Kevin E. Potter, et al. v. Robert Altman

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11645
Non-Argument Calendar
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D.C. Docket Nos. 5:13-cv-00293-WTH; 3:09-bkc-01080-JAF
KEVIN E. POTTER,
MARGUERITE POTTER,
DELMARVA ENTERPRISES,
Plaintiffs - Appellants,
versus
ROBERT ALTMAN,
as Chapter 7 Trustee,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 12, 2016)
Before HULL, MARCUS, and JORDAN, Circuit Judges.
PER CURIAM:
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Marguerite Potter, her son Kevin Potter, and her business (Delmarva
Enterprises), proceeding pro se, appeal the district court’s order affirming the
bankruptcy court’s denial of a motion for a new trial in an adversary proceeding,
where they were enjoined from suing the Trustee of Kevin Potter’s bankruptcy
estate without leave of court. Additionally, the Potters assert several claims of
error, primarily arising from the Trustee’s actions in evicting them from a New
Jersey property.
All of the appellants’ claims, except for their challenge to the permanent
injunction, are waived, unjusticiable, or improperly presented.1 As for the
permanent injunction, the bankruptcy court did not abuse its discretion because
that injunction was clearly authorized under Barton v. Barbour, 104 U.S. 126
(1881).
In February of 2009, Kevin Potter filed a petition for bankruptcy under
Chapter 7 of the Bankruptcy Code. That petition listed a mailing address in Silver
Springs, Florida. The bankruptcy court appointed Robert Altman as the Chapter 7
Trustee, and Mr. Altman filed an adversary proceeding to set aside, as fraudulent,
the pre-petition transfer of Mr. Potter’s real estate in New Jersey to his mother and
1 Ms. Potter’s arguments that the Trustee committed fraud on the court, that the Trustee
lacked standing under Barton because he was not the Trustee in her Chapter 13 bankruptcy
petition, and that the bankruptcy court could not enter a final judgment on a state law
counterclaim were raised for the first time on appeal and in the exercise of our discretion we do
not address them. See KMS Restaurant Corp. v. Wendy’s Int’l, Inc., 361 F.3d 1321, 1328 n 4
(11th Cir. 2004).
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her company. In March of 2010, the bankruptcy court granted the Trustee’s
request and entered judgment voiding the transfer of the property, ruling that Ms.
Potter and her company no longer owned an interest in the property, which now
belonged to the bankruptcy estate (to be administered by the Trustee). Ms. Potter
and Delmarva filed a motion to set aside the default, and the bankruptcy court
denied that motion. Ms. Potter and Delmarva then appealed that order to the
district court, but that appeal was dismissed for failure to prosecute.
In March of 2011, the Trustee filed a notice of intent to sell Mr. Potter’s
former New Jersey home as part of the bankruptcy estate. Ms. Potter objected as a
creditor to the sale. Mr. Potter, as the debtor, also filed objections to the sale of the
property. The bankruptcy court entered an order requiring the Potters to vacate the
New Jersey property. The bankruptcy court noted that because neither Ms. Potter
nor Delmarva had any enforceable claims against the bankruptcy estate, and the
New Jersey home constituted property of the bankruptcy estate, neither Mr. Potter
nor Ms. Potter had any right to continue occupying the property.
In November of 2011, the bankruptcy court ordered the Potters to remove all
personal property from their former home in New Jersey, within a time period
beginning on November 28, 2011 at 9 a.m., and ending on November 29, 2011, at
5 p.m. The bankruptcy court prohibited the Potters from entering the property
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except during that time period. Additionally, the court ruled that any property not
removed would be deemed abandoned.
In April of 2013, the bankruptcy court entered a final summary judgment
permanently enjoining the Potters and Delmarva from continuing with any
litigation against the Trustee, his attorneys, or any officer of the court without the
prior consent of the court. One month later, the bankruptcy court entered three
orders: (1) an order overruling Mr. Potter’s objection to the closing of the
bankruptcy estate; (2) an order overruling Mr. Potter’s objection to the Trustee’s
final report; and (3) an order denying a motion for a new trial in the adversary
proceeding in which it had enjoined the Potters and Delmarva from instituting suits
against the Trustee without prior consent of the court. The Potters and Delmarva
appealed to the district court, and the district court affirmed the orders of the
bankruptcy court. The Potters and Delmarva now appeal.
The Potters and Delmarva argue that the district court failed to conduct a de
novo review, concealed the “outrageous wrongdoings” of the Trustee, and failed to
dismiss the case. Because the bankruptcy court did not abuse its discretion in
granting a permanent injunction prohibiting the appellants from suing the Trustee
without leave from the bankruptcy court, we affirm.
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As an initial matter, we dismiss the appeal by Delmarva. It is well-settled
that a corporate entity must appear and litigate through counsel, and cannot
proceed pro se. See Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir.
1985).
We review a district court’s decision to grant or deny a permanent injunction
for an abuse of discretion. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006). The Supreme Court has held that before suit is brought against a receiver,
the general rule is that leave of the court that appointed him must be obtained. See
Barton v. Barbour, 104 U.S. 126, 127 (1991). We have extended the Barton
doctrine to bankruptcy trustees. See Carter v. Rodgers, 220 F.3d 1249, 1252-53
(11th Cir. 2000). The bankruptcy court did not abuse its discretion in permanently
enjoining Ms. Potter and Delmarva from suing the Trustee without first obtaining
the court’s permission. This injunction was authorized under the Barton doctrine.
See Id.
We dismiss Delmarva’s appeal and affirm the district court’s affirmance of
the bankruptcy court’s entry of an injunction and order denying the motion for a
new trial.2
DISMISSED IN PART AND AFFIRMED IN PART.
2 As to the other arguments presented by the Potters, we affirm without further
discussion.
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