author: PER CURIAM:

text:
    ALLGOOD ELECTRIC COMPANY, Plaintiff-Appellant, v. MARTIN K. EBY CONSTRUCTION COMPANY, INC., Federal Insurance Company, Fidelity and Deposit Company of Maryland, Defendants-Appellees.
    No. 95-8572.
    United States Court of Appeals, Eleventh Circuit.
    June 25, 1996.

      William H. Hughes, Jr., Robert Lee Crewdson, Atlanta, GA, Charles W. Byrd, John Douglas Christy, Perry, GA, for Plaintiff-Appellant.
    Ronald G. Robey, Atlanta, GA, for Defendants-Appellees.
    Before ANDERSON and BLACK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
   PER CURIAM:

This appeal arises out of a construction contract dispute between Allgood Electric Company (“Allgood”) and Martin K. Eby Construction Company, Inc. (“Eby”). On March 12,1993, Allgood, an electrical subcontractor for a building project, filed suit in the Superior Court of Dooly County, Georgia against Eby, the contractor, and Eb/s sureties, Federal Insurance Company (“FIC”) and Fidelity & Deposit Company of Maryland (“FDCM”). The defendants subsequently removed the case to the United States District Court for the Middle District of Georgia predicating jurisdiction on diversity of citizenship. See 28 U.S.C. §§ 1332, 1441. Thereafter, on April 13, 1994, the district court granted summary judgment in part in favor of the defendants. Allgood then appealed. This court dismissed the appeal for lack of jurisdiction because the order granting partial summary judgment did not dispose of all of the issues raised in the complaint and it had not been certified for immediate review in accordance with Fed. R.Civ.P. 54(b). Later, the district court direeted that a Rule 54(b) judgment be entered and Allgood appealed again. For the reasons that follow, we reverse the district court’s grant of summary judgment and remand for further proceedings.

I. BACKGROUND

On January 10, 1990, Eby entered into a contract with the Georgia Building Authority (Penal) (“GBA”) to build the Dooly Correctional Institution in Unadilla, Georgia. Pursuant to a subcontract dated January 29, 1990, Allgood then agreed to perform certain electrical work for the project at a stipulated price. After its work was completed, Allgood filed this action alleging, inter alia, that Eby failed to properly coordinate the various phases of the prison’s construction and that Eby’s mismanagement in that respect caused delays which resulted in increased expense to Allgood. Allgood sought to recover these alleged additional costs from Eby and also claimed entitlement to certain sums of money which had been retained in accordance with the prime and subcontracts pending the completion of construction.

Eby subsequently moved for summary judgment. It contended that, during the course of construction, Allgood executed certain form documents that either waived or released all of its demands against Eby. The forms included approximately twenty-four applications for payment and a completion certificate. In support of the motion, Eby submitted, in addition to other evidence, what appears to be photocopies of these documents.

The payment applications identified the project and were addressed to Eby. Each application specified that it was for work performed by Allgood for a certain period of time and stated that,

in consideration of the payment received, and upon receipt of the amount of this request, the undersigned does hereby waive, release, and relinquish all claim or rights of lien which the undersign [sic] may now have upon the premises above described except for claims for right of lien for contract and/or change order work performed to extent [sic] that payment is being retained or will subsequently become due.

(Rl-35, Deposition of Gloria A. Alday, Exhibit 6). The sworn, notarized signatures of Allgood’s President, Gloria A. Alday, or its Vice-President and Project Manager, Timothy A. Morgan, appeared on the applications.

The completion certificate made a part of the record by Eby was addressed to the Georgia State Financing and Investment Commission (“GSFIC”), which was responsible for discharging the state’s administrative duties with respect to the construction. This form also identified the project and stated that it was a “Certificate Regarding Subcontractor’s Completed Work and Retainage Release.” (Rl-33, Affidavit of Charles Schultz, Attachment). The body of the document contained the following language:

1. This is to certify that our work is one hundred percent complete for our subcontract number S28328-21804 and request that our retainage be released in accordance with the contract documents. Our scope of work included the Division 16 Electrical material and installation. The total amount of retainage due is $138,-949.06.
2. The Subcontractor hereby certifies that all work required under the above contract has been performed in accordance with the terms thereof, that all material-men, subcontractors, mechanics, and laborers have been paid and satisfied in full, and that there are no outstanding claims of any character (including disputed claims or any claims to which the subcontractor has or will assert any defense) arising out of the performance of the contract which have not been paid and satisfied in full except as listed hereinbelow:
[Enter “None” or List]
3. The Subcontractor further certifies that to the best of his knowledge and belief there are no unsatisfied claims for damages resulting from injury or death to any employees, subcontractors, or the public at large arising out of the performance of the contract, or any suits or claims for any other damage of any kind, nature, or description which might constitute a lien upon the property of the Owner.
4. The Subcontractor makes this certificate for the purpose of receiving final payment in full settlement of all claims against the Owner arising under or by virtue the [sic] contract, and acceptance of such payment is acknowledged as a release of the Owner from any and all claims arising under or by virtue of the contract.
5. Payments pursuant to this certificate shall in no way diminish, change, alter or affect the rights of the Owner under the contract documents.

(Id.) (“Enter ‘None’ or List” in the original). The bottom of the form contained spaces for the signatures of representatives of Allgood, Eby and the architect for the project, Rosser Fabrap International. A notice printed below the signature spaces stated “GEORGIA STATE FINANCING AND INVESTMENT COMMISSION MUST RECEIVE A COPY WITH ALL ORIGINAL SIGNATURES.” (Id.). The signatures of Allgood’s President, dated June 8, 1992, and Eby’s Operations Manager, dated June 16, 1992, were affixed to the certificate, but the space for the architect was left blank. Attached to the copy of the form was a photocopy of a letter dated June 10, 1992, addressed to Eby and signed by Lynne Crutchfield, an Allgood secretary. It stated, in pertinent part, “[e]nclosed please find our signed release of retained funds, for work performed by our company on the subject project.” (Deposition of Gloria A Alday, Exhibit 7).

It its brief in support of the motion for summary judgment, Eby urged that the quoted language from the payment applications waived and released all of Allgood’s demands for further payment except for contract and change order work to be performed in the future. Eby also contended that all of Allgood’s claims, except for retainage, were barred by the completion certificate.

In response, Allgood argued, inter alia, that the waiver and release language in the payment applications referred only to lien rights against the premises and not to any indebtedness owed by Eby under the subcontract which became due subsequent thereto. It contended that its delay claims “matured” only after its performance under the subcontract was finally completed. (R2-38, Brief in Support of Plaintiffs Opposition to Defendant’s Motion for Summary Judgment at 7). In the alternative, Allgood maintained that the waiver provision created an ambiguity which should be construed against the drafter, Eby, or resolved by a jury. The completion certificate, Allgood asserted, could not operate to bar the delay claims because it was not a valid document relied upon by Eby. In support of this contention, Allgood alleged that, at the time the completion certificate was signed, its work on the project was not in fact complete and it continued thereafter to render services and be paid by Eby for performance under the subcontract. It also relied on the deposition testimony of Allgood’s President, Alday, who stated that, although she apparently executed the document, she did not remember doing so and would not have signed it if she had been aware of its contents because Allgood’s work was not completed at that time. In addition, Allgood pointed out that Eby never processed the completion certificate by obtaining all of the necessary signatures and submitting it to the GSFIC for final payment and that final payment was never made.

Before the district court ruled on the motion for summary judgment, Eby submitted a second motion for summary judgment in which it asserted that Allgood’s delay claims were foreclosed because it failed to provide timely notice of them as required by the prime and subcontracts. Eby alleged also that certain of Allgood’s purported additional costs were traceable to decisions made by the architect and were not actionable because Allgood failed to protest those decisions in accordance with the provisions of the contract documents. To these arguments, All-good countered that it did comply with the contractual notice requirements and that the delay demands could not have been made until after the projected completion date for the project expired because no delay occurred until then. Finally, it disputed Eby’s charge that certain conflicts should have been taken up with the architect.

