Mpatanishi Garrett v. Coventry II DDR/Trade ( 2015 )


Menu:
  •       Case: 14-10525             Document: 00512930283   Page: 1   Date Filed: 02/09/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-10525                  United States Court of Appeals
    Fifth Circuit
    FILED
    In the Matter of: NINA WHITE-ROBINSON,                                   February 6, 2015
    Lyle W. Cayce
    Debtor                                                        Clerk
    ------------------------------
    MPATANISHI TAYARI GARRETT; TAYARI LAW, P.L.L.C.,
    Appellants
    v.
    COVENTRY II DDR/TRADEMARK MONTGOMERY FARM, L.P.,
    Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
    PER CURIAM:
    Appellants Mpatanishi Tayari Garrett (“Garrett”) and her law firm,
    Tayari Law, P.L.L.C. (“the firm”), appeal the bankruptcy court’s contempt
    order (the “Contempt Order”), which held them in civil contempt for failing to
    pay sanctions imposed for prior misconduct. The district court affirmed the
    Contempt Order. We likewise AFFIRM.
    Case: 14-10525    Document: 00512930283      Page: 2   Date Filed: 02/09/2015
    No. 14-10525
    FACTUAL AND PROCEDURAL BACKGROUND
    We have considered this unseemly case once before. It involves Garrett’s
    misconduct in her legal representation of debtor Nina White-Robinson (“White-
    Robinson”) during bankruptcy proceedings.         We previously affirmed the
    bankruptcy court’s two sanctions orders (the “Sanctions Orders”). First, the
    bankruptcy court sanctioned Garrett and her firm for discovery abuse,
    ordering them to pay $5,000 to appellee Coventry II DDR/Trademark
    Montgomery Farm, L.P. (“DDR”).        Second, after a subsequent show-cause
    hearing, the bankruptcy court sanctioned Garrett for bringing a frivolous and
    procedurally deficient motion for contempt against DDR, ordering her to pay
    $20,000 to DDR.      On November 13, 2012, the district court affirmed the
    Sanctions Orders.    Finally, on January 2, 2014, we likewise affirmed the
    bankruptcy court’s Sanctions Orders with a two-paragraph order, and the
    Supreme Court denied certiorari on October 6, 2014. In re White-Robinson,
    551 F. App’x 121 (5th Cir. 2014), cert. denied, 
    135 S. Ct. 76
    (2014).
    In the interim, during the appeal of the Sanctions Orders, Garrett and
    her firm did not pay the ordered sanctions, even though they did not post a
    supersedeas bond or otherwise obtain a stay pending appeal. On December 18,
    2012, DDR filed a motion for contempt. The bankruptcy court held a show-
    cause hearing in which Garrett appeared but did not present any evidence. On
    February 21, 2013, the bankruptcy court held Garrett and her firm in civil
    contempt, finding that they knew about the non-stayed Sanctions Orders but
    declined to pay them. The bankruptcy court ordered Garrett and her firm to
    pay DDR an additional $6,454.50, the expenses DDR incurred in attempting
    to enforce the Sanctions Orders. The Contempt Order also ordered them to
    pay DDR $100 for each additional day that they did not pay the sanctions.
    2
    Case: 14-10525       Document: 00512930283          Page: 3     Date Filed: 02/09/2015
    No. 14-10525
    Over six months later, on September 12, 2013, Garrett and her firm 1
    filed an emergency motion for a stay with the district court, moving to stay
    “essentially all orders,” including the Sanctions Orders and Contempt Order.
    On September 20, 2013, the district court denied Garrett’s motion to stay
    because she had not demonstrated why she failed to obtain a stay from the
    bankruptcy court.         There is no indication in the record that Garrett
    subsequently filed another motion to stay the Sanctions Orders or the
    Contempt Order.
    Finally, on March 25, 2014 (after we affirmed the Sanctions Orders), the
    district court affirmed the bankruptcy court’s Contempt Order. Garrett has,
    predictably, appealed again, this time arguing that we should reverse the
    Contempt Order.
    STANDARD OF REVIEW
    “Like the district court,” we review “a bankruptcy court’s findings of fact
    for clear error, and its legal conclusions de novo.” In re Bradley, 
    588 F.3d 254
    ,
    261 (5th Cir. 2009). “A bankruptcy court’s assessment of monetary sanctions
    for contempt is reviewed for abuse of discretion.” 
