Opinion
Case No. 2:06-cv-228, Bankruptcy Court: Case No. 2:04-bk-69782.
November 1, 2006
OPINION AND ORDER
This bankruptcy appeal is before the Court for consideration of issues raised in the April 21, 2006 appellate brief filed by Appellant, Kristine Biehn Keller (Doc. # 11), the May 5, 2006 responsive brief filed by Appellee, Trustee Frederick L. Ransier (Doc. # 12), and Appellant's May 15, 2006 reply brief (Doc. # 21). For the reasons that follow, this Court orders supplementation of the record on appeal and reschedules the non-oral hearing on the appellate briefs.
I. Background
Appellant is a debtor who filed for Chapter 7 bankruptcy in December 2004. Appellee is the trustee of the estate involved in the bankruptcy proceeding. In those proceedings, a dispute arose as to the nature of Appellant's retirement plan, in which Appellant asserted an exempt interest to which Appellee objected. The bankruptcy court judge held a hearing on the issue and sustained in part Appellee's objection to the exemption. Appellant thereafter filed a notice of appeal to this Court. (Doc. # 1.) The parties have completed their appellate briefing, and this Court can proceed to dispose of the issues involved.
II. Discussion
Before reaching the merits of the appellate issues presented, this Court must first address as a threshold issue what documents are properly before the undersigned judge in this appeal. Appellee argues that Appellant's inclusion of the retirement plan and related declarations as attachments to her appellate brief are impermissible because none of this material was before the bankruptcy court. Appellant concedes that the plan was not admitted into evidence in the bankruptcy court (Doc. # 13, at 11), and the date of the April 20, 2006 affidavits of Katrina M. English and Mary Theresa Finneran indicate that they follow the March 24, 2006 initiation of this appeal. Despite these facts, Appellant directs this Court to cases arguably supporting an interests-of-justice exception to the axiomatic principle that an appellate court will generally not entertain arguments not made before the court being reviewed.There is a substantive and substantial difference between considering additional arguments and considering evidence not introduced below. This Court will not consider on appeal documents that were not admitted before the bankruptcy court. In re Silver, 303 B.R. 849, 853 (B.A.P. 10th Cir. 2004) (appellate court holding that "[w]e will not consider this paper as part of the record on review, however, because . . . it was not before the bankruptcy court below"). This includes the plan and related proffered evidence submitted as attachments to Appellant's brief.
To support her appeal, Appellant also asserts that a summary of her retirement plan was admitted at a hearing before that court as Exhibit 6 and that a relevant page of the plan was also admitted as Exhibit 7. Review of the transcript's list of exhibits indicates that Exhibit D-6 was a "Summary Plan Description" and that Exhibit D-7 was a "Spendthrift Provision." (Doc. # 1-43, at 2.) Neither exhibit is contained within the record on appeal, however, despite the fact that Appellant's March 10, 2006 Request for Transcript included a request for "all exhibits." (Doc. # 1-42, at 1.)
Curiously, the only designation of items that should appear in the appellate record is a filing in the bankruptcy court by Appellee. (Doc. # 1-38.) That document states that Appellant had not filed a designation of the items to appear in the record. It is unclear to this Court whether Appellant ever filed the proper designation of the record with the bankruptcy clerk, although she did file an untimely notice in this Court. (Doc. # 10.) What is apparent is that the Clerk's Certification of Incomplete Record on Appeal does not include the relevant exhibits. (Doc. # 1-3.)
The record on appeal therefore fails to provide this Court with the material it needs to address the merits of the issues involved. Accordingly, the Court could properly dismiss this appeal. See In re Kennedy, 249 F.3d 576, 579 (6th Cir. 2001) (stating in bankruptcy appeal that "it is not the Court's duty to search the record for relevant materials and failure to provide the Court with the record it needs can lead to dismissal of the appeal"). But in the interest of deciding this appeal on its merits, this Court elects instead to correct the defective record and ORDERS Appellant to effectuate supplementation of the record with Exhibits 6 and 7 by November 22, 2006. See In re Flamingo 55, Inc., No. 2:05-cv-01521, 2006 WL 2432764, at *3-5 (D. Nev. Aug. 21, 2006) (permitting correction of the appellate record in bankruptcy proceeding via Fed.R.App.P. 10(e)); see also In re Eden, 2004 WL 793554, at *1 n. 1 (N.D. Ill. Apr. 13, 2004) (district court in bankruptcy appeal retrieved missing portion of the record from the bankruptcy court); In re Silver, 303 B.R. at 858 (ordering supplemental record rather than affirming based on incomplete appellate record).
III. Conclusion
The Court ORDERS that Appellant shall effectuate supplementation of the record with Exhibits 6 and 7 by November 22, 2006. Failure to comply with this order will result in either dismissal of this appeal or a judgment affirming the bankruptcy court. Appellant should also ensure that all requested portions of the record necessary for the resolution of the appellate issues are before this Court, which will not again sua sponte correct the record.
The Court reschedules the non-oral hearing on the appellate briefs for November 27, 2006.
IT IS SO ORDERED.