                                                                                       FILED
                                                                             U.S. Bankruptcy Appellate Panel
                                                                                   of the Tenth Circuit
                               NOT FOR PUBLICATION *
                                                                                  April 11, 2017
              UNITED STATES BANKRUPTCY APPELLATE PANEL
                                                                                 Blaine F. Bates
                               OF THE TENTH CIRCUIT                                  Clerk
                         _________________________________

IN RE BILLY RUSSELL DAMPIER, JR.,                         BAP No. CO-16-020

          Debtor.
__________________________________

MEDICAL LIEN MANAGEMENT, INC.                             Bankr. No. 14-24526
and CREDIT INVESTMENTS, INC.,                              Adv. No. 15-01028
                                                              Chapter 7
             Plaintiffs – Appellees,

v.
                                                                OPINION
BILLY RUSSELL DAMPIER, JR.,

             Defendant – Appellant.
                        _________________________________

                     Appeal from the United States Bankruptcy Court
                               for the District of Colorado
                        _________________________________

Before KARLIN, Chief Judge, JACOBVITZ, and MOSIER, Bankruptcy Judges.
                     _________________________________

MOSIER, Bankruptcy Judge.
                    _________________________________


       As part of a state criminal sentence for theft, Billy Russell Dampier, Jr. was ordered

to pay restitution to the State of Colorado. The Bankruptcy Court declared Dampier’s


*
       This unpublished opinion may be cited for its persuasive value, but is not
precedential, except under the doctrines of law of the case, claim preclusion, and issue
preclusion. 10th Cir. BAP L.R. 8026-6.
criminal restitution debt to be nondischargeable pursuant to 11 U.S.C. § 523(a)(7). 1

Dampier contends that the Bankruptcy Court committed legal error because the plain

meaning of § 523(a)(7) does not bar discharge of his restitution debt. We find Dampier’s

restitution debt is excepted from discharge under § 523(a)(7). On that basis, we affirm.

                    I.   FACTUAL AND PROCEDURAL HISTORY

       Dampier stole money from his employers, Credit Investments, Inc. and Medical

Lien Management, Inc. (Appellees) and was formally charged with theft and forgery. 2

Dampier pleaded guilty to criminal theft under Colorado law. As part of his criminal

sentence, the state criminal court ordered Dampier to pay restitution (Restitution Order) for

Credit Investments in the amount of $108,343.11 and for Medical Lien Management in the

amount of $88,348.58.

       After he was sentenced, Dampier filed his chapter 7 petition and the Appellees filed

their complaint 3 objecting to the discharge of Dampier’s debts pursuant to § 523(a)(2)(A),

(a)(4), (a)(6), and (a)(7). Appellees subsequently amended the complaint. 4 Dampier

answered the amended complaint 5 denying the allegations relating to § 523(a)(2)(A),




1
       All future references to “Code,” “Section,” and “§” are to the Bankruptcy Code,
Title 11 of the United States Code, unless otherwise indicated.
2
       Complaint at 5, in Appellant’s App. at 14.
3
       Appellant’s App. at 10.
4
       Appellant’s App. at 40.
5
       Appellant’s App. at 52.

                                                 2
(a)(4), and (a)(6). 6 With respect to the § 523(a)(7) claims, Dampier admitted that he was

charged with and had pleaded guilty to criminal theft and that he was ordered to pay

restitution totaling $196,691, 7 but he denied the Restitution Order was a nondischargeable

fine, penalty, or forfeiture payable to and for the benefit of a governmental unit within the

meaning of § 523(a)(7). 8

       The Appellees moved for summary judgment on their § 523(a)(6) and (a)(7)

claims. 9 The Bankruptcy Court found the restitution debt was excepted from discharge

under § 523(a)(7) and entered an order granting partial summary judgment (Summary

Judgment Order). 10 In light of this finding, the Bankruptcy Court concluded that it was not

necessary to address the Appellees’ remaining § 523(a)(6) argument, and also noted that

the Appellees’ claims under § 523(a)(2)(A) and (a)(4) were “similarly duplicative.” 11 At

the Bankruptcy Court’s request, the Appellees filed a motion to dismiss their

§ 523(a)(2)(A), (a)(4), and (a)(6) claims, 12 and the Bankruptcy Court entered an order

