Case No. 05-6498-PHX-SSC, Adversary No. 05-570.United States Bankruptcy Court, D. Arizona.
February 22, 2008
AMENDED AND RESTATED ORDER DISMISSING REMAINING COUNTS OF COMPLAINT (COUNTS 1-6 AND 8) WITH PREJUDICE AND ORDER INCORPORATING MEMORANDUM DECISION OF FEBRUARY 22, 2008
SARAH CURLEY, Bankruptcy Judge
This matter comes before the Court pursuant to the agreement of the Parties, Plaintiff Renaissance Aircraft, LLC and Defendant Paul Douglas Combs, as stated on the record of the February 13, 2007 status hearing in the above-captioned adversary proceeding. The Parties agreed that all remaining Claims for Relief in the “Complaint for Denial of Discharge and Objections to Discharge” (the “Complaint”) filed by Renaissance Aircraft, LLC should be dismissed with prejudice. Later, counsel for Renaissance Aircraft, LLC inadvertently lodged with the Court a proposed form of “Order Dismissing Remaining Counts of Complaint (Count 1 — 6) With Prejudice” (the “Original Dismissal Order”) that did
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not include Count 8. The Defendant subsequently appealed the Original Dismissal Order, which appeal is currently pending before the Ninth Circuit Bankruptcy Appellate Panel (the “Panel”) as Case No. AZ-07-1084. By Order dated August 30, 2007, the Panel granted limited remand for the purpose of allowing this Court to clarify the Original Dismissal Order and determine whether all counts of the Complaint had been disposed of therein.
On January 9, 2008, the Defendant filed a “Motion for Clarification and Correction of the Court’s Defective Dismissal Order Prepared Unilaterally by the Plaintiff’s Attorney” (the “Motion for Clarification”). By Order dated January 11, 2008, the Court set a hearing on the Motion for Clarification. On February 13, 2008, the Plaintiff lodged with the Court a proposed form of “Amended and Restated Order Dismissing Remaining Counts of Complaint (Counts 1-6 and 8) With Prejudice” (the “Amended Dismissal Order”) to which the Defendant filed an “Objection and Motion for Stay” on February 14, 2008. Also on February 14, 2008, the Court heard the arguments of the Parties with respect to all matters, including the Motion for Clarification and the Objection and Motion for Stay, on which the Court entered its Memorandum Decision of February 22, 2008. Based upon that Memorandum Decision, which is fully incorporated by reference herein,
IT IS ORDERED that the agreement of the Parties, as stated on the record of the February 13, 2007 hearing, is binding and enforceable. In re Haynes, 97 B.R. 1007 (9th Cir. B.A.P. 1989);
IT IS ORDERED CLARIFYING that the Original Dismissal Order signed by this Court on February 20, 2007, was intended to, and should have, encompassed all remaining Counts of the Complaint, namely Counts 1-6 and Count 8; and that the failure to do so was inadvertent;
IT IS FURTHER ORDERED OVERRULING the Defendant’s Objection to the proposed form of Amended Dismissal Order;
IT IS FURTHER ORDERED DENYING the Defendant’s Motion for Stay;
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IT IS FURTHER ORDERED DISMISSING WITH PREJUDICE Counts 1 through 6 and Count 8 of the July 29, 2005 Complaint for Denial of Discharge and Objections to Discharge filed by Renaissance Aircraft, LLC, which are the remaining Counts of the Complaint pursuant to the Parties’ agreement on the record at the February 13, 2007 hearing, with each party to bear its own attorneys’ fees and costs;
IT IS FURTHER ORDERED that this Order shall have no effect on the Court’s April 20, 2006 Judgment (Nondischargeable Pursuant to 11 U.S.C. § 523(a)(6) entered with respect to Count 7 of the Complaint;
IT IS FURTHER ORDERED that this Order shall replace and supersede the Original Dismissal Order nunc pro tunc to February 20, 2007.