In re Thornburg

• Decision Date: 12 March 2002
• Docket Number: Bankruptcy No. 97-50636.,Adversary No. 00-5103.
• Citation: 277 B.R. 719
• Parties: In re Lynn Thomas THORNBURG, Jr., Debtor. Lynn Thomas Thornburg, Jr., Plaintiff, v. Fredye Long Lynch, Defendant.
• Court: U.S. Bankruptcy Court — Eastern District of Texas

Page 719

277 B.R. 719

In re Lynn Thomas THORNBURG, Jr., Debtor Lynn Thomas Thornburg, Jr., Plaintiff, v. Fredye Long Lynch, Defendant.

Bankruptcy No. 97-50636.

Adversary No. 00-5103.

United States Bankruptcy Court, E.D. Texas, Texarkana Division.

March 12, 2002.

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COPYRIGHT MATERIAL OMITTED

Rick C. Shumaker, Texarkana, TX, for Debtor.

Phillip N. Cockrell, Patton, Haltom, Roberts, McWilliams & Greer LLP, Texarkana, TX, for Fredye Lynch.

MEMORANDUM OPINION

DONALD R. SHARP, Chief Judge.

Now before the Court is the Motion For Contempt, Sanctions And Attorney Fees And To Declare Judgment Lien Void ("Motion") filed by Lynn Thomas Thornburg ("Debtor"). The Court considered the pleadings filed, the evidence adduced, the arguments of counsel and the record in this case. This opinion constitutes the Court's findings of fact and conclusions of law required by Fed.R.Bankr.Proc. 7052 and disposes of all issues before the Court.

FACTUAL AND PROCEDURAL BACKGROUND

The parties, Lynn Thomas Thornburg, Jr., and his former wife, Fredye Long Lynch a/k/a Fredye Mac Long ("Lynch"), were divorced November 9, 1995, in Bowie County, Texas. This matter is a continuation of the bitter protracted divorce and bankruptcy dispute between the Debtor and Lynch.¹ The Debtor filed his petition for relief under the Bankruptcy Code on February 27, 1997 listing Lynch as a creditor. The Debtor confirmed his Chapter 13 plan of reorganization June 23, 1998. The automatic stay was lifted on May 28, 1997 as a result of this Court's approval of an agreed order executed by both parties permitting Lynch to pursue a Motion For Enforcement in the District Court of Bowie County in connection with the state court divorce settlement agreement. On August 11, 1997, Lynch filed an Abstract of Judgment in Bowie County with respect to that certain judgment entered in post divorce enforcement proceedings. The Motion for Contempt now before the Court for consideration requests this Court to declare the Judgment entered by the District Court of Bowie County, Texas on August 11, 1997 to be in violation of 11 U.S.C. § 362 and void; to find Lynch in contempt of this Court for violation of the automatic stay under 11 U.S.C. § 362 for having abstracted the judgment and for allegedly having filed a Notice of Lis Pendens and for proceeding in the State District Court to enforce judgment; to find Lynch in contempt of this Court for her failure to remove the lien against property and, further, for the Court to enter sanctions against Lynch together with granting an award of reasonable attorneys' fees.

Lynch ("Defendant") filed an answer to the Motion for Contempt admitting that she filed the Abstract of Judgment in Bowie County, but denying, inter alia, that in so doing she was in violation of the automatic stay under § 362.² In addition, Lynch's Answer raises three affirmative defenses to the Motion: lack of subject matter jurisdiction, the law of the case doctrine³ and claim preclusion. The matter came on to be heard pursuant to a regular setting and, after trial, was taken under advisement following time to allow for the filing of briefs.

JURISDICTION

This Court has jurisdiction over the within proceeding pursuant to 28 U.S.C. §§ 157(a) and 1334. This is a core proceeding under 28 U.S.C. § 157(b)(k). The Bankruptcy Court has jurisdiction to clarify and enforce its own orders in a core proceeding or to prevent abuse of process under 11 U.S.C. § 105(a).

