Jeanne A. Duvall

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
JEANNE A. DUVALL,
Debtor.
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Case No. 04-01519
(Chapter 7)
DECISION RE DEBTOR'S MOTION TO SHOW CAUSE
AND REQUEST FOR SANCTIONS FOR FAILURE TO COMPLY
WITH MAY 19, 2006 ORDER TO PAY ATTORNEY’S FEES
This decision addresses the debtor’s Motion to Show Cause,
in which she requests sanctions for the failure of Sharon Watts,
Kevin Bumbray, and their attorney, Jonathan S. Shurberg, to
comply with this court's order of May 19, 2006 (DE No. 56). 	That
order directed “that Sharon B. Watts and Kevin Bumbray pay
$375.00 to Mr. Goldberg within fourteen (14) days of the entry of
this order.” 	The order was entered pursuant to an earlier order
that directed that:
due solely to the failure of counsel for Ms. Watts and Mr.
Bumbray to appear or file a motion for continuance in a
timely manner (for which failure counsel should recompense
his clients), the claimants Sharon B. Watts and Kevin
Bumbray pay reasonable attorneys’ fees and costs for work
performed and costs incurred by Joseph M. Goldberg,
Esq. . . . in preparation for the hearing scheduled for
April 27, 2006, that will require duplication in preparation
The decision below is signed as a decision of
the court.
Signed: January 08, 2007.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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for the continued hearing[.]
(DE No. 49 at pages 1-2, signed April 27, 2006). 	The order was
entered in lieu of barring Ms. Watts and Mr. Bumbray from
defending against the debtor’s objection to their proofs of
claims, and was intended to prevent the debtor from having to pay
their attorney for having to prepare twice for the same hearing.
See Thorpe v. Thorpe, 364 F.2d 692, 694 (D.C. Cir. 1966)
(observing that a trial court, as a condition to vacating a
default judgment, may require that the defendant reimburse the
plaintiff for attorney's fees and costs incurred because of the
default).
Because Ms. Watts and Mr. Bumbray failed to comply with the
order to pay $375.00, the debtor seeks in her unopposed motion to
have sanctions imposed against them and their attorney, Mr.
Shurberg. 	The debtor’s attorney has spent an additional two
hours pursuing collection of the $375.00. 	At the rate of $250.00
per hour, those additional two hours represent an additional
$500.00 expense, resulting in a total of $875.00 in attorney’s
fees that the debtor has incurred in her efforts to be made whole
for attorney work occasioned by Ms. Watts and Mr. Bumbray’s
failure to be prepared to go forward at the April 27, 2006
hearing (due to their attorney’s not being prepared to go
forward), and by their failure timely to remit the $375.00
originally required to be paid to make the debtor whole.
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Although the $375.00 award was directed against Ms. Watts
and Mr. Bumbray, as they were the parties seeking to have a
failure to prosecute excused, the court’s initial decision made
clear that Mr. Shurberg was obligated to reimburse Ms. Watts and
Mr. Bumbray (because it was Mr. Shurberg who caused his clients,
Ms. Watts and Mr. Bumbray, to be unprepared to go forward). 	The
court is simply astounded that Mr. Shurberg has not dipped into
his own pocket immediately to make the required payment on his
clients’ behalf. 	Now insult (an additional $500.00 in debtor-
incurred-fees) has been added to injury (the initial $375.00
award), without a peep from Mr. Shurberg on his clients’ behalf
as to why the payment was not made.
The debtor’s motion appears to seek contempt sanctions.
However, the $375.00 award of attorney’s fees should arguably be
construed as a monetary damages award and not as an injunction,
and contempt is ordinarily an inappropriate vehicle for
collecting a monetary award. 	See Patterson v. America’s Voice,
Inc. (In re America’s Voice, Inc.), 2000 WL 33529764 (Bankr.
D.D.C., Oct. 4, 2000). 	Nevertheless, payment of the award was
intended to be a condition to Ms. Watts and Mr. Bumbray’s
continued pursuit of their claims (analogous to the conditional
vacating of a default judgment as in Thorpe). 	That distinguishes
it from the typical monetary award, and the court had inherent
authority to require payment of the additional $500.00 in
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1 	The motion was filed prior to entry of the order that is
on appeal. 	Even if the motion had been cast as seeking to bar
pursuit of the claims, it cannot be treated as a motion under
Rule 59 to alter or amend the order allowing the claims of Ms.
Watts and Mr. Bumbray, a type of order that would have rendered
any appeal ineffective pending the court’s disposing of the
motion.
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attorney’s fees the debtor incurred as the price for Ms. Watts
and Mr. Bumbray having been allowed to pursue their claims. 	Ms.
Watts and Mr. Bumbray continued to prosecute their claims, but
failed to make the debtor whole by complying with the court’s May
19, 2006 order, and put the debtor to the additional expense of
$500.00 in fees in pursuing the $375.00. 	Accordingly, the
measure for making the debtor whole stood at $875.00 when the
instant motion was filed in contrast to the $375.00 fee that was
initially imposed.
