Linton v. Grow

183 B.R. 838, 1995 U.S. Dist. LEXIS 11781, 1995 WL 388476
CourtDistrict Court, S.D. Indiana
DecidedApril 24, 1995
DocketNo. IP 94-0544-C H/G
StatusPublished
Cited by2 cases

This text of 183 B.R. 838 (Linton v. Grow) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Linton v. Grow, 183 B.R. 838, 1995 U.S. Dist. LEXIS 11781, 1995 WL 388476 (S.D. Ind. 1995).

Opinion

[839]*839MEMORANDUM OPINION ON APPEAL FROM BANKRUPTCY COURT

HAMILTON, District Judge.

This is an appeal from an order of the United States Bankruptcy Court for the Southern District of Indiana. Appellant Betty A. Linton, a Chapter 7 debtor in the underlying case, appeals the denial of her objection to a claim filed by appellee Carl W. Grow. Linton argues that the bankruptcy court erred in allowing Grow’s claim because the basis of that claim, a civil judgment against Linton, is owned by a corporate entity and not by Grow individually. (Grow had brought a successful shareholder’s derivative action against Linton.) Grow responds that the merits of that question are not before this court because Linton’s notice of appeal was not timely. He also claims he should win on the merits. For the reasons discussed below, the order of the bankruptcy court is affirmed as modified.

Before discussing the merits of this case, there are two threshold issues. The first is whether it comes to this court on a final appealable order. If it does not, then this court has no jurisdiction over the appeal. Both parties have cited authority illustrating that the February 2,1994, order of the bankruptcy court overruling Linton’s objection to Grow’s claim was a final appealable order. The standard of finality for an order in bankruptcy is more flexible than in the usual civil ease. In re Wade, 991 F.2d 402, 406 (7th Cir.1993); In re Kilgus, 811 F.2d 1112, 1116 (7th Cir.1987). The disposition of a creditor’s claim is final for purposes of appeal under 28 U.S.C. § 158(d) “when the claim has been accepted and valued, even though the court has not yet established how much of the claim can be paid given, other, unresolved claims.” In re Morse Electric Co., Inc., 805 F.2d 262, 264 (7th Cir.1986). See also In re Opelika Manufacturing Corp., 94 B.R. 484, 486 (N.D.Ill.1988) (order fixing priorities of creditors considered final even though further proceedings necessary to determine amount each creditor will receive). Here, the February 2, 1994, order overruling Linton’s objection to Grow’s claim resolved the issue of whether Grow’s claim was accepted. Therefore, it was a final appealable order over which this court has jurisdiction on appeal.

The second threshold issue is whether Linton’s notice of appeal was timely and addressed to the underlying order of the bankruptcy court. Grow argues that Linton filed her notice of appeal only from the denial of her motion to reconsider and not from the order denying her objection to Grow’s claims. Thus, Grow contends, the scope of Linton’s appeal is limited to whether the bankruptcy judge abused his discretion in denying Linton’s motion to reconsider. Linton argues that her notice of appeal, although perhaps technically taken from the denial of the motion to reconsider, is in effect an appeal of the underlying denial of her objection.

In support of her argument, Linton cites authority which holds that notices of appeals from orders denying motions to amend or vacate orders, “although inept,” should be treated as appeals from the underlying substantive orders if there is no prejudice to the opposing party and the appeal is timely. See Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962); Johnson v. University of Wisconsin-Milwaukee, 783 F.2d 59, 61 (7th Cir.1986); Hennessy v. Schmidt, 583 F.2d 302, 306 (7th Cir.1978); 6A Moore’s Federal Practice, ¶ 59.15[1]. She argues that in this case, her motion to reconsider was timely because it was filed and served within ten days of the February 2, 1994, order. She also argues that construing the notice of appeal to relate to the February 2, 1994, order rather than the March 14, 1994, denial of her motion to reconsider does not prejudice Grow. Specifically, she asserts that the papers she has filed on appeal show that she is appealing the issue of Grow’s ability to bring the claim in bankruptcy in his individual capacity.

When the bankruptcy court overruled Linton’s objection to Grow’s claim on February 2, she had ten days to file a notice of appeal of that order pursuant to Fed.R.B.P. 8002(a). She did not file a notice of appeal, but instead filed a motion to reconsider with the bankruptcy court within ten days of the February 2 order. Her motion to reconsider was expressly filed pursuant to Fed.R.B.P. [840]*8409024, the bankruptcy equivalent of Fed. R.Civ.P. 60. An in Fed.R.Civ.P. 60 practice, the bankruptcy rules do not provide for the tolling of the time for appeal after the filing of a motion under Bankruptcy Rule 9024.

If Linton had filed a motion to amend or vacate the February 2, 1994, order pursuant to Fed.R.B.P. 9023, then she would be able to invoke the tolling device she needs. Bankruptcy Rule 9023 authorizes the use of Rule 59 of the Fed.R.Civ.P., and Rule 59(e) provides for motions to alter or amend a judgment. Bankruptcy Rule 8002(b) provides in part that where a party files a motion to alter or amend the judgment under bankruptcy rule 9023, “the time for appeal for all parties shall run from the entry of the order” granting or denying the motion.

Linton argues that although filed as a Rule 9024 motion, her motion to reconsider is better characterized as a Rule 9023 motion. Courts have held that in some cases, motions for reconsideration are actually better labeled motions to alter or amend the judgment under Rule 59(e). See In re Charley’s Tour and Transportation, Inc., 133 B.R. 237, 239 (D.Hawaii 1991); Creative Data Forms, Inc. v. Pennsylvania Minority Business Dev. Auth., 72 B.R. 619, 622 (E.D.Pa.1985), aff'd, 800 F.2d 1132 (3d Cir.1986). In this case, Linton’s motion has all the earmarks of a Rule 9024 (or Rule 60) motion. Linton called her motion a “Motion to Reconsider Denial of Debtor’s Objection to Claim Filed by Carl W. Grow,” and not a motion to alter or amend the judgment. She specifically invoked Fed.R.B.P. 9024 and Fed.R.Civ.P. 60(b). She did not mention Fed.R.B.P. 9023 or Fed.R.Civ.P. 59(e) at all. Finally, Linton argued that the motion was made in light of additional evidence discovered after the hearing — the ground for relief from a judgment or order under Rule 60(b)(2).

Nonetheless, the Seventh Circuit has held that “all substantive motions served within 10 days of the entry of judgment will be treated as based on Rule 59, and therefore as tolling the time for appeal.” Charles v. Daley,

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Cite This Page — Counsel Stack

Bluebook (online)
183 B.R. 838, 1995 U.S. Dist. LEXIS 11781, 1995 WL 388476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linton-v-grow-insd-1995.