United States District Court, D. Maryland
ARLENE A. SMITH-SCOTT, Appellant,
GEORGE W. LIEBMANN, TRUSTEE, Appellee. Bankruptcy No. 14-25022
Richard D. Bennett, United States District Judge.
Arlene A. Smith-Scott appeals from United States Bankruptcy
Judge James F. Schneider's May 17, 2016 Order Granting
Trustee's Motion for Civil Contempt and Sanctions Against
Debtor and Strategic Law Group, LLC for Failure to Comply
with Court's Order Compelling Turnover of Real Estate
(“Contempt Order”) (ECF No. 5-1, B.R. Doc. 380).
Currently pending before this Court are Appellee George W.
Liebmann, Chapter 7 Trustee's Motion to Dismiss Appeal
(“Appellee's Motion”) (ECF No. 5) and
Appellant's Brief (ECF No. 7).
Court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 158(a), as Smith-Scott's appeal arises from a
final order entered by the United States Bankruptcy Court for
the District of Maryland and is brought pursuant to Local
Rule 404(1)(a) (D. Md. 2014). Oral argument is deemed
unnecessary because the facts and legal arguments are
adequately presented in the briefs and record, and the
decisional process would not be significantly aided by oral
argument. See Fed. R. Bankr. P. 8019(b)(3); see
also Local Rule 105.6 (D. Md. 2014). For the reasons
stated below, Appellee's Motion to Dismiss (ECF No. 5) is
GRANTED and the Order of Bankruptcy Judge James F. Schneider
(ECF No. 5-1, B.R. Doc. 380) is AFFIRMED.
March 22, 2016, Bankruptcy Judge Schneider issued an Order
Compelling Debtor [Smith-Scott] and Strategic Law Group, LLC
and Debtor T/A Smith-Scott Property Management and
Development, Inc. to Turn Over Real Property and All
Possessory and Tenancy Interests in Real Property
(“Turn Over Order”) (ECF No. 5-2, B.R. Doc. 352).
Pursuant to the Turn Over Order, counsel for Appellee
attempted to enter a parcel of commercial property controlled
by Appellant and Strategic Law Group, LLC (“SLG”)
on April 12, 2016. See Appellant's Brief, ECF
No. 7 at 18-19. See also ECF No. 2-28 at 3-4.
Counsel for Appellee determined at that time that Appellant
and SLG had not complied with the Turn Over Order.
Id. Accordingly, Appellee filed a Motion for Civil
Contempt and Sanctions (“Contempt Motion”) (ECF
No. 2-28, B.R. Doc. 359). The Contempt Motion was granted on
May 17, 2016. (ECF No. 5-1, B.R. Doc 380.) Appellee filed a
Notice of Appellant's Non-Compliance with the Contempt
Order on May 19, 2016. (ECF No. 2-64, B.R. Doc. 381.)
Appellant noted her appeal from the Contempt Order on May 20,
2016. See Notice of Appeal, ECF No. 1.
appeal is brought pursuant to Rule 8001 of the Federal Rules
of Bankruptcy Procedure. On appeal from the United States
Bankruptcy Court, this Court acts as an appellate court and
reviews the Bankruptcy Court's findings of fact for clear
error and conclusions of law de novo. In re
Merry-Go-Round Enterprises, Inc., 400 F.3d 219, 224 (4th
Cir. 2005); In re Kielisch, 258 F.3d 315, 319 (4th
Cir. 2001). A factual finding is clearly erroneous
“when although there is evidence to support it, the
reviewing court on the entire evidence is left with a firm
and definite conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948). “Under the clearly erroneous
standard, if the bankruptcy court's factual findings are
plausible in light of the record viewed in its entirety, a
reviewing court may not reverse even if it would have weighed
the evidence differently.” In re Frushour, 433
F.3d 393, 406 (4th Cir. 2005) (internal citation omitted).
contempt is willful disobedience of a lawful order of a court
with competent jurisdiction over the subject matter. The
purpose of a civil contempt order is to coerce compliance
with the court's order or to compensate another party for
the violation.” 1 Norton Bankr. L. & Prac. 3d
§ 13:5. Bankruptcy courts in the Fourth Circuit are
empowered to punish civil contempt. In re Rood, DKC
09-0186, 2009 WL 3614851, at *2 (D. Md. Oct. 27, 2009);
In re Walters, 868 F.2d 665, 669-70 (4th Cir.1989).
