United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1325

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In re: Popkin & Stern, *

*

 Debtor. *

*

Robert J. Blackwell, Liquidating *

Trustee of the Popkin & Stern *

Liquidating Trust, * Appeal From the United States

* Bankruptcy Appellate Panel.

 Appellee, *

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v. *

*

Ronald U. Lurie, *

*

Appellant. *

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Submitted: September 11, 2003

Filed: October 10, 2003

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Before LOKEN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

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HEANEY, Circuit Judge.

Robert U. Lurie appeals the United States Bankruptcy Appellate Panel’s (BAP)

decision upholding the United States Bankruptcy Court’s order of July 19, 2002,

finding that a 1994 judgment against Lurie is subject to collection and execution, has

been accruing interest since 1994, and that administrative costs can be added to the
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judgment. For the reasons set forth below, we affirm the BAP’s decision and

determine that the administrative costs were properly added to what Lurie owes to the

Liquidating Trust.

BACKGROUND

This appeal comes to us after years of litigation stemming from the bankruptcy

of Popkin & Stern, a Missouri law firm. The facts of this case are not in dispute and

have been reported at length below. In re Popkin & Stern, 287 B.R. 738, 740-41

(B.A.P. 8th Cir. 2003). Lurie was a general partner of Popkin & Stern and agreed to

contribute $361,704.00 to the firm’s Liquidating Trust as part of the Chapter 11

reorganization plan. Lurie defaulted on the terms of the trust agreement allowing

Robert J. Blackwell, the Liquidating Trustee, to bring suit against him for any

deficiency in the Liquidating Trust and estate obligations. That suit resulted in a

judgment against Lurie in the amount of $1,121,743.00 (1994 Judgment). In re

Popkin & Stern, No. 92-42218-293, slip op. (Bankr. E.D. Mo. Oct. 20, 1994). This

judgment also provided that “[i]f the amount of the deficiency is ultimately

determined to be less than the amount of this judgment, the Liquidating Trustee shall

move this Court to reduce this judgment.” Id.

Lurie appealed the 1994 Judgment to the district court, but the appeal was

dismissed due to Lurie’s failure to file a brief. In 1997, the 1994 Judgment was

revived by the bankruptcy court and Lurie appealed that revival. Both the BAP and

the Eighth Circuit affirmed. In re Popkin & Stern, 266 B.R. 772 (B.A.P. 8th Cir.

1998), aff’d, 168 F.3d 494 (8th Cir. 1998) (unpublished table decision). In 2000, the

1994 Judgment was revived a second time and Lurie did not appeal that decision.

In 2002, Lurie filed a motion with the bankruptcy court, requesting a hearing

on two previous motions filed in October 2001 and April 2002. The primary relief

sought by Lurie in his motions was a declaration by the bankruptcy court that the
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1994 Judgment was not a final judgment for a sum certain, that it could be adjusted

to reflect reductions in claims, and to stay Blackwell’s attempts to further collect on

the 1994 Judgment. The bankruptcy court denied all relief and assessed Lurie the

reasonable costs of the accounting and supplemental accounting in the amount of

$14,224.50, and $12,955.00 as reasonable attorneys’ fees incurred by the Trustee in

the defense of the motions. 

Lurie now appeals the BAP’s decision, which affirmed the bankruptcy court’s,

holding that the 1994 Judgment was for a sum certain, was not subject to modification

or adjustment, and was subject to collection and execution. Also before us is the

BAP’s determination that the administrative and legal expenses could not be added

to the 1994 Judgment. 

We apply the same standard of review as the BAP, reviewing the bankruptcy

court’s findings of fact for clear error and its conclusions of law de novo. In re

Popkin & Stern, 223 F.3d 764, 765 (8th Cir. 2000). 

ANALYSIS

In his appeal to this court, Lurie concedes that the 1994 Judgment is a final

judgment, but argues that Blackwell cannot execute the judgment until all of Popkin

& Stern’s assets are liquidated and the actual deficiency of the Liquidating Trust is

determined. The 1994 Judgment was for $1,121,743.00, plus interest. This is a final

and certain sum creating in Lurie an immediate obligation to pay. The bankruptcy

court did allow for a reduction in this amount if the “amount of the deficiency is

ultimately determined to be less than the amount of this judgment.” In re Popkin &

Stern, No. 92-42218-293, slip op. (Bankr. E.D. Mo. Oct. 20, 1994) (emphasis added).

