Denitia Nicholas v. William R. Wright

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No. 96-1390
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In re: Gary Joe Dean; *
Lucille M. Dean, *
*
Debtors. *
*
----------------------- *
*
Denitia Nichols; Robert J. *
Johnson; Ashley Investment *
Services, Inc.; Genesis *
Development Corporation; * Appeal from the United States
Premier Industrial Coatings, * District Court for the
Inc.; Global Traffic Service, * Western District of Arkansas.
Inc.; Global Industrial *
Supplies, Inc., *
*
Appellants, *
*
v. *
*
William Randall Wright, Trustee *
for Gary Joe Dean & Lucille M. *
Dean, *
*
Appellee. *

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Submitted: November 22, 1996

Filed: February 20, 1997
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Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and SACHS,1
District Judge.

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MAGILL, Circuit Judge.

THE HONORABLE HOWARD F. SACHS, United States District Judge
for the Western District of Missouri, sitting by designation.
 The defendants in this 11 U.S.C. § 542 (1988) bankruptcy turnover
proceeding, Robert J. Johnson, Denitia Nichols, and several corporations,
appealed the adverse decision of the bankruptcy court2 to the district
court.3 The district court affirmed the bankruptcy court's decision, and
the defendants now appeal to this Court. The defendants argue that the
bankruptcy court erred when it (1) denied the defendants' motion for
bankruptcy court abstention to state court, and (2) entered an order
restraining the defendants from disposing of assets prior to the entry of
final judgment. The defendants also argue several other grounds for
reversal. We affirm.

I.

The underlying matter in this case is the Chapter 7 bankruptcy of Joe
and Lucy Dean, the debtors, filed in July 1990. The bankruptcy court found
that Joe Dean was defrauded by Johnson, who was Joe Dean's attorney, as
well as by Johnson's legal secretary, Nichols.

The matter currently before this Court is the turnover proceeding
filed by the trustee of the bankruptcy estate, William Randall Wright, on
February 12, 1993, against Johnson and Nichols, as well as against certain
corporate defendants, including Ashley Investment Services, Inc., Genesis
Development Corporation, Premier Industrial Coatings, Inc., Global Traffic
Service, Inc., and Global Industrial Supplies, Inc. The trustee is seeking
the turnover of stock and certain assets of Hi-Tech Coatings, Inc. (Hi-
Tech) and an accounting pursuant to § 542. See 11 U.S.C. § 542.

The Honorable James G. Mixon, Chief Bankruptcy Judge, United
States Bankruptcy Court for the Western District of Arkansas.

The Honorable Harry F. Barnes, United States District Judge
for the Western District of Arkansas.

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 In response to the trustee's turnover request, the defendants filed
a motion requesting bankruptcy court abstention and that the turnover
proceeding be decided in state court. The bankruptcy court denied this
motion and heard the turnover proceeding itself.
At the request of the defendants, the turnover trial was bifurcated.
In the first phase, the bankruptcy court determined the ownership of the
Hi-Tech stock and certain assets. The bankruptcy court entered an order
on October 20, 1993, holding, inter alia, that (1) Johnson is the
beneficial owner of all of the defendant corporations; (2) Johnson and
Nichols conspired to defraud the debtor Joe Dean of his interest in Hi-
Tech; (3) the debtors are the equitable owners of Hi-Tech; (4) the trustee
is entitled to a turnover of all the shares of Hi-Tech from the defendants
pursuant to 11 U.S.C. § 542; and (5) Nichols and Johnson must provide an
accounting. See Bankr. Mem. Op. at 23-28 (Oct. 22, 1993). Furthermore,
the bankruptcy court found that "irreparable injury may occur to the
debtors' estate if Johnson, Nichols and the corporate defendants are not
restrained from disposing of other assets or placing those assets beyond
the reach of the trustee." Id. at 27. Accordingly, the bankruptcy court
entered a restraining order enjoining Johnson, Nichols, and the corporate
defendants "from disposing of any assets held either in their name or held
equitably for them by another person." Id.

Before the second phase of the turnover trial was completed, the
defendants filed a motion to lift the restraining order and grant them the
authority to transfer assets so that they could pay their attorney. This
motion was denied, and the defendants appealed this ruling to the district
court.