    Id. DISCUSSION Garrett
    raises three main issues on appeal. First, she argues that the
    bankruptcy court lacked jurisdiction to issue the Contempt Order because it
    was not related to the bankruptcy and was issued while the Sanctions Orders
    were before us on appeal. Second, she argues that the Contempt Order violates
    the prohibition on imprisonment for a debt.                 Third, she argues that the
    Contempt Order was an abuse of the bankruptcy court’s discretion. We deal
    with each issue in turn.
    1The remainder of this opinion refers to Garrett and her firm collectively as “Garrett,”
    except where otherwise provided.
    3
    Case: 14-10525    Document: 00512930283    Page: 4   Date Filed: 02/09/2015
    No. 14-10525
    I. Jurisdiction
    A bankruptcy court may issue civil contempt orders. In re Terrebonne
    Fuel & Lube, Inc., 
    108 F.3d 609
    , 612–13 (5th Cir. 1997). There is no real
    dispute that the contempt order here was civil, and indeed it clearly was—its
    purpose was “to coerce compliance with a court order or to compensate another
    party for the contemnor’s violation.” 
    Id. at 612.
    That is, the $6,454.50 award
    was meant to reimburse DDR for having to seek enforcement of the Sanctions
    Orders, and the $100-per-day award was meant to coerce Garrett into paying
    the Sanctions Orders timely.
    A bankruptcy court may exercise full judicial power only in core
    proceedings. In re Wood, 
    825 F.2d 90
    , 91 (5th Cir. 1987); see also 28 U.S.C.
    § 157(b)(1) (giving bankruptcy court full jurisdiction over core matters); 
    id. § 157(c)(1)
    (giving bankruptcy courts only recommendation authority over non-
    core matters that are merely “related to” a bankruptcy case). We hold that the
    bankruptcy court’s issuance of the Contempt Order took place during such a
    core proceeding. A proceeding is core if it either arises under the Bankruptcy
    Code or “would have no existence outside of the bankruptcy” proceeding. 
    Wood, 825 F.2d at 96
    –97. Here, the proceeding was core because holding a party in
    civil contempt for refusing to follow a bankruptcy court’s valid and binding
    orders “would have no existence outside of the bankruptcy” proceeding. Again,
    an order of civil contempt is meant to coerce the contemnor into compliance or
    provide a remedy for the party injured by noncompliance. Terrebonne 
    Fuel, 108 F.3d at 612
    . As such, an order of civil contempt is considered part of the
    underlying case. See In re Hipp, Inc., 
    895 F.2d 1503
    , 1517 (5th Cir. 1990)
    (“[C]ivil contempts generally have been viewed as part of the underlying
    case.”). Thus, the civil contempt order was issued as part of the bankruptcy
    case itself, making it a core proceeding that “would have no existence outside
    of the bankruptcy.”
    4
    Case: 14-10525       Document: 00512930283         Page: 5     Date Filed: 02/09/2015
    No. 14-10525
    Moreover, the Contempt Order here falls within one of the statutorily-
    enumerated examples of core proceedings because it was a “matter[ ]
    concerning the administration of the estate.”              28 U.S.C. § 157(b)(2).        The
    Contempt Order concerned the orderly administration of White-Robinson’s
    estate—namely, her attorney’s compliance with federal bankruptcy rules and
    the orders of the bankruptcy court. See In re Memorial Estates, Inc., 
    950 F.2d 1364
    , 1370 (7th Cir. 1991) (holding that sanction for attorney’s misconduct
    during bankruptcy case was core proceeding, without considering whether
    misconduct occurred during core proceeding, in part because misconduct itself
    “concern[ed] the administration of the estate” (internal alteration in original));
    Jackson v. Wessel, 
    118 B.R. 243
    , 248 (E.D. Pa. 1990) (holding that malpractice
    claims against debtor’s counsel alleging “professional conduct not compatible
    with obligations imposed by provisions of the bankruptcy law itself—provisions
    relating to the conduct of practitioners before the bankruptcy court—”
    concerned “the administration of the estate”). We find unpersuasive Garrett’s
    claim that the Contempt Order was non-core and unrelated to the bankruptcy
    case merely because White-Robinson had been discharged from bankruptcy.
