Dillon v. Texas Commission on Environmental Quality (In Re Dillon)

United States Court of Appeals

Fifth Circuit

F I L E D

In the May 23, 2005

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

_______________

m 04-41307

Summary Calendar

_______________

IN THE MATTER OF:

SAM DILLON,

Debtor.

SAM DILLON AND PAM DILLON,

Appellants,

VERSUS

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND MICHAEL GROSS,

Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

m 9:04-CV-92-RHC

m 9:04-CV-93-RHC

m 9:04-CV-94-RHC

m 9:04-CV-95-RHC

______________________________

Before DAVIS, SMITH, and DENNIS, tingent, liquidated, unsecured debt that a

Circuit Judges. debtor may have to receive relief under chap-

ter 13, see 11 U.S.C. § 109(e)), the court de-

JERRY E. SMITH, Circuit Judge:* nied confirmation of the Dillons’ chapter 13

plan, denied their motions for a hardship dis-

Pro se appellants Sam and Pam Dillon ap- charge pursuant to 11 U.S.C. § 1328(b), and

peal the district court’s order that affirmed the dismissed their chapter 13 case without preju-

bankruptcy court’s finding that they are ineli- dice. The district court affirmed the bank-

gible for relief under chapter 13 of the Bank- ruptcy court’s rulings.

ruptcy Code. Finding no error, we affirm.

II.

I. We review the bankruptcy court’s factual

Sam Dillon and his wife filed for chapter 13 findings for clear error and its legal conclu-

bankruptcy about three years after Dillon had sions de novo. See Lambert v. Miss. State Tax

received a chapter 7 discharge. The Texas Comm’n, 179 F.3d 281, 284 (5th Cir. 1999).

Commission on Environmental Quality Findings of fact are clearly erroneous if we

(“TCEQ”)SSthe Texas state agency charged have a definite and firm conviction that a mis-

with enforcing environmental lawsSSfiled a take has been made. See Mabey v. Southwest-

timely claim against Dillon in connection with ern Elec. Power Co., 150 F.3d 503, 513 (5th

the chapter 13 filing for governmental fines, Cir. 1998). “Strict application of the clearly

penalties, and other liabilities arising from al- erroneous rule is particularly important whe[n]

leged unlawful operation of public water utili- the district court has affirmed the bankruptcy

ties. The Dillons objected to TCEQ’s initial court’s findings.” Coston v. Bank of Malvern,

claim, asserting that they should not be fined 987 F.2d 1096, 1099 (5th Cir. 1992).

for periods before or during the pendency of

their chapter 7 proceeding. TCEQ amended The Dillons are pro se, so their briefs are

its claim to assert an unsecured interest in liberally construed and not held to the standard

$337,000 in fines and penalties only for unla- of exactitude expected of briefs by attorneys.

wful operation allegedly conducted between See, e.g., Amin v. Universal Life Ins. Co., 706

the dates of the chapter 7 discharge and the F.2d 638, 640 n.1 (5th Cir. 1983). But, “pro

chapter 13 filing. se litigants have no general immunity from the

rule that issues and arguments not briefed on

The bankruptcy court denied the Dillons’ appeal are abandoned.” Geiger v. Jowers,

objection to TCEQ’s amended claim, finding 2005 U.S. App. LEXIS 4572, at *4 n. 6 (5th

that the debtor had continued to operate the Cir. Mar. 21, 2005).

water systems after the chapter 7 discharge.

Because TCEQ’s unsecured claim exceeded III.

$290,925 (the maximum amount of non-con- The Dillons assert that the trustee, TCEQ,

and the Internal Revenue Service (“IRS”) are

liable for violating a plethora of federal stat-

* utes, Texas regulations, and provisions in the

Pursuant to 5TH CIR. R. 47.5, the court has

United States and Texas constitutions. As a

determined that this opinion should not be publis-

hed and is not precedent except under the limited

threshold matter, we refrain from considering

circumstances set forth in 5TH CIR. R. 47.5.4. the claims made against the IRS, because they

2

are wholly irrelevant to the issues presented by The Dillons point to nothing in the record

the instant appeal; the IRS is not a party to this that is probative of their assertion that TCEQ’s

action, and the asserted liability has no claim was forged and fraudulent. Mere

colorable impact on the issues that are present conclusional assertions do not demonstrate

vis-á-vis the parties that are properly part of that the bankruptcy court was clearly errone-

this action. Moreover, because the Dillons ous in its factual finding that the claim was

merely string-cite the provisions and fail to in- legitimate. Even assuming arguendo that the

clude any facts or brief any argument explain- bankruptcy court erred in approving TCEQ’s

ing why these laws were violated or how claim for $460,000 when it had requested only

finding liability under them would affect the $337,000, that would not affect the disposition

disposition in the district and bankruptcy of the case, because $337,000 plainly exceeds

courts, the claims are deemed waived for in- the $290,525 jurisdictional threshold limit for

adequate briefing.1 chapter 13 bankruptcy relief established by §

109(e).

IV.

As the district court properly found, the Because the bankruptcy court did not err in

dispositive issue is whether the bankruptcy allowing TCEQ’s claim for at least $290,525,

court properly allowed TCEQ’s claim, over the Dillons are ineligible for relief under chap-

the Dillons’ objection, for an amount that ex- ter 13, because the debt exceeded the jurisdic-

ceeded $290,525; under 11 U.S.C. § 109(e), tional limits established in §109(e). The re-

an individual may not obtain relief under chap- maining rulings of the bankruptcy court are

ter 13 unless, at the time of the petition, the correct as a matter of law, because they flow

aggregated non-contingent, liquidated, un- from the Dillons’ ineligibility for relief under

secured debts are lower than that amount. chapter 13; the court appropriately denied

Liberally construing the arguments presented certification of their plan, denied a hardship

in the Dillons’ brief, they assert only two co- discharge,3 and dismissed their case without

herent challenges to the bankruptcy court’s al- prejudice.

lowance of TCEQ’s claim: (1) that the claim

was fraudulent and (2) that it was error to ap- AFFIRMED.

prove the claim for $460,000 when the amen-

ded claim was for $337,000.2

1

See F ED. R. APP. P. 28(a)(9)(A); see also

United States v. Martinez, 263 F.3d 436 (5th Cir.

2

2001) (noting that failure adequately to brief an (...continued)

issue on appeal can constitute waiver of that argu- assert that the claim was not aggregated, non-

ment); Geiger, 2005 U.S. App. LEXIS 4572, at *4 contingent, liquidated and unsecured, as required

n. 6 (“[P]ro se litigants have no general immunity for disqualifying a party from chapter 13 relief

from the rule that issues and arguments not briefed under § 109(e).

on appeal are abandoned.”).

3

A hardship discharge may be granted by the

2

The Dillons do not argue that the method of bankruptcy court only “[a]t any time after the con-

calculating TCEQ’s claim was in error, nor do they firmation of the plan.” 11 U.S.C. § 1328(b)

(continued...) (emphasis added).

3