In re Foust
| Decision Date | 12 November 2002 |
| Docket Number | No. 01-60774.,01-60774. |
| Parties | In the Matter of: Bobby Ray FOUST and Cathy Foust, Debtors. Bobby Ray Foust; Cathy Foust; and Donald O. Simmons, Appellants, v. Dan C. McNeill; Lamar Thigpen; and Pearl River County, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William S. Boyd, III (argued), William S. Boyd, III & Associates, Gulfport, MS, for Appellants.
William M. Rainey, Henry Tobias Coleman (argued), Franke, Rainey & Salloum, Gulfport, MS, for Appellees.
Appeal from the United States District Court for the Southern District of Mississippi.
Before DAVIS, SMITH and BENAVIDES, Circuit Judges.
The sheriff's office of Pearl River County, Mississippi, executed a writ of replevin by seizing Bobby and Cathy Foust's convenience store and permitting a creditor to repossess the inventory. The writ directed the officers to take only the fixtures, inventory, and equipment; state law required them to hold the personal property for two days following seizure. Disregarding both limits, the officers seized the premises and turned over the inventory immediately. The bankruptcy court held that these actions did not violate the Bankruptcy Code, the Fourteenth Amendment's Due Process Clause, the Fourth Amendment, or Mississippi's replevin statute. The district court affirmed. We affirm in part, reverse in part, and remand.
On February 17, 1998, Gerald Seal and his wife, Diane Seal, filed an ex parte complaint for replevin in the circuit court of Pearl River County, Mississippi, alleging that Bobby Ray Foust and his wife, Cathy Foust, had executed an installment promissory note secured by inventory and certain furniture, fixtures, and equipment located in a convenience store in Mississippi. According to the complaint, the Fousts had defaulted on the note, and under its terms, the Seals were entitled to possession of the collateral.
The circuit judge ordered the clerk to issue a writ of replevin and directed the sheriff "to immediately seize and take into their possession the property described... and to deliver said property to the Plaintiffs unless bonded by the Defendants, and to summon the said Defendants to appear" in the circuit court on April 6, 1998, to respond to the Seals' complaint. The clerk issued a writ that conformed to these requirements.
On February 18, Gerald Seal delivered copies of the pleadings and orders to the sheriff's office. At the time, Dan McNeill was the sheriff and employed Lamar Thigpen as a civil deputy. Thigpen served all civil process, including writs of replevin, in the south end of the county. He had been employed by the county for over eight years but had not received training in the service of civil process. Thigpen testified that he was not familiar with the specific requirements of the Mississippi replevin statute; he consulted with Seal's attorney and other members of McNeill's staff before serving the writ.
Thigpen initially served the writ on Cathy Foust and her mother, who were working at the store. Thigpen requested permission to lock the door and seize the premises, but Cathy Foust refused. She and her mother then called Bobby Foust to advise him that Thigpen was closing the store, having the locks changed, and locking the premises. Thigpen and McNeill testified that they commonly seized premises when they could not find a place to store the seized items.
Thigpen then allowed Gerald Seal to remove all the inventory and place it in storage sheds on the property of Seal and his father. The sheriff does not have a warehouse to store items seized pursuant to writs of replevin.
On February 19, the Fousts filed a voluntary petition for chapter 13 bankruptcy and served notice of the filing on McNeill. At seven o'clock that evening, Thigpen met the Fousts at the store and turned over the keys but did not return the inventory he had given to Gerald Seal. Upon notification of the filing, Seal refused to return the inventory.
The Fousts' bankruptcy complaint alleged that McNeill, Thigpen, and the county had violated the Bankruptcy Code by failing to turn over the property promptly and provide an accounting. The Fousts also sued for damages under 42 U.S.C. § 1983, alleging that the writ of replevin violated their rights under the Fourth and Fourteenth Amendments. Finally, the Fousts claimed that McNeill and Thigpen had violated the requirements of Mississippi's replevin statute.
The bankruptcy court dismissed most of the Fousts' claims at summary judgment, holding that McNeill and Thigpen had complied with the Bankruptcy Code by turning over the keys to the premises as soon as they learned of the filing. The court held, however, that McNeill and Thigpen had a duty to provide an accounting to the estate. The court ruled that McNeill and Thigpen had quasi-judicial, absolute immunity and dismissed the federal, constitutional claims against the individual defendants in their personal capacities. The court also found that Mississippi state law immunized McNeill, Thigpen, and the county from liability for executing the judicial order. The bankruptcy court therefore granted defendants' motion for summary judgment on all claims but the accounting.
