Myers v. Myers (In Re Myers) ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 6, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
In re: M ICH AEL B ARTON M YERS,
formerly doing business as M eyers &
M eyers, LLC,
Debtor. No. 05-3254
(BAP N o. KS-04-054)
(BA P)
CH ERYL D . M YERS,
Appellant,
v.
M ICH AEL B ARTON M YERS;
UN ITED STATES TRUSTEE,
Appellees.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
This case represents yet another chapter in the contentious divorce
proceedings between appellant Cheryl D. M yers (M s. M yers) and her now-former
husband M ichael Barton M yers (debtor). The case is in federal court because
debtor filed for Chapter 11 relief during the pendency of the divorce proceedings.
After the bankruptcy case had been pending for approximately three years, the
United States Trustee moved to dismiss the petition. Over M s. M yers’s
objection, 1 the bankruptcy court granted the Trustee’s motion to dismiss, and that
decision was affirmed by this court’s Bankruptcy Appellate Panel (BAP).
M s. M yers appeals the BAP’s decision. Our jurisdiction arises under 28 U.S.C.
§ 1291 and 28 U .S.C . § 158(d). “On appeal from BAP decisions, we
independently review the bankruptcy court’s decision. W e review the bankruptcy
court’s legal determinations de novo and its factual findings under the clearly
erroneous standard,” In re Commercial Fin. Servs., Inc., 427 F.3d 804, 810
(10th Cir. 2005) (quotations, citations, and brackets omitted), bearing in mind the
bankruptcy court’s broad discretion under 11 U.S.C. § 1112(b), Hall v. Vance,
887 F.2d 1041, 1044 (10th Cir. 1989). After applying this standard, we affirm.
From a reading of the BAP opinion, it appears M s. M yers argued that the
bankruptcy court erred in dismissing debtor’s case and that the dismissal was
1
M s. M yers originally supported the motion to dismiss, Aplt. A pp., Vol. I
at 107, but later changed her position during oral argument on the motion, see id.Vol. II at 344-45.
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particularly egregious because she had several motions pending at the time. 2 The
BAP affirmed the dismissal of debtor’s case, concluding that the bankruptcy court
was w ell within its discretion to dismiss where debtor had failed to file monthly
reports as required by Rule 2015(a)(3) of the Federal Rules of Bankruptcy
Procedure, failed to propose a plan of reorganization, see 11 U.S.C. § 1121, and
failed to pay the statutory fees to the United States Trustee, see 28 U.S.C.
§ 1930(a)(6). With regard to M s. M yers’s outstanding motions, the BAP
concluded that the motion to disqualify Judge Pusateri was moot because he had
retired by the time she made her motion, that no motion to recuse Judge Somers
was ever presented to the bankruptcy court, and that the other pending motions
were extinguished when the case was dismissed and were therefore also moot.
The major issue in this case is w hether the bankruptcy court erred in
dismissing debtor’s Chapter 11 petition. The main basis for the bankruptcy
court’s dismissal was debtor’s failure to file the reports and summaries required
of a debtor-in-possession by Bankruptcy Rule 2015(a)(3) and 11 U.S.C.
§ 704(a)(8). There is no dispute that, at various times during the pendency of the
2
M s. M yers’s brief on appeal raises a myriad of tangential issues but fails to
indicate to this court where those issues w ere raised to the bankruptcy court or to
the BAP, in contravention of 10th Cir. R. 28.2(C)(2). Issues not raised and ruled
on below will generally not be considered on appeal. Walker v. M ather (In re
Walker), 959 F.2d 894, 896 (10th Cir. 1992). M s. M yers’s brief to the BAP is not
included in her appendix. W e decline to address issues not obviously raised
below .
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bankruptcy proceeding, debtor had failed to make the required monthly filings,
failed to pay Trustee fees, and never came forw ard with a plan of reorganization.
Among the reasons listed in 11 U.S.C. § 1112(b) (2002) as bases for dismissal of
a bankruptcy petition are “unreasonable delay by the debtor that is prejudicial to
creditors,” § 1112(b)(3), “failure to propose a plan . . . within any time fixed by
the court,” § 1112(b)(4), and “nonpayment of any [enumerated] fees or charges,”
§ 1112(b)(10). W e have reviewed this matter under the standard stated above
and, finding the presence of several statutory grounds for dismissal, affirm for
substantially the reasons stated by the BAP and the bankruptcy court.
W e also agree with the bankruptcy court that the motion to disqualify Judge
Pusateri was moot due to his retirement from the case several months before the
motion was filed. Further, M s. M yers’s theory that Judge Pusateri is related to
the debtor is pure speculation, unsupported by any facts or evidence. To the
extent M s. M yers argues that both Judge Pusateri and Judge Somers, the judge
who granted the motion to dismiss, should have “self-recused,” we note that the
relevant standard under 28 U.S.C. § 455(a) requires recusal where a judge’s
“impartiality might reasonably be questioned.” None of the conjecture and
speculation offered by M s. M yers would lead a reasonable person to question the
impartiality of either judge. See United States v. Nickl, 427 F.3d 1286, 1298
(10th Cir. 2005) (noting that “[r]ecusal is necessary when a judge’s actions
or comm ents ‘reveal such a high degree of favoritism or antagonism as to make
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fair judgment impossible’” (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)).
As for M s. M yers’s motions pending in the bankruptcy court at the time of
the dismissal but unadjudicated, the B AP correctly ruled that the m otions were
extinguished when the petition was dismissed. See In re Shar, 253 B.R. 621, 637
n.11 (Bankr. D.N.J. 1999). 3
A ll outstanding motions filed in this court from either party are DENIED .
The judgment of the B AP is A FFIRMED.
Entered for the Court
M onroe G. M cKay
Circuit Judge
3
W e note that, in the course of his oral ruling, the bankruptcy judge
effectively denied M s. M yers’s motion regarding the previously-ordered
relief from stay in favor of Centralia Bank, her motion to set aside the
previously-ordered relief from stay granted in her favor, and her motion to
investigate debtor. Aplt. Br., Ex. J at 11-12. Those rulings were incorporated
in the court’s later w ritten judgment. Id. Ex. I at 2.
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