    The bankruptcy court issued its Sanctions Orders to help promote the proper
    administration of the estate, and therefore the later Contempt Order to enforce
    the Sanctions Orders still “concern[ed] the administration of the estate.” 2
    In the alternative, Garrett argues that the bankruptcy court could not
    issue its Contempt Order while the Sanctions Orders were being appealed to
    this court. This argument is clearly foreclosed by our precedent. Unless a
    bankruptcy court’s ruling is stayed pending appeal, that court retains
    2 Rather than discussing whether the Contempt Order was issued during core
    proceedings, Garrett primarily argues that the Contempt Order was not “related to” White-
    Robinson’s bankruptcy. We do not reach this argument because, once a proceeding is
    determined to be core, we need not consider whether it is also “related to” a bankruptcy case.
    Stern v. Marshall, 
    131 S. Ct. 2594
    , 2605 (2011).
    5
    Case: 14-10525     Document: 00512930283     Page: 6   Date Filed: 02/09/2015
    No. 14-10525
    jurisdiction to engage in proceedings to enforce its own rulings. United States
    v. Revie, 
    834 F.2d 1198
    , 1205 (5th Cir. 1987). Here, Garrett did not obtain a
    stay of the Sanctions Orders pending appeal. Accordingly, the bankruptcy
    court retained jurisdiction to enforce the Sanctions Orders through any
    appropriate means, including a civil contempt order. See Resolution Trust
    Corp. v. Smith, 
    53 F.3d 72
    , 76–77 (5th Cir. 1995) (“Until the judgment has been
    properly stayed or superseded, the district court may enforce it through
    contempt sanctions.” (internal quotation marks and alteration omitted)).
    II. Imprisonment for a Debt
    Garrett next argues that the Contempt Order was improper because it
    violates 28 U.S.C. § 2007 (“§ 2007”), the federal prohibition on imprisonment
    for a debt. That section provides in relevant part that “[a] person shall not be
    imprisoned for debt on a writ of execution or other process issued from a court
    of the United States in any State wherein imprisonment for debt has been
    abolished.” 
    Id. § 2007(a).
    The Sanctions Orders were issued from a federal
    court in Texas, and the Texas Constitution provides that “[n]o person shall ever
    be imprisoned for debt.” Tex. Const. art. I, § 18. Thus, because the Contempt
    Order allegedly threatens Garrett with imprisonment for her failure to pay the
    Sanctions Orders, Garrett argues that the Contempt Order violates § 2007.
    The most intuitive response to this argument is that the Contempt Order
    did not imprison anyone and did not realistically threaten anyone with the risk
    of imprisonment. But Garrett argues that one of our cases could be read to
    imply that, in Texas, § 2007 prohibits all civil contempt orders for failure to
    pay a debt because imprisonment is a possible remedy for civil contempt. In
    Pierce v. Vision Investments, Inc., we applied § 2007 analysis to a civil contempt
    order, even though the order did not imprison the contemnor. 
    779 F.2d 302
    ,
    306–10 (5th Cir. 1986). Ultimately, we decided that the civil contempt order
    was issued for the violation of an equitable decree rather than failure to pay a
    6
    Case: 14-10525       Document: 00512930283          Page: 7     Date Filed: 02/09/2015
    No. 14-10525
    debt, so § 2007 was not violated. 
    Id. at 309.
    But we did not explicitly decide
    whether § 2007 could ever be violated by a civil contempt order that does not
    impose imprisonment. See 
    id. 3 We
    start by assuming, without deciding, that sanctions of the sort
    imposed here are “debts” within the meaning of the term as used in § 2007 and
    the Texas Constitution. 4 Having made this assumption, we start and end our
    analysis of Garrett’s argument with the plain text of § 2007. That section
    prohibits only imprisonment for a debt—not fining for a debt, not sanctioning
    for a debt, and not holding in contempt for a debt. We hold that, given the
    plain statutory language and the lack of any binding precedent, only
    imprisonment for a debt could possibly violate § 2007. Thus, a civil contempt
    order that does not impose imprisonment cannot violate § 2007, regardless of
    whether it is imposed for nonpayment of a debt.                    Here, Garrett was not
    imprisoned, so § 2007 does not apply.