Indeed, the court could have barred pursuit of the claims
until the $875.00 was paid. 	Unfortunately, the debtor did not
request this court to bar pursuit of the claims before the court
issued a final order upholding the claims. 	Even if it had, I am
without power at this juncture to alter the order upholding the
claims of Ms. Watts and Mr. Bumbray, as that order is currently
on appeal. 	When an appeal has been taken, the trial court loses
the power to grant relief that would alter or affect the order on
appeal. 	See Main Line Fed. Sav. & Loan Ass’n v. Tri-Kell, Inc.,
721 F.2d 904, 906-07 (3d Cir. 1983). 1 	Had I appreciated that the
motion currently before the court related to an order
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conditioning the claimants’ right to pursue their claims, and had
the debtor requested that the claims be disallowed unless the
additional $500 in fees and the original $375 in fees were
promptly paid, I would have addressed it prior to issuing the
final order, and would have directed that an order allowing the
claims would be entered only if Ms. Watts and Mr. Bumbray paid
within five days the $875.00 now necessary to make the debtor
whole.
If the motion had sought to bar pursuit of the claims, the
district court could authorize this court to act on the instant
motion in a fashion that would alter or affect the order
currently on appeal. 	See Smith v. Pollin, 194 F.2d 349, 350
(D.C. Cir. 1952). 	However, it must be emphasized that the debtor
did not seek to disallow the claims if the $375.00 in fees and
the additional $500.00 in fees pursuing payment of that $375.00
were not paid. 	For that reason, I do not believe it appropriate
to advise the district court that if the district court gave me
permission to do so I would, pursuant to the instant motion,
vacate the order allowing the claims of Ms. Watts and Mr. Bumbray
unless they paid the debtor $875.00, within, say, five days. 	The
motion simply did not request barring pursuit of the claims. 	To
engage in the Smith v. Pollin procedure would unduly complicate
the pending appeal and ultimate resolution of the allowance (or
disallowance) of the claims of Ms. Watts and Mr. Bumbray when the
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debtor waived insisting on payment of her fees as a condition to
this court’s proceeding to rule on the claims.
Nevertheless, Ms. Watts and Mr. Bumbray did not oppose the
debtor’s motion, and can be taken as conceding that it is
appropriate to increase the amount they owe the debtor to $875.00
as the price for their having been allowed to pursue their
claims. 	That seems to me to be the fairest and simplest way to
handle the matter. 	The debtor has lost the ability to force
payment of the fees she incurred via conditioning pursuit of the
claims of Ms. Watts and Mr. Bumbray on payment of the fees
(because she failed to ask this court to bar pursuit of the
claims prior to this court’s issuing a final order allowing the
claims). 	But that does not mean that Ms. Watts and Mr. Bumbray
ought to be allowed to not pay the $375.00 and to force the
debtor to incur fees pursuing that $375.00. 	Now that they have
had their claims allowed, it is only fair that they pay the price
of having been allowed to get to that point. 	Specifically, it is
only fair that Ms. Watts and Mr. Bumbray make the debtor whole by
paying the $875.00 in fees that can be traced as attributable to
their being unprepared to go forward on their claims: the $375.00
in fees the debtor unnecessarily incurred because they were
unprepared, and the $500 in additional fees incurred in pursuit
of that $375.00 when it was not timely paid.
Ms. Watts and Mr. Bumbray, and their counsel, Mr. Shurberg
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2 The debtor may incur additional fees in pursuing
collection of the $875.00. 	Ms. Watts and Mr. Bumbray have it in
their power to relieve the debtor of the burden of pursuing
collection (by paying the $875.00 now). 	I will stay my order for
10 days (if it is not automatically so stayed) to give Ms. Watts
and Mr. Bumbray that opportunity.
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(who faces a potential malpractice claim by his clients) have not
opposed the debtor’s motion. 	They may be well advised to
promptly pay the $875.00 to prevent any further damages being
incurred by the debtor that can be traced back to Ms. Watts and
Mr. Bumbray’s failure to be prepared to go forward at the April
27, 2006 hearing. 2
An order follows decreeing that (1) the debtor is free to
pursue collection of the $375.00 as a monetary judgment, with
interest from the date of entry of the order that fixed the
$375.00 award; (2) the debtor is entitled to recover an
additional $500.00 in fees, together with interest from the date
of entry of the order disposing of the instant motion; (3) in
pursuit of collection of these monetary judgments, the debtor is
free to serve a writ of execution on the chapter 7 trustee with
respect to any distribution that becomes payable to Ms. Watts and
Mr. Bumbray as creditors from the chapter 7 estate; and (4) the
motion is otherwise denied with leave to file a motion for an
award of any future attorney’s fees and expenses incurred in
pursuing collection of the $875.00 in fees incurred to date.
[Signed and dated above.]
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8	O:\Judge Temp Docs\Duvall Decision re Motion to Show Cause Non-Pay of Goldberg Fees5 .wpd
Copies to: Debtor; Debtor’s Attorneys; Jonathan S. Shurberg;
Kevin R. McCarthy; Office of U.S. Trustee; Sharon Watts; Kevin
Bumbray.
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