CLUB AT SHORES OF PANAMA INC et al v. SHORES OF PANAMA INC
Filing
44
ORDER RE BANKRUPTCY APPEAL denying 38 Motion for Rehearing; denying 42 Motion for Leave to File Reply; denying 43 Motion to Supplement the Appellate Record. Signed by JUDGE RICHARD SMOAK on 3/9/2015. (jcw)
Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
CLUB AT SHORES OF PANAMA INC.,
Et. al.,
Appellants,
v.
CASE NO. 5:14-cv-42-RS-EMT
FEDERAL DEPOSIT INSURANCE
CORPORATION as the Receiver of
SILVERTON BANK, N.A., et al.,
Appellees.
_________________________________________/
ORDER
Before me are Appellants’ Motion for Rehearing and Incorporated
Memorandum of Law (Doc. 38), and Appellees’ Joint Response to Appellants’
Motion for Rehearing (Doc. 41).
Through this appeal, Appellants seek review of the Bankruptcy Court's order
denying relief under Rule 60(b) without an evidentiary hearing. On January 28,
2015, I affirmed the Bankruptcy Court’s order. Doc. 36. Pursuant to Rules 8013
and 8022 of the Federal Rules of Bankruptcy Procedure, Appellants’ have timely
filed a motion for rehearing and argue that I should vacate my January 28, 2015,
Order and remand this case to the Bankruptcy Court for further evidentiary
hearings.
Page 2 of 4
Federal Rule of Bankruptcy Procedure 8022 provides that a motion for
rehearing “must state with particularity each point of law or fact that the movant
believes the district court or BAP has overlooked or misapprehended and must
argue in support of the motion.” Fed. R. Bankr. P. 8022. Appellants have raised
three issues in their motion.
First, Appellants argue that “when a federal trial level court determines that
it lacks jurisdiction over a matter and does not address the merits, an appellate
court must confine its review solely to the jurisdictional issue.” Doc. 38.
Appellants do not cite any Eleventh Circuit opinions supporting their position.
Nevertheless, the issue on appeal was whether the bankruptcy court committed
reversible error by denying the Appellants’ Rule 60(b)(4) Motion for relief from a
void judgment because the bankruptcy court denied it as it being untimely. The
question of whether an order is void under Rule 60(b) is a legal question, and
therefore, the standard of review is de novo. Burke v. Smith, 252 F.3d 1260, 1263
(11th Cir. 2001).
Appellants argued that the judgment was void because the bankruptcy court
lacks jurisdiction to extinguish an easement. When considering a Rule 60(b)(4)
motion, federal courts have generally “reserved relief only for the exceptional case
in which the court that rendered judgment lacked even an ‘arguable basis’ for
jurisdiction.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271
Page 3 of 4
(2010). Pursuant to the express language of 11 U.S.C. § 363(f), a bankruptcy court
has jurisdiction to extinguish an easement. Therefore, the bankruptcy judgment
was not premised on a jurisdictional error. See United Student Aid Funds, 559 U.S.
at 270. Pursuant to Rule 60, unless the judgment is void, a Rule 60 motion “must
be made within a reasonable time . . . after the entry of the judgment or order . . ..”
Fed. R. Civ. P. 60(c). Appellants motion for relief from the Sale Order, filed four
years after judgment was entered, is untimely.
The other issues presented by the Appellants were not briefed in Appellants’
Initial Brief (Doc. 15). Appellants now argue that in order to effectively extinguish
the Easements, the purchaser had to affirmatively elect extinguishment, which it
did not. Additionally, according to Appellants, the Trustee never approached
Appellants to obtain the necessary consent to extinguish the Easements. “There is a
significant difference between pointing out errors in a court's decision on grounds
that have already been urged before the court and raising altogether new arguments
on a motion to amend; if accepted, the latter essentially affords a litigant “two bites
at the apple.” Am. Home Assur. Co. v. Glenn Estess & Associates, Inc., 763 F.2d
1237, 1239 (11th Cir. 1985). Furthermore, the purported facts do not support a
finding that bankruptcy courts lack subject matter jurisdiction to extinguish
easements.
Page 4 of 4
Accordingly, the relief requested in Appellants’ Motion for Rehearing and
Incorporated Memorandum of Law (Doc. 38) is DENIED. Additionally, the relief
requested in Appellants’ Motion for Leave to File Reply Memorandum Regarding
Appellants’ Motion for Rehearing and Appellees’ Joint Response (Doc. 42), and
Appellants’ Motion to Supplement the Appellate Record (Doc. 43) is DENIED.
ORDERED on March 9, 2015.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?