ODYSSEY CONTRACTING CORP. v. L&L PAINTING CO.,INC.

Filing 9

ORDER. L&L's Motion to Dismiss (Doc. 7 in Civil Action No. 18 458, as amended in Doc. 10 ) is GRANTED; the appeals at Civil Action Nos. 18-458 and 18-456 are DISMISSED; the cases will be marked closed; and Rule 58 judgments will issue. Signed by Judge Cathy Bissoon on 12/20/18. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ODYSSEY CONTRACTING CORP.,
Appellant,
v.
L&L PAINTING CO., INC. and
FEDERAL INSURANCE COMPANY,
Appellees.

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Civil Action Nos. 18-456 & 18-458
Judge Cathy Bissoon

ORDER
For the reasons that follow, Odyssey’s appeal to this District Court will be dismissed,
as will the parties’ adversarial bankruptcy proceeding.
The parties and counsel are familiar with the procedural history, and substance,
of the instant matters, and the Court writes only for their benefit. In advance of a bench trial
before the Bankruptcy Court, the parties filed a Stipulation dictating the legal-effect of that
Court’s decision. The Stipulation, which was signed by the parties and approved by order of the
Bankruptcy Court, stated in relevant part:
[The parties] hereby stipulate and agree as follows with respect to their respective
claims with regard to the project known as the Repainting of the Queensboro
Bridge . . ., which claims are pending in this proceeding and presently scheduled
for trial . . . before [the Bankruptcy] Court: In the event [the Bankruptcy Court]
determines after trial that Odyssey was the breaching party, then L&L’s damages
claim[s] . . . will be deemed to exceed Odyssey’s damages claims[,] . . . . all of the
[p]arties’ pending claims will be withdrawn and disposed of in their entirety with
prejudice[,] . . . . and this proceeding shall be deemed to be finally concluded in
all respects. The [p]arties shall exchange mutual final releases reflecting the
terms of this Stipulation.

Doc. 8-1 in Civil Action No. 18-458, at pgs. 3 through 5 of 202 (emphasis added).

The Bankruptcy Court held a trial, and afterward, it issued a detailed 42-page
memorandum opinion, holding that Odyssey was, in fact, the breaching-party. Accordingly,
the Bankruptcy Court contemporaneously-issued an order directing the parties to resolve the
adversarial proceeding “in compliance with [their] Stipulation.” Doc. 8-1 at pgs. 53 and 54
of 202. The order closed by directing the parties to file a joint-status report, shortly thereafter,
regarding their compliance. Id.
Before the status-report deadline expired, Odyssey filed notices of appeal to the District
Court, in the adversarial proceeding and in Odyssey’s related Chapter 11 action. The appeals
have been consolidated in this Court at Civil Action No. 18-458.
L&L’s Motion to dismiss this appeal is well taken.1 Although L&L urges that the
relevant inquiries be addressed under the rubric of Federal Civil Rules 16 and/or 60, the Court
believes that the Stipulation, alone, is the starting and ending point. Similarly, neither side’s
cited-case law is particularly illuminating, as relates to the specific issues and circumstances
involved; and the Court’s independent research has failed to uncover on-point legal authority.
At bottom, the Court is left with the specific-circumstances presented, and common sense
notions of judicial administration and fairness.
The language of the Stipulation, as drafted and signed by the parties, is clear. In the
event that Odyssey was found the breaching-party, that ruling rendered the adversarial
proceeding “finally concluded,” “with prejudice.” Odyssey’s counsel clearly knew, or should
have known, that their client may-well disagree with the Bankruptcy Court’s decision. In failing
to address the possibility of an appeal, it appears that only one of three things could have been

