Peter Allan Wizenberg v. Howard Wizenberg ( 2020 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10641
Non-Argument Calendar
________________________
D.C. Docket No. 0:19-cv-61338-RKA
Bkcy. Adv. No. 18-01019-PGH
Bkcy No. 17-23522-PGH
In re: PETER ALLAN WIZENBERG,
Debtor.
__________________________________________________________________
PETER ALLAN WIZENBERG,
Plaintiff-Appellant,
versus
HOWARD WIZENBERG,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 15, 2020)
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Before WILSON, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
Anna Wizenberg’s death in 2010 sparked a long and bitter intrafamily dispute
between her sons, Peter and Howard Wizenberg. What started as a probate case and
then moved into bankruptcy court is now before us as an appeal of a district court
order imposing sanctions under 28 U.S.C. § 1927 against Peter, a pro se debtor. The
district court’s order adopted the bankruptcy court’s report, which recommended
sanctioning him for his conduct in an adversarial proceeding filed by his brother
Howard, who is a creditor in the bankruptcy case.
Peter, a member of the Florida bar who holds himself out as a bankruptcy
attorney, argues that the district court abused its discretion in sanctioning him. The
conduct that led to the sanctions included, among other things, his repeated
“shushing” of opposing counsel during a deposition; his submission of lengthy and
superfluous filings, one in which he wrote a nonsensical haiku; his argument that the
bankruptcy court lacked subject-matter jurisdiction to preside over a dispute
explicitly provided for in the Bankruptcy Code; and his assertion that he did not
know what a privilege log was despite being a barred attorney.
In addition, Peter contends that the bankruptcy court was required to conduct
an evidentiary hearing before sanctioning him, and he challenges the time entries
that the bankruptcy court cited to determine the sanctions amount in its report and
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recommendation. Howard responds that Peter waived both these arguments by
failing to raise either of them before the bankruptcy court. He further asserts that
the sanctions were warranted. For reasons set out below, we affirm.
I
Anna Wizenberg (we refer to her as “Ann” because that is what her sons called
her in their disputes), owned property and other assets at the time of her death, and
a probate proceeding was initiated shortly thereafter. See In re: Anna Wizenburg,
No. 2010CP002092 (Fla. Circuit Ct.), Docs. 1, 2, 3. Her son Peter was initially
appointed as personal representative of Ann’s estate, but several months later, his
brother Howard filed a petition to remove him. Id., Doc. 22. This request was
granted in February of 2017, see id., Doc. 193, following two separate state court
disputes between Peter and Howard. See Peter Wizenberg v. Howard Wizenberg,
No. 2012CA005131 (Fla Circuit Ct.); Howard Wizenberg v. Peter Wizenberg, No.
2013CA002460 (Fla. Circuit Ct.). There was a contempt hearing scheduled in the
probate case for November of 2017, but before it was held, Peter filed for Chapter 7
bankruptcy protection, which automatically stayed all state court proceedings
against him. See 11 U.S.C. § 362.
In his Chapter 7 petition, Peter listed Howard as holding a nonpriority
unsecured claim that was disputed, contingent, and arose from litigation. Howard
then filed an adversary proceeding in which he sought to declare Peter’s debt to him
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nondischargeable under 11 U.S.C. § 523(a)(4), which exempts from discharge debt
“for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or
larceny,” and under 11 U.S.C. § 523(a)(6), which exempts from discharge debt “for
willful and malicious injury by the debtor to another entity.” Howard alleged in the
adversary complaint that Peter failed to distribute estate funds in accordance with
the “Ann Wizenberg Revocable Trust Agreement” and that he appropriated property
from Ann’s estate for his own personal use.
Peter filed a motion to dismiss, which the bankruptcy court denied. Howard
and Peter filed cross-motions for summary judgment, which the bankruptcy court
also denied.
Then, Peter filed a 69-page motion to dismiss Howard’s amended complaint
for lack of subject-matter jurisdiction. His argument was that Howard’s adversary
complaint “seeks nondischargeability of a nonexistent debt, a ‘phantom debt[,]’[ ]
an alleged debt” and that “no such debt has ever existed or exists or even possibly
could have ever existed.”
