United States Bankruptcy Appellate Panel of the Sixth Circuit
In re: Nicole Gas Production, Ltd., Debtor.
Frederick L. Ransier, Trustee, Appellee. James A. Lowe (15-8053); Curtland H. Caffey, S. Brewster Randall II, and Robert C. Sanders (15-8055), Appellants,
Argued: May 9, 2017
Appeal from the United States Bankruptcy Court for the
Southern District of Ohio at Columbus. No. 09-52887-John E.
L. Ashton, ALLEN KUEHNLE STOVALL & NEUMAN, LLP, Columbus,
Ohio, for Appellant James A. Lowe. Reginald W. Jackson,
VORYS, SATER, SEYMOUR & PEASE, LLP, Columbus, Ohio, for
C. Sanders, Upper Marlboro, Maryland, pro se.
L. Ashton, James A. Coutinho, ALLEN KUEHNLE STOVALL &
NEUMAN, LLP, Columbus, Ohio, for Appellant James A. Lowe.
Reginald W. Jackson, Brenda K. Bowers, VORYS, SATER, SEYMOUR
& PEASE, LLP, Columbus, Ohio, for Appellee.
C. Sanders, Upper Marlboro, Maryland, S. Brewster Randall II,
Columbus, Ohio, Curtland H. Caffey, Columbus, Ohio, pro se.
Before: DELK, HARRISON, and OPPERMAN, Bankruptcy Appellate
S. OPPERMAN, CHIEF BANKRUPTCY APPELLATE PANEL JUDGE
Bankruptcy Court in the underlying case held Appellants in
contempt for conduct that it found constituted an
impermissible exercise of control over property of the
bankruptcy estate. A Fee Order followed the Contempt Order
and awarded Appellee fees and expenses of $91, 068.00 as a
sanction for Appellants' conduct. Appellants appealed the
Contempt Order and the opinion regarding same and the Fee
Order and opinion regarding same. For the reasons stated
below, the Panel AFFIRMS those orders and opinions.
Whether the Bankruptcy Court erred in entering the Contempt
Order based on its determination that the claims Appellants
pursued under the OCPA were property of Debtor's estate.
Whether the Court erred when it awarded Appellee fees and
expenses totaling $91, 068.00 as a sanction for
AND STANDARD OF REVIEW
28 U.S.C. § 158(a)(1), this Panel has jurisdiction to
hear appeals "from final judgments, orders, and
decrees" issued by the bankruptcy court. For purposes of
appeal, an order is final if it "ends the litigation on
the merits and leaves nothing for the court to do but execute
the judgment." Midland Asphalt Corp. v. United
States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497 (1989)
(quotation marks and citation omitted). The orders at issue
in this appeal are final and none of the parties to this
appeal challenge the Panel's jurisdiction to hear it.
Standard and Method of Review Regarding the Contempt
the Contempt Order and opinion accompanying it requires a
three-step analysis. The first step is to determine whether
Freddie Fulson, the indirect equity owner of the Debtor, had
an individual claim under the OCPA. The Bankruptcy Court held
that Fulson did not have his own claim, under the OCPA, for
damage to the value of his interest in Debtor. That decision
involves interpretation of a statute and the Panel reviews it
de novo. TranSouth Fin. Corp. v. Sharon
(In re Sharon), 234 B.R. 676, 679 (B.A.P. 6th Cir.
second step is to determine whether the claims against the
Columbia Gas Entities belonged to Debtor's estate.
According to the Bankruptcy Court, Debtor had the exclusive
right to prosecute those claims and those claims became
estate property when Debtor filed bankruptcy. Thus, the Court
held that Fulson violated the automatic stay by appropriating
estate property when he pursued the claims in state court.
The determination of whether property belongs to the estate
is reviewed de novo. Kitchen v. Boyd
(In re Newpower), 233 F.3d 922, 927 (6th Cir. 2000).
The determination of whether conduct violates the automatic
stay also is reviewed de novo. Slabicki v.
Gleason (In re Slabicki), 466 B.R. 572, 577
(B.A.P. 1st Cir. 2012).
third step is to determine whether the Bankruptcy Court's
holding of contempt was appropriate. The Panel reviews that
decision for abuse of discretion. Long Term Care Mgmt.
Inc. v. VI/XII Collateral Trust (In re Nat'l
Century Fin. Enters., Inc.), No. 05-8048, 2006 WL
620643, *1 (B.A.P. 6th Cir. Mar. 14, 2006).
Standard and Method of Review Regarding the Fee
Panel also must determine whether the Bankruptcy Court's
fee award was appropriate. An appellate court reviews a fee
award for abuse of discretion. Adell v. John Richards
Homes Bldg. Co., LLC (In re John Richards Homes
Bldg. Co., LLC), 475 B.R. 585, 592 (E.D. Mich. 2012). A
trial court abuses its discretion when it commits a clear
error of judgment; if reasonable people could differ on the
issue, there is no abuse. Id.
Gas Productions, Ltd. ("Debtor") is the Chapter 7
debtor in the matter before the Panel. Freddie L. Fulson, now
deceased, was the indirect equity owner of Debtor.
Fulson's equity interest in Debtor resulted from his
owning a company known as Nicole Gas Marketing, which company
was the sole owner of Debtor. Before filing bankruptcy,
Debtor had business relationships with various branches of
Columbia Gas. Those relationships soured, resulting in
litigation between Debtor and numerous Columbia Gas entities.
Eventually, Debtor filed bankruptcy and the ...