Larkins v. Sills, 23631.
| Decision Date | 04 May 1967 |
| Docket Number | No. 23631.,23631. |
| Citation | 377 F.2d 1 |
| Parties | Mrs. Annie C. LARKINS, Individually and as Executrix of the Estate of Miss Bertha Cowan, Appellant, v. Ruth SILLS, Trustee in Bankruptcy for Wilson Edward Seaton, Individually and d/b/a Catfish King, Inc., Bankrupt, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Claude E. Hambrick, Charles H. Edwards, Atlanta, Ga., for appellant.
Samuel J. Zusmann, Jr., Morris W. Macey, Lipshutz, Macey, Zusmann & Sikes, Atlanta, Ga., for appellee.
Before COLEMAN and DYER, Circuit Judges and ESTES, District Judge.
The Appellant, Annie C. Larkins (Appellant-Lessor), owner-lessor of improved real property in Conley, Georgia, appeals from the District Court's affirmance of an order of the Referee in Bankruptcy ruling that a sale, including an assignment of a lease, should be confirmed and Appellant-Lessor's petitions to abandon and reclaim be denied. The Appellee, Ruth Sills (trustee), is the trustee in bankruptcy of Catfish King, Inc. and of Wilson E. Seaton, individually and doing business as Catfish King, Inc.
On December 23, 1963, Appellant-Lessor leased the property to Seaton for ten years at a monthly rental of $600; and he and the corporation operated a restaurant, known as the Catfish King, until May 7, 1965, when Seaton and the corporation were voluntarily adjudicated bankrupt. Shortly after said adjudication, Seaton entered into an agreement with Appellant-Lessor's attorney for Seaton to continue the lease at an increased rental of $800 per month. Pursuant to this agreement, Seaton paid Appellant-Lessor's attorney $800 for the June, 1965 rent by a cashier's check purchased by Della Smith, a former employee of Seaton and a "real personal friend." Seaton had agreed to sublease the premises to Smith and work with her in operating the restuarant. The Appellant-Lessor knew of this agreement and Appellant-Lessor's attorney mailed a notice of cancellation of the original lease to Seaton, sending a copy of the notice to the trustee. Cancellation was based on a paragraph in the lease giving the lessor an option to cancel the lease in the event of lessee's bankruptcy. The attorney also had a telephone conversation with the trustee, making no mention of cancelling the lease but expressing an interest in having it abandoned by the trustee. The Appellant-Lessor's attorney also stated in the same telephone conversation that he would cooperate with the trustee in permitting the assigning of the lease and sale of the property of the bankrupt.
The agreement between Appellant-Lessor, Seaton and Smith became known to the Bankruptcy Court in a hearing on June 25, 1965, which followed the Appellant-Lessor's filing, on June 24, 1965, of a petition for abandonment of the property. After learning of the agreement between Appellant-Lessor, Seaton and Smith, the Referee expressed concern that a former cashier, "in a manner of apparent subterfuge," was going to lease the property and Seaton, the bankrupt, would become her employee. The court stated that this "just doesn't smell right." The trustee maintained that because of numerous mortgages on the physical assets, the only way a beneficial sale could be made would be as a package deal of the furnishings, fixtures and equipment, with an assignment of the lease. At the same June 25, 1965 hearing, the Appellant-Lessor's attorney stated to the Referee in Bankruptcy, "We will cooperate in every way with Miss Sills the trustee to do whatever she wants to do with the property." No action was taken on the petition for abandonment at this hearing. Subsequently, the Appellant-Lessor was approached by third parties interested in purchasing the property, provided that it was not leased. The trustee also received offers for a package sale of the bankrupts' assets, including an assignment of the lease.
On August 6, 1965, the trustee filed an application to sell the property of the bankrupt, including an assignment of the lease, to a named buyer at a set price; and on August 18, Appellant-Lessor filed a reclamation petition for the leased property, asserting that the lease had been terminated.
After a consideration of evidence, the Referee ruled, on October 6, 1965, that:
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Mobile Steel Co., Matter of
...limited role where a district court has affirmed the findings of a bankruptcy judge, DeMet v. Harralson, 399 F.2d at 38; Larkins v. Sills, 377 F.2d 1, 3 (5th Cir. 1967), we cannot reaffirm findings of fact that are unsupported by the The bankruptcy judge's conclusion that the appellants wer......
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In re By-Rite Distributing, Inc., Bankruptcy No. 84A-03050.
...Since the 60-day termination rule is for the benefit of lessors, they can, presumably, waive its application. See Larkins v. Sills, 377 F.2d 1, 3 (5th Cir.1967); Ten-Six Olive, Inc. v. Curby, supra, 208 F.2d at 123. In the present case, however, there is nothing of record to suggest that an......
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DeMet v. Harralson
...clearly erroneous doctrine becomes paramount when, as here, the district court has approved the referee's determination. Larkins v. Sills, 5 Cir. 1967, 377 F.2d 1, 3; Spach v. Strauss, 5 Cir. 1967, 373 F.2d 641, 643; and Minella v. Phillips, 5 Cir. 1957, 245 F.2d 687, 690. Starting from thi......
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