Opinion
Case No. 6:23-bk-00905-TPG
2023-10-30
IN RE: Sinem H. ARIMAN, Debtor.
Wayne B. Spivak, Attorneys Justin Clark & Associates PLLC, Maitland, FL, for Debtor.
Wayne B. Spivak, Attorneys Justin Clark & Associates PLLC, Maitland, FL, for Debtor. ORDER DENYING MOTION FOR RELIEF FROM ORDER , REQUESTING TRIAL, AND FOR REHEARING OF THE ORDER GRANTING MOTION TO REDEEM WINDOWS Tiffany P. Geyer, United States Bankruptcy Judge
THIS CASE comes on for consideration upon the "Motion by Quantam3 Group, LLC, as Agent of Aqua Finance, Inc. for Relief from Order, Motion Requesting Trial, and Motion for Rehearing of the Court's Order Granting Motion to Redeem Windows as Tangible Personal Property Pursuant to 11 U.S.C. § 722" (the "Motion for Rehearing"), filed on September 6, 2023. (Doc. No. 40.) On August 25, 2023, the Court entered an amended order (the "Order") (Doc. No. 36) granting the Debtor's "Motion to Redeem Personal Property Per 11 U.S.C. § 722" (the "Motion to Redeem") (Doc. No. 10). The Court concluded that the Debtor could redeem windows installed in the Debtor's home pursuant to § 722, finding that the parties agreed to treat the windows as tangible personal property rather than as fixtures in the Retail Installment Contract & Security Agreement (the "Contract") (Doc. No. 36 at 3-11) supplied by the Creditor (Doc. No. 14-1). For the reasons set forth below, the Motion for Rehearing is denied.
Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all "Rule" references are to the Federal Rules of Bankruptcy Procedure, and all "Civil Rule" references are to the Federal Rules of Civil Procedure.
In the Motion for Rehearing, Quantam3 Group, LLC, as Agent of Aqua Finance, Inc. (the "Creditor") requests either (i) relief from the Order or (ii) a rehearing or new trial. (Doc. No. 40 at 10.) The former request is brought under Rule 9024, specifically Civil Rule 60(a), (b)(2), and (b)(6), and the latter request is brought under Rule 9023, specifically Civil Rule 59. As explained below, these rules provide no basis for relief.
The Creditor did not request relief under Civil Rule 60(b)(1), which may be used to grant relief from an order for "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1).
Regarding relief from an order, Civil Rule 60(a) authorizes a court to "correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record." Fed. R. Civ. P. 60(a). The rule is used to correct a mistake that does not reflect the court's judgment, and it cannot be used to correct errors of law or that affect substantial rights of the parties. Stansell v. Lopez, 40 F.4th 1308, 1312 (11th Cir. 2022) (quoting Mullins v. Nickel Plate Mining Co., 691 F.2d 971, 973 (11th Cir. 1982)) (" 'Errors that affect substantial rights of the parties . . . are beyond the scope of [Civil R]ule 60(a).' "). "[W]here the judgment as written reflects the intent of the court, [Civil] Rule 60(a) does not permit correction of an error of law." Id. In the Motion for Rehearing, the Creditor disagrees with the Court's Order and believes the Court erred as a matter of law. (Doc. No. 40 ¶¶ 14-30.) But the Order clearly reflects the Court's judgment, and altering the Order in the manner sought would affect the substantial rights of the parties. Thus, Civil Rule 60(a) supplies no basis for relief.
The Creditor next relies on Civil Rule 60(b)(2) which states that relief from an order may be granted if there is "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) . . . ." Fed. R. Civ. P. 60(b)(2). The Creditor fails to note any newly discovered evidence that would merit a different result, so subsection (b)(2) likewise provides no basis for relief from the Order.
