In re: Robert A. Alexander and Gloria J. Alexander

FILED
1 ORDERED PUBLISHED JUN 27 2012
SUSAN M SPRAUL, CLERK
2 U.S. BKCY. APP. PANEL
O F TH E N IN TH C IR C U IT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5
6 In re: ) BAP No. NV-11-1114-KiPaD
)
7 ROBERT A. ALEXANDER and ) Bk. No. 08-18441-MKN
GLORIA J. ALEXANDER, )
8 )
Debtors. )
9 )
)
10 KATHLEEN A. LEAVITT, Chapter )
13 Trustee, )
11 )
Appellant, )
12 )
v. ) O P I N I O N
13 )
ROBERT A. ALEXANDER; GLORIA )
14 J. ALEXANDER, )
)
15 Appellees. )
______________________________)
16
Argued and Submitted on June 15, 2012
17 at Las Vegas, Nevada
18 Filed - June 27, 2012
19 Appeal from the United States Bankruptcy Court
for the District of Nevada
20
Honorable Mike K. Nakagawa, Chief Bankruptcy Judge, Presiding
21
22
Appearances: Lauren A. Peña, Esq. argued for appellant, Kathleen
23 A. Leavitt, chapter 13 trustee;
Troy S. Fox, Esq. of Crosby & Associates argued for
24 appellees, Robert and Gloria Alexander
25
26 Before: KIRSCHER, PAPPAS, and DUNN, Bankruptcy Judges.
27
28
1 KIRSCHER, Bankruptcy Judge:
2
3 Appellant, chapter 131 trustee Kathleen A. Leavitt
4 (“Trustee”), appeals an order from the bankruptcy court overruling
5 her objection to debtors’ claimed exemption for a mobile kitchen
6 as a “vehicle.” We AFFIRM.
7 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
8 Debtors, Robert A. Alexander and Gloria J. Alexander
9 (“Debtors”), filed a chapter 13 bankruptcy petition on July 30,
10 2008. At that time, both Debtors were employed as bus drivers for
11 the Clark County School District. Mr. Alexander has since
12 retired. Prior to filing their bankruptcy case, Debtors purchased
13 a 2007 Mobile Kitchen Trailer (“Mobile Kitchen”) to be used for a
14 mobile barbeque sandwich business. Debtors used the Mobile
15 Kitchen approximately twelve times prior to the bankruptcy, but
16 between licensing issues and Mr. Alexander’s health problems, they
17 ceased using the Mobile Kitchen until Mrs. Alexander could retire
18 to assist Mr. Alexander in operating it.
19 Debtors listed the Mobile Kitchen in their original Schedule
20 B with a value of $25,000; they listed the barbeque business,
21 “B & E Barbeque,” as having a value of $0. In their Schedule C,
22 Debtors listed the Mobile Kitchen as a “tool of the trade” under
23 NEV. REV . STAT . (“NRS”) § 21.090(1)(d) with a claimed exemption
24 value of $20,000. Debtors also listed in their Schedule B a 2004
25 BMW 5 Series and a 2004 Dodge Ram 1500. They did not exempt these
26
27 1
Unless specified otherwise, all chapter, code, and rule
references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
28 the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
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1 vehicles because both were fully encumbered.
2 Over the next two years, Trustee objected to Debtors’ claimed
3 exemptions for the Mobile Kitchen as either a “tool of the trade”
4 under NRS § 21.090(1)(d) or as a “necessary household good” under
5 NRS § 21.090(1)(b). The parties did eventually agree to value the
6 Mobile Kitchen at $17,000.
7 Faced with a contested confirmation hearing due to the
8 exemption dispute, the parties each were instructed to submit a
9 two-page statement regarding their position on the Mobile Kitchen
10 exemption. In their statement, Debtors argued that the Mobile
11 Kitchen qualified as a “tool of the trade” because they intended
12 to use it as a business in the future. Debtors also argued the
13 Mobile Kitchen qualified as a “necessary household good.”
14 Alternatively, Debtors proposed a new theory - that the Mobile
15 Kitchen could be considered a “vehicle” exemptible under NRS
16 § 21.090(1)(f).2
17 At the confirmation hearing on August 25, 2010, the
18 bankruptcy court directed the parties to brief the issue as to how
19 mobile kitchens of this type had been treated in other courts.
