The opinion of the court was delivered by: Reagan, District Judge
A. Introduction and Procedural/Factual Overview
On August 28, 2008, SLM Trans, Inc. ("SLM"), filed a Chapter 11 petition in the United States Bankruptcy Court for the Southern District of Illinois (Case No. 08-60477). The case was then converted to a Chapter 7 proceeding on October 7, 2008. On December 5, 2008, Plaintiff/Appellee, Robert T. Bruegge, Trustee of the SLM Estate ("the Trustee"), instituted this action in the Bankruptcy Court for the Southern District of Illinois (Adv. No. 08-06046). The Complaint sought turnover of property and sanctions for alleged violation of the automatic stay in the bankruptcy case.
Defendant/Appellant Hal Hicks ("Hicks") appeals under 28 U.S.C. § 158(a)(1) from the default judgment entered by the bankruptcy judge on February 9, 2009. The judge awarded $50,000.00 in actual damages, $5,714.50 in attorneys' fees, $250,000.00 in punitive damages (for a total award of $305,714.50) and ordered Hicks to turn over certain property. The judge also ordered that Hicks would incur a $1,000.00 per day penalty for the first 30 days until the property was turned over to the Trustee and, after 30 days, the daily penalty would increase to $5,000.00.
Hicks's motion to vacate default judgment was denied on September 10, 2009. On September 21, Hicks filed a notice of appeal of the court's order denying the motion to vacate default judgment. The appeal is fully briefed and is set for oral argument on August 30, 2010.
On February 2, 2010, the Trustee moved to strike portions of Hicks's brief and for a finding of waiver of issues on appeal (Doc. 19). The Trustee asserts that the following two issues are waived on appeal: (1) the bankruptcy court erred in awarding $50,000.00 in actual damages and $250,000.00 in punitive damages, which are unsupported by the record; and (2) the bankruptcy court's award of punitive damages was excessive under the Constitution.
The Trustee contends that, in the court below, Hicks made no mention of and did not challenge either the award of actual damages against him or the constitutionality of the award of punitive damages. The Trustee also claims that Hicks's argument regarding the propriety of punitive damages was limited to conclusory statements that a punitive damage award equal to five times actual damages is inappropriate and excessive. As a result, the Trustee submits that Hicks did not properly preserve these issues for consideration on appeal, and they are waived.
Hicks contends that the Trustee's motion to strike must be denied because it is untimely. Hicks also maintains that, regardless of whether actual and punitive damages were raised in the bankruptcy court, the award is unsupported by the record and, consequently, reviewable as an exceptional case. Lastly, according to Hicks, the issue that the punitive damages awarded by the bankruptcy court are unconstitutionally excessive was raised below, and, even if it were not, the constitutional violation makes this an exceptional case warranting review.
Hicks asserts that the Trustee's motion to strike is untimely. The Trustee responds that no rules prescribe a time limitation for motions to strike appellate briefs.
Because Hicks moved to raise a supplemental issue on appeal, his briefing was not complete until January 8, 2010. The Court granted the Trustee's unopposed motion for an extension of time to February 3 to file his brief. The motion to strike was filed on February 2 and the brief timely filed on February 3.
Hicks offers no authority for his assertion that there is a time limitation for motions to strike appellate briefs and that the Trustee's motion was filed outside the limitations period. Because Hicks had the opportunity to respond to the motion to strike - and did respond - no prejudice arises from the Trustee's filing the motion. Moreover, the Court, in its discretion, finds that the interests of justice and judicial economy are served by consideration of the motion, which may remove from this appeal matter that is ...