Daughtrey et al v. Rivera

Filing 15

OPINION AND ORDER granting in part, finding in moot in part, and denying in part 13 Motion to dismiss, or alternatively, Motion for clarification. The motion to dismiss is denied, the alternative relief for clarification is granted and otherwise m oot. Appellants shall file their initial brief within 14 days of the second transmittal of the record on appeal. Appellee shall file a responsive brief within 30 days after service of the initial brief. Signed by Judge John E. Steele on 3/19/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IN RE: CECIL DAUGHTREY, JR.
and PATRICIA A. DAUGHTREY

CECIL DAUGHTREY, JR.
PATRICIA A. DAUGHTREY,

and

Appellants,
v.

Case No: 2:15-cv-29-FtM-29
Bankr. Case No: 9:13-bk-14831-FMD

LUIS E. RIVERA, II,
Appellee.

CECIL DAUGHTREY, JR.
PATRICIA A. DAUGHTREY,

and

Appellants,
v.

Case No: 2:15-cv-35-FtM-29

LUIS E. RIVERA, II,
Appellee.

OPINION AND ORDER
This matter comes before the Court on appellee’s Motion to
Dismiss Appeal, or Alternatively, Motion for Clarification of
Order Granting Motion to Allow Appellants to Supplement the Record
on Appeal and File Statement of Issues in the Lower Court (Doc.

#13) 1 filed on March 2, 2015.

Appellants filed an Opposition (Doc.

#14) on March 17, 2014.
I.

Procedural History

On December 8, 2014, appellants filed an Amended Notice of
Appeal and Notice of Appeal in the United States Bankruptcy Court,
Tampa Division.

On December 12, 2014, two letters/memoranda were

filed notifying counsel for appellants of the following:
When filing the "Designation of Record", as
required by Fed. R. Bank. P. 8006, please
indicate by document number the items to be
included in the record to the district court.
However, it will not be necessary to provide
a copy of the items designated, unless
otherwise directed to do so by separate
notice.
The
Clerk's
office
will
be
transmitting
the
record
on
appeal
electronically.
If you intend to designate a transcript, a
Purchase Order for Transcript is available on
the court’s web site at www.flmb.uscourts.gov.
Go to Forms and click on Purchase Order for
Transcript. When ordering the transcript
please complete all of the items on the
purchase order form and mail the form to the
appropriate Court Reporter and or Court
Reporter Service.
(9:13-bk-14831-FMD, Doc. #124, Doc. #125)(emphasis in original).
Appellants failed to act on the notices.

On December 29, 2014,

the Bankruptcy Court filed a Transmittal of Record to District
Court (Doc. #1) consisting of the Notice of Appeal (Doc. #1-1)

1

Unless otherwise indicated,
documents in 2:15-cv-29-FTM-29.

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all

references

are

to

the

from a October 7, 2014 Order Granting Chapter 7 Trustee’s Amended
Motion and Notice of Proposed Compromise of Controversy Between
Trustee

and

72

Partners,

LLC

(Doc.

#1-1,

pp.

2-8),

and

a

Transmittal (2:15-cv-35-FTM-29, Doc. #1) of an Amended Notice of
Appeal (Id., Doc. #1-1) from two Orders: (1) The October 3, 2014
Order Denying Debtors’ Motion to Convert to a Case Under Chapter
11; and (2) The November 18, 2014 Order Denying Debtors’ Motion
for Reconsideration of Order Denying Debtors’ Motion to Convert to
a Case Under Chapter 11.
The

Transmittals

(Id., Doc. #1-1, pp. 2-3.)
did

not

contain

any

designations

documents, as no designations or statement were filed.

or

On the

same day as the transmittal, appellants filed their Designation of
Items (9:13-bk-14831-FMD, Doc. #130) for both appeals in the
Bankruptcy Court but no statement of issues.

Upon assignment of

an appellate case number, on December 30, 2014, the Tampa Division
issued a

standard

Notice

of

Filing

Bankruptcy

Appeal

in

the

District Court (Doc. #2) directing the parties to comply with Rule
8009 of the Federal Rules of Bankruptcy Procedure for the filing
of briefs.
On January 6, 2015, the Bankruptcy Court issued an Order
Striking Appellant’s Designation of Items to be Included in Record
on Appeal (9:13-bk-14831-FMD, Doc. #131) as untimely filed but
without prejudice to seeking permission from the District Court to
supplement the records on appeal.

