COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69126 : ROBERT R. THOMPSON : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION MABON, NUGENT & COMPANY : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. CV-258584 JUDGMENT: Appellee's Motion No. 74582 To Dismiss is Granted. Appeal Dismissed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: SEYMOUR R. BROWN, ESQ. STEPHEN D. WILLIGER, ESQ. MICHAEL C. HENNENBERG, ESQ. MARK A. PHILLIPS, ESQ. HENNENBERG & BROWN BENESCH, FRIEDLANDER, COPLAN 30100 Chagrin Boulevard, Suite 301 & ARONOFF Cleveland, Ohio 44124-5704 2300 BP America Building 200 Public Square Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: Plaintiff-appellant Robert Thompson appeals from an order of the trial court granting summary judgment in favor of defendant- appellee Mabon, Nugent & Co. n/k/a NoMas, L.L.C ("Mabon"). For the following reasons we dismiss the appeal. During the course of this appeal, Mabon filed a notice in this court of appeals indicating that it filed a petition for bankruptcy under Chapter 11 of the United States Bankruptcy Code. In re MN Associates, L.P. (Bankr. S.D.N.Y. 1995), Case No. 95B42865. This court granted a stay of the appeal in an order journalized July 25, 1995. See 11 U.S.C. 362; Harris v. Alexander Grant & Co. (1990), 61 Ohio App.3d 172. Mabon thereafter filed a motion to dismiss the appeal on July 15, 1996, following the conclusion of the bankruptcy proceedings. Mabon's motion argued that the underlying claims asserted by Thompson against it had been discharged in the bankruptcy proceeding. The motion was supported by a certified copy of the bankruptcy court order confirming Mabon's plan of reorganization. Thompson subsequently opposed the motion to dismiss, Mabon filed a reply brief, and the matter was referred 1 to this merit panel prior to briefing by the parties. 1 Thompson's two assignments of error concerning the merits of the appeal are set forth in the Appendix. - 3 - The federal bankruptcy code, 11 U.S.C. 1141, governs the effect of confirmation of a Chapter 11 reorganization plan and provides in pertinent part as follows: (d)(1) Except as otherwise provided in this subsection, in the plan, or in the order confirming the plan, the confirmation of a plan -- (A) discharges the debtor from any debt that arose before the date of such confirmation ***. The federal bankruptcy code, 11 U.S.C. 524, governs the effect of a bankruptcy discharge and provides that once a debt has been discharged the claimant is enjoined from maintaining proceedings to collect on the obligation: (a) A discharge in a case under this title -- * * * (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived ***. Thompson has failed to show any exception applies to permit it to maintain this appeal or to prevent the discharge of his claims against Mabon in this case. Mabon filed its action in the trial court to recover pre-petition unsecured claims against Mabon. Mabon subsequently filed its petition for bankruptcy, however, and the federal bankruptcy court ultimately discharged Mabon from debts that arose before its November 22, 1995 order of confirmation. The record shows that Thompson had actual knowledge of the bankruptcy proceedings and should have taken action to protect its claim in the federal bankruptcy court. See e.g., Robbins v. - 4 - Amoco Production Co. (5th Cir. 1992), 952 F.2d 901, 907-908. Thompson has not cited any provision of the federal bankruptcy code, Mabon's plan, or the federal bankruptcy court's order of confirmation which exempts his claim from discharge. We specifically find, contrary to Thompson's argument, that Mabon's plan does not preserve Thompson's claims against it. Under the circumstances, Thompson is enjoined pursuant to 11 U.S.C. 524(a)(2) from continuing this appeal to collect on the claims sub judice. Any issue concerning whether the trial court properly granted summary judgment against Thompson is moot because all debts of Mabon, including any debt to him, were discharged in the federal bankruptcy court proceedings. Accordingly, the appeal is hereby dismissed. Judgment accordingly. - 5 - It is ordered that appellee recover of appellant its costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). - 6 - Appendix 1. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT FOR THE REASON THAT FACTUALLY PLAINTIFF WAS NOT ON NOTICE OF THE TORT CLAIMS [SIC] COMMITTED BY DEFENDANT UNTIL SEPTEMBER 29, 1989, WHEN FOR THE FIRST TIME HE RECEIVED INFORMATION FROM DEFENDANT THAT DEFENDANT HAD WRONGFULLY PAID HIS PARTNER, GEORGE THOMPSON, FOR TRANSACTIONS WHICH WERE THE PROPERTY OF THOMPSON, THOMPSON AND ASSOCIATES. 2. THE TRIAL COURT ERRED IN RULING THAT THE STATUTORY MANDATE OF O.R.C. 177.02 REQUIRED THE PARTNERSHIP TO FILE A CERTIFICATE OF PARTNERSHIP WHEN THE DEFENDANT WAS ON ACTUAL NOTICE AT ALL TIMES AND ADMITTED THAT IT WAS DOING BUSINESS WITH THE INDIVIDUALS WHO WERE .