Howard responded to the motion to dismiss on the main bankruptcy case
docket and moved for sanctions under 28 U.S.C. § 1927, arguing that “[o]ther than
to needlessly increase the costs of litigation” there was “no good faith basis” for
Peter to take the position that the bankruptcy court lacked subject-matter jurisdiction.
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Peter then filed a 153-page motion for reconsideration of the bankruptcy
court’s order denying him summary judgment, including in it accusations of
domestic violence against Howard, as well as other immaterial details about family
life. The filing concluded with what the bankruptcy court would later describe as
“pointless poetry”—the haiku, which read: “All know: talk is cheap; Liars can claim
anything; No evidence?! Balk!” The bankruptcy court denied the motion for
reconsideration.
Howard deposed Peter on August 6, 2018, and Peter deposed Howard the next
day. Throughout Howard’s deposition, Peter engaged in several hostile exchanges
with Howard and opposing counsel. Peter asked repetitive and unprofessional
questions, told opposing counsel to “[s]hush, shush, shush,” and bickered with
opposing counsel on the record. The next day, Howard moved the bankruptcy court
to compel Peter to produce a privilege log, and said that when Peter was deposed,
he testified to the existence of relevant and responsive documents that he did not
produce based on attorney-client privilege. Howard said that Peter had not produced
a privilege log and that he claimed not to know what one was. The bankruptcy court
granted Howard’s motion and ordered Peter to produce a privilege log detailing
which documents and communications he thought were protected.
Several months later, Howard supplemented his motion for sanctions, alleging
that when Peter’s wife was deposed, Howard’s counsel questioned her for
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approximately five minutes and then Peter “ask[ed] wholly irrelevant and leading
questions of his wife on ‘re-direct’ for approximately one hour.” Howard also
accused Peter of “attempt[ing] to question” him, at his own deposition, about
“incidents when they were children.” In another motion—for an order to show cause
why Peter should not be held in contempt of court—Howard argued that, although
Peter had timely produced the privilege log per the bankruptcy court’s order, he
“utterly failed to provide any sort of detail as directed[.]”
The bankruptcy court entered a show cause order, and Peter responded with a
filing in which he said he had told Howard’s lawyer that he “didn’t know much of
anything” about privilege logs; he also accused Howard of acting in bad faith. At a
hearing on Howard’s pending motions for sanctions, the bankruptcy court said it was
“unhappy” with Peter because he was a lawyer who had practiced for several years
but claimed not to know what a privilege log was. The bankruptcy court awarded
Howard $2,880 in attorney’s fees.
Peter moved for partial summary judgment as to Count I, pertaining to 11
U.S.C. § 523(a)(6). On November 28, 2018, Howard moved for an extension of
time to respond to the motion—and Peter opposed his request, disputing the
appropriate length of time for a Thanksgiving holiday, which he said “would, at
most, be four calendar days, from Thursday through Sunday.” The motion for
extension of time was granted, Howard filed his response to the motion for partial
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summary judgment, and Peter replied with assertions that Howard made false
statements and “deceptively cite[d]” case law.
The adversary proceeding was tried before the bankruptcy court in January of
2019 and, ahead of the trial, Peter filed a 326-page opening statement (including
exhibits) with the court. At trial, Peter did not produce an exhibit register but instead
handed the bankruptcy court a “loose-leaf group of papers.” When Peter cross-
examined Howard, the bankruptcy court had to repeatedly admonish him for
impermissibly objecting to Howard’s answers to his own questions, for asking
Howard if he had any evidence to support his statements, and for ignoring the
bankruptcy court’s rulings on objections. At one point, the bankruptcy court told
Peter that his conduct was “very frustrating” because it had “ruled on a point of law”
and Peter continued to ask questions that were “render[ed] irrelevant” by its ruling.
Later, when Peter was examining his own witness, the bankruptcy court told him
that he was being “very ridiculous” by “blatantly attempting to coach a witness in
the course of a trial as to what she would testify to.”