The Bankruptcy Court also noted

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that no statement of issues had been filed.

On January 16, 2015,

the case was transferred to the Fort Myers Division, and the
undersigned subsequently granted consolidation of the two related
appeals.

(Doc. #9.)

Appellants took no further action to file

an initial brief, or to seek an extension of time to file the
initial brief.
On February 27, 2015, the undersigned considered appellants’
Motion to Allow Appellants to Supplement the Record on Appeal and
File Statement of Issues in the Lower Court (Doc. #10), and granted
the motion.

On March 2, 2015, appellants filed a Designation and

Statement of Issues on Appeal, and on March 5, 2015, appellants
filed a Corrected Designation and Corrected Statement of Issues in
the Bankruptcy Court.

On March 16, 2015, the transcripts were

also filed.
II.

Motion to Dismiss, or for Clarification

Appellee seeks to dismiss the consolidated appeal pursuant to
Bankruptcy Rule 8018(a)(4) for appellants’ failure to file an
initial brief or to seek an extension of time to do so.

Appellee

also notes appellants’ failure to adhere to other deadlines,
including

the

ordering

of

transcripts.

In

the

alternative,

appellee seeks clarification with regard to appellants’ duties to
order transcripts or certify that none will be ordered, to file
their statement of issues, and to file an initial brief after the
Bankruptcy Court re-transmits the record designations.

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If an appellant fails to file a brief on time
or within an extended time authorized by the
district court or BAP, an appellee may move to
dismiss the appeal--or the district court or
BAP, after notice, may dismiss the appeal on
its own motion. An appellee who fails to file
a brief will not be heard at oral argument
unless the district court or BAP grants
permission.
Fed. R. Bankr. P. 8018(a)(4).

Failure to timely file briefs is

“a non-jurisdictional defect in the prosecution of [an] appeal,
and such defect does not require dismissal in every case.”

In re

Beverly Mfg. Corp., 778 F.2d 666, 667 (11th Cir. 1985)(citations
omitted)(alteration

in

original).

The

Eleventh

Circuit

has

adopted a bad faith, negligence or indifference standard of review.
Id.
Appellants filed a timely Notice of Appeal, and thereafter
attempted to file an untimely designation.

After obtaining leave

of this Court, appellants filed their designation and statement
with the Bankruptcy Court, and appellants state that the necessary
transcripts were docketed by March 16, 2015. 2

The Court finds

that appellants did not act in bad faith and were not negligent or
indifferent to the requirements in perfecting the appeal.
As to the initial brief, “[t]he appellant must serve and file
a brief within 30 days after the docketing of notice that the

2

As the transcripts, designations, and statements of the
issues have now been filed, appellee’s request for clarification
as to these matters is now moot. (Doc. #13, ¶¶ 9-10.)

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record has been transmitted or is available electronically.”
R. Bankr. P. 8018(a)(1).

Fed.

Appellants argue that the initial briefs

are not yet due as no record existed to transmit at the time of
the docketing of the appeal.

Although the record was sparse due

to counsel’s failure to timely designate any items, the Notices of
Appeal and Orders appealed were transmitted and the Court issued
a Notice with regard to appellants’ obligations to file a timely
brief.

Nevertheless, the Court will allow the appeal to proceed

now that all other deficiencies have been cured and all that
remains is for the Bankruptcy Court to transmit the supplemented
record.

At appellee’s suggestion, the Court will shorten the

briefing deadlines so as not to further delay the appeal.

No

extensions of time will be granted to appellants.
Accordingly, it is hereby
ORDERED:
1. Appellee’s Motion to Dismiss Appeal, or Alternatively,
Motion for Clarification of Order Granting Motion to Allow
Appellants to Supplement the Record on Appeal and File
Statement of Issues in the Lower Court (Doc. #13) is DENIED
IN PART, MOOT IN PART, AND GRANTED IN PART.
dismiss

is

denied,

and

the

alternative

The motion to
relief

for

clarification is granted to the extent clarified herein
and otherwise moot.

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2. Appellants shall file their initial brief within fourteen
(14) days of the second transmittal of the record on
appeal.

Appellee shall file a responsive brief within

thirty (30) days after service of appellants’

initial

brief.
DONE and ORDERED at Fort Myers, Florida, this
of March, 2015.

Copies:
Counsel of Record
Clerk, Bankr. Ct.

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19th

day