United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT

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No. 97-6060

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In re: * * John E. Land, Mary Connie Land, * * Debtors *

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-- Dan Bryan; Sharon Bryan; Bryan * Broadcasting, Inc., * * Creditors - Appellants, * Appeal from the Unite d States v. * Bankruptcy Court for the * Northern District of Iowa John E. Land, Mary Connie Land, * * Debtors - Appellees *

____________________________ Submitted: October 22, 1997 Filed: December 19, 1997

____________________________ Before KOGER, WILLIAM A. HILL, and SCHERMER, Bankruptcy Judges KOGER, Chief Bankruptcy Judge
Dan Br yan, Sharon Bryan and Bryan Broadcasting, Inc. appea l fromthe bankruptcy court’s order entered on June 24, 1997, i n whichthe court denied the appellants’ Motion to Dismiss or t o Change Venue and their Motion to Set Aside and to Vacate Judgment and Order of Confirmation, for Extension of Time to Appeal, and for Other Relief.2 FACTS
On April 7, 1997, John and Mar y Land, husband and wife, filed a voluntary petition for relie f under Chapter 13 of the Bankruptcy Code in the United States Bankruptcy Court for the Norther n District of Iowa. Despite dec laring under penalty of perjury that theyhad been domiciled or had a residence, principal place o f business, or principal assets in the Northern District of Iowa for 180 days immediately precedingthe date of the bankruptcy petition or for a longer part of such 180 days than in any other district, counsel for the Lands admitted at a hearing held on June 3, 1997, that venue was proper only in the Southern District of Iowa an d that the Lands had filed in the Northern District of Iowa fo r their convenience. In their bankruptcy schedules, the Lands listed Dan Bry anas a creditor holding an unsecured nonpriority claim base d upon h is role as a co-signor for a loan from State Central Bank
. The amount of the claim was shown as zero, and as contingent , unliquidated and disputed. In the mailing matrix, the Lands listed Dan Bryan’s address as Sherwood Oaks, Carthage, Illinois 62321
. Although Dan Bryan’s spouse, Sharon Bryan, was also a creditor of the Lands as a result of a mor tgage executed by the Lands in favor of Dan Bryan and Sharon Bryan, the Lands did not list Sharon Bryan
as a creditor in their schedules filed on April 7, 1997. In th e mortgage, the address of the Bryans was shown as Sherwood Oaks , Carthage, Illinois 62321. Bry an Broadcasting, Inc. is the Bryans’ wholly-owned business and is a defendant, along with the Bry ans, in a state court lawsuit filed by the Lands arising out the sale of a radio station by Bryan Broadcasting, Inc., Dan Bryan and Sharo n Bry anto the Lands’ business, Landmark Broadcasting, Inc. Brya n Broadcasting, Inc. and the Bryans may be creditors of the Land s based upon claims or counterclaims they may file in the pendin g state court action. On or abo ut May 25, 1997, the Lands did amend3

their bankruptcy schedules to include Bryan Broadcasting, Inc. and Dan and Sharon Bryan, each with an address of P.O. Box 485 , Carthage, Illinois 62321.

A notice of the Lands’ bankruptcy filing; the date, time and location of the meeting of cre ditors; the deadline to file a proof of claim; the bar date for filing objections to confirmationof the plan; and the date, time and place of the hearing on confirmation
was m ailed to each creditor at the address shown on the mailin g matrix. The section 341 meeti ng of creditors and the confirmation4

hearing were both held on May 6, 1997, at 12:00 p.m. and 1:3 0 p.m., respectively. The bankruptcy court confirmed the Lands’ Cha pter 13 plan, without objection. The order confirming the plan was filed on May 12, 1997.
On May 6, 1997, after the 1:30 p.m. confirmation hearing, Dan Bryan, Sharon Bryan and Bryan Broadcasting, Inc. filed a Motion to Dismiss or to Change Venue. On May 14, 1997, Dan Bryan, Sharo n Bryan and Bryan Broadcasting, Inc. filed a Motion to Set Aside and to Vacate Judgment and Order of Confirmation, for Extension of Time to Appea l, and for Other Relief. Subsequently, on May 19, 1997 , the a ppellants filed an amendment to the May 14 motion in whic h theystated that the address for Dan Bryan was incomplete, an d
asse rted that neither Dan Bryan, Sharon Bryan nor Brya n Broadcasting, Inc. received notice of the Lands’ bankruptcy filing. The bankruptcy court held a hearing on the motions on June 3 , 1997. The bankruptcy court denied both motions. In its order th e bankruptcy court found and concluded in relevant part that:

Evidence was presented that the Bryans’ attorne y contactedthe Lands’ attorney on April 16, 1997 regardin g the bankruptcy of the Lands. This was six days after th e not ices were mailed by the Clerk. Mr. Bryan testifie d that upon learning of the bank ruptcy he had to “find Mr. Lamas an attorney”, as he had no bankruptcy attorney
. Mr. Bryan contacted Mr. Lam, who now represents all thre e Bryanparties, sometime prior to the April 16, 1997 phon e call by Mr. Lam to the Lands’ attorney. Mr. Bryan also testified that he is sure he contacted Mr. Lam prior to that date. There was testimony that Mr. Bryan may have heard o f the Lands’ bankruptcy through one of his other attorneys durin g depositions in a collateral case. Whethe r coinci dental or not, he became aware of the Lands ’ Chapter 13 petition and began to act on that information at the same time the notices from the court wer e delivered.5 . . . . Mr. Bryan had notice of the bankruptcy proceeding i n question and began to act on t hat information exactly as if he had received notice by mail. Mr. Bryan contacted anattorney to deal with bankruptcy issues at Mr. Bryan’ s request at least 20 days prior to the objection bar and confirmation hearing date. Th e Court concludes that Mr. Bryan had adequate notice of the Lands’ bankruptcy.6

It is notable that the appellants do not appeal from th e bankruptcy court’s determination that Dan Bryan had actual notice of the Lands’ bankruptcy filin g at least 20 days prior to the date set for the confirmation hearing, nor do they appeal from th e bankruptcy court’s factual findings supporting its ruling.
Regarding Sharon Bryan’s notice of the Lands’ bankruptc y filing, the bankruptcy court found and concluded that:

Sharon Bryan and Dan Bryan liv e together as husband and wife. Mr. Bryan testified that they see each other eve ryday and that he would discuss with Mrs. Brya n matters of an important nature of which he became aware. The bankruptcy of individuals who presumably owe them a substantial debt would qualify as a matter of importance
. Mrs. Bryan has retained the same attorney as Mr. Bryan t o represent her in relation to the Lands’ bankruptcy. Tha t at torneyreceived notice of the Lands’ bankruptcy fro m Mr. Bryan at least 20 days prior to the hearing date. This Court has concluded that Mr. Bryan receive d timelynotice of the Lands’ bankruptcy proceeding
. “[T]he normal relationship between spouses being close, Congress could well consider that receipt of the notice by either spouse would be well calculated to give actual notice to both, even though one spouse may be temporaril y absent.” Cohen v. United Stat es , 297 F.2d 760, 773 (9th Cir
. 1962). In Cohen , a prosecution for income ta x evasion, Mr. Cohen was temporarily away, in prison. He nevertheless was deemed to hav e received notice when his wife was served at their perma nent address. Neither of the Bryans have claimed absence from the family home
. Mr. Bryan’s testimony, the advisory language of Congress , and Cohen , when considered tog ether, convince this Court that notice to Mr. Bryan [sic] was adequate.
Inthe case of In re Texaco Inc. , 182 B.R. 93 7 (Bankr. S.D.N.Y. 1995), a Chapter 11 case, adjacen t landowners were found to have received actual “Notice by mail of the Bar Date” for the filing of proofs of claim, by reason of their relationships to five other landowner s to whom notice was actually mailed. The parties i n questi onin Texaco were related to some lesser degree s (sister-in-law, e.g.) to parties to whom notice ha d7

actually

been mailed. Id . at 954. This provides furthe r support that the Lands’ positi on that Mr. Bryan’s notice providedeither actual or imputed notice to Mrs. Bryan by virtue of their marital relationship, living arrangement , and the testimony of Mr. Bryan.8

The bankruptcy court also observed and found that Sharon Bry an “was a party to the Motion to Dismiss or to Change Venue which was file d late on the date of the confirmation hearing.” It i s important to note that the appellants do not appeal from th e bankruptcy court’s factual findings supporting its legal con clusion that Dan Bryan’s actual notice of the Lands’ bankruptcy filin g could be imputed to Sharon Bryan.