Howard filed a renewed and supplemental motion for sanctions on February
1, 2019, claiming that he had incurred “thousands of dollars in needless attorneys’
fees” as a result of Peter’s “bad faith litigation tactics.” He said that his attorney’s
fees totaled $24,880, and he asked the court to impose sanctions under 28 U.S.C.
§1927 in that amount. Later that month, the bankruptcy court granted final judgment
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in the adversary proceeding, ruling that the debts allegedly owed to Howard were
nondischargeable under 11 U.S.C. § 523(a)(4) and 11 U.S.C. § 523(a)(6). The
bankruptcy court found that Peter, acting pursuant to the durable power of attorney,
allowed his wife to remove items from his mother’s house while Ann was still
alive—and also that he engaged in a scheme designed to ensure that Howard got as
little possible from Ann’s estate. It granted relief from the automatic stay so the
parties could continue litigating their state court dispute.
In March of 2019, Peter responded to Howard’s post-trial motion for
sanctions, characterizing the motion as an example of Howard’s “demonstrably
false, malicious, frivolous and vexatious filings”—but failing to request an
evidentiary hearing or specifically challenge any of the time entries in Howard’s
motion. Howard in his reply countered that Peter’s response was untimely; he also
gave specific examples of Peter’s bad faith and attached exhibits to support the time
entries.
After a hearing, the bankruptcy court awarded Howard sanctions under 28
U.S.C. § 1927. The bankruptcy court first determined that, although Peter was a pro
se defendant, he was an attorney who had previously practiced in bankruptcy court
in the Southern District of Florida. Then, the bankruptcy court found that it was a
court of the United States within the meaning of the statute; if the district court on
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appeal determined otherwise, the bankruptcy court noted, its opinion should instead
be treated as a report & recommendation (“R&R”).
The bankruptcy court found Peter had acted in bad faith throughout the course
of the litigation and had “suffocated [the] docket with painfully long and frivolous
pleadings, many of which [were] based in neither law nor fact.” It also highlighted
Peter’s withholding of documentary evidence, and his rude and repetitive questions
during depositions. And the bankruptcy court addressed Peter’s motion to dismiss
based on subject-matter jurisdiction, saying, “[w]hether a claim is dischargeable is
wholly within this Court’s jurisdiction and is routinely brought before this Court for
determination.” Because of Peter’s litigiousness, the bankruptcy court said, the
adversary proceeding took “fourteen months and over 250 docket entries.” The
bankruptcy court determined that sanctions were appropriate, reviewed each billable
item submitted by Howard’s attorney, and determined the total costs recoverable
were $9,850.
Peter appealed the sanctions order in the district court, arguing that the district
court should treat the order as a set of proposed findings and conclusions of law. He
said the bankruptcy court erred in finding his conduct sanctionable, in sanctioning
him without an evidentiary hearing, in awarding sanctions without finding a claim
of excess costs, and in treating § 1927 as a “catch-all.” He also challenged the 22
time entries the bankruptcy court cited to determine the amount recoverable.
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Howard responded that sanctions were proper and that Peter had waived his
arguments regarding an evidentiary hearing and the 22 time entries.
The district court determined that the bankruptcy court was not a court of the
United States within the statutory reach of 28 U.S.C. § 1927, but found that, because
it was treating the bankruptcy court’s order as an R&R, it could impose sanctions
itself under the statute. The district court pointed out that Peter raised many of his
arguments for the first time on appeal, and it declined to consider those arguments
that had not been timely raised. After the district court adopted the R&R in full,
Peter appealed.
II
On appeal, Peter argues (1) that he cannot be sanctioned under § 1927 for his
conduct in a bankruptcy case; (2) that the sanctions motion was frivolous because it
was a “catch-all motion for generalized sanctions”; (3) that his motion to dismiss
based on subject-matter jurisdiction was not frivolous; (4) that the bankruptcy court
deprived him of due process under the Fifth Amendment because, he says, the
sanctions motion did not state its factual or legal grounds with any particularity; and
(5) that the district court deprived him of due process by finding that he waived his
right to raise his arguments regarding the evidentiary hearing and the 22 time entries.
