MEMORANDUM OPINION AND ORDER
McLoba Partners, Ltd. d/b/a U.S. Gold Firm ("McLoba") is pursuing a direct appeal to the Fifth Circuit of the Court's ruling that it willfully violated the automatic stay by filing a third party action against the debtor, Robert Lewis Adkins, Sr. As required in prosecuting any appeal, McLoba has filed its designation of items to be included for the record on appeal. Adkins moves here to strike the vast majority of the items included in McLoba's designation. See Docket Nos. 308 and 309.
The designated items that are subject of Adkins's motion are not part of the evidence introduced or arguments made at the hearing held on the question of whether McLoba violated the stay. And McLoba does not contend that they are. It submits, however, that such items—mostly pleadings filed after the Court's ruling or in various other cases and adversary proceedings—are "part and parcel of the appellate process and their inclusion will result in a more compete [sic] and understandable appellate record." McLoba goes on to state that, given the Court's knowledge of such items, "[i]t would be wrong to ask the court of appeals to consider the matters being appealed in a vacuum . . . ." McLoba's response also questions this Court's authority to rule on Adkins's motion, though counsel for McLoba down-played this point at the hearing. The response makes two arguments on the authority question: first, that the applicable rule, Rule 8006 of the Federal Rules of Bankruptcy Procedure, states that the record "shall include the items so designated by the parties"—thus implying that the Court has no discretion concerning the items to be included; and, second, that the Court, as the bankruptcy court, has no jurisdiction over the appeal once the notice of appeal is filed.
Assuming first that the Court can rule on Adkins's motion, the Court addresses the substantive question of whether the items so designated but objected to can be included in the appellate record. In the Fifth Circuit, items to be designated on appeal must first become part of the bankruptcy court's record. More specifically, the Fifth Circuit has stated that
Rule 8006 provides that the record on appeal from a bankruptcy court decision consists of designated materials that became part of the bankruptcy court's record in the first instance. The rule does not permit items to be added to the record on appeal to the district court if they were not part of the record before the bankruptcy court.
In re SI Restructuring, Inc., 480 F. App'x 327, 328-29 (5th Cir. 2012) (quoting
Zer-Ilan v. Frankford (In re CPDC, Inc.), 337 F.3d 436, 443 (5th Cir. 2003)). The items need not be formally entered into evidence, but should be "of record and available for consideration by the bankruptcy court when it rendered its decision."
In re Heitmeier, No. 13-6787,
2014 WL 1513886, at *1 (E.D. La. Apr. 16, 2014). If an item was not available for consideration by the
bankruptcy court in making its determination, then it should be stricken.
See SI Restructuring, 480 F. App'x at 329;
NWL Holdings, Inc. v. Eden Ctr., Inc. (In re Ames Dep't Stores, Inc.), 320 B.R. 518, 521 (Bankr. S.D.N.Y. 2005). By implication, items that were created after the court made its disposition cannot be part of the appellate record.
Zer-Ilan, 337 F.3d at 443 (citing
Kabayan v. Yepremian (In re Yepremian), 116 F.3d 1295, 1297 (9th Cir. 1997)).
Items created after the Court made its ruling were obviously not considered by the Court in its ruling. As for the items from other cases and adversary proceedings, McLoba's arguments are inapposite. The appropriate standard is not whether the designated items will give the appellate court the same birds-eye view that the bankruptcy court had. There is nothing in McLoba's argument that explains how such items became part of the bankruptcy court's record in this particular case, and how any of them could have been considered by this Court in making its decision. Adkins's motion should be granted and the irrelevant items stricken.
But can the Court decide this issue? Rule 8006 of the Federal Rules of Bankruptcy Procedure is the relevant statute concerning the appellate record. It does not, however, speak to the issue of whether a bankruptcy judge has the authority to resolve a dispute over the contents of the record on appeal. See Fed. R. Bankr. P. 8006. There is not a consensus on this issue; a case from a bankruptcy court in Ohio carefully outlines the majority and the minority views. Amedisys, Inc. v. JP Morgan Chase Manhattan Bank (In re Nat'l Century Fin. Enters., Inc.), 334 B.R. 907 (Bankr. S.D. Ohio 2005).
Under the majority view, bankruptcy courts have the power to resolve a dispute over the contents of the record on appeal. Id. at 912. It is practical and efficient: since the bankruptcy court is "the court of first impression," it is in the best position to strike wrongly designated items. Id. at 913. "While the filing of a notice of appeal generally divests a bankruptcy court of jurisdiction to proceed with respect to matters raised by the appeal, actions in aid of the appeal are not beyond its authority." Id. (citations omitted).
