In Re Alton Nathan David, Debtor.alton Nathan David, Debtor-appellant, v. First Federal of South Carolina, Creditor-appellee.in Re Alton Nathan David, Debtor.alton Nathan David, Plaintiff-appellant, v. First Federal of South Carolina, Defendant-appellee, 937 F.2d 602 (4th Cir. 1991)

Alton Nathan David appeals the district court's order affirming the bankruptcy court's dismissal of his bankruptcy petition for failing to file a plan timely under 11 U.S.C. § 1321. Mr. David filed a petition in bankruptcy under Chapter 13 of the Bankruptcy Code (the so-called Wage Earner Plan) in 1989. Upon motion of the trustee, the bankruptcy court dismissed the petition for failure to submit a proposed plan as required under 11 U.S.C. § 1321. Because this was the second Chapter 13 petition submitted by Mr. David and dismissed within one year, the order also bars him from refiling another Chapter 13 petition for one year from the date of the order under 11 U.S.C. § 105. David appealed to the district court which affirmed. He then filed a motion for rehearing (within 10 working days from entry of judgment). While that motion was pending, Mr. David appealed the district court's decision to this Court. This appeal was docketed in this Court as 90-3133. The district court then ruled that it was without jurisdiction to decide the motion for rehearing.¹  David noted a second appeal to this Court, which was docketed as 90-3170.

David noted his appeal in 90-3133 before the district court had ruled on his motion for rehearing. Under Fed. R. App. P. 4(a) (4), a notice of appeal filed before disposition of a timely Fed. R. Civ. P. 50(b), 52(b), or 59 motion is without effect, and a new notice of appeal must be filed within the appeal period measured from entry of the order disposing of the motion. This Court construes a motion served within 10 days of entry of judgment which calls into question the correctness of that judgment as a Rule 59 motion, however the motion may be formally styled. Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). Therefore, we dismiss the appeal in 90-3133 as premature.

Under 11 U.S.C. § 1307(c), the bankruptcy court may dismiss a case, after notice and a hearing, for failure to file a plan timely under section 1321. On the record before the district court (and before this Court), it is impossible to determine whether the bankruptcy court provided the requisite notice and hearing.² 

Bankruptcy Rule 8006 provides that:

Within 10 days after filing the notice of appeal as provided by Rule 8001(a) or entry of an order granting leave to appeal the appellant shall file with the clerk and serve on the appellee a designation of the items to be included in the record on appeal and a statement of the issues to be presented.

The items designated by David to be included in the record on appeal to the district court consisted of (1) the bankruptcy court's final order, (2) his notice of appeal, and (3) the notice from the bankruptcy court to attorneys of record, pursuant to Bankr.Rule 8004, notifying them that David had filed a notice of appeal. On this record, the district court affirmed the decision of the bankruptcy court, noting that "the record on appeal is sparse and the facts unclear."

This Court has "the discretionary power to order supplementation of the record on appeal," and we may do so on our own initiative. In Re GHR Energy Corp., 791 F.2d 1200 (5th Cir. 1986); Fed. R. App. P. 10(e). In GHR Energy Corp., the appellant had failed to include in its designation of the record its notice of appeal filed in the district court. The Fifth Circuit found that the timeliness of GHR's appeal could not be determined without reference to that notice of appeal. While recognizing the duty Rule 8006 imposes on a bankruptcy appellant to cause a proper record on appeal to be prepared, the court exercised its discretionary authority under Fed. R. App. P. 10(e) and ordered the clerk of the bankruptcy court to supplement the record with the necessary notice of appeal. It then remanded to the district court for "further proceedings in light of the supplemental record." Id. at 1202.

We find the reasoning of GHR Energy Corp. persuasive and adopt the procedure followed there. Therefore, it is hereby ORDERED that the Clerk of the Bankruptcy Court for the District of South Carolina prepare a supplemental record on appeal consisting of the entire record in the bankruptcy court in case number 8904445, and forward the supplemental record to the Clerk of the Fourth Circuit. Upon receipt of the supplemental record, the Clerk of the Fourth Circuit shall return the record as supplemented to the Clerk of the District Court for the District of South Carolina. The order of the district court affirming the order of the bankruptcy court is vacated, and, upon receipt of the supplemental record, this matter is remanded to the district court for further proceedings in light of the supplemental record. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before the Court and argument would not aid in the decisional process.

VACATED AND REMANDED.