The Honorable Timothy J. Mahoney, Chief Judge, United States Bankruptcy Court for 1

the District of Nebraska. 

United States Bankruptcy Appellate Panel 

FOR THE EIGHTH CIRCUIT

 

No. 97-6073 NE

 

In re: *

*

William M. Barger and Randee L. Barger *

*

Debtors. *

*

William M. Barger and Randee L. Barger * Appeal from

the United States

* Bankruptcy Court for the 

Appellants * District of

Nebraska

*

v. *

*

Hayes County Non-Stock Co-op, *

*

Appellee. *

 

Submitted: February 12, 1998 

Filed: April 3, 1998

 

Before WILLIAM A. HILL, SCHERMER and SCOTT, Bankruptcy Judges

SCHERMER, Bankruptcy Judge:

William and Randee Barger, Chapter 12 Debtors, filed a

Motion to Alter or Amend Judgment, seeking reconsideration of

the bankruptcy court’s order denying confirmation of Debtors’ 1
2

First Amended Chapter 12 Plan. The bankruptcy court denied

Debtors’ Motion
3

to Alter or Amend. Debtors then filed a Motion to Vacate the

order denying their Motion to Alter or Amend. From the

bankruptcy court’s denial of the Motion to Vacate, Debtors

filed this appeal. On appeal, Debtors seek review of not only

the order denying Debtors’ Motion to Vacate, but also the

substance underlying the order denying confirmation of their

Chapter 12 plan. 

Because we hold that Debtors’ Motion to Vacate did not

toll the time for appeal of the underlying order denying

confirmation, the only issue on appeal is whether the

bankruptcy court abused its discretion in denying Debtors’

Motion to Alter and Debtors’ Motion to Vacate. With respect

to the trial court’s denial of both of these motions, we hold

that the trial court did not abuse its discretion. Thus, we

affirm the decisions of the bankruptcy court. 

I. FACTUAL AND PROCEDURAL HISTORY 

Debtors operate a farm in Hitchcock County, Nebraska and

sought relief under Chapter 12 of Title 11 of the United States

Bankruptcy Code on October 23, 1995. Debtors became indebted

to the appellee, Hayes County Non-Stock Co-op (“the Co-op”) on

an open account for services performed or farm related goods

sold prior to the filing. To secure these obligations, Debtors

granted the Co-op a security interest in certain farm products

and crops, including specifically the Debtors’ 1994 corn and

pinto bean crop grown on property in Hitchcock County.

Over the next two years, Debtors filed four Chapter 12

plans in which they treated the Co-op as holding either an

unsecured or minimally secured claim. In each instance, the

Co-op filed objections to the modified and amended plans,

disputing treatment of the Co-op’s claim on the basis that

Debtors allegedly sold their 1994 corn and pinto bean crop out-
4

of-state, without recognizing the Co-op’s security interest in

the crop proceeds.
 The sequence and descriptions of reorganization plans is somewhat confusing. 2

Debtors’ first plan, in this case, was filed on November 8, 1995 and denominated Debtors’

Reorganization Plan. Debtors amended this plan by their First Modification to Chapter 12

Reorganization Plan on March 15, 1996, and by a Second Modification to Chapter 12

Reorganization Plan on August 15, 1996. On March 17, 1997, Debtors filed their fourth plan,

which is the one at issue in the motions on appeal. That plan was denominated the First Amended

Chapter 12 Reorganization Plan. 

 These Debtors are not strangers to Judge Mahoney nor the bankruptcy court in 3

Nebraska. Debtors have been under the protections of Title 11 almost continuously since May,

1986 when they filed their first reorganization under Chapter 11. After a finding in April 1990,

that their Chapter 11 plan was not feasible, the court dismissed the Chapter 11 case. One month

later, Debtors filed a Chapter 12 petition. Five years after operating under the protections of

Chapter 12, and after incurring post-petition deficits, the Debtors moved for dismissal of their

Chapter 12 case. One month after that dismissal, Debtors filed this Chapter 12 petition.

5

On March 17, 1997, Debtors filed their fourth

reorganization plan, denominated as the Debtors’ First Amended

Chapter 12 Reorganization Plan (the “Plan”). \ The Co-op

2

again objected to confirmation, asserting that the Debtors’

history in two prior reorganization cases, together with the 3

Debtors’ alleged conversion of the proceeds of the Co-op’s 1994

crop, demonstrated that the Plan was neither feasible nor

proposed in good faith. On April 16, 1997, the court held a

hearing on confirmation of the Plan and took the matter under

advisement. On June 5, 1997, the court entered an order (dated

June 4, 1997) denying confirmation. It is from denial of

confirmation of this Plan and from denial of subsequent motions

to reconsider this order that Debtors appeal. 

In its order of June 4, 1997, the court found that Mr.

