In re Thomas
| Decision Date | 27 March 2017 |
| Docket Number | Case No. 16–27850–K |
| Citation | 565 B.R. 856 |
| Parties | IN RE William H. THOMAS, Jr., SSN: xxx-xx-xxxx, Debtor. |
| Court | U.S. Bankruptcy Court — Western District of Tennessee |
Michael P. Coury, Jessica Lyn Indingaro, Glankler Brown, PLLC, Memphis, TN, John E. Venn, John E. Venn, Jr., P.A., Pensacola, FL, for Debtor.
Robert J. Spence, Kristina Woo, The Spence law Firm, Memphis, TN, for Clear Channel Outdoor.
Kathy Baker Tennison, Attorney at Law, Memphis, TN, for Tennison Brothers, Inc.
Sean M. Haynes, Office of the United States Trustee, Memphis, TN, for U.S. Trustee.
Mr. William H. Thomas, Jr., the above-named Chapter 11 debtor in possession ("Debtor" or "Mr. Thomas"), filed the instant motion seeking a stay pending appeal pursuant to FED. R. BANKR. P. 8007(a)(1) after filing a notice of appeal arising out of two (2) prior orders of this Court: first, a November 28, 2016 Order granting Clear Channel Outdoor, Inc.'s ("Clear Channel") motion under 11 U.S.C. § 362(d)(1) seeking relief from the automatic stay as well as the Joinder thereto filed by Tennison Brothers, Inc. ("Tennison Brothers") pursuant to FED. R. BANKR. P. 7018(a), and, second, a January 12, 2017 Memorandum and Order denying "Debtor's Motion To Alter Or Amend Court's Order Lifting Automatic Stay as to Clear Channel, Inc. and Tennison Brothers, Inc." The notice of appeal giving rise to this motion to stay pending appeal was filed on January 26, 2017, and has been transmitted to the United States District Court for the Western District of Tennessee ("District Court") to hear and determine under 28 U.S.C. § 158(a)(1).
This core proceeding under 28 U.S.C. § 157(b)(2)(A) and (G) arises out of the "Debtor's Motion to Stay Court's Orders Pending Appeal" ("Motion") filed on February 6, 2017, by Michael P. Coury, Esquire ("Mr. Coury"), on behalf of Mr. Thomas. Mr. Coury is the current Chapter 11 attorney of record for Mr. Thomas. The Motion resulted in two (2) written objections thereto filed by Robert L. J. Spence, Jr., Esquire ("Mr. Spence") and Kristina A. Woo, Esquire ("Ms. Woo"), attorneys for the creditor, Clear Channel, and Kathy Baker Tennison, Esquire ("Ms. Tennison") and Stuart B. Breakstone, Esquire ("Mr. Breakstone"), attorneys for the creditor, Tennison Brothers. The attorneys for all the immediate parties in interest participated in the oral arguments for and against the Motion that were held in open court on March 14, 2017.
The ultimate question here for judicial determination arises out of the FED. R. BANKR. P. 8007(a)(1) Motion filed by Mr. Thomas. Query: Whether this Court should stay the two (2) orders of this Court entered on November 28, 2016, and January 12, 2017, pending their appeal?
As noted earlier, this is a core proceeding, and the Court has both the statutory and constitutional authority to hear and determine this proceeding subject to the statutory appellate provisions of 28 U.S.C. § 158(a)(1). The following shall constitute the Court's findings of fact and conclusions of law in accordance with Rule 7052 of the Federal Rules of Bankruptcy Procedure.
A detailed discussion of the relevant pre- and postpetition background facts and procedural history of this Chapter 11 case may be helpful here and is summarized as follows. Mr. Thomas, an attorney, apparently is a resident of both the State of Tennessee and the State of Florida, who, among other things, conducts business in Memphis, Tennessee. Clear Channel is a Delaware corporation with its principal address located in San Antonio, Texas; however, at all relevant times here, Clear Channel owned and/or operated billboard advertising structures in Shelby County, Tennessee. Tennison Brothers also is a corporate entity with its principal business office located in Memphis, Tennessee. Clear Channel and Tennison Brothers are prepetition Shelby County, Tennessee, Chancery Court ("State Court") judgment creditors of Mr. Thomas. The prepetition State Court judgment is currently pending on appeal before the Tennessee Court of Appeals for the Western Section at Jackson ("Tennessee Court of Appeals").
John E. Venn, Jr., Esquire ("Mr. Venn"), former Florida bankruptcy attorney of record for Mr. Thomas, filed an original voluntary petition for relief under Chapter 11 of the Bankruptcy Code on behalf of Mr. Thomas on June 6, 2016, in the Bankruptcy Court for the Northern District of Florida. After several months of litigation, Mr. Spence, acting as attorney on behalf of Clear Channel, filed under 28 U.S.C. § 1412 and FED. R. BANKR. P. 1014(a) a "Motion to Transfer Case to Another District," [Dkt. # 58]; and Mr. Thomas filed a "Response" thereto. [Dkt. # 77]. After notice and a hearing, the Bankruptcy Court for the Northern District of Florida entered an "Order Granting Motion to Transfer Bankruptcy Case to United States Bankruptcy Court, Western District of Tennessee, Western Division" on August 11, 2016, reasoning that the Western District of Tennessee was a more convenient forum and also that such transfer was in the interest of justice based on, inter alia , the location of the creditors. [Dkt. # 86]. See 28 U.S.C. § 1412 and FED R. BANKR. P. 1014(a). The Chapter 11 case was officially transferred to this Bankruptcy Court on August 29, 2016. No appeal was taken by Mr. Thomas.
