Appeal from the United States Bankruptcy Court for the District of Puerto Rico (Hon. Enrique S. Lamoutte, U.S. Bankruptcy Judge)
DEASY, Bankruptcy Judge
Jaime Gallardo Hernandez (the "Debtor") appeals the bankruptcy court's orders denying the Debtor's "Motion Requesting an Extension of Time in Which to Comply with Orders Issued in Minutes of Contested Matters" and "Debtor's Challenge of Banco Bilbao Vizcaya's Conduct in this Case" and denying "Debtor's Motion for Reconsideration or Extension of Time to Appeal; Reopening under FRCvP60(b) and Withdrawal of Counsel." The orders were entered on July 12, 2001 and August 14, 2001, respectively. For the reasons outlined below, we affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
The Debtor filed a pro se petition under Chapter 13 in 1997 at a time when Banco Bilbao Vizcaya (the "Bank") was pursuing a foreclosure action in state court. The Debtor's case was eventually converted to Chapter 7 because the Debtor's debts exceeded the limits for Chapter 13. See 11 U.S.C. § 109(e). The Bank ultimately received relief from the automatic stay and sold one of the Debtor's parcels of real estate for $130,000. The Debtor brought numerous motions before the bankruptcy court with respect to the sale, including a motion to determine whether the Bank was entitled to keep all of the proceeds from the sale. During the course of his case, the Debtor on various occasions made informal allegations that the Bank violated the automatic stay by continuing to send the Debtor collection notices postpetition. The Debtor eventually obtained counsel and then successor counsel to represent him in the bankruptcy court.
On March 30, 2001, the bankruptcy court held a pretrial hearing on two contested matters, in the nature of a status conference on the outstanding issues before it. At the hearing, the parties agreed that three issues needed to be determined by the court: (1) whether the Bank correctly applied the monies from the sale of the Debtor's property, which would involve determining the nature and the extent of the Bank's claim; (2) whether the Bank was in contempt for not following the bankruptcy court's order regarding the sale of the property; and (3) whether the Bank was in contempt for violating the automatic stay with respect to sending postpetition collection notices. The bankruptcy judge expressly stated at the hearing:
[S]ince these issues are not clearly defined in any motion before the Court I am going to grant the Debtor 20 days to file a motion in each issue, which motion shall contain the facts upon which the request is based [and] a legal memorandum of why the Debtor is entitled to the request. And I am going to grant Banco Bilbao and the Trustee 20 days thereafter to reply to the three motions which the Debtor is going to file in relation to each one of the specific issues which have been defined today at this hearing.
Appellee's Appendix at 31. The judge then warned that "[i]f the Debtor does not file a motion within 20 days regarding one or more of these issues I am going to infer and construe the failure as a waiver by the Debtor of the causes of actions on any of the three specific issues." Id. at 32. After this warning, counsel for the Debtor replied "[r]ight," indicating he understood the judge's warning. Id.
The Debtor did not comply with the bankruptcy court's order. On May 29, 2001, more than a month after his three motions were due, the Debtor filed a "Motion Requesting an Extension of Time in Which to Comply with Orders Issued in Minutes of Contested Matters" and "Debtor's Challenge of Banco Bilbao Vizcaya's Conduct in this Case" (collectively the "Motions"). On June 22, 2001, the Bank filed a "Reply to Debtor's Challenge of Banco Bilbao Vizcaya's Conduct in this Case." On July 12, 2001, the bankruptcy court entered an order denying the Motions.
Copies of these motions do not appear in the record nor in either party's appendix.