The last subsection in Civil Rule 60 relied upon by the Creditor, subsection (b)(6), states that the court may grant relief from an order for "any other reason that justifies relief." Relief under Civil Rule 60(b)(6) requires extraordinary circumstances; disagreeing with the Court does not suffice. Cuffy v. Sec'y, Dep't of Corr., No. 18-62463-CIV, 2023 WL 5487500, at *1 (S.D. Fla. July 5, 2023). Here, as demonstrated below, the Creditor simply disagrees with the Court's conclusion. Thus, the Creditor states no extraordinary circumstances justifying relief from the Order under Rule 9024 and Civil Rule 60. Additionally, " '[a] motion for reconsideration cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.' " McConico v. Top Golf Int'l Inc., No. 22-11954, 2023 WL 3035381, at *1 (11th Cir. Apr. 21, 2023) (quoting Cummings v. Dep't of Corr., 757 F.3d 1228, 1234 (11th Cir. 2014)). Because the Creditor's arguments do just that, Civil Rule 60(a), (b)(2), and (b)(6) are unavailing.
Even if Civil Rule 60 provided a basis for relief from the Order, the Creditor's arguments lack merit. First, the Creditor argues that the Court incorrectly applied one prong of the test in determining whether the Debtor intended the windows to be goods or fixtures, insofar as the Court truncated or omitted certain language used by the Florida Supreme Court in Commercial Finance Co. vs. Brooksville Hotel Co., 98 Fla. 410, 123 So. 814 (1929) to determine the Debtor's intent. (Doc. No. 40 ¶¶ 14-19.) Specifically, this Court recited the test as being "the intention of the party who annexed the chattel to the realty" and the Creditor argues that the Court should instead have considered "the intention of the party making the annexation that it shall be a permanent accession to the freehold," inferring the intent of the annexation by reference to certain facts (id. ¶ 17) which the Creditor maintains would demonstrate that the Debtor intended the windows to be a permanent accession. But the omitted language does not merit a different conclusion because the Court ultimately relied upon the Contract— supplied by the Creditor with no argument that the Contract was ambiguous— to determine the Debtor's intent. In re Ariman, 653 B.R. 685, 690 (Bankr. M.D. Fla. 2023) ("Here, the parties expressed their intention to treat the windows as goods, and not fixtures, in clear contractual terms.").
Second, the Creditor argues that the Court erred in relying on the Contract to determine the Debtor's intent (Doc. No. 40 ¶¶ 23-27), claiming that describing the windows as goods in the Contract does not sufficiently demonstrate an intent to treat the windows as goods because fixtures, by definition, start out as goods. In addition, the Creditor argues that the reference to repossession in the Contract is merely boilerplate language, and that the phrase in the Contract that the Debtor will not permit the windows to become "fixtures to other property" means only that the Debtor is not permitted to allow the windows to become fixtures to property other than the Debtor's residence. (Id.) But the Creditor's arguments are just other ways to interpret the Contract, and the Creditor fails to demonstrate why its interpretation is more accurate than the Court's interpretation. At best, the Creditor's interpretation may point to an ambiguity as to whether the parties intended the windows to become fixtures, but contractual ambiguities are construed against the drafter. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62, 115 S. Ct. 1212, 1219, 131 L.Ed. 2d 76 (1995) (under the "common-law rule of contract interpretation" . . . "a court should construe ambiguous language against the interest of the party that drafted it."). Here, the Court determined the language was clear, and that when a dispute arises "between the original parties to a financing contract or their assigns, then the chattel is what the parties agreed it to be in the contract." In re Ariman, 653 B.R. at 692. And the Contract expressly states that it, together with any accompanying documents, represents the "entire agreement between the parties and there are no other prior or contemporaneous oral or written agreements or representations on which either party is relying." (Doc. No. 14-1 at 2 ¶ J.)
Third, the Creditor relies on two cases in which bankruptcy courts concluded that windows are fixtures, but neither case involved a dispute on this issue, much less a dispute regarding whether windows constitute goods or fixtures for the purposes of redemption under § 722. In In re Castillo, No. 19-20156-PDR, Doc. No. 37 at 1 (Bankr. S.D. Fla. Jan. 21, 2020), the court found that the parties agreed that windows were fixtures: "The Response agrees with the Motion in part, indicating that Aqua Finance also believes that the windows have become a fixture to the Debtor's real property." In In re Ojeda, No. 9:19-BK-06611-FMD, 2020 WL 5746801, at *3 (Bankr. M.D. Fla. June 1, 2020), the Court simply relied on Castillo to conclude windows were fixtures, but the issue in Ojeda was whether an inground pool was a good or a fixture, and the Court held that it was neither. And as the Creditor notes, in Ojeda, the court observed that "windows are . . . movable and meet the definition of 'goods' under § 679.1021(1)(rr)." As such, neither Castillo nor Ojeda support relief from the Order.
