In re Kieffer-Mickes, Inc.
| Decision Date | 03 November 1998 |
| Docket Number | BAP No. 98-6029. |
| Citation | 226 BR 204 |
| Parties | In re KIEFFER-MICKES, INC., Debtor. Carolynne M. KIEFFER and Kieffer-Mickes, Inc., Appellants, v. Charles W. RISKE, Appellee. |
| Court | U.S. Bankruptcy Appellate Panel, Eighth Circuit |
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Carolynne Kieffer, St. Louis, MO, pro se.
Charles W. Riske, St. Louis, MO, for appellee.
Before KOGER, Chief Judge, HILL, and DREHER, Bankruptcy Judges.
This is an appeal from an order of the bankruptcy court dated January 20, 1998,1 denying a motion by Appellant, Carolynne M. Kieffer (Kieffer), for an order revoking distribution of funds made pursuant to the bankruptcy court's order of September 20, 1996. We affirm.2
Appellant, Kieffer-Mickes, Inc. (Debtor), filed a petition for relief under Chapter 11 of the Bankruptcy Code on March 26, 1991. Kieffer was Debtor's sole shareholder and President. The case was subsequently converted to one under Chapter 7 and Appellee, Charles W. Riske (Trustee), was appointed as trustee.
In the course of administering the estate the Trustee reviewed the claims that had been filed and determined to object to several, including Claim Number 7 in the amount of $185,000 filed by Luttrell Construction Co. and Claim Number 10 in the amount of $42,140 filed by Kieffer. After the Trustee had been supplied with supporting documentation, however, he concluded that Claim Number 7 should be allowed in the amount of $104,000. However, he continued to press his objection to Claim Number 10. Well in advance of the hearing on objections, the Trustee advised Kieffer of his position and further that, if she wished to make her views known, she could do so at the hearing.
A hearing on claim objections was held on November 10, 1993. Kieffer appeared at the hearing and orally objected to the allowance of a number of claims that had been filed, including Claim Number 7. She also filed a written objection in which she made many complaints and insisted that the Trustee had failed to adequately investigate claims, including Claim Number 7.
On November 19, 1993, the bankruptcy court issued its order overruling Kieffer's objections to Claim Number 7, finding that the Trustee had adequately investigated the claim, noting that Kieffer's arguments regarding the claim had either been determined adversely to her in the bankruptcy case or in prior nonbankruptcy proceedings, and allowing the claim in the sum of $104,000 as a general unsecured claim. Kieffer did not appeal the November 19, 1993 order. The court also sustained the trustee's objection to Kieffer's claim in its entirety. Kieffer filed an appeal from this adverse ruling, but her appeal was subsequently dismissed.
On July 16, 1996, the Trustee filed a "Final Report, Proposed Distribution and Motion for Abandonment." In it, the Trustee proposed to distribute $42,120.25 to Luttrell Construction on Claim Number 7 (its pro rata share of the $45,817.44 available to pay general unsecured claims based on its allowed claim of $104,000). There would be no distribution to Kieffer on her claim. Kieffer was served with a copy of the report. Kieffer objected to several proposed distributions to creditors, including an objection to any distribution on Claim Number 7. She asserted that Claim Number 7 was not supported by reliable evidence, had not been adequately investigated, and was supported by "misleading and bogus documents."
By order dated September 20, 1996 (the September 20 order), the bankruptcy court overruled her objections, specifically finding that her objections to a distribution on Claim Number 7 were repetitious and untimely and did not present any legal basis for denial of payment.
Kieffer then filed a "Motion to Set Aside The Order to Pay Out Distribution on the Basis of Fraud." She specifically stated: "The claims and invoices presented to the Trustee and to the Court by Bob F. Luttrell President of Luttrell Construction Co. represent misleading documents and statements with little or no basis in truth, and there is no legitimate basis for his claims." By order dated October 2, 1996, the bankruptcy court denied her motion. Kieffer filed an appeal from the September 20 order and she and the Debtor also made a motion before the bankruptcy court for a stay of any distributions, a stay pending appeal, and a rehearing on the September 20 order. By order dated October 10, 1996, the bankruptcy court denied these motions, finding that the matters raised in the motion had been fully litigated previously and that the movants had presented no credible evidence to support any allegation of "newly found evidence." No appeal was taken from this order.
