Untimely Appeals and Waiver Bar Collateral Attacks on Chapter 13 Agreed Judgments; Withdrawal of Continuance Waives Due-Process Complaints

Case: Ricky Graham v. John Hardeman (In re Ricky Dale Graham), BAP No. WO-25-011

Court: United States Bankruptcy Appellate Panel of the Tenth Circuit

Date: March 25, 2026 (unpublished; persuasive value only under 10th Cir. BAP L.R. 8026-5)

I. Introduction

This appeal arose from a Chapter 13 debtor’s post-confirmation compliance dispute with his Chapter 13 trustee. Debtor Ricky Dale Graham filed a Chapter 13 case in August 2022. After confirmation, Trustee John T. Hardeman commenced an adversary proceeding seeking (i) revocation of plan confirmation under 11 U.S.C. § 1330(a) for alleged nondisclosure of assets, income, and prepetition transfers to Graham’s fiancée, Donna Danner, and (ii) dismissal with prejudice under § 1307(c)(7).

The parties settled via an Agreed Judgment approved on November 21, 2023, revoking confirmation and imposing strict compliance terms—most notably, amended disclosures, a new plan, and an express prohibition on transferring assets to or conducting business with Danner. The settlement also contemplated severe consequences: dismissal with prejudice and a permanent bar to discharging prepetition debts if the plan was not completed.

After the case was later dismissed (and then reinstated on reconsideration), the bankruptcy court held an evidentiary hearing and dismissed the case with prejudice for violating the Agreed Judgment. Graham, pro se, appealed raising (1) jurisdiction, (2) alleged error in approving the Agreed Judgment (duress/incapacity), (3) denial of time to review “new evidence”/continuance issues and due process, and (4) alleged error and “judicial misconduct” in finding a violation and dismissing.

II. Summary of the Opinion

The BAP affirmed. It held that:

  • The BAP had jurisdiction over the appeal from the final dismissal order.
  • It lacked jurisdiction to review the Agreed Judgment because Graham did not timely appeal that final order; in any event, arguments attacking the Agreed Judgment were waived because they were not raised in the bankruptcy court in opposition to the Motion to Dismiss.
  • Graham waived any complaint about a continuance and preparation time by withdrawing his continuance request at the hearing; the record also showed adequate notice and compliance with local exhibit-exchange rules.
  • Claims of judicial misconduct were unfounded; credibility determinations are for the trial court. The bankruptcy court’s prompting of a hearsay objection and striking hearsay testimony was within its authority, and any error was harmless.
  • Graham inadequately briefed any substantive challenge to the finding of breach/dismissal; inadequately raised issues are waived on appeal.