Regarding the Creditor's request for a new trial or rehearing under Rule 9023, which incorporates Civil Rule 59 (Doc. No. 40 at 9), Civil Rule 59(a)(1) gives the court discretion to "grant a new trial on all or some of the issues—and to any party—as follows: . . . (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court." But Civil Rule 59 only applies if there was a trial, which here there was not. Guthrie v. Wells Fargo Home Mortg. NA, 706 F. App'x 975, 976 (11th Cir. 2017) (holding that the district court did not abuse its discretion in denying a motion for new trial under Civil Rule 59 because there was no trial: "The Federal Rules of Civil Procedure only permit a grant of a new trial if there was a trial in the first place—jury or nonjury.").
In the Eleventh Circuit, "Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority." 11th Cir. R. 36-2.
On the merits of the request for a new trial, the Creditor argues that the Court determined the parties' intent without a hearing and asks for a hearing on valuation and to address whether the fixture filing should be canceled because it mentions both doors and windows. (Doc. No. 40 ¶¶ 31-33.) A party "cannot use a Rule 59(e) motion to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). The Court has already discussed its conclusion regarding its determination of the parties' intent herein, and in the Order the Court determined the Creditor waived any argument on valuation by failing to raise it previously. In re Ariman, 653 B.R. at 692 (citing 625 Fusion, LLC v. City of Fort Lauderdale, 526 F. Supp. 3d 1253, 1261 n.3 (S.D. Fla. 2021)) ("[B]ecause Quantum3 did not object to the Debtor's proposed fair market valuation of the collateral at $500, Quantum3 waived any argument for a different or higher valuation.").
Finally, regarding the Creditor's question about whether the fixture filing should be canceled since it mentions both doors and windows, the answer is yes. As the Court noted in the Order, the Contract described the goods as "WINDOWS/DOORS," but the redemption request was limited to windows. In re Ariman, 653 B.R. at 692 n.3. The Debtor did not seek to redeem any doors, and the Creditor does not argue it supplied any doors to the Debtor. Based upon the use of the virgule (a/k/a forward slash) to separate windows from doors in the Contract and in the financing statement and the lack of any argument by the Creditor that it supplied the Debtor with doors in addition to windows, the Court concludes the Creditor only supplied windows. Knous v. United States, 683 F. App'x 859, 863-64 (11th Cir. 2017) (citing Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 72 n.5 (2d Cir. 2014) (Raggi, Cir. J., concurring in part) (citing Webster's New World Dictionary (3d ed. 1986) to note that a "virgule" indicates that either word separated by the symbol is applicable) (district court did not err in interpreting a forward slash to mean "or," noting that "[c]ourts have repeatedly recognized that a slash, solidus, or virgule is used to separate alternatives."); Heritage Bank v. Redcom Labs., Inc., 250 F.3d 319, 326 & n.6 (5th Cir. 2001) (citing the American Heritage Dictionary of the English Language 1922 (4th ed. 2000) definition of "virgule" as a mark used to separate alternatives); Dynalectron Corp. v. Equitable Trust Co., 704 F.2d 737, 739 & n.3 (4th Cir. 1983) (noting that a Georgia appellate court relied on the Webster's New International Dictionary definition of "virgule" to declare that the symbol "connotes the disjunctive or the alternative").
Because the Creditor cites no persuasive grounds supporting the Motion for Rehearing and fails to demonstrate any evidence that was not available prior to entry of the Order, the Motion for Rehearing is denied.
Accordingly, it is ORDERED that the Motion for Rehearing (Doc. No. 40) is DENIED.
ORDERED.