17‐1323‐bk In re: Speer UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of May, two thousand nineteen.
PRESENT: JOHN M. WALKER, JR., GUIDO CALABRESI, DENNY CHIN, Circuit Judges.
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IN RE: SPEER Debtor,
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SHERI SPEER, Appellant,
v. 17‐1323‐bk
CLIPPER REALTY TRUST, SEAPORT CAPITAL PARTNERS, LLC, MICHAEL TEIGER, DR., SLS HEATING, LLC, Appellees.*
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* The Clerk of the Court is directed to amend the official caption to conform to the above. FOR APPELLANT: Sheri Speer, pro se, Norwich, Connecticut.
FOR APPELLEES: Patrick W. Boatman, Law Offices of Patrick W. Boatman, LLC, East Hartford, Connecticut.
Appeal from orders of the United States District Court for the District of
Connecticut (Chatigny, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the July 15, 2016 and March 30, 2017 orders of the
district court are AFFIRMED.
In May 2014, appellees Clipper Realty Trust, Michael Teiger, and SLS
Heating, LLC (the ʺCreditorsʺ) brought an involuntary Chapter 7 petition in the United
States Bankruptcy Court for the District of Connecticut against debtor‐appellant Sheri
Speer. On August 5, 2014, the bankruptcy court granted the motion of appellee
Seaport Capital Partners, LLC (ʺSeaport Capital Partnersʺ) to be added as a creditor.
On November 11, 2014, the bankruptcy court granted the Creditorsʹ Chapter 7 petition.
Speer appealed that grant to the District of Connecticut on November 19, 2014, but
while the appeal was pending, the bankruptcy court granted her motion to convert her
case from Chapter 7 to Chapter 11, on January 5, 2015. On February 18, 2015, the
district court granted the Creditorsʹ motion to dismiss the appeal as moot, in light of the
conversion.
On April 24, 2015, the bankruptcy court granted Seaport Capital Partnersʹ 2 motion to re‐convert the case back to Chapter 7. In a separate proceeding, Speer
appealed the re‐conversion grant to the District of Connecticut, and the district court
affirmed the re‐conversion order in a judgment on January 31, 2018. Speer appealed
that judgment to this Court but defaulted on her appeal when she failed to file
Form D‐P, and her appeal was dismissed on April 2, 2018.
On December 29, 2015, in the proceeding that formed the basis of this
appeal, the district court granted Speerʹs motion to reopen her initial appeal of the
bankruptcy courtʹs November 11 order, but ultimately dismissed the appeal as moot on
July 15, 2016, again because of the original conversion to Chapter 11. The court denied
Speerʹs motion for reconsideration on March 30, 2017. Speer filed a timely notice of
appeal.2 We assume the partiesʹ familiarity with the underlying facts, the procedural
history, and the issues on appeal.
STANDARD OF REVIEW
This Court conducts a plenary review of orders of the district courts
issued in their capacity as appellate courts in bankruptcy cases. In re Anderson, 884
F.3d 382, 387 (2d Cir. 2018) (ʺ[W]e engage in plenary, or de novo, review of the district
2 On appeal, we review the district courtʹs July 15, 2016 order dismissing Speerʹs appeal as moot, and its March 30, 2017 order denying Speerʹs motion for reconsideration. While Speer only designated the district courtʹs March 30, 2017 order denying Speerʹs motion for reconsideration for appeal, see Fed. R. App. P. 3(c) (requiring a notice of appeal to ʺdesignate the judgment, order, or part thereof being appealedʺ), we have held that we have jurisdiction to consider the underlying decision on an appeal from a motion for reconsideration where it is clear that the petitioner intended to appeal that decision and the respondents were not prejudiced, United States v. Schwimmer, 968 F.2d 1570, 1574‐75 (2d Cir. 1992).
3 court decision.ʺ). We review questions of mootness de novo, because mootness is a
question of law, see Fund for Animals v. Babbitt, 89 F.3d 128, 132 (2d Cir. 1996), and the
denial of reconsideration for abuse of discretion, see Devlin v. Transp. Commc’ns Int’l
Union, 175 F.3d 121, 132 (2d Cir. 1999). In addition, we are ʺfree to affirm an appealed
decision on any ground which finds support in the record, regardless of the ground
upon which the trial court relied.ʺ McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000)
(internal quotation marks omitted).
DISCUSSION
Speerʹs arguments on appeal are far from clear, but she appears to be
making two principal arguments: (1) the original conversion of her case from Chapter 7
to Chapter 11 did not moot her appeal; and (2) the district court erred in re‐converting
her case back to Chapter 7. We analyze each argument in turn.
I. The Original Conversion of Speerʹs Case
The original conversion of Speerʹs case from Chapter 7 to Chapter 11
mooted her appeal of the bankruptcy courtʹs grant of the Creditorsʹ Chapter 7 petition.