20 Both parties submitted their supplemental briefs on September 15,
21 2010. Neither party could locate case law from Nevada (or any
22 other jurisdiction) addressing the classification of a mobile
23 kitchen.
24 Debtors’ brief asserted the same three possible exemption
25 categories for the Mobile Kitchen, contending that it was
26
27 2
NRS § 21.090(1)(f) exempts “one vehicle if the judgment
debtor’s equity does not exceed $15,000 or the creditor is paid an
28 amount equal to any excess above that equity.”
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1 Trustee’s burden to prove the exemption was not valid. To support
2 their position that it was an exemptible “vehicle,” Debtors
3 attached copies of the Certificate of Registered Ownership for the
4 Mobile Kitchen from the Nevada Department of Motor Vehicles, a
5 copy of a receipt from the DMV for the Mobile Kitchen’s title and
6 registration fees, and a copy of a DMV Field Service inspection.
7 Debtors contended that because the Mobile Kitchen had a Vehicle
8 Identification Number and because it was registered with the DMV,
9 it was a “vehicle” under Nevada law and therefore exemptible under
10 NRS § 21.090(1)(f).
11 In her brief, Trustee maintained that the Mobile Kitchen was
12 not encompassed in any Nevada exemption provisions, and thus its
13 value had to be included in the liquidation analysis for
14 confirmation of Debtors’ proposed plan. Trustee focused most of
15 her argument on the “tools of the trade” exemption, contending
16 that the Mobile Kitchen did not qualify because it had not
17 contributed to Debtors’ support to a reasonable and meaningful
18 extent in the past as required by Nevada law. Trustee briefly
19 contended that the Mobile Kitchen was not an exemptible “household
20 good” because it was not in, or a part of, Debtors’ household.
21 She also opposed the “vehicle” exemption because the Mobile
22 Kitchen was not essential to Debtors’ transportation.
23 After a brief hearing on the exemption matter, the bankruptcy
24 court entered its Memorandum Decision on February 22, 2011. The
25 court agreed with Trustee that the Mobile Kitchen was not
26 exemptible as a “tool of the trade” under NRS § 21.090(1)(d)
27 because it had not provided support for Debtors in the past, and,
28 under In re Kolsch, 58 B.R. 67, 70 (Bankr. D. Nev. 1986), Debtors
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1 presented no evidence demonstrating that a reasonable or realistic
2 prospect existed of using the Mobile Kitchen in the future to earn
3 Debtors their living. The court also sustained Trustee’s
4 objection that the Mobile Kitchen was not exemptible under NRS
5 § 21.090(1)(b) because it was not a “household good” or a
6 “necessary” household good. The court rejected Debtors’ argument
7 that the Mobile Kitchen was merely a “backyard barbeque” since it
8 is mounted on a trailer and includes a refrigerator, freezer,
9 sink, and a sandwich preparation machine. Further, Debtors had
10 presented no evidence that the Mobile Kitchen served as their
11 household kitchen or even as a backyard barbeque, and no meals
12 were prepared there for Debtors or their dependents.
