Opinion
Attorney for Plaintiff: Attorney for Defendant: Pamela Kleinkauf, Esq. Bill Parks, Esq.
ORDER AFTER LIMITED REMAND
PETER W. BOWIE, Chief Judge
Remand to a trial court of its decision in a case, asking the trial court to certify "that the appeal is not frivolous (but presents a substantial question)" sometimes puts the trial judge in an awkward position. This is one of those times.
The debtor's notice of appeal gives no hint of the issues she wants to pursue on appeal. The central issue in the case before this Court was a legal one, concerning whether the nature of the state court judgment award of attorneys fees and costs, without some underlying injury, could constitute an injury for purpose of 11 U.S.C. § 523(a)(6), all as set out in the Court's Memorandum Decision. The facts were not in real dispute because they had already been determined by the state court. The issue for this Court, in the broader sense, was whether the findings made by the state court supported a finding of nondischargeability.
From this Court's perspective, the legal issue may or may not involve "a substantial question". However, the Court does not see how a transcript of the trial itself would aid the appellate court in its review of the appeal. The Court did not announce any findings orally in court. Moreover, the Court received written argument from counsel for both sides after the evidentiary part of the brief trial was concluded.
Accordingly, the debtor shall have ten (10) days from the date of entry of this order within which to move this Court for reconsideration of this Order. If debtor does so move timely, such motion shall set out with specificity how a copy of the trial transcript will assist in prosecuting the appeal in this case. The Court will review such motion if timely filed and will issue such further orders as it determines are appropriate on the record.
IT IS SO ORDERED.
CERTIFICATE OF MAILING
The undersigned, a regularly appointed and qualified clerk in the office of the United States Bankruptcy Court for the Southern District of California, at San Diego, hereby certifies that a true copy of the attached document, to wit:
ORDER AFTER LIMITED REMAND
was enclosed in a sealed envelope bearing the lawful frank of the Bankruptcy Judges and mailed to each of the parties at their respective address listed below:
Said envelope (s) containing such document were deposited by me in a regular United States mail box in the City of San Diego, in said district on January 23, 2007.
Barbara J. Kelly, Judical Assistant