6
       Answer to Amended Complaint at 2, in Appellant’s App. at 53.
7
       Id. in Appellant’s App. at 53.
8
       Id. in Appellant’s App. at 53.
9
      Motion for Partial Summary Judgment on the Fourth and Fifth Claims for Relief in
Amended Complaint Pursuant to Fed. R. Civ. P. 56 in Appellant’s App. at 60; Supplement
to Motion for Partial Summary Judgment on the Fourth and Fifth Claims for Relief in
Amended Complaint Pursuant to Fed. R. Civ. P. 56 in Appellant’s App. at 76; Amended
Motion for Partial Summary Judgment on the Fourth and Fifth Claims for Relief in
Amended Complaint Pursuant to Fed. R. Civ. P. 56 in Appellant’s App. at 82.
10
       Appellant’s App. at 251.
11
       Summary Judgment Order at 3, in Appellant’s App. at 253.
12
       Motion to Dismiss Counts I, II, III, and IV in Appellant’s App. at 254.
                                                 3
dismissing the § 523(a)(2)(A), (a)(4), and (a)(6) claims (Dismissal Order) “without

prejudice.” 13 Dampier timely appealed the Summary Judgment Order and the Dismissal

Order. 14

                II.   JURISDICTION AND STANDARD OF REVIEW

       This Court has jurisdiction to hear appeals of final orders. 15 “An order granting

summary judgment disposing of [a] plaintiff’s claims against [a] defendant is a final order

for purposes of appeal.” 16 Although the Summary Judgment Order was a partial summary

judgment, it disposed of the Appellees’ § 523(a)(7) claims and required the dismissal of

the remaining causes of action. The Summary Judgment Order and the Dismissal Order are

final and appealable. We review an order granting summary judgment de novo. 17

                               III.    DISCUSSION

A.     The Appellees’ § 523(a)(7) Claim.

       The relevant portion of § 523(a)(7) provides that a discharge in bankruptcy does not

discharge an individual debtor from any debt “to the extent such debt is for a fine, penalty,




13
       Appellant’s App. at 261.
14
       Notice of Appeal and Statement of Election in Appellant’s App. at 262.
15
       28 U.S.C. § 158(a)(1), (b)(1), and (c)(1).
16
      Expert S. Tulsa, LLC v. Cornerstone Creek Partners, LLC (In re Expert S. Tulsa,
LLC), 534 B.R. 400, 407 (10th Cir. BAP 2015) (citing Tanner v. Barber (In re Barber),
326 B.R. 463, 466 (10th Cir. BAP 2005)), aff’d, 842 F.3d 1293 (10th Cir. 2016).
17
       Russell v. Tadlock (In re Tadlock), 338 B.R. 436, 438 (10th Cir. BAP 2006).

                                                    4
or forfeiture payable to and for the benefit of a governmental unit, and is not compensation

for actual pecuniary loss . . . .” 18

       1.         The Applicable Law.

       The Supreme Court addressed § 523(a)(7) in Kelly v. Robinson. 19 In Kelly, the

debtor was convicted of larceny and the sentencing judge ordered the debtor to make

restitution as a condition of probation. The debtor subsequently filed for bankruptcy under

chapter 7. The Supreme Court held “that § 523(a)(7) preserves from discharge any

condition a state criminal court imposes as part of a criminal sentence,” 20 and determined

that restitution obligations, imposed as conditions of probation, are nondischargeable in

proceedings under chapter 7 of the Code. Kelly’s holding reaches beyond its facts, 21 but

the Supreme Court clearly explained the basis for its decision. It noted that its

interpretation of the Code “must reflect . . . a deep conviction that federal bankruptcy

courts should not invalidate the results of state criminal proceedings. The right to

formulate and enforce penal sanctions is an important aspect of the sovereignty retained by

the States.” 22

       “Section 523(a)(7) protects traditional criminal fines; it codifies the judicially

created exception to discharge for fines.” 23 The Kelly Court observed that restitution

18
       § 523(a)(7).
19
       479 U.S. 36 (1986).
20
       Id. at 50.
21
       Troff v. Utah (In re Troff), 488 F.3d 1237, 1240 (10th Cir. 2007).
22
       Kelly, 479 U.S. at 47.