In ruling on the "Debtor's Challenge of Banco Bilbao Vizcaya's Conduct in this Case," the bankruptcy court stated that the "debtor's request still fails to articulate with clarity the factual and legal basis for the three issues that the court found, with the parties concurrence, that were to be presented to the court." Appellant's Appendix at 131. In denying the "Motion Requesting an Extension of Time in Which to Comply with Orders Issued in Minutes of Contested Matters," the bankruptcy court stated that "the debtor has been afforded ample and reasonable time to articulate its requests before this court and has failed to do so." Id. at 131-32. As an additional ground for denying the Motions, the bankruptcy court stated "the debtor has waived his causes of action" as "[t]his was the sanction prescribed by the court in its order of March 30, 2001, docket no. 148, which was not appealed and is final." Id. The bankruptcy court also noted:
This court does not consider lightly sanctioning a party with a waiver of causes of action. However, the history of this case and the debtor's inability to present a coherent and legally articulated request shows that the debtor has been afforded ample opportunity to do so and has not taken advantage of said opportunities.
Id. at 130.
On August 1, 2001, the Debtor filed "Debtor's Motion for Reconsideration or Extension of Time to Appeal; Reopening under FRCvP60(b) and Withdrawal of Counsel" (the "Reconsideration Motion"), which sought reconsideration of the bankruptcy court's order on the Motions. On August 14, 2001, the bankruptcy court entered an order denying the Reconsideration Motion on the grounds that the Debtor "failed to submit any grounds that would move this court to alter its ruling under either Rule 59 or 60 of the Federal Rules of Civil Procedure." Id. at 77. On August 14, 2001, the bankruptcy court also entered a judgment with respect to its prior rulings in July on the Motions. On August 23, 2001, the Debtor filed this appeal.
Again, this motion does not appear in the record nor in either party's appendix.
II. JURISDICTION
The Bankruptcy Appellate Panel (the "Panel") has jurisdiction over this appeal of the bankruptcy court's orders denying the Motions and Reconsideration Motion. See 28 U.S.C. § 158(a)(1) and (b).
III. STANDARD OF REVIEW
A bankruptcy court's findings of fact are reviewed under the clearly erroneous standard while its conclusions of law are reviewed de novo. See Brandt v. REPCO Printers Lithographics, Inc. (In re Healthco Int'l, Inc.), 132 F.3d 104, 107-08 (1st Cir. 1997); Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30 (1st Cir. 1994); In re SPM Mfg. Corp., 984 F.2d 1305, 1310-11 (1st Cir. 1993). See also F.R.Bankr.P. 8013. A bankruptcy court's decision to impose sanctions is reviewed for abuse of discretion. See Glatter v. Mroz (In re Mroz), 65 F.3d 1567, 1571 (11th Cir. 1995); Goldman, Antonetti, Ferraiuoli, Axtmayer Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 692 (1st Cir. 1993), Velazquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 1075 (1st Cir. 1990); Jensen v. Frank, 912 F.2d 517, 524 (1st Cir. 1990).
IV. DISCUSSION
The Debtor seeks review of the bankruptcy court's orders, which, according to the Debtor, denied his claims that the Bank violated both the automatic stay and the bankruptcy court's order regarding the sale of the Debtor's real estate. Unfortunately, the Debtor has not supplied the Panel with many of the pleadings that are relevant to its review. For example, the Debtor did not include in its appendix copies of the transcript of the March 30, 2001 hearing, the Motions, the Bank's response to the Motions, or the Reconsideration Motion. Fortunately, the Bank supplemented the Debtor's appendix and filed a copy of the transcript of the hearing and its response to the Motions. Nonetheless, the record is still incomplete.
It is an appellant's responsibility to provide an appellate court with intelligible briefs and appendices sufficient to support his points on appeal. See Credit Francais Int'l, S.A. v. Bio-Vita, Ltd., 78 F.3d 698, 700 (1st Cir. 1996); United States v. One Motor Yacht Named Mercury, 527 F.2d 1112, 1113 (1st Cir. 1975). Despite any insufficiency the appellate court can review the merits as the record allows. See Credit Francais, 78 F.3d at 700; One Motor Yacht, 527 F.2d at 1113. However, the consequences of any insufficiency fall on the appellant. See Barilaro v. Consolidated Rail Corp., 876 F.2d 260, 263 (1st Cir. 1989). The appellate court also has discretion to dismiss an appeal if the absence of a complete record thwarts intelligent review. See Credit Francais, 78 F.3d at 700.
