William M. Barger v. Hayes County Co-op ( 1998 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 97-6073 NE
In re: *
*
William M. Barger and Randee L. Barger *
*
Debtors. *
*
William M. Barger and Randee L. Barger * Appeal from
the United States
* Bankruptcy Court for the
Appellants * District of
Nebraska
*
v. *
*
Hayes County Non-Stock Co-op, *
*
Appellee. *
Submitted: February 12, 1998
Filed: April 3, 1998
Before WILLIAM A. HILL, SCHERMER and SCOTT, Bankruptcy Judges
SCHERMER, Bankruptcy Judge:
William and Randee Barger, Chapter 12 Debtors, filed a
Motion to Alter or Amend Judgment, seeking reconsideration of
the bankruptcy court’s1 order denying confirmation of Debtors’
1
The Honorable Timothy J. Mahoney, Chief Judge, United States Bankruptcy Court for
the District of Nebraska.
First Amended Chapter 12 Plan. The bankruptcy court denied
Debtors’ Motion
2
to Alter or Amend. Debtors then filed a Motion to Vacate the
order denying their Motion to Alter or Amend. From the
bankruptcy court’s denial of the Motion to Vacate, Debtors
filed this appeal. On appeal, Debtors seek review of not only
the order denying Debtors’ Motion to Vacate, but also the
substance underlying the order denying confirmation of their
Chapter 12 plan.
Because we hold that Debtors’ Motion to Vacate did not
toll the time for appeal of the underlying order denying
confirmation, the only issue on appeal is whether the
bankruptcy court abused its discretion in denying Debtors’
Motion to Alter and Debtors’ Motion to Vacate. With respect
to the trial court’s denial of both of these motions, we hold
that the trial court did not abuse its discretion. Thus, we
affirm the decisions of the bankruptcy court.
I. FACTUAL AND PROCEDURAL HISTORY
Debtors operate a farm in Hitchcock County, Nebraska and
sought relief under Chapter 12 of Title 11 of the United States
Bankruptcy Code on October 23, 1995. Debtors became indebted
to the appellee, Hayes County Non-Stock Co-op (“the Co-op”) on
an open account for services performed or farm related goods
sold prior to the filing. To secure these obligations, Debtors
granted the Co-op a security interest in certain farm products
and crops, including specifically the Debtors’ 1994 corn and
pinto bean crop grown on property in Hitchcock County.
Over the next two years, Debtors filed four Chapter 12
plans in which they treated the Co-op as holding either an
unsecured or minimally secured claim. In each instance, the
Co-op filed objections to the modified and amended plans,
disputing treatment of the Co-op’s claim on the basis that
Debtors allegedly sold their 1994 corn and pinto bean crop out-
3
of-state, without recognizing the Co-op’s security interest in
the crop proceeds.
4
On March 17, 1997, Debtors filed their fourth
reorganization plan, denominated as the Debtors’ First Amended
Chapter 12 Reorganization Plan (the “Plan”).2\ The Co-op
again objected to confirmation, asserting that the Debtors’
history in two prior reorganization cases,3 together with the
Debtors’ alleged conversion of the proceeds of the Co-op’s 1994
crop, demonstrated that the Plan was neither feasible nor
proposed in good faith. On April 16, 1997, the court held a
hearing on confirmation of the Plan and took the matter under
advisement. On June 5, 1997, the court entered an order (dated
June 4, 1997) denying confirmation. It is from denial of
confirmation of this Plan and from denial of subsequent motions
to reconsider this order that Debtors appeal.
In its order of June 4, 1997, the court found that Mr.
Barger converted the Co-op’s collateral and that the Plan
treatment afforded the Co-op’s claim was not made in good
faith. The Plan proposed to treat the Co-op’s claim as
follows: first, Debtors proposed to set off any balance found
due the Co-op against any judgment Debtors obtained against the
Co-op in an adversary proceeding which Debtors filed seeking
2
The sequence and descriptions of reorganization plans is somewhat confusing.
Debtors’ first plan, in this case, was filed on November 8, 1995 and denominated Debtors’
Reorganization Plan. Debtors amended this plan by their First Modification to Chapter 12
Reorganization Plan on March 15, 1996, and by a Second Modification to Chapter 12
Reorganization Plan on August 15, 1996. On March 17, 1997, Debtors filed their fourth plan,
which is the one at issue in the motions on appeal. That plan was denominated the First Amended
Chapter 12 Reorganization Plan.
