Grey, In re

• Citation: 902 F.2d 1479
• Decision Date: 26 April 1990
• Docket Number: 89-3202,Nos. 89-3201,s. 89-3201
• Parties: 12 UCC Rep.Serv.2d 626 In re Huey P. (Mio) GREY and Ann P. (Mio) Grey, formerly doing business as Grey's Swine Farm, Debtors. COATS STATE BANK, Plaintiff-Appellee, v. Huey P. (Mio) GREY, formerly doing business as Grey's Swine Farm, Defendant-Appellant, and Ann P. (Mio) Grey, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1479

902 F.2d 1479

12 UCC Rep.Serv.2d 626

In re Huey P. (Mio) GREY and Ann P. (Mio) Grey, formerly

doing business as Grey's Swine Farm, Debtors.

COATS STATE BANK, Plaintiff-Appellee, v. Huey P. (Mio) GREY, formerly doing business as Grey's Swine

Farm, Defendant-Appellant,

and

Ann P. (Mio) Grey, Defendant.

Nos. 89-3201, 89-3202.

United States Court of Appeals, Tenth Circuit.

April 26, 1990.

Dan E. Turner and Phillip L. Turner, Topeka, Kan., for defendant-appellant.

Ann L. Baker, Davis, Wright, Unrein, Hummer & McCallister, Topeka, Kan., for plaintiff-appellee.

Before McKAY and BARRETT, Circuit Judges, and KANE, District Judge. ^*

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cases are therefore ordered submitted without oral argument.

Coats State Bank (Bank) commenced this adversary proceeding under 11 U.S.C. Sec. 523(a)(6) and (c), challenging the dischargeability of debtor's loan obligation to the Bank. The Bank alleged debtor willfully and maliciously sold the collateral securing debtor's loans with the Bank in disregard of the Bank's security interest. The bankruptcy court, on September 4, 1986, determined debtor's obligation to the Bank was exempt from discharge in the amount of approximately $71,000. Debtor appealed to the district court, asserting four claims of error: 1) the bankruptcy court erred in admitting the security agreement into evidence; 2) the security agreement did not include after-acquired property; 3) the bankruptcy court improperly determined the amount of damages; and 4) the bankruptcy court erred in determining debtor willfully and maliciously disposed of the collateral, as required under Sec. 523(a)(6). On March 17, 1988, the district court affirmed the bankruptcy court's decision as to the first three assertions of error, but remanded the action for additional findings on the issue of whether there was a willful and malicious injury to the Bank justifying nondischargeability.

On remand, the bankruptcy court made additional findings and concluded debtor's sale of the collateral resulted in a willful and malicious injury to the Bank's secured interest. The district court, on August 21, 1989, affirmed the bankruptcy court's determination.

Debtor appeals from both the district court's March 17, 1988, order and the August 21, 1989, order. As grounds for error, debtor asserts: 1) the security agreement did not include after-acquired property; 2) the bankruptcy court's determination of damages was erroneous; 3) the bankruptcy court erred in determining debtor's sale of collateral was malicious; and 4) the bankruptcy court erred in admitting the altered security agreement into evidence. This court will review the bankruptcy court's findings of fact under a clearly erroneous standard. In re Mullet, 817 F.2d 677, 678 (10th Cir.1987). Legal determinations will be reviewed de novo. Id. at 679.

As an initial issue, the Bank asserts this court lacks jurisdiction to consider debtor's first three arguments because debtor did not file a notice of appeal as to these issues until after the district court's August 21, 1989, order, even though these issues were resolved by the district court in its March 17, 1988, order. An appellate court does not have jurisdiction to review as a final order a district court order remanding a bankruptcy action for "significant further proceedings." In re Commercial Contractors, Inc., 771 F.2d 1373, 1375 (10th Cir.1985). Because the district court's March 17, 1988, order remanded this action to the bankruptcy court for additional findings of fact concerning the dispositive issue in this case, whether debtor's sale of collateral was willful and malicious, the district court's remand was for "significant further proceedings." Debtor, therefore, could not have appealed the March 17 affirmance until resolution of the issue of willfulness and maliciousness. Debtor's timely notice of appeal, filed after the district court's August 21, 1989, order, was sufficient to vest this court with appellate jurisdiction to consider all four of debtor's arguments asserted on appeal.

Debtor first argues that the security agreement did not include after-acquired property. The security agreement gave the Bank a security interest in all debtor's livestock, hog equipment, farm machinery, and farm equipment as listed, to be updated monthly, and "any and all increases, additions, accessions, substitutions and proceeds thereto and therefor." Even though a security agreement does not specifically use the phrase "after-acquired property," the security agreement will include after-acquired property if that is the intent of the parties. See In re Gary & Connie Jones Drugs, Inc., 35 B.R. 608, 611-12 (Bankr.D.Kan.1983). The bankruptcy and district courts did not err in determining the language of the security agreement established the parties' intent to include after-acquired property.

Debtor asserts this determination is contrary to the ...