13 However, the bankruptcy court overruled Trustee’s objection
14 to Debtors’ exemption for the Mobile Kitchen as a “vehicle” under
15 NRS § 21.090(1)(f). Acknowledging that Chapter 21 did not define
16 “vehicle” or refer to a definition of “vehicle,” the court turned
17 to Chapter 482 of the NRS (Motor Vehicles and Trailers: Licensing,
18 Registration, Sales and Leases), which defines “vehicle” as “every
19 device in, upon or by which any person or property is or may be
20 transported or drawn upon a public highway.” The court found that
21 the Mobile Kitchen was a device upon or by which property may be
22 drawn upon a public highway, and thus it fell within the
23 definition of vehicle under NRS § 482.135. Turning then to NRS
24 § 482.125, which defines “trailer” as “every vehicle without
25 motive power designed to carry property or passengers wholly on
26 its own structure and to be drawn by a motor vehicle,” the court
27 found that the Mobile Kitchen fell within the definition of
28 trailer because it has no motor power and, for the same reason,
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1 could not fall within the definition of a “motor vehicle” under
2 NRS § 482.075.3
3 The bankruptcy court then observed that NRS § 21.090(1)(f)
4 refers to an exemption for “one vehicle” rather than to “one motor
5 vehicle,” and it did not exclude trailers. Reasoning that the
6 legislature was not ignorant of the distinctions it drew between
7 “vehicles” and “motor vehicles” when enacting the exemption
8 statutes, and taking into consideration Nevada’s policy that
9 exemptions be liberally construed in favor of the debtor, the
10 bankruptcy court concluded that the Mobile Kitchen could be
11 exempted under NRS § 21.090(1)(f). Although the exemption limit
12 under NRS § 21.090(1)(f) is $15,000 for one vehicle, because joint
13 debtors are allowed to “stack” exemptions in Nevada (for a total
14 of $30,000), Debtors were allowed an exemption for $17,000.
15 On February 22, 2011, the bankruptcy court entered an order
16 overruling Trustee’s objection and allowing Debtors’ exemption for
17 the Mobile Kitchen. Debtors filed their fourth amended Schedule C
18 on February 25, 2011, reflecting the Mobile Kitchen as an exempt
19 vehicle under NRS § 21.090(1)(f). Trustee timely appealed.
20 II. JURISDICTION
21 The bankruptcy court had jurisdiction under 28 U.S.C.
22 §§ 157(b)(2)(B) and 1334. We have jurisdiction under 28 U.S.C.
23 § 158.
24 III. ISSUE
25 Did the bankruptcy court err when it determined that the
26 Mobile Kitchen could be exempted as a “vehicle” under NRS
27
3
NRS § 482.075 defines “motor vehicle” as “every vehicle as
28 defined in NRS § 482.135 which is self-propelled.”
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1 § 21.090(1)(f)?
2 IV. STANDARDS OF REVIEW
3 We review a bankruptcy court’s findings of fact for clear
4 error and review de novo its conclusions of law, including
5 interpretations of state exemption statutes. Simpson v. Burkart
6 (In re Simpson), 366 B.R. 64, 70 (9th Cir. BAP 2007), aff’d, 557
7 F.3d 1010, 1014 (9th Cir. 2009).
8 V. DISCUSSION
9 A. The bankruptcy court did not err when it determined that the
Mobile Kitchen could be exempted as a “vehicle” under NRS
10 § 21.090(1)(f).
11 1. Applicable law.
12 Upon the filing of a bankruptcy petition, an estate is
13 created consisting of all legal and equitable interests of the
14 debtor in property as of the date of the filing of the petition.
15 § 541(a)(1). Section 522 allows a debtor to exempt certain
16 property from his or her estate. “The purpose of Nevada’s
17 exemption statutes is ‘to secure to the debtor the necessary means
18 of gaining a livelihood, while doing as little injury as possible
19 to the creditor.’” Savage v. Pierson, 157 P.3d 697, 700 (Nev.
20 2007) (quoting Kreig v. Fellows, 30 P. 994, 995 (Nev. 1892)).
21 Exemptions are to be liberally construed in favor of the
22 debtor who claims the exemption. Arrol v. Broach (In re Arrol),
23 170 F.3d 934, 937 (9th Cir. 1999); In re Christensen, 149 P.3d 40,
24 43 (Nev. 2006) (“We liberally and beneficially construe our state
25 exemption statutes in favor of the debtor.”). A claim of
26 exemption is presumed valid, and the burden is on the objecting
27 party to prove, by a preponderance of the evidence, that an
28 exemption is improperly claimed. Tyner v. Nicholson (In re
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1 Nicholson), 435 B.R. 622, 630, 634 (9th Cir. BAP 2010); Rule
2 4003(c); § 522(l).