3
These Debtors are not strangers to Judge Mahoney nor the bankruptcy court in
Nebraska. Debtors have been under the protections of Title 11 almost continuously since May,
1986 when they filed their first reorganization under Chapter 11. After a finding in April 1990,
that their Chapter 11 plan was not feasible, the court dismissed the Chapter 11 case. One month
later, Debtors filed a Chapter 12 petition. Five years after operating under the protections of
Chapter 12, and after incurring post-petition deficits, the Debtors moved for dismissal of their
Chapter 12 case. One month after that dismissal, Debtors filed this Chapter 12 petition.
5
damages for negligent application of herbicide. If, after set
off, the Co-op’s claim exceeded $5,000.00, Debtors proposed to
satisfy the Co-op’s claim by paying $5,000.00 with 8.25%
interest, payable in three equal monthly installments. If the
claim proved to be less than $5,000.00, Debtors proposed to pay
the full amount of the claim with interest over such time
period. The court found this
6
treatment lacked good faith because, as the court explained in
its June 4, 1997, order, “[r]ather than attempting to make
amends [for conversion of collateral], [the Debtors] now
propose to pay at most a mere 1/7th of the claim of this once
fully secured creditor, and . . . only if [the Debtors] are not
entirely successful in [their] lawsuit against the Co-op.”
In addition, based upon the Debtors’ projected cash flow, the
court found that if the Debtors were ultimately unsuccessful
in their lawsuit against the Co-op and had to classify and pay
the Co-op’s claim as if it were fully secured, the Plan’s
feasibility would be in question.
Debtors’ First Motion to Reconsider - Motion to Alter or Amend
Judgment
On June 12, 1997, and within ten days of the June 4, 1997,
order denying confirmation, Debtors filed a Motion to Alter or
Amend Judgment (“Motion to Alter”) to obtain reconsideration
of the order denying confirmation. As the basis for
reconsideration, Debtors brought to the court’s attention the
fact that between the confirmation hearing and the confirmation
order, the court disallowed the Co-op’s claim in its entirety.
Thus, Debtors argued that the Co-op had no claim which could
provide grounds for objection to confirmation. As further
grounds for reconsideration, (although inconsistent with the
position that the Co-op did not have a valid claim against the
estate), the Debtors asserted that the Co-op held a “last lien
position on the 1994 corn and beans” and that the Plan’s
proposal to pay the Co-op $5,000.00 was more than the creditor
would have received outside of bankruptcy or as an unsecured
creditor. Thus, Debtors asserted the Plan was proposed in good
faith.
In an order dated July 1, 1997, the Court denied Debtors’
Motion to Alter. In that July 1, 1997, order, the court
7
rejected Debtors’ assertion that the court erred in considering
the Co-op’s claim at confirmation, remarking that the court
tried the secured status of the Co-op’s claim at the
confirmation hearing, and at no time during trial, did the
Debtors make known to the court that they had objected to the
claim nor that the court had previously
8
entered an order sustaining an objection to the Co-op’s claim
for failure of the Co-op to respond.4
Additionally, in its order denying the Motion to Alter,
the court stated that it could reconsider any prior order
disallowing the Co-op’s claim and did so in the July 1, 1997,
order because the parties had actually litigated the claim
during the confirmation process. Lastly, the court held that
Debtors’ Motion to Alter or Amend (and the Affidavit in
support) presented no new evidence to cause the court to
reconsider its prior conclusion that Debtors’ Plan lacked good
faith.
Debtors’ Second Motion to Reconsider - Motion to Vacate
On July 9, 1997, and within ten days of the July 1, 1997,
order denying the Motion to Alter, Debtors filed a Motion to
Vacate Order, requesting that the court set aside its order of
July 1, 1997, and conduct a hearing on the Motion to Alter.
In support of their Motion to Vacate, Debtors asserted the
following points as error:
(1) that the court improperly reinstated the Co-op’s
previously disallowed claim by taking such action on its own
4
Procedurally, we observe that the Co-op filed its proof of claim very early in this case
(December 4, 1995), and that Debtors filed their claim objection on March 5, 1997, just before
filing their fourth proposed plan. The Notice of Objection Deadline provided that responses to the
objection were due on March 31, 1997, and that if no objections or resistence were filed, the
court would consider entering an order sustaining the objection. The Co-op did not file a written
response to the objection, and thus, while the parties litigated confirmation, Debtors tendered a
proposed order, which, when entered on April 30, 1997, sustained Debtors’ objection and
disallowed the claim. Although at the time of the confirmation hearing on April 16, 1997, the
court had not yet, in fact, entered the order sustaining the claim objection and despite the
statement of the sequence of events in the order denying Debtors’ Motion to Alter, it is apparent
that the court found Debtors’ challenge to the validity of the Co-op’s claim in the Motion to Alter
to be inappropriate since the court believed the parties had just litigated the claim at confirmation.
