Marshall et al v. Gurley et al

Filing 37

MEMORANDUM AND ORDER. ORDERED that Appellants' 31 Motion to Supplement Record on Appeal with Four Page Excerpt from Hearing on June 27, 2016 is DENIED, Appellee's 33 Motion to Strike Supplemental Record is GRANTED, and Dkt. #s 27, 28 shall be struck from the record. Signed by District Judge Ron Clark on 9/25/2018. (daj, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
BARBARA MARSHALL, et al.,
Appellants,
v.
BILL GURLEY, et al.,
Appellees.

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CIVIL ACTION No. 4:17-cv-405
JUDGE RON CLARK

MEMORANDUM AND ORDER
Before the court Appellants Barbara Marshall, LP; North Ponderosa, LLC; and David
McKinnon’s (collectively, “Appellants”) Motion to Supplement Record on Appeal with Four Page
Excerpt from Hearing on June 27, 2016 (Dkt. # 31) and Appellee Mark W. Weisbart’s (“Appellee”)
Motion to Strike Supplemental Record (Dkt. # 33).
Appellants seek to supplement the record on appeal, pursuant to Federal Rule of
Bankruptcy Procedure 8009(e)(2)(C), with a four-page excerpt (“the Excerpt”) from a hearing on
June 27, 2016, regarding Bill Gurley and Stanley W. Wright’s (collectively, “Movants”) motion
to reopen the case. The Excerpt shows that during the hearing, Exhibit 16, described as the
“Electronic Record on Appeal [Cause No. DC-15-13561],” was offered and admitted into
evidence. (Dkt. # 8-1, at 95). Exhibit 16 consists of the entire record from the underlying state
court trial, which Appellants contend was designated but inadvertently omitted from the record on
appeal. (Dkt. # 8-6, at 6). Appellants eventually filed Exhibit 16 as the Bench Trial Reporter’s
Record (Dkt. # 27) and the Clerk’s Record (Dkt. # 28) (collectively, “the Supplemental Record”)

on October 3, 2017. Appellee opposes supplementation of the record with the Excerpt and moved
to strike the Supplemental Record. (Dkt. #s 32, 33).
ANALYSIS
An appellant bears the burden of providing a complete record on appeal. FED. R. BANKR.
P. 8009; In re CPDC, Inc., 221 F.3d 693, 698 (5th Cir. 2000). “The burden of creating an adequate
record rests with the appellant, who may not urge an issue on appeal if he has failed to provide the
appellate court with the requisite record excerpts.” In re CPDC, Inc., 221 F.3d at 698. A party
may supplement the record with items that are material to either party and omitted from the record
by error or accident. FED. R. BANKR. P. 8009(e); In re Digerati Techs., Inc., 531 B.R. 654, 666
(Bankr. S.D. Tex. 2015).
A.

The Excerpt cannot be supplemented pursuant to Bankruptcy Rule 8009(e).
Appellants insist that the Excerpt is material because it shows that the Supplemental Record

was admitted during the hearing. Appellee opposes supplementation by the Excerpt pursuant to
Rule 8009(e) because (1) the Excerpt pertains to a hearing on a separate matter—the motion to
reopen the bankruptcy proceeding—and therefore is not material to the matter on appeal; and (2)
Appellants chose to omit the Excerpt when they designated the record on appeal. Moreover,
Appellee objects to Appellants’ attempt to use the Excerpt to bring in the Supplemental Record.
Having reviewed the Excerpt and the arguments of the parties, the court agrees that the
Excerpt is not material. Thus, even if the Excerpt was inadvertently omitted from the record,
Appellants cannot rely on Rule 8009(e) to now include it in the record.
B.

The Supplemental Record was not part of the appellate record.
Appellee seeks to strike the Supplemental Record because (1) it was not designated as part

of the appellate record; (2) inclusion of the Supplemental Record is unduly prejudicial to Appellee,

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who completed briefing based on the designated record on appeal; (3) Appellants never obtained
leave to supplement the record with the Supplemental Record, so Appellee was never able to raise
objections based on Rule 8009(e); and (4) the Supplemental Record is not material in this appeal.
Appellants claim that the Supplemental Record was clearly listed in the Designation of
Record and Issues on Appeal under “Second Order” as #145, “State Court Trial Transcript . . .
designated as an exhibit by Appellees (see Docket No. 145 filed June 8, 2016, items 16 and 17)
and admitted into evidence at the Hearing to Reopen Bankruptcy Case on June 27, 2016.” (Dkt.
# 8-6, at 6). Instead of the state court trial transcript, however, #145 is an Amended Witness and
Exhibit List that identifies Exhibit 16 as “Electronic Record on Appeal [Cause No. DC-15-13561]”
and Exhibit 17 as “Electronic Record on Appeal [Cause No. DC-06-03299].” (Dkt. # 8-1, at 95).
In addition, Appellants contend that the Supplemental Record was referenced, as Exhibit 16, in a
footnote of their motion for summary judgment and in the opposing party’s response.
Furthermore, Appellants claim that the Supplemental Record is material because they are
challenging the preclusive effect of the state trial court’s findings of fact and conclusions of law
on the bankruptcy court. Appellants argue that if this court finds that the state court’s findings
were not binding, the Supplemental Record would be the sole evidence of the underlying state
court trial.
Although Appellants had the burden of providing an adequate record to review their claims
on appeal, they did not file the Supplemental Record, a motion for leave to supplement the record,
or otherwise indicate that the record was incomplete until several weeks after Appellee filed his
Appellee’s brief. After reviewing the documents purporting to designate the Supplemental Record
and the record on appeal, the court finds that Appellants did not designate the Supplemental Record
and that it was not considered by the bankruptcy court in the matters before the court. (Dkt. # 8-5,

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at 11-13). Therefore, the Supplemental Record is not material and cannot be supplemented under
Rule 8009(e). See Robinson v. Sanctuary Record Grps. Ltd., 589 F. Supp. 2d 273, 275 (S.D.N.Y.
2008) (interpreting similar language in FED. R. APP. P. 10(e) as requiring the movant to
“demonstrate that the evidence to be supplemented was before the lower court in the course of its
proceedings leading to the judgment under review and was mistakenly omitted from the record.”).
CONCLUSION
The court finds that the record on appeal should not be supplemented with the Excerpt and
the Supplemental Record under Rule 8009(e). It is therefore ORDERED that Appellants’ Motion
to Supplement Record on Appeal with Four Page Excerpt from Hearing on June 27, 2016 (Dkt. #
31) is DENIED, Appellee’s Motion to Strike Supplemental Record (Dkt. # 33) is GRANTED, and
Dkt. #s 27, 28 shall be struck from the record.
So ORDERED and SIGNED September 25, 2018.

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Ron Clark, Senior District Judge

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