In re Stangel ( 1995 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 94-10916
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IN RE: FRANK J. STANGEL,
Debtor.
FRANK J. STANGEL,
Appellant,
VERSUS
UNITED STATES OF AMERICA,
Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
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September 12, 1995
Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
The central issue in this appeal is whether Stangel timely
filed his notice of appeal from the bankruptcy court's final
judgment and its orders denying his post-judgment motions for
reconsideration. The district court dismissed Stangel's appeal in
part and denied his remaining claims. We affirm.
I.
In September 1993, Frank J. Stangel filed a petition for
relief under Chapter 13 of the Bankruptcy Code. The Internal
Revenue Service ("IRS") filed proofs of claims with the bankruptcy
court totaling $81,896.78. Although Stangel did not specifically
object to the IRS's claims, he submitted a proposed repayment plan
that did not provide for the IRS's claims. The bankruptcy court
subsequently rejected Stangel's plan on the grounds that it failed
to provide for the IRS's claims. The court ordered Stangel to
obtain a hearing on his objection to the IRS' claims within 60 days
or face dismissal of his case. Stangel failed to request a hearing
within 60 days and, on September 29, 1993, the bankruptcy court
entered an order dismissing Stangel's case.
Stangel filed two post-judgment motions challenging the
bankruptcy court's September 29th judgment. The bankruptcy court
denied both motions. Stangel then filed a notice of appeal with
the district court. The timeliness of Stangel's notice of appeal
turns on the dates of his post-judgment motions and the bankruptcy
court's orders denying the motions:
-- September 29: Bankruptcy court entered final
judgment dismissing Stangel's case;
-- October 6: Stangel served his first post-
judgment motion requesting the
bankruptcy court to reconsider its
September 29th judgment;
-- October 26: Bankruptcy court entered order
denying Stangel's first motion;
-- November 3: Stangel served his second post-
judgment motion requesting the
bankruptcy court to reconsider its
October 26th order denying his first
motion;
-- November 18: The bankruptcy court entered order
denying Stangel's second motion.
-- November 26: Stangel filed a notice of appeal
with the district court.
The district court concluded that Stangel's notice of appeal was
untimely with respect to the September 29th final judgment and the
October 26th order denying his first motion and dismissed this part
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of his appeal. The court then affirmed the bankruptcy court's
November 18th order denying Stangel's second motion to reconsider.
Stangel timely appealed.
II.
A.
Federal Rule of Bankruptcy Procedure 8002(a) provides that a
notice of appeal in a bankruptcy proceeding must be filed "within
10 days of the date of the entry of the judgment, order, or decree
appealed from." However, Rule 8002(b) provides:
If a timely motion is filed by any party: (1) under Rule
7052(b) to amend or make additional findings of fact, whether
or not an alteration of the judgment would be required if the
motion is granted; (2) under Rule 9023 to alter or amend the
judgment; or (3) under Rule 9023 for a new trial, the time for
appeal for all parties shall run from the entry of the order
denying a new trial or granting or denying any other such
motion.
Stangel contends his two motions for reconsideration tolled the
appeals period under Rule 8002(b) until the bankruptcy court denied
his second motion on November 18, 1983. He contends that his
notice of appeal was therefore timely because it was filed within
10 days of the court's order denying the second motion. Although
the government agrees that Stangel's first motion for
reconsideration tolled the appeals period, it contends that
successive motions for reconsideration do not toll the appeals
period under Rule 8002(b). The government concludes that Stangel's
notice of appeal was not timely because it was not filed within 10
days of the bankruptcy court's October 26th order denying Stangel's
first motion for reconsideration. However, the government concedes
that Stangel's notice of appeal was timely to obtain review of the
bankruptcy court's November 18th order denying his second motion.
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Although there are no decisions in this circuit that directly
address the effect of successive post-judgment motions under Rule
8002(b), several cases address the effect of successive motions
under Federal Rule of Appellate Procedure 4(a)(4). Because Fed. R.
