Colonial Auto Center, Inc. v. Tomlin

Decision Date11 July 1995
Docket NumberCiv. A. No. 95-00020-C.
Citation184 BR 720
PartiesCOLONIAL AUTO CENTER, INC., Appellant, v. Shirley Mae TOMLIN, Appellee.
CourtU.S. District Court — Western District of Virginia

Steven Shareff, Palmyra, VA, for appellant.

Gail Susan Ogle, Charlottesville, VA, for appellee.


MICHAEL, District Judge.

This matter comes to this court on appeal from a decision of the United States Bankruptcy Court, Western District of Virginia, Judge William E. Anderson, denying the appellant's motion for summary judgment. The appellant sought an order that a dismissal "with prejudice" of the appellee's prior bankruptcy petition had rendered pending debts nondischargeable in subsequent petitions brought by the appellee. Judge Anderson ruled that the dismissal "with prejudice" of the prior petition was intended only to invoke the proscription barring the debtor from filing another petition for 180 days. Accordingly, Judge Anderson concluded that the dismissal "with prejudice" had not rendered pending debts nondischargeable in subsequent petitions. On appeal, the appellant argues that the order dismissing the case "with prejudice" was an unambiguous order which must be interpreted as a bar to the discharge of debts existing prior to the dismissed case. The appellee argues that Judge Anderson's interpretation of his prior order was reasonable and that deference should be accorded to a court to interpret its own orders. For the reasons discussed below, this court vacates the order of the bankruptcy court and remands for an order consistent with this opinion.


On December 27, 1991, the appellee, along with her husband, signed a retail installment contract with the appellant, facilitating the purchase of a truck. On August 31, 1992, the appellant repossessed the truck and, on September 6, 1992, sold the truck at public auction. The sale left a deficiency of $5,284.63. On May 28, 1993, the appellant obtained in state court a judgment against the appellee for the amount of the deficiency plus interest and court costs. Subsequently, the appellant obtained another judgment against the appellee for $1,500.00 plus interest, arising from the appellee's failure to pay a deposit owing to the appellant. The balance remaining on these two judgments constitute the debt at issue.

The appellee has availed herself of the liberal filing provisions pursuant to the so-called Bankruptcy Code, 11 U.S.C. §§ 1-543 (1993). Since 1990, the appellee, either individually or with her husband, has filed six petitions in bankruptcy:

Petition # 1: On May 25, 1990, the appellee and her husband filed a petition pursuant to Chapter 13 of the Code. On August 20, 1990, the bankruptcy court confirmed the appellee's Chapter 13 plan (an amended plan was confirmed on November 14, 1990). On January 17, 1991, Union Planters National Bank ("Union Planters") moved for relief from the stay imposed pursuant to Chapter 13. On May 3, 1991, the bankruptcy court ordered the stay lifted. On July 15, 1991, the bankruptcy court granted the appellee's voluntary motion to dismiss.

Petition # 2: On July 25, 1991, the appellee individually filed a petition pursuant to Chapter 13. The appellee never submitted a plan. On September 12, 1991, Union Planters moved for relief from the stay. On December 6, 1991, the bankruptcy court granted the appellee's motion to dismiss the petition.

Petition # 3: On April 24, 1992, the appellee, again with her husband, filed a petition pursuant to Chapter 13. During the pendency of this petition, the appellee neither attended creditors' meetings nor timely filed bankruptcy schedules. On June 22, 1992, the bankruptcy court heard the trustee's motion to dismiss and ordered the appellee to cure all defaults by June 26, 1992. The appellee failed to abide by that order. On July 6, 1992, the bankruptcy court ordered the petition dismissed.

Petition # 4: On September 18, 1992, the appellee filed a petition pursuant to Chapter 7 to stop the foreclosure sale of her residence. During the pendency of this petition, the appellee did not pay the filing fee, did not attend the creditors' meeting, and did not file schedules. On November 13, 1992, the bankruptcy court dismissed the petition.

Petition # 5: On December 17, 1992, the appellee filed a petition pursuant to Chapter 7 again to stop the foreclosure sale of her residence. On December 18, 1992, Union Planters filed an emergency motion for relief from the stay. On December 18, 1992, the bankruptcy court lifted the stay, and, in such order, the bankruptcy judge noted that it appeared that the appellee had filed the petition in bad faith and in violation of 11 U.S.C. § 109(g). On February 11, 1993, the bankruptcy judge ordered the petition "dismissed with prejudice."