We review both the bankruptcy court’s and district court’s conclusions of law
de novo and the bankruptcy court’s findings of fact for clear error. See In re Sublett,
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895 F.2d 1381, 1383 (11th Cir. 1990). “We review a district court's award of
sanctions under 28 U.S.C. § 1927 for abuse of discretion.” Peterson v. BMI
Refractories, 124 F.3d 1386, 1390 (11th Cir. 1997).
A
We first address Peter’s argument that bankruptcy courts do not have the
authority to impose sanctions under 28 U.S.C. § 1927, which provides that “[a]ny
attorney or other person admitted to conduct cases in any court of the United States
or any Territory thereof who so multiplies the proceedings in any case unreasonably
and vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.” Peter
asks that “the term ‘. . . any case . . .’ be interpreted to mean and refer to only cases
that are conducted in courts of the United States or any Territory thereof.” This
presents a question of law that we review de novo.
The district court found that the bankruptcy court did not have the authority
to impose sanctions and instead treated the bankruptcy court’s order as an R&R.
Peter does not challenge this ruling—which he argued for in the district court—but
now takes this argument a step further, and asks us to construe the term “any case”
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as referring to only cases in Article III Courts, meaning the district court could not
sanction him for conduct in a bankruptcy case. 1
Peter has likely waived this argument, but even had he raised it below, it
would be without merit because the district courts have original jurisdiction of all
Title 11 bankruptcy cases. See 28 U.S.C. § 1334. Peter’s Chapter 7 case therefore
formally originated in an Article III Court—the Southern District of Florida—and
was referred to the bankruptcy court pursuant to S.D. Fla. Local Rule 87.2(a), which
provides that “all proceedings under Title 11 . . . are referred to the Bankruptcy
Judges for this District and shall be commenced in the Bankruptcy Court pursuant
to the Local Bankruptcy Rules.” See also 28 U.S.C. § 157(a) (“[e]ach district court
may provide that any or all cases under title 11 . . . shall be referred to the bankruptcy
judges for the district.”)
B
We now turn to Peter’s next two arguments—that the sanctions motion was
frivolous and that his own motion to dismiss for lack of subject-matter jurisdiction
was not frivolous. These both relate to a broader argument that the district court
1
We acknowledge, as the district court pointed out, that bankruptcy courts within the Eleventh
Circuit, as well as the other Circuits, have split on the question whether bankruptcy courts may
impose sanctions under 28 U.S.C. § 1927. But we do not address this issue because Peter has not
raised it on appeal.
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abused its discretion in imposing sanctions. To impose sanctions under § 1927, a
court must find that “three essential requirements” are present:
First, the attorney must engage in unreasonable and vexatious conduct.
Second, that unreasonable and vexatious conduct must be conduct that
multiplies the proceedings. Finally, the dollar amount of the sanction
must bear a financial nexus to the excess proceedings, i.e., the sanction
may not exceed the costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.
Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007)
(internal quotation marks omitted). An attorney multiplies proceedings
unreasonably and vexatiously “only when the attorney’s conduct is so egregious that
it is tantamount to bad faith.” Id. (internal quotation marks omitted). The question
of bad faith “turns not on the attorney’s subjective intent, but on the attorney’s
objective conduct.” Id.As a general matter, we conclude that the district court did not abuse its
discretion in sanctioning Peter because his objective conduct, detailed above, was
egregious enough to rise to the level of bad faith. This conduct dragged out
proceedings and caused Howard to incur excess costs. Peter was rude and
unprofessional at depositions and at trial; he asked repetitive and hostile questions
in examining witnesses, and he ignored the judge’s rulings at trial. He also filed
voluminous and irrelevant motions—including one that challenged the bankruptcy
court’s subject-matter jurisdiction to determine the dischargeability of a debt in
bankruptcy, and another that contained a haiku. His actions were not excused by his
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pro se status because he is a member of the Florida Bar who had previously appeared
in bankruptcy court in the Southern District of Florida. Howard’s motion for
sanctions therefore was not frivolous, as Peter claims.