Barger converted the Co-op’s collateral and that the Plan

treatment afforded the Co-op’s claim was not made in good

faith. The Plan proposed to treat the Co-op’s claim as

follows: first, Debtors proposed to set off any balance found

due the Co-op against any judgment Debtors obtained against the

Co-op in an adversary proceeding which Debtors filed seeking
6

damages for negligent application of herbicide. If, after set

off, the Co-op’s claim exceeded $5,000.00, Debtors proposed to

satisfy the Co-op’s claim by paying $5,000.00 with 8.25%

interest, payable in three equal monthly installments. If the

claim proved to be less than $5,000.00, Debtors proposed to pay

the full amount of the claim with interest over such time

period. The court found this
7

treatment lacked good faith because, as the court explained in

its June 4, 1997, order, “[r]ather than attempting to make

amends [for conversion of collateral], [the Debtors] now

propose to pay at most a mere 1/7th of the claim of this once

fully secured creditor, and . . . only if [the Debtors] are not

entirely successful in [their] lawsuit against the Co-op.”

In addition, based upon the Debtors’ projected cash flow, the

court found that if the Debtors were ultimately unsuccessful

in their lawsuit against the Co-op and had to classify and pay

the Co-op’s claim as if it were fully secured, the Plan’s

feasibility would be in question. 

Debtors’ First Motion to Reconsider - Motion to Alter or Amend

Judgment

On June 12, 1997, and within ten days of the June 4, 1997,

order denying confirmation, Debtors filed a Motion to Alter or

Amend Judgment (“Motion to Alter”) to obtain reconsideration

of the order denying confirmation. As the basis for

reconsideration, Debtors brought to the court’s attention the

fact that between the confirmation hearing and the confirmation

order, the court disallowed the Co-op’s claim in its entirety.

Thus, Debtors argued that the Co-op had no claim which could

provide grounds for objection to confirmation. As further

grounds for reconsideration, (although inconsistent with the

position that the Co-op did not have a valid claim against the

estate), the Debtors asserted that the Co-op held a “last lien

position on the 1994 corn and beans” and that the Plan’s

proposal to pay the Co-op $5,000.00 was more than the creditor

would have received outside of bankruptcy or as an unsecured

creditor. Thus, Debtors asserted the Plan was proposed in good

faith.

In an order dated July 1, 1997, the Court denied Debtors’

Motion to Alter. In that July 1, 1997, order, the court
8

rejected Debtors’ assertion that the court erred in considering

the Co-op’s claim at confirmation, remarking that the court

tried the secured status of the Co-op’s claim at the

confirmation hearing, and at no time during trial, did the

Debtors make known to the court that they had objected to the

claim nor that the court had previously
 Procedurally, we observe that the Co-op filed its proof of claim very early in this case 4

(December 4, 1995), and that Debtors filed their claim objection on March 5, 1997, just before

filing their fourth proposed plan. The Notice of Objection Deadline provided that responses to the

objection were due on March 31, 1997, and that if no objections or resistence were filed, the

court would consider entering an order sustaining the objection. The Co-op did not file a written

response to the objection, and thus, while the parties litigated confirmation, Debtors tendered a

proposed order, which, when entered on April 30, 1997, sustained Debtors’ objection and

disallowed the claim. Although at the time of the confirmation hearing on April 16, 1997, the

court had not yet, in fact, entered the order sustaining the claim objection and despite the

statement of the sequence of events in the order denying Debtors’ Motion to Alter, it is apparent

that the court found Debtors’ challenge to the validity of the Co-op’s claim in the Motion to Alter

to be inappropriate since the court believed the parties had just litigated the claim at confirmation. 

9

entered an order sustaining an objection to the Co-op’s claim

for failure of the Co-op to respond. 

4

Additionally, in its order denying the Motion to Alter,

the court stated that it could reconsider any prior order

disallowing the Co-op’s claim and did so in the July 1, 1997,

order because the parties had actually litigated the claim

during the confirmation process. Lastly, the court held that

Debtors’ Motion to Alter or Amend (and the Affidavit in

support) presented no new evidence to cause the court to

reconsider its prior conclusion that Debtors’ Plan lacked good

faith. 

Debtors’ Second Motion to Reconsider - Motion to Vacate

On July 9, 1997, and within ten days of the July 1, 1997,

order denying the Motion to Alter, Debtors filed a Motion to

Vacate Order, requesting that the court set aside its order of

July 1, 1997, and conduct a hearing on the Motion to Alter.

In support of their Motion to Vacate, Debtors asserted the

following points as error: 

(1) that the court improperly reinstated the Co-op’s

previously disallowed claim by taking such action on its own
10

initiative and without notice and opportunity for hearing in

violation of Bankruptcy Rule 3008; 

(2) that the court incorrectly concluded that the Debtors

concealed the existence of the