United States Bankruptcy Appellate Panel of the Sixth Circuit
In Re: Robert A. Peace, Jr., Debtor.
Robert A. Peace, Jr., Defendant-Appellant. Karen Vande Ryt; James Vande Ryt; Jeff Winningham, Plaintiffs-Appellees,
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.
G. Kelly, Norwood, Ohio, for Appellant.
Before: DALES, HARRISON, and OPPERMAN, Bankruptcy Appellate
S. OPPERMAN, CHIEF BANKRUPTCY APPELLATE PANEL JUDGE.
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("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
AND STANDARD OF REVIEW
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).
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).
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
following stipulated facts were submitted in the adversary
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
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
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
15. The Foreclosure Case concluded with the Sheriff Sale on
or about September 18th, 2014 in which Wells Fargo, through