On August 30, 2016, Mr. Thomas filed an "Application to Employ Michael P. Coury and Glankler Brown, PLLC, [of Memphis, Tennessee] as Attorneys for Debtor," [Dkt. # 91], which was granted by this Court after notice and a hearing on September 27, 2016. [Dkt. # 128]. See 11 U.S.C. § 327(a) and FED. R. BANKR. P. 2014(a). Mr. Venn subsequently filed a "Motion to Withdraw as Attorney" on October 11, 2016, [Dkt. # 150]; and this Court granted his motion on November 21, 2016. [Dkt. # 183].
On October 28, 2016, Clear Channel filed a "Motion and Memorandum of Clear Channel Outdoor, Inc. for Relief from Automatic Stay to Allow Pending Appeal to the Tennessee Court of Appeals to Proceed to Finality" [Dkt. # 164]; and on October 31, 2016, Tennison Brothers filed a "Notice of Joinder." [Dkt. # 165]. On November 17, 2016, Mr. Thomas filed "Debtor's Objection to Motion of Clear Channel Outdoor, Inc. for Relief from Automatic Stay and Joinder of Tennison Brothers, Inc. in Motion" [Dkt. # 174]; and on November 18, 2016, Clear Channel filed a "Reply." [Dkt. # 176]. This contested matter pursuant to FED. R. BANKR. P. 9014(a) came on to be heard before this Court on November 23, 2016; and a combined order granting both Clear Channel's Motion for Relief from the Automatic Stay and Tennison Brothers' Notice of Joinder was entered on November 28, 2016, after notice and opportunity for a hearing. [Dkt. # 190]. The November 28, 2016 Order is the first matter that is presently on appeal to the District Court.
On December 12, 2016, Mr. Thomas filed the "Debtor's Motion to Alter or Amend Court's Order Lifting Automatic Stay as to Clear Channel, Inc. and Tennison Brothers, Inc." [Dkt. # 197]. On December 27, 2016, Clear Channel filed a response, [Dkt. # 201], and Tennison Brothers filed an objection. [Dkt. # 202]. A reply was filed by Mr. Thomas on December 30, 2016. [Dkt. # 204]. This contested matter came on to be heard before this Court on January 3, 2017; and a memorandum and order denying Mr. Thomas' Motion to alter or amend was entered on January 12, 2017. [Dkt. # 208]. The January 12, 2017 Memorandum and Order is the second matter that is currently on appeal to the District Court.
On February 6, 2017, Mr. Thomas filed a "Motion to Stay Court's Orders Pending Appeal;" this is the instant matter now before this Court for consideration. [Dkt. # 224]. Both Clear Channel and Tennison Brothers filed separate objections on March 7, 2017, [Dkt. # 234, 236], and a hearing thereon was held before this Court on March 14, 2017, at which time the Court heard oral arguments of the parties' attorneys. A judicial determination on the instant Rule 8007(a)(1) Motion to stay and the objections thereto were taken under submission by this Court. This Memorandum and Order now addresses the matters taken under submission.
Clear Channel and Tennison Brothers have both filed proofs of claim in this Chapter 11 case based upon the prepetition judgment rendered by the Tennessee State Court on February 4, 2016, against Mr. Thomas. See Proof of Claim Nos. 4 and 7. However, Mr. Thomas disputes the claims (and prepetition State Court judgment) of both Clear Channel and Tennison Brothers in, for example, his official bankruptcy Schedules and oral statements made in open court. See [Dkt. # 39, Sch. E]. In addition to the pending appeal arising out of the State Court judgment, it is expressly noted that Clear Channel and Tennison Brothers also have filed separate adversary proceedings in this Chapter 11 case under 11 U.S.C. § 523(a)(6) seeking to determine the dischargeability of their respective claims against Mr. Thomas based on the prepetition Shelby County State Court judgment. See Adv. Proc. Nos. 16–00260 and 16–00261 herein.
By way of further background facts and procedural history, it is noted that on July 16, 2008, Tennison Brothers filed its "Original Complaint for Damages in the Chancery Court of Shelby County, Tennessee," [Dkt. # 123, Ex. 1]; and on December 4, 2009, it also filed its "Second Amended Complaint" ("Tennison Brothers' State Court complaint"). [Dkt. # 123, Ex. 2]. The Tennison Brothers' State Court complaint alleged, inter alia , that Mr. Thomas constructed an unpermitted and illegal billboard without obtaining a permit under the Tennessee Billboard Act. TENN. CODE ANN. § 54–21–101, et seq. ("the Billboard Act"); see also TENN. CODE ANN. §§ 54–21–104, 54–21–105, and 54–...
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...stay.Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). See also In re Thomas, 565 B.R. 856 (Bankr. W.D. Tenn. 2017). There is a valid appeal pending, but, having considered each of these factors, the court believes that there is no just r......