UNITED STATES BANKRUPTCY APPELLATE PANEL FOR THE FIRST CIRCUIT ______________________________
BAP NOS. PR 99-029 and PR 99-057 ______________________________
In re: RAMON A. PABON RODRIGUEZ and ELSA IRIS MEDINA LANDIN, Debtors. _____________________________
RAMON LOPEZ JIMINEZ, CELESTINO LOPEZ JIMINEZ, MANUAL DE JESUS RAMOS RAMOS, MARIA DE LOURDES RAMIREZ MUNIZ, AND THE CONJUGAL PARTNERSHIP CONSTITUTED BETWEEN THEM, and HAYBOT JESUS RAMOS RAMOS, Appellants,
v.
RAMON A. PABON RODRIGUEZ, ELSA IRIS MEDINA LANDIN, and RICHARD A. LEE, TRUSTEE, Appellees. _____________________________
Appeal from the United States Bankruptcy Court for the District of Puerto Rico (Hon. Enrique S. Lamoutte, U.S. Bankruptcy Judge) _____________________________
Before VOTOLATO, Chief Judge, VAUGHN and DEASY, U.S. Bankruptcy Judges. _____________________________
Miguel E. Bonilla Sierra for Appellants.
Antonio Fiol Matta for Appellees.
_____________________________
August 21, 2000
_____________________________ PER CURIAM.
I. INTRODUCTION
Before the panel are two appeals filed by Ramon Lopez
Jiminez, Celestino Lopez Jiminez, Manual De Jesus Ramos Ramos and
Maria De Lourdes Ramirez Muniz and the conjugal partnership
constituted between them, and Haybot Jesus Ramos Ramos
(collectively, the “Appellants”) of bankruptcy court orders
denying (1) their motion for reconsideration of the judgment
entered in favor of Ramon A. Pabon Rodriguez and Elsa Iris Medina
Landin (the “Debtors”) and Richard A. Lee, Trustee (the “Trustee”
and, collectively, with the Debtors, the “Appellees”); (2) their
motion to consider the Appellants’ reply to the Trustee’s motion
for summary judgment; (3) their motion to treat the motion for
reconsideration as a motion under Rules 59 and/or 60 of the
Federal Rules of Civil Procedure; and (4) their motion under Rule
60(b)(3) of the Federal Rules of Civil Procedure to vacate the
bankruptcy court’s judgment. For the reasons set forth below, we
affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Appellants own properties that adjoin property owned by
the Debtors. Sometime during the late 1980s or early 1990s,
disputes erupted between the Appellants and the Debtors as to who
owned land north of the Appellants’ properties. To fully
understand the dispute between the parties, it is necessary to review the history of ownership of the real property at issue as
well as the procedural posture of the litigation that has ensued
since 1991.
A. Appellants’ Properties
On April 24, 1942, Mamerto Lopez Ruiz and his wife purchased
land in Aguada, Puerto Rico, known as Estate No. 572, which
consisted of 8.96 cuerdas.1 In 1963, after Ruiz’s wife passed
away, the couple’s three children, Altagracia, Nicasio, and
Celestino, recorded their hereditary title to one-half of the
property.2 On June 14, 1963, Ruiz and his three children reduced
the area of Estate No. 572 to 5.44 cuerdas in accordance with the
requirements of Puerto Rico law.3 The record supports a finding
that 1.084 cuerdas were used to construct a state road and that
the balance of the reduction occurred as the result of a
surveyor’s certification that the remaining property actually
consisted of only 5.44 cuerdas.
1 “Cuerdas” is a Spanish word for a unit of area for which there is no English translation. At oral argument the parties indicated that a cuerdas is slightly smaller than an acre. 2 Puerto Rico law requires that “hereditary rights” be recorded in Puerto Rico’s property registry. See 30 L.P.R.A. § 2201. 3 The Puerto Rico Mortgage and Property Registry Act provides a mechanism, known as “rectification,” in order to resolve “any disagreement on recordable rights which may exist between the Record and the legal reality outside the Registry.” 30 L.P.R.A. § 2360. According to the statute, “[r]ectification of the Registry may be requested by the titleholder of dominion or real right which is not recorded, which is recorded erroneously, or which is impaired by the inaccurate entry.” Id.