3 Nevada has opted out of the federal exemption scheme provided
4 under § 522(d). See NRS § 21.090(3). Therefore, Nevada law
5 governs substantive issues regarding exemptions. The Nevada
6 Supreme Court has not determined whether a “mobile kitchen
7 trailer” or similar device is exemptible under state law. “When a
8 decision turns on applicable state law and the state’s highest
9 court has not adjudicated the issue, a federal court must make a
10 reasonable determination of the result the highest state court
11 would reach if it were deciding the case.” Aetna Cas. & Sur. Co.
12 v. Sheft, 989 F.2d 1105, 1108 (9th Cir. 1993).
13 2. Analysis.
14 Although Trustee concedes that Chapter 482 is the only
15 chapter within the NRS defining vehicles, she contends the
16 bankruptcy court erroneously looked to NRS § 482.135 for the
17 definition of “vehicle,” which resulted in a strict interpretation
18 directly controverting the legislative intent of NRS
19 § 21.090(1)(f). Specifically, Trustee argues that because the
20 purpose and intent behind Chapter 482 are so radically different
21 from the exemption statutes in Chapter 21, its definition cannot
22 be applied to any other statutes outside of Chapter 482. Trustee
23 contends that the ordinary, contemporary meaning of “vehicle”
24 should be used to determine the exemption. Trustee also argues
25 that legislative history reveals Nevada lawmakers intended NRS
26 § 21.090(1)(f) to provide debtors an exemption only for a reliable
27 vehicle to travel to and from work.
28 Because we are interpreting the instant statute as we believe
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1 the Nevada Supreme Court would interpret it, we apply Nevada rules
2 for statutory construction. Sticka v. Casserino (In re
3 Casserino), 290 B.R. 735, 737, 739-40 (9th Cir. BAP 2003) (scope
4 of Oregon state law exemption involves construction of state law
5 using Oregon policy), aff’d, 379 F.3d 1069 (9th Cir. 2004);
6 Citizens for Responsible Gov’t State Political Action Comm. v.
7 Davidson, 236 F.3d 1174, 1190 (10th Cir. 2000) (applying Colorado
8 rules of statutory construction to Colorado statute); Hodes v.
9 Jenkins (In re Hodes), 308 B.R. 61, 68 (10th Cir. BAP 2004)
10 (bankruptcy court had to interpret Kansas exemption statute
11 according to Kansas’ rules of statutory construction).
12 When interpreting a statutory provision, Nevada courts first
13 look to the plain language of the statute and ascribe words their
14 plain meaning. Savage, 157 P.3d at 699. If a statutory phrase is
15 left undefined, the court construes the phrase according to its
16 plain and ordinary meaning. In re Resort at Summerlin Litig., 127
17 P.3d 1076, 1079 (Nev. 2006). We generally presume that the plain
18 meaning of the words reflects the legislature’s intent, unless
19 that reading violates the spirit of the act or leads to an absurd
20 result. Villanueva v. State, 27 P.3d 443, 446 (Nev. 2001). The
21 court will not look beyond the statutory language unless the
22 language is ambiguous. In re Resort at Summerlin Litig., 127 P.3d
23 at 1079. Only when a statute is ambiguous, meaning it is capable
24 of more than one reasonable interpretation, will the court
25 ascertain the legislative intent by analyzing the statute’s
26 legislative history and construing the statute in accordance with
27 reason and public policy. Great Basin Water Network v. State
28 Eng’r, 234 P.3d 912, 918 (Nev. 2010). Whenever possible, a
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1 statute must be construed so that no part of it is rendered
2 nugatory or mere surplusage. Savage, 157 P.3d at 699.
3 NRS § 21.090(1)(f) provides an exemption for “one vehicle if
4 the judgment debtor’s equity does not exceed $15,000 or the
5 creditor is paid an amount equal to any excess above that equity.”
