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McGuire v. Champion Fence & Construction11/4/2004
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Marquez and Kapelke, JJ., concur
In this appeal concerning the automatic stay during bankruptcy proceedings, plaintiff, Charlotte M. McGuire, appeals the trial court's order denying her motion to amend the judgment dismissing her personal injury action against defendant, Champion Fence & Construction, Inc. We reverse and remand with directions.
Plaintiff was injured when a fence gate came off its tracks and pinned her to the ground. She brought suit against defendant and a third party.
Plaintiff reached a settlement with the third party and they prepared a stipulation of dismissal and a proposed order. Although the stipulation of dismissal indicated that it only involved plaintiff and the third party, the proposed order provided: "This action is dismissed with prejudice, each party to pay its own fees and costs."
The stipulation and proposed order were filed with the trial court on August 23, 2002. On the same day, defendant notified plaintiff and the court that it had filed a bankruptcy petition on April 4, 2002. The trial court signed the order of dismissal on August 27, 2002.
Defendant's bankruptcy action was closed on December 30, 2002. On March 13, 2003, plaintiff filed a motion to amend the August 27, 2002, order to reinstate defendant as a party in the action, alleging that the stipulation of dismissal of claims against defendant was a mistake.
The trial court denied plaintiff's motion, finding that it was untimely because plaintiff had waited more than six months to file it. The court also noted that although it had "wide latitude" to extend the fifteen-day deadline in C.R.C.P. 59(a) to file a motion to amend a judgment, it would not exercise that discretion because (1) plaintiff stipulated to the dismissal; and (2) plaintiff's motion was filed more than six months after the stipulated dismissal, which was far beyond the fifteen-day deadline in C.R.C.P. 59(a).
Plaintiff filed a motion arguing that under C.R.C.P. 60, the trial court may set aside a judgment based on mistake, inadvertence, surprise, excusable neglect, fraud, and any other reason the court deems just. Plaintiff also argued that any judgment entered as to defendant was void because it violated 11 U.S.C. § 362, the automatic stay provision of the Bankruptcy Code.
The trial court denied plaintiff's motion as untimely and unduly prejudicial to defendant.
I.
Initially, we address defendant's contentions (1) that the appeal must be dismissed as moot because plaintiff's claims against it were discharged in bankruptcy and because it no longer exists as a corporate entity and (2) that the appeal is untimely. We are not persuaded.
Nothing in the record indicates that the bankruptcy court discharged plaintiff's claims. Further, liquidating corporations are generally not entitled to a discharge. See 11 U.S.C. §§ 727(a)(1), 1141(d)(3); In re E & J Underground, Inc., 98 B.R. 580, 581 (Bankr. M.D. Fla. 1989)("concept of dischargeability is not an element of corporate reorganization"). Thus, the mere closure of the bankruptcy estate does not demonstrate that plaintiff's claims were discharged or are otherwise moot. The record does not support defendant's assertion that it has been dissolved and is no longer a viable entity.
We conclude in the following section that the motion was properly brought under C.R.C.P. 60(b)(3). Because the notice of appeal was filed within forty-five days of the trial court's order denying relief to plaintiff, we also conclude that the appeal is timely.
II.
Plaintiff
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