In re Bowen
| Decision Date | 16 July 1996 |
| Docket Number | BAP No. AZ-95-2250-AsJH. Bankruptcy No. 92-00092-PHX-SSC. Adv. No. 92-395. |
| Citation | 198 BR 551 |
| Parties | In re Cheryl BOWEN, Debtor. GENEL COMPANY, INC., an Oregon corporation, Appellant, v. Cheryl BOWEN, and Alfred J. Bowen, Appellees. |
| Court | U.S. Bankruptcy Appellate Panel, Ninth Circuit |
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Terry A. Dake, Phoenix, AZ, for Appellant.
Marcia J. Busching, James W. Armstrong, Phoenix, AZ, for Appellees.
Before: ASHLAND, JONES, and HAGAN, Bankruptcy Judges.
STATEMENT OF FACTS
Genel Company, Inc. entered into a real estate construction loan transaction with Bowen Quality Construction Company. Cheryl Bowen, debtor, and Alfred Bowen were the owners of Bowen Quality. During the time of the negotiations and funding of the loan, debtor was an officer, director, and employee of Bowen Quality.
As part of the loan transaction, Bowen Quality pledged a security interest in 155,000 shares of common stock of Peripheral Systems, Inc. to Genel. The pledge agreement was signed by debtor, Alfred Bowen, and Bowen Quality. Genel hired Washington legal counsel to assist in the documentation of the pledge of that collateral. Subsequently, Genel loaned $1,053,000 to Bowen Quality in two installments, one of $640,000 on December 2, 1988 and one of $413,000 on December 28, 1988. Bowen Quality filed chapter 11 bankruptcy on December 30, 1988.
Genel sought to recover on the pledged collateral. However, it was not able to seize and sell the stock because the stock was not in the Bowen Quality account. In fact, the stock which was pledged as collateral by Bowen Quality did not exist. As a result, Genel was not able to recover the value of its intended collateral and suffered significant losses.
Genel sued debtor in federal court on her guaranty to recover the amount owed Genel. Four weeks prior to trial, after pretrial depositions and discovery, debtor settled with Genel. Debtor was represented by legal counsel in both Washington and Arizona throughout the litigation and settlement process. The settlement agreement, signed by debtor, states:
Additionally, the settlement agreement provided for a payment by debtor and Alfred Bowen of $175,000 to Genel. Thus far, payment of $38,000 has been made on the stipulated judgment.
Upon debtor's subsequent filing of chapter 7 bankruptcy, Genel sought to have its stipulated judgment against debtor declared non-dischargeable under 11 U.S.C. Section 523. After partial summary judgment proceedings and a motion for reconsideration, the bankruptcy court concluded that the pre-petition stipulated judgment against Bowen was entitled to collateral estoppel effect, and held that Genel had satisfied the elements of § 523(a)(2)(A), with the exception of justifiable reliance and proximate cause of damage.
Genel again moved for partial summary judgment on its § 523(a)(2)(A) claim, requesting that the court grant summary judgment on the elements of justifiable reliance and proximate cause of damages. The court found that Genel satisfied the necessary elements of the statute and declared Genel's claims nondischargeable under § 523(a)(2)(A). Upon motion by Genel, the court entered a partial final judgment, pursuant to Federal Rule of Civil Procedure 54(b), granting judgment to Genel under § 523(a)(2)(A). Debtor followed with a motion to reconsider which subsequently was denied. Debtor appeals the court order granting Genel's motions for summary judgment and final judgment.
1. Did the bankruptcy court err in finding that a stipulated judgment stating that a debt would not be dischargeable in bankruptcy had preclusive effect in a subsequent § 523(a)(2)(A) nondischargeability proceeding?
2. Did the bankruptcy court err in granting summary judgment in favor of Genel after it determined that there were no genuine issues of material fact remaining in its § 523(a)(2)(A) claim?
3. Did the bankruptcy court err in entering a final judgment pursuant to Fed. R.Civ.P. 54(b) when other unadjudicated claims remain in Genel's complaint?
A bankruptcy court's decision to grant summary judgment is reviewed de novo. Jones v. Union Pac. R.R. Co., 968 F.2d 937, 940 (9th Cir.1992). An appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether the bankruptcy court correctly found that there were no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. In re Baird, 114 B.R. 198, 201 (9th Cir. BAP 1990).
This court applies the de novo standard for reviewing the question of availability of collateral estoppel. Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318 (9th Cir.1992).
The issue of dischargeability of debt is a question of federal law, not state law, and is governed by the provisions of the Bankruptcy Code. Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 657, 112 L.Ed.2d 755 (1991). The determination of justifiable reliance is a question of fact subject to the clearly erroneous standard of review. In re Kirsh, 973 F.2d 1454, 1456 (9th Cir.1992).
This court reviews the certification of an appeal under Fed.R.Civ.P. 54(b) for abuse of discretion. Gregorian v. Izvestia, 871 F.2d 1515, 1520 (9th Cir.1989), cert. denied, 493 U.S. 891, 110 S.Ct. 237, 107 L.Ed.2d 188 (1989).
As a preliminary matter, we must consider debtor's argument that the bankruptcy court abused its discretion in granting Genel's motion for the entry of final judgment pursuant to Fed.R.Civ.P. 54(b). Rule 54(b) provides in part that, "the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."
The present trend is toward greater deference to the court's decision to certify under Rule 54(b). Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir.1991). Certification is proper if it will aid "expeditious decision" of the case. Texaco, 939 F.2d at 797. Here, the bankruptcy court found that there were no justifiable reasons for delaying the entry of judgment because the issues presented in Genel's § 523(a)(2)(A) claim are substantially different from the issues in Genel's remaining claims. The evidence presented is materially different as well. Thus, entry of judgment will not lead to piecemeal appeals. Therefore, the judgment was properly certified for appeal under Rule 54(b).
The doctrine of collateral estoppel serves the purposes of protecting parties from multiple lawsuits, preventing the possibilities of inconsistent decisions, and conserving judicial resources. Montana v. U.S., 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). The doctrine of collateral estoppel applies in bankruptcy court to bar relitigation of dischargeability claims. Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). Once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. In re Silva, 190 B.R. 889, 892 (9th Cir. BAP 1995); Montana 440 U.S. at 147, 99 S.Ct. at 970-71.
The debtor, relying on In re Prather, 178 B.R. 501 (Bankr.W.D.Wash.1995), contends that a pre-petition stipulated judgment cannot be given collateral estoppel effect under Washington law. However, in Prather, the court was not looking to a prior federal diversity judgment, but rather a state court judgment. In this case, the prior judgment was a federal diversity judgment. In applying collateral estoppel, we apply federal law to determine the preclusive effect of a prior federal diversity judgment. In re Berr, 172 B.R. 299, 305 (9th Cir. BAP 1994).
Under the federal standard, four elements must be met to foreclose relitigation of an issue under collateral estoppel:
1) The issue sought to be precluded must be the same as that involved in the prior action;
2) The issue must have been litigated in the prior action;
3) The issue must have been determined by a valid and final judgment; and
4) The determination must have been essential to the final judgment. In re Pizante, 186 B.R. 484, 488 (9th Cir. BAP 1995); In re Berr, 172 B.R. at 306.
Debtor asserts that Genel has not satisfied the element of actual litigation. Ordinarily, stipulated or consent judgments are not entitled to preclusive effect because there was no actual litigation. In re Berr, 172 B.R. at 306. However, the actual litigation requirement may be satisfied...
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