By order dated September 27, 1997, the district court subsequently dismissed the appeal from the September 20 order for failure to prosecute. A motion to reconsider was denied by the district court on November 10, 1997. Kieffer and the Debtor have appealed the dismissal to the Eighth Circuit Court of Appeals and their appeal is still pending. No stay having been obtained, however, the Trustee has made the distributions to creditors authorized by the September 20 order.
Between 1994 and December 1997, Kieffer asserts Bob Luttrell lived in her home over her objection. She asserts the relationship was abusive. She further states that she obtained a protective order and had him removed from the home in December 1997. On December 30, 1997, Kieffer made a motion seeking to have the bankruptcy court revoke the distribution that had been made to Luttrell Construction Co. on Claim Number 7 pursuant to the September 20 order. In this motion Kieffer asserted, once again, that she had new evidence to establish the fraudulent nature of Claim Number 7 and that no distribution should ever have been made on Claim Number 7.
In an order dated January 20, 1998, which is the subject of the present appeal, the bankruptcy court denied the request for relief and specifically found that the motion was repetitive of prior motions, the allegations of newly discovered evidence had not been established, and unsupported and generalized allegations of fraud provided no basis for setting aside the September 20 order.
Appellants contend that they have newly discovered evidence which establishes that Claim Number 7 should never have been allowed because it was supported by fraudulent or misleading information. Appellants' briefs continue to assert that the Trustee has failed to conduct a thorough investigation of the claim and that the Trustee "conspired" with the claimant so as to allow the claim.
Appellee asserts that since the September 20 order is on appeal, this court is without jurisdiction to act in the present appeal. He also asserts that the October 10, 1996 order, which denied reconsideration of the September 20 order, addressed these very allegations and, under the doctrine of res judicata, bars further litigation on the issues raised in this appeal. Finally, Appellee asserts that issues raised in this appeal have been rendered moot because distributions have been made pursuant to the September 20 order.
We review the legal conclusions of the bankruptcy court de novo. First Nat'l Bank v. Pontow, 111 F.3d 604, 609 (8th Cir.1997); Chamberlain v. Kula (In re Kula), 213 B.R. 729, 735 (8th Cir. BAP 1997). We review discretionary actions of the bankruptcy court for abuse of discretion, which may only be found if the lower court's judgment was based upon clearly erroneous factual findings or erroneous legal conclusions. Barger v. Hayes County Non-Stock Co-op (In re Barger), 219 B.R. 238, 243 (8th Cir. BAP 1998) (citing Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 2518, 138 L.Ed.2d 1020 (1997)). "Under an abuse of discretion standard, this court cannot reverse the bankruptcy court's ruling unless it `has a definite and firm conviction that the bankruptcy court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.'" Nelson v. Siouxland Fed. Credit Union (In re Nelson), 223 B.R. 349, 352 (8th Cir. BAP 1998) ).
We first address an issue which neither party raised and which the bankruptcy court did not consider, that is whether Kieffer and/or the Debtor have standing to pursue this appeal. To have standing to pursue an appeal, a party must make an independent showing that the party is aggrieved by the order or judgment which is subject of the appeal. LaBarge v. Benda (In re Merrifield), 214 B.R. 362, 365 (8th Cir. BAP 1997). In this context, an "aggrieved party is one who is `directly and adversely affected pecuniarily by the order of the bankruptcy court.'" Id. (quoting Fondiller v. Robertson (In re Fondiller), 707 F.2d 441, 443 (9th Cir.1983)); Cult Awareness Network, Inc. v. Martino, 151 F.3d 605, 607 (7th Cir.1998) ().
Kieffer no longer has any individual claim in the bankruptcy estate. Her claim was objected to by the Trustee and disallowed by the bankruptcy court. Her appeal from that disallowance has been dismissed. Thus, no assets of the estate can possibly go to Kieffer. Therefore, the distribution of estate assets does not pecuniarily affect Kieffer and she does not have standing in this matter. Merrifield, 214 B.R. at 365. See also In re Green, 133 B.R. 185, 186-87 (E.D.Va.1991) ().
Typically, a Debtor has no standing to object to claims or orders relating to them because the debtor does not have a pecuniary...
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