Winner Corp., In re
| Decision Date | 26 September 1980 |
| Docket Number | No. 78-1467,78-1467 |
| Citation | 632 F.2d 658 |
| Parties | , Bankr. L. Rep. P 67,802 In re the WINNER CORPORATION f/k/a Winner Boats, Inc., Bankrupt. THIRD NATIONAL BANK, Plaintiff-Appellant, v. The WINNER CORPORATION and the Industrial Development Board of Dickson County, Tennessee, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas M. Evans, Charles Hampton White, Cornelius, Collins, Higgins & White, Nashville, Tenn., for plaintiff-appellant.
Wilson Sims, Nashville, Tenn., for Winner.
Robert S. Clement, Dickenson, Tenn., for Industrial Development Board.
Before EDWARDS, Chief Judge, and MERRITT and BOYCE F. MARTIN, Jr., Circuit Judges.
Third National Bank appeals from the District Court's denial of the bank's motion to reconsider an order dismissing the bank's appeal in bankruptcy. The District Court determined that no filing fee was received with the notice of appeal in Bankruptcy Court and that no designation of record had been filed in accordance with Rule 806 of the Bankruptcy Rules and local rule 4; accordingly, the court dismissed the bank's appeal. We reverse.
In December, 1973, appellee Winner Corporation filed a petition under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq., and a plan for arrangement of debts with its creditors. At the time of filing, Winner occupied a plant in Dickson County, Tennessee, pursuant to a lease agreement dated September 1, 1968. The plant had been built from sale proceeds of industrial revenue bonds issued by appellee Industrial Development Board of the County of Dickson, Tennessee. The bank is trustee for holders of those bonds and the assignee of the lease in question.
The original lease provided a 24-year term from September 1, 1968 to September 30, 1992; the lease was subsequently amended twice. Monthly rental depended upon retirement of the industrial revenue bonds. Between September 1, 1973 and December 2, 1976, Winner had fallen behind in rent payment to the extent of $388,470.93. On December 2, 1976, Winner petitioned the Bankruptcy Court to modify the plan of arrangement to permit rejection of the lease and abandonment of the property. On April 4, 1977, the Bankruptcy Judge conditionally confirmed the lease rejection but held in abeyance a determination of the amount of damages sustained by the bank.
A hearing was held on August 16, 1977. The bank presented evidence of the rent arrearage as of the date the petition was filed, the amount which had accrued between the filing and the hearing, and the total amount due for the balance of the lease. Relying on Section 353 of the Bankruptcy Act, the Bankruptcy Judge determined that the bank could be entitled to maximum damages of three times the rent reserved for the three years following the surrender of the premises, or approximately $477,000. 11 U.S.C. § 753. The court found that the maximum damage claim for rejection of the lease would be $865,470.93-$477,000 plus $388,470.93.
The Bankruptcy Judge concluded that the bank had no provable claim until rejection of the lease; therefore, none of the bank's claims constituted administrative expenses or were entitled to any type of priority. The court found the measure of damages to be the difference between the rent provided by the lease plus accrued rent and present rental value of the lease, subject to a three year maximum. Winner presented testimony showing the present rental value and present market value of the plant to be in excess of the amount required to pay off the bonds. The court held that the bank sustained no damages under § 353 of the Act and awarded no damages for rent due during the proceedings. The judgment of the Bankruptcy Court was entered March 28, 1978.
On April 4, 1978, counsel for the bank forwarded a notice of appeal to the Bankruptcy Judge pursuant to Rule 802 of the Rules of Bankruptcy Procedure. The notice was received on April 6, 1978, but the $10 filing fee was not included. A check for that amount was mailed on April 6; it was not received until April 10. On April 11 the Bankruptcy Judge prepared and dated a notice of appeal which was received by counsel for the bank on April 18. Two days later, appellant mailed a Designation of the Record and Statement of Issues on Appeal; these documents were not received by the office of the Bankruptcy Judge until April 24, 1978. Meanwhile, on April 21, the Bankruptcy Judge had transmitted the notice of appeal along with his memorandum opinion and judgment to the District Court Clerk; he noted that although the notice of appeal had been filed on April 6, it was not docketed until April 10.
The Bankruptcy Court did not transmit the designation of record to the District Court. Thereafter, on May 1, 1978, the District Judge entered a memorandum opinion and order dismissing the bank's appeal. A motion to reconsider was then filed and likewise denied; from the latter order the bank perfected this appeal.
A notice of appeal must be filed within ten days of the date of an order. 11 U.S.C. § 67(c) and Rules 801(a) and 802(a) of the Rules of Bankruptcy Procedure. See Matter of Bad Bubba Racing Products, Inc., 609 F.2d 815, 816 (5th Cir. 1980). Within ten days of the filing of the notice of appeal, the bank was required to "file with the referee and serve on the appellee a designation of the contents for inclusion in the record on appeal and a statement of the issues (the bank) intends to present on the appeal ...." Rule 806, Rules of Bankruptcy Procedure.
The District Judge's May 1, 1978 memorandum reads as follows:
The Bankruptcy Judge...
To continue reading
Request your trial
-
Comer, In re
... ... v. Marathon Pipe Line Co., --- U.S. ----, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), should be applied retroactively. Cf. Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190 (3d Cir.1983) (using sections 1291 and 1292 as jurisdictional bases and applying interim reference rule ... 6 (3d Cir.1982); Kirby v. United States, 675 F.2d 60, 62 n. 3 (3d Cir.1982); see also Third National Bank v. Winner Corp. (In re Winner Corp.), 632 F.2d 658, 660-61 (6th Cir.1980) ... Accordingly, the order of the district court will be vacated ... ...
-
Eaton v. Dorchester Development, Inc.
... ... denied, 389 U.S. 896, 88 S.Ct. 216, 19 L.Ed.2d 214 (1967). Cf. Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980) (dismissal for lack of jurisdiction of a suit under 42 ... ...
-
Scheri, Matter of, 94-1479
... ... County of DuPage, 10 F.3d 1333, 1337 (7th Cir.1993); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 936 (7th Cir.1989); In re Ronco, Inc., 838 F.2d 212, 217-18 (7th Cir.1988) (quoting Brown v. National Bd ... , 920 F.2d at 1472 (dismissal for failure to file designation of record or statement of issues on appeal based on bad faith); In re Winner Corp., 632 F.2d 658, 660-61 (6th Cir.1980) (holding that late filing of designation of record, absent evidence of bad faith, did not justify ... ...
-
In re Harris
... ... The Fourth Circuit has cabined district courts' discretion to dismiss appeals under Rule 8001. In Resolution Trust Corp. v. SPR Corp. (In re SPR Corp.), 45 F.3d 70 (4th Cir.1995), a panel of the Fourth Circuit, which included Justice Powell (retired), held that for ... [having found] no prejudice to debtors or bad faith on the part of the creditors"); In re Winner Corp., 632 F.2d 658, 661 (6th Cir.1980) ("This power (to dismiss), however, should not be exercised generally unless the omission arose from ... ...