Brian Alfaro v. Rick Reiley ( 2020 )

Case: 19-51080 Document: 00515491699 Page: 1 Date Filed: 07/16/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-51080 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
July 16, 2020
In the Matter of: PRIMERA ENERGY, L.L.C. Lyle W. Cayce
Clerk
Debtor
BRIAN K. ALFARO; ALFARO OIL AND GAS, L.L.C.; ALFARO ENERGY,
L.L.C.,
Appellants
v.
RICK REILEY; BETTY REILEY; VINCENT GILLETTE; SHARON WALLS;
RICK GRIFFEY; THOMAS GILLETTE; DC OIL COMPANY; JAMES
BUFORD SALMON; DAVID DAVALOS,
Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:18-CV-329
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-51080 Document: 00515491699 Page: 2 Date Filed: 07/16/2020
No. 19-51080
The opinion previously filed in this case is withdrawn and the following
is substituted.
The Federal Rules of Bankruptcy Procedure clearly specify how an
appeal is taken and how the record on appeal is to be created. See generally
Fed. R. Bankr. P. 8001-8028. One such rule provides that “[t]he appellant must
file with the bankruptcy clerk and serve on the appellee a designation of the
items to be included in the record on appeal.” Fed. R. Bankr. P. 8009(a)(1)(A).
Additionally, “[i]f the appellant intends to argue on appeal that a finding or
conclusion is unsupported by the evidence or is contrary to the evidence, the
appellant must include in the record a transcript of all relevant testimony and
copies of all relevant exhibits.” Fed. R. Bankr. P. 8009(b)(5).
In this case, appellants failed to comply with these rules, and
consequently the district court received no record on appeal from the
bankruptcy court other than the bankruptcy court’s opinion. Notably, the
record before the district court did not contain the transcript of the bankruptcy
court’s six-day trial. Because it was “unable to review the evidence presented
to the bankruptcy court,” the district court stated that it was unable to
“conclude [that] the bankruptcy court’s findings of fact are clearly erroneous,”
and so it “affirm[ed] the decision of the bankruptcy court.”
On appeal to this court, appellants urge that the district court abused its
discretion by affirming and denying their motion for leave to belatedly
designate a record on appeal. But “it is clear that the dismissal of an appeal for
failure to provide a complete transcript of the record on appeal is within the
discretion of the court.” Coats v. Pierre, 890 F.2d 728, 731 (5th Cir. 1989)
(citation omitted). Appellants rely on Zer-Ilan v. Frankford (In re CPDC, Inc.),
221 F.3d 693 (5th Cir. 2000). In that case, however, “the district court ha[d] an
adequate record upon which to decide the merits of the appeal.” Id. at 700-01.
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Case: 19-51080 Document: 00515491699 Page: 3 Date Filed: 07/16/2020
No. 19-51080
Appellants also argue that the district court could have reversed the
bankruptcy court’s judgment even without a transcript of the trial. That
argument is undercut by the fact that the brief filed by appellants in the
district court relied on the trial transcript throughout. Even if appellants could
have theoretically made their argument without relying on the record, they did
not in fact do so.
Finally, appellants argue that the district court lacked jurisdiction over
the appeal because the bankruptcy court’s order did not constitute a “final
judgment” within the meaning of 28 U.S.C. § 158(a). But the bankruptcy
court’s order explicitly “dispose[d] of all adversary causes of action” and stated
that “all other relief not specifically granted herein is DENIED.” Moreover,
appellants fail to identify a single claim that was outstanding at the time of
the judgment that the judgment did not resolve. The district court therefore
did not err in concluding that the bankruptcy court’s judgment was “final and
appealable.”
The judgment of the district court is AFFIRMED.
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