III. Analysis

A. Precedents Cited (and Their Role)

  • In re Davis, 239 B.R. 573, 576 (10th Cir. BAP 1999)
    Used twice: (1) to confirm that an order dismissing a Chapter 13 case is a final, appealable order; and (2) to supply the abuse-of-discretion standard for dismissal under § 1307(c).
  • Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1189 (10th Cir. 2010)
    Cited for the abuse-of-discretion standard governing evidentiary rulings, framing Graham’s hearsay/record-striking complaints as discretionary trial-management issues.
  • Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007) (quoting United States v. West, 828 F.2d 1468, 1469 (10th Cir. 1987))
    Cited for abuse-of-discretion review of continuance denials, placing the “manifest injustice” burden on the appellant.
  • United States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986) and Cruz v. Farmers Ins. Exch., 42 F.4th 1205, 1210 (10th Cir. 2022)
    These define abuse of discretion and identify legal error/clearly erroneous factfinding as classic forms of abuse—benchmarks the BAP found unmet.
  • In re Durability, Inc., 893 F.2d 264, 265-66 (10th Cir. 1990)
    Critical to finality: it explains that bankruptcy “finality” is measured by the relevant “judicial unit” (e.g., the adversary proceeding), supporting the conclusion that the Agreed Judgment ended the adversary proceeding and was final when entered.
  • Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. 17 (2017); In re Latture, 605 F.3d 830, 832 (10th Cir. 2010)
    These underpin the jurisdictional nature of statutorily prescribed appeal deadlines. The BAP used them (with 28 U.S.C. § 158(c)(2) and Fed. R. Bankr. P. 8002(a)) to hold that missing the appeal window foreclosed appellate review of the Agreed Judgment.
  • McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) and Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993)
    Used to enforce issue preservation: arguments not raised below (or switched theories on appeal) are waived.
  • In re Donald, 328 B.R. 192, 199 (9th Cir. BAP 2005)
    Cited to rebut any assumption that defenses cannot be raised in contested matters (Rule 9014). The BAP used it to reinforce that Graham could and should have raised “duress/incapacity” defensively in response to the Motion to Dismiss, rather than for the first time on appeal.
  • Dietz v. Bouldin, 579 U.S. 40, 47 (2016)
    Anchors the court’s inherent authority to manage proceedings efficiently—supporting denial/handling of continuances and courtroom control over testimony.
  • United States v. McManaman, 653 F.2d 458, 460 (10th Cir. 1981)
    Provides the continuance standard: reversal only for a clear abuse of discretion resulting in manifest injustice.
  • Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995)
    Used to dispose of the “judicial misconduct” allegation: disagreement with the outcome does not establish misconduct.
  • Dalton v. IRS, 77 F.3d 1297, 1302 (10th Cir. 1996) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)) and Quezada v. County of Bernalillo, 944 F.2d 710, 721 (10th Cir. 1991)
    These collectively emphasize deference to the trial court’s credibility determinations and resolution of conflicting evidence—central to rejecting Graham’s claims that the bankruptcy judge “twisted” testimony.
  • Wallace v. Mulholland, 957 F.2d 333, 337 (7th Cir. 1992); Sanders v. Rickertsen, No. 96-4034, 1999 WL 164918, at *2 (7th Cir. Mar. 17, 1999) (unpublished); United States v. Johnson, 529 F.3d 493, 503 n.6 (2d Cir. 2008); United States v. Pisani, 773 F.2d 397, 402 (2d Cir. 1985)
    Cited to normalize a judge’s sua sponte intervention to stop improper/hearsay testimony. This was used to reject the claim that the bankruptcy court’s prompting of a hearsay objection reflected bias or misconduct.
  • In re Bloom, 634 B.R. 559, 577-78 (10th Cir. BAP 2021)
    Supplies the harmless-error test for evidentiary exclusions: no reversible error unless a substantial right is affected and the excluded evidence could have changed the outcome.
  • In re Syngenta AG MIR 162 Corn Litigation, 61 F.4th 1126, 1181 (10th Cir. 2023) and United States v. Fisher, 805 F.3d 982, 991 (10th Cir. 2015)
    Used to hold that issues inadequately raised or merely mentioned without developed argument are waived on appeal—supporting affirmance where Graham did not meaningfully brief the core breach/dismissal analysis.

B. Legal Reasoning

1. Appellate jurisdiction vs. scope of review

The BAP drew a sharp line between (a) its jurisdiction to review the final dismissal order and (b) its inability to revisit the earlier Agreed Judgment. Using In re Davis, it treated the dismissal order as final. But it treated the Agreed Judgment as a separate, final order in a discrete “judicial unit” (the adversary proceeding), citing In re Durability, Inc..

Because Graham did not appeal the Agreed Judgment within the Rule 8002 time limit, the BAP deemed review jurisdictionally barred, relying on 28 U.S.C. § 158(c)(2), Hamer v. Neighborhood Housing Servs. of Chicago, and In re Latture.

2. Issue preservation (waiver) as an independent ground

Even if jurisdiction existed, the BAP held Graham’s “duress/incapacity” attack was waived because he did not present it to the bankruptcy court as a defense to the Motion to Dismiss. The panel relied on McDonald v. Kinder-Morgan, Inc. and Lyons v. Jefferson Bank & Tr. for the general waiver rule, and cited In re Donald to emphasize that defensive matters can be raised in contested matters (like a motion to dismiss), even though Rule 12(b) does not apply there.

3. Continuance/due process: waiver by withdrawal, plus record-based adequacy

Graham argued he lacked time to review evidence and that the court delayed ruling on continuance requests. The BAP treated the continuance decision as discretionary (Rogers v. Andrus Transp. Servs.; United States v. McManaman) and reinforced that courts have inherent docket-management authority (Dietz v. Bouldin).

The decisive move was factual and procedural: at the hearing, Graham told the bankruptcy court he did not want a continuance. The BAP held this waived any complaint about denial of a continuance and, consequently, waived related claims of inadequate preparation time and due process. Separately, the BAP noted the Motion to Dismiss had been pending for months and that the trustee complied with Local Rule 9017-1 exhibit exchange timing, supporting the conclusion that Graham had adequate notice and opportunity to be heard.

4. “Judicial misconduct,” hearsay control, and harmless error

The BAP rejected the judicial-misconduct claim as outcome-based dissatisfaction, citing Green v. Seymour. It deferred to credibility determinations under Dalton v. IRS and Quezada v. County of Bernalillo, recognizing the trial judge’s superior position to observe demeanor.