6 The word in question here is “vehicle.” The term vehicle is not
7 defined in Chapter 21 of the NRS. Therefore, because “vehicle”
8 has been left undefined in Chapter 21, we must construe “vehicle”
9 according to its plain and ordinary meaning. In re Resort at
10 Summerlin Litig., 127 P.3d at 1079. Black’s Law Dictionary
11 defines vehicle as: “1. An instrument of transportation or
12 conveyance. 2. Any conveyance used in transporting passengers or
13 things by land, water, or air.” Black’s Law Dictionary 1693 (9th
14 ed. 2009). The American Heritage Dictionary defines vehicle as:
15 “1. A device for carrying passengers, goods, or equipment.”
16 American Heritage Dictionary 752 (2d ed. 1983). Given these broad
17 definitions, the Mobile Kitchen is clearly a vehicle, as it is a
18 conveyance used to transport things by land, and/or it is a device
19 for carrying goods or equipment. Trustee’s definition of vehicle
20 as “a device used to transport people between locations” is far
21 too narrow, and she fails to cite any authority to support it. In
22 addition, the fact the Mobile Kitchen is registered with the
23 Nevada DMV and has a Vehicle Identification Number makes an even
24 more compelling case that it is, by its plain and ordinary
25 meaning, a vehicle.
26 Rather than turning to the plain and ordinary meaning of
27 vehicle, the bankruptcy court consulted Chapter 482 of the NRS -
28 the only chapter in which vehicle is defined - to find the meaning
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1 of the word. Contrary to Trustee’s argument, this was not
2 necessarily erroneous. In another exemption case, the Nevada
3 Supreme Court was asked to determine whether a security deposit in
4 a residential lease was exempt under either the homestead
5 exemption (NRS § 21.090(1)(l)) or the dwelling exemption (NRS
6 § 21.090(1)(m)). Savage, 157 P.3d at 698. Although the Court
7 concluded that neither exemption applied, to determine whether the
8 deposit fell under the homestead exemption, the Court turned to
9 NRS Chapter 115 -- Homesteads -- where the term “homestead” is
10 defined, as it is not defined in Chapter 21. Id. at 700. The
11 Court noted that NRS § 115.010(2) limits homestead exemptions
12 “only to that amount of equity in property held by the claimant
13 which does not exceed $350,000 in value.” Id. (emphasis in
14 original). After reviewing the definition of “equity” in NRS
15 § 115.005(1) and decisions by courts in other jurisdictions with a
16 similar homestead exemption statute, the Savage court held that
17 given the plain language of NRS § 21.090(1)(l), NRS § 115.005(1),
18 and NRS § 115.010(2), the security deposit was not exempt under
19 Nevada law. Id. at 702.4
20 Therefore, while not explicitly stating so, when a term is
21 not defined in the pertinent chapter of the NRS, Savage allows the
22 court to look to other chapters within the NRS where the term at
23
24 4
The Savage court also noted that the term “dwelling” is
not defined in NRS Chapter 21 or in NRS Chapter 115, but that
25 “dwelling” is defined in NRS Chapter 118 -- Landlord/Tenant.
However, because the definition of “dwelling” was not at issue,
26 the Court did not explore it. Nevertheless, nothing indicates the
Court would not have reviewed Chapter 118 had the definition of
27 “dwelling” been in dispute. Savage, 157 P.3d at 702 n.29.
Actually, statements made by the Court indicate that it would have
28 looked to Chapter 118 for guidance if needed. Id. at 703 n.35.
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1 issue is defined for guidance. Several other courts employ this
2 same rule. See United States v. Wade, 181 F. Supp. 2d 715 (E.D.
3 Mich. 2002) (court looked to other sections of Michigan statutes
4 for guidance on definition of term “peace officer” where term was
5 not expressly defined); Ohio River Pipe Line, LLC v. Gutheil, 761
6 N.E.2d 633 (Ohio Ct. App. 2001) (in construing statutory terms
7 “petroleum” and “oil” court is guided by the legislature’s use of
8 these same terms defined elsewhere in the Revised Code); State v.