2 On November 13, 1964, Ruiz and his children partitioned
their interest in Estate No. 572 as follows:
a. 1.82 cuerdas were transferred to Altagracia, reducing Estate No. 572;
b. 1.82 cuerdas were transferred to Nicasio, creating Estate No. 2072; and
c. 1.80 cuerdas were transferred to Celestino, creating Estate No. 2073.
Ruiz retained an interest in the building situated on Estate No.
572.
On October 22, 1966, Celestino sold Estate No. 2073. The
property was subsequently transferred several times during the
next two decades. On May 10, 1986, Manual De Jesus Ramos Ramos
and Haybot Jesus Ramos Ramos, two of the Appellants, obtained
title to Estate No. 2073 through their parents’ donation. On
January 16, 1967, a few months after Celestino sold Estate No.
2073, Altagracia sold Estate No. 572 to Celestino.
On November 16, 1976, Nicasio attempted to increase the area
of Estate No. 2072 from 1.82 cuerdas to 2.646 cuerdas. Pursuant
to Puerto Rico law, the registrar of property permitted an
increase to 2.18 cuerdas (or by twenty percent) based upon a
survey and measurement by a licensed surveyor.4
4 Puerto Rico law provides:
Rectification of the size of all properties already recorded may be entered in the Registry by any of the following means:
First: By an unappealable verdict handed down in a regular procedure of judicial survey or to establish the dimensions.
Second: By a public document when it is a question of
3 At all times relevant to the litigation described below,
Celestino, Nicasio, and the Ramoses held title to Estates No.
572, 2072, and 2073, respectively.
B. Debtors’ Property
On December 27, 1985, the Debtors purchased property in
Aguada, Puerto Rico, known as Estate No. 1169, from Nicolas de
Cardona and his wife, Clementina Yumat. This property borders
Estates No. 572, 2072, and 2073 on the south, which property is
owned by Celestino, Nicasio, and the Ramoses, respectively. The
deed into the Debtors recited that Estate No. 1169 was recorded
at the registry with an area of 72.10 cuerdas, but that the
correct area, pursuant to a land survey, was 91.6 cuerdas. Under
the terms set forth in the deed, the sellers became obligated to
rectify the recorded area by instituting the appropriate
proceedings.5 The sellers failed to do so. As a result, the
Debtors agree that they have record title to only 72.10 cuerdas.
On March 20, 1993, Julio Cajigas prepared a survey of Estate
No. 1169 for the Debtors that showed that the Debtors’ property
reduction of the area or an excess of no more than twenty percent of the recorded area, and it is done by proven technical surveying methods, in accordance with the provisions of section 2765 of this title.
Third: By means of judicial proceedings to record a title in fee simple for the entire excess when it is more than twenty percent. In this case the immediate former owner shall be summoned even though he has conveyed the property by public document.
30 L.P.R.A. § 2772. 5 See footnotes 3 and 4 supra.
4 consists of 69.103 cuerdas, excluding the area over which there
currently is a dispute with the Appellants, or 2.997 cuerdas
short of the 72.10 cuerdas recorded with the registry and recited
in the deed to the Debtors.
C. Litigation
In 1991, Celestino brought an action in the Puerto Rico
courts against the Debtors seeking to obtain recordable title to
certain land north of his property, Estate No. 572. In 1993,
Nicasio brought a similar action with respect to his property,
Estate No. 2072. In 1996, the Ramoses brought a third action
against the Debtors seeking to obtain title to land north of
their property, Estate No. 2073.
On May 9, 1995, the Debtors filed a bankruptcy petition
under Chapter 13. On August 15, 1996, the bankruptcy case was
converted to Chapter 11. On October 21, 1996, a Chapter 11
trustee was appointed. After his appointment, the Trustee
removed the state court cases filed by the Appellants to the
bankruptcy court, and on March 7, 1997, all three matters were
consolidated.
On September 5, 1997, the Trustee filed a motion for summary
judgment claiming that the Debtors own the property at issue and
that the Appellants were estopped by their own acts from claiming
a right to the property in controversy. The Appellants missed
the September 16, 1997 deadline for filing a response to the
5 motion for summary judgment.6 On December 3, 1997, the
bankruptcy court granted the Trustee’s unopposed motion by
endorsing it in the margin.