An opinion from the Dow Corning case sets out the minority view—that under Rule 8006, the bankruptcy court lacks discretion to strike designated materials on the appellate record. In re Dow Corning Corp., 263 B.R. 544, 548 (Bankr. E.D. Mich. 2001). The Dow Corning court began its analysis by recognizing that Rule 8006 fails to provide the appellee with any remedy when the list of designated items is perceived to be over-inclusive. Dow Corning, 263 B.R. at 546. The court reasoned that under the canon of construction expressio unius est exclusio alterius, "[t]his silence suggests that the appellee has no recourse under such circumstances." Id. at 546. The court added that, unlike its "non-bankruptcy analog," Rule 10 of the Federal Rules of Appellate Procedure, Rule 8006 is directed at the clerk of the bankruptcy court, not to the bankruptcy judge. Id. The Dow Corning court found "[t]his discrepancy between F. R. App. P. 10 and Rule 8006 . . . all the more telling considering that the latter is modeled on the former." Id. (citing Fed. R. Bankr. P. 8006 Advisory Committee Note (1983)).
"Under the well-accepted rule of statutory construction stated as expressio unius est exclusio alterius, the express inclusion of one item of a class excludes others of the same class. The only kind of modification permitted under R. 8006 would thus be addition to, and not exclusion from, the record." Dow Corning, 263 B.R. at 546 (quoting In re Berge, 37 B.R. 705, 708 (Bankr. W.D. Wis. 1983)).
The court in Amedisys rejected this view and found more persuasive the reasoning provided by WB, Ltd. v. Tobago Bay Trading Co. (In re Tobago Bay Trading Co.), 142 B.R. 534, 536 (Bankr. N.D. Ga. 1992).
According to
Tobago Bay, reliance by bankruptcy courts on the Federal Rules of Appellate Procedure is appropriate in bankruptcy appeals, particularly when the Bankruptcy Rules do not speak to a question of appellate procedure. The Court agrees with this proposition because
28 U.S.C. § 158(c) provides that bankruptcy
appeals shall generally be taken in the same manner as district court appeals, where the Federal Rules of Appellate Procedure are in force. When "the Bankruptcy Rules do not provide an answer, courts construing other provisions of the Bankruptcy Rules have looked to analogous provisions in the Federal Rules of Appellate Procedure, governing appeals to the courts of appeals, for guidance . . . ."
Amedisys, 334 B.R. at 915 (citations omitted).
The analogous provision to Rule 8006 is Rule 10(e)(1) of the Federal Rules of Appellate Procedure.
Id. at 916. Rule 10(e)(1) provides that "[i]f any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly."
Fed. R. App. P. 10(e)(1). Following the reasoning posited in
Tobago Bay, and incorporating Appellate Rule 10(e)(1), the court in
Amedisys held that the bankruptcy court, as the court where the original record was made, is the appropriate court to decide a dispute arising over the record on appeal.
Amedisys, 334 B.R. at 916.
The Amedisys court also cited the following cases supporting its view that bankruptcy courts have the power to rule on disputes over the contents of the appellate record: Metro N. St. Bank v. The Barrick Group, Inc. (In re Barrick Group, Inc.), 100 B.R. 152, 154 (Bankr. D. Conn. 1989); In re Neshaminy Office Bldg. Assocs., 62 B.R. 798, 802 (E.D. Pa. 1986); Food Distrib. Ctr. v. Food Fair, Inc. (In re Food Fair, Inc.), 15 B.R. 569, 572 (Bankr. S.D.N.Y. 1981); Saco Loc. Dev. Corp. v. Armstrong Bus. Credit Corp. (In re Saco Loc. Dev. Corp.), 13 B.R. 226, 229 (Bankr. D. Me. 1981); French Kezelis & Kominiarek, P.C. v. Carlson (In re Carlson), 255 B.R. 22, 23 (Bankr. N.D. Ill. 2000).
The Court agrees with the majority view. If either the Fifth Circuit or the District Court addresses this issue and disagrees with this, the Court submits this Memorandum Opinion and Order as a recommendation to such court.