                                                  5
differs from traditional fines in two major ways: restitution (1) is forwarded to the victim,

and (2) may be calculated based on the harm the defendant has caused. 24 But the Supreme

Court concluded that these two differences make no difference under § 523(a)(7)—

section 523(a)(7) does not allow the “discharge of a criminal judgment that takes the form

of restitution.” 25 The Court elaborated:

       The criminal justice system is not operated primarily for the benefit of
       victims, but for the benefit of society as a whole. Thus, it is concerned not
       only with punishing the offender, but also with rehabilitating him. Although
       restitution does resemble a judgment “for the benefit of” the victim, the
       context in which it is imposed undermines that conclusion. The victim has no
       control over the amount of restitution awarded or over the decision to award
       restitution. Moreover, the decision to impose restitution generally does not
       turn on the victim’s injury, but on the penal goals of the State . . . . 26

Unlike obligations that arise out of contractual, statutory or common law duties,

restitution is “rooted in the traditional responsibility of a state to protect its citizens

. . . and to rehabilitate an offender.” 27 Although restitution orders may result in

compensation to victims, they are not assessed for that purpose; they are assessed

because of the penal and rehabilitative interests of the state. 28 And those interests are

what “place restitution orders within the meaning of § 523(a)(7).” 29


23
       Id. at 51.
24
       Id. at 51-52.
25
       Id. at 52.
26
       Id.
27
       Id. (citation and internal quotation marks omitted).
28
       Id. at 53.
29
       Id.
                                                     6
       The United States Court of Appeals for the Tenth Circuit addressed § 523(a)(7) in

Troff v. Utah (In re Troff). 30 In Troff, the debtor pleaded guilty to arson, and the sentencing

judge ordered the debtor to make restitution as a condition of probation. After the debtor

completed his probation, his restitution obligation was converted to a civil judgment made

payable to the victim. The debtor subsequently filed for bankruptcy under chapter 7. The

Tenth Circuit determined that it was bound by Kelly and held that a criminal restitution

obligation that was imposed as part of the Utah state criminal sentence was

nondischargeable under § 523(a)(7). 31 The Kelly Court’s method of statutory interpretation

emphasized the policy considerations behind § 523(a)(7). Although the Tenth Circuit noted

that a “strict plain meaning reading” of § 523(a)(7) might have strengthened Troff’s

argument, 32 it concluded that “the Kelly Court’s reasoning made clear that it would apply

the rule to any obligation imposed as part of a criminal sentence.” 33 The Tenth Circuit also

observed that it was not free to disregard Kelly because it “‘considers itself bound by

Supreme Court dicta almost as by the Court’s outright holdings. . . .’ Thus, Kelly—dicta

and all—applies.” 34


30
       488 F.3d 1237 (10th Cir. 2007).
31
       Id. at 1243.
32
        Id. at 1239. Troff’s argument was that his restitution payments, which were made to
the state but eventually forwarded to the victim, were not “payable to and for the benefit of
a governmental unit.” Accordingly, the restitution debt did not come within the plain
meaning of § 523(a)(7) and was dischargeable. Id.
33
       Id. at 1240 (emphasis added).
34
       Id. at 1241 (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996)).

                                                   7
       Under the pertinent Utah law, restitution “is not merely ‘compensation for [a

victim’s] actual pecuniary loss’ under § 523(a)(7); rather, it serves the goals of the state’s

criminal justice system.” 35 The Tenth Circuit noted that:

       [c]ourt-ordered restitution . . . takes into account not only the amount
       necessary to make a victim whole, but also the financial burden on the
       defendant, his ability to pay on an installment basis, and “the rehabilitative
       effect on the defendant of the payment of restitution and the method of
       payment.” 36

Following Kelly, the Tenth Circuit stated that the focus of court-ordered restitution is “on

the State’s interests in rehabilitation and punishment, rather than the victim’s desire for

compensation.” 37 The fact that Troff’s restitution obligation was converted to a civil

judgment payable to the victim made no difference.