Petition # 6: On October 14, 1994, the appellee filed a petition pursuant to Chapter 7. On November 15, 1994, the bankruptcy judge entered an order discharging the appellee's debts.

On October 14, 1994, the appellant filed the instant action to determine the dischargeability of debts pending prior to the dismissal "with prejudice" of Petition # 5. On December 7, 1994, the appellant filed its motion for summary judgment, and, on December 9, 1994, the appellee cross moved for summary judgment. After a hearing, the bankruptcy judge issued an Order and a Memorandum Opinion denying the appellant's motion for summary judgment. This appeal ensued.

At stake in this adversary proceeding are the debts arising from the two judgments which the appellant received against the appellee. In a hearing before this court on June 17, 1995, counsel for the appellant conceded that if this court affirms the denial of summary judgment, then the case is over — the appellee's debts to the appellant are discharged.

A. Jurisdiction

At oral argument, the parties raised the issue of the jurisdiction of this court to address an appeal from a denial of a motion for summary judgment. The court is uncertain, however, whether the parties raised the issue of jurisdiction for resolution by this court.1 Nonetheless, the court will decide the jurisdictional question on its own motion, pursuant to Fed.R.Civ.P. 12(h)(3). See In re Hebb, 53 B.R. 1003, 1004 (D.Md.1985).

The federal district courts derive jurisdiction to review orders of the bankruptcy courts from 28 U.S.C. § 158(a) (1993):

The district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title.

Thus, an appeal is taken properly where a bankruptcy court has issued a final judgment, order, or decree, or where the district court has granted leave to appeal an interlocutory order. In the present case, the court concludes that the appeal is taken properly because the bankruptcy court's denial of summary judgment constitutes a final order or judgment.

Pursuant to 28 U.S.C. § 1291 (1993), a final judgment is "one which ends the litigation . . . and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). In contrast, an interlocutory order is "one which does not finally determine a cause of action but only decides some intervening matter pertaining to the cause, and which requires further steps to be taken to enable the court to adjudicate the cause on the merits." Hebb, 53 B.R. at 1005 (citing United States v. O'Donnell (Matter of Abingdon Realty Corp.), 634 F.2d 133 (4th Cir.1980)). As a general rule, "the denial of summary judgment is interlocutory in nature and is thus not appealable." United States v. Alvarez, 735 F.2d 461 (11th Cir.1984) (citing 6 Moore's Federal Practice ¶ 56.20(2) (1982)). "When a judge denies one party's motion for a summary judgment, he merely preserves the status quo in the case." Id.

An exception to the general rule is, of course, where the denial of summary judgment resolves all dispositive issues in the case. In Monetary II Limited Partnership v. Commissioner, 47 F.3d 342, 343 n. 1 (9th Cir.1995), the court concluded that the denial of a motion for summary judgment was appealable because the denial was accompanied by a final order disposing of all issues before the tax court. The court concluded therefore that the denial was a final decision which gave the court jurisdiction over the appeal.2 The instant case is strikingly similar. The bankruptcy judge's order was accompanied by a ten-page Memorandum Opinion in which the judge stated that "an order will be entered denying the appellant's motion for summary judgment and providing that the February 11, 1993 dismissal order entered in the appellee's bankruptcy case did not make all of her debts existing at the time of the dismissal nondischargeable in any subsequently filed case." Because the appellant's initial complaint filed in the bankruptcy court was styled "Complaint to Determine Dischargeability of Debt" which substantively requested only that "the court enter an order determining the appellee's debts to the appellant to be nondischargeable . . .," this court concludes that the bankruptcy judge's February 11, 1993 Order and accompanying Memorandum Opinion disposed of all issues before the bankruptcy court in the particular adversary proceeding. Therefore, the denial of summary judgment in this case is a final order, and the appellant's appeal thereof is taken properly.3

B. Summary Judgment

The district court reviews the factual findings of the bankruptcy court for clear error and reviews the conclusions of law de novo. In re Morris Communications NC, Inc., 914 F.2d 458, 467 (4th Cir.1990); Lowe's of Virginia, Inc. v. Thomas, 60 B.R. 418, 419 (W.D.Va.1986). From either a grant or a denial of summary judgment, the court's review is plenary. American...

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