9 Vega, 691 A.2d 22 (Conn. App. Ct. 1997) (when statute does not
10 define phrase, court may look to meaning given phrase in unrelated
11 statutes and consider that where legislature uses same phrase it
12 intends same meaning). Using either the plain and ordinary
13 meaning of “vehicle” or using its definition in Chapter 482, we do
14 not consider the term to be ambiguous, and thus we need not look
15 to legislative intent to determine its meaning. In NRS § 482.135,
16 vehicle is defined as “every device in, upon or by which any
17 person or property is or may be transported or drawn upon a public
18 highway.” In that same chapter, “trailer” is defined as “every
19 vehicle without motive power designed to carry property or
20 passengers wholly on its own structure and to be drawn by a motor
21 vehicle.” NRS § 482.125. The Mobile Kitchen is a device upon or
22 by which property may be drawn upon a public highway, so it
23 certainly meets the definition of “vehicle.” It also meets the
24 definition of “trailer” because it lacks motive power but is
25 designed to carry property wholly on its own structure and be
26 drawn by a motor vehicle. NRS § 21.090(1)(f) allows a debtor an
27 exemption for “one vehicle.” The statute does not require the
28 vehicle to be a “motor vehicle,” and it does not expressly exclude
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1 trailers.
2 Therefore, considering Nevada’s policy that exemptions be
3 liberally and beneficially construed in favor of the debtor, that
4 the Mobile Kitchen is a “vehicle” under Nevada law, and that NRS
5 § 21.090(1)(f) does not expressly exclude trailers, we conclude
6 the Mobile Kitchen is exempt under NRS § 21.090(1)(f). While
7 Chapter 482 and Chapter 21 may have different purposes, nothing in
8 either Chapter suggests they are in contravention with one another
9 or that the bankruptcy court’s interpretation of the word vehicle
10 “directly defies” the purpose of the exemption statute as Trustee
11 argues. Considering the particular facts of this case, allowing
12 the Mobile Kitchen as an exempted vehicle does not lead to an
13 absurd result, particularly because it is, at least to some
14 degree, tied with Debtors’ future livelihood.5 If the Nevada
15 Legislature intended to limit exempted vehicles to only those
16 vehicles necessary for a debtor’s transportation to and from work
17 or to maintain the debtor’s livelihood, it could have easily done
18 so by providing that narrow definition in the exemption statutes.
19 Therefore, whether applying the plain and ordinary meaning of
20 vehicle or its defined meaning in Chapter 482, the bankruptcy
21 court did not err when it determined that the Mobile Kitchen could
22 be exempted as a “vehicle” under NRS § 21.090(1)(f).
23
5
Notwithstanding the requirement that exemption statutes be
24 liberally construed, allowing a debtor to exempt as a vehicle all
types and varieties of trailers could conceivably lead to absurd
25 results, such as where a particular trailer serves an undisputably
nonessential or recreational purpose. In such instances, the
26 bankruptcy court may properly consider whether the application of
a dictionary, statutory, or some other definition to the term
27 “vehicle” in the exemption statute is appropriate. In addition,
to avoid such results, the legislature may consider amending the
28 statute to include an applicable definition.
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1 B. We cannot reach the issue of whether the bankruptcy court was
correct in holding that the Mobile Kitchen was not exemptible
2 as a “necessary household good” under NRS § 21.090(1)(b).
3 The Panel may raise jurisdictional issues sua sponte. Paine
4 v. Dickey (In re Paine), 250 B.R. 99, 104 (9th Cir. BAP 2000).
5 The parties have briefed this issue assuming we have jurisdiction
6 to review it. As explained below, we lack jurisdiction over this
7 matter, and therefore we may not consider it.