Thereafter, the district court took the first motion for summary judgment under consideration. It found that the language employed by the payment applications and the completion certificate was unambiguous and conclusively barred the delay claims. The court also noted, however, that the completion certificate expressly recognized All-good’s demand for the outstanding retainage. Consequently, the court granted Eby’s motion for summary judgment as to the delay claims and denied it with respect to the retainage claim. In view of its decision on the first motion, the court found that Eby’s second motion for summary judgment was moot. It is this order of the district court which is now before us for review.

II. THE STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo. Jaques v. Kendrick, 43 F.3d 628, 630 (11th Cir.1995). Because federal jurisdiction of this case was based upon diversity of citizenship, the substantive law of Georgia governs its resolution. Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir.1982).

III. DISCUSSION

The only issue presented to us on appeal is whether the provisions of the payment applications or the completion certificate foreclosed Allgood’s causes of action for delay. All-good advances the same arguments here that it raised in the district court. It contends that the payment applications waived nothing more than its right of lien against the premises and did not abandon its actionable claims against Eby arising under the subcontract, which it says only became due upon the completion of its work. It also asserts, for the first time on appeal, that the completion certificate, if it should be accorded any effect at all, operated only to release claims against the “Owner” of the project, i.e., the state. It submits that the items of compensation it seeks from Eby could not have been discharged by this document because Eby was not named in it. As authority for this contention, Allgood relies on Lackey v. McDowell, 262 Ga. 185, 415 S.E.2d 902 (1992).

We first deal with the effect of the completion certificate as addressed in Lackey. Although an appellate court generally will not consider an argument raised for the first time on appeal, we have the discretion to decide a pure question of law not presented to the district court in the appropriate circumstances. Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir.1994); United States v. Southern Fabricating Co., Inc., 764 F.2d 780, 781 (11th Cir.1985). Whether Lackey governs the effect of the completion certificate is a question of law which should be addressed because the answer conclusively resolves the issue of whether Eby may rely on it to bar Allgood’s delay claims. See Narey, 32 F.3d at 1527.

In Lackey, an emergency medical technician dispatched to the scene of an automobile accident was injured by a third party after his arrival. He and his wife settled with the third party’s insurance company by executing a general release, which stated:

“We ... release and forever discharge [third party] and any other person ... chargeable with responsibility or liability ... from all claims ... arising from any act or occurrence up to the present time, and particularly ... an accident that occurred on or about the 24th day of February, 1989, at or near 5-16 south of Augusta Avenue.”

Lackey, 262 Ga. at 185, 415 S.E.2d at 902 (quoting release) (emphasis supplied by the court). Later, the technician brought suit against the person to whom he had been sent to render assistance, McDowell. The trial court subsequently denied McDowell’s motion for summary judgment and McDowell appealed. The Court of Appeals of Georgia reversed, holding that the unambiguous language of the agreement demonstrated that Lackey intended to release his claims against “any other person,” which included the third party. McDowell v. Lackey, 200 Ga.App. 506, 408 S.E.2d 481 (1991) (subsequent history omitted). The Supreme Court of Georgia granted certiorari and reversed the appellate court. Lackey, 262 Ga. at 185, 415 S.E.2d at 902. The court announced a bright-line rule that “[o]nly those parties named in the release will be discharged by that instrument.” Id. at 186, 415 S.E.2d at 903 (emphasis in the original). The court stated also that “[t]his should eliminate the need to inquire as to the intent of the parties to releases executed after the date of this opinion.” Id., 415 S.E.2d at 903.

We have found no cases in which the Georgia courts have applied the Lackey rule in an action upon a contract rather than in a tort suit, but we can think of no reason why the nature of the underlying action should limit its scope. ‘“A release is a contract itself, and principles of law applicable to contracts generally are also applicable to releases.’” McDowell, 200 Ga.App. at 507, 408 S.E.2d at 482 (quoting 1 E.G.L. Accord & Satisfaction, § 16 (1988 Rev.)). We conclude, therefore, that Lackey applies to the release contained in the completion certificate.

As noted above, the completion certificate was addressed to the GSFIC. Even if it was an enforceable instrument, it specifically released claims against the “Owner” of the property. In Lackey, the Court explained that, by being “named” in a release, “we mean being identified either by proper name or such other description as leaves no question of the identity of the party released.” Lackey, 262 Ga. at 186 n. 3, 415 S.E.2d at 903 n. 3. Eby was not identified by proper name or otherwise as a released party in the certificate. Furthermore, Eby does not contend, and we do not find, that it was encompassed by the term “Owner” as used in the form. The fact that Allgood mailed the certificate to Eby for further processing does not alter this analysis. We agree with Allgood, therefore, that under Lackey, the certificate could not have served the purpose of releasing its delay claims against Eby. Accordingly, we hold that the district court erred by granting summary judgment to Eby on the basis of the completion certificate.

Next, we consider the scope of the payment applications. As with the completion certificate, Allgood reasons that the payment applications did not discharge its claims against Eby because Eby was not identified as a released party. It is true that the particular clause contained in the applications upon which Eby relied did not refer to Eby. This paragraph of the forms did not name any party to the construction project. Rather, it waived “all claim or rights of hen ... upon the premises ... except for claims for right of hen for contract and/or change order work performed to extent [sic] that payment is being retained or will subsequently become due.” (Rl-35, Deposition of Gloria A. Alday, Exhibit 6). Allgood urges us to hold that this language extended only to its right of hen against the property and not to its delay claims against Eby under the subcontract. On the other hand, Eby submits that “ah claim or rights of hen” referred not only to claims of hen upon the premises, but also to any type of claim Allgood may have had against Eby.

Neither party has cited any controlling Georgia authority directly on point in support of their respective positions. The releases at issue in the cases rehed upon by both sides are distinguishable from the language employed in the payment applications. Of the Georgia cases called to our attention, the closest, however, is J.L. Williams & Co., Inc. v. West Concrete Co., 139 Ga.App. 208, 228 S.E.2d 196 (1976). In that case, a subcontractor released

“any and all lien or claim or right of lien under the Statutes of the State of Georgia relating to Mechanic’s liens on the above described premises and improvements thereon, and on the monies or other considerations due or to become due from the owner, on account of labor or services, material, fixtures or apparatus heretofore furnished to this date by the undersigned for the above described premises.”

Id. at 208-09, 228 S.E.2d at 197 (quoting release). The court held that this language “waived plaintiffs lien rights vis-a-vis the owner, not the general contractor.” Id. at 210, 228 S.E.2d at 198.

In a similar fashion, the payment applications relinquished “all claim or rights of lien ... upon the premises.” Guided by J.L. Williams & Co., Inc., we view this terminology as releasing lien claims against the property, not causes of action against Eby under the subcontract. Thus, the district court could not have granted summary judgment to Eby on the basis of this particular clause of the payment applications.

However, in addition to the language waiving “all claim or rights of lien ... upon the premises,” the payment applications contained another provision which stated:

I hereby certify that the work performed and the materials supplied to date, as shown on the above, represent the actual value of accomplishment under the terms of the contract (and all authorized changes thereto) between the undersigned and Martin K. Eby Construction Co., Inc., relating to the above referenced project.

(Rl-35, Deposition of Gloria A. Alday, Exhibit 6). Unlike the completion certificate and the clause of the payment applications relied upon by Eby, this section of the payment applications specifically identifies Eby. By this provision of the applications, Allgood appears to have certified that the amount billed represented the actual value of its performance for the periods of time indicated by the dates of the applications. This would seem to bar recovery for any additional costs allegedly incurred by Allgood during the course of construction for the periods of time represented by the invoices.

Although the parties have indicated that Allgood submitted approximately twenty-four requests for payment, the record contains only twenty-two. The first twenty are each for a period of about one-month’s duration, beginning on April 16, 1990 and ending on March 20,1992. The record does not include invoices for the months of February 20 to March 20, 1991, or January 20 to February 20, 1992. The last two payment applications in the record were for March 20,1992 to May 25, 1992, and May 20, 1992 to October 23, 1992.

In the complaint and amended complaint, Allgood alleged that the project was scheduled for completion on September 23, 1991, but that construction continued until March 1993. (Rl-1, Complaint at ¶ 12, and Rl-23, Amended Complaint at ¶ 12). It is not clear from the record whether Allgood participated in any ongoing construction after the date of its last invoice, October 23,1992.

