Leigh v. Vice

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

m 01-60298
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FRANK M. LEIGH,

Plaintiff-Appellant,

VERSUS

THOMAS E. VICE,

Defendant-Appellee.

_________________________

Appeal from the United States District Court
for the Northern District of Mississippi
(1:98-CV-22S)
_________________________

February 7, 2002

Before SMITH and DEMOSS, Circuit Judges, PER CURIAM:**
and LAKE,* District Judge.
Frank Leigh appeals the denial of his mo-
tion to enjoin enforcement of an adverse deci-

**
Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
*
District Judge of the Southern District of limited circumstances set forth in 5TH CIR. R.
Texas, sitting by designation. 47.5.4.
sion of a state court, arguing that it conflicts Vice to surrender the property, arguing that
with a prior ruling of the bankruptcy court in under 11 U.S.C. § 365((d)(4), Vice had
violation of the All Writs Act, 28 U.S.C. rejected the lease and surrendered it to him,
§ 1651, and the Anti-Injunction Act, 28 the lessor.2 Vice requested an injunction
U.S.C. § 2283. Finding no error, we affirm. preventing Leigh from taking possession of the
property. The bankruptcy court granted
I. Leigh’s motion and denied Vice’s. The
In 1977, Thomas Vice agreed to lease a bankruptcy case was closed in 1994.
commercial building owned by Leigh. The
lease was for fifteen years and gave Vice the In November 1995, the Mississippi
option to renew for another fifteen years so Supreme Court reversed in part, holding that
long as he did not default on the lease. Vice Leigh had waived the right to object to Vice’s
had the right to cancel the lease on any default. new sublessee, and Vice could renew the lease.
In January 1996, Leigh filed a motion in the
The lease required Vice to obtain Leigh’s bankruptcy court to determine his rights in the
written consent before subleasing the property. wake of the Mississippi Supreme Court’s
In 1979, Vice changed sublessees without con- decision. The bankruptcy court held that
sent; Leigh did not object. In 1988, Vice again because Vice had not assumed the lease within
subletted without Leigh’s consent; again, sixty days of his bankruptcy order, he had no
Leigh did not object. In 1989, Leigh became claim to the property under bankruptcy law:
unhappy with the new sublessee and, in 1990,
notified Vice that he had breached the lease in [Vice] did not properly pursue his
1988 by subletting without permission. Leigh bankruptcy remedies. Because of his
filed a declaratory action in Mississippi chosen course of action, this is no
chancery court seeking a judgment that he had longer a matter that should be
the right to cancel the lease or, alternatively, adjudicated in the bankruptcy court. If
had the right not to renew the lease. The court Vice is entitled to relief, he must obtain
ruled for Leigh. same in state court. If the failure to post
a supersedeas bond proves fatal, this
Vice appealed, but without posting a bond shortcoming cannot and should not,
and thus without supersedeas. Accordingly,
his appeal did not suspend enforcement of the
2
chancery court’s judgment.1 The section provides that

In May 1992, while the appeal was pending if the trustee does not assume or reject an
and before the lease expired, Vice filed for unexpired lease of nonresidential real prop-
erty under which the debtor is the lessee
chapter 11 bankruptcy. Vice (either as or
within 60 days after the date of the order for
through the trustee of the bankruptcy estate) relief, or within such additional time as the
neither assumed the lease within sixty days of court, for cause, within such 60-day period,
the order granting bankruptcy relief nor fixes, then such lease is deemed rejected,
requested additional time. Leigh moved for and the trustee shall immediately surrender
such nonresidential property to the lessor.

1
MISS. CODE. ANN § 11-51-31 (2001). 11 U.S.C. § 165(d)(4).

2
 absent the timely filing of the found that under § 365(d)(4), “the ultimate
appropriate § 365(d)(4) motions, be question of the continued validity of the lease
rectified in this court. at issue was a matter for the state courts of
Mississippi.” Further, the court deemed
Both parties requested the court clarify its Leigh’s “invocation of the All Writs Act . . .
order. Leigh argued that because Vice had not nothing more than an attempt to take an out-
assumed the lease within the sixty-day of-time appeal of what was in essence an ad-
window, the lease had been terminated, and verse ruling of the bankruptcy court.”
there was nothing left to litigate and there
were no lease rights to enforce. The court II.
held that Vice had no lease rights under Leigh argues that the chancery court relit-
bankruptcy law, but whether he had any lease igated the issue already decided by the bank-
rights under state law was a matter for ruptcy courtSSwhether Vice had any rights
Mississippi’s courts: under the leaseSSin violation of the All Writs
Act3 and the Anti-Injunction Act.4 A federal
To the extent that Vice may have rights court may enjoin state court proceedings
under the lease which became available “when necessary to protect or effectuate a fed-
by reason of the decision of the eral court judgment.” J.R. Clearwater, Inc. v.
Mississippi Supreme Court, then he is Ashland Chem. Co., 93 F.3d 176, 178 (5th
left to pursue those rights in the state Cir. 1996); accord 28 U.S.C. § 2283. This
court action pending in Lowndes “‘relitigation exception . . . . is founded in the
County Chancery Court. The Order of well-recognized concepts of res judicata and
this Court here is not intended to and collateral estoppel.’” J.R. Clearwater, 93 F.3d
does not foreclose any claims which at 179 (quoting Chick Kam Choo v. Exxon
Vice has heretofore pursued, or may Corp., 486 U.S. 140, 147 (1988)).
pursue in state court, but merely
precludes the assertion of those rights in Nothing in the bankruptcy court’s decision
Bankruptcy Court. precluded further state court litigation. To the
contrary, the bankruptcy court explicitly di-
Applying the state’s law as interpreted by the rected Leigh and Vice to state court to resolve
Mississippi Supreme Court, the chancery court the rest of their lease claims. It extinguished
granted Vice’s motion to renew the lease. Vice’s rights only under bankruptcy law, not

Leigh filed the instant action in federal
3
court, arguing that the chancery court’s “[F]ederal courts may issue all writs necessary
decision contradicts the bankruptcy court’s or appropriate in aid of their respective jur-
ruling that Vice had given up his right to isdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651.
assume the lease. Leigh moved for summary
judgment; Vice moved to dismiss the 4
“A court of the United States may not grant an
complaint. injunction to stay proceedings in a State court
except as expressly authorized by Act of Congress,
The court granted Vice’s motion, which it or where necessary in aid of its jurisdiction, or to
treated as a summary judgment motion. It protect or effectuate its judgments.” 28 U.S.C.
§ 2283.

3
state law. Because nothing in the chancery
court’s order contradicts the bankruptcy order,
no relief is available under the All Writs Act
or the Anti-Injunction Act.5

AFFIRMED.

5
We need not decide whether the bankruptcy
and district courts correctly interpreted 11 U.S.C.
§ 365(d)(4), and we intimate no view on the merits
of their holdings.

4