       2. Application of Controlling Law.

       Here, the Bankruptcy Court concluded that it was bound by Kelly and Troff and

found Dampier’s “payment obligation under the Restitution Order to be nondischargeable

under § 523(a)(7), as a matter of law.” 38 Dampier argues that Kelly and Troff are not

binding because Colorado’s restitution laws are different. He contends that under a strict

plain meaning reading of the statute, the Restitution Order is expressly excluded from

§ 523(a)(7). But “the Supreme Court’s decision in Kelly makes clear that we must look



35
       Id.
36
       Id. (citing Utah Code Ann. § 76-3-201(8)(c) (1999)).
37
       Id. (quoting Kelly v. Robinson, 479 U.S. 36, 53 (1986)).
38
       Summary Judgment Order at 2-3, in Appellant’s App. at 252-53.

                                                   8
beyond such a reading to federalism concerns and to the history of this statute.” 39 The

Kelly Court concluded that any restitution obligation imposed as part of a state criminal

sentence confers a benefit on the government and is not assessed for the benefit of the

victim. 40 And like the Troff Court, we are bound by the Supreme Court’s holdings and

dicta and are not free to disregard Kelly. 41 A state’s penal and rehabilitative interests in

criminal proceedings “are sufficient to place restitution orders within the meaning of

§ 523(a)(7).” 42

       Dampier attempts to distinguish his case by characterizing the Restitution Order as

being “payable to, and wholly under the control of, a non-governmental entity.” 43

Dampier’s characterization is wrong; the Restitution Order is not wholly under the control

of a non-governmental entity. Criminal restitution orders may only be obtained by the

government, and victims have no control over the amount of restitution awarded or the

decision to impose restitution. The judgment creditor is the State of Colorado, 44 and the

Colorado State Judicial Department is responsible for collection of the restitution orders. 45

Among other things, the Judicial Department has the responsibility to conduct an initial

39
       Troff, 488 F.3d at 1239.
40
       Kelly, 479 U.S. at 53.
41
       Troff, 488 F.3d at 1241 (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th
Cir. 1996)).
42
       Kelly, 479 U.S. at 53.
43
       Appellant’s Br. at 26.
44
       Appellant’s App. at 119-127.
45
       Colo. Rev. Stat. §§ 16-18.5-104.

                                                   9
collections investigation, establish payment schedules, file transcripts of restitution orders

with various agencies to create liens, and monitor payment of restitution orders. 46

       Under Colorado law, restitution is defined as compensation for actual

pecuniary loss 47 and is “a final civil judgment in favor of the state and any

victim.” 48 But the fact that a restitution order may be enforced by victims or may

result in compensation to victims does not change the fundamental nature and

purpose of the restitution. As the Supreme Court explained, the context in which

restitution is imposed undermines the conclusion that restitution is for the benefit of

the victim. The criminal justice system is operated for the benefit of society as a

whole and is concerned not only with punishing the offender, but also with

rehabilitating him. Restitution is “rooted in [this] traditional responsibility of a state

to protect its citizens . . . and to rehabilitate an offender.” 49

       Restitution orders are a statutorily created penalty created under the Colorado

Criminal Code. 50 The State of Colorado has declared that restitution “is a mechanism for


46
       Id.
47
       Colo. Rev. Stat. § 18-1.3-602(3)(a). Restitution “means any pecuniary loss suffered
by a victim and includes but is not limited to all out-of-pocket expenses, interest, loss of
use of money, anticipated future expenses, rewards paid by victims . . . , and other losses
or injuries proximately caused by an offender’s conduct and that can be reasonably
calculated and recompensed in money.” Id.
48
       Colo. Rev. Stat. § 18-1.3-603(4)(a)(I) (emphasis added).
49
      Kelly v. Robinson, 479 U.S. 36, 52 (1986) (citation and internal quotation marks
omitted).
50
       See Colo. Rev. Stat. § 18-1.3-601.

