{
  "id": 12021949,
  "name": "Donald PENNINGTON, et al. v. HARVEST FOODS, INC.",
  "name_abbreviation": "Pennington v. Harvest Foods, Inc.",
  "decision_date": "1996-10-14",
  "docket_number": "95-732",
  "first_page": "272",
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  "last_updated": "2023-07-14T22:12:03.555215+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Donald PENNINGTON, et al. v. HARVEST FOODS, INC."
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nAppellee Harvest Foods, Inc., has moved to stay the appeal of Donald B. Pennington, et al., from a judgment in favor of Harvest Foods, Inc. The basis of the motion is \u00a7 362 of Title 11 of the United States Bankruptcy Code (Supp. II [1978]). In support of an earlier motion, Harvest Foods, Inc., supplied a copy of a United States Bankruptcy Court order indicating that Harvest Foods, Inc., had filed a bankruptcy petition and was the debtor in an ongoing proceeding before the Bankruptcy Court.\nSection 362 provides for an automatic stay of all proceedings \u201cagainst\u201d the debtor. In support of its motion, Harvest Foods, Inc., cites Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446 (3rd Cir. 1982), which contains this language:\nIn our view, section 362 should be read to stay all appeals and proceedings that were originally brought against the debtor, regardless of whether the debtor is the appellant or appellee. Thus, whether a case is subject to automatic stay must be determined at its inception. That determination should not change depending on the particular stage of the litigation at which the filing of this petition in bankruptcy occurs.\nIn response to the motion for stay of the appeal, two of the appellants, Joel Tumblson and Soundra Tumblson, contend, and we agree, that the St. Croix case does not require a stay of an appeal when the proceeding on appeal was \u201coriginally brought\u201d by the debtor. In the St. Croix case, the action was one \u201coriginally brought\u201d against the debtor for eviction and damages. The debtor counterclaimed against the plaintiff for a monetary award and prevailed. Both parties appealed. Both appeals were stayed. The opinion does not address the question whether the debtor\u2019s counterclaim could be regarded as one \u201coriginally brought\u201d by the debtor.\nIn the case now before us, the situation is the reverse of that presented in the St. Croix case. The action was \u201coriginally brought\u201d by Harvest Foods, Inc., rather than against it, and three of the original defendants, John Oldner, John Oldner, Inc., and John Oldner Consulting Services, Inc., d/b/a John Oldner and Associates (the Oldner appellants), counterclaimed against Harvest Foods, Inc. Their counterclaim was dismissed, and they have appealed. Unlike the Tumblsons, these appellants have no objection to the stay of their appeal. We grant the stay as to the appeal of the Oldner appellants.\nWhen the debtor is the appellant, it is held that a stay is required if the action was originally brought against the debtor. Farley v. Henson, 2 F.3d 273 (8th Cir. 1993); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60 (6th Cir. 1983). When a debtor counterclaims against the plaintiff in initial proceedings, the counterclaim is not stayed by section 362, Merchants & Farmers Bank of Dumas, Ark. v. United States of America, 122 B.R. 539 (E.D. Ark. 1990), because the proceeding is not \u201cagainst\u201d the debtor.\nWe find no authority interpreting \u00a7 362 in a manner requiring us to stay the appeal of the judgment in favor of Harvest Foods, Inc. Although it might be said that the appeal in this case is \u201cagainst\u201d Harvest Foods, Inc., all of the authority of which we are aware holds that the initial proceedings, and not the appeal, constitute the reference point for determining whether the action is one \u201coriginally brought\u201d against the debtor.\nMotion for stay granted in part and denied in part.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Boswell, Tucker, Brewster & Hicks, by: Dennis J Davis, for appellants John Oldner; John Oldner, Inc.; and John Oldner Consulting Services, Inc., d/b/a John Oldner & Associates.",
      "Dodds, Kidd, Ryan & Moore, by: Charles Gregory Alagood, for appellants Joel Tumblson, Sr., and Soundra Tumblson.",
      "David H. Williams, for appellants Joel Tumblson, Jr., T.S.P., Inc., and Top Spread Potato, Inc.",
      "Wilson, Engstrom, Corum & Coulter, by: Stephen Engstrom, Gary D. Comm, and Nate Coulter, for appellee Harvest Foods, Inc."
    ],
    "corrections": "",
    "head_matter": "Donald PENNINGTON, et al. v. HARVEST FOODS, INC.\n95-732\n929 S.W.2d 162\nSupreme Court of Arkansas\nOpinion delivered October 14, 1996\nBoswell, Tucker, Brewster & Hicks, by: Dennis J Davis, for appellants John Oldner; John Oldner, Inc.; and John Oldner Consulting Services, Inc., d/b/a John Oldner & Associates.\nDodds, Kidd, Ryan & Moore, by: Charles Gregory Alagood, for appellants Joel Tumblson, Sr., and Soundra Tumblson.\nDavid H. Williams, for appellants Joel Tumblson, Jr., T.S.P., Inc., and Top Spread Potato, Inc.\nWilson, Engstrom, Corum & Coulter, by: Stephen Engstrom, Gary D. Comm, and Nate Coulter, for appellee Harvest Foods, Inc."
  },
  "file_name": "0272-01",
  "first_page_order": 306,
  "last_page_order": 308
}