8 Trustee asks us to affirm the bankruptcy court’s
9 determination that the Mobile Kitchen was not an exemptible
10 “necessary household good” under NRS § 21.090(1)(b). Notably,
11 Trustee did not raise this issue in her Statement of Issues on
12 Appeal. Furthermore, since she was the prevailing party on this
13 issue, she lacks standing to appeal this portion of the exemption
14 order. See Picard v. Credit Solutions, Inc., 564 F.3d 1249, 1256
15 (11th Cir. 2009) (“‘Ordinarily, the prevailing party does not have
16 standing to appeal because it is assumed that the judgment has
17 caused that party no injury.’”) (quoting Agripost, Inc. v.
18 Miami-Dade County, 195 F.3d 1225, 1230 (11th Cir. 1999) (citing
19 Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980)). An
20 exception to this rule exists where the prevailing party is
21 prejudiced by the preclusive effect of the trial court’s decision,
22 but this exception is not applicable here. Id.23 Debtors attempt to argue that the bankruptcy court erred to
24 the extent it determined that the Mobile Kitchen was not
25 “necessary” for their reasonable comfort. Debtors did not file a
26 cross-appeal on this issue. Under Rule 8002(a), a party wishing
27 to cross-appeal must file its notice of appeal within 14 days of
28 the filing date of the first notice of appeal. “An appellee who
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1 fails to file a cross-appeal cannot attack a judgment with a view
2 towards enlarging his own rights.” Spurlock v. FBI, 69 F.3d 1010,
3 1018 (9th Cir. 1995) (citations omitted). See also Greenlaw v.
4 United States, 554 U.S. 237, 244-45 (2008) (“Under [the] unwritten
5 but longstanding [cross-appeal] rule, an appellate court may not
6 alter a judgment to benefit a non-appealing party. This Court,
7 from its earliest years, has recognized that it takes a
8 cross-appeal to justify a remedy in favor of an appellee.”)
9 (citing McDonough v. Dannery, 3 Dall. 188, 198 (1796)). Because
10 Debtors seek to enlarge their exemption rights, a timely filed
11 notice of cross-appeal was required.
12 However, in reviewing the bankruptcy court docket, we
13 discovered that Debtors filed a Supplemental Statement of Issues
14 on Appeal and Designation of Record (“Statement”). Unfortunately,
15 we could not locate any authority, and the parties have cited
16 none, holding that a statement of this nature, even though timely
17 filed, can substitute as a notice of cross-appeal. In any event,
18 we cannot treat Debtors’ Statement as a proper cross-appeal.
19 Under Rule 8006, within 14 days after appellant has served
20 its statement of the issues on appeal, the appellee may file and
21 serve on the appellant a designation of additional items to be
22 included in the record on appeal. However, the appellee may file
23 and serve a counter-statement only if the appellee has filed a
24 cross-appeal. Id.; see also 718 Arch St. Assocs., Ltd. v.
25 Blatstein (In re Blatstein), 260 B.R. 698, 710 (E.D. Pa. 2001);
26 Frymire v. PaineWebber, Inc., 107 B.R. 506, 513-14 (E.D. Pa. 1989)
27 (filing of notice of cross-appeal is a prerequisite to the filing
28 of a counter-statement of the issues on appeal and designation of
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1 additional items, and such counter-statement cannot substitute for
2 the filing of a notice of cross-appeal).
3 In the absence of a timely filed notice of cross-appeal, the
4 Panel does not have jurisdiction to address the issue raised by
5 Debtors. See Abrams v. Sea Palms Assocs., Ltd. (In re Abrams),
6 229 B.R. 784, 788 (9th Cir. BAP 1999) (applying prior Rule 8002(a)
7 and its 10-day rule), aff’d, 242 F.3d 380 (9th Cir. 2000)
8 (unpublished table decision). Because Debtors did not timely file
9 a notice of cross-appeal, and because the Statement is not a
10 proper substitute for one, we lack jurisdiction to decide this
11 issue.
12 VI. CONCLUSION
13 For the foregoing reasons, we AFFIRM.
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