In re Curry and Sorensen, Inc., BAP No. CC-85-1009
| Decision Date | 07 February 1986 |
| Docket Number | BAP No. CC-85-1009,Adv. No. LA M4-07770-BR.,Bankruptcy No. LA 84-07761-JA |
| Citation | 57 BR 824 |
| Parties | In re CURRY AND SORENSEN, INC., a California corporation, Debtor. Walter T. HANSEN, Donald F. Rau and Ross H. Buckwalter, Plaintiffs, v. Kenneth R. FINN and Curry and Sorensen, Inc., a California corporation, Defendants. |
| Court | U.S. Bankruptcy Appellate Panel, Ninth Circuit |
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Roger A. Ferree, McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for plaintiffs.
Peter S. Fishman, LeVene & Eisenberg, Los Angeles, Cal., for defendants.
Before MEYERS, ABRAHAMS and VOLINN, Bankruptcy Judges.
I
On August 28, 1984, the appellants Walter T. Hanson, Donald F. Rau and Ross H. Buchwalter ("Appellants") filed a complaint naming the Debtor, Curry and Sorenson, Inc. ("Debtor") and its President Kenneth R. Finn ("Finn") as defendants. In this complaint the Appellants seek to void the Debtor's issuance of 75,000 shares of its capital stock to Finn, claiming it was a fraudulent transfer under Section 548 of the Bankruptcy Code ("Code"); to void these shares under Section 409 of the California Corporations Code; and to have injunctive relief restraining Finn from exercising any rights as the holder of these shares.
On September 14, 1984, the Debtor filed a motion to dismiss the complaint on the grounds that the Appellants lacked standing to bring the action under Section 548 and that the complaint failed to state a claim upon which relief could be granted.
The Bankruptcy Court heard this matter on October 17, 1984 and subsequently filed a memorandum decision finding that the complaint should be dismissed as the Appellants lacked standing. On November 8, 1984, the Appellants filed a "Motion for Clarification or, in the Alternative, for Reconsideration of the Decision." However, on November 20, 1984, the Bankruptcy Court filed its order dismissing the complaint.
On December 5, 1984, a hearing was held on the Appellant's motion for clarification or reconsideration. On December 13, 1984, the order affirming the decision of November 20, 1984 was entered with the notice of appeal being filed by the Appellants on December 20, 1984.
On April 17, 1985, the Debtor filed a motion with the Panel to dismiss this appeal for lack of jurisdiction on the grounds that the notice of appeal was not timely filed.
II
Under Bankruptcy Rule 8002(a) a notice of appeal must be filed within 10 days of the date of the entry of the judgment, order or decree appealed from. See Matter of Ramsey, 612 F.2d 1220, 1221 (9th Cir.1980). The time limits established for filing a notice of appeal are "mandatory and jurisdictional." See Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978); United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1267 (9th Cir.1985).
In this case the Bankruptcy Court's order was filed on November 20, 1984, while the notice of appeal was not filed with the Bankruptcy Court Clerk until December 20, 1984, well outside the 10-day time bar established by Rule 8002(a). The Appellants argue, however, that their motion for clarification or reconsideration acted to toll the time for appeal under Rule 8002(b). This rule provides, in part, that the time to appeal is tolled by a timely filed motion to alter or amend a bankruptcy court's judgment filed under Rule 9023. In re Lovitt, 757 F.2d 1035, 1039 n. 2. (9th Cir.1985). See also In re 6 & 40 Inv. Group, Inc., 752 F.2d 515, 516 (10th Cir.1985). Such motions are the equivalent of those filed under Rule 59(e), Fed.R.Civ.P., which is made applicable to bankruptcy cases by Rule 9023. See In re Branding Iron Steak House, 536 F.2d 299, 301 n. 1 (9th Cir.1976); In re Morrison, 26 B.R. 57, 60 (Bkrtcy.N. Ohio 1982).1
The federal rules do not contemplate motions for reconsideration. Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.1979); In re Morrison, supra, 26 B.R. at 60. However, there is a policy of liberally construing appellate rules to carry out the desire of Congress to promote fairness in the administration of justice and a just determination of litigation. Bordallo v. Reyes, 763 F.2d 1098, 1102 (9th Cir.1985). Therefore, motions for reconsideration have traditionally been treated as motions to alter or amend under Rule 59(e), Fed.R.Civ.P., if the motion draws into question the correctness of the trial court's decision. See In re Branding Iron Steak House, supra, 536 F.2d at 301; Bestran Corp. v. Eagle Comtronics, Inc., 720 F.2d 1019 (9th Cir.1983); In re 6 & 40 Inv. Group, Inc., supra, 752 F.2d at 515-16.