The second phase of the turnover trial was the accounting phase. At
the conclusion of this phase, the court entered judgment against Johnson
for $643,654.00 and against Nichols for $248,097.55. Judgment was also
entered against the corporate

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defendants for $891,451.55. See Bankr. Mem. Op. at 38 (July 29, 1994).
In addition, the court granted the trustee an equitable lien against
Nichols's homestead. Id.

The defendants appealed these rulings as well as the amount of the
judgments entered against them to the district court. The district court
affirmed.

II.

The defendants argue that the bankruptcy court should have abstained.
While the district court had jurisdiction to review this issue, see 28
U.S.C. § 158(a) (1994), we do not. See 28 U.S.C. § 1334(d) (1994).

We may not review a bankruptcy court's decision whether to abstain
from a proceeding if that proceeding is a core proceeding. See 28 U.S.C.
§ 1334(c) and (d) (1994). While the bankruptcy code does not define core
proceedings, 28 U.S.C. § 157(b)(2) (1994) provides a non-exclusive list of
proceedings that have been designated as core proceedings. In particular,
this list includes as a core proceeding "orders to turn over property of
the estate . . . ." 28 U.S.C. § 157(b)(2)(E).

The proceeding before the bankruptcy court was an 11 U.S.C. § 542
turnover proceeding--that is, a proceeding used to effectuate the "turn
over [of] property of the estate . . . ." 28 U.S.C. § 157(b)(2)(E). The
trustee instituted the turnover proceeding before the bankruptcy court in
order to bring the Hi-Tech stock and certain assets owned by the debtor
back into the bankruptcy estate. As such, it was a core proceeding. See
id.; cf. In re Cassidy Land & Cattle Co., 836 F.2d 1130, 1133 (8th Cir.
1988) (holding that a turnover proceeding involving a mortgage foreclosure
that will result in assets being brought into the bankruptcy estate is a
core proceeding); In re Gallucci, 931 F.2d 738, 742 (11th Cir. 1991)

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(holding that the debtor must have an interest in the property that is the
subject of the turnover proceeding for it to be a core proceeding pursuant
to 28 U.S.C. § 157(b)(2)(E)); In re Kinkaid, 917 F.2d 1162, 1165 (9th Cir.
1990) (noting that, where a trustee in a turnover proceeding is seeking
property owned by the debtor (as opposed to merely property owed to the
debtor), "determining the nature and extent of property of the estate is
also a fundamental function of a bankruptcy court" and therefore the
turnover action is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A)
(quotations and citations omitted)).

Consequently, because the turnover proceeding in this case was a core
proceeding, we do not have jurisdiction to review the bankruptcy court's
decision to refrain from abstaining.

III.

The defendants argue that the bankruptcy court erred when it entered
an order restraining them from disposing of any assets before final
disposition of the turnover trial. The defendants assert that the
bankruptcy court's restraining order amounted to the sort of improper,
prejudgment sequestration prohibited by Fuentes v. Shevin, 407 U.S. 67
(1972). They rely on the fact that the second phase of the turnover trial,
the accounting phase, had not yet been completed to argue that the court's
restraining order was an improper prejudgment sequestration of their
property. We disagree.

Fuentes is inapposite. In Fuentes, the Supreme Court struck as
unconstitutional a Florida replevin statute that allowed a local sheriff
to take property, without prior notice or a hearing of any kind, from a
person accused of wrongfully holding that property. Id. at 96. In
contrast, the defendants here had a full and fair opportunity to defend
themselves before the bankruptcy court. It was only after the first phase
of the turnover trial, which

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established not only the defendants' wrongful conduct but also the
egregious nature of that conduct, that the restraining order was entered.
Furthermore, given the defendants' demonstrated proclivity for liquidating
assets in order to hide them from the trustee, see Bankr. Mem. Op. at 27
(Oct. 22, 1993), the restraining order falls squarely within the ambit of
11 U.S.C. § 105(a) (1988), which allows the bankruptcy courts to "issue an
order . . . that is necessary or appropriate to carry out the provision of
this title." Thus, we conclude that the bankruptcy court's restraining
order was not improper.

IV.

The appellants bring to us a variety of other grounds for reversal.
Having reviewed these grounds, we find them all to be meritless. See 8th
Cir. R. 47B. Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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