McAlpin v. Lexington 76 Auto Truck Stop, Inc.

WELLFORD, Circuit Judge,

concurring.

I concur in the opinion of Judge Boggs, but add a few comments that seem appropriate.

The district court’s initial order naming Gahafer as Appalachian Oil Company’s (“AOC”) receiver was unfortunate and ill-advised, especially without the posting of a proper receiver’s bond adequately to protect AOC in the even of the receiver’s improper or unauthorized actions. This regrettable action has engendered multiple court filings, great expense to the parties, and recriminations. I am not sure that Gahafer himself did not engender some of these problems, and an examination of his actions might show his awareness that a proper and substantial bond was never posted to protect AOC. It was further regrettable that this receivership action *506was taken without a contemporaneous hearing.

It would appear, furthermore, that Ga-hafer’s actions, vis-a-vis McAlpin seeking large fees, were taken with knowledge that plaintiffs had few, if any, assets to satisfy his claim and that such action might force a settlement with AOC by his former “clients.”

If McAlpin is correct that the original contempt order was entered against her without a hearing, I would question the propriety of the district court’s action in that regard. In any event, pursuant to the opinion and holding under Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), all of the actions of the district court seeking to enforce other provisions of the settlement agreement would be of no effect as being without jurisdiction.