    Garrett essentially argues that a civil contempt order always implicitly
    threatens imprisonment.           But DDR’s motion for contempt requested only
    3  Pierce was decided on panel rehearing. 
    Id. The panel’s
    original, vacated opinion
    explicitly decided that a civil contempt order for failure to pay a debt was precluded by § 2007
    in Texas, even if the contempt order did not require imprisonment. Pierce v. Vision Invs.,
    Inc., 
    765 F.2d 539
    , 545 (5th Cir. 1985), vacated on rehearing by 
    779 F.2d 302
    (5th Cir. 1986).
    Needless to say, this statement in the original opinion is not good law because the opinion
    was vacated. It is troubling that Garrett repeatedly relies upon the vacated Pierce opinion.
    4 As we have indicated above, we do not decide whether the Sanctions Orders, imposed
    for an attorney’s misconduct during litigation, created mere “debts” within the meaning of
    § 2007 or Texas law. We have been unable to find any Texas or federal cases that directly
    consider this question. Cf. 
    Pierce, 779 F.2d at 309
    (“Nothing in Texas jurisprudence indicates
    that a Texas court would find that the court order in this case was a mere debt.”). Similarly,
    we do not decide whether Texas law allows imprisonment of someone who has the financial
    resources to pay a debt but refuses to do so, although we note that the Texas Courts of
    Appeals are apparently split on this issue. Compare Ex parte Buller, 
    834 S.W.2d 622
    , 626
    (Tex. App.—Beaumont 1992) (holding that Texas’s “constitutional prohibition” against
    imprisonment for debts “simply does not apply unless the contemner demonstrates inability
    to pay” (internal quotation marks omitted)), with In re Byrom, 
    316 S.W.3d 787
    , 795 n.6 (Tex.
    App.—Tyler 2010) (noting Buller holding with disapproval).
    7
    Case: 14-10525       Document: 00512930283         Page: 8     Date Filed: 02/09/2015
    No. 14-10525
    monetary sanctions, not imprisonment. And, during the contempt hearing, the
    bankruptcy court and DDR repeatedly disclaimed any intention to imprison
    Garrett or anyone else for failure to pay the amounts due under the Sanctions
    Orders.      We find Garrett’s contention that she was “threatened” with
    imprisonment disingenuous. 5
    III. Abuse of Discretion
    The remainder of Garrett’s arguments can be disposed of easily. She
    makes essentially five points, none of which is extensively briefed. First, she
    argues that less harsh remedies were available and the fines imposed were
    excessive.    We review only for abuse of discretion, and we hold that the
    bankruptcy court did not abuse its discretion. There was ample, uncontested
    evidence that the Sanctions Orders were in effect and that Garrett knew of
    them and did not pay them. Fining Garrett for DDR’s rather limited expenses
    of $6,454.50 was eminently reasonable and not at all excessive or overly harsh.
    Further, given Garrett’s apparent obduracy in refusing to pay the sanctions,
    imposing an additional fine of $100 per day of nonpayment was reasonably
    calculated to coerce compliance and was not excessive or overly harsh.
    Second, Garrett argues that she was denied due process and equal
    protection because she did not receive a fair hearing. But she was given the
    opportunity to appear, object to documentary evidence, and put on evidence of
    her own. 6       When the bankruptcy court told Garrett that “it’s your
    5 That said, in the seemingly not-unlikely situation that Garrett violates the Contempt
    Order, imprisonment would be appropriate only if it would also be appropriate for
    nonpayment of the Sanctions Orders. That is, assuming arguendo that imprisonment for
    nonpayment of the Sanctions Orders would be forbidden by § 2007, imprisoning Garrett for
    violation of the Contempt Order would be tantamount to imprisoning her for failure to pay a
    debt. Otherwise, imprisonment for a debt could always be accomplished by first obtaining a
    contempt order and then requesting imprisonment for failure to comply with it.
    The firm alone argues in the reply brief that it was not given proper notice of the
    6
    contempt hearing. Because this argument is cursorily raised for the first time in the reply
    8
    Case: 14-10525      Document: 00512930283        Page: 9     Date Filed: 02/09/2015
    No. 14-10525
    opportunity . . . to put on evidence at this time,” she responded simply, “I have
    nothing further to say to this Court.” Indeed, reading the contempt hearing
    transcript leaves the distinct impression that Garrett essentially refused to
    participate in the proceeding after the bankruptcy court rejected her
    jurisdictional and § 2007 objections. Garrett cannot now complain that she
    was not given the opportunity to present evidence or to present her case.