The interests of appellees L&L and Federal Insurance Company are aligned, and they will be
referred to collectively as “L&L.”
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true: Odyssey and its counsel meant what they said, and the ruling fully and finally resolved the
matter; Odyssey and its counsel failed to consider the possibility of wanting to appeal
(an unflattering picture of Odyssey, a sophisticated business-entity, and its counsel, to be sure);
or (least-flatteringly) they were deliberately-obtuse, with the hope of having their cake and eating
it too.
Options two and three are troublesome, and the Court will not impute them to Odyssey or
its counsel. That leaves option-one, under which the Bankruptcy Court’s merits-decision is the
last word. To the extent that Odyssey prefers the other conclusions, or another one the
undersigned presently cannot fathom, the Court rejects its arguments and finds that
“th[e adversarial bankruptcy] proceeding [has been] deemed to be finally concluded in all
respects.” See discussion supra (quoting Stipulation).
These things being said, the Court cannot fully-endorse L&L’s position that Odyssey has
misconstrued the issues as involving appellate-waiver. The inability of Odyssey to properly
appeal the Bankruptcy Court’s trial-determinations is the proverbial “elephant in the room,”
and this Court does not believe that turning a blind-eye improves the situation.
Somewhat relatedly is the question of what’s next. The Court is immovable in its
conclusion that an appeal to the District Court is improper; and remanding the case so that the
Bankruptcy Court further may interpret and enforce its order approving the Stipulation appears
senseless (given that Odyssey most-likely would appeal the resulting-decision to this Court).
Similarly, forcing Odyssey’s hand to negotiate and execute a release likely would result in
additional, protracted legal-wrangling; and it would not result in L&L’s presumed end-goal
(namely, preventing or undermining Odyssey’s appeal to the Circuit).

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Under the circumstances, the Court will modify the Bankruptcy Court’s order dated
March 20, 2018, such that it constitutes a dismissal of the adversarial action, with prejudice,
in conformity with the parties’ Stipulation. In re Cohen, 106 F.3d 52, 55 n.1 (3d Cir. 1997)
(on appeal, a district court “may affirm, modify, or reverse a bankruptcy judge’s judgment, order
or decree”) (citation omitted, emphasis added); accord Garrett v. Chase Home Finance,
2018 WL 306792, *2 (M.D. Pa. Jan. 5, 2018) (same). The ruling also is dispositive of
“Debtor’s Objection to Claim No. 16 by L&L Painting Co., Inc.,” in the Chapter 11 proceeding.
See Bankr. Ct.’s Mem. Opinion at 2 (Doc. 8-1 in Civil Action No. 18-458, at pg. 11 of 202).
Consistent with the foregoing, the Bankruptcy Court’s Order dated March 20, 2018
is modified, as follows:

1.

The Bankruptcy Court having determined after trial that Odyssey was the

breaching party, L&L’s damages claim(s) for the said breach(es) are deemed to exceed
Odyssey’s damages claims for all of its claims including its claims (a) against L&L and Federal
for alleged non-payment for work performed and/or other alleged breaches, and (b) against L&L
for alleged conversion of Odyssey’s equipment, tools, and other property; and, thereupon, all of
the parties’ pending claims are disposed of in their entirety with prejudice.

2.

The disposition of the parties’ respective claims in paragraph “1” above shall

include all their damages claims for alleged non-payment, breach of contract, conversion,
and any and all other alleged wrongdoing of any type or description; and shall also include each
party’s respective claims for interest, costs, attorneys’ fees, and any and all other
charges, claims, or causes of action of any nature which each party has asserted, could have
asserted, or may at any time in the future assert against any other party relating to the Project or
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the work at the Project; and the proceeding is deemed to be finally concluded in all
respects.
Otherwise, L&L’s Motion to Dismiss (Doc. 7 in Civil Action No. 18 458, as amended in
Doc. 10) is GRANTED; the appeals at Civil Action Nos. 18-458 and 18-456 are DISMISSED;
the cases will be marked closed; and Rule 58 judgments will issue.2
IT IS SO ORDERED.

December 20, 2018

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record

Although the substance of Odyssey’s putative-appeal is not presently before the Court,
Odyssey’s opposition-papers offer a preview. See Doc. 28 in Civil Action No. 18-458 at 9-11
(arguing that Bankruptcy Court’s trial-rulings were “at odds with applicable New York law”).
Having carefully reviewed the Bankruptcy Court’s opinion, however, this Court questions the
wisdom of counsel’s suggestion that the decision is likely to succumb under the governing
appellate-standards − as relates to the specific issues-referenced, or more generally. Cf. id. at 9
(opining that the issues on appeal are/will be “plainly meritorious”). Judge Böhm’s 42-page
opinion, which is meticulous and painstaking in detail, gave careful consideration to all of the
parties’ legal positions; and she offered cogent, well-reasoned explanations for her
determinations. Although this Court cannot dictate where things go from here, Odyssey and its
counsel would be well-served to engage in careful self-reflection, vis-à-vis the likelihood of their
ultimate-success; the attendant cost-benefit analyses; and the common-desire not to “throw good
money after bad.”
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