9
initiative and without notice and opportunity for hearing in
violation of Bankruptcy Rule 3008;
(2) that the court incorrectly concluded that the Debtors
concealed the existence of the claim objection and the order
sustaining the objection; and
10
(3) that the court improperly concluded that the Debtors
and the Co-op litigated the secured status of the Co-op’s claim
during the trial on good faith issues and plan feasibility at
the confirmation hearing.
In a one line order, entered August 13, 1997, the court
overruled the Debtors’ Motion to Vacate. Debtors filed their
Notice of Appeal on August 21, 1997, and stated that they were
appealing “from the Order to Vacate Order overruling the
debtors’ Motion to Alter or Amend.” In their briefs and at
argument, however, Debtors are seeking to have this court
review the merits of the June 4, 1997, order denying
confirmation.
II. ISSUE ON APPEAL
The issue in this appeal is procedural, and raises the
question whether Debtors’ Motion to Vacate effectively stayed
the period for appeal of the order denying confirmation so that
the court should consider the merits of the June 4, 1997,
order, or whether the Motion to Vacate preserved for appeal
only the question of the appropriateness of denial of the
Motion to Alter. This case illustrates that a motion to
vacate, whether treated as a Rule 60(b) or a Rule 59(e) motion,
even though filed within ten days of an order denying a prior
motion to alter or amend, preserves for appeal, at most, only
the orders denying the motions to alter or vacate. It does not
preserve for review the merits of the underlying order which
was challenged in the first motion.
III. STANDARD OF REVIEW
On appeal, we review the bankruptcy court’s findings of
fact for clear error and its conclusions of law de novo. Fed.
R. Bankr. P. 8013; In re Usery, 123 F.3d 1089, 1093 (8th Cir.
11
1997); O’Neal v. Southwest Mo. Bank (In re Broadview Lumber
Co.), 118 F.3d 1246, 1250 (8th Cir. 1997) (citing First Nat’l
Bank v. Pontow, 111 F.3d 604, 609 (8th Cir.1997)). “A finding
is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court, on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985) (quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948)). We review the
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bankruptcy court’s grant or denial of a Rule 59(e) motion to
alter or amend a judgment for abuse of discretion. Perkins v.
U S West Communications, No. 97-2959, 1998 WL 91424 at *3 (8th
Cir. Mar. 5, 1998). See Twin City Const. v. Turtle Mountain
Band of Chippewa Indians, 911 F.2d 137, 139 (8th Cir.1990).
Similarly, Rule 60(b) motions are within the discretion of the
trial court, and we will reverse the denial of a Rule 60(b)
motion only when the court has clearly abused its discretion.
Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir.
1990); Baxter Int’l Inc. v. Morris, 11 F.3d 90, 92 (8th Cir.
1993). An abuse of discretion will only be found if the lower
court's judgment was based on clearly erroneous factual
findings or erroneous legal conclusions. Mathenia v. Delo, 99
F.3d 1476, 1480 (8th Cir.1996), cert. denied, 477 U.S. 909(1997).
IV. DISCUSSION
Bankruptcy Rule 8002(a) of the Federal Rules of Bankruptcy
Procedure requires that a notice of appeal must be filed within
ten days of entry of the judgment, order or decree appealed
from. Bankruptcy Rule 8002(b), however, provides that certain
motions, if timely filed, will toll the time for appeal so that
the time for appeal will begin running from the entry of an
order disposing of such motions. Specifically, Rule 8002(b)
provides that the timely filing of one of the following motions
will toll the time for appeal: (1) a motion to amend or make
additional findings of fact under Rule 7052, whether or not
granting the motion would alter the judgment; (2) a motion to
alter or amend the judgment under Rule 9023; (3) a motion for
a new trial under Rule 9023; and (4) a motion for relief from
the operation of a judgment or order under Rule 9024 if the
motion is filed no later than ten days after the entry of
judgment. Bankruptcy Rule 7052 incorporates Rule 52 of the
Federal Rules of Civil Procedure and permits the court to amend
13
its findings of fact on motion of a party in interest made
within ten days of entry of an order. Bankruptcy Rule 9023
incorporates Rule 59 of the Federal Rules of Civil Procedure
which permits new trials either on motion of a party made
within ten days of entry of a judgment, see Fed. R. Civ. P.
