Matter of Property Management & Investments, Inc.
| Decision Date | 10 March 1987 |
| Docket Number | Adv. No. 86-0397.,Bankruptcy No. 81-2307 |
| Citation | 70 BR 911 |
| Parties | In the Matter of PROPERTY MANAGEMENT & INVESTMENTS, INC., Debtor. PROPERTY MANAGEMENT & INVESTMENTS, INC., Plaintiff, v. JOHNSON, BLAKELY, POPE, BOKOR & RUPPEL, P.A., et al., Defendants. |
| Court | U.S. Bankruptcy Court — Middle District of Florida |
Jawdet I. Rubaii, Clearwater, Fla., for plaintiff.
Hugh N. Smith and David G. Hanlon, Tampa, Fla., for defendants.
ORDER ON MOTION TO DISMISS COMPLAINT FILED BY PROPERTY MANAGEMENT AND INVESTMENTS, INC.
THIS IS a Chapter 7 liquidation case, and the matter under consideration is a Motion to Dismiss the Complaint filed by Property Management Investments, Inc. (PMI). The Motion is filed by the lawfirm of Johnson, Blakely, Pope, Bokor & Ruppel, P.A. (Johnson, Blakely), and the remaining Defendants named in the Complaint and challenges the legal sufficiency of the Complaint and contends that it fails to state the claim for which relief can be granted, therefore, it should be dismissed. Ordinarily the disposition of such a motion would not present any difficulty because the legal sufficiency of the Complaint would be determined as a matter of law by considering only the allegations set forth in the Complaint. However, this is an unusual case for the following reasons.
The original Complaint filed on August 28, 1986, sought injunctive relief against the named Defendants for violation of the automatic stay. The claim was based on § 362(h) of the Bankruptcy Code, which now permits:
(h) An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys\' fees, and, in appropriate circumstances, may recover punitive damages.
Shortly after filing the Complaint counsel for the Plaintiff filed a motion and sought a temporary restraining order prohibiting the Defendants from proceeding with the hearing scheduled in the state court in which the Defendants sought to tax costs against PMI. The motion was filed by the Defendants after the jury returned an adverse verdict to the Plaintiff and in favor of the Defendants. In the absence of this Court the district court considered the Motion for Temporary Restraining Order and on September 12, 1986, entered an order denying the Motion without prejudice. On September 19, 1986, the Plaintiff filed a Motion for Leave to Appeal the order of September 12, 1986 and also filed a Notice of Appeal. On September 29, 1986, the Defendants filed a Motion to Strike the Notice of Appeal and an Answer and Memorandum in opposition to the Motion for Leave to Appeal.
It appears that in the interim the state court proceeded with the Defendants' Motion and entered a cost judgment in favor of the Defendants and against the Debtor's estate for $16,131.66 and reserved jurisdiction for any further cost assessments. On September 19, 1986, PMI filed a Motion to Reconsider the order which denied the Motion for Temporary Restraining Order and renewed its Motion for a Temporary Restraining Order and also filed a Motion for Contempt for violation of the automatic stay and sought again a declaration that the cost judgment is null and void. On November 8 this Court transmitted to the district court the Defendants' Motion to Strike the Notice of Appeal. On December 5, 1986, the district court granted the Motion to Strike the Notice of Appeal. On December 11, 1986, this Court entered an Order, 67 B.R. 889 (Bkrtcy.M.D.Fla.), on the Renewed Motion for Temporary Restraining Order and the Motion for Contempt in which PMI sought the imposition of sanctions for the alleged violation of the automatic stay by the Defendants and also injunctive relief prohibiting the Defendants from proceeding any further with their attempts to obtain additional cost judgments or to enforce their cost judgment.
In the December 11 Order this Court after having recited the relevant facts concluded that...
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