002. Appellant’s failure here to file the fee before the end of the 10-day period from the date of the bankruptcy court’s judgment does not preclude this Court from taking jurisdiction.

Similarly, Appellants’ failure to file with the Bankruptcy Court a sufficient number of copies of the notice of appeal pursuant to Rule 8002 does not mandate dismissal. In Gilbert v. Scratch ’n Smell, Inc., 756 F.2d 320 (4th Cir.1985), the court held that the failure to give the clerk an adequate number of copies of the notice of appeal did not deprive the district court of jurisdiction. There, the appellant filed timely notice of its appeal following the bankruptcy court’s order dismissing the complaint but did not furnish copies of the notice until soon after the expiration of the ten-day period. In the case sub judice, TMC presents no evidence that Pamaco and Wiethoff completely failed to comply with the Rule. Rather, the facts indicate that Pamaco and Wiethoff filed a sufficient number of copies to provide TMC with notice of the pending appeal. Additionally, TMC was not deprived of notice of the appeal by Appellants’ use of an improper form.

Appellee further contends that dismissal is proper because Pamaco and Wiethoff failed to make timely filings under Rule 8006. Rule 8006 requires the designation of the record and statement of issues on appeal to be filed within ten days of the filing of the notice of appeal. TMC argues that In re Serra Builders, Inc., 970 F.2d 1309 (4th Cir.1992) supports dismissal where the appeals court held that the district court properly dismissed the debtor’s appeal for noncompliance with Rule 8006. In Serra, the appellant filed the designation of record on appeal fifteen days late. The court employed the standard established in the unpublished Fourth Circuit opinion, In re Orgain, 898 F.2d 146 (4th Cir.1990) (table) (per curiam) (text in West-law), for reviewing a dismissal of an appeal for noncompliance with Rule 8006. Under the Orgain standard, the district court must 1) find bad faith or negligence, 2) provide the appellant with notice and an opportunity to explain the delay, 3) review whether the delay prejudiced the other parties, or 4) indicate that it weighed the effect of the sanction and available alternatives.

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158 B.R. 61, 1993 U.S. Dist. LEXIS 12272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pamaco-partnership-mgmt-corp-v-tmc-terraplan-mgmt-corp-vawd-1993.