Kwame O. E'tief, Sr. v. Tamara M. Ogier , 177 F. App'x 937 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15005 APRIL 25, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket Nos. 04-02264-CV-BBM-1,
03-98551-BKC-RE
IN RE:
KWAME OU'PINDA E'TEIF, SR.,
Debtor.
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KWAME OU'PINDA E'TEIF, SR.,
Plaintiff-Appellant,
versus
TAMARA MILES OGIER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 25, 2006)
Before BLACK, BARKETT, and MARCUS, Circuit Judges.
PER CURIAM:
Kwame O. E’tief, Sr., a Chapter 7 debtor proceeding pro se, appeals the
district court’s affirmance of the bankruptcy court’s order approving the Trustee’s
Application to Compromise a malpractice claim against E’tief’s former counsel, G.
Alfred Brunavs. On appeal, E’tief argues that the Trustee and Brunavs colluded
with each other to dissolve Brunavs of legal liabilities to E’tief’s detriment. In
making this argument, E’tief relies on other bankruptcy rulings as evidence of
Brunavs’s collusion with the Trustee and also suggests these other rulings illustrate
the bankruptcy judge’s bias against him.
In the bankruptcy context, we sit “as a ‘second court of review’ and thus
‘examine[] independently the factual and legal determinations of the bankruptcy
court,’ ” employing the same standards of review as the district court. In re Optical
Techs., Inc., 425 F.3d 1294, 1299-1300 (11th Cir. 2005) (quoting In re Issac
Leaseco, Inc., 389 F.3d 1205, 1209 (11th Cir. 2004)). We review legal conclusions
by either the bankruptcy court or the district court de novo and the bankruptcy
court’s findings of fact for clear error. In re New Power Co., 438 F.3d 1113, 1117
(11th Cir. 2006).
Rule 8006 of the Federal Rules of Bankruptcy Procedure specifies the
procedure for designating the items for a record on appeal, including transcripts of
proceedings:
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Within 10 days after filing the notice of appeal . . . the appellant shall
file with the clerk and serve on the appellee a designation of the items
to be included in the record on appeal and a statement of the issues to
be presented. Within 10 days after the service of the appellant’s
statement the appellee may file and serve on the appellant a
designation of additional items to be included in the record on appeal .
. . . The record on appeal shall include the items so designated by the
parties, the notice of appeal, the judgment, order, or decree appealed
from, and any opinion, findings of fact, and conclusions of law of the
court. Any party filing a designation of the items to be included in the
record shall provide to the clerk a copy of the items designated or, if
the party fails to provide the copy, the clerk shall prepare the copy at
the party's expense. If the record designated by any party includes a
transcript of any proceeding or a part thereof, the party shall,
immediately after filing the designation, deliver to the reporter and
file with the clerk a written request for the transcript and make
satisfactory arrangements for payment of its cost. All parties shall take
any other action necessary to enable the clerk to assemble and
transmit the record.
Fed. R. Bankr. P. 8006 (emphasis added). The Federal Rules of Appellate
Procedure contain a similar rule regarding the duties of an appellant to compile the
record on appeal that specifies that:
(1) Appellant’s Duty to Order. Within 10 days after filing the notice
of appeal . . . the appellant must do either of the following:
(A) order from the reporter a transcript of such parts of the
proceedings not already on file as the appellant considers necessary
...
(B) file a certificate stating that no transcript will be ordered.
(2) Unsupported Finding or Conclusion. If the appellant intends to
urge on appeal that a finding or conclusion is unsupported by the
evidence or is contrary to the evidence, the appellant must include in
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the record a transcript of all evidence relevant to that finding or
conclusion.
(3) Partial Transcript. Unless the entire transcript is ordered:
(A) the appellant must--within the 10 days provided in Rule
10(b)(1)--file a statement of the issues that the appellant intends to
present on the appeal and must serve on the appellee a copy of both
the order or certificate and the statement;
(B) if the appellee considers it necessary to have a transcript of other
parts of the proceedings, the appellee must, within 10 days after the
service of the order or certificate and the statement of the issues, file
and serve on the appellant a designation of additional parts to be
ordered; and
(C) unless within 10 days after service of that designation the
appellant has ordered all such parts, and has so notified the appellee,
the appellee may within the following 10 days either order the parts or
move in the district court for an order requiring the appellant to do so.
Fed. R. App. P. 10(b)(1)-(3).
E’tief has not included a transcript of the June 16, 2004, hearing where the
bankruptcy court orally announced its findings of facts and conclusions of law
regarding the Application to Compromise that forms the basis of the issue E’tief
raises on appeal. Moreover, the transmittal sheet from the bankruptcy court clerk
with the record on appeal indicates that E’tief did not comply with Rule 8006 by
serving the court reporter with his request for transcripts. Although E’tief is pro
se, the record indicates that the bankruptcy court expressly informed him of the
procedures to follow to obtain transcripts for the record on appeal. After the
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district court noted the deficiencies in the record, we can find no indication that
E’tief made any effort to cure the deficiencies. On appeal, E’tief has not attempted
to cure the deficiencies in the record and has failed to comply with the
requirements of Rule 10 by not ordering the transcript, not filing a certificate
stating that he would not file the transcript, and not filing a statement of the issues
he intended to present on appeal. In fact, E’tief filed a motion asking that we
proceed without the transcripts, which we granted. However, without the
transcripts, it simply is impossible for us to review the bankruptcy court’s factual
findings and legal conclusions. Accordingly, we dismiss E’tief’s appeal with
respect to the appeal of the June 21 order. See Fed. R. App. P. 10(b)(2); see also
Abood v. Block, 752 F.2d 548, 550 (11th Cir. 1985) (dismissing appeal where the
appellant failed to include a transcript of the relevant district court proceedings in
the record on appeal).
Finally, the record that we do have does not contain any evidence suggesting
collusion or bias on the part of the Trustee, Brunavs, or the bankruptcy court
judge.1 Thus, we affirm as to those issues.
DISMISSED IN PART, AFFIRMED IN PART.
1
E’tief attaches several documents to his brief in support of his arguments, but the
majority of these documents were not part of the record on appeal and will not be considered here.
See Fed.R.App.P. 10(a). Even if these documents were considered, they provide no support for his
arguments of bias and collusion.
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