Allgood has maintained throughout these proceedings variously that its delay claims could not have been lodged prior to the expiration of the original completion date because no delay occurred until then and that it could not have calculated its additional costs until after it concluded its work on the project. Eby countered in its second motion for summary judgment that, to the contrary, the timing of Allgood’s delay claims was governed by certain notice requirements contained in the prime contract, which it contended were expressly incorporated into the subcontract and with which Allgood failed to comply. Eby argued that, when considered together, these provisions required Allgood to provide notice of damages caused by delay within fifteen days of each responsible event. (R2^45, Brief in Support of Defendants’ Second Motion for Summary Judgment at 3-4). Eby asserted that the delays here occurred from the very beginning of the project and that any notice Allgood provided was both untimely and insufficient.

By way of answer, Allgood referred to a provision of the subcontract concerning delays which states:

SECTION 11. DELAYS. Subcontractor shall not be entitled to an adjustment in time or Subcontract price for delays or damages caused by the Owner and/or Architect-Engineer, inclement weather, strikes, or other delays or damages unless such price change or time extension is approved in writing by the Owner or its authorized representative. Any damages which Subcontractor alleges that the Owner, Architect-Engineer, Contractor, other Subcontractor, or any other party for whom Contractor may be liable has caused him or is causing him must be filed in writing with the Contractor within ten (10) days from the commencement of the alleged damage and a fall accounting filed within ten (10) days after the extent of damage is known or the cause for damage ceases, whichever is the sooner; otherwise, any such claims will be considered void.

(R2-43, Deposition of Terry N. Peavy, Exhibit 4) (emphasis added). Allgood also introduced into evidence copies of letters it sent to Eby throughout the course of construction in which it raised the issue of increased costs due to delay and which it contended complied with the notice requirements. (R2-49, Exhibits A through D and F through H).

Whether the letters complied with the notice provisions of the prime and subcontracts and whether Allgood was able to calculate the value of any or all of its demands for relief prior to the completion of construction are issues that were not developed in the district court. These are disputed questions of fact that cannot be resolved on the current record. Nor did the district court consider the effect of Allgood’s certification to Eby that the amounts sought by the periodic payment applications represented the actual value of Allgood’s performance for the specified periods of time. These are the issues upon which Allgood’s delay counts turn. Accordingly, upon remand, the district court should focus on these factors in deciding whether any or all of these counts are viable.

IV. CONCLUSION

In keeping with the foregoing analysis, we REVERSE the district court’s grant of summary judgment in favor of Eby on Allgood’s delay claims and REMAND the case to the district court for further proceedings consistent with this opinion.

      . Eby provided a payment bond for the construction project which was underwritten by FIC and FDCM.

      . Generally, appeals may be taken only from "final decisions of the district courts” which end the litigation. 28 U.S.C. § 1291. When a district court grants judgment with respect to fewer than all of the claims or parties involved in an action, an immediate appeal is proper when the court directs that its judgment be deemed final in accordance with Rule 54(b). Rule 54(b) permits "the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

      . By the prime contract, we mean the contract between Eby and the GBA.

      . The original complaint contained eleven counts. Counts I through X consisted of general allegations concerning the mismanagement All-good attributed to Eby. For example, Count II complained in part that Eby altered the planned work schedule upon which Allgood calculated its bid, which "resulted in inefficiency costs including extra labor and material costs as well as delays, unabsorbed overhead and ripple costs for which Eby should be responsible." (Rl-1, Complaint at ¶ 16). Count XI described several items for which Allgood had previously sought payment during the course of construction. Counts I through XI will be referred to collectively as the "delay claims.” The amended complaint added Count XII, which alleged that Eby owed Allgood approximately $136,000.00 of funds retained pending completion of the project. This count will be designated the "retainage claim.”

      . Eby submitted two different copies of the completion certificate. One was attached as Exhibit 7 to Gloria A. Alday’s deposition. The other was attached to the affidavit of Charles Schultz, Eby's Operations Manager for the Building Division. (See Rl-33). The text of both forms looks as if they were photocopied, but the signatures affixed to the copy attached to Schultz's affidavit appear to be original.

      . Both copies of the completion certificate made a part of the record are of poor quality and portions of certain words are illegible. We have supplied the missing letters where necessary by deducing what they should be from the context.

      . No outstanding claims were listed or attached to the certificate.

      . The copy of the form submitted with Alday’s deposition shows only her signature.

      . As evidence of this contention Allgood submitted certain affidavits and post-certificate correspondence between the parties which referred to amendments to the subcontract and additional work to be performed by Allgood due to "condemnation corrections” and “Change Order Proposals." (R2-38, Plaintiff’s Opposition To Defendant’s Motion For Summary Judgment, Exhibits). The payment applications contained in the record include a request for payment for work performed through October 23, 1992. (Rl-35, Deposition of Gloria A. Alday, Exhibit 6). Eby conceded that it made three additional payments to Allgood after the completion certificate was signed by Alday on June 8, 1992. (Rl31, Brief In Support Of Defendants' Motion For Summary Judgment at 4).

      . Although the court cited certain waiver provisions contained in the payment applications, it did not expressly interpret their legal meaning. Instead, the court focused its analysis on the completion certificate. In doing so, it rejected Allgood's contention that the document had no legal force and effect.

      . Allgood continues to maintain that the completion certificate was not a legally enforceable instrument because it was not validly executed or processed and because Eby never relied on it as a waiver of the claims brought in this action.

      . Allgood also pursues several additional subsidiary grounds in its brief which do not merit discussion.

      . Lackey was decided on April 30, 1992. The completion certificate in this case was executed in June 1992.

      . We doubt that the release was binding in view of the fact that Allgood apparently never received the consideration for it, i.e., payment of the retained funds. Because we base our decision on Lackey, however, we need not decide this issue.

      . The district court may have concluded differently on this matter had the Lackey decision been brought to its attention.

      . For instance, Eby cites Warrior Constructors, Inc. v. E.C. Ernst Co., Inc., 127 Ga.App. 839, 195 S.E.2d 261 (1973), in which the release stated that the " '[Subcontractor] does hereby release [General Contractor] from any and all claims of every nature arising under or by virtue of said subcontract’.” Id. at 840, 195 S.E.2d at 261-62 (alteration in the original). We cannot tell from the opinion whether the General Contractor was expressly named in the release. Putting that issue aside, however, a release "from any and all claims of every nature arising under or by virtue of said subcontract,” is obviously much broader in scope than a waiver of "all claim or rights of lien ... upon the premises.”

      . By addressing the various clauses of the payment applications separately, we do not mean to suggest that Georgia law requires that a released party be named in the same paragraph of the agreement that contains the release language.

      . There are actually twenty-three copies of invoices in the record, but two are duplicates.

      .To support these contentions, Eby cited All-good's answers to certain requests for admissions. For reasons unknown, Eby faded to make the prime contract a part of the record in the case. A copy of the subcontract was included in the record as Exhibit 4 to the deposition of Terry N. Peavy, a Superintendent for Allgood. (See R2-43).

      . The letters were dated September 25, 1990, November 18, 1990, February 21, 1991, October 11, 1991, February 21, 1992, August 7, 1992 and January 20, 1993. The record also includes an October 18, 1991 letter from Eby to Allgood in which Eby responded to certain demands for delay damages. (R2-49, Exhibit E).

      . It is not clear from the record whether there were distinct periods of delay throughout the course of construction for which Allgood could or should have calculated the specific amounts of damages it seeks to recover.

      . Allgood contends on appeal that whether Eby waived any alleged failure of Allgood to comply with the technical notice requirements is also a disputed fact. (Appellant's Initial Brief at 5 n. 1).

      . The court will also have before it the resolution of Allgood's retainage claim.


source: Caselaw Access Project

author: BIRCH, Circuit Judge:

license: Public Domain

text:
    In re Bruce Craig SMITH, Debtor. COMMERCIAL FEDERAL MORTGAGE CORPORATION, Plaintiff-Appellant, v. Bruce Craig SMITH, Defendant-Appellee. David P. Rogers, Jr., Chapter 13 Standing Trustee, Defendant.
    No. 94-6802.
    United States Court of Appeals, Eleventh Circuit.
    June 26, 1996.