59(a), or on the court’s initiative within such ten day period,
see Fed. R. Civ. P. 59(d). Additionally, and perhaps most
frequently employed, Rule 59(e) permits the court to entertain
motions to alter or amend a judgment if made within ten days
of entry of the judgment.
14
Bankruptcy Rule 9024, adopts Rule 60 from the Federal
Rules of Civil Procedure. Rule 60(b), which is relevant to
this appeal, authorizes the court to grant relief because of:
(1) mistake, inadvertence, surprise or excusable neglect; (2)
newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule
59(b); (3) fraud, misrepresentation or misconduct of an adverse
party; (4) entry of a void judgment; (5) release, satisfaction
or discharge of the judgment; or (6) any other reason
justifying relief from the judgment. A Rule 60(b) motion must
be made within a reasonable time and does not affect the
finality of the judgment or suspend its operation. See Fed.
R. Civ. P. 60(b); see also Assoc. for Retarded Citizens v.
Sinner, 942 F.2d 1235, 1239 (8th Cir. 1991) (“Although the
filing of a Rule 60 (b) motion for relief from a final order
does not extend a party’s time to appeal the underlying order,
the denial of Rule 60(b) relief is appealable.”).
We first address the Motion to Vacate. Because Debtors
neglected to identify under which rule they were proceeding in
their Motion to Vacate, they left “the characterization of the
motion to the court’s somewhat unenlightened guess.” Sanders
v. Clemco Indus., 862 F.2d 161, 168 (8th Cir. 1988). When a
moving party fails to specify the rule under which it makes a
post-judgment motion, the characterization is left to the court
with the risk that the moving party may lose the opportunity
to present the merits underlying the motion to an appellate
court. Sanders, 862 F.2d at 168 (8th Cir. 1988). Typically,
such motions have been characterized as motions under either
Fed. R. Civ. P. 59 or 60, with the precise categorization
depending to some extent on the substance of the motion.
Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th
Cir. 1986). In other instances, courts have considered “‘any
motion that draws into question the correctness of the judgment
[as] functionally a motion under Rule 59(e), whatever its
15
label.’” Norman v. Arkansas Dept. of Educ., 79 F.3d 748, 750
(8th Cir. 1996) (quoting 9 J. Moore, Moore’s Federal Practice
¶ 204.12[1] at 4-82 (2d ed. 1995)) cited in Quartana v.
Utterback, 789 F.2d 1297, 1300 (8th Cir. 1986). Courts have
generally viewed any motion which seeks a substantive change
in a judgment as a Rule 59(e) motion if it is made within ten
days of the entry of the judgment challenged. Omaha Indian
Tribe v. Tract I--Blackbird Bend Area, 933 F.2d 1462, 1467 n.3
(8th Cir. 1991) (citing 6A J. Moore, Moore’s Federal Practice
¶ 59.12[1] (2d ed. 1989)).
16
Conversely, if a motion is filed more than ten days after the
judgment, it is treated as a Rule 60(b) motion. See Baxter
Int’l. Inc. v. Morris, 11 F.3d 90, 92 (8th Cir. 1993) (holding
that motion denominated as “Motion to Reconsider” would be
treated as Rule 60(b) motion where it was filed more than 10
days after entry of the judgment).
In this case, it does not matter whether we consider the
Debtors’ Motion to Vacate under Rule 59(e) or Rule 60(b) for
purposes of reviewing the denial of confirmation because, under
either construction, the motion does not preserve jurisdiction
for our review of that order. Because the parties have treated
the motion as directed to both the Motion to Alter and the
order denying confirmation, we will consider the motion as it
applies to both of these orders. As directed to the Motion to
Alter, our characterization of the motion under Rule 59(e) or
Rule 60(b) affects whether we review only the propriety of
denial of the Motion to Vacate or whether we also review the
court’s denial of the Motion to Alter.
First, we consider the Motion to Vacate as directed to the
order denying confirmation. If we consider the motion to be
a Rule 59(e) motion challenging the confirmation order, the
motion was filed more than ten days after entry of the
confirmation order and thus, was untimely.
As a Rule 60(b) motion directed to setting aside the
confirmation order, the Motion to Vacate did not stay or toll
the finality of that order denying confirmation, and thus, this
appeal, if deemed from the order denying confirmation, is
untimely. Sanders, 862 F.2d at 169 (8th Cir. 1988).