A case becomes moot ʺwhen it is impossible for a court to grant any effectual relief
whatever to the prevailing party.ʺ Campbell‐Ewald Co. v. Gomez, 136 S. Ct. 663, 669
(2016) (internal quotation marks and citation omitted). In a bankruptcy case, mootness
can also be based on ʺjurisdictional and equitable considerations stemming from the
impracticability of fashioning fair and effective judicial relief.ʺ AmeriCredit Fin. Servs.,
4 Inc. v. Tompkins, 604 F.3d 753, 755 (2d Cir. 2010) (internal quotation marks and citation
omitted). ʺThe conversion of a petition from one chapter to another generally moots an
appeal taken from an order in the original chapter,ʺ id., because a voluntary conversion
is ʺan election of remedies that obviates the need for further litigation of issuesʺ based
on the original bankruptcy petition, In re J.B. Lovell Corp., 876 F.2d 96, 99 (11th Cir. 1989).
Moreover, a conversion generally renders a plan under the prior chapter irrelevant and
leaves courts unable to provide effective relief with respect to that plan. See
AmeriCredit, 604 F.3d at 755.
Here, the bankruptcy court granted Speerʹs motion to convert her case
from Chapter 7 to Chapter 11.
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17‐1323‐bk In re: Speer UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of May, two thousand nineteen.
PRESENT: JOHN M. WALKER, JR., GUIDO CALABRESI, DENNY CHIN, Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
IN RE: SPEER Debtor,
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SHERI SPEER, Appellant,
v. 17‐1323‐bk
CLIPPER REALTY TRUST, SEAPORT CAPITAL PARTNERS, LLC, MICHAEL TEIGER, DR., SLS HEATING, LLC, Appellees.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
* The Clerk of the Court is directed to amend the official caption to conform to the above. FOR APPELLANT: Sheri Speer, pro se, Norwich, Connecticut.
FOR APPELLEES: Patrick W. Boatman, Law Offices of Patrick W. Boatman, LLC, East Hartford, Connecticut.
Appeal from orders of the United States District Court for the District of
Connecticut (Chatigny, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the July 15, 2016 and March 30, 2017 orders of the
district court are AFFIRMED.
In May 2014, appellees Clipper Realty Trust, Michael Teiger, and SLS
Heating, LLC (the ʺCreditorsʺ) brought an involuntary Chapter 7 petition in the United
States Bankruptcy Court for the District of Connecticut against debtor‐appellant Sheri
Speer. On August 5, 2014, the bankruptcy court granted the motion of appellee
Seaport Capital Partners, LLC (ʺSeaport Capital Partnersʺ) to be added as a creditor.
On November 11, 2014, the bankruptcy court granted the Creditorsʹ Chapter 7 petition.
Speer appealed that grant to the District of Connecticut on November 19, 2014, but
while the appeal was pending, the bankruptcy court granted her motion to convert her
case from Chapter 7 to Chapter 11, on January 5, 2015. On February 18, 2015, the
district court granted the Creditorsʹ motion to dismiss the appeal as moot, in light of the
conversion.
On April 24, 2015, the bankruptcy court granted Seaport Capital Partnersʹ 2 motion to re‐convert the case back to Chapter 7. In a separate proceeding, Speer
appealed the re‐conversion grant to the District of Connecticut, and the district court
affirmed the re‐conversion order in a judgment on January 31, 2018. Speer appealed
that judgment to this Court but defaulted on her appeal when she failed to file
Form D‐P, and her appeal was dismissed on April 2, 2018.
On December 29, 2015, in the proceeding that formed the basis of this
appeal, the district court granted Speerʹs motion to reopen her initial appeal of the
bankruptcy courtʹs November 11 order, but ultimately dismissed the appeal as moot on
July 15, 2016, again because of the original conversion to Chapter 11. The court denied
Speerʹs motion for reconsideration on March 30, 2017. Speer filed a timely notice of
appeal.2 We assume the partiesʹ familiarity with the underlying facts, the procedural
history, and the issues on appeal.
STANDARD OF REVIEW
This Court conducts a plenary review of orders of the district courts
issued in their capacity as appellate courts in bankruptcy cases. In re Anderson, 884
F.3d 382, 387 (2d Cir. 2018) (ʺ[W]e engage in plenary, or de novo, review of the district
2 On appeal, we review the district courtʹs July 15, 2016 order dismissing Speerʹs appeal as moot, and its March 30, 2017 order denying Speerʹs motion for reconsideration. While Speer only designated the district courtʹs March 30, 2017 order denying Speerʹs motion for reconsideration for appeal, see Fed. R. App. P. 3(c) (requiring a notice of appeal to ʺdesignate the judgment, order, or part thereof being appealedʺ), we have held that we have jurisdiction to consider the underlying decision on an appeal from a motion for reconsideration where it is clear that the petitioner intended to appeal that decision and the respondents were not prejudiced, United States v. Schwimmer, 968 F.2d 1570, 1574‐75 (2d Cir. 1992).
3 court decision.ʺ). We review questions of mootness de novo, because mootness is a
question of law, see Fund for Animals v. Babbitt, 89 F.3d 128, 132 (2d Cir. 1996), and the
denial of reconsideration for abuse of discretion, see Devlin v. Transp. Commc’ns Int’l
Union, 175 F.3d 121, 132 (2d Cir. 1999). In addition, we are ʺfree to affirm an appealed
decision on any ground which finds support in the record, regardless of the ground
upon which the trial court relied.ʺ McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000)
(internal quotation marks omitted).