      Vicki A. Bell, Huntsville, AL, for Appellant.
    Bradford W. Botes, Ted Stuckenschneider, Birmingham, AL, for Appellee.
    Before BIRCH and CARNES, Circuit Judges, and SIMONS , Senior District Judge.

       Honorable Charles E. Simons, Senior U.S. District Judge for the District of South Carolina, sitting by designation.

   BIRCH, Circuit Judge:

This case focuses on whether a debtor, whose primary residence has been sold in a prepetition foreclosure proceeding, but who has retained his statutory right of redemption under Alabama law, can cure his default under the mortgage and redeem his property after the foreclosure sale by paying arrearage through his Chapter 13 plan and maintaining regular mortgage payments outside the plan. Both the district court and bankruptcy court found that the debtor’s attempt to reinstate his mortgage through a Chapter 13 plan was proper. We REVERSE.

I. BACKGROUND

Appellant, Commercial Federal Mortgage Corporation (“Commercial Federal”), held a mortgage on debtor Bruce Craig Smith’s principal residence in the amount of $84,939. Smith defaulted under the terms of the note and mortgage when he failed to pay the monthly installments when they were due. On October 18, 1993, Commercial Federal conducted a valid foreclosure sale and purchased Smith’s property. Commercial Federal then sent Smith a letter notifying him that he had ten days to vacate the property, as required under Alabama law. Smith vacated the property within that time. Thus he preserved his statutory right of redemption under Alabama Code § 6-5-251 (1993). On December 29, 1993, Smith filed a voluntary Chapter 13 bankruptcy proceeding. 11 U.S.C. §§ 1301-1330 (1993). In his Chapter 13 plan, Smith proposed to reinstate the foreclosed mortgage by paying the prepetition arrearage through the plan while maintaining regular monthly payments on the debt directly to Commercial Federal. The filing of the Chapter 13 petition gave rise to an automatic stay of Commercial Federal’s foreclosure proceeding. 11 U.S.C. § 1301. On January 13, 1994, Commercial Federal moved the bankruptcy court for relief from the stay in order to complete its eviction proceedings. The bankruptcy court denied Commercial Federal’s motion and held that Smith had retained his statutory right of redemption under Alabama law and that the right of redemption could be exercised according to Smith’s Chapter 13 plan. The bankruptcy court based its decision on In re Ragsdale, 155 B.R. 578 (Bankr.N.D.Ala.1993).

Commercial Federal appealed the decision of the bankruptcy court and argued that Smith lost his right to cure his default on the mortgage on the date of the foreclosure sale of his property. The district court affirmed the decision of the bankruptcy court and found that, although other circuits have held that the date of the foreclosure sale is the ultimate “cut-off’ date on which the statutory right of redemption is lost, cases in the Eleventh Circuit support the principle outlined in In re Ragsdale, “that a debtor could cure his prepetition default on his home mortgage by making payments through the Chapter 13 trustee, and simultaneously maintain his regular mortgage payments directly to the claimant, notwithstanding the fact that the prepetition default had already resulted in a foreclosure sale.” Commercial Fed. Mortgage Corp. v. Smith, 170 B.R. 708, 710 (N,D.Ala.1994). Commercial Federal appealed the district court’s ruling.

II. ANALYSIS

The issue presented by the parties is whether 11 U.S.C. § 1322(b) permits a debt- or to exercise his state statutory right of redemption in a Chapter 13 plan by “curing” a default and “reinstating” a mortgage after a valid foreclosure sale of his property. We review the conclusions of law of the bankruptcy court and the district court de novo. In re Sublett, 895 F.2d 1381, 1383 (11th Cir.1990). The facts of this case are not in dispute.

The property rights of a debtor in a bankruptcy estate are defined by state law. In Alabama, a mortgagee holds legal title to the real property subject to the mortgagor’s equitable right of redemption. Ala.Code § 35-10-26 (1993). Alabama foreclosure law provides that, upon a foreclosure sale, a mortgagor’s equitable right of redemption ends. FDIC v. Morrison, 747 F.2d 610, 613 (11th Cir.1984), cert. denied, 474 U.S. 1019, 106 S.Ct. 568, 88 L.Ed.2d 553 (1985). “[F]oreclosure of a mortgage extinguishes the debt to the amount of the purchase price, if that amount is less than the debt, or extinguishes the entire debt if the purchase price is more than that amount.” Davis v. Huntsville Prod. Credit Ass’n, 481 So.2d 1103, 1105 (Ala.1985). The purchaser at the foreclosure sale then holds legal title to the property, subject to the mortgagor’s one year statutory right of redemption. Ala. Code § 6-5-248(a) & (b).

The only way to exercise a statutory right of redemption under Alabama law is for the mortgagor to make a lump sum cash payment of the entire purchase price paid at the foreclosure sale, plus interest, taxes, and “all other lawful charges.” Ala.Code § 6-5-253(a). Smith claims that this provision of Alabama law does not prevent him from reinstating his mortgage through a Chapter 13 plan.

Smith first argues that he has a property interest in his Alabama statutory right of redemption, which became property of the bankruptcy estate. Smith claims that the property interest should be included in the bankruptcy estate pursuant to 11 U.S.C. § 541(a). Although section 6-5-250 of the Alabama Code characterizes the statutory right of redemption as a mere personal privilege and not property or a property right, it is still a right that becomes property of the bankruptcy estate under the broad definition provided in Bankruptcy Code section 541. See Wragg v. Federal Land Bank, 317 U.S. 325, 63 S.Ct. 273, 87 L.Ed. 300 (1943); In re Saylors, 869 F.2d 1434, 1437 (11th Cir.1989).

Section 1322 of the Bankruptcy Code provides that a Chapter 13 plan “may ... provide for the curing or waiving of any default.” 11 U.S.C. § 1322(b)(3). The plan also “may ... modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence.” 11 U.S.C. § 1322(b)(2) (emphasis added). Under section 1322(b)(5), however, a plan “may ... provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.” 11 U.S.C. § 1322(b)(5).

Smith concludes that “[i]t logically follows that the debtor should be able to exercise the right of redemption through his Chapter 13 plan.” Brief of Appellee at 11 (footnote omitted). Smith argues that the reasoning of In re Ragsdale, 155 B.R. 578, should be followed in this case. Commercial Federal claims that the analysis of the bankruptcy court in In re McKinney, 174 B.R. 330 (Bankr.S.D.Ala.1994), is the proper approach.

The Ragsdales were borrowers under a promissory note, secured by a mortgage on their residence. In re Ragsdale, 155 B.R. at 580. The Resolution Trust Corporation (“RTC”) conducted a foreclosure sale of the property and was the successful bidder at the sale. Id. Nine days later, the Ragsdales filed a petition under Chapter 13 of the Bankruptcy Code. Id. The Ragsdales’ Chapter 13 plan included a proposal “to cure the default on the mortgage indebtedness to the RTC by paying the arrearage through the Chapter 13 Trustee, and to pay post-petition installments directly to the RTC.” Id. The RTC objected to the Ragsdales’ proposed plan and claimed that, under Section 1322(b)(3), the Ragsdales could not cure a default in the mortgage, and, under Section 1322(b)(5), the debt was no longer a “long-term debt.” Id. The bankruptcy court in In re Ragsdale pronounced that it was not persuaded by the reasoning of the “leading case” that discusses treatment of a debtor’s mortgage in Chapter 13, In re Glenn, 760 F.2d 1428 (6th Cir.), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985), and noted that:

This Court does not view allowing a debtor to utilize Chapter 13 to keep his home and eventually pay the entire debt owed on it as unleashing a variety of ills on the home mortgage industry. Nor does this Court feel that allowing a debtor to cure a default on a home mortgage will “decrease the attractiveness of home mortgages as investment opportunities,” as the Sixth Circuit suggests.

In re Ragsdale, 155 B.R. at 583 (quoting In re Glenn, 760 F.2d at 1434) (footnote omitted).

