Matter of Dooley

• Decision Date: 07 June 1990
• Docket Number: Bankruptcy No. 3-85-00828.
• Parties: In the Matter of John A. DOOLEY, Debtor.
• Court: United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Southern District of Ohio

116 B.R. 573 (1990)

In the Matter of John A. DOOLEY, Debtor.

Bankruptcy No. 3-85-00828.

United States Bankruptcy Court, S.D. Ohio, W.D.

June 7, 1990.

Jerome M. Strozdas, Springfield, Ohio, for debtor.

DECISION ON ORDER ON DEFENDANT'S DOCUMENT TITLED, MOTION + CONTRA: PERMISSION TO FILE; SUMMARY JUDGMENT; DISMISSAL OF ACTIONS; TO OVERRULE MOTIONS; COSTS

THOMAS F. WALDRON, Bankruptcy Judge.

On November 6, 1989, the debtor filed a document titled, Motions + Contras: Permission To File; Summary Judgment; Dismissal Of Actions To Overrule Motions; Costs (Doc. 359) (hereafter, debtor's filing). Although the debtor has repeatedly referred to this filing (Doc. 359) as a "motion for summary judgment", the description is inexact in that this filing (Doc. 359) not only contains the debtor's defenses to various motions and requests of M & M, but also contains the debtor's affirmative requests for various forms of relief. Additionally, not all of the issues presented in the debtor's filing (Doc. 359) are appropriate for disposition pursuant to the summary judgment rule (Bankr.R. 7056).

In determining the debtor's filing (Doc. 359), the court will separate the issues presented into the following categories:

I. —Those Issues Which Are Not Before The Court

II. —Those Issues Appropriate For Summary Judgment

III. —Those Issues Which Require An Evidentiary Hearing

I. ISSUES WHICH ARE NOT BEFORE THE COURT

A number of the issues presented by the debtor are no longer pending before the court. The debtor's filing (Doc. 359) refers to the issues of recusal and vacatur. On November 14, 1989, the Honorable William A. Clark signed an Order Of Recusal (Doc. 361). Following a hearing held March 2, 1990, the undersigned Judge denied the debtor's request for vacatur (Orders Denying Debtor's Motion To Suspend Process In Case and Debtor's Motion For Reconsideration And Other Matters—Doc. 394, Doc. 395).

Additionally, the debtor's filing (Doc. 359) presents responses to Merchants & Mechanics Federal Savings and Loan Association's (M & M) "Motion In Limine" and "Motion To Vacate Order Entered October 25, 1989" (Doc. 356). With regard to the Motion In Limine, upon review of this case and the related adversary proceedings, the court finds there is no Motion In Limine filed by M & M. At the time of the pretrial conference held May 23, 1990, counsel for M & M represented that the Motion In Limine was not filed in this court. (The court's recollection is that counsel for M & M represented that a Motion In Limine had been filed in the United States District Court.) To the extent that the debtor's filing (Doc. 359) is intended to respond to M & M's Motion In Limine, again, there is no Motion In Limine pending before this court.

Additionally, although M & M did file a Motion To Vacate Order Entered October 25, 1989 (Doc. 357), it also filed a Withdrawal Of Motion To Vacate (Doc. 401). Accordingly, there is no pending motion by M & M to vacate the Order entered October 25, 1989.

The debtor also "seeks sanctions against M & M in the amount of two hundred dollars to partially defray the cost of defending against the frivolous motions of limine and vacate/order." As the court has pointed out no motion for limine was filed in this court. Accordingly, no response from the debtor was required in this court, nor would there be a basis for any sanction in connection with this issue.

The issue of sanctions in connection with the debtor's defense against the Motion To Vacate Order is discussed in the next section concerning summary judgment.

II. SUMMARY JUDGMENT ISSUES

The debtor has frequently asserted (Doc. 409, p. 5, Doc. 418, pp. 10-11) that summary judgment should be rendered in connection with his filing (Doc. 359).

The debtor's filing (Doc. 359) states:

The time condition is satisfied by the instant pleading. The affidavit condition is satisfied by the debtor\'s use of the unsworn declaration for the entirety of this pleading including exhibits and references (p. 6).

In this document, Debtor has addressed evidence necessary to a grant of summary judgment (p. 19).

Debtor has conducted discovery (p. 20).

