Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1984)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1984)

In re Gerald J. STROKE.Gerald J. STROKE, Appellant,v.Martin GOLDBERG, Trustee, Lynne Richard, Appellee.

No. 88-5523.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 31, 1989.Decided April 10, 1990.

Appeal from the United States Bankruptcy Appellate Panel of the Ninth Circuit; James W. Meyers, Chief Bankruptcy Judge, Presiding.

Bkrtcy.App. 9.

AFFIRMED.

Before HUG, CANBY and BOOCHEVER, Circuit Judges.


MEMORANDUM* 

Gerald Stroke appeals the Bankruptcy Appellate Panel's decision affirming the Bankruptcy Court's denial of his Rule 60(b) motion. The motion sought to vacate two orders: the order of October 1, 1982, appointing Martin Goldberg as trustee and the order of June 6, 1984, modifying the scope of that appointment. We review the Bankruptcy Court's conclusions of law de novo and its findings of fact for clear error. In Re Pacific Far East Lines, Inc., 889 F.2d 242, 244 (9th Cir. 1989); see also 11 U.S.C. 8013. The Bankruptcy Court found that the orders were not void, and that Stroke was estopped from making such a claim. We agree and affirm.

Jurisdiction

First, we address a jurisdictional problem raised by the appellee. Stroke directed his notice of appeal to the "District Court of Appeals for the Ninth Circuit, for the State of California," and thus did not correctly "name the court to which the appeal is taken" as required by Rule 3(c) of the Rules of Appellate Procedure. Stroke could not have taken his appeal to any other court than this one. We can reasonably infer that Stroke intended to appeal to this court and that the defect in the court's name could not have prejudiced or misled the appellee. Graves v. General Insurance Corp., 381 F.2d 517 (10th Cir. 1967); see also Fed. R. App. P. 3(c) ("An appeal shall not be dismissed for informality of form or title of the notice of appeal."); United States v. Neal, 774 F.2d 1022 (10th Cir. 1985). Stroke's notice of appeal is the "functional equivalent of what the rule [3(c) ] requires." Torres v. Oakland Scavenger, 108 S. Ct. 2405, 2408 (1988) (permitting liberal construction of Rule 3(c) as long as there is fair notice to the parties and the court). We accept jurisdiction of his appeal.

The Stipulation; Due Process

Stroke contends that the Bankruptcy Court erred in concluding that he had stipulated to the appointment of a trustee to take over various properties, and that accordingly the order of October 1, 1982, appointing Goldberg as trustee is void. He argues that a court order granted pursuant to a stipulation should be evaluated under principles of contract law. We have rejected that argument. Twentieth Century Fox Film Corp. v. Donnahoo, 637 F.2d 1338, 1340 (9th Cir. 1981) (denial of Rule 60(b) motion 6 years after a consent decree granted pursuant to stipulation).

We find no merit in Stroke's contention that the hearing of September 9, 1982, at which the stipulation was entered, violated his right to due process. Stroke claims that his attorney, Harwood, was without authority because he was not approved by the court pursuant to 11 U.S.C. § 327. However, section 327 refers to court approval for a trustee's attorney, not the debtor's attorney. Harwood denies stipulating to the appointment of a trustee, but acknowledges that he tentatively agreed to the appointment. Although Harward now says that he believed that the order was entered at the Bankruptcy's Court's own initiative, he received the order which listed Harward as appearing for Stroke. The order referred to " [a]ll of the foregoing parties having so stipulated." Harwood took no action to object to or appeal that order. In a letter to the trustee, Stroke admitted that Harwood stipulated to the trustee's appointment. In his Memorandum of Points and Authorities in Support of Motion to Vacate Orders, Stroke also admitted that he was present for at least part of the disputed hearing. We conclude that Stroke received notice and a hearing prior to the appointment of the trustee, as required by 11 U.S.C. § 1104(a). In addition, he was represented by counsel, knew that the court appointed a trustee, and had an opportunity to appeal. There was no violation of Stroke's right to due process.

We also find no merit in Stroke's contention that the appointment of the trustee was rendered invalid because the Bankruptcy Court's amending order of June 6, 1984, was entered without prior notice to Stroke. The amending order simply restricted the trusteeship to the estate of Stroke, excluding independent entities in which Stroke might have had an interest, and reconfirmed Goldberg as trustee. This was not a new appointment, requiring a hearing pursuant to 11 U.S.C. § 1104(a). Stroke had received the notice and hearing required by section 1104(a) in connection with Goldberg's original appointment; no more was required.

Untimeliness of Stroke's Rule 60(b) Motion

Stroke's motion to vacate the appointment of the trustee was clearly too late. Although both Stroke and his attorney knew that a trustee had been appointed, they did not object, move for reconsideration or appeal. Stroke did not seek to vacate the appointment until December 1985, more than three years after the initial appointment, a year and a half after the second modifying order, and a year and a half after Stroke acknowledged in a letter to the trustee that Harwood stipulated to the trustee's appointment.

Stroke alleges that his attorney had a conflict of interest because he represented a creditor of the estate, and that this conflict resulted in a fraud. Stroke does not specify how this conflict resulted in fraud, but in any event Stroke did not bring his motion within "one year after the judgment, order, or proceeding," as required to vacate for fraud. Fed. R. Civ. P. 60(b) (4).

Stroke could have moved to vacate the orders as void or for other extraordinary reasons "within a reasonable time." Fed. R. Civ. P. 60(b) (4), 60(b) (6). He did not. What constitutes a reasonable time "depends on the facts of each case," with consideration whether the moving party had good reason for failing to act sooner and whether the nonmoving party has been prejudiced by the delay. In Re Pacific Far East Lines, Inc., 889 F.2d at 249; see also United States v Holtzman, 762 F.2d 720, 725 (9th Cir. 1985). The trustee and those involved in the properties he has controlled would be harmed by questioning the trustee's authority at this late date. Stroke relies on several cases which permitted such motions after many years when the moving party did not have notice of a court order. Here, Stroke only claims that he did not have notice of the stipulation, but must concede that he had notice of the appointment of the trustee. We find no good reason for Stroke's delay.

Stroke voluntarily submitted to bankruptcy, participated in many bankruptcy proceedings, sought to have assets transferred from a state receiver to a trustee, and was employed by the trustee for $2,000 monthly, pursuant to a September 1983 order of the Bankruptcy Court. Stroke may not benefit from an order for years and then later protest its validity. See American Nat'l Bank & Trust Co. of Chicago v. Taussig, 255 F.2d 765, 769 (7th Cir. 1958), cert. denied, 358 U.S. 883 (1958); see also Matter of R.S. Pinellas Motel Partnership, 5 B.R. 269 (Bankr.M.D. Fla .1980); In Re Martin-Trigora, 760 F.2d 1334 (2nd Cir. 1985). Conclusion

We reject all of Stroke's challenges to the two orders. Stroke's motion to vacate the appointment of the trustee was not made within a reasonable time and he is estopped from making such a motion at this late date.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3