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In re Peace

United States Bankruptcy Appellate Panel of the Sixth Circuit

March 15, 2018

In Re: Robert A. Peace, Jr., Debtor.
v.
Robert A. Peace, Jr., Defendant-Appellant. Karen Vande Ryt; James Vande Ryt; Jeff Winningham, Plaintiffs-Appellees,

         Appeal from the United States Bankruptcy Court for the Southern District of Ohio at Cincinnati. No. 13-10430; Adv. No. 13-1041-Jeffery P. Hopkins, Judge.

         ON BRIEF:

          Robert G. Kelly, Norwood, Ohio, for Appellant.

          Before: DALES, HARRISON, and OPPERMAN, Bankruptcy Appellate Panel Judges.

          OPINION

          DANIEL S. OPPERMAN, CHIEF BANKRUPTCY APPELLATE PANEL JUDGE.

         The Debtor, Robert A. Peace, Jr., ("Peace"), appeals the bankruptcy court's order under Federal Rule of Civil Procedure 60(b) denying his motion to set aside a judgment, finding that he owed a non-dischargeable debt to Plaintiffs, James Vande Ryt ("JVR"), Karen Vande Ryt ("KVR") and Jeff Winningham[1]("JW, " collectively "Appellees"). Because the Panel finds that the bankruptcy court did not abuse its discretion in denying Peace's motion, it affirms the decision of the bankruptcy court.

         JURISDICTION AND STANDARD OF REVIEW

         The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Southern District of Ohio has authorized appeals to the Panel, and none of the parties elected to have this appeal heard by the district court. 28 U.S.C. § 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1484, 1497 (1989) (citations omitted). An order denying a motion for relief pursuant to Federal Rule of Civil Procedure 60(b) is a final order. Slutsky v. Am. Express Travel Related Servs. Co. (In re William Cargile Contractor, Inc.), 209 B.R. 435, 435-36 (B.A.P. 6th Cir. 1997).

         The decision to grant or deny a motion pursuant to Rule 60(b) is within the discretion of the bankruptcy judge. Bavey v. Powell (In re Baskett), 219 B.R. 754, 757 (B.A.P. 6th Cir. 1998). Therefore, the bankruptcy judge's decision is reviewed on appeal for abuse of discretion. Blue Diamond Coal Co. v. Trustees of UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir. 2001). An abuse of discretion will be found when the reviewing court has a "definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Huey v. Stine, 230 F.3d 226, 228 (6th Cir. 2000) (citations and internal quotation marks omitted). "The question is not how the reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court's decision; if reasonable persons could differ as to the issue, then there is no abuse of discretion." Behlke v. Eisen (In re Behlke), 358 F.3d 429, 437 (6th Cir. 2004) (citation omitted).

         FACTS

         In 2011, the Appellees filed a state court action against Peace alleging that Peace caused property damage when he interfered with the water flow to their property. The state court lawsuit was eventually stayed due to Peace's filing a chapter 7 bankruptcy petition, but not before the Appellees hired Craig Abercrombie ("Abercrombie") of Abercrombie & Associates, to provide an expert report (the "Expert Report") which was filed in the state court litigation. After Peace's bankruptcy filing, the Appellees filed an adversary proceeding under 11 U.S.C. § 523(a)(6) in the bankruptcy court from which this appeal emanates, alleging that Peace owed them a non-dischargeable debt due to property damage they had suffered due to Peace's interference with water flow to the property.

         The following stipulated facts were submitted in the adversary proceeding:

1. JVR, KVR, and Plaintiff James Winningham (hereinafter "JW") were the Plaintiffs in Hamilton County Court of Common Pleas Case No. A0908683 filed against Defendant and Hester Peace. Said case was dismissed voluntarily by the Plaintiffs under Ohio Rule of Civil Procedure Rule 41(a) on or about August 30th, 2010.
2. JVR, KVR and JW were the Plaintiffs in Hamilton County Court of Common Pleas Case No. A1106579 filed against Defendant and Hester Peace. Said case was stayed by Defendant's Chapter 7 Bankruptcy filing.
3. JVR, KVR, JW, Defendant were all subject to depositions during the 2011 Common Pleas Case by their respective opposing counsels.
4. 4684 E. Miami River Road, Cleves, Ohio 45002 and 4692 E. Miami River Road, Cleves, Ohio 45002 are adjacent real estate parcels on E. Miami River Road. 4692 E. Miami River Road is located on the northern border of the 4684 Property line.
5. 4684 East Miami River Road, Cleves, Ohio has been valued by the Hamilton County Auditor from 1996 from September 20th, 2014. The auditor's value are defendant's Exhibit K.
6. No Complaints to Valuation have been filed with the Hamilton County Board of Revision since March 23rd, 2000 which resulted in the 09/17/2001 valuation.
7. 4684 E. Miami River Road, Cleves, Ohio is also adjacent on the eastern property line to the real estate parcel located at 8944 Buffalo Ridge Road, Cleves, Ohio 45002 which is owned by the Hamilton County Park District. The eastern property line downward slopes into 4684 E. Miami River Road Parcel.
8. Plaintiff James Vande Ryt (hereinafter "JVR") was the Debtor in Chapter 7 Bankruptcy, Case No. 14-11098 which was filed on or about March 21st, 2014 and discharged by this Court on or about June 24th, 2014.
9. JVR listed an ownership interest in 4684 E. Miami River Road, Cleves, OH 45002 (hereinafter "4684 property") on Schedule A of his petition with a valuation of $145, 000.00 and liabilities to Wells Fargo Bank for a mortgage on his Schedule D of $177, 670.00.
10. JVR listed his intention to surrender the 4684 Property to Wells Fargo Bank in his statement of intention filed with his petition and he received a discharge of all personal liability of this mortgage through his bankruptcy.
11. JVR duly listed his foregoing interest in this Adversary Complaint on Schedules B and C of his petition and the Chapter 7 Trustee filed an abandonment of interest in this claim.
12. JVR acquired his interest in the 4684 Property through a General Warranty Deed from Plaintiff Karen Vande Ryt (hereinafter "KVR") recorded with the Hamilton County Recorder's Office on or about August 1st, 2007.
13. JVR purchased the 4684 Property from KVR for a purchase price of $145, 000.00 on 8/1/2007.
14. JVR was also the Defendant in a foreclosure case filed by Wells Fargo Bank in Hamilton County Court of Common Pleas Case No. A1100232. (hereinafter "Foreclosure Case").
15. The Foreclosure Case concluded with the Sheriff Sale on or about September 18th, 2014 in which Wells Fargo, through bid ...

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