In re Silberkraus

• Decision Date: 10 July 2003
• Docket Number: No. 01-56992.,No. 01-56994.,01-56992.,01-56994.
• Citation: 336 F.3d 864
• Parties: In re Fred Lawrence SILBERKRAUS, Debtor, Debtor, Thomas W. Dressler; Dressler Rein Evans & Sestanovich LLP, now known as Rein Evans & Sestanovich LLP, Appellants, v. The Seeley Company, Appellee. In re Fred Lawrence Silberkraus, Debtor, Debtor, Thomas W. Dressler; Dressler Rein Evans & Sestanovich Llp, now known as Rein Evans & Sestanovich LLP, Appellants, v. L.E. Coppersmith Inc., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.3d 864

In re Fred Lawrence SILBERKRAUS, Debtor, Debtor,

Thomas W. Dressler; Dressler Rein Evans & Sestanovich LLP, now known as Rein Evans & Sestanovich LLP, Appellants, v. The Seeley Company, Appellee.

In re Fred Lawrence Silberkraus, Debtor, Debtor,

Thomas W. Dressler; Dressler Rein Evans & Sestanovich Llp, now known as Rein Evans & Sestanovich LLP, Appellants, v. L.E. Coppersmith Inc., Appellee.

No. 01-56992.

No. 01-56994.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 4, 2002.

Filed July 10, 2003.

COPYRIGHT MATERIAL OMITTED

Thomas W. Dressler, Dressler & La Vina LLP, Los Angeles, CA, argued the cause for the appellants. Dennis McPhillips was on the briefs.

Joseph A. Eisenberg, Jeffer, Mangels, Butler & Marmaro LLP, Los Angeles, CA, argued the cause for the appellees. Michael I. Gottfried and Thomas M. Geher, Jeffer, Mangels, Butler & Marmaro LLP, and Abraham M. Rudy and Julie B. Waldman, Weissmann, Wolff, Bergman, Coleman, Silverman & Holmes LLP, Beverly Hills, California, were on the briefs.

Appeal from the United States District Court for the Central District of California; Carlos R. Moreno, District Judge, Presiding. D.C. Nos. CV-00-10714-CRM, CV-00-10715-CRM.

Before: REINHARDT, O'SCANNLAIN, and PAEZ, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge.

We must decide whether the bankruptcy court abused its discretion in imposing sanctions upon counsel for filing a Chapter 11 petition with the improper purpose of delaying state court litigation of a commercial dispute.

I

In 1994, Fred Lawrence Silberkraus (the "Debtor") and L.E. Coppersmith, Inc. ("Coppersmith") entered into a five-year lease agreement for a 75,000 square foot industrial building located in Redondo Beach, California (the "commercial property"), with Coppersmith holding an option to purchase the property for $3,950,000 at the end of the term. The lease agreement further provided that the Debtor's real estate agent, the Seeley Company ("Seeley"), would receive a commission upon exercise of the option.

Coppersmith subsequently exercised its right to purchase the commercial property. On October 18, 1999, however, the Debtor informed the concerned parties that escrow would not be closing as scheduled. Shortly thereafter, Coppersmith filed a complaint for breach of contract in Los Angeles Superior Court, seeking specific performance to compel the Debtor to sell the commercial property pursuant to the terms of the option agreement.

On February 8, 2000, the Debtor, represented by Dressler Rein Evans & Sestanovich, LLP ("the Dressler law firm"), filed a Chapter 11 bankruptcy petition, thereby staying the proceedings in the state court action.¹ Coppersmith and Seeley filed motions requesting relief from the automatic stay in order to proceed with their action in state court. The Debtor, in written filings signed by Thomas Dressler, opposed the motions. The bankruptcy court ruled that the state court litigation could proceed to judgment and possible appeal, but that the stay remained intact with regard to enforcement of any money judgment against the Debtor.

On June 7, 2000, the Debtor filed a proposed disclosure statement and reorganization plan. The bankruptcy court subsequently denied approval of the plan, finding that it impermissibly gerrymandered Coppersmith's and Seeley's unsecured claims into a separate class from the other general unsecured claims. The court gave the Debtor until August 8, 2000 to file an amended disclosure statement and plan, and scheduled a hearing for September 5, 2000 to assess the adequacy of the revised plan.

The deadline passed without the Debtor making any filings. As a result, Coppersmith and Seeley filed motions for sanctions in the form of attorneys' fees against the Debtor, Thomas Dressler, and the Dressler law firm.² At the September 5, 2000, hearings, Thomas Dressler conceded that reorganization was impossible given the objection of creditors Coppersmith and Seeley. The court subsequently converted the Debtor's bankruptcy filing to Chapter 7 after determining that there was sufficient equity to pay most, if not all, of the debt. In re Silberkraus, 253 B.R. 890 (Bankr.C.D.Cal.2000).

