Janice Morrison v. Devalie Morrison

Case: 15-14890 Date Filed: 09/08/2016 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14890
Non-Argument Calendar
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D.C. Docket No. 9:15-cv-81300-KAM,
Bkcy No. 0:10-bkc-28987-PGH
DEVALIE MORRISON,
Debtor.
_______________________________________________________
JANICE MORRISON,
Plaintiff-Appellant,
versus
DEVALIE MORRISON,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 8, 2016)
Case: 15-14890 Date Filed: 09/08/2016 Page: 2 of 5
Before WILLIAM PRYOR, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
Janice Morrison appeals pro se an order affirming the denial of her motions
for a second evidentiary hearing in the bankruptcy court. We affirm.
In her motions, Morrison requested another evidentiary hearing to determine
whether she had an ownership interest in property that her sister had identified as
part of her bankruptcy estate. On October 23, 2013, the bankruptcy court held an
evidentiary hearing during which Morrison testified. On November 1, 2013, the
bankruptcy court entered two orders that compelled Morrison to turn the property
over to her sister’s bankruptcy estate, and Morrison appealed.
The bankruptcy court reopened the evidentiary hearing because the court
reporter was unable to transcribe Morrison’s testimony, and the district court
dismissed Morrison’s appeal without prejudice with leave “refile her appeal at the
conclusion of the evidentiary hearing.” Morrison moved for a temporary
injunction, which the district court later dismissed as moot and without prejudice to
file another motion for appropriate relief. On May 12, 2014, Morrison testified a
second time, after which the bankruptcy court remarked that her testimony could
require it to change its ruling. The bankruptcy court invited the parties to submit
case law or evidence that had to be filed with a joint stipulation regarding its
authenticity or with a request for an evidentiary hearing. Morrison filed an affidavit
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in which the realtor who sold the property averred that Morrison and her sister
jointly purchased the property, but Morrison’s sister responded the evidence had
been available to Morrison at the time of October 2013 hearing.
Morrison filed three motions for a second evidentiary hearing, which the
bankruptcy court denied. The bankruptcy court ruled that there was no pending
motion on which to hold an evidentiary hearing. The district court also ruled that,
even if it construed the motions as filed under Federal Rule of Civil Procedure
60(b), they were untimely to request reconsideration of the orders entered in
November 2013 and failed to state any grounds to warrant reconsideration.
The district court affirmed. The district court ruled that Morrison’s “motions
. . . raised an issue that was previously resolved and dismissed on appeal” and that
she “provided no valid legal basis for the bankruptcy court to revisit or set aside its
previous ruling . . . .”
On appeal, Morrison challenges only the order that affirmed the denial of her
three motions for an evidentiary hearing. Morrison’s notice of appeal states that
she is challenging “the Final Order . . . of the District Court . . . Affirming
Bankruptcy Court’s Denial of [Her] motions to set evidentiary hearings,” and her
brief on appeal is limited to the same topic. In any event, the notice of appeal that
Morrison filed on September 18, 2015, would be untimely to appeal the two orders
that the bankruptcy court entered in November 2013. See Fed. R. Bankr. P.
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8002(a)(1) (“[A] notice of appeal must be filed with the bankruptcy clerk within 14
days after entry of the judgment, order, or decree being appealed.”). Morrison had
to challenge the orders entered in November 2013 to avoid turning over the
property, but she failed to do so. After Morrison testified a second time, the
bankruptcy court offered to revisit its ruling if Morrison submitted case law or new
evidence accompanied by a joint stipulation regarding authenticity or a request for
an evidentiary hearing, but she failed to authenticate her realtor’s affidavit or to
submit any case law to support her claim to the property. She never filed another
motion in the bankruptcy court for appropriate relief. Morrison also forfeited the
opportunity to “refile her appeal at the conclusion of the evidentiary hearing.”
The district court did not err by affirming the order that denied Morrison’s
motions for a second evidentiary hearing. See In re Fisher Island Invs., Inc., 778
F.3d 1172, 1189 (11th Cir. 2015). Morrison argues that the district court violated
her right to due process by dismissing her appeal on a record devoid of her
testimony, but Morrison failed to request that the court reporter include transcripts
of the hearings on October 23, 2013, or May 12, 2014, in the record on appeal.
And Morrison acknowledges that she bore the burden of designating which filings,
orders, and hearings to include in the appellate record. See Fed. R. Bankr. P.
8009(a)(1)(A). Morrison argues that the lack of a transcript is attributable to the
malfunction of the court reporter’s equipment during the hearing in October 2013,
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but that does not excuse Morrison’s failure to request a transcript of her testimony
during the hearing in May 2014. Although Morrison was proceeding pro se, she
was nonetheless required to comply with the rules of procedure. See Loren v.
Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (discussing the requirements of Fed.
R. App. P. 10(b)(2), which has the same requirements as Fed. R. Bankr. P.
8009(b)(5)). Without a transcript, Morrison could not “argue on appeal [to the
district court] that a finding or conclusion [of the bankruptcy court] [was]
unsupported by the evidence or [was] contrary to the evidence.” See Fed. R. Bankr.
P. 8009(b)(5). The district court correctly affirmed the order of the bankruptcy
court.
AFFIRMED.
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