The In re Ragsdale court reasoned that the statutory right of redemption is a property right that survives the filing of a bankruptcy petition, and, therefore, it may be exercised through a Chapter 13 plan. Id. at 585. The bankruptcy court then concluded that the statutory right of redemption need not be exercised under the Chapter 13 plan “strictly by the terms of state law,” but that it could be “used to bring the debtor’s interest into the Chapter 13 plan, where it may be dealt with as an accelerated debt.” Id. at 586. The bankruptcy court further stated that “[t]his Court ... holds that where a debtor files a Chapter 13 petition following a foreclosure sale of his residence, he may pay the pre-foreclosure sale arrearage through the Chapter 13 trustee, while maintaining payments under the terms of the original contract.” Id. at 586.

In In re McKinney, a case with facts nearly identical to those of In re Ragsdale, the bankruptcy court rejected the In re Ragsdale court’s reasoning and held that:

[Ajfter a foreclosure sale occurs, there is no “unsecured or secured claim on which the last payment is due after the date on which the final payment under the plan is due.” There is also no “default” to cure or waive. Therefore, there is no ability to cure and maintain mortgage payments under 11 U.S.C. § 1322(b)(3) or (5).

In re McKinney, 174 B.R. at 335. The bankruptcy court determined that, when the debt- or’s property was sold at the foreclosure sale, title passed to the purchaser, and the mortgage was extinguished. Id. at 338. It stated that because “[s]ection 1322 allows modifications only to the extent there exists something to modify!,] [o]nce the debtors’ claim to title is extinguished at the foreclosure sale, § 1322(b) is no longer applicable.” Id.

The Sixth Circuit case, In re Glenn, is discussed in both In re Ragsdale and In re McKinney, and we find its analysis to be persuasive. In re Glenn, 760 F.2d 1428. In re Glenn was the consolidation of three appeals, two of which involved debtors who filed Chapter 13 petitions after their property had been sold at foreclosure sales but before their statutory redemption periods had expired. Id. at 1429-30. The Sixth Circuit reasoned as follows:

All courts agree that at some point in the foreclosure process, the right to cure a default is irretrievably lost; however, the statute itself provides no clear cutoff point except that which the courts may see fit to create. The closer that point of finality is to the beginning of the process, the greater is the protection accorded the mortgage holder, and, hence, the more attractive the home mortgage becomes as an investment. Conversely, the further down the line the court can reach to protect the debtor from the consequences of his default, the better the debtor’s needs are met by the Chapter 13 proceedings, and the more attractive those proceedings become to such debtors.

In re Glenn at 1435 (footnote omitted). The court then drew a bright-line termination date of the right to cure a default through a Chapter 13 plan as the date of the sale of the mortgaged property. Id. at 1435. We agree with the Sixth Circuit’s selection of this termination date and the reasons it articulated for choosing this date. See id. at 1435-36. While Smith retained his statutory right of redemption after filing his Chapter 13 petition, he cannot modify that right of redemption under a Chapter 13 plan that is filed after a foreclosure sale.

Smith claims that our holding in In re Saylors dictates a decision in his favor. 869 F.2d 1434. The issue in In re Saylors was whether a Chapter 13 plan could cure a home mortgage arrearage when the underlying mortgage debt had been discharged through a Chapter 7 proceeding. Id. at 1436. We found “that a home mortgage debt is transformed into a nonrecourse obligation when the debt is discharged in a chapter 7 ease.” Id. We held that the rights of the debtor, including the equitable and statutory rights of redemption, are not modified upon the receipt of a Chapter 7 discharge. Id. The In re Saylors debtor still retained his equitable right of redemption, because, although there had been a Chapter 7 discharge of the debt, there had been no foreclosure sale. We found that either a statutory or equitable right of redemption is a property right “sufficient to give a bankruptcy court jurisdiction over a debtor’s home,” but we did not hold that the bankruptcy court could modify the terms of a statutory right of redemption, which is what Smith urges us to do in this case. Id. at 1437.

Furthermore, this case also is distinguishable from our recent decision In re Hoggle, 12 F.3d 1008 (11th Cir.1994), where we concluded that a confirmed Chapter 13 plan could be modified to allow a debtor to cure a postconfirmation default pursuant to section 1322(b)(5). Id. at 1012. In In re Hoggle, we found that the statutory scheme of Chapter 13 was intended to allow flexibility in an individual’s plan to cure defaults, even those occurring after a Chapter 13 plan has been confirmed. Id. at 1010-11. The flexibility of a Chapter 13 plan does not, however, extend to debts that have been satisfied through a foreclosure sale. We must strike a balance between the rights of a debtor under the bankruptcy laws and the legitimate economic interest in encouraging lenders to invest in home mortgages. The line drawn by other circuits, and now by us in applying Alabama law, is at the foreclosure sale.

III. CONCLUSION

We are persuaded by the reasoning of In re McKinney and In re Glenn and hold that, when a debtor files for Chapter 13 bankruptcy following the foreclosure sale of his property, he can cure the default through an exercise of his Alabama statutory right of redemption. This right cannot be modified under a Chapter 13 plan, and it must be exercised as dictated under Alabama law by making a lump sum payment within one year of the foreclosure sale that includes the principal, interest and other charges under the mortgage. Accordingly, we REVERSE the district court’s decision in this case.

      . This case originally was consolidated with In re Linda F. Shaw, 94-6803. We granted Shaw’s consent motion to dismiss her appeal.

      . Section 541 provides that a bankruptcy estate is comprised of, among other types of property, "all legal or equitable interest of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(l)(1988).

      . In 1994, section 1322 was amended. The amended section 1322 provides in pertinent part that:
      (c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law—
      (1) a default with respect to, or that gave rise to, a lien on the debtor’s principal residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law.
      11 U.S.C. § 1322(c)(1) (Supp.1996) (emphasis added).
      The 1994 amendments do not apply with respect to cases commenced before October 22, 1994. Smith filed for bankruptcy on December 29, 1993, and, therefore, this subsection is not applicable to his case. It should be noted, however, that if we were to apply the amended version of section 1322, the foreclosure sale of Smith's properly most likely would have cut off his ability to cure the default on his mortgage. See In re Sims, 185 B.R. 853, 867 (Bankr.N.D.Ala.1995) (holding that the amended section 1322(c)(1) unambiguously prohibits the debtor from reinstating the mortgage under a Chapter 13 plan where there has been a prepetition foreclosure sale).

      . Several other circuits have reached similar conclusions in cases where there was a prepetition foreclosure sale. Matter of Boyd, 11 F.3d 59, 60-61 (5th Cir.) (holding that, under Mississippi law, a valid foreclosure cuts off all rights to the property, including the mortgagor’s right of redemption, and, therefore, a Chapter 13 plan filed after the foreclosure sale could not include a provision for monthly mortgage payments), cert. denied, - U.S. -, 114 S.Ct. 2103, 128 L.Ed.2d 664 (1994); Justice v. Valley Nat'l Bank, 849 F.2d 1078, 1080 (8th Cir.1988) (holding that, ”[b]ecause a foreclosure sale extinguishes the mortgage contract!)] • • • the provisions of Chapter 12 relating to the debtor’s power to cure defaults and modify the rights of secured creditors are not applicable after a foreclosure sale has been held”); Matter of Tynan, 773 F.2d 177, 179 (7th Cir.1985) (rejecting debtor's argument that statutory redemption period should be tolled until Chapter 13 plan is completed, and concluding that to do so "would cloud every title secured through a foreclosure sale due to the possible filing of a voluntary petition in bankruptcy during the statutory redemption period”).