On December 12, 1997, after the bankruptcy court granted the
Trustee’s motion, the Appellants filed a late response to the
motion for summary judgment. On December 29, 1997, the
bankruptcy court entered a judgment dismissing the Appellants’s
claims and holding that the Debtors had title to the disputed
property. On January 7, 1998, the Appellants filed a motion to
reconsider the bankruptcy court’s December 3, 1997 order and to
vacate the December 29, 1997 judgment. On January 13, 1998, the
Appellants filed another motion requesting that the bankruptcy
court consider its late response to the motion for summary
judgment.
The bankruptcy court issued an opinion and order on March 2,
1999 denying the Appellants’ requests to reconsider its December
3, 1997 order, to vacate its December 29, 1997 judgment, and to
consider their opposition to the motion for summary judgment. On
March 11, 1999, the Appellants appealed the bankruptcy court’s
December 3, 1997 order granting summary judgment and its March 2,
1999 opinion and order denying their motions to reconsider and
vacate.
6 The Appellants claim they filed a motion for an extension of time to respond to the motion which was never acted upon by the bankruptcy court. The bankruptcy court has no record of ever having received such a motion, either orally or in writing.
6 While their case was pending on appeal, the Appellants filed
a motion under Rule 60(b)(3) of the Federal Rules of Civil
Procedure on May 6, 1999 with the bankruptcy court seeking relief
from the court’s judgment. They argued that the survey relied
upon by the Trustee in his motion for summary judgment was false
and misleading. On July 2, 1999, the bankruptcy court issued an
opinion and order denying the motion for relief from judgment.
The Appellants appealed that order on July 8, 1999. The
Bankruptcy Appellate Panel consolidated the Appellants’ two
appeals on August 11, 1999. The Panel heard oral argument on May
4, 2000.
III. DISCUSSION
On appeal, the Appellants challenge the bankruptcy court’s
orders and judgment that (1) granted relief in favor of the
Trustee; and (2) denied the Appellants’ requests for
reconsideration and for relief from judgment. Specifically, the
Appellants argue on appeal that (1) the bankruptcy court erred in
granting summary judgment in favor of the Appellees; (2) the
bankruptcy court erred in failing to consider the Appellants’
reply to the motion for summary judgment and in failing to vacate
the order granting summary judgment pursuant to Federal Rules of
Civil Procedure 59 and/or 60; and (3) the bankruptcy court abused
its discretion when it denied the Appellants’ motion under
Federal Rule of Civil Procedure 60(b)(3).
7 A. SUMMARY JUDGMENT
In his motion for summary judgment, the Trustee requested
that the Court determine that the Debtors and their bankruptcy
estate hold title to the property in controversy. The Court
granted the motion on December 3, 1997; however, the bankruptcy
court’s reason for granting the Trustee’s motion was not stated
in its order. Rather, the order merely recited: “Granted. No
opposition filed. Judgment shall be entered.”
The standard for appellate review of an order granting or
denying summary judgment is de novo. See Printy v. Dean Witter
Reynolds, Inc., 110 F.3d 853, 854 (1st Cir. 1997; Adam Co-
operative Bank v. Greenberg (In re Greenberg), 229 B.R. 544, 546
(B.A.P. 1st Cir. 1999). The appellate court must review the
evidence in the light most favorable to the party against whom
judgment was entered to determine whether there are genuine
issues of material fact and whether the lower court correctly
applied the law to the undisputed facts. See McCrory v. Spigel
(In re Spigel), BAP No. RI 00-109 (B.A.P. 1st Cir. July 13, 2000)
(citing Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th
Cir. 1994)). “[S]ummary judgment should be bestowed only when no
genuine issues of material fact exists and the movant has
successfully demonstrated an entitlement to judgment as a matter
of law.” Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763
(1st Cir. 1994) (citing Fed. R. Civ. P. 56(c)).
