Opinion
Case No. 2:04-cv-1200.
October 20, 2006
On appeal from the United States Bankruptcy Court for the Southern District of Ohio, Adv. Pro. No. 00-2041 (In re Southern Air Transport, Inc., Case No. 98-59460).
MEMORANDUM OPINION ORDER
On December 19, 2005, this Court issued a Memorandum Opinion and Order affirming a decision of the United States Bankruptcy Court for the Southern District of Ohio granting summary judgment in favor of Southern Air Transport, Inc. ("SAT") in an adversary proceeding. Triad International Maintenance Corporation ("TIMCO") filed a motion for reconsideration. After this Court denied the motion, TIMCO appealed to the Sixth Circuit Court of Appeals. This matter is currently before the Court on Appellee SAT's motion to correct the record on appeal. (Record at 28).
SAT seeks to strike two items that TIMCO included in its designation of the record to be certified and sent to the Circuit Clerk. The parties agree that although designated as two separate items — a "Supplement to Exhibit A" and "Exhibits to the Transcript of the November 2, 2004 Hearing on TIMCO's Motion to Amend or Make Additional Findings of Fact, and Motion to Alter or Amend the Judgment Entered 1/25/02" — they are, in fact, one and the same. The exhibit at issue consists of 28 pages of copies of Microsoft PowerPoint slides used by TIMCO's counsel as a visual aid during the November 4, 2004 hearing in bankruptcy court.
In support of its motion, SAT cites to Federal Rule of Appellate Procedure 10(e) which states:
(e) Correction or Modification of the Record.
(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.
(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of the record must be presented to the court of appeals.
SAT argues that TIMCO has misstated the record by including the slides in its designation of the record on appeal. According to SAT, the slides should be stricken from the record because: (1) although used as visual aids at the hearing in bankruptcy court, they were never offered or accepted into evidence and are not "exhibits" to the transcript of the hearing; and (2) on August 10, 2005, this Court, in connection with TIMCO's appeal from the bankruptcy court's order, granted SAT's unopposed motion to strike the same slides from the record.
In response, TIMCO argues that the slides are properly included in the record on appeal because they were used by both parties at the hearing and were therefore considered by the bankruptcy court in reaching its decision. Citing Federal Rule of Appellate Procedure 10(a), TIMCO notes that the record on appeal includes exhibits filed in the trial court. TIMCO did eventually file the slides as exhibits in the bankruptcy court, albeit after the court issued its decision. TIMCO also argues that because the hearing transcript contains so many references to the slides, it would be extremely beneficial for the Sixth Circuit to have them available as part of the record. Finally, TIMCO argues that this Court's August 10, 2005 order granting SAT's unopposed motion to strike the slides from the record on appeal is not determinative because SAT should have filed that motion in the bankruptcy court rather than in the district court. In any event, TIMCO contends that this Court must address the issue anew in light of its new procedural context.
On appeal, the Sixth Circuit will "directly review the decision of the bankruptcy court rather than the district court's review of the bankruptcy court's decision." Poss v. Morris (In re Morris), 260 F.3d 654, 662 (6th Cir. 2001).
The Court agrees that the current procedural posture of this case makes a difference. When the Court issued its order granting SAT's motion to strike the slides from the record on appeal, it was acting as an appellate court reviewing a decision of the bankruptcy court. Title 28 of United States Code § 158(c)(2) states that such bankruptcy appeals "shall be taken in the same manner as appeals in civil proceedings generally are taken to courts of appeals from the district courts." As such, Federal Rule of Appellate Procedure 10 governed the record on appeal, and Rule 10(e)(2)(B) gave the district court authority to correct misstatements in the record on appeal.
That was then; this is now. Both parties overlook the fact that once SAT appealed from this Court's order affirming the bankruptcy court's decision, Federal Rule of Appellate Procedure 10 no longer applies. Instead, the matter is governed by Federal Rule of Appellate Procedure 6, entitled "Appeal in a Bankruptcy Case From a Final Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel." That Rule specifically states that Rule 10 does not apply to appeals from a judgment, order, or decree of a district court exercising appellate jurisdiction in a bankruptcy case. See Fed.R.App.P. 6(b)(1)(A).
The rule governing the record on appeal in this procedural context is set forth in subsection (b)(2)(B). It reads as follows:
(B) The record on appeal.
(i) Within 10 days after filing the notice of appeal, the appellant must file with the clerk possessing the record assembled in accordance with Bankruptcy Rule 8006 — and serve on the appellee — a statement of the issues to be presented on appeal and a designation of the record to be certified and sent to the circuit clerk.
(ii) An appellee who believes that other parts of the record are necessary must, within 10 days after being served with the appellant's designation, file with the clerk and serve on the appellant a designation of additional parts to be included.
(iii) The record on appeal consists of:
• the redesignated record as provided above;
• the proceedings in the district court or bankruptcy appellate panel; and
• a certified copy of the docket entries prepared by the clerk under Rule 3(d).
As the Court reads this rule, the "redesignated" record consists of all items designated by the appellant plus whatever other parts of the record the appellee deems necessary. Unlike Rule 10, Rule 6(b)(2)(B) contains no provision for correcting "misstatements" in the record. It allows the appellee to supplement the record, but not subtract from it. For these reasons, the Court concludes that, at this juncture, it has no authority to grant SAT's motion to strike the slides from the record on appeal to the Sixth Circuit Court of Appeals. SAT's motion to correct the record (Record at 28) is therefore DENIED. The Clerk is directed to forward the record, as designated by TIMCO, to the Sixth Circuit Clerk.
IT IS SO ORDERED.