App. P. 4(a)(4) directly tracks the language of Rule 8002(b),
courts typically look to decisions applying Fed. R. App. P. 4(a) as
a guide to applying Rule 8002. See In re Arrowhead Estates
Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994)(quoting In re
Brickyard, 735 F.2d 1154, 1156 (9th Cir. 1984)).
This court has previously held that successive motions under
Federal Rule of Civil Procedure 59(e) for reconsideration or
rehearing generally do not toll the appeals period under Fed. R.
App. P. 4(a)(4). In United States v. One 1988 Dodge Pickup, 959
F.2d 37, 39 (5th Cir. 1992), the court held that Fed. R. App. P.
4(a)(4) "does not embrace a second Rule 59 motion that merely
challenges the denial of the original Rule 59 motion." Similarly,
in Charles L.M. v. Northeast Ind. Sch. Dist., 884 F.2d 869, 871
(5th Cir. 1989), the court held that a second motion for
reconsideration did not toll the appeals period under Fed. R. App.
P. 4(a)(4) because "[t]he interest of finality requires that the
parties generally get only one bite at the Rule 59(e) apple for the
purposes of tolling the time for bringing an appeal." Although
Stangel's second post-judgment motion purportedly challenges the
bankruptcy court's denial of his first motion, the motion merely
repeats most of the arguments made in the first motion. Thus,
Stangel's second motion is essentially a successive motion for
reconsideration and, consequently, did not toll the appeals period
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under Bankruptcy Rule 8002(b).1 We therefore conclude that the
district court did not err in dismissing Stangel's appeal of the
bankruptcy court's final judgment and its October 26th order
denying Stangel's first motion for reconsideration.
B.
We also agree that the district court did not err in affirming
the bankruptcy court's denial of Stangel's second motion for
reconsideration. Although motions for reconsideration or rehearing
are typically treated as Fed. R. Civ. P. 59(e) motions, motions for
reconsideration or rehearing served more than 10 days after the
judgment are generally decided under Fed. R. Civ. P. 60(b).2
Harcon Barge Co. v. D&G Boat Rentals, Inc. , 784 F.2d 665, 669 (5th
Cir. 1986). Rule 60(b) provides for relief from a final judgment
under the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b);
(3) Fraud, misrepresentation, or other misconduct of an
adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
or
(6) any other reason justifying relief from the operation of
1
Bankruptcy Rule 9023 provides that "Rule 59 F.R. Civ. P.
applies in bankruptcy cases under the [Bankruptcy] Code." A post-
judgment motion for reconsideration or rehearing is generally
considered a Rule 59(e) motion to alter or amend if it challenges
the correctness of the judgment. See Edward H Bohlin Co. v. Banning
Co., 6 F.3d 350, 353 (5th Cir. 1993).
2
Bankruptcy Rule 9024 provides in pertinent part that "Rule 60
F.R.Civ.P. applies in cases under the Code . . . ."
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the judgment.
Fed. R. Civ. P. 60(b). The bankruptcy court's denial of a Rule
60(b) motion is reviewable under an abuse of discretion standard.
See Williams v. Brown & Root, Inc., 828 F.2d 325, 328 (5th Cir.
1987).
Stangel's second motion fails to raise any of Rule 60(b)'s
grounds for relief from the bankruptcy court's judgment. Rather,
he merely repeats the arguments he made in his first motion for
reconsideration. Denial of a Rule 60(b) motion that does not raise
any of the grounds for relief cognizable under that rule, but which
essentially repeats the arguments of a prior motion for
reconsideration, is generally not an abuse of discretion. See
Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1202-03 (5th Cir.
1993); Colley v. National Bank of Texas, 814 F.2d 1008, 1010 (5th
Cir. 1993). We therefore conclude that the district court did not
err in affirming the bankruptcy court's November 18th order denying
Stangel's second motion for reconsideration.
AFFIRMED.
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