8 “As to issues on which the movant, at trial, would be
obliged to carry the burden of proof, he initially must proffer
materials of evidentiary or quasi-evidentiary quality—say,
affidavits or depositions—that support his position.” Id. “As
to issues on which the nonmovant has the burden of proof, the
movant need do no more than aver ‘an absence of evidence to
support the nonmoving party’s case.’ . . . The burden of
production then shifts to the nonmovant, who, to avoid summary
judgment, must establish the existence of at least one question
of fact that is both ‘genuine’ and ‘material.’” Id. at n.1
(citations omitted). An inadequate opposition to a summary
judgment motion can eliminate the objecting party’s ability to
raise factual issues warranting trial. See Greenberg, 229 B.R.
at 548. The mere fact that a party has failed to file a timely
opposition does not mean, however, that the movant’s summary
judgment motion should be granted. See Mendez v. Banco Popular
de Puerto Rico, 900 F.2d 4, 7 (1st Cir. 1990). Rather, the court
must make a determination that based on the uncontroverted,
undisputed facts, the moving party is entitled to judgment in the
movant’s favor. Thus, while the absence of a dispute over
material facts is a necessary condition for granting summary
judgment, it is not a sufficient condition. See Varrasso, 37
F.3d at 764.
In the instant action, the Appellants sought to rectify the
records of Puerto Rico’s registry of property and “to obtain
9 recordable title to certain land north of their properties, which
they claimed was part of the property each owned.” Appellants’
Brief at 3. In any action seeking to rectify the registry’s
records and/or to obtain recordable title to real property, the
parties seeking relief must comply with Puerto Rico’s Mortgage
and Property Registry Act, 30 L.P.R.A. §§ 2051-2821. “The
purpose of the Property Registry [of Puerto Rico] is the
registration of transactions and contracts relating to real
property through a public record system of titles containing
acquisitions, modifications and extinctions of domain and other
real rights on said property, and the recordable rights on same,
and those judicial opinions which may affect the legal capacity
of the owners of record.” 30 L.P.R.A. § 2051.
The Mortgage and Property Registry Act “recognizes the fact
that an inscription or recording may not reflect the real status
of the property; therefore, . . . a process of rectification of
inaccuracies is reserved for the benefit of ‘the title holder of
dominion or real right which is not recorded, which is recorded
erroneously, or which is impaired by the inaccurate entry.’ . . .
[The statute] provides that when a required correction affects a
third party’s rights, the same can be accomplished if (a) the
third party consents, or (b) a judicial order is entered to that
effect.” Juarbe Alicea v. Juarbe Auto Sales, Inc., 640 F. Supp.
110, 112 (D.P.R. 1986) (citations omitted); see 30 L.P.R.A. §
2502 (“When rectification might affect the rights of registered
10 titleholders, their consent or a judicial resolution ordering the
rectification of the entries shall be required.”); 30 L.P.R.A. §
2771 (“When the owner of a recorded property or of a real right
on it does not appear as owner of record, he must bring a regular
action against those appearing in the Registry as titleholders,
and if he wins the lawsuit, the Court shall order a registration
in the name of the plaintiff, and the cancellations which are in
order.”). Here, the Appellants sought not only to change the
registry’s records to reflect that the surface area of their
property was larger but also to obtain recordable title to a
portion of the Appellees’ property. The Appellees objected
claiming they own the property at issue and that the Appellants
are estopped by their own acts from claiming any right to the
property.
Pursuant to 30 L.P.R.A. § 2772, the only way to rectify each
of the Appellants’ properties is “by means of judicial
proceedings” as the Appellants seek to increase their property by
more than twenty percent.7 Each of the Appellants brought a
judicial proceeding in the Puerto Rico courts, and all three
actions were removed by the Trustee to the bankruptcy court. As
the parties seeking to change the registry’s records and obtain
title to registered property, the Appellants have the burden of
proving that there was some inaccuracy in the registry’s record,
i.e., that there was a disagreement with respect to recordable
7 See footnote 4 supra.
11 rights that existed between the record and the legal reality
outside the registry. See 30 L.P.R.A. § 2360.
“In order to be recordable, titles . . . must appear in
deeds, judgments or official documents issued by judicial
authority or a competent official, in the manner prescribed by
law and regulations, except in cases where the law establishes a
different procedure.” 30 L.P.R.A. § 2205. Here, the unopposed
summary judgment record contains no evidence that would support a
finding that the Appellants’s alleged rights in the property
appear in any “deeds, judgments or official documents” as
required by the statute.