      . A foreclosure sale may introduce a third party into the relationship between the mortgagor and mortgagee, a good faith purchaser. While the good faith purchaser buys the property at the foreclosure sale with the knowledge that the mortgagor retains a one-year statutory right of redemption, he does not purchase with the knowledge that if the mortgagor files for bankruptcy, the redemption period under a Chapter 13 plan will be extended, thus further clouding the purchaser's title to the properly. Although this case did not involve a third-party purchaser, we foresee problems with allowing the interests of third-party purchasers to be clouded in this way. Cf. In re Thompson, 894 F.2d 1227, 1230 & n. 6 (10th Cir.1990) (concluding that "[p]urchase by an independent third party at a foreclosure sale raises enough additional concerns to justify ending the right to cure in bankruptcy at that point," but declining to hold the same when the purchaser at foreclosure is the mortgagee).


author: PAULINE NEWMAN, Circuit Judge.

text:
    HOSIDEN CORPORATION, Hitachi, Ltd., Matsushita Electric Industrial Corporation, Apple Computer, Inc., International Business Machines Corporation, COMPAQ Computer Corporation, Tandy Corporation, Plaintiffs, and Sharp Corporation, Plaintiff-Appellee, v. ADVANCED DISPLAY MANUFACTURERS OF AMERICA, Defendant-Appellant, and Planar Systems, Inc., Plasmaco, Inc., OIS Optical Imaging Systems, Inc., Cherry Display Products Corporation, Electro-Plasma Inc., Photonics Technology, Inc., and Magnascreen Corporation, Defendants, and Texas Instruments, Incorporated, Defendant, v. The UNITED STATES, Defendant-Appellee. ADVANCED DISPLAY MANUFACTURERS OF AMERICA, Plaintiff-Appellant, and Planar Systems, Inc., Plasmaco, Inc., OIS Optical Imaging Systems, Inc., Cherry Display Products Corporation, Electro-Plasma Inc., Photonics Technology, Inc., and Magnascreen Corporation, Plaintiffs, v. The UNITED STATES, Defendant-Appellee.
    No. 94-1380.
    United States Court of Appeals, Federal Circuit.
    May 31, 1996.

      Paul C. Rosenthal, Collier, Shannon, Rill & Scott, Washington, DC, argued for the plaintiff-appellant.
    Paul R. Bardos, Office of the General Counsel, U.S. International Trade Commission, Washington, DC, argued for the United States, defendant-appellee. With him on the brief were Lyn M. Schlitt, General Counsel, and James A. Toupin, Deputy General Counsel.
    Christopher P. Johnson, Donovan, Leisure, Newton & Irvine, New York City, argued for Sharp Corporation, plaintiff-appellee. With him on the brief were Peter J. Gartland, David S. Versfelt, and Fusae Nara. Of counsel was Christopher K Tahbaz.
    Before RICH, Circuit Judge, SKELTON, Senior Circuit Judge, and NEWMAN, Circuit Judge.
   PAULINE NEWMAN, Circuit Judge.

In this antidumping duty case, the Advanced Display Manufacturers of America (ADMA) appeals the final decision of the United States Court of International Trade relating to imports of high-information content flat panel displays (HIC FPDs). The International Trade Commission (ITC or Commission) had determined that the appropriate procedure for analyzing the injury to the domestic industry was to cumulate the effect of sales at less than fair value (LTFV) of various electronic forms of HIC FPD, based on the Commission’s determination that the domestic industry comprised the producers of all forms of HIC FPDs. The Court of International Trade disagreed, and held that the Commission was required to conduct a separate injury analysis for each electronic form of HIC FPD.

We conclude that the Commission acted within its statutory authority in defining the “like product” of the domestic industry as HIC FPD generally, and acted correctly in determining the cumulative effect of sales at LTFV of the various electronic forms of HIC FPD. Thus the Court of International Trade erred in barring the Commission from applying this methodology for its injury determination.

BACKGROUND

On July 18, 1990 ADMA and its member companies Planar Systems, Inc., Plasmaco, Inc., OIS Optical Imaging Systems, Inc., Cherry Display Products Corporation, Electro-Plasma Inc., Photonics Technology, Inc., and Magnascreen Corporation, filed an anti-dumping duty petition. The petitioners charged that imports from Japan of HIC FPDs and subassemblies were being sold in the United States at less than fair value, and that these sales materially injured an industry in the United States. The International Trade Administration of the Department of Commerce (ITA or Commerce), and the Commission, each duly instituted an anti-dumping investigation in accordance with its authority.

The Commission’s Preliminary Determination of Injury: The Commission is responsible for determining the domestic industry that is injured by sales at LTFV. 19 U.S.C. §§ 1673b(a)(l), 1673d(b)(l), 1677(4)(A). The Commission used its standard criteria to define the domestic like product for the imported merchandise, including similarities of physical characteristics, end uses, production processes, and channels of distribution. The Commission defined the domestic “like product” as HIC FPDs and subassemblies thereof, and concluded that there was a “reasonable indication” that the domestic industry producing HIC FPDs was injured by imports from Japan that were sold at LTFV. The Commission issued a preliminary affirmative injury determination. High-Information Content Flat Panel Displays and Subassemblies Thereof From Japan, USITC Pub. 2311, Inv. No. 731-TA-469 (Sept. 1990).

Commerce’s Determinations of Sales at LTFV: In its preliminary determination Commerce defined the various electronic forms of HIC FPD and subassemblies thereof as a single “class or kind” of merchandise, based on similarities of physical characteristies, customer expectations, end uses, and channels of trade. Commerce found that HIC FPDs were being sold in the United States at LTFV. High Information Content Flat Panel Displays and Subassemblies Thereof From Japan, 56 Fed.Reg. 7008 (Feb. 21, 1991).

In its final determination, Commerce found that there were four separate classes or kinds of HIC FPD: active-matrix liquid crystal display, passive-matrix liquid crystal display, gas plasma display, and electroluminescent display. Commerce investigated each of the four kinds separately, and determined that active-matrix and electroluminescent HIC FPDs were being sold in the United States at LTFV. Since no domestic petitioner produced passive-matrix liquid crystal HIC FPDs, Commerce removed this product from the investigation without determining whether it was sold at LTFV. Commerce also removed the gas plasma HIC FPDs from the investigation, finding that the dumping margin was de minimis. Commerce calculated weighted average dumping margins of 7.02% for imports of electroluminescent HIC FPDs and 62.67% for imports of active-matrix HIC FPDs. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376 (July 16, 1991).

The Commission’s Final Determination of Injury. On return to the Commission for final injury determination, the Commission again determined that the “like product” of the domestic industry was HIC FPDs, including all the various electronic forms of HIC FPD. The Commission applied the statutory definition of “like product,” 19 U.S.C. § 1677(10), as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation.”

The Commission found that all HIC FPDs have the same general end use, for they all provide a continuous visible display of text, images, and graphics. The Commission found that all HIC FPDs share similar channels of distribution, for they are generally sold to original equipment manufacturers. They are all manufactured in sterile environments where electrical conductors and other components are built onto glass substrates before the liquid crystal, gas, or electroluminescent material is added. Purchasers explained to the Commission that they generally would consider more than one kind of HIC FPD when purchasing the display. The Commission found that prices of all kinds of HIC FPDs overlapped to a “significant degree.” Thus the Commission determined that the like product for the active-matrix and electroluminescent displays was all forms of HIC FPDs. The Commission stated: “Although the parties’ submissions and the staffs inquiries have built an extensive record in this final investigation, that record indicates to us that one like product is still appropriate.” Certain Highr-Information Content Flat Panel Displays and Display Glass Therefor From Japan, USITC Pub. 2413, Inv. No. 731-TA-469 at 7 (Aug. 1991).

The Commission recognized Commerce’s delineation into four kinds of HIC FPD, but explained that the domestic “like product” for injury purposes was not necessarily coextensive with the “class or kind” determination made by Commerce:

Although the Commission must accept Commerce’s determination as to which merchandise is within the class or kind of merchandise under investigation, the Commission determines what domestic products are like those in the class defined by Commerce. The Commission may find a domestic like product to be broader than the class or kind of imported merchandise described by Commerce, or it may find two or more like products corresponding to one class or kind.

Id. at 5 (footnote omitted). The statute and precedent support this position. See, e.g., Sony Corp. v. United States, 13 Ct. Int’l Trade 353, 360, 712 F.Supp. 978, 984 (1989) (“ITC has authority to make ‘like product’ determinations that are narrower in scope than Commerce’s ‘class or kind’ determination”).

The Commission found that the domestic industry that produces HIC FPDs was materially injured by the cumulative imports at LTFV of active-matrix and electroluminescent displays, the two kinds that were found by Commerce to be sold at LTFV. Anti-dumping duties were ordered. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 43,741 (Sept. 4, 1991).

The First Appeal to the Court of International Trade. The plaintiff Japanese manufacturers and certain domestic importers brought suit in the Court of International Trade, challenging the antidumping duty orders. They argued, inter alia, that the Commission erred in conducting a combined injury investigation of sales at LTFV of the active-matrix and electroluminescent HIC FPDs. The Court of International Trade agreed, holding that the Commission was required to conduct a separate injury analysis for each of the separate electronic forms of HIC FPD. The Court held that the Commission must separately identify the domestic industry for each form, and must separately assess the injury to that industry caused by each form individually. The court reasoned that to do otherwise would “eviscerate” the holding of Commerce that each electronic form of HIC FPD was a separate “class or kind” of merchandise.