RES JUDICATA

Lynch argues that the doctrine of res judicata prevents this Court from adjudicating the instant contempt action which she avers involves the same nucleus of operative facts heard by this Court on May 30, 2000 on her Motion To Dismiss and the Debtor's Amended Motion For Contempt filed on April 18, 2000.⁴ The well settled elements necessary for application of the doctrine of res judicata are: "[T]he parties must be identical in both suits, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both cases." Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 559 (5th Cir.1983) (en banc). The first two and the last elements apply here. Moreover, Lynch accurately notes that the Debtor's Motion For Contempt included argument that Lynch had violated the "bankruptcy code" by filing the Abstract of Judgment "and by failure to obtain a lift from the Automatic Stay". However, the Court's bench ruling on the hearing clarified that "the automatic stay was lifted for a very specific purpose" and that the general automatic stay in connection with the bankruptcy remained in effect. The Court examined whether that stay applied to the actions complained of by Mr. Thornburg and, in particular whether it prohibited Lynch from proceeding against the Debtor in the Court in Bowie County. The issue was presented to the Court by the parties as whether the state court should be allowed to reopen the divorce proceeding and revisit the fairness of the property division in light of Lynch's claims of fraud. The Court ruled that it did not prevent further action in the Court in Bowie County and it denied the motion for contempt. The Court issued a written opinion shortly thereafter to supplement oral reasons for the judgment recited into the record. Neither ruling adjudicated the issue of whether the filing of the Abstract of Judgment constituted a violation of the automatic stay under 11 U.S.C. § 362. Neither ruling addressed whether the filing of the notice of lis pendens constituted a violation of the automatic stay under 11 U.S.C. § 362. Therefore, res judicata does not prevent this Court from determining whether such acts constituted violations, rather the Court may hereby supplement its prior ruling.

LAW OF THE CASE

The "law of the case doctrine" is defined as that principle under which the initial determination of questions of law will be held to govern the case throughout its subsequent stages. Justice Bail Bonds v. Samaniego, 68 S.W.3d 811 (Tex.App.-El Paso 2001) citing to Trevino v. Turcotte, 564 S.W.2d 682, 685 (Tex.1978). The doctrine is intended to achieve uniformity of decision, judicial economy, and efficiency. Justice Bail Bonds v. Samaniego, 68 S.W.3d 811 (Tex.App.-El Paso 2001) citing to Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). As such, law of the case doctrine does not preclude adjudication of the matters before the Court, it merely governs and informs such adjudication.

DISCUSSION

Once a bankruptcy petition has been filed, the protections of § 362 of the Bankruptcy Code apply. Under § 362(a)(1) through (6), pertinent here:

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of — (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;

(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;

(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;

(4) any act to create, perfect, or enforce any lien against property of the estate;

(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;

(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title; .......

11 U.S.C. §§ 362(a)(1), (2), (3), (4), (5) and(6). The automatic stay is a fundamental protection afforded by the bankruptcy laws. See In re Stringer, 847 F.2d 549, 551-52 (9th Cir.1988); See also H.R.REP. NO. 595, 95th Cong., 1st Sess. 340-42 (1977), reprinted in 1978 U.S.C.C.A.N. 5963 at 6296-6299; S.REP. NO. 989, 95th Cong., 2d Sess. 54-55 (1978), reprinted in 1978 U.S.C.C.A.N. 5787 at 5840, 6296-97. Nissan Motor Acceptance Corp. v. Baker, 239 B.R. 484, 488 (N.D.Tex.1999). A willful violation of the stay does not require a specific intent to violate the stay. In re Zaber, 223 B.R. 102, 107 (Bkrtcy.N.D.Tex.1998) citing to In re Atlantic Business & Community Corp., 901 F.2d 325, 329 (3d Cir.1990); In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). "[...] § 362(h) provides for damages upon a finding that the party knew of the automatic stay and that the party's actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to property is not relevant to whether the act was "willful" or whether compensation must be awarded. Bloom, 875 F.2d at 227 (citations omitted)." In re Zaber, 223 B.R. at 107 citing to In re Sharon, 200 B.R. 181, 200 (Bkrtcy.S.D.Ohio 1996).

The relations between the parties have been so rancorous, and the parties themselves so litigious, as to have brought them before this Court — and others — innumerable times. Now before the Court is the task of determining which, if any, of the actions taken, or caused to be taken, by Lynch or her agents following this Court's May 28, 1997 ruling violated the automatic stay under 11 U.S.C. § 362, as modified and are actions for which Lynch must be held in contempt of this Court. To do so, this Court must interpret the May 28, 1997 order modifying the automatic stay. "The bankruptcy court [is] `in the best position to interpret its own orders.' "Texas N.W. Ry. Co. v. Atchison, Topeka and Santa Fe...