In support of his motion for summary judgment, the Trustee
supplied the bankruptcy court with certified copies and
translations of various deeds. In particular, he included copies
of a deed executed on June 14, 1963 pursuant to which Ruiz and
his three children, Altagracia, Nicasio, and Celestino rectified
the area of Estate No. 572 from 8.96 cuerdas to 5.44 cuerdas.
The Trustee further included two deeds executed on November 13,
1964 that partitioned Estate No. 572 into three smaller estates,
two of which contained 1.82 cuerdas and the third of which
contained 1.80 cuerdas, together totaling 5.44 cuerdas. The
deeds indicated that, to the north, these properties bordered
land owned by Nicolas Cardona, the person from whom the Debtors
purchased Estate No. 1169 in 1985. The Trustee also attached to
his motion additional deeds in which the Appellants continued to
12 recite that their properties contained fewer cuerdas than they
now claim.8 The deeds also recite that the three properties
bordered Cardona’s property on the north. It is undisputed that
these deeds were all recorded with the registry of property in
Puerto Rico.
The Puerto Rico Mortgage and Property Registry Act provides:
For all legal purposes, it shall be presumed that the recorded rights exist and belong to their titleholder in the form specified by the respective entry. It shall also be presumed that the person who has recorded the ownership of the real properties or rights has possession thereof. This assumption, as well as the preceding one, admits proof to the contrary, but the courts will take care that in a case of doubt as to possession, the recorded titleholder be recognized as the owner, subject to the actions that his contradictor can exercise in the corresponding regular proceedings.
30 L.P.R.A. § 2354. The statute makes clear that in the instant
case the Panel should presume that the Appellants and the Debtors
have rights to property as recorded in the registry and that they
have possession of the property. Given this presumption and the
lack of evidence in the unopposed summary judgment record that
the Appellants hold title to the Debtors’ property, the Trustee
was entitled to judgment in his favor, i.e., that the Debtors and
their bankruptcy estate are the owners of the property.
Examining the summary judgment record in the light most favorable
to the Appellants, the Panel finds that the record lacks any
8 As indicated above, Nicasio did previously rectify the surface area of his property by twenty percent resulting in an increase to 2.18 cuerdas. Despite this increase, Nicasio apparently was attempting to increase the size of his property even more in the bankruptcy proceeding.
13 basis upon which to find that the Appellants have legal title to
the property.
B. LATE REPLY TO MOTION AND COURT’S REFUSAL TO VACATE ORDER
The bankruptcy court denied the Appellants’ late reply to
the motion for summary judgment as moot. Rules 311(5) and (12)
of the Local Rules of the United States District Court for the
District of Puerto Rico, as adopted and amended by Local Rules
7001(1) and (b)(1) of the United States Bankruptcy Court for the
District of Puerto Rico, provide that a respondent has eleven
days to oppose a motion for summary judgment after it is served.
It is undisputed that the Appellants filed their reply eighty-
seven days after it was due and nine days after the bankruptcy
court ruled on the Trustee’s motion for summary judgment. The
Appellants concede that there is no valid explanation for their
failure to comply with the established procedural requirements of
the bankruptcy court. While it is unclear whether the Appellants
are challenging the bankruptcy court’s order denying their reply
as moot, assuming that the Appellants are seeking review of that
order, the Panel finds that the bankruptcy court acted properly
in refusing to consider the reply. See Smith v. Severn, 129 F.3d
419, 425 (7th Cir. 1997) (holding that the district court did not
abuse its discretion in refusing to consider a plaintiff’s late
response to a motion for summary judgment where the pleading was
“a few months late” and “no good reason for the delay” was
offered).
14 The Appellants challenge the bankruptcy court’s denial of
their motion requesting that the bankruptcy court consider their
reply to the Trustee’s motion and their motion for
reconsideration as motions under Rules 59 and/or 60 of the
Federal Rules of Civil Procedure. As the bankruptcy court
properly explained, a motion to reconsider is not among the
motions recognized by the Federal Rules of Civil Procedure. See
Opinion dated March 2, 1999 at 9. Rather, a motion so
denominated, which challenges the prior judgment on the merits,
should be treated as either a motion to alter or amend under Rule
59(e) or a motion for relief from judgment under Rule 60(b). See
id. at 9-10.