Thus the court instructed the Commission to act on remand as follows:

the Commission must individually determine the domestic industry — the domestic producers of a like product corresponding to imported AMLCD [active-matrix] FPDs, and whether that domestic industry was injured by reason of imports of AMLCD FPDs alone. Secondly, the Commission must determine the domestic producers of the like product corresponding to EL [electroluminescent] FPDs, and whether that domestic industry was injured by reason of EL FPD importations.

Hosiden I, 16 Ct. Int’l Trade at 1097, 810 F.Supp. at 331. Both ADMA and the Commission appealed that ruling to this court. The appeals were dismissed as premature. Hosiden Corp. v. Advanced Display Manufacturers of America, 9 F.3d 977 (Fed.Cir.1993) (Table) (unpublished decision holding that review of the remand order was not appropriate because the order was not a final disposition by the Court of International Trade).

The Commission’s Actions on Remand. The Commission conducted the separate injury determinations that were ordered by the Court of International Trade, while stating its disagreement with the court’s order. The Commission stated:

[W]e respectfully disagree with the Court’s conclusion that the antidumping statute proscribes cumulating the impact of two or more classes or kinds of merchandise on a domestic industry where, as here, the like product and the domestic industry are one and the same for each class of subject merchandise.

Certain High-Information Content Flat Panel Displays and Display Glass Therefor From Japan, USITC Pub. 2610, Inv. No. 731-TA-469 at 1-1 n. 4 (Mar. 1993). A commissioner explained that the Commission has “discretion to ‘cumulate’ the separate classes of merchandise subject to investigation,” citing 19 U.S.C. § 1673 and expressing concern for the court’s refusal to defer to the Commission’s discretionary authority. Id. at III— 2-III-3.

Applying the methodology ordered by the Court of International Trade, three of the six commissioners continued to “find that there is one like product consisting of all HIC FPDs for each of the two classes or kinds of merchandise that are subject to investigation.” Id. at 1-3. The other three commissioners found the domestic like product to consist of only the same electronic form as the imported class or kind. Four of the six commissioners found that the imports at LTFV of electroluminescent HIC FPDs, taken alone, caused no material injury to the corresponding domestic industry, defined by three commissioners as only electroluminescent HIC FPDs and by one as all HIC FPDs. The Commission split 3-3 on whether the imports at LTFV of active-matrix HIC FPDs caused material injury to the corresponding domestic industry; this split resulted in an affirmative injury determination for active-matrix HIC FPDs. See 19 U.S.C. § 1677(11) (“If the Commissioners voting on a determination by the Commission, including a determination under section 1675 of this title, are evenly divided as to whether the determination should be affirmative or negative, the Commission shall be deemed to have made an affirmative determination.”) However, in June 1993 the sole domestic producer of active-matrix HIC FPDs, Optical Imaging Systems, issued a statement of no interest, whereupon the antidumping duty order on active-matrix HIC FPDs was retroactively revoked. Active Matrix Liquid Crystal High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 58 Fed.Reg. 34,409, 34,414 (June 25, 1993).

The Appeal to the Court of International Trade. ADMA argued, on appeal to the Court of International Trade, that the court’s instructions to the Commission on remand were incorrect in law. The Court of International Trade disagreed, and affirmed the Commission’s remand determination as in accordance with the court’s instructions and supported by substantial evidence. Hosiden II, 852 F.Supp. at 1058-59.

In Hosiden II the Court of International Trade instructed Commerce to revoke the remaining antidumping duty order within 10 days of the date of the court’s judgment. 852 F.Supp. at 1061. This aspect, the subject of a mandamus petition, is treated in our decision today in Appeal No. 94-1490.

The Appeal to the Federal Circuit. On appeal to this court ADMA points out that the Commission is charged with defining the domestic industry for like products for the purpose of determination of injury, that the Commission’s definition was in accordance with law and precedent, and that a cumulative injury analysis for the several forms of HIC FPDs was within the Commission’s discretionary authority. Thus ADMA argues that the Court of International Trade erred in its instructions to the Commission.

The United States contends that the Court of International Trade indeed erred in requiring the Commission to make separate injury determinations for each electronic form of HIC FPD, and that deference was owed by the court to the Commission’s decision to cumulate the injury of the electronic forms of HIC FPD. The government also states that this appeal is moot and should be dismissed and the decisions of the Court of International Trade vacated.

Sharp Corporation as appellee supports the government’s view that this appeal is moot but argues that the decisions of Hosiden I and Hosiden II should not be vacated and, if not deemed moot, should be affirmed. Sharp also argues that ADMA does not have, standing in this appeal. This court held otherwise on Sharp’s motion decided before this appeal proceeded. Hosiden Corp. v. United States, No. 94-1380 (Fed.Cir. Dec. 6, 1994), reconsid’n denied, Jan. 12, 1995. That decision resolved the question of standing.

I

MOOTNESS

We start with the question of whether there remains a case of actual controversy on this appeal. “A ease is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). In deciding whether an issue is moot, we determine the prospect that a decision on the issue would affect any party, and whether the issue is within the court’s discretion. See Cardinal Chem. Co. v. Morton Int'l, Inc., 508 U.S. 83, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993). When it is no longer of concern how a case is decided, there is no actual controversy and no basis for continuing the appeal. See Church of Scientology v. United States, 506 U.S. 9, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992).

The government argues that Commerce’s revocation of the active-matrix HIC FPD antidumping duty order, based on the withdrawal of Optical Imaging Systems as a complainant, left only one class or kind of merchandise found to be dumped, viz., the electroluminescent HIC FPD. Therefore, according to the government, it is irrelevant whether this court were to hold that the Commission’s cumulation of injury were the proper methodology, for there is now only one electronic form of HIC FPD subject to dumping duty. Thus the government argues that even if Hosiden I were incorrectly decided, as the government and ADMA state, there is no farther action to be taken on remand, mooting the appeal.

ADMA disagrees, pointing out that whether the Court of International Trade properly required the Commission to separately determine the domestic industry and injury for each electronic form of HIC FPD will have an impact on the parties. If the court’s requirement was improper, the Commission’s determination that the active-matrix and electroluminescent HIC FPDs were together causing material injury could be reinstated, whether or not Optical Imaging Systems remained as a complainant. This methodology would result in the imposition of antidumping duties on electroluminescent HIC FPDs, which otherwise, based on the decision on appeal, do not incur antidumping duties. There may be additional consequences; those mentioned suffice to show that an actual controversy continues to exist.

II

INJURY DETERMINATION

We turn to whether the Court of International Trade correctly barred the Commission from cumulating the injurious impact of sales at LTFV of the several electronic forms of HIC FPD. Determination of the reasonableness of the Commission’s combined injury analysis starts with interpretation of the statute. Matters of statutory interpretation receive plenary review on appeal. Fairchild Indus., Inc. v. United States, 71 F.3d 868, 872 (Fed.Cir.1995). However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron USA Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).

19 U.S.C. § 1673. Imposition of Anti-dumping Duties

If—

(1) the administering authority determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and
(2) the Commission determines that—
(A) an industry in the United States—
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially retarded,
by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation,
then there shall be imposed upon such merchandise an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the foreign market value exceeds the United States price for the merchandise____

19 U.S.C. § 1677(4)(A) defines “industry”:

(A) The term “industry” means the producers as a whole of a domestic like product, or those producers whose collective output of a domestic like product constitutes a major proportion of the total domestic production of the product.

The antidumping statute requires not only that there be sales at LTFV, but also that there be injury to domestic industry. Both the Court of International Trade and this court have long recognized that for injuiy determinations the “class or kind” and “like product” determinations required by the statute need not be consistent. E.g., Torrington Co. v. United States, 14 Ct. Int’l Trade 648, 650, 747 F.Supp. 744, 748 (1990) (“It is settled law that the ITC’s like product determination is separate and distinct from ITA’s determination of the class or kind of merchandise.”), aff'd, 938 F.2d 1278 (Fed.Cir.1991). Commerce had found five classes of merchandise, while the Commission found six like products — one that corresponded to each of the five Commerce classes and one that broadly corresponded to all five. In affirming the Torrington decision the Federal Circuit observed that the Commission “has the discretionary authority to define the like products that are the subject of an antidumping and countervailing duty investigation.” 938 F.2d at 1280.

