Parr v. Rodriguez ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 26, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
In re: LARRY WAYNE PARR,
Debtor.
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No. 19-1053
LARRY WAYNE PARR, (BAP No. 18-084-CO)
(Bankruptcy Appellate Panel)
Appellant,
v.
SIMON E. RODRIGUEZ,
Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
_________________________________
This appeal arises from a July 21, 2015 order (the Conversion Order) in which
the bankruptcy court for the District of Colorado converted Larry Parr’s Chapter 11
bankruptcy case to Chapter 7.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
Almost three years after the bankruptcy court entered the Conversion Order,
Parr challenged that order via a pro se motion for relief from judgment. See Fed. R.
Civ. P. 60.1 The bankruptcy court denied Parr’s motion, and Parr appealed to the
Bankruptcy Appellate Panel of the Tenth Circuit (the BAP). The BAP affirmed.
Proceeding pro se, Parr now appeals the BAP’s decision affirming the bankruptcy
court’s order denying his Rule 60 motion.2 For the reasons discussed below, we
affirm.
Background
Parr filed for Chapter 11 bankruptcy on April 21, 2015. As of that date, Parr’s
brother “held unliquidated claims against” Parr arising from the brothers’ dispute
over their mother’s probate estate. Aplt. App. 7. Parr’s brother liquated those claims
in state court, obtained a judgment against Parr for more than $2,000,000, and filed a
motion to convert Parr’s Chapter 11 case to Chapter 7. The bankruptcy court granted
the motion to convert and appointed a Chapter 7 trustee (the Trustee). Parr’s brother
then sought and obtained a judgment exempting the $2,080,871.20 state-court
judgment from Parr’s discharge.
1
Parr styled his motion as a “Verified Demand to Revert Movant’s Chapter 7
to Chapter 11 Due to [the Conversion Order] being Void of Law.” Aplee. Supp.
App. 10. But the bankruptcy court construed Parr’s “[d]emand” as a Rule 60 motion.
Id. And because Parr doesn’t challenge that construction on appeal, we do the same.
Cf. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (explaining that “[t]he
task of sorting th[r]ough pro se pleadings is difficult at best” and declining to
“interfere with” district court’s reasonable interpretation of such pleadings).
2
As the bankruptcy court and the BAP did before us, we liberally construe
Parr’s pro se filings. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005). But we won’t act as his advocate. See id.
2
After determining that Parr’s “homestead had significant nonexempt equity,”
the Trustee obtained the bankruptcy court’s approval to sell Parr’s homestead and
then distributed a portion of the resulting proceeds to Parr under Colorado’s
homestead exemption. Aplt. App. 8; see also Colo. Rev. Stat. § 38-41-201. Parr
appealed the order approving the sale to the BAP, which dismissed his appeal for
lack of standing. We affirmed. See Parr v. Rodriguez (In re Parr), 732 F. App’x 714,
715 (10th Cir. 2018) (unpublished).
In the meantime, Parr sought relief from the Conversion Order under Rule 60.
Although the bankruptcy court conducted an evidentiary hearing on Parr’s Rule 60
motion, Parr declined to present any evidence, make any arguments, or testify on his
own behalf at that hearing. Instead, Parr rested solely on documents he had
previously filed with the bankruptcy court. But the bankruptcy court declined to
“scour” these documents to “determine which facts or legal theories Parr relie[d]
upon.” Aplee. Supp. App. 3. Consequently, it denied Parr’s Rule 60 motion for
failure to prosecute.
Parr then appealed to the BAP. There, he argued he was entitled to relief from
the Conversion Order under Rule 60(b)(3) and Rule 60(d)(3) because of fraud. And
he also asserted, inter alia, that he was entitled to relief under Rule 60(b)(4) because
(1) the bankruptcy court lacked authority to convert the case under 11 U.S.C.
§ 1112(c); (2) Parr’s brother lacked standing to seek conversion; and (3) the
Conversion Order resulted in a violation of Colorado’s homestead exemption.
3
The BAP rejected Parr’s arguments and affirmed the bankruptcy court’s order.
Parr appeals.
Discussion
Generally speaking, “we review [the] bankruptcy court’s decisions
independently, examining legal determinations de novo and factual findings for clear
error.” FB Acquisition Prop. I, LLC v. Gentry (In re Gentry), 807 F.3d 1222, 1225
(10th Cir. 2015). But to the extent Parr challenges the bankruptcy court’s order
denying his Rule 60 motion, our standard of review varies depending on the contours
of the argument at issue. Compare, e.g., Servants of Paraclete v. Does, 204 F.3d
1005, 1009 (10th Cir. 2000) (explaining that we typically “review the district court’s
denial of a Rule 60(b) motion for abuse of discretion”), with, e.g., Wilmer v. Bd. of
Cty. Comm’rs of Leavenworth Cty., 69 F.3d 406, 409 (10th Cir. 1995) (noting that we
review de novo district court’s finding that judgment is void for lack of jurisdiction
under Rule 60(b)(4)).
On appeal, Parr first asserts that because he didn’t ask the bankruptcy court to
convert his case, the Conversion Order is void in the absence of any evidence that
Parr was “a moneyed, business, or commercial corporation.” § 1112(c); see also Fed.