As to the hearsay incident—where the bankruptcy judge asked counsel whether he wanted to object—the BAP treated this as permissible trial management. It cited Dietz v. Bouldin and persuasive authorities (Wallace v. Mulholland; Sanders v. Rickertsen; United States v. Johnson; United States v. Pisani) indicating no rule forbids a judge from intervening sua sponte to stop improper testimony. And even if erroneous, the BAP applied In re Bloom to deem the exclusion harmless because it would not have changed the outcome.

5. Waiver for inadequate briefing on the dispositive merits

Finally, the BAP held Graham did not meaningfully develop arguments challenging the finding of violation of the Agreed Judgment or the dismissal with prejudice, beyond the already-rejected issues about the Agreed Judgment itself and the hearing procedure. Under In re Syngenta AG MIR 162 Corn Litigation and United States v. Fisher, such underdeveloped issues are waived on appeal—providing an additional path to affirmance.

C. Impact

  • Reinforces “finality silos” in bankruptcy. By treating the Agreed Judgment in the adversary proceeding as a separate final order, the decision underscores that bankruptcy litigants must track finality and appeal deadlines at the proceeding level—not merely at the overall case level (In re Durability, Inc.).
  • Strengthens the practical enforceability of settlement-based compliance regimes. Where a Chapter 13 case proceeds under an agreed compliance order incorporated into confirmation, later challenges framed as “duress” or “confusion” face steep barriers if not timely appealed and preserved.
  • Signals that pro se status does not relax preservation rules. The outcome turned heavily on waiver (failure to raise issues below; withdrawal of continuance; inadequate appellate briefing), illustrating that procedural defaults can be dispositive even when substantive disputes exist.
  • Affirms active trial management. The panel’s approval of the judge’s prompt regarding hearsay objections supports trial-court latitude to manage the evidentiary record, particularly in bankruptcy hearings where pro se participation may increase the risk of improper testimony.
  • Consequences: dismissal “with prejudice” and discharge bars are sustainable when grounded in agreed orders and post-settlement breach findings. Although the BAP did not reweigh the underlying breach evidence, its affirmance—coupled with waiver holdings—encourages trustees and courts to memorialize compliance expectations and remedies clearly in agreed judgments.

IV. Complex Concepts Simplified

  • “Final order” in bankruptcy. Bankruptcy cases contain multiple sub-proceedings. An order can be “final” if it ends a particular adversary proceeding, even though the main bankruptcy case continues. That is why the Agreed Judgment could be final (and immediately appealable) when entered.
  • Jurisdictional appeal deadline (Rule 8002 / § 158(c)(2)). If the notice of appeal is not filed on time, the appellate court cannot review that order. The panel treated this as a hard stop for attacking the Agreed Judgment.
  • Waiver (issue preservation). Appellate courts generally review what was presented to and decided by the trial court. If an argument (like duress/incapacity) is not raised below, it is typically lost on appeal. Likewise, issues must be developed in the opening appellate brief, not merely mentioned.
  • Abuse of discretion. Many trial-level decisions (dismissal for cause, continuances, evidentiary rulings) are overturned only if the decision falls outside permissible choices or rests on legal error. This is a deferential standard.
  • Hearsay and striking testimony. Hearsay is an out-of-court statement offered for the truth of what it asserts. Courts may exclude it unless an exception applies. A judge may intervene to keep improper evidence out; even if an evidentiary call is wrong, reversal requires showing the error likely mattered to the outcome (harmless-error doctrine).
  • Dismissal “with prejudice” and “bar to discharge.” Dismissal with prejudice can include limits on refiling and, as implemented here by the settlement terms, can function as a permanent bar to discharging prepetition debts in later bankruptcy cases.

V. Conclusion

The BAP’s decision is a procedural and finality-focused affirmance: it held that a debtor cannot use an appeal from a later dismissal order to relitigate an earlier agreed judgment that was not timely appealed, and that failure to preserve arguments—coupled with withdrawing a continuance request and inadequately briefing issues— can be fatal on appeal. Substantively, the opinion also supports trial-court discretion in credibility determinations and evidentiary control, including modest sua sponte intervention to prevent hearsay, and it reflects the enforceability of strict-compliance settlement orders in Chapter 13 administration.

Publication note: The opinion is “NOT FOR PUBLICATION” and not precedential, but it may be cited for persuasive value under 10th Cir. BAP L.R. 8026-5.