Pursuant to Rule 7056, Debtor moves the court to enter judgment in his favor in the above styled action, on the grounds that there is no genuine issue as to any material fact and that Debtor is entitled to judgment as a matter of law in respect of Debtor\'s Confirmed Plan (p. 21).

The issues appropriate for summary judgment in connection with the debtor's filing (Doc. 359) may be generally classified as issues related to preconfirmation payments by the debtor to M & M, issues related to postconfirmation payments by the debtor to M & M and issues related to the debtor's assertion that he is entitled to judgment to "partially defray the cost of defending against M & M's frivolous Motion To Vacate Order."

A. Principles Applicable To Summary Judgment Rulings

This court has previously noted:

As the Advisory Committee note to the 1963 Amendment of Fed.R.Civ.P. 56(e) states—"The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." 28 U.S.C.A.Fed.R.Civ.P., Rule 56-59 at 18 (1982).

Matter of Warner, 65 B.R. 512, 517 (Bankr.S.D.Ohio 1986).

In Matter of Warner, this court had occasion to discuss the import of the United States Supreme Court's rulings in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). This court noted:

These cases provide counsel with clear warning that the presentation or defense of a Motion For Summary Judgment requires, at a minimum, an adequate opportunity (whether exercised or not), for the parties to conduct full discovery of the issue, coupled with an understanding of the substantive evidentiary burden involved in the specific issue and a proper presentation of the material and genuine factual matters which would result in the resolution of the issue or the requirement of a trial. Warner at 518.

More recently, the Sixth Circuit commented on the Supreme Court's trilogy of summary judgment decisions and stated:

Scholars and courts are in agreement that a "new era" in summary judgments dawned by virtue of the Court\'s opinions in these cases. This court has recognized the dramatic change brought about by these opinions, as have other courts.

On the whole, these decisions reflect a salutary return to the original purpose of summary judgments. Over the years, decisions requiring denial of summary judgment if there was even a suggestion of an issue of fact had tended to emasculate summary judgment as an effective procedural device (footnotes omitted).

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989).

It must be recalled that a motion for summary judgment is a filing of extremely grave and serious import. It represents a movant's demand that the court resolve the issues presented and contains the possibility that the resolution could be adverse to the movant. As this court has previously noted in Matter of Sams, 106 B.R. 485, 491 (Bankr.S.D.Ohio 1989),

Federal Courts have long recognized that if there is no genuine issue as to any material fact the court may enter summary judgment, sua sponte. There is no requirement that there be a cross-motion or other pending motion seeking such summary judgment. As the court noted in Buckel v. Prentice, 410 F.Supp. 1243, 1247 (S.D.Ohio 1976), aff\'d per curiam 572 F.2d 141 (6th Cir.1978),

The Court, then, while in agreement with plaintiffs that there is no genuine issue as to any material fact herein, does not agree that plaintiffs are entitled to judgment as a matter of law. On the contrary, the Court concludes that on the facts present the defendants are entitled to judgment. The fact that defendants have not filed a cross-motion for summary judgment does not preclude entry of such a judgment if they are otherwise entitled thereto (citations omitted).

Accord, In re O\'Malley, 90 B.R. 417, 422 (Bankr.D.Minn.1988); In re Marvin Properties, Inc., 76 B.R. 150, 152 (9th Cir. BAP 1987). Additionally, the United States Supreme Court has recently reaffirmed this authority. The Supreme Court stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

Our conclusion is bolstered by the fact that district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence. See Catrett v. Johns-Manville Sales Corp., 244 U.S. App.D.C. 160, at 167-168, 756 F.2d 181, at 189 (1985) (Bork, J., dissenting); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720, pp. 28-29 (1938).

The court has repeatedly offered the parties opportunities to come forward with all evidence and file memoranda and present oral arguments (Doc. 399, Doc. 415).

A determination pursuant to the summary judgment rule (Bankr.R. 7056) is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Federal Courts have recognized the "wide sweep" of evidence that can be considered in summary judgment determinations. Advance Financial Corp. v. Isla Rica Sales, Inc., 747 F.2d 21, 27 (1st Cir. 1984). As the Tenth Circuit noted in St. Louis Baptist Temple v. F.D.I.C., 605 F.2d 1169, 1171-72 (10th Cir.1979):

Significantly applicable in this case is the rule that a district court may utilize the doctrines underlying judicial notice in hearing a motion for summary judgment substantially as they would be utilized at trial.

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