The corollary has also occurred, wherein several “like products” can correspond to a single “class or kind” of merchandise sold at LTFV. E.g., American NTN Bearing Mfg. Corp. v. United States, 14 Ct. Int’l Trade 320, 325 n. 6, 739 F.Supp. 1555, 1560 n. 6 (1990) (citing Certain Valves, Nozzles, and Connectors of Brass from Italy for Use in Fire Protection Systems, USITC Pub. 1649, Inv. No. 731-TA-165 (Final) (Feb. 1985)); Badger-Powhatan, Div. of Figgie Int’l, Inc. v. United States, 9 Ct. Int’l Trade 213, 216, 608 F.Supp. 653, 657 (1985). Commerce’s designation of the class or kind of merchandise sold at LTFV does not control the Commission’s definition of the industry injured in its sales of like products.

In Algoma Steel Corp. v. United States, 12 Ct. Int’l Trade 518, 688 F.Supp. 639 (1988), aff'd, 865 F.2d 240 (Fed.Cir.), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 590 (1989), the Court of International Trade explained that the division of responsibility between the Commission and Commerce is integral to the statutory scheme. The court stated:

This division of labor has been upheld even where it has resulted in decisions which are difficult to reconcile, as when the class of merchandise found by ITA to be sold at LTFV affects several industries, not all of which are found by ITC to be materially injured____ The division of labor cannot be ignored.

688 F.Supp. at 644. In affirming Algoma the Federal Circuit stated that the relationship between the Commission and Commerce “should be one for the agencies to resolve between themselves, and not for the courts.” 865 F.2d at 241. See also Mitsubishi Elec. Corp. v. United States, 898 F.2d 1577, 1584 (Fed.Cir.1990) (“Under the statutory scheme, the Administration and the Commission have separate and different, although related, duties and responsibilities.”); Asociacion Colombiana de Exportadores de Flores v. United States, 12 Ct. Int’l Trade 634, 637 n. 4, 693 F.Supp. 1165, 1168 n. 4 (1988) (“For administrative ease and to avoid complications it would be helpful if the decisions of ITC and ITA were coterminous, but they are separate decisions that ultimately are made on separate bases.”)

The Commission used the appropriate criteria in determining the domestic industry by defining the like product as including all electronic forms of HIC FPDs. The Commission then reasonably interpreted the statute it administers to mean that the injurious effects of the LTFV imports may be combined in determining the cumulative injury to the corresponding domestic industry.

The statute provides direct and straightforward instructions to the Commission for use in determining the effect on domestic industry of imports at LTFV. The statute is broad and comprehensive, requiring consideration of the effect of such imports on prices and on producers:

§ 1677(7)(B) In making determinations under sections 1671b(a), 1671d(b), 1673b(a), and 1673d(b) of this title, the Commission, in each case—
(i) shall consider—
(I) the volume of imports of the merchandise which is the subject of the investigation,
(II) the effect of imports of that merchandise on prices in the United States for like products, and
(III) the impact of imports of such merchandise on domestic producers of like products, but only in the context of production operations within the United States;----

19 U.S.C. § 1677(7)(B) (1988). The statute neither requires nor suggests that the Commission conduct a separate injury analysis when the Commission determines that only one domestic industry corresponds to all of the classes or kinds of the goods under investigation.

Indeed, cumulation of the effects of sales at LTFV is not a new event in trade cases. In the past, the Commission has made a single injury determination when it found that several classes or kinds of imports corresponded to one like product. For example, in Cyanuric Acid and its Chlorinated Derivatives from Japan, USITC Pub. 1513, Inv. No. 731-TA-136 (Final) at 3-4 (Apr. 1984), the Commission found that a single like product, isoeyanurates, corresponded to Commerce’s three classes or kinds: cyanuric acid, diehloro isoeyanurates, and triehloro isocyanuric acid. The Commission performed a single injury analysis, combining the effects of sales at LTFV of the three classes or kinds, and finding material injury to the domestic isoeyanurate industry. As here, this finding did not “eviscerate” Commerce’s class or kind distinction, for the ensuing antidumping duty orders reflected the appropriate dumping margin for each class or kind of cyanurate, separately. Cyanuric Acid and Its Chlorinated Derivatives From Japan Used in the Swimming Pool Trade; Antidumping Duty Orders, 49 Fed.Reg. 18,148 (Apr. 27, 1984). See also Certain Flat-Rolled Carbon Steel Products from Brazil, USITC Pub. 1499, Inv. No. 731-TA-123 (Final) at 4 (Mar. 1984) (the Commission found a single like product, carbon steel plate, corresponding to Commerce’s two classes or kinds, cut-to-length plate and coiled plate; thus the Commission performed a single injury analysis).

The Commission’s decision to cumulate the injury of more than one class or kind that corresponds to the same like product accords with the policy behind the cumulation statute. 19 U.S.C. § 1677(7)(G)(i) allows the Commission to “cumulatively assess the volume and price effects of imports of the subject merchandise from all countries” with respect to which either antidumping or countervailing duty petitions were filed or initiated on the same day, “if such imports compete with each other and with domestic like products in the United States market.” As stated in USX Corp. v. United States, 12 Ct. Int’l Trade 205, 219, 682 F.Supp. 60, 73 (1988), the “purpose of cumulation is to avoid a negative injury determination when unfairly traded imports from various sources together injure an industry.” In Bingham & Taylor Div., Virginia Indus., Inc. v. United States, 815 F.2d 1482, 1485 (Fed.Cir.1987) this court interpreted the legislative history of the predecessor of 19 U.S.C. § 1677(7)(G)(i) to require cumulation of the effects of both dumped and subsidized imports. The court quoted H.R.Rep. No. 725, 98th Cong., 2d Sess. 37 (1984), reprinted in 1984 U.S.C.C.AN. 4910, 5164, which stated the purpose of preventing “material injury which comes about by virtue of several unfair acts or practices.”

The Commission is not prohibited from reflecting the commercial reality of cumulative injury, for “importers take the industry as they find it.” Iwatsu Elec. Co. v. United States, 15 Ct. Int’l Trade 44, 57, 758 F.Supp. 1506, 1518 (1991). The Commission may cumulate the effects of dumped imports from different countries or dumped and subsidized imports from the same or different countries. In determining whether sales at LTFV caused material injury to domestic industry, the Commission is not restricted by artificial distinctions that may distort the true picture of injury to the domestic industry.

Cumulation of injury caused by multiple classes or kinds of imports, when those imports compete with the same domestic like product, appropriately measures the nature of the injury to the domestic industry. The Court of International Trade erred in holding that the Commission was barred from cumulating the injurious effects of sales at LTFV of more than one electronic form of HIC FPD.

SUMMARY

The Commission reasonably interpreted and applied the statute in cumulating the effects of sales of HIC FPDs at LTFV. The Court of International Trade erred in prohibiting the Commission from conducting a combined injury analysis where, as here, the Commission found that the same domestic like product corresponded to the several classes or kinds of merchandise under investigation. We vacate the decision of the Court of International Trade, and remand for appropriate further proceedings.

VACATED AND REMANDED.

      . Hosiden Corp. v. United States, 852 F.Supp. 1050 (Ct. Int’l Trade 1994) (Hosiden II); Hosiden Corp. v. United States, 16 Ct. Int’l Trade 1088, 810 F.Supp. 322 (1992) (Hosiden I).

      . This statute is the antidumping law in effect in 1988. The law was amended by the Uruguay Round Agreements Act, Pub.L. No. 103-465, tit. II, 108 Stat. 4809 (1994); the changes in § 1673 relevant to this case relate to terminology, e.g., “normal value” replaced "foreign market value,” and "export price (or the constructed export price)” replaced "United States price."

      . The Uruguay Round Agreements Act substituted "domestic like product” for "like product” and "subject merchandise” for "merchandise which is the subject of the investigation.”