Based upon the record before us, it is impossible to assess whether the bankruptcy court correctly concluded that the Motions failed to articulate with clarity "the factual and legal basis" for the three types of relief identified during the hearing in March 2001. Without reviewing the Reconsideration Motion, it is also impossible for the Panel to determine whether the Reconsideration Motion was without merit. For these reasons, the bankruptcy court's orders must be affirmed.
The bankruptcy court also concluded that the Debtor had waived the relief sought in the Motions because the Debtor failed to file them timely in accordance with the pretrial order. The bankruptcy court had warned the Debtor that if he did not file his motions within twenty days of the hearing, as ordered, the bankruptcy court would construe that as a waiver in the nature of a sanction on the Debtor. Although the bankruptcy court did not expressly state the basis for the imposition of sanctions, it appears from the court's order that the bankruptcy court was concerned about the Debtor's failure to properly plead his claims for relief in a timely manner.
Rule 16(f) of the Federal Rules of Civil Procedure, made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7016, provides:
Part VII of the Federal Rules of Bankruptcy Procedure are applicable to adversary proceedings. Rule 9014 of the Federal Rules of Bankruptcy Procedure make many of the rules in Part VII applicable to contested matters. Rule 9014 specifically states that "[t]he court may at any stage in a particular matter direct that one or more of the other rules in Part VII shall apply." While it is unclear from the record whether the bankruptcy court specifically ordered Rule 7016 to apply to the matters before it, the transcript from the hearing on March 30, 2001, makes clear that the bankruptcy court was conducting a pretrial hearing, which conferences are scheduled and conducted pursuant to Rule 16.
If a party or party's attorney fails to obey a scheduling or pretrial order . . . the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D).
Fed.R.Civ.P. 16(f). Rule 37(b)(2) of the Federal Rules of Civil Procedure, made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7037, provides in relevant part:
[T]he court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
. . .
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any party thereof, or rendering judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
Fed.R.Civ.P. 37(b)(2) (emphasis added). These rules make clear that a bankruptcy court has the authority to dismiss an action or proceeding, or any part thereof, based on a party's failure to comply with a court order. See Medfit Int'l, 982 F.2d at 691-92. "Ordinarily, decisions as to whether sanctions are warranted, and if so, what form they should take, are best left to the trier." Jensen, 912 F.2d at 524. Litigants who seek to reverse such decisions shoulder a heavy load. Id. While dismissal with prejudice is a harsh sanction, such action may be warranted, especially where the court provided explicit warnings that failure to comply with its order could result in such a sanction. See Medfit Int'l, 982 F.2d at 692.
Given the history of the Debtor's case as outlined in the bankruptcy court's order, the specific warning given to the Debtor by the bankruptcy court at the hearing and his counsel's acknowledgment of it, and the heavy burden on the Debtor to demonstrate abuse of discretion, the Panel concludes that the bankruptcy court did not abuse its discretion in finding that the Debtor had waived his causes of action as a sanction. The bankruptcy court clearly articulated its warning in March 2001 in ordering the Debtor to file motions clarifying the relief he was seeking, and his failure to comply with the order was at his peril. The bankruptcy court was justified in denying the motions as a sanction.
V. CONCLUSION
Our review on appeal has been limited by the incomplete record before us. However, the Panel is able to conclude that the bankruptcy court did not abuse its discretion in denying the Motions as a sanction under Rules 16(f) and 37(b)(2)(C) of the Federal Rules of Civil Procedure for failing to comply with the court's order. Accordingly, the bankruptcy court's orders are AFFIRMED.
It is further noted that even if Rules 16(f) and 37(b)(2)(C) did not authorize the bankruptcy court to deny the relief requested by the Debtor in the Motions as a sanction for failure to comply with the court's order, bankruptcy courts have inherent power to control the proceedings and the conduct of parties before it, which includes sua sponte action by the court to dismiss an action for failure to prosecute. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67 (1980); Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962); Glatter v. Mroz (In re Mroz), 65 F.3d 1567, 1574-75 (11th Cir. 1995).