531 B.R. 654
Bankr. S.D. Tex.2015Background
- Debtor Digerati filed a Chapter 11 petition on May 30, 2013.
- Herrera sought approval of employment as investment banker and timely filed a Final Fee Application May 2, 2014.
- Objections to Herrera’s Fee Application were filed by multiple parties, including Secured Creditors on May 23, 2014.
- Herrera designated 189 items for inclusion in the record on appeal; after discussions, he amended to 150 items.
- Secured Creditors moved to strike 77 items; the court ultimately struck 60 items after oral ruling and briefing.
- Rule 8009(e)(1) governs disputes over designation of the record on appeal; the court found no basis to apply Rule 8009(e)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 8009(e)(1) governs designation disputes. | Secured Creditors rely on 8009(e)(1) as the controlling mechanism. | Herrera argues for different treatment for docketed pleadings and historical context. | Yes; 8009(e)(1) governs the dispute. |
| Whether the 60 disputed items should be stricken from the designation. | Items not admitted at the hearing should be stricken; designation improper. | Items were pleadings on the docket and should be considered for context. | Yes; the 60 items should be struck. |
| Whether Rule 8009(e)(2) applies to this dispute. | Rule 8009(e)(2) could allow correction if omission was material or accidental. | Not applicable; no error or accident shown. | No; 8009(e)(2) does not apply. |
Key Cases Cited
- In re CPDC, Inc., 337 F.3d 436 (5th Cir.2003) (record on appeal must include items that were part of the bankruptcy court’s record)
- In re SI Restructuring Inc., 480 F.App’x 327 (5th Cir.2012) (record on appeal cannot include items not admitted in the bankruptcy court)
- Mehta v. Havis (In re Shah), 204 F.App’x 357 (5th Cir.2006) (two exceptions to strict designation if not admitted but still justified or prejudice shown)
- In re Chateaugay Corp., 64 B.R. 990 (S.D.N.Y.1986) (items must be those considered by the bankruptcy judge in reaching the decision)
- Neshaminy Office Building Assocs. v. Neshaminy Office Bldg., 62 B.R. 798 (E.D.Pa.1986) (documents bearing on the proceedings may be designated if considered by the court)