Christensen v. Black (In Re Black) , 130 F. App'x 205 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 27 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
In re: CHERISE ROUNDY BLACK,
Debtor,
_______________________________ No. 03-4078
(BAP No. UT-02-065)
STEVE S. CHRISTENSEN, (BAP)
Appellant,
v.
CHERISE ROUNDY BLACK;
ANDRES DIAZ, Chapter 13 Trustee,
Appellees.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and KELLY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Steve S. Christensen, an attorney representing himself in these proceedings,
appeals the decision of the Tenth Circuit Bankruptcy Appellate Panel (BAP) to
affirm certain bankruptcy court rulings because of the insufficiency of his
appendix. We take jurisdiction under 28 U.S.C. § 158(d), and we affirm.
I.
Mr. Christensen filed a secured claim for legal fees in a former client’s
bankruptcy case. Initially, the bankruptcy court allowed only a small percentage
of Mr. Christensen’s claim, but the BAP remanded for reconsideration. The
bankruptcy court then allowed a larger percentage of the claimed fees, though not
the entirety of the claim. It also rejected Mr. Christensen’s motion for
reconsideration.
Mr. Christensen again appealed to the BAP. He submitted an appendix that
included the transcript of the bankruptcy court’s initial oral findings and rulings
both on his claim and on his motion for reconsideration, and a copy of the
bankruptcy court’s written order regarding his motion for reconsideration. He
neglected, however, to include a copy of the bankruptcy court’s written order
regarding his claim (the Claims Order). In light of this omission, the BAP
determined that Mr. Christensen had not provided an adequate record for its
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review, and it summarily affirmed the bankruptcy court’s decisions.
Mr. Christensen appeals.
II.
Mr. Christensen contends that the BAP erred in declining to consider his
arguments solely because he failed to include a copy of the Claims Order in the
appendix. The applicable rules are the Federal Rules of Bankruptcy Procedure,
10th Cir. BAP R. 8018-11(a), interpretations of which we review de novo. See
State Bank of Southern Utah v. Gledhill (In re Gledhill ), 76 F.3d 1070, 1077 (10th
Cir. 1996).
The rules require an appellant before the BAP to include, in an appendix, a
copy of the order or judgment appealed from. Fed. R. Bankr. P. 8009(b)(3); Fed.
R. Bankr. P. 8006; 10th Cir. BAP R. 8006-1(a). Failure to comply with the rules
“is ground . . . for such action as . . . the bankruptcy appellate panel deems
appropriate, which may include dismissal of the appeal.” Fed. R. Bankr. P.
8001(a). Relying on decisions of this court, the BAP has given notice that “when
the record on appeal fails to include copies of the documents necessary to decide
an issue on appeal, this Court is unable to rule on that issue and may summarily
affirm the bankruptcy court.” Lopez v. Long (In re Long) , 255 B.R. 241, 245
(B.A.P. 10th Cir. 2000).
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In Mr. Christensen’s case, the BAP indicated that, in the absence of the
written Claims Order, it could not determine the legal foundation of the
bankruptcy court’s rulings, or whether the written order changed or supplemented
the bankruptcy court’s initial oral findings and rulings. Aplt. App. 3 at 506. It
continued:
The failure by the parties to provide a copy of the Claims Order
thwarts any attempt by this Court to apply the abuse of discretion
standard, particularly when, as here, a claim is made that the
bankruptcy court did not enter adequate findings. We have no basis
on which to evaluate Christensen’s argument because we do not
know what ultimate findings of fact or conclusions of law the
bankruptcy court made in the Claims Order.
Id.On appeal, Mr. Christensen admits that he did not include the Claims Order
in his BAP appendix, Aplt. Br. at 12, but he argues that, despite his omission, the
BAP actually had a sufficient record and did not need the Claims Order to make
its review. The problem with his argument is that, without the Claims Order, the
BAP could not determine its importance or the sufficiency of the record. Because
the Claims Order was not before the BAP when it made its ruling, we decline
Mr. Christensen’s invitation to review the Claims Order and to determine that the
record was sufficient for the BAP to decide the appeal. See Aero-Medical, Inc. v.
United States , 23 F.3d 328, 329 n.2 (10th Cir. 1994) (striking documents that
were not before the district court). Further, we note that Mr. Christensen’s
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contention that his appendix was sufficient because Fed. R. Bankr. P. 8009(b)(5)
requires the appendix to contain either the written opinion or the oral conclusions
of the bankruptcy court borders on frivolous, given that Fed. R. Bankr. P.
8009(b)(3) clearly requires an appellant to provide the judgment or order from
which the appeal is taken, and that Rule 8009(b) is written in the conjunctive, not
the disjunctive. See also Fed. R. Bankr. P. 8006; 10th Cir. BAP R. 8006-1(a).
The document Mr. Christensen omitted–the court’s final judgment
underlying the issue on appeal–is generally an extremely important, if not crucial,
document for a reviewing court. The BAP was not required to engage in
speculation about the contents of the Claims Order. It could have remedied
Mr. Christensen’s omission and obtained a copy of the order from the bankruptcy
court, but it was not required to so accommodate him. Rather, in light of
Mr. Christensen’s failure to provide the proper materials for review, the BAP was
entitled to affirm the decision of the bankruptcy court. See United States v.
Vasquez , 985 F.2d 491, 494 (10th Cir. 1993) (“When the record on appeal fails to
include copies of the documents necessary to decide an issue on appeal, the Court
of Appeals is unable to rule on that issue.”).
Finally, Mr. Christensen suggests that the BAP should have granted his
motion to reconsider and to reopen the record to allow him to submit the Claims
Order. Lacking explicit guidance from its own rules regarding the appropriate
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circumstances for granting such a motion, the BAP looked to Fed. R. App. P.
40(a)(2) and 10th Cir. R. 40.1(A) for guidance, as permitted by its local rules. It
held that reconsideration and/or reopening was not warranted where
Mr. Christensen failed to show that the BAP had overlooked or misconstrued a
significant issue. We agree, and, having reviewed the record before us, we
conclude that the BAP did not err in declining to reconsider its decision or reopen
the appeal. As we have explained previously, motions for rehearing are not
intended to allow counsel to overcome deficiencies in the record. Vasquez , 985
F.2d at 497.
The judgment of the Bankruptcy Appellate Panel is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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