In other words, Lurie must pay into the Liquidating Trust the maximum amount of

$1,121,743.00, plus interest. If, when the Liquidating Trust is closed, this amount

exceeds the actual deficiency of the Liquidating Trust, the court may reduce the
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amount of the judgment owed by Lurie. This potential reduction, however, does not

negate the fact that the 1994 Judgment is final, is for a sum certain, creates in Lurie

an immediate obligation to pay, and grants Blackwell a right to immediately execute

the judgment. 

The BAP also did not err in applying interest to the Lurie judgment. The 1994

Judgment is for the final and certain sum of $1,121,743.00, “plus interest from the

date of entry of judgment at the rate provided by 28 U.S.C. § 1961.” Id. We agree

with the BAP that based on the plain language of § 1961(a), interest began accruing

on the 1994 Judgment the day it was entered. This fact is not altered by the

possibility that the 1994 Judgment may ultimately be reduced if the actual deficiency

of the Liquidating Trust is found to be less than the judgment. Should that situation

occur, the court hearing that case can take the added interest into consideration when

reducing Lurie’s obligation.

Lurie next directs our attention to the administrative costs and attorneys’ fees

incurred by Blackwell on behalf of the Liquidating Trust. The bankruptcy court

found that the Liquidating Trustee incurred reasonable costs in the amount of

$14,224.50 for preparation of the accounting and supplemental accounting and

reasonable attorneys’ fees in the amount of $12,955.00 for defense of Lurie’s October

and April motions, and held that these fees should be added to the judgment against

Lurie. The BAP stated that because the bankruptcy court’s order only denied Lurie’s

motions, the bankruptcy court’s findings on this issue was dictum and did not

constitute reversible error. The BAP did add, however, that it disagreed with the

bankruptcy court that the fees could be added to the judgment against Lurie because

the judgment is a final and unalterable sum certain. We disagree with the BAP’s

ruling that the bankruptcy court’s findings on administrative costs and fees is dictum.

We also do not read the bankruptcy court’s decision as adding the costs and fees to

the 1994 Judgment. Instead, we read the bankruptcy court’s decision as merely
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It appears from Lurie’s briefs that he makes two additional arguments

concerning administrative costs. Lurie argues that administrative costs should not

have been included in the deficiency calculation when the 1994 Judgment was

originally entered. It is too late to raise this argument and we refuse to hear it. In

addition, Lurie argues that the administrative costs and attorneys’ fees incurred by the

Liquidating Trust cannot be used when calculating the ultimate actual deficiency of

the Liquidating Trust. We disagree. All creditors’ rights and reasonable costs and

fees incurred by Blackwell are part of the Liquidating Trust’s obligations and should

be included when calculating the actual deficiency of the Liquidating Trust when the

Trust is finally closed.

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assessing the administrative costs against Lurie and adding those costs to the amount

Lurie still owes to the Liquidating Trust from the 1994 Judgment.1

To summarize, we hold that: (1) the 1994 Judgment is a final judgment for a

sum certain; (2) Lurie has an immediate obligation to pay and Blackwell has a right

to execute the judgment; (3) interest on the full $1,121,743.00 has been accruing

since the judgment was entered and will continue to accrue until Lurie pays in full;

(4) the costs and fees incurred by Blackwell in defending against the October and

April motions were assessed against Lurie by the bankruptcy court and were not

added to the 1994 Judgment, but were merely added to what Lurie owes to the

Liquidating Trust; and (5) the reasonable administrative costs Blackwell has incurred

as Trustee can be included in determining the actual deficiency, if any, of the

Liquidating Trust. We trust that the ongoing litigation between these parties will now

come to an end. Lurie must recognize his obligation to pay in accord with the 1994

Judgment and do so without further litigation. Moreover, it is time for Blackwell to

close the books on the Liquidating Trust and stop incurring ongoing costs and fees

which continue to increase the deficiency of the Trust.

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