DISCUSSION
Speerʹs arguments on appeal are far from clear, but she appears to be
making two principal arguments: (1) the original conversion of her case from Chapter 7
to Chapter 11 did not moot her appeal; and (2) the district court erred in re‐converting
her case back to Chapter 7. We analyze each argument in turn.
I. The Original Conversion of Speerʹs Case
The original conversion of Speerʹs case from Chapter 7 to Chapter 11
mooted her appeal of the bankruptcy courtʹs grant of the Creditorsʹ Chapter 7 petition.
A case becomes moot ʺwhen it is impossible for a court to grant any effectual relief
whatever to the prevailing party.ʺ Campbell‐Ewald Co. v. Gomez, 136 S. Ct. 663, 669
(2016) (internal quotation marks and citation omitted). In a bankruptcy case, mootness
can also be based on ʺjurisdictional and equitable considerations stemming from the
impracticability of fashioning fair and effective judicial relief.ʺ AmeriCredit Fin. Servs.,
4 Inc. v. Tompkins, 604 F.3d 753, 755 (2d Cir. 2010) (internal quotation marks and citation
omitted). ʺThe conversion of a petition from one chapter to another generally moots an
appeal taken from an order in the original chapter,ʺ id., because a voluntary conversion
is ʺan election of remedies that obviates the need for further litigation of issuesʺ based
on the original bankruptcy petition, In re J.B. Lovell Corp., 876 F.2d 96, 99 (11th Cir. 1989).
Moreover, a conversion generally renders a plan under the prior chapter irrelevant and
leaves courts unable to provide effective relief with respect to that plan. See
AmeriCredit, 604 F.3d at 755.
Here, the bankruptcy court granted Speerʹs motion to convert her case
from Chapter 7 to Chapter 11. Accordingly, her appeal of the bankruptcy courtʹs grant
of the Chapter 7 petition is moot.
II. The Re‐Conversion of Speerʹs Case
In addition, Speer appears to be challenging the re‐conversion of her case
back to Chapter 7. She may be challenging the grounds of the re‐conversion on the
merits. But such objections are not properly before us. This case comes to us on
appeal from the District Courtʹs decision not to re‐open Speerʹs initial objections to the
first Chapter 7 order. It does not bring the re‐conversion order itself up for review.
Speer may also be challenging the re‐conversion on the grounds that, by
re‐converting the case to Chapter 7 from Chapter 11, the court un‐mooted the challenge
she originally made to the first Chapter 7 order. And the re‐conversion arguably un‐
5 moots her appeal of the grant of the Chapter 7 petition. We have not addressed the
mootness implications of a converted petition being re‐converted back to the original
chapter. Other courts, however, have suggested that such a re‐conversion un‐moots
the appeal. See, e.g., In re J.B. Lovell Corp., 876 F.2d at 98 & n.6 (noting that if a debtorʹs
Chapter 11 petition is re‐converted back to a Chapter 7 petition, ʺthe debtor would
again be subject to a Chapter 7 proceeding and could pursue his appeal; In re Klein, 77
B.R. 203, 204 (N.D. Ill. 1987) (ʺShould he again be relegated to Chapter 7 status he can
then, but not until then, attack the processes which first brought him there.ʺ). While
we have some doubt as to whether Speerʹs arguments remained moot once the case was
re‐converted back to a Chapter 7 case, we need not reach this issue because we conclude
that Speerʹs claim as to the re‐conversion is barred by res judicata.
ʺUnder the doctrine of res judicata, or claim preclusion, a final judgment on
the merits of an action precludes the parties or their privies from relitigating issues that
were or could have been raised in that action.ʺ EDP Med. Comput. Sys., Inc. v. United
States, 480 F.3d 621, 624 (2d Cir. 2007) (internal quotation marks, alteration, and citation
omitted). In the circumstances of this case, Speer could have raised her arguments
concerning the re‐conversion of the case to a Chapter 7 proceeding in her prior appeal.
Speer, however, failed to raise this claim ‐‐ or any claim ‐‐ during that appeal, all of the
Creditors were included on that appeal, and that appeal was finally adjudicated.
While the final adjudication consisted of a default judgment, we have long held that
6 ʺdefault judgments can support res judicataʺ because ʺ[r]es judicata does not require the
precluded claim to actually have been litigated; its concern, rather, is that the party
against whom the doctrine is asserted had a full and fair opportunity to litigate the
claim.ʺ Id. at 626; accord Morris v. Jones, 329 U.S. 545, 550‐51 (1947) (ʺA judgment of a
court having jurisdiction of the parties and of the subject matter operates as res judicata,
. . . even if obtained upon a default.ʺ (quoting Riehle v. Margolies, 279 U.S. 218, 225
(1929)). Accordingly, Speerʹs claim that the bankruptcy court erred in re‐converting
the case to a Chapter 7 proceeding is barred by the doctrine of res judicata.
* * *
We have considered all of Speerʹs remaining arguments and conclude they
are without merit. For the foregoing reasons, the orders of the district court are
AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court