Coppersmith and Seeley then argued that the Debtor and Dressler filed the Chapter 11 petition in bad faith, specifically to obtain a more favorable forum to litigate the ongoing dispute over the commercial property. After several hours of argument on the issue, the court entered two separate orders for sanctions against the Debtor and his counsel. The district court subsequently affirmed, concluding that the bankruptcy court made extensive factual findings and that it did not abuse its discretion in imposing sanctions.

II

Dressler claims on appeal that sanctions are improper because the bankruptcy court made several procedural errors.

A

Dressler's first argument is that Seeley and Coppersmith did not comply with the sanction provisions' "safe harbor" section, which provides, "motion[s] for sanctions may not be filed with or presented to the court unless, within 21 days after service of the motion, ... the challenged paper ... is not withdrawn or appropriately corrected, except that this limitation shall not apply if the conduct alleged is the filing of a petition. ..." Fed. R. Bankr.P. 9011(c)(1)(A). The clear import of this language is that the mandatory 21 day safe harbor rule does not apply to the filing of the initial petition.

Dressler's argument, therefore, must fail because the bankruptcy court imposed sanctions based on the bad faith filing of the initial Chapter 11 petition. See In re Silberkraus, 253 B.R. at 903 (noting that the Debtor filed his Chapter 11 petition in order to delay the pending state court action). And to the extent that the bankruptcy court considered post-filing events such as the Debtor's inability to propose a satisfactory reorganization plan and disclosure statement, "courts may infer the purpose of a filing from the consequences of a pleading or motion." In re Start the Engines, Inc., 219 B.R. 264, 270 (Bankr.C.D.Cal.1998).

B

Dressler next argues that Coppersmith and Seeley did not comply with the requirement that "[a] motion for sanctions under this rule shall be made separately from other motions or requests." Fed.R.Bankr.P. 9011(c)(1)(A). It is undisputed that the motions for sanctions were filed separately from other motions or requests. Nevertheless, Dressler claims that under Rule 9011(c)(1)(A) the bankruptcy court was required to conduct a separate hearing on Coppersmith's and Seeley's motions for sanctions.

Even assuming that Dressler's approach is correct, the bankruptcy court did conduct a separate hearing. During the September 5, 2000 proceedings, the bankruptcy court began by first addressing the Debtor's failure to file an amended disclosure statement, and then turned to Coppersmith's motion to convert the case from Chapter 11 to Chapter 7. Following the conclusion of this hearing, the court recessed. Later that evening, the court reconvened and conducted a separate hearing to discuss the pending motions for sanctions. Therefore, it is quite clear that even if Rule 9011(c)(1)(A) contains a separate hearing requirement, the bankruptcy court met this obligation.

C

Dressler next contends that the bankruptcy court never made any jurisdictionally valid findings of fact in support of its decision. The bankruptcy court issued a written opinion on October 12, 2000 detailing its extensive findings, but Dressler claims that the court was divested of jurisdiction after the notice of appeal was filed on September 29, 2000.

It is true that the filing of a notice of appeal generally divests the trial court of jurisdiction. See, e.g., Natural Res. Def. Council, Inc. v. Southwest Marine Inc., 242 F.3d 1163, 1166 (9th Cir.2001); Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir.1988). The purpose of this judicially-created doctrine is to avoid the potential confusion and waste of resources from having the same issue before two separate courts at the same time. But we have been careful to note that the rule "should not be employed to defeat its purposes nor to induce needless paper shuffling." Kern Oil, 840 F.2d at 734.

Accordingly, we have recognized an exception to the general rule where the district court action aids us in our review. See Hybritech Inc. v. Abbott Labs., 849 F.2d 1446, 1450 (Fed.Cir.1988) (citing In re Thorp, 655 F.2d 997, 998 (9th Cir.1981)). In Hybritech, at the end of a hearing on a preliminary injunction motion, the district court rendered an oral ruling, but expressed its intent to put its findings into writing. While a notice of appeal was filed on July 10, 1987, the district court did not enter its written findings until four days later. Hybritech, 849 F.2d at 1449.

The Federal Circuit in applying our law concluded that "the reduction of the oral ruling into written findings and conclusions aids our review, and ... that the Ninth Circuit would hold ... that [the] filing of [the] notice of appeal did not divest the district court of jurisdiction to subsequently enter its written findings." Id. at 1450; see also Kern Oil, 840 F.2d at 733-34 (holding that the district court had jurisdiction to enter findings even after a notice of appeal was filed because the district court judge had previously signed his findings of fact and conclusions of law).

We thus conclude that the bankruptcy court retained jurisdiction to publish its written findings of fact and conclusions of law because they were consistent with the court's oral findings³ and because they aid us in our review of the court's decision.

D

Dressler's final procedural claim is that the bankruptcy court's imposition of sanctions purportedly based on waiver⁴ was improper under Fed. R. Bankr.P 9029(a)(2), which provides: "A local rule imposing a requirement of form shall not be enforced in a manner that causes a party to lose rights because...