Moreover, as an appeal from denial of a Rule 60(b) motion, this
appeal does raise the underlying judgment for review. An
appeal from denial of a Rule 60(b) motion only presents the
appellate court with the question of whether the trial court
17
abused its discretion in ruling on the motion. Sanders, 862
F.2d at 169; Browder v. Dir. Dep’t of Corrections, 434 U.S.
257, 263 n.7 (1978). Thus, by construing the Motion to Vacate
as a Rule 60(b) motion directed to the confirmation order, we
do not squarely consider the merits of that underlying order.
We only ask whether the court abused its discretion in denying
the Motion to Vacate. Brooks v. Ferguson-Florissant Sch.
Dist., 113 F.3d 903, 904 (8th Cir. 1997). In deciding whether
the court abused its discretion in denying the Motion to
Vacate, we are guided by the principle that Rule 60(b) relief
provides “extraordinary relief” which
18
should be granted only upon an adequate showing of exceptional
circumstances. Baxter Int’l. Inc. v. Morris, 11 F.3d at 92(8th Cir. 1993). See Rosebud Sioux Tribe v. A & P Steel, Inc.,
733 F.2d 509, 515 (8th Cir.) (motions under Rule 60(b) are
viewed with disfavor), cert. denied, 469 U.S. 1072 (1984).
Because the Debtors presented no new evidence or new legal
arguments in their Motion to Vacate, but instead, reiterated
the substance of their objections asserted in the Motion to
Alter, we find that the court did not abuse its discretion in
denying the Motion to Vacate. Where a motion to vacate raises
only issues of law that previously were rejected by the trial
court, the court cannot be said to have abused its discretion
in subsequently denying relief on the motion. Sanders, 862
F.2d at 170 (8th Cir. 1988) (citing Fox v. Brewer, 620 F.2d
177, 180 (8th Cir. 1980) (the failure to present reasons not
previously considered by the court “alone is a controlling
factor against granting relief”)).
Debtors asserted at oral argument that their Motion to
Vacate did raise a new legal argument in that the Motion to
Vacate, for the first time, included a challenge to the Court’s
sua sponte reconsideration and allowance of the Co-op’s claim.
In the Motion to Vacate, Debtors asserted that the court
improperly reconsidered and allowed the Co-op’s claim as part
of its order denying the Motion to Alter and that such
reconsideration required hearing and notice under Bankruptcy
Rule 3008.
The Debtors’ legal conclusion concerning the exclusive
procedure for reconsideration of claims in this instance, and
the assertion that the Motion to Vacate raised, for the first
time, the propriety of reconsidering the Co-op’s claim are
incorrect. Debtors’ Motion to Alter raised these questions,
and, in fact, asked the court to disregard the Co-op’s claim
which, at the time of hearing on confirmation, was an allowed
19
claim. When ruling on the Motion to Alter, the court soundly
rejected the assertion that the claim should neither be re-
instated nor considered for confirmation because the court
found that the parties had actually tried the validity of the
claim at confirmation.
Additionally, in the Motion to Alter, the court correctly
concluded that bankruptcy rules authorize the court to
reconsider the allowance or disallowance of a claim. While not
reciting the rule relied upon, it is clear that under
Bankruptcy Rule 9024 and Rule 60(a) the court may reconsider
its own orders, and any errors therein, arising from oversight
or
20
omission. Here, it is apparent that the bankruptcy court
believed its order disallowing the Co-op’s claim was entered
in error because the parties actually litigated the validity
of the claim at confirmation. Conversely, the claim objection
was sustained, not after determination on the merits, but only
because the Co-op failed to respond. Thus, we do not find that
the bankruptcy court abused its discretion in denying the
Motion to Vacate.
Next, we consider the Motion to Vacate as if directed to
the order denying the Motion to Alter. If we characterize the
motion as a Rule 60(b) motion, we again may only ask whether
the bankruptcy court based its denial of the Motion to Vacate
on clearly erroneous factual findings or erroneous legal
conclusions. Because, as stated above, the Motion to Vacate
did not raise new factual matters or legal arguments, as a Rule
60(b) motion, we again hold that the court did not abuse its
discretion in refusing to vacate its order denying Debtors’
Motion to Alter.