    Garrett also complains that the bankruptcy court violated her due
    process rights by not considering whether she was financially able to pay the
    Sanctions Orders. But she never even raised an inability-to-pay defense, let
    alone satisfied her burden of production for that defense. See, e.g., United
    States v. Rylander, 
    460 U.S. 757
    , 757 (1983) (noting that alleged contemnor
    who “rais[es] th[e] defense” of present inability to comply with the violated
    order bears the burden of production (emphasis added)); Huber v. Marine
    Midland Bank, 
    51 F.3d 5
    , 10 (2d Cir. 1995) (“[A] party’s complete inability, due
    to poverty or insolvency, to comply with an order to pay court-imposed
    monetary sanctions is a defense to a charge of civil contempt. The alleged
    contemnor bears the burden of producing evidence of his inability to comply.”
    (emphasis added) (internal citations omitted)). Again, Garrett was given every
    opportunity to present this defense. Indeed, the bankruptcy judge specifically
    informed Garrett that “I would be willing to hear anything about your financial
    resources. I would be willing to hear whatever reasons you care to offer about
    why you didn’t pay the money judgment. So I am asking you one more time:
    Do you want to say anything on any of these points?” Garrett responded with
    arguments unrelated to financial inability to pay the sanctions. And, again,
    brief, we do not consider it. See United States v. Myers, 
    772 F.3d 213
    , 218 (5th Cir. 2014)
    (“We generally do not consider arguments made for the first time in a reply brief and deem
    those arguments waived.”).
    9
    Case: 14-10525       Document: 00512930283         Page: 10     Date Filed: 02/09/2015
    No. 14-10525
    when the bankruptcy court asked her whether she would present any evidence,
    she declined to do so.
    Garrett suggests that, given the amount of time that has elapsed since
    the Contempt Order, she now owes over $100,000, so we should vacate the
    Contempt Order and remand for consideration of financial inability to pay.
    This we will not do. Garrett did not obtain (or even vigorously pursue) a stay
    of the contempt order pending appeal, so she is to blame for any accrued
    balance. 7
    Third, Garrett argues that the Contempt Order was void for vagueness
    because it would “lead the reader to believe the orders at issue were more than
    monetary judgments to a creditor.” Given her lack of legal citations, we are
    not sure why she believes that the alleged vagueness of a few factual findings
    would render an entire order void. Regardless, we hold that the Contempt
    Order was not vague and indeed correctly stated that Garrett had not complied
    with the Sanctions Orders.
    Fourth, Garrett argues that the district court made a number of
    unsupported findings. We do not defer to the district court’s findings in this
    bankruptcy appeal, so any such error is harmless on appeal. See Terrebonne
    
    Fuel, 108 F.3d at 613
    (“Although the bankruptcy appellate process makes this
    court the second level of review, we perform the identical function as the
    district court.”).
    Fifth, Garrett alone argues that the bankruptcy court improperly held
    her jointly and severally liable for actions she performed as a member of her
    law firm, which is allegedly a limited liability company (“LLC”) organized
    under Texas law. But Texas law only protects LLC members from being held
    7Of course, if another civil contempt proceeding is brought against Garrett to enforce
    the Sanctions Orders and Contempt Order, she will have the opportunity to defend based on
    her “present inability to comply with the order[s] in question.” 
    Rylander, 460 U.S. at 757
    .
    10
    Case: 14-10525    Document: 00512930283       Page: 11   Date Filed: 02/09/2015
    No. 14-10525
    liable for the LLC’s obligations, not their own obligations. See Tex. Bus. Orgs.
    Code § 101.114 (“[A] member . . . is not liable for a debt, obligation, or liability
    of a limited liability company . . . .” (emphasis added)). Garrett was found in
    civil contempt for her failure to pay sanctions that she owed because of her own
    misconduct in prior bankruptcy proceedings. Accordingly, she is not protected
    by her alleged membership in her LLC. See id.; Sanchez v. Mulvaney, 
    274 S.W.3d 708
    , 712 (Tex. App.—San Antonio 2008) (holding that LLC member
    could be held individually liable for “his own allegedly tortious or fraudulent
    actions”).
    CONCLUSION
    For the foregoing reasons, we AFFIRM the bankruptcy court’s Contempt
    Order.
    11