What was frivolous, however, was Peter’s motion to dismiss Count II of
Howard’s adversary complaint (the 11 U.S.C. § 524(a)(4) count) for lack of subject-
matter jurisdiction. On appeal, Peter reiterates his argument that the bankruptcy
court did not have subject-matter jurisdiction because “[t]he absolute and
unquestionable nonexistence of the phantom debt alleged in Count II entails that the
U.S. Bankruptcy Court lacks subject matter jurisdiction over Count II and should
dismiss Count II.” He contends that “[t]he district court erred by completely
misapprehending what the word ‘phantom’ means” and asks us to “take judicial
notice that the word ‘phantom’ means ‘a figment of the imagination,’ Merriam-
Webster defines it, as an adjective, as ‘illusory,’ ‘fictitious,’ ‘dummy.’”
We do not read the record as supporting a conclusion that the district court
misunderstood the word “phantom.” The fact that Peter contests the debt does not
have any bearing on whether the bankruptcy court has jurisdiction to adjudicate
disputes over whether that debt is dischargeable. Indeed, Peter’s contesting the debt
was clear from his Chapter 7 petition, where he listed Howard as holding a
“disputed” unsecured claim. Peter’s assertion that the debt did not exist was not an
objectively reasonable basis to challenge the bankruptcy court’s jurisdiction,
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because “[b]ankruptcy judges may hear and determine all cases under [T]itle 11 and
all proceedings arising under [T]itle 11, or arising in a case under [T]itle 11.” 28
U.S.C. § 157. The bankruptcy court obviously had subject-matter jurisdiction to
consider Howard’s adversary complaint seeking to exempt a debt from discharge
under 11 U.S.C. § 523(a). Peter’s argument to the contrary was frivolous.
C
Peter’s next argument is that the bankruptcy court deprived him of due process
by imposing sanctions based on Howard’s motion. We “review[ ] assertions of
constitutional error de novo.” Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc.,
561 F.3d 1298, 1303 (11th Cir. 2009).
The sanctions motion was not so vague as to deprive Peter of due process.
The motion included several specific examples of sanctionable behavior—including
that which we noted above, in Part II.B, as well as Peter’s failure to submit a
sufficiently detailed privilege log as directed by the bankruptcy court’s order.
D
Peter also argues that the bankruptcy court should have held an evidentiary
hearing before it imposed sanctions and that the bankruptcy court erred in accepting
the 22 time entries listed in the sanctions motion. He writes in his brief: “There is
no evidence that I voluntarily, and that I intentionally, relinquished my right to raise
the issues I raised in my briefs, and why in the world would I??” Howard counters
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that Peter never requested an evidentiary hearing in the bankruptcy court and that
Peter likewise did not preserve his challenge to the 22 attorney time entries.
“In reviewing bankruptcy court judgments, a district court functions as an
appellate court.” In re JLJ Inc., 988 F.2d 1112, 1116 (11th Cir. 1993). Generally,
“an appellate court does not give consideration to issues not raised below.” Hormel
v. Helvering, 312 U.S. 552, 556 (1941). Although we have said that we may review
a new argument for plain error “if it involves a pure question of law and if refusal to
consider it will result in a miscarriage of justice,” In re Lett, 632 F.3d 1216, 1226
(11th Cir. 2011), we have long expressed a “reluctance to intrude upon the province
of the bankruptcy courts below by reaching issues not brought before them, as
bankruptcy cases are to be tried in bankruptcy court.” Id.We have identified five circumstances where we have permitted issues to be
raised for the first time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385
F.3d 1324, 1332 (11th Cir. 2004). The first is if an issue “involves a pure question
of law, and if refusal to consider it would result in a miscarriage of justice.” Id. The
second isif “the appellant raises an objection to an order which he had no opportunity
to raise at the district court level.” Id. The third is if “the interest of substantial
justice is at stake.” Id. The fourth is if “the proper resolution is beyond any doubt.”
Id. And the fifth is if the issue “presents significant questions of general impact or
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of great public concern.” Id. Peter argues that all these circumstances are present
in this case.