Here the Bankruptcy Court announced its decision on November 5, 1984. The Appellants filed their motion for reconsideration on November 8, 1984. The Court filed the order dismissing the complaint on November 20, 1984. The motion was heard on December 5, 1984 and the order affirming the order of November 20 was filed on December 13, 1984. The notice of appeal was filed on December 20, 1984. We hold that the motion for reconsideration tolled the time for filing the notice of appeal until the trial court's order of December 13, 1984 was entered. See In re Lovitt, supra, 757 F.2d at 1039 n. 2.2 Therefore, the notice of appeal was timely filed and this Panel has jurisdiction to consider this appeal.
The Appellants, the former owners of the Debtor, currently are creditors of the Debtor and own 5,373 shares of the Debtor's capital stock. The remaining 75,000 shares of the outstanding stock are held in the name of the Debtor's president, the defendant Finn. The Appellants filed the complaint in question here to challenge the February 6, 1984, issuance of the stock to Mr. Finn. In the Bankruptcy Court, the Debtor moved to dismiss the complaint on the grounds that the Appellants lacked standing and that the complaint failed to state a proper claim. The trial court granted this motion, ordering that the complaint be dismissed for lack of standing.
In reviewing the order dismissing this complaint, the Panel notes that the Appellants have the burden of proving that they had standing to bring this action. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 45, 96 S.Ct. 1917, 1927, 48 L.Ed.2d 450 (1976); Copper & Brass Fabricators v. Dept. of Treasury, 524 F.Supp. 945, 947 (D.C.1976), aff'd, 679 F.2d 951 (D.C.Cir.1982).
In the first claim of the complaint the Appellants seek to have the transfer of the 75,000 shares to Mr. Finn set aside as a fraudulent transfer under 11 U.S.C. § 548. Section 548 establishes power to avoid fraudulent transfers, which usually may only be asserted by a trustee or, under Section 1107(a) of the Code, by a Chapter 11 debtor-in-possession. See In re Van Brock, 33 B.R. 546, 547 (S.Fla.1983). Individual creditors generally have no remedy to institute such an action except through the trustee or debtor-in-possession. See In re Teal, 35 B.R. 360, 362 (Bkrtcy.E.Pa. 1984); In re Philadelphia Light Supply Co., 39 B.R. 51, 52 (Bkrtcy.E.Pa.1984) (complaint under section 547).
This limitation on creditor action is cushioned by the duty imposed on a trustee to investigate the conduct of prior management to uncover and pursue causes of action against the debtor's officers and directors. Commodity Futures Trading Comm'n v. Weintraub, ___ U.S. ___, 105 S.Ct. 1986, 1993, 85 L.Ed.2d 372 (1985). While pursuant to Section 1107(a) of the Code, a debtor in possession is not required to investigate and report under Sections 1106(a)(3) and (4), the debtor's directors bear essentially the same fiduciary obligation to creditors and shareholders as would a trustee for a debtor out of possession. Weintraub, supra, 105 S.Ct. at 1994-95.
The exclusive power to commence avoidance actions vested in trustees and debtors-in-possession is permissive rather than mandatory and the exercise of this power can only be reviewed for abuse of discretion. See Matter of Monsour Medical Center, 5 B.R. 715, 718 (Bkrtcy.W.Pa. 1980); In re Amarex, Inc., 36 B.R. 59, 61 (Bkrtcy.W.Okla.1984). If a creditor is dissatisfied with lack of action on the part of the debtor-in-possession, the creditor may move to replace the debtor-in-possession with a Chapter 11 trustee; or to convert the Chapter 11 case to one under Chapter 7; move to dismiss the Chapter 11 case; or petition the court to compel the debtor-in-possession to act or to gain court permission to institute the action itself. See Matter of Monsour Medical Center, supra, 5 B.R. at 718.
Thus, if an aggrieved creditor believes that the debtor-in-possession has failed to fulfill its duty to prosecute actions, then the creditor must bring this to the attention of the court by an appropriate motion. This promotes the fair and orderly administration of the bankruptcy estate by providing judicial supervision over the litigation to be undertaken. See Meyer v. Fleming, 327 U.S. 161, 169, 66 S.Ct. 382, 387, 90 L.Ed. 595 (1946); Gochenour v. George & Francis Ball Foundation, 35 F.Supp. 508, 518 (S.Ind.1940). This judicial intervention is crucial, for resolution of the conflict between the creditor and the debtor-in-possession requires a balancing of the competing interests to determine whether or not the debtor-in-possession's failure to bring the action is unjustifiable and therefore constitutes an abuse of discretion. See In re Toledo Equipment Co., Inc., 35 B.R. 315, 319 (Bkrtcy.N.Ohio 1983). At such a hearing the court can determine if the initiation of such an action at that time would forward the reorganization effort, or to the contrary, might be a detriment. Here the Appellants made no attempt to bring this matter to the attention of the Bankruptcy Court before commencing this action. The mere fact that the Debtor failed to institute such proceedings did not authorize them to proceed in their own...
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