Winters, In re
| Decision Date | 09 November 1978 |
| Docket Number | No. 77-1151,77-1151 |
| Citation | 586 F.2d 1363 |
| Parties | Bankr. L. Rep. P 67,006 In re Arthur Larry WINTERS and Patricia Ann Winters, Bankrupts. Merlin WILKE, Plaintiff-Appellee, v. Arthur Larry WINTERS and Patricia Ann Winters, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Thomas C. Singer, Denver, Colo., for defendants-appellants.
James R. Craig, Jr., Greeley, Colo. (Edward Olin Venable, Greeley, Colo., on the brief), for plaintiff-appellee.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
This is a bankruptcy case. Arthur Larry Winters and Patricia Ann Winters, appearing Pro se, filed a petition for bankruptcy with the United States District Court for the District of Colorado. They listed as a creditor one Merlin Wilke. The Winters were thereafter adjudicated bankrupt and obtained a stay order. Wilke then filed a complaint with the bankruptcy court wherein he sought a determination that Winters' indebtedness to him was non-dischargeable and asked for relief from the stay order. Wilke's claim was based on a judgment which he had previously obtained against the Winters in the District Court in and for the County of Weld, State of Colorado. The state judgment relied on by Wilke was for money damages based on fraud and provided for body execution.
After hearing, the bankruptcy judge held that the judgment of the state court was void and subject to collateral attack, at the same time granting Wilke leave to amend his complaint and set forth the facts underlying his claim that the indebtedness was non-dischargeable. Wilke declined to amend his complaint and chose to appeal the ruling of the bankruptcy judge to the United States District Court for the District of Colorado.
On appeal, after hearing, the district court held that as a matter of law the judgment of the state court relied on by Wilke was not void for lack of due process, and that the bankruptcy judge had erred in so holding. The district court, however, also held that the issue as to the non-dischargeability of the indebtedness could not be resolved on the basis of the judgment of the state court, since that judgment "did not contain findings of fact necessary to the resolution of the issues of non-dischargeability of any or all of the subject indebtedness, . . . ." In accord with this latter holding, the district court directed that upon remand to the bankruptcy court Wilke be given opportunity to file an amended complaint and that adversary proceedings should then be held by the bankruptcy judge who should, after an evidentiary hearing, make a De novo decision as to the non-dischargeability of the indebtedness. Winters now appeals that order of the district court. Wilke did not file a notice of appeal.
At the hearing in the bankruptcy court the Clerk of the District Court for the County of Weld, State of Colorado, testified concerning the state judgment against the Winters. From the clerk's testimony, and from the documentary evidence received in connection with the clerk's testimony, we learn that Wilke filed an action in the District Court for Weld County against the Winters, and others, seeking money damages for fraud and body execution. The Winters were served with process and retained counsel, who filed an answer which contained a counterclaim. It would appear that on or about June 12, 1974, a default judgment was entered against the Winters and in favor of Wilke. However, on October 4, 1974, that judgment was set aside at the request of Winters' counsel, and the case was set for trial on February 5, 1975.
On February 4, 1975, Winters' counsel asked for a continuance of the trial setting. In the motion for a continuance appeared the following:
. . . counsel has had no communication from the defendants in said action for more than four months; that counsel does not know where said defendants are, and is unable to communicate with them. Counsel believes that defendants will be unable to appear for trial on February 5, 1975.
The state trial court denied this request for a continuance, whereupon Winters' counsel filed a motion to withdraw, stating as follows:
In support thereof, counsel informs the Court and states that he has had no communication from the defendants for more than four months; that defendants left their previous residence and have not informed counsel of their new address or as to how they can be reached. Counsel has made repeated efforts to communicate with defendants, and has been unable to do so. The matter is set for trial on February 5, 1975, and counsel cannot proceed to trial without the presence of the defendants.
The trial court granted counsel's motion to withdraw on February 4, 1974. As previously scheduled, the case came on for trial on February 5, 1975. The Winters were not personally present, nor were they represented by counsel. Trial ensued, with Wilke, the plaintiff in the state trial court, putting on his evidence. The state trial court then entered judgment for Wilke and dismissed Winters' counterclaim. No motion to vacate that judgment has been filed. It is this judgment which the bankruptcy judge held was void under applicable Colorado law. As indicated, upon appeal the district court held, Inter alia, that as a matter of law the judgment was not void and was not violative of procedural due process.
Whether the judgment as entered by the District Court for Weld County is a void judgment presents, in our view, a pure question of law. The parties agree that the question should be resolved by examining local Colorado law on the subject. In holding that the judgment was void the bankruptcy judge relied on Dalton v. People, 146 Colo. 15, 360 P.2d 113 (1961) and Thompson v. McCormick, 138 Colo. 434, 335 P.2d 265 (1959). The district court, on appeal, concluded that those cases were distinguishable from the instant case. We agree with the district court.
Thompson involved a dismissal with prejudice of a complaint where the plaintiff, who had previously discharged his counsel of record, did not appear when the case was called for trial. In Thompson the Colorado Supreme Court held that the judgment of dismissal was void because it had been entered without notice to the plaintiff. In other words, the plaintiff in Thompson did not have knowledge that his case was coming on for trial on a date certain. There is nothing in the instant record to indicate that Winters did not know that his case was coming on for trial in the District Court of Weld County on February 5, 1975.
Dalton involved a judgment entered for the plaintiff, after trial, where the defendant did not personally appear on the date set for trial and where his attorney of record had been permitted to withdraw immediately before trial. A motion to vacate...
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McLinn, Matter of
... ... C.A.Colo. 1978. A federal appellate court should recognize and give deference to views of federal trial judge as to state law in his resident state, and such views should be accepted, on appeal, unless they be demonstrably in error.--In re Winters, 586 F.2d 1363 ... C.A.Colo. 1977. In the absence of controlling state decisions interpreting state statutes or precedents, the views of federal district court judge who is resident of state carry extraordinary weight on appeal regarding interpretation of statute.--Adolph ... ...
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In re Abboud, BAP No. 99-033. Bankruptcy No. 98-03314. Adversary No. 99-086.
... ... It is unclear whether we should look to state or federal law to determine whether a judgment is "void." See Wilke v. Winters 237 BR 782 (In re Winters), 586 F.2d 1363, 1365 (10th Cir.1978) (question of whether judgment is void is based on state law); but see Laing, 945 F.2d at 358 (applying both state and federal law in determining the validity of a state court judgment). Under both Oklahoma law and federal law, ... ...
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Graham v. Schreifer
... ... 644; but see Winfield Associates, Inc. v. Stonecipher, (10th Cir.1970) 429 F.2d 1087. Without having to go so far, we believe the unusual passage of events falls within that category of extraordinary circumstances making a judgment merely voidable under T.R. 60(B)(8). See In re Winters, (10th Cir.1978) 586 F.2d 1363 (dicta); United States v. Manos, (S.D.Ohio 1972) 56 F.R.D. 655; Fleming v. Mante, (N.D.Ohio 1950) 10 F.R.D. 391 ... We recognize that Schreifer may not have been diligent in keeping himself informed of the status of his case. See International ... ...
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In re Tenn-Ero Corp.
... ... Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971); Brown v. Felson, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); Comm. of Massachusetts v. Hale, 618 F.2d 143 (1st Cir. 1980); In re Winters, 586 F.2d 1363 (10th Cir. 1978); In re Jack Eskenazi, 6 B.R. 366, 6 B.C.D. 1140 (9th Cir. Bkrtcy.App. Panel 1980). These cases are the progeny of the Supreme Court's decision in Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966). As appealing as that approach is, it is not ... ...