Phillips v. Weissert (In Re Phillips)

434 B.R. 475, 2010 WL 3271562
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedAugust 20, 2010
DocketBAP No. 09-8032. Bankruptcy No. 07-07387. Adversary No. 07-80661
StatusPublished
Cited by24 cases

This text of 434 B.R. 475 (Phillips v. Weissert (In Re Phillips)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. Weissert (In Re Phillips), 434 B.R. 475, 2010 WL 3271562 (bap6 2010).

Opinions

OPINION

MARCI B. McIVOR, Bankruptcy Judge.

The Appellee, Randy Weissert (“Weis-sert”), obtained separate state court judgments on damages as per a default against each of the debtors, Appellants, Nicole M. Phillips and Thomas M. Phillips, Sr. (“Mr. and Mrs. Phillips”), in the amount of $71,962.75 for abuse of process, intentional infliction of emotional distress, civil conspiracy, and concert of action. The state court judgments were awarded after Weis-sert was acquitted of a criminal charge that he had raped Mrs. Phillips. In this bankruptcy case, Weissert filed an adversary proceeding seeking a determination that the debts reflected in the state court judgments were nondischargeable under 11 U.S.C. § 523(a)(6). The bankruptcy court granted in part and denied in part the motion for partial summary judgment filed by the debtors seeking a declaration that the state court judgments had no preclusive effect. The bankruptcy court held that the state court judgments were preclusive only as to the amount of the debt and the liability of each of the debtors, but not preclusive on whether the debtors’ conduct was willful and malicious under 11 U.S.C. § 523(a)(6). Following a trial on that issue, the bankruptcy court found Mrs. Phillips’ debt to be nondis-chargeable and Mr. Phillips’ debt to be discharged through his bankruptcy. Mrs. Phillips appeals three orders: (1) the order partially denying her motion for partial summary judgment; (2) the judgment finding her debt to be nondischargeable; and (3) an order denying a motion to amend the findings of fact and conclusions of law. Mr. Phillips also filed a notice of appeal and attempted to be heard on the issues raised by Mrs. Phillips. The Panel finds that Appellant Mr. Phillips lacks standing to appeal the bankruptcy court’s orders and therefore dismisses his appeal. As to Appellant Mrs. Phillips’ appeal, the Panel AFFIRMS the bankruptcy court’s orders for the reasons stated below.

I. STATEMENT OF ISSUES

The first issue on appeal is whether the bankruptcy court erred in ruling that the debt reflected in the state court judgment entered against Appellant Mrs. Phillips, is nondischargeable under 11 U.S.C. § 523(a)(6). The secondary issue before the Panel is whether the bankruptcy court erred in its conclusion regarding the collateral estoppel effect of that state court judgment.

II. JURISDICTION AND STANDARD OF REVIEW

Before addressing the substance of the issues on appeal, it is important to [481]*481discuss the issue of standing. Although the issue of standing was not raised by either party as an issue in this appeal, it is appropriate for this Panel to consider questions of standing sua sponte. S.E.C. v. Basic Energy & Affiliated Res., Inc., 273 F.3d 657, 665 (6th Cir.2001). As an appellate court, the issue of standing may be considered sua sponte because “[standing is a jurisdictional requirement and we are under a continuing obligation to verify our jurisdiction over a particular case.” Harker v. Troutman (In re Troutman Enters., Inc.), 286 F.3d 359, 364 (6th Cir.2002) (citation omitted). The appellate standing requirement in bankruptcy cases “ ‘is more limited than Article III standing or the prudential requirements associated’ ” with federal standing generally. Moran v. LTV Steel Co., Inc. (In re LTV Steel Co., Inc.), 560 F.3d 449, 453 (6th Cir.2009) (citations omitted). As the Panel recently explained:

In order to have standing to appeal a bankruptcy court order, an appellant must have been “directly and adversely affected pecuniarily by the order.” Derived from the now-repealed Bankruptcy Act of 1898, “[t]his principle, also known as the ‘person aggrieved’ doctrine, limits standing to persons with a financial stake in the bankruptcy court’s order.” Thus, a party may only appeal a bankruptcy court order when it diminishes their property, increases their burdens or impairs their rights. Travelers Cas. & Sur. v. Corbin (In re First Cincinnati, Inc.), 286 B.R. 49, 51 (6th Cir. BAP 2002) (citations omitted).

Ohio Truck & Trailer, Inc. v. Level Propane Gases, Inc. (In re Level Propane Gases, Inc.), 431 B.R. 307, 2010 WL 1427503, at *4 (6th Cir. BAP 2010) (Table).

In the present case, Mr. Phillips was successful before the bankruptcy court. The bankruptcy court’s order finding that his debt to Weissert is dischargea-ble did not diminish his property, increase his burden or impair his rights. The order did not adversely affect him. Accordingly, the Panel finds that he does not have standing to appeal. Likewise, Appellant Mrs. Phillips does not have standing to appeal the issue of whether Mr. Phillips’ debt is dischargeable. Weissert attempted to file a cross appeal of this issue. However, his notice of appeal was not timely and thus the Panel lacks jurisdiction as to his appeal. Accordingly, the dischargeability of Mr. Phillips’ debt is not properly before the Panel and his appeal is dismissed.

The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide the remaining issues on appeal. The United States District Court for the Western District of Michigan has authorized appeals to the Panel, and neither party has timely elected to have this appeal heard by the district court. 28 U.S.C. § 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). An order granting summary judgment is a final order. Buckeye Ret. Co., LLC, Ltd. v. Swegan (In re Swegan), 383 B.R. 646, 649 (6th Cir. BAP 2008). Ordinarily, an order denying summary judgment is not a final, appealable order. Rabin v. Shanker (In re Shanker), 347 B.R. 115 (6th Cir. BAP 2006) (Table). An appeal from a final judgment, however, draws in question all earlier non-final orders and all rulings which produced the final judgment. Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 993 (6th Cir.1999). “ ‘A bankruptcy court’s judgment determining dischargeability is a final and appealable order.’ ” Cash Am. Fin. Servs., Inc. v. Fox (In re Fox), 370 B.R. 104, 109 (6th Cir. BAP 2007) (quoting Hertzel v. Educ. Credit Mgmt. Corp. (In re Hertzel), 329 B.R. 221, 224-25 (6th Cir. BAP 2005)).

[482]*482“The bankruptcy court’s order regarding nondischargeability is a mixed question of law and fact.” Van Aken v. Van Aken (In re Van Aken), 320 B.R. 620, 622 (6th Cir. BAP 2005) (citation omitted). The appellate court reviews conclusions of law de novo but must review the underlying factual determinations under a clearly erroneous standard. Id. Under a de novo standard of review, the appellate court must ‘“review questions of law independent of the bankruptcy court’s determination.’ ” Bailey v. Bailey (In re Bailey), 254 B.R. 901, 903 (6th Cir. BAP 2000) (quoting First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R.

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Cite This Page — Counsel Stack

Bluebook (online)
434 B.R. 475, 2010 WL 3271562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-weissert-in-re-phillips-bap6-2010.