It is, therefore,
ORDERED that the items designated as stricken on attached Exhibit A, McLoba's Amended Designation of Items, are hereby stricken from the appellate record; it is further
ORDERED that, in addition to the items that are not stricken from Exhibit A, the following items shall also be included as proper designations:
• Docket No. 296, Appellant Designation of Contents for Inclusion in Record on Appeal;
• Docket No. 297, Statement of Issues on Appeal;
• Docket No. 301, Amended Appellant Designation of Contents for Inclusion in Record on Appeal.
These three items are likewise subject of Adkins's motions; the Court therefore denies Adkins's motion as to these three items.
McLoba appealed both the Court's order that McLoba willfully violated the automatic stay [Docket No. 273] and the Court's subsequently entered order awarding Adkins his attorney's fees as damages for the stay violation [Docket No. 288]. These appeals were consolidated by the Court's order of September 5, 2014 [Docket No. 311].
The following constitutes the ruling of the court and has the force and effect therein described.
Signed November 7, 2014
/s/_________
United States Bankruptcy Judge
### End of Memorandum Opinion and Order ###
Nathaniel Peter Holzer
Texas Bar No. 00793971
Jordan, Hyden, Womble, Culbreth
& Holzer, P.C.
500 North Shoreline Blvd., Suite 900
Corpus Christi, Texas 78401-0341
Telephone: (361) 884-5678
Facsimile: (361) 888-5555
Email: pholzer@jhwclaw.com
Attorneys for McLoba Partners, Ltd.
IN RE: ROBERT LEWIS ADKINS, SR. DEBTOR.
McLoba Partners, Ltd., d/b/a U.S. Gold Firm Appellant
vs.
Robert Lewis Adkins, Sr. Appellee
APPELLANT'S AMENDED DESIGNATION OF ITEMS TO BE INCLUDED IN RECORD ON APPEAL
McLoba Partners, Ltd. d/b/a U.S. Gold Firm ("McLoba") designates the following items to be included in the record on appeal to the United States District Court for the Northern District of Texas, Abilene Division. Bankruptcy Case No. 12-10314-RLJ-7 In re: Robert Lewis Adkins, Sr., Debtor, In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
|
Doc # |
Date |
Document |
| 279 |
8/7/14 |
Amended Notice of Appeal |
| 278 |
8/7/14 |
Notice of Appeal |
| 273 |
7/24/14 |
Order |
| 272 |
7/24/14 |
Memorandum Opinion |
|
291 |
8/18/14 |
Notice of Appeal |
| 288 |
8/14/14 |
Order |
| Robert Lewis Adkins, Sr., Debtor |
| | | 1/2/2012
U.S.Gold Firm in the amount of $531,407.95 |
| 258 |
3/25/14 |
C- Email dated 3/24/14 between Nathaniel P. Holzer and Jason Kathman |
| 260 |
03/26/2014 |
willful violation of the automatic stay . . . (Graham, C.) |
| 261 |
03/27/2014 |
of the automatic stay |
| 266 |
4/15/2014 |
Damages for Willful Violation of the Automatic Stay |
| 267 |
05/01/2014 |
Jones Ctrm for 258, (Graham, C.)(Entered: 05/05/2014) |
| 268 |
05/07/2014 |
Alternative for Contempt |
| 276 |
07/28/2014 |
Affidavit of Jason P. Kathman in Support of Attorneys Fees |
| 283 |
08/07/2014 |
Objection to Affidavit filed by Attorney Jason Kathman |
| 284 |
08/08/2014 |
Appeal to the Fifth Circuit Court of Appeals |
| 285 |
8/11/14 |
Request for transcript regarding a hearing held on 5/12/2014 |
| 290 |
08/18/2014 |
for Certification to Court of Appeals) (Unopposed) |
| | | 5/12/14
McLoba will supplement when received) |
Adversary Case No. 13-1057-RLJ; In re: Harvey Morten, Trustee of the R.L. Adkins Corp. Liquidating Trust v. McLoba Partners, Ltd. dba U.S. Gold Firm, In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| Trust v. McLoba Partners, Ltd. dba U.S. Gold Firm |
| 1 |
08/09/2013 |
Liquidating Trust against McLoba Partners, Ltd. |
| 2 |
08/12/2013 |
9/11/2013 |
| 3 |
08/12/2013 |
Scheduling order |
| 4 |
08/15/2013 |
Summons service executed on McLoba Partners, Ltd. |