R. Civ. P. 60(b)(4) (allowing court to provide relief from final judgment if “the
judgment is void”).3 But as the BAP explained, this argument misconstrues
3
On appeal, Parr forcefully argues that a Rule 60(b)(4) motion “may be
brought at any time.” Aplt. Br. 7 (quoting Spitznas v. Boone, 464 F.3d 1213, 1225
(10th Cir. 2006)). But we see no indication that the BAP or the bankruptcy court
concluded otherwise. Instead, the BAP found only that to the extent Parr sought relief
4
§ 1112(c); that provision only prohibited the bankruptcy court from converting Parr’s
case in the absence of a request from Parr if, as a threshold matter, Parr was a farmer
or a corporation. See § 1112(c) (“The court may not convert a case . . . if the debtor is
a farmer or a corporation that is not a moneyed, business, or commercial
corporation, unless the debtor requests such conversion.” (emphasis added)).
Critically, Parr doesn’t assert on appeal that he was a farmer or a corporation. Nor
does he point to any record evidence that would support such an assertion.
Accordingly, he fails to establish that § 1112(c) applies here, let alone that it renders
the Conversion Order void.
In his second Rule 60(b)(4) argument, Parr asserts that his brother lacked
standing to request conversion because his brother was only “one [c]reditor.” Aplt.
Br. 4. According to Parr, this renders the Conversion Order void under 11 U.S.C.
§ 303 because it means that “three or more entities” didn’t request conversion.
§ 303(b)(1). But as the Trustee points out, § 303 says nothing about conversion.
Instead, it describes how “[a]n involuntary case may be commenced.” § 303(a)
(emphasis added); compare § 303(b)(1) (discussing requirements for commencing
involuntary case), with § 1112 (discussing requirements for converting case). Thus,
Parr’s § 303(b)(1) argument fails. And so too does Parr’s related assertion that “[t]he
from the July 21, 2015 Conversion Order under Rule 60(b)(3)—rather than under
Rule 60(b)(4)—his April 13, 2018 motion was untimely. See Fed. R. Civ. P. 60(c)(1)
(providing that Rule 60(b)(3) motion “must be made . . . no more than a year after the
entry of the judgment or order” challenged). Parr neither identifies any error in the
BAP’s conclusion nor renews his Rule 60(b)(3) argument on appeal. Accordingly, we
do not address that argument further.
5
[a]ttorneys who benefitted from [the Conversion Order]” were aware of the alleged
§ 303(b)(1) defect and therefore “committed fraud on” the bankruptcy court by
failing to alert it to this issue. Aplt. Br. 9–10; see also Rule 60(d)(3) (noting that
Rule 60 doesn’t “limit a court’s power to . . . set aside a judgment for fraud on the
court”).
Next, in his third and final Rule 60(b)(4) argument, Parr alleges that the
Conversion Order is void because that order (and the subsequent sale of his property)
violated both Colorado’s homestead exemption and Parr’s due-process rights. But as
the BAP noted, Parr separately “exhausted his appellate rights of the bankruptcy
court’s orders allowing the sale of the homestead and valuing the homestead
exemption,” and those orders are now “final.” Aplt. App. 18; see also Parr, 732 F.
App’x 714. Further, Parr fails to explain in his opening brief how the Conversion
Order—as opposed to the actual sale of his property or the order that authorized that
sale—violated Colorado’s homestead exemption. Cf. Fed. R. App. P. 28(a)(8)(A)
(requiring appellant’s opening brief to contain “appellant’s contentions and the
reasons for them”). Likewise, he fails to provide citations to the record demonstrating
that he presented his due-process theory to the bankruptcy court or the BAP. Cf.
10th Cir. R. 28.1(A) (“For each issue raised on appeal, all briefs must cite the precise
references in the record where the issue was raised and ruled on.”). And we see no
indication that he did so. Nor do we see any indication that he is making a plain-error
argument on appeal. Thus, given Parr’s failure to comply with these procedural rules,
we treat this entire argument as inadequately briefed and decline to consider it. See
6
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to
argue for plain error and its application on appeal . . . marks the end of the road for
an argument for reversal not first presented to the district court.”); Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to
consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”); Garrett, 425 F.3d at 840–41 (“[W]hen a pro se litigant
fails to comply with [Rule 28], we cannot fill the void by crafting arguments and
performing the necessary legal research.” (first alteration in original) (quoting
Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001))).
Finally, Parr asserts that the bankruptcy court abused its discretion in declining
to address the merits of his arguments and in denying his Rule 60 motion based
solely on his failure to prosecute. But for the reasons discussed above, we conclude
that Parr’s arguments are either inadequately briefed or fail on their merits. Thus,
even assuming the bankruptcy court abused its discretion in failing to reach the
merits of those arguments, Parr fails to demonstrate that the bankruptcy court’s error
prejudiced him. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009) (noting that in
civil cases, “the party seeking reversal normally must explain why the erroneous
ruling caused harm”). Accordingly, we decline to reverse on this basis. See Fed. R.
Civ. P. 61 (“At every stage of the proceeding, the court must disregard all errors and
defects that do not affect any party’s substantial rights.”).
Conclusion
7
Because Parr fails to demonstrate the bankruptcy court committed reversible
error in denying his Rule 60 motion, we affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
8