The bankruptcy court did not spend much time on the venu e issue. In relevant part, the bankruptcy court stated that n o objections to venue were made prior to the confirmation hear ing and found that the motion filed subsequent to confirmation was no t timely filed.

JURISDICTION
We must address the issue of whether the bankruptcy appellate panel has jurisdiction to hear the appeal in this case. Th e appell ants timely filed a notice of appeal on July 1, 1997. Se e Fed. R. Bankr. P. 8002(a). The bankruptcy court’s denial of th e appellants’ motion to set aside the order confirming the debtors’ plan is a final order over which the bankruptcy appellate pane l unquestionablyhas appellate jurisdiction. See KCC-Leawoo d Corporat e Manor I v. Travelers Ins. Co. , 117 B.R. 969, 972 (W.D
. Mo. 1989) (“Confirmation of a plan is a final order for purp oses of an appeal.”).
The inquiry over whether we ma y exercise jurisdiction in this case arises in the context of the bankruptcy court’s order denying the motion to change venue. Although the denial of a motion t o chang e venue is interlocutory in nature, it has been held to b e appealab le under 28 U.S.C. § 158(a). See ICMR, Inc. v. Tri-Cit y9

Foods, I nc. , 100 B.R. 51, 53 (D. Kan. 1989). In ICMR, Inc. th e dis trict court, quoting 1 Collier on Bankruptcy ¶ 3.02[4][f] (L
. King 15th ed. 1988), opined:

Th e discretion of the district court or appellat e panel [to permit interlocutory appeals of orders changin g ve nue] should be more readily obtained when an orde r regard ing the venue of the title 11 case is concerne d thanin an appeal from a venue order in a civi l proceeding. Unlike a civil proceeding in which the orde r regarding10

venue can be appealed at the conclusion of the proceeding, t here is a very small chance of success on an appeal which is taken afte r the titl e 11 case has been administered and closed, which may b e the only time when the order regarding venue becomes a final order. The appellate panel or district court should recognize this, and be mor e inclined to grant the interlocutory appeal when a motio n regarding venue of the case is involved.

ICMR, Inc. , 100 B.R. at 53. We choose to follow the guidanc e provided by the district court in ICMR, Inc. and determine that we have jurisdiction to rule on the bankruptcy court’s order denying the motion to change venue.

For pr actical reasons it is appropriate for us to exercis e appellate jurisdiction now ove r the denial of the motion to change
ve nue. If we fail to do so, the Lands’ Chapter 13 case will ru n its course, the bankruptcy court may issue rulings during th e pendency of the case, dividend s will be paid to the creditors, and the Chapter 13 trustee will be paid the percentage fee. After the case has been administered and closed, the appellants could bring an appeal from the bankruptcy court’s order denying the motion to chan ge venue. If they are successful at that time in thei r assertion that venue was improper from the inception of the case, the bankruptcy court will be required to order and oversee th e recovery of the dividends paid to the creditors and the fee paid to the Chapter 13 trustee, vacate any orders entered in the cas e, then transfer the case to the Southern District of Iowa for the entire process to begin anew. This would certainly defeat the promotion of the efficient use of judicial resources, and frustrate th e expect ations of the debtors, their creditors and the Chapter 1 3 trustee.
Further, exercising jurisdiction over the denial of the moti on to change venue also comports with the three-part test fo r11

determining whether a bankruptcy decision is final that is se t forth in Lewis v. U.S., Farmers Home Admin. , 992 F.2d 767, 7 72 (8th Cir. 1993). Here, the order leaves the bankruptcy court wit h nothing to do but to execute the order; delay in obtaining review would prevent the appellants from obtaining effective relief; and
a later reversal on the issue of venue would possibly requir e recommencement of the entire b ankruptcy case. See Lewis , 992 F.2d at 772.12

See also Moix-McNutt v. Coop , 212 B.R. 953, 954 (B.A.P. 8th Cir
. 1997)
. “[T]he test for finality in the bankruptcy area is mor e libera l than in nonbankruptcy proceedings.” Lewis , 992 F.2d a t 772. “‘[F]inality for bankruptcy purposes is a complex subject .

