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Broege, Neumann, Fishcer : & Shaver, L.L.C. v. Regina Palone

January 23, 2012

BROEGE, NEUMANN, FISHCER : & SHAVER, L.L.C.
E. SHAVER, ESQ., : PLAINTIFF-APPELLANTS,
v.
REGINA PALONE, DEFENDANT-APPELLEE.
JOHN DALHGREN, APPELLANT,
v.
REGINA PALONE, APPELLEE,



The opinion of the court was delivered by: Freda L. Wolfson Freda L. Wolfson, U.S.D.J.

OPINION AND DAVID MEMORANDUM

This matter having been opened to the Court by way of motion of David E. Shaver, Esq., counsel for Appellants Broege, Neumann, Fischer, & Shaver, L.L.C. and David E. Shaver, ("Appellants"), appealing, pursuant to 28 U.S.C. § 158(a)(1), the July 21, 2011 decision of Bankruptcy Judge Raymond T. Lyons, Jr., which decision denied Appellants' oral motion for a stay pending appeal and imposed $3,000 in sanctions against Mr. Shaver; it appearing that:

1. The instant matter arises out of Appellants' prior appeal of a February 16, 2010 decision by the Bankruptcy Court, in which decision Judge Lyons sanctioned Appellants in the amount of $12,900 for David Shaver's conduct in an adversary proceeding between Regina Palone ("Defendant-Appellee") and John Dahlgren, Mr. Shaver's client. This Court affirmed the Bankruptcy Court's decision by way of an opinion dated December 16, 2010. Appellants then moved to reconsider this Court's affirmance; the Court denied that motion on June 1, 2011. Thereafter, on June 30, 2011, Appellants appealed this Court's denial of their motion for reconsideration to the Third Circuit. Throughout this time frame, Appellants did not remit the $12,900 sanctions amount to Defendant-Appellee.

2. Meanwhile, on June 15, 2011, William J. Oliver, Esq., counsel for Defendant-Appellee, filed a motion to enforce the February 16, 2010 sanctions order in the Bankruptcy Court. In that motion, Defendant-Appellee sought additional fees for the time Mr. Oliver spent in seeking to enforce the February 16, 2010 judgment. Mr. Oliver's certification in support of the motion requested $4,248.75 in fees, and detailed the time spent and tasks he completed. The motion was returnable on July 5, 2011.

3. The Bankruptcy Court decided the motion by telephonic hearing on July 14, 2011. At the hearing, Appellants requested that they be permitted to post security while the appeal to the Third Circuit was pending. Specifically, they proposed placing the full amount of the award-$12,900--in Mr. Oliver's trust account to "provide security for the eventual payment . . . [a]nd we'll await the Third Circuit ruling on the underlying merits." July 14, 2011 Transcript ("Tr.") 2:20-3:4. The Bankruptcy Court denied Appellants' request, reasoning "[w]ell, I'm not inclined to issue a stay pending appeal. I think the order is enforceable, it should have been complied with. So, I'm going to grant [Defendant-Appellee's] motion to enforce my prior fee award." Id. at 4:12-15.

4. The Bankruptcy Court, further, awarded an additional $3,000 in fees "for the expense of enforcing the [February 16, 2010] sanction order ...." Id. at 5:21-24. While Mr. Oliver had submitted a certification detailing his proposed fee award of $4,248.75, the Bankruptcy Court engaged in a colloquy with Mr. Oliver regarding what would be an appropriate fee:

THE COURT: . . . And how much are you requesting for the filing of this motion, Mr. Oliver?

MR. OLIVER: I'll leave that to Your Honor's discretion.

THE COURT: All right, $500. Is that sufficient?

MR. OLIVER: Probably, we submitted a bill for 4,000. But you know, that was including an appearance any everything. But whatever Your Honor believes is --

THE COURT: Well, tell me if I'm missing something. Because --

MR. OLIVER: We filed in a certification showing the amount of time we spent on this case dealing with Mr. Shaver in trying to get him to abide by the Court's order. There's correspondence and telephone calls.

MR. OLIVER: It came to 11 hours. But of course that included three hours of court, so it came to, it would ...


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