| 5 |
09/11/2013 |
Answer to complaint filed by McLoba Partners, Ltd.. |
| 8 |
09/20/2013 |
Jury demand filed by Defendant McLoba Partners, Ltd. |
| 9 |
09/20/2013 |
related document(s)8 Jury demand |
| 10 |
10/16/2013 |
Partners, Ltd. |
| 12 |
10/17/2013 |
Ltd. |
| 14 |
10/17/2013 |
Order regarding motion for expedited hearing |
| 15 |
10/17/2013 |
Case #1:13-cv-00175-C |
| 17 |
11/25/2013 |
Bankruptcy Judge. |
| 19 |
11/26/2013 |
to withdraw reference re: Civil Case #1:13-cv-00175-C |
| 20 |
11/26/2013 |
Court Civil Action No. 1:13-cv-00175-C. |
| 22 |
02/18/2014 1 |
Scheduling Order and Establishment of Certification Date |
| 23 |
02/18/2014 |
Order setting status conference. |
| 24 |
03/14/2014 |
Trust |
| 25 |
03/15/2014 |
and amend the pleadings |
| 27 |
03/18/2014 |
other parties and amend pleadings |
| 28 |
03/22/2014 |
d/b/a U.S. Gold Firm. |
|
29 |
03/31/2014 |
(Graham, C.) |
| 30 |
04/30/2014 |
Answer to third party complaint filed by John Spicer. |
| 31 |
05/01/2014 |
Corp. Liquidating Trust |
| 33 |
05/08/2014 |
Notice of hearing filed by Plaintiff Harvey Morton |
| 34 |
05/12/2014 |
filed by 3rd Party Plaintiff McLoba Partners, Ltd.. |
| 35 |
05/12/2014 |
Defendant John Spicer. |
| 36 |
05/16/2014 |
Nathaniel) |
| 37 |
06/12/2014 |
With Prejudice filed by Plaintiff Harvey Morton |
| 38 |
06/27/2014 |
Agreed Order dismissing adversary proceeding with prejudice. |
| 39 |
07/23/2014 |
against the party incurring same. |
Civil Action No. 1:13-cv-00175-C, Harvey Morton, Trustee of the R.L. Adkins Corp. Liquidating Trust v. McLoba Partners, Ltd. dba U.S. Gold Firm, In The United States District Court For The Northern District Of Texas, Abilene Division
| McLoba Partners, Ltd. dba U.S. Gold Firm |
| 1 |
10/17/2013 |
bankruptcy case number 13-01057 to presiding judge |
| n/a |
10/17/2013 |
Firm |
| 2 |
11/26/2013 |
the Reference. |
|
3 |
11/26/2013 |
Administratively Closing Case. |
| 4 |
06/12/2014 |
Firm |
| 5 |
07/23/2014 |
incurring same. |
Adversary Case No. 13-1001-RLJ; In re: McLoba Partners, Ltd. dba U.S. Gold Firm v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| Adkins, Sr. |
| 1 |
01/30/2013 |
against Robert Lewis Adkins Sr.. |
| 2 |
01/30/2013 |
Adversary proceeding cover sheet |
| 3 |
01/31/2013 |
Scheduling order selling deadlines |
| 4 |
01/31/2013 |
3/4/2013 |
| 5 |
02/06/2013 |
1/31/2013 |
| 7 |
03/04/2013 |
Robert Lewis Adkins Sr.. |
| 8 |
03/27/2013 |
Unopposed Motion To Abate All Deadlines |
| 10 |
04/02/2013 |
Order granting motion to abate all deadlines |
| 11 |
04/02/2013 |
Order setting hearing |
| 16 |
11/07/2013 |
McLoba Partners, Ltd. |
| 21 |
11/26/2013 |
Objection to (related document(s): 16 |
| 22 |
12/30/2013 |
Sr. |
| 23 |
12/30/2013 |
Exhibit List filed by Plaintiff McLoba Partners, Ltd. |
| 24 |
01/06/2014 |
Estoppel filed by Plaintiff McLoba Partners, Ltd. |
| 25 |
01/06/2014 |
Brief in support filed by Plaintiff McLoba Partners, Ltd |
| 28 |
01/06/2014 |
Notice of hearing filed by Plaintiff McLoba Partners, Ltd. |
| 29 |
01/07/2014 |
Order Partially Relaxing Abatement |
| 31 |
01/27/2014 |
summary judgment |
| 32 |
01/27/2014 |
Brief in opposition filed by Defendant Robert Lewis Adkins Sr. |
|
33 |
01/27/2014 |
Robert Lewis Adkins Sr. |
| 34 |
02/10/2014 |
Brief in support filed by Plaintiff McLoba Partners, Ltd. |
| 35 |
08/01/2014 |
Memorandum of opinion |
| 36 |
08/01/2014 |
judgment |
| 38 |
08/05/2014 |
McLoba Partners, Ltd. |
| 39 |
08/12/2014 |
Attachments: # 1 Affidavit # 2 Exhibit B # 3 Exhibit C |
| 40 |
08/13/2014 |
Order granting motion (related document # 38) |
| 42 |
08/14/2014 |
(RE: related document(s)39 Motion to Reconsider |
| 44 |
08/18/2014 |
