Balke et al

Filing 35

MEMORANDUM OPINION and ORDER entered: Abating the briefing deadlines will prejudice the appellees and further delay the adjudication of the first appeal. There is no basis to find prejudice to the appellants by requiring them to proceed. To the co ntrary, any prejudice from the continued delay will be visited on the appellees. The appellants' motion to abate briefing deadlines is denied.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) Modified on 1/3/2020 (leddins, 4).

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THOMAS BALKE, TEBJES INC.
d/b/a BASIC EQUIPMENT, and
ULTRAWAVE TECHNOLOGY
FOR EMULSION CONTROL LLC
d/b/a ULTRATEC LLC,
Appellants,
v.
DON B. CARMICHAEL, KK & PK
FAMILY, L.P., BARRY D. WINSTON,
and GARY EMMOTT,
Appellees.

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January 03, 2020
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-731

MEMORANDUM OPINION AND ORDER
The appellees, Don B. Carmichael, KK & PK Family, L.P., Barry D. Winston, and Gary
Emmott, jointly moved for the entry of an order requiring the Clerk of Court to retransmit the
record on appeal. (Docket Entry No. 31). The appellants, Thomas Balke, Basic Equipment, and
Ultratec LLC, have moved to abate briefing deadlines in this case until 30 days after the Fifth
Circuit rules on a related matter, Appeal No. 19-20616, in this fractured set of appeals from the
bankruptcy court. (Docket Entry No. 32). The appellees opposed the motion to abate. (Docket
Entry Nos. 33–34). For the reasons explained below, the motion to require the Clerk to retransmit
the record on appeal is granted, and the motion to abate is denied.
The bankruptcy court issued its findings of fact, conclusions of law, and judgment in
January 2018. (Adv. No. 14-3375, Docket Entry Nos. 274–75). The appellants filed three
separately docketed appeals from that judgment and other orders of the bankruptcy court. (Civil
Action Nos. H-18-731, H-18-937, H-19-313). The first appeal—this case—was filed in March

2018. (Docket Entry No. 1). In July 2018, this court abated the briefing deadlines of this appeal
pending the bankruptcy court’s ruling on the appellees’ motion to strike certain items the
appellants designated as part of the record on appeal. (Docket Entry No. 22).
In October 2018, the bankruptcy court granted in part and denied in part the appellees’
second amended motion to strike. (Adv. No. 14-3375, Docket Entry No. 439). The bankruptcy
court ordered that several items be stricken from the appellants’ Designation of Record and
excluded from the record of this appeal, and that the Clerk of Court retransmit the record on appeal
to the district court without these items. (Adv. No. 14-3375, Docket Entry No. 439 at 2, 4). The
items stricken from the record are the transcripts docketed in the main case, Bankruptcy Case No.
13-30466, on July 12, 2013, May 7, 2014, and February 14, 2014, and the defendants’ Exhibits
18, 19, 20, 22, 23, 24, 26, 27, 28, 30, 31, 32, and 33. (Id. at 4).
The appellants appealed that ruling, and this court affirmed. (Civil Action No. H-19-313,
Docket Entry Nos. 29, 44).
This court addressed the transmission of the bankruptcy court record in its July 6, 2018,
order of abatement pending the bankruptcy court’s ruling on the record. (Docket Entry No. 22 at
4). This court’s order required the appellants to “serve and file a brief within 30 days after either:
(1) the bankruptcy court denies the appellees’ motion to strike; or (2) the bankruptcy court grants
the appellees’ motion to strike and the clerk of court dockets notice that the resulting record has
been transmitted or is available electronically.” (Id.).
The Clerk of Court must retransmit the record for the appeal in accordance with the
bankruptcy court’s order docketed in Adv. No. 14-3375, at Docket Entry No. 439, and in
conformity with this court’s order at Docket Entry No. 22 in this case. That retransmitted record
must exclude the following items:

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Main Case No. 13-30466
Main Case Doc. No. 98
Main Case Doc. No. 385

7/12/2013 Transcript regarding testimony of Alan Springer
5/7/2014 Transcript of the Meeting of Creditors
2/14/2014 Transcript

Defendants’ Exhibits
Defendants’ Exhibit 18
Defendants’ Exhibit 19
Defendants’ Exhibit 20
Defendants’ Exhibit 22
Defendants’ Exhibit 23
Defendants’ Exhibit 24
Defendants’ Exhibit 26
Defendants’ Exhibit 27
Defendants’ Exhibit 28
Defendants’ Exhibit 30
Defendants’ Exhibit 31
Defendants’ Exhibit 32
Defendants’ Exhibit 33
Abating the briefing deadlines will prejudice the appellees and further delay the
adjudication of the first appeal. There is no basis to find prejudice to the appellants by requiring
them to proceed. To the contrary, any prejudice from the continued delay will be visited on the
appellees. The appellants’ motion to abate briefing deadlines is denied.
SIGNED on January 3, 2020, at Houston, Texas.

_______________________________________
Lee H. Rosenthal
Chief United States District Judge

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