The leeway generally given to construction of pro se litigants’ briefs does not
apply here for two reasons. First, licensed attorneys proceeding pro se are not
entitled to the advantage of liberal construction of their pleadings that is normally
given to pro se litigants. See Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir.
1977). Second, even if Peter were entitled to such leeway, “issues not briefed on
appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (internal citation omitted). A party fails to adequately
brief an argument when it “does not plainly and prominently raise it” or when it
“makes only passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014).
Peter has abandoned his claim that the bankruptcy court should have
conducted an evidentiary hearing because he failed to adequately brief the issue in
his opening brief—saying instead things like, “case law maintains that sanctions
based on factual allegations of conduct outside the courtroom, must be based on
record evidence obtained in an evidentiary hearing,” without citing any case law.
And even if he had not abandoned his claim in this Court, he waived it before the
district court.
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Peter likewise waived his challenges to the 22 attorney time entries by failing
to present any of those challenges to the bankruptcy court. Instead, Peter argued
only that Howard brought a “false and malicious, meritless case” and that he failed
to show how the alleged bad-faith conduct led to incur excess fees. He also failed
to raise his challenges to the time entries at the hearing on the sanctions motion.
None of the Access Now exceptions apply in this case. See 385 F.3d at 1332.
Peter’s appeal does not hinge on “pure questions of law,” id, but rather mixed
questions of law and fact. He had ample opportunity before the bankruptcy court to
raise his arguments regarding the evidentiary hearing and the 22 time entries. See
id. This appeal also does not implicate interests of substantial justice. Proper
resolution of Peter’s challenges is not “beyond any doubt,” id,—and, to the extent
that it is, that cuts against Peter, not in his favor. Nor does this appeal present any
“significant questions of general impact or of great public concern.” Id.Peter has therefore abandoned or waived these challenges, and we decline to
consider them on this appeal.
III
Finally, Howard has filed a motion seeking appellate attorneys’ fees under
Fed. R. App. P. 38, which allows us to “award just damages and single or double
costs to the appellee” if we determine “that an appeal is frivolous.” Howard asserts
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that he has incurred $10,980.00 in expenses for both appeals and asks that we award
him attorneys’ fees in that amount.
Peter responds with an irrelevant citation to a transcript of a hearing—in an
unrelated case with unrelated parties—where Howard’s attorney was orally
reprimanded by the same judge for filing a motion for sanctions. Peter argues that
Howard’s motion is “pure ‘hogwash’” and that it “is a frivolous motion because it is
totally devoid of any particularized grounds.” He says the motion “is itself
sanctionable.”
We have “awarded sanctions under Rule 38, in the form of reasonable
attorney’s fees and double costs, when a party ignored the governing law and relied
on clearly frivolous arguments.” Jackson v. Bank of America, N.A., 898 F.3d 1348,
1359 (11th Cir. 2018) (internal quotation marks and citations omitted). We find
that this record supports a Rule 38 award of attorney fees. Peter, a self-proclaimed
bankruptcy attorney, filed an 88-page opening brief littered with exclamation points
and rants about what he views as a grave miscarriage of justice. He fails to
coherently cite case law, though he cites Bugs Bunny. The brief is difficult to follow,
and deciphering and reorganizing his arguments wasted taxpayer resources that
otherwise could have been spent on cases “worthy of consideration.” Sun-Tek
Industries Inc. v. Kennedy Sky-Lites, Inc., 865 F.2d 1254, 1255 (Fed. Cir. 1989)
(cited favorably in Jackson).
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Because Peter relied on “clearly frivolous arguments,” Jackson, 898 F.3d at
1359, we grant Howard’s motion for appellate attorney fees. We limit the award to
the costs that he incurred for this appeal, because there is a corresponding Rule 38
motion pending in the district court seeking fees for that appeal. The costs for this
appeal total $3,390, and we award Howard fees in that amount.
IV
We affirm the district court order imposing sanctions against Peter, and award
Rule 38 sanctions against Peter.
AFFIRMED; RULE 38 SANCTIONS IMPOSED.
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