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IN RE W. T. GRANT CO.

May 10, 1977

In Re W. T. GRANT COMPANY, Bankrupt. Robert H. NAHODIL et al., acting as the Secured Suppliers Committee, Plaintiff,
v.
Charles G. RODMAN, as Trustee of the Estate of W. T. Grant Company, Bankrupt, Defendant.



The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, District Judge.

We have before us three motions involving the bankrupt estate of W. T. Grant. First, United States Trust Company ("U.S. Trust") has moved to strike two items that were designated by Morgan Guaranty Trust Company ("Morgan") for inclusion in the record on appeal to us from an order of the bankruptcy court. Second, U.S. Trust has moved to strike in its entirety the counterdesignation of contents for inclusion in the record on appeal proposed by Charles G. Rodman, Trustee of the Estate of W. T. Grant Company ("the Trustee"). Third, Trustee has moved to dismiss this appeal for lack of jurisdiction. On April 14, 1977, we denied the motions in their entirety and stated that a memorandum would follow. We now undertake it.

Both U.S. Trust and Morgan have separately appealed from a Memorandum, Opinion and Order of the bankruptcy court (Galgay, BJ) which was entered February 4, 1977 and entered as corrected on February 14, 1977. Their appeals were not consolidated. (See Richard P. Krasnow's Affidavit sworn to March 14, 1977, p. 7, [*] 21). Pending the transmittal of the record on appeal to the district court, U.S. Trust had moved this court for the relief indicated in the preceding paragraph hereof.

 The first item designated by Morgan for inclusion in the records on appeal (by it and U.S. Trust), to which U.S. Trust vigorously objects, consists of two letters written by the Trustee's counsel to the bankruptcy court (Brown's Affidavit, sworn to March 10, 1977 p. 6, [*] 13), dated December 15 and 16, 1976. Both were written to advise the bankruptcy court what option the secured suppliers of W. T. Grant's inventory had elected in a proposed compromise and settlement with the Trustee. The second item (also objected to by U.S. Trust) is a letter dated January 12, 1977 from the Trustee's counsel to the bankruptcy court; it updates the earlier letters of December 15 and 16.

 Significantly, there is no dispute that the three letters were considered by the bankruptcy court in reaching its decision; in fact, the letters were referred to by Judge Galgay in his Memorandum, Opinion and Order of February 4 and 14, 1977. *fn1" Indeed, U.S. Trust acknowledges this (Brown's Affidavit, p. 4, [*$ 8). The issue is whether these three letters, admittedly considered by the court below in its determination, properly form part of the record on appeal.

 Bankruptcy Rule 806 does not provide a procedure for resolving disputes over the contents of the record on appeal to the district court. However, Rule 806 states in relevant part:

 Within 10 days after filing the notice of appeal the appellant shall file with the referee [bankruptcy judge] and serve on the appellee a designation of the contents for inclusion in the record on appeal and a statement of the issues he intends to present on the appeal. The record shall include the contents so designated and the findings of fact, conclusions of law, and orders entered thereon. If the appellee deems any other papers to be necessary, he shall, within 7 days after the service of the statement of the appellant, file and serve on the appellant a designation of additional papers to be included....

 Thus it appears that the record on appeal should contain all documents and evidence bearing on the proceedings below and considered by the bankruptcy judge in reaching his decision. See In re Billy Joe Warren, 1 Collier Bankruptcy Cases 87 (S.D. Ohio, 1974).

 The three letters were properly included by Morgan in its designation and by the Trustee in its counter-designation. Rule 10(e) of the Federal Rules of Appellate Procedure is not at variance. *fn2" In pertinent part, it provides:

 (e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth.... All other questions as to the form and content of the record shall be presented to the court of appeals.

 In U.S.A. v. Marachowsky, 15 F.R.D. 130 (W.D.Wis.1953), an appeal from the district court to the court of appeals, the plaintiff moved the district court to supplement the record on appeal. In its decision on the question of jurisdiction, the district court analyzed Rule 75(h) of the Federal Rules of Civil Procedure, the immediate predecessor of present Rule 10(e):

 [Wherever] there is an omission from the record on appeal of anything material to either party, through error or accident, the district court may direct the omission to be corrected, and if necessary that a supplemental record be certified and transmitted to the Court of Appeals, and that consequently this court should grant the motion of the plaintiff. However, the cases construing this rule seem to consistently indicate that differences concerning the record on appeal should be submitted to and settled by the District Court only where there is an issue as to whether the record truly discloses what occurred in the District Court. (at p. 133)

 Here, it would be pointless to submit this dispute over the record on appeal to the bankruptcy court since all parties are in agreement that the three letters objected to by U.S. Trust came before the bankruptcy court and were relied upon in rendering its decision (Memorandum, Opinion and Order of February 4 and 14, 1977 at page 14; Brown's Affidavit, p. 6, [*] [*] 13, 14; and Krasnow's Affidavit, p. 12, [*] [*] 36, 37). Accordingly, as there is no dispute as to what occurred below, we find that this court has jurisdiction to determine the instant motions.

 As we find that the bankruptcy court did consider the letters aforementioned in reaching its conclusions, each letter is properly designated for inclusion in the record on appeal. U.S.A. v. Brookhaven, 134 F.2d 442 (C.C.A. 5th 1943); Belt v. Holton, 90 U.S.App.D.C. 148, 197 F.2d 579 (1952); Askins v. Overholser, 83 U.S.App.D.C. 248, 170 F.2d 815 ...


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