Federal Rule of Bankruptcy Procedure 9020 simply provides
that motions for orders of contempt must be made in
accordance with Rule 9014, which requires that
“reasonable notice and opportunity for hearing shall be
afforded the party against whom relief is sought.”
case, Bankruptcy Judge Schneider complied with the procedural
requirements of Rule 9020, holding a hearing on
Appellee's Contempt Motion on May 16, 2016. See
Notice of Hearing on Contempt Motion, B.R. Doc. 369.
Appellant participated in this hearing and refers to
purported hearing testimony in her Brief. (ECF No. 7 at
now argues that because Appellee's representations in the
Contempt Motion and at the hearing “amount to
perjury, ” the Contempt Order should not be upheld.
(ECF No. 7 at 32-42.) Appellant cites no facts which would
support her contentions, but appears to rely upon the sheer
audacity of her allegations. Absent any documented evidence of
the alleged false statements,  the Court does not find that the
Bankruptcy Court's determination that Appellant had
failed to comply with the Turn Over Order was clearly
erroneous. The Court also finds that the Bankruptcy
Court's legal conclusions were sound, as (1) the power to
order contempt sanctions is within the Bankruptcy Court's
powers and (2) Appellant failed to comply with the Bankruptcy
Court's Turn Over Order. See ECF No. 2-28, B.R.
also argues that Judge Schneider's warning to Appellant
that failure to comply with the Turn Over Order could result
in her incarceration violated the Eighth Amendment's
prohibition on “cruel and unusual punishments.”
U.S. Const. Amend. VIII. (ECF No. 7 at 54-56.) To be clear:
Appellant has not been incarcerated in conjunction with this
case, and her Brief does not allege that she was. Rather,
Appellant argues that Judge Schneider violated her Eighth
Amendment rights by stating during the hearing on the
Contempt Motion: “Do you understand that you are going
to be asked, not asked, told to vacate the premises? And that
if you don't do that, you're going to be subject to
sanctions, and those sanctions might include incarceration.
Do you understand that?” (Id. at 55.) As the
threatened action has not been imposed, Appellant's claim
that her Eighth Amendment rights have been violated is
balance of Appellant's Brief addresses matters which are
beyond the scope of this Court's review of the Contempt
Order. First, Appellant seeks to re-litigate matters
pertaining to the core bankruptcy proceeding which have
already been resolved and which ultimately gave rise to the
Turn Over Order. (ECF No. 7 at 27-32, 43-51.) Even if the
issues giving rise to the Turn Over Order were before the
Court at this procedural posture, Appellant's argument is
unpersuasive for the reasons previously set forth in
Smith-Scott v. Patapsco Bank, RDB-15-1013, 2015 WL
5921028 (D. Md. Oct. 8, 2015), Smith-Scott v.
Liebmann, RDB-15-3637, 2016 WL 1084127 (D. Md. Mar. 18,
2016), and Smith-Scott v. Howard Bank, RDB-15-3423,
2016 WL 1077126 (D. Md. Mar. 18, 2016), aff'd in
part, appeal dismissed in part sub nom. ARLENE A.
SMITH-SCOTT, Debtor - Appellant, v. HOWARD BANK;
U.S. BANK NATIONAL ASSOCIATION; GEORGE W. LIEBMANN, TRUSTEE,
Defendants - Appellees, No. 16-1325, 2016 WL 4174380
(4th Cir. Aug. 8, 2016).
addition, Appellant argues that Bankruptcy Judge Schneider
should have disqualified himself from the case. (ECF No. 7 at
52-53.) Appellant cites no action or conflict which would
warrant judicial disqualification-indeed, she alleges no
facts involving Judge Schneider at all-but, again, relies
only upon the audacity of her ...