                                                     10
the rehabilitation of offenders” and “will aid the offender in reintegration as a productive

member of society.” 51 The state court clearly weighed these considerations in sentencing

Dampier, as it sought to impose “the appropriate sentence, given [the] individual, given

these circumstances.” 52 Furthermore, the criminal sentence included two years of work-

release and ten years of probation, which was conditioned on payment of the court-ordered

restitution and gave Dampier the opportunity to prove his stated “desire to pay back

restitution and to make good on what he has done wrong.” 53

       The Restitution Order here is a penalty, payable to the State of Colorado, not for its

actual pecuniary loss, but to benefit the State in its effort to protect its citizens and to

rehabilitate Mr. Dampier. Although the Appellees may ultimately receive the restitution

payments through their own collection efforts, that fact makes no difference. The

Restitution Order focused on punishment and rehabilitation and is clearly within the

meaning of § 523(a)(7), and Dampier’s “attempt to discharge the debt is squarely within

the cross-hairs of the Supreme Court’s decision in Kelly.” 54 The Bankruptcy Court

appropriately considered and applied the holdings in Kelly and Troff, and concluded it was

bound by those decisions. We agree.

51
       Colo. Rev. Stat. § 18-1.3-601(1)(c), (2).
52
       Exhibit 13, Summary Judgment Motion at 52, in Appellant’s App. at 196.
53
       Id. at 53-54, in Appellant’s App. at 197-98. We also note the Tenth Circuit’s
recognition that holding a restitution obligation to the victim is dischargeable would
“disrupt two decades of Congressional reliance on the notion that the [Kelly] holding
applied whether the crime’s victim was the government or a private individual.” Troff v.
Utah (In re Troff), 488 F.3d 1237, 1242 (10th Cir. 2007).
54
       Troff, 488 F.3d at 1241.
                                                    11
B.     The Appeal of the Dismissal Order is Moot.

       Dampier also argues that the Bankruptcy Court erred in dismissing the remaining

causes of action “without prejudice” and that, if the Court reverses, the Appellees are

precluded from refiling any of the dismissed claims. 55 Any dispute over the Dismissal

Order has been rendered moot by this Court’s affirmance of the Summary Judgment Order.

Accordingly, we decline to address this issue on appeal.

C.     Appellees’ Motion for Attorney’s Fees.

       The Appellees seek an award of attorney’s fees under Fed. R. Bankr. P. 8020. 56

Rule 8020 allows the Court to “award just damages and . . . costs” to an appellee if the

Court finds that the appeal is frivolous. Although Rule 8020 does not establish a standard

for frivolity, this Court has held that an appeal is frivolous “if the result is obvious or the

arguments are wholly without merit.” 57 We deny Appellees’ motion for two reasons. First,

we do not find Appellant’s argument that the Colorado statute defining restitution as

compensation for actual pecuniary loss is different from the statutes at issue in Kelly and

Troff to be frivolous. Second, Appellant’s argument that the Court should not deviate from

the plain language of § 523(a)(7) is not wholly without merit. Judge Tymkovich’s

concurring opinion in Troff took issue with the Supreme Court’s decision in Kelly, which

55
       Appellant’s Br. at 58.
56
       Motion for Attorney’s Fees Pursuant to Fed. R. Bankr. P. 8020, BAP ECF No. 26.
57
       Williamson v. Murray (In re Murray), 506 B.R. 129, 141 (10th Cir. BAP 2014)
(quoting Joseph v. Lindsey (In re Lindsey), 229 B.R. 797, 802 (10th Cir. BAP 1999)).
“Some of the factors that courts have considered in analyzing the frivolity of an appeal
include an appellant’s bad faith, [and] whether the argument presented on appeal is
meritless in toto or only partially frivolous . . . .” Id.

                                                   12
“discount[ed] the statutory text for policy considerations.” 58 Judge Tymkovich argued that

“subject to the vagaries of stare decisis, the Supreme Court could and should correct its

error by . . . narrowing the holding of Kelly to the statutory text.” 59 Accordingly, the

Appellees’ request for attorney’s fees is DENIED.

                                   IV.     CONCLUSION
       The Bankruptcy Court did not err in granting summary judgment in favor of the

Appellees on their § 523(a)(7) claim. Accordingly, the Bankruptcy Court’s decision is

AFFIRMED.




58
       Troff, 488 F.3d at 1243 (Tymkovich, J., concurring).
59
       Id. at 1243-44 (Tymkovich, J., concurring).



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