An appellate court reviews an order denying such a motion
for abuse of discretion. See In re Sun Pipe Line Co., 831 F.2d
22, 25 (1st Cir. 1987), cert. denied, 486 U.S. 1055 (1988); Salem
Five Cents Sav. Bank v. Tardugno (In re Tardugno), 241 B.R. 777,
779 (B.A.P. 1st Cir. 1999); Neal Mitchell Assocs. v. Braunstein
(In re Lambeth Corp.), 227 B.R. 1, 7 (B.A.P. 1st Cir. 1998). The
First Circuit Court of Appeals has explained that “[a]buse occurs
when a material factor deserving significant weight is ignored,
when an improper factor is relied upon, or when all proper and no
improper factors are assessed, but the court makes a serious
mistake in weighing them.” Tardugno, 241 B.R. at 779 (quoting
Independent Oil & Chem. Workers of Quincy, Inc. v. Procter &
Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)).
15 In the instant case, the bankruptcy court took painstaking
effort to fully consider the arguments made by the Appellants in
support of their motion for reconsideration (as well as some
arguments the court assumed the Appellants were attempting to
make). The Panel concludes that the bankruptcy court articulated
sound reasons for denying the motion. As there was no abuse of
discretion, the Panel affirms the bankruptcy court’s order dated
March 2, 1999 denying the Appellant’s request to vacate the
court’s judgment.
C. RULE 60(b)(3) MOTION
Rule 60(b)(3) allows a court to relieve a party from a final
judgment, order, or proceeding on account of “fraud (whether
heretofore deemed intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party.” A bankruptcy court’s
decision on a Rule 60(b)(3) motion is committed to the discretion
of the court and may be reversed only upon a finding of an abuse
of that discretion. See Ojeda-Toro v. Rivera-Mendez, 853 F.2d
25, 28 (1st Cir. 1988). In considering a Rule 60(b)(3) motion on
appeal, the appellate court does not review the merits of the
underlying judgment. See id.
To prevail under Rule 60(b)(3) in this case, the Appellants
were required to show that they were prevented from fully and
fairly presenting their defense to the summary judgment motion by
the Trustee’s alleged misconduct in presenting allegedly false
and misleading evidence in the form of the Cajigas survey. See
16 In re M/V Peacock, 809 F.2d 1403, 1404-05 (9th Cir. 1987). The
Appellants argued in their motion that they were entitled to
relief from judgment because the Appellees committed fraud and
misrepresentation by submitting the Cajigas survey in support of
their motion for summary judgment and by making false and
misleading representations about the information contained in it.
The Appellants argue that the Cajigas survey is inaccurate
because it was prepared at the Debtors’ request and in accordance
with the boundaries set by the Debtors and because the adjoining
property owners were not notified that the survey was being
conducted. The Appellants conclude that the bankruptcy court’s
judgment must be vacated because it is based on erroneous and
misleading information submitted by the Appellees.
The Panel agrees with the bankruptcy court, for the reasons
set forth in that court’s opinion and order dated July 2, 1999,
that the Appellants have failed to meet their burden under Rule
60(b)(3). Specifically, the Appellants have failed (1) to
establish that they would have a meritorious defense against the
Appellees’ motion for summary judgment; (2) to demonstrate by
clear and convincing evidence that the Appellees engaged in fraud
or misrepresentation; (3) to show that they were unaware of the
facts upon which they now base their claim of fraud and
misrepresentation at the time they responded to the Appellees
motion for summary judgment; and (4) to exercise due diligence in
obtaining the sworn statement of the surveyor.
17 Because the Appellants have failed to demonstrate how the
Trustee’s alleged misconduct interfered with their ability to
prepare a defense to the motion for summary judgment, the Panel
rules that the bankruptcy court did not abuse its discretion in
determining that the Appellants could not rely on the Appellees’
alleged misconduct in submitting the survey as a reason for
relief from judgment under Rule 60(b)(3). Accordingly, the
bankruptcy court’s order dated July 2, 1999 denying the motion
for relief from judgment is hereby affirmed.
V. CONCLUSION
For the reasons outlined above, the bankruptcy court’s order
granting the Appellees’ motion for summary judgment is AFFIRMED.
The bankruptcy court’s orders denying the Appellants’ motions to
reconsider and for relief from judgment are also AFFIRMED.
SO ORDERED.