Alternatively, because Debtors’ Motion to Vacate was filed
within 10 days of the entry of the court’s order denying the
Motion to Alter, we may consider the Motion to Vacate as a Rule
59(e) motion. An appeal from an order denying a Rule 59(e)
motion brings up for review all non-moot orders rendered by the
trial court. Kunik v. Racine, 106 F.3d 168,173 (7th Cir.
1997); see In re Grabill Corp., 983 F.2d 773, 775 (7th Cir.
1993). Cf. Sanders, 862 F.2d at 169 (appeal from denial of
motion under Rule 60(b) does not raise the underlying judgment
for review). The Supreme Court explained the effect of Rule
59 and Rule 60 post-judgment motions on appeals in Stone v.
INS, 514 U.S. 386, 402-03 (1995), stating:
The majority of post-trial motions, such as Rule 59,
render the underlying judgment nonfinal both when
filed before an appeal is taken (thus tolling the
21
time for taking an appeal), and when filed after the
notice of appeal (thus divesting the appellate court
of jurisdiction). Other motions, such as Rule 60(b)
motions filed more than 10 days after judgment, do
not affect the finality of a district court's
judgment, either when filed before the appeal (no
tolling), or afterwards (appellate court jurisdiction
not divested). Motions that do toll the time for
taking appeal give rise to only one appeal in which
all matters are reviewed; motions that do not toll
the time for taking an appeal give rise to two
separate appellate proceedings that can be
consolidated.
22
quoted in Kunik v. Racine, 106 F.3d at 172 (7th Cir. 1997)
(emphasis added).
By treating Debtors’ Motion to Vacate as a Rule 59(e)
motion, appeal from its denial raises the merits of the court’s
denial of Debtors’ prior Motion to Alter. Because we review
the denial of the both 59(e) and Rule 60(b) motions under the
abuse of discretion standard, Perkins v. U. S. West
Communications, No. 97-2959, 1998 WL 91424 at *3 (8th Cir. Mar.
5, 1998), we again find nothing to suggest that the court erred
in denying the Motion to Vacate or the Motion to Alter. With
respect to the Motion to Alter, the Court’s order of July
1,1997, indicates that the court carefully addressed each of
the asserted points of error raised by Debtors. Only after
reviewing the points raised by Debtors in light of its
familiarity with the proceedings, the testimony at trial, and
the court’s impression of the credibility of the witness, did
the bankruptcy court deny the Motion to Alter. There is
nothing in the record, particularly without review of the
transcript of the hearing on confirmation, to convince this
court that the bankruptcy court abused its discretion in
denying Debtors’ Motion to Alter.
By treating the Motion to Vacate as a Rule 59(e) motion,
we reject the Co-op’s assertion that this court does not have
jurisdiction to consider the merits of any order other than the
Motion to Vacate. The Co-op made this argument because the
notice of appeal identified only the Motion to Vacate as the
order from which appeal was taken. As a Rule 59(e) motion,
appeal from the Motion to Vacate properly raised the merits of
denial of the Motion to Alter. Moreover, both parties
addressed the merits of the Motion to Alter in their briefs,
and we hold that allowing consideration of the Motion to Alter
is consistent with the more lenient approach to appeals
required by the Supreme Court in Forman v. Davis, 371 U.S. 178,
23
181 (1962) where the Court allowed an appeal of a dismissal
order even though the notice of appeal identified the order
denying a Rule 59(e) motion as the order from which appeal was
taken. The Court explained: “It is too late in the day and
entirely contrary to the spirit of the Federal Rules of Civil
Procedure for decisions on the merits to be avoided on the
basis of such mere technicalities.” Id. at 181.
Despite this standard, however we reiterate that we cannot
reach the merits of denial of confirmation. Had Debtors timely
appealed from denial of their Motion to Alter rather than
substituting the Motion to Vacate for an appeal, the underlying
issue of confirmation
24
could have been preserved for this court. See Sanders, 862
F.2d at 169 (stating “district court was not required to grant
relief under Rule 60(b) as a substitute for . . . exercising
[the] right to appeal the alleged error”). Debtors either
mistakenly believed their Motion to Vacate would toll the time
for appeal of the adverse decision at confirmation, or they
attempted to substitute their Motion to Vacate for an immediate
appeal. In either case, the use of multiple motions to
reconsider caused Debtors to lose their right for appellate
review on the merits of the order denying confirmation.
For the forgoing reasons, the decisions of the bankruptcy
court in denying Debtors’ Motion to Vacate and Motion to Alter
are affirmed.
A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE
EIGHTH CIRCUIT
25