The district court affirmed for substantially the same reasons and dismissed the action. The court failed, however, explicitly to rule whether the Bankruptcy Code might require Thigpen and McNeill to provide an accounting.
The Fousts agree with the conclusions of the bankruptcy and district courts that McNeill and Thigpen qualified as "custodians" under 11 U.S.C. § 101(11),1 making the requirements of 11 U.S.C. § 543 applicable. On appeal, however, the Fousts argue that McNeill and Thigpen failed to comply with § 543's turnover and accounting requirements. The summary judgment including the bankruptcy and district courts' interpretations of statutes, are reviewed de novo. See Carney v. Internal Revenue Serv. (In re Carney), 258 F.3d 415, 417-18 (5th Cir.2001) (summary judgment); Samson v. Apollo Res., Inc., 242 F.3d 629, 633 (5th Cir.) (statutory interpretation), cert. denied, 534 U.S. 825, 122 S.Ct. 63, 151 L.Ed.2d 31 (2001).
Section 543(b) imposes a straightforward turnover obligation: The custodian must "deliver" to the estate "any property of the debtor ... that is in such custodian's possession, custody or control on the date that the custodian acquires knowledge of the commencement of the case." 11 U.S.C. § 543(b)(1). The Fousts admit that Thigpen retained "possession" and "control" of the keys to the premises only after they filed bankruptcy. Thigpen turned over the keys to the Fousts on the same day that they filed for bankruptcy; he already had turned over the inventory to the Seals, so it was no longer in his possession or control.
The Fousts cite no authority, and have no colorable argument, for the proposition that Thigpen or McNeill failed to satisfy his delivery obligations. Nothing in § 543 indicates a turnover obligation for items no longer in the "possession" or "control" of a custodian at the time he acquires knowledge of a bankruptcy, regardless of whether the prior loss of "possession" or "control" was proper. We therefore affirm as to this question.
Section 543(b)(2) requires the custodian to "file an accounting of any property of the debtor ... that, at any time, came into the possession, custody, or control of such custodian." 11 U.S.C. § 543(b)(2). The bankruptcy court found a fact question as to whether McNeill and Thigpen had violated their duty to provide an accounting: "[T]he court concludes that as to the requirement of an accounting pursuant to Section 543(b)(2), the Movant-Defendants are not entitled judgment as a matter of law and the motion for summary judgment is denied to that extent." The district court's opinion dismisses the entire cause of action but fails to address the question.
In the appeal to this court, defendants have not directly addressed their accounting obligations, but instead have only argued, under § 543, that Thigpen lacked possession or control of the inventory when he learned of the bankruptcy filing. Section 543(b)(2)'s terms encompass all property over which a custodian previously had possession or control; that Thigpen lacked possession or control at the time he learned of the filing, therefore, does not preclude his obligations under the statute. We accordingly reverse that portion of the district court's decision.2
The Fousts argue that the district court improperly dismissed the federal constitutional claims against McNeill and Thigpen in their individual capacities. The bankruptcy and district courts found that the judicial writ created absolute immunity for actions taken in accordance with its requirements and that all of Thigpen and McNeill's actions fell within its scope. The Fousts argue, to the contrary, that absolute immunity should not extend to actions taken by Thigpen and McNeill that were not explicitly required by the writ.
Absolute immunity can extend to government officials who perform quasi-judicial functions. Thomas v. City of Dallas, 175 F.3d 358, 362 (5th Cir.1999). In determining whether a person is entitled to quasi-judicial immunity, courts employ a "functional approach" that focuses on "the nature of the function performed, not the identity of the actor who performed it." Id. (citing Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)).
Law enforcement officers have absolute immunity for enforcing the terms of a court order but only qualified immunity for the manner in which they choose to enforce it. In Mays v. Sudderth, 97 F.3d 107, 109-10, 114 (5th Cir.1996), the court dismissed an arrestee's § 1983 claim against a sheriff for unlawful arrest pursuant to an unconstitutional warrant. We began with the settled proposition that judges are protected by absolute immunity, id. at 110, then noted that...
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