Reconsider) (Unopposed) filed by Plaintiff McLoba Partners, Ltd. |
Bankruptcy Case No. 11-10241-RLJ-11; In re: R.L. Adkins Corp., Debtor, In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| R.L. Adkins Corp., Debtor |
| | | 1/2/2012
U.S.Gold Firm in the amount of $352,349.51 |
| | | 1/2/2012
U.S.Gold Firm in the amount of $352,349.51 |
| 138 |
09/12/2011 |
Holzer filed by Creditor McLoba Partners Ltd. |
| 1038 |
08/09/2013 |
McLoba Partners, Ltd. |
| 1518 |
06/06/2014 |
Partners Ltd. |
Items from Bankruptcy Case No. 11-10353-RLJ-11; In re: Adkins Supply, Inc., Debtor In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| Adkins Supply, Inc., Debtor |
| | | 1/2/2012
U.S.Gold Firm in the amount of $356,529.18 |
Items from Adversary Case No. 13-1003-RLJ, Acme Energy Services, Inc., et. al. v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| Services, Inc., et. al. v. Robert Lewis Adkins, Sr. |
Items from Adversary Case No. 13-1004-RLJ, Mary L. Ardinger, et. al. v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| et. al. v. Robert Lewis Adkins, Sr. |
Items from Adversary Case No. 13-1007-RLJ, Kent Ries, Trustee v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| v. Robert Lewis Adkins, Sr. |
Items from Adversary Case No. 13-1008-RLJ, Badger Rotary Drilling, LLC v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| Drilling, LLC v. Robert Lewis Adkins, Sr. |
Items from Adversary Case No. 13-1009-RLJ, John Dee Spicer v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
Items from Adversary Case No. 13-1011-RLJ, D & L Partners v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
Items from Adversary Case No. 13-1012-RLJ, OTC Enterprises, Inc. v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| Inc. v. Robert Lewis Adkins, Sr. |
Items from A dversary Case No. 13-1013-RLJ, TESG1, LLP v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
Items from Adversary Case No. 13-1014-RLJ, The Shoemaker Group, LLC v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| Group, LLC v. Robert Lewis Adkins, Sr. |
Items from Adversary Case No. 13-1016-RLJ, Equity Trust FBO Todd Oda IRA v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| Todd Oda IRA v. Robert Lewis Adkins, Sr. |
Items from Adversary Case No. 13-1017-RLJ, Equity Trust FBO Sharon Oda IRA v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
| Sharon Oda IRA v. Robert Lewis Adkins, Sr. |
Items from Adversary Case No. 13-1018-RLJ, Tim Wininger v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
Items from Adversary Case No. 13-1028-RLJ, Harvey Leon Morton, Trustee of the R.L. Adkins Corp. Liquidating Trust v. Robert Lewis Adkins, Sr., In The United States Bankruptcy Court For The Northern District Of Texas, Abilene Division
Doc #288 and #291 are a separate but closely related order and notice of appeal. Appellant McLoba believes they should be considered together with this appeal as one appellate matter, with only one record on appeal, and expects to file a motion to consolidate the two appeals.
--------
Respectfully submitted,
/s/ Nathaniel Peter Holzer
Nathaniel Peter Holzer
Texas Bar No. 00793971
Jordan, Hyden, Womble, Culbreth
& Holzer, P.C.
500 North Shoreline Blvd., Suite 900
Corpus Christi, TX 78401-0341
Telephone: (361) 884-5678
Facsimile: (361) 888-5555
Email: pholzer@jhwclaw.com
Attorneys for McLoba Partners, Ltd.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document was served via the Court's electronic noticing system on September 2, 2014 on counsel for Appellee shown below. jkathman@pgkpc.com
Jason P. Kathman
Pronske Goolsby & Kathman, P.C.
2200 Ross Avenue, Suite 5350
Dallas, TX 75201
/s/ Nathaniel Peter Holzer
Nathaniel Peter Holzer