Robert P. Ciralsky v. John v. LaBarge, Jr. ( 2002 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 02-6018 EM
In re: *
*
Robert P. Ciralsky, *
*
Debtor. *
*
*
Robert P. Ciralsky, *
* Appeal from the United
Debtor - Appellant. * States Bankruptcy Court
* for the Eastern District of
v. * Missouri
*
John V. LaBarge, Jr., *
*
Trustee - Appellee. *
Submitted: July 8, 2002
Filed: August 14, 2002
Before KOGER, Chief Judge, DREHER and FEDERMAN, Bankruptcy Judges.
DREHER, Bankruptcy Judge.
This is an appeal from an order of the bankruptcy court1 denying Appellant’s
motion to reinstate the bankruptcy case and an order denying Appellant’s motion to
reconsider. For the reasons stated below, we affirm.
BACKGROUND
On August 31, 2001, upon motion of the Standing Chapter 13 Trustee, John V.
LaBarge, Jr. (“Trustee”), the bankruptcy court issued an order dismissing this
bankruptcy case. On September 6, 2001, the Debtor, Robert P. Ciralsky (“Debtor”),
filed a motion seeking to have the bankruptcy court reconsider its ruling and reinstate
the case.2 The Trustee objected to Debtor’s motion. Subsequently, Debtor requested
several continuances which the bankruptcy court granted. The motion was initially
set for hearing on December 13, 2001, continued to January 3, 2002, and finally heard
on February 7, 2002. Debtor did not appear at the hearing. Susan Foerster
("Foerster"), who is not an attorney, appeared on Debtor’s behalf to request yet
another continuance. The bankruptcy court denied Foerster's request for a
continuance and denied the motion to reconsider and reinstate. Debtor then filed
another motion for reconsideration, which the bankruptcy court also denied. Debtor
appeals both from the order denying his motion to reinstate the bankruptcy case and
from the order denying his motion to reconsider.
DISCUSSION
A bankruptcy court’s decision on a motion to reinstate a case is within the
discretion of the bankruptcy court and will be reviewed only for an abuse of
discretion. See Svoboda v. Educational Credit Mgmt. Corp. (In re Svoboda), 264
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The Honorable Barry S. Schermer, United States Bankruptcy Judge for the
Eastern District of Missouri.
2
Ciralsky also filed an amended motion on September 10, 2001.
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B.R. 190, 195 (B.A.P. 8th Cir. 2001)(noting that decisions on Rule 59(e) motions are
subject to review under the abuse of discretion standard). An abuse of discretion will
only be found if the lower court's judgment was based on clearly erroneous factual
findings or erroneous legal conclusions. Barger v. Hayes County Non-Stock Co-op.,
219 B.R. 238, 243 (citing Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir.1996)). "A
finding is 'clearly erroneous' when although there is evidence to support it, the
reviewing court, on the entire evidence is left with the definite and firm conviction
that a mistake has been committed." Id. (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985)). The bankruptcy court gave Debtor ample opportunity to
appear and be heard on the issue of whether his case should be reinstated. Debtor
presented no evidence to warrant the bankruptcy court’s reinstatement of his case and
did not advance any appropriate basis for altering or amending the bankruptcy court's
judgment. The motion to reinstate simply reiterated factors that the bankruptcy court
had already taken into account on the Trustee’s motion to dismiss. Our review of the
record reveals no abuse of discretion.
Nor did the bankruptcy court err in denying Debtor's motion for
reconsideration of the order denying reinstatement. The motion to reconsider was
governed by Bankruptcy Rule 9024 which incorporates Federal Rule of Civil
Procedure 60. See Fed. R. Bankr. P. 9024. Debtor offered no support for altering the
bankruptcy court's decision as to reinstatement and the circumstances of his case did
not warrant the extraordinary relief provided by Rule 9024. Once again, this motion
was nothing more than a re-argument of positions Debtor had taken in earlier
motions. See Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir.
1984); Kieffer v. Riske (In re Kieffer-Mickes, Inc.), 226 B.R. 204, 210 (B.A.P. 8th
Cir. 1998).
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CONCLUSION
Accordingly, having found no error, we affirm the bankruptcy court's orders
denying reinstatement of the bankruptcy case and denying the motion to reconsider.
A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL
FOR THE EIGHTH CIRCUIT
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