. . [and courts deciding appealability questions] must take int o account the peculiar needs of the bankruptcy process.’” In r e Koch , 109 F .3d 1285, 1287 (8th Cir. 1997) (quoting In re Huebner , 98 6 F.2d 1222, 1223 (8th Cir. 1993)).

ISSUES RAISED ON APPEAL
The appellants raise two points on appeal. First, whether a motionto change venue filed within twenty-nine days of th e petition is timely pursuant to 28 U.S.C. § 1408 and Fed. R. Bankr. P. 1014(a)(2). Second, whether notice of the bankruptcy fil ing may be imputed to Sharon Bryan.

STANDARD OF REVIEW ON APPEAL

Wh ether the appellants’ motion to change venue was timel y filed under Fed. R. Bankr. P. 1014(a)(2) involves a question o f fact and the bankruptcy court’ s ruling on this matter shall not be set aside unless clearly erroneous. See First Nat’l Bank v. Allen , 118 F.3d 1289, 1294 (8th Cir. 1997); Fed. R. Bankr. P. 8013. A ban kruptcycourt’s finding of fact is clearly erroneous when th e reviewing court is left with a “‘definite and firm conviction that a mistake has been committed.’” In re Waugh , 95 F.3d 706, 7 11 (8th Cir. 1996) (quoting Anderson v. City of Bessemer City , 470 U.S
. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985)). Th e appellant bears the burden of proving that the bankruptcy court’s de terminationwas clearly erroneous. U.S. Machinery Movers v
.13

Beller , 280 F.2d 91, 95 (8th C ir.), cert. denied , 364 U.S. 903, 81 S. Ct. 236, 5 L. Ed. 2d 195 (1960).
Whether notice of the Lands’ bankruptcy filing may be imput ed to Sharon Bryan involves a question of law over which th e bankru ptcyappellate panel exercises de novo review. See Firs t Nat’l Bank , 118 F.3d at 1294.14 DISCUSSION I. Whether the motion to change venue was timely filed.
The proper venue in which to file a bankruptcy case is set o ut in section 1408 of the Judicial Code, which states in releva nt part that:
[A] case under title 11 may be commenced in the district court for the district-- (1) in which the domicile, residence, principa l pl ace of business in the United States, o r pri ncipal assets in the United States, of th e per son or entity that is the subject of such cas e have been located for the one hundred and eight y days immediately preceding such commencement, o r for a longer portion of such one-hundred-and

eighty-day period than the domicile, residence, or principal place of business, in the United States, or pri ncipal assets in the United States, of suc h person were located in any other district.
28 U.S.C. § 1408(1). Federal R. Bankr. P. 1014(a)(2) provides that:
If a petition is filed in an improper district, on timely motion of a party in interest and after hearing o n notice to the petitioners, the United States trustee, an d other entities as directed by the court, the case may be dism issed or transferred to any other district if th e co urt determines that transfer is in the interest o f justice or for the convenience of the parties.
Fed. R. Bankr. P. 1014(a)(2).

If venue is not proper in a district, upon the filing of a timelymotion to change venue a bankruptcy court is withou t authority to retain the bankruptcy case. McCall , 194 B.R. at 593. See also ICMR, Inc. , 100 B.R. at 54. However, “[i]f a timel y15

motio nto dismiss for improper venue is not filed, the right t o object to venue is waived.” Fed. R. Bankr. P. 1014, Advisor y Commi ttee Note (1987), reprinted inNorton Bankruptcy Rule s Pamphlet 1996-1997 Edition, p.50. “What constitutes a timel y filing of such a motion is not governed by a statutory or rul e definition.” McCall , 194 B.R.16

at 592. Whether a motion to change venue has been timely file d depends on the facts and circumstances presented in the particular
case. See McCall , 194 B.R. at 593.

There is no question that venue is improper in this case
. However, the factual findings of the bankruptcy court support its conclusion that Dan Bryan did not timely file the motion to change
venue. The findings of fact are not clearly erroneous. Th e uncontested evidence shows tha t Dan Bryan contacted an attorney at least 20 days prior to the date set for the confirmation hearin g and the date set for filing objections to confirmation. Th e attorney contacted the Lands’ attorney on April 16, 1997, re garding the Lands’ bankruptcy filing. Dan Bryan became aware of the Lands’ bankruptcy about the same time the notice from the clerk’s office
was d elivered to creditors. Dan Bryan had actual notice of th e Lands’ bankruptcy filing and began to act on that information b y con tacting an attorney who then contacted the Lands’ attorney 2 1 day s before the confirmation hearing. Although he had actua l notice of the Lands’ bankruptc y filing and plenty of time in which to act, Dan Bryan failed to file the motion to change venue an d failed to file objections to c onfirmation of the Lands’ Chapter 13 plan p rior to the confirmation hearing. After confirmation Da n Bryansought to undo all that had been done by filing his tard y motion to change venue and subsequently filing a motion to vacate the order of confirmation in which he likewise tardily raise d objections to confirmation of the plan. The evidence shows tha t Dan B ryan failed to timely file the motion to change venue, an d that D an Bryan untimely filed objections to confirmation of th e Lands’ Chapter 13 plan.
Whether Sharon Bryan timely filed the motion to change venue and timely raised objections to confirmation in the motion to set17

aside the confirmation order depends upon whether notice of th e bankruptcy filing may be imputed to her.

II. Whether notice of the Lands’ bankruptcy filing may be imputed to Sharon Bryan.
Sharon Bryan did not testify at the hearing on the motion to change venue and motion to set aside the confirmation order, an d Dan Bryan did not testify that he told his wife about the Lands’18

bankruptcy filing. Although the bankruptcy court imputed no tice of the Lands’ bankruptcy filing to Sharon Bryan based upon Dan Bryan’s actual notice, we determine that the bankruptcy court’s ruli ng must be affirmed because notice or knowledge of the Lands’ bankruptc y fi ling clearly is imputable to Sharon Bryan as a matter of la w based upon the attorney-client/agent-principal relationship wit h her attorney, Eric W. Lam.

The bankruptcy court found that the attorney whom Dan Brya n contac ted prior to April 16, 1997, Eric W. Lam, now represent s all three Bryan parties; that Sharon Bryan has retained the sam e attorney as Dan Bryan to represent her in relation to the Lands ’ bank ruptcy; that the attorney received notice of the Lands ’ bankru ptcyfrom Dan Bryan at least 20 days prior to the date se t for the hearing on confirmatio n; and that Sharon Bryan was a party to t he motion to change venue that was filed late on the date o f the confirmation hearing. Although the bankruptcy court did no t impute notice of the Lands’ bankruptcy filing to Sharon Brya n based upon her attorney-client relationship with Lam, the factua l findings of the bankruptcy co urt support such a legal conclusion.
Specifically, the bankruptcy court found that Sharon Bryan h ad retained Lam to represent her in relation to the Lands’ bank ruptcy. Anattorney is considered to be an agent for his or her client
. See Cheriogotis , 188 B.R. at 9 99; Dillon v. City of Davenport , 366 N.W.2d 918, 923 (Iowa 1985). The attorney-agent’s knowledge i s imputable to the client-principal. See In re Felberman , 196 B.R. 678, 684-85 (Bankr. S.D.N.Y. 1995). Further:
The rule in Iowa is that knowledge acquired by an agent before the commencement of the relationship of principal and agent is imputable to the principal if the knowledge is present in the mind of the agent while acting for the princi pal in a transaction to which the information i s19

material.

Curr anHydraulic Corp. v. National-Ben Franklin Ins. Co. O f Illinois , 261 N.W.2d 822, 826 (Iowa 1978). “‘Except for knowledge acquir ed confidentially, the time, place, or manner in whic h knowledge is acquired by a ser vant or other agent is immaterial in determ ining the liability of his principal because of it.’” Id
. (quoting Restatement (Second) of Agency § 276).20

“The relationship of principal and agent is not dependent up on express agreement between the parties. It may be implied fro m either words or conduct of the parties, depending on th e circumstances of the case.” Wyckoff v. A & J Home Benevolen t Ass’n of Creston, Iowa , 119 N.W.2d 126, 128 (Iowa 1962). In Kurtenbach v. TeKippe , 260 N.W.2d 53, 56 (Iowa 1977), the Supreme Court of Iowa stated that an attorney-client relationship is created when:
(1) a person seeks advice or assistance from an attorney , (2) the advice or assistance sought pertains to matters withinthe attorney’s professional competence, and (3 ) the attorney expressly or impliedly agrees to give o r actually gives the desired advice or assistance.
In this case, an attorney-clie nt/agent-principal relationship was created between Lam and Sharon Bryan upon which notice of the Lands’ bankruptcy may be imputed as a matter of law to Sharo n Bryan. Accordingly, Sharon Br yan failed to timely file the motion to cha nge venue, and failed to timely raise objections t o confirmation of the Lands’ Chapter 13 plan.

CONCLUSION

We determine that it is appropriate to exercise appellat e jurisdiction over both the ban kruptcy court’s denial of the motion to change venue and motion to set aside the confirmation order
. The evidence supports the bankruptcy court’s factual finding that Dan B ryan failed to timely file the motion to change venue, an d failed to timely file objections to confirmation of the Lands ’ Chapter 13 plan. Notice or knowledge of the Lands’ bankruptc y fi ling clearly is imputable to Sharon Bryan as a matter of la w based upon the attorney-client/agent-principal relationship wit h Lam. As a result, Sharon Bryan likewise failed to timely f ile the motion to change venue and fai led to timely object to confirmation21

of the L ands’ Chapter 13 plan. Accordingly, the decision of th e bankruptcy court is affirmed.22

SCHERMER, Bankruptcy Judge, dissenting.

I respectfully dissent. Because there is no final order o f the bankruptcy court, we lack jurisdiction to address the me rits of this appeal.

This c ourt must first decide whether the bankruptcy court’ s order is final for purposes of 28 U.S.C. § 158(a). This circui t has “traditionally considered three factors in determining when an order in a bankruptcy case is final: the extent to which (1) th e order leaves the bankruptcy court nothing to do but execute th e order; (2) the extent to which delay in obtaining review woul d preven t the aggrieved party from obtaining effective relief: (3 ) the exte nt to which a later reversal on that issue would requir e recommencement of the entire proceeding.” In re Koch , 109 F.3 d 1285, 1287 (8th Cir. 1997). As the majority noted, the order o f the bankruptcy court denying a change of venue is interlocutory
. Onlythe third factor weighs in favor of appealability in thi s case. Although our circuit has not yet determined whether an order denying a change of venue is an appealable order, other circuit s have held it is not. See Blankenship v. Am. Sav. & Loan Assoc. , 871 F.2d 1087, No. 89-5075, 1989 WL 27812 (6th Cir. (Ky.) Ma rch 24, 1989) (stating this court has no jurisdiction over an interl ocutory appeal from an order denying leave to appeal or, from order s tr ansferring venue (citations omitted); Dalton v. United States , 733 F .2d 710, 714 (10th Cir. 1984) (holding it is “[a]lso well

establis hed . . . that an order transferring venue of an action , evenif the transfer is to a district in another circuit, is a n interlocutory order and unappealable, except by certificatio n under 28 U.S.C. § 1292(b)”). Section 1292(b) allows for immediate appeal23

whenan order of the district court “involves a controllin g question of law as to which there is substantial ground fo r difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate determination of th e litigation.” 28 U.S.C. § 1292(b).

Aut horityfor the majority opinion is based upon Collier o n Bankrupt cy¶ 3.02 [4][f] (L. King 15th ed. 1988). This treatis e suggests that courts should be more lenient granting interlocutory appeals than the standard followed under § 1292(b) when a request for change of venue has been24

made. Venue decisions are usually fact specific to the case a t hand. “Thus they are generall y not ‘controlling questions of law’
as th at term is used in § 1292(b), but rather are discretionar y determinations. Such discretionary orders are not of the ty pe from which interlocutory appeals ar e generally taken.” K-Mart Corp. v. Swann Ltd. Partnership , 128 B. R. 138, 140 (D. Md. 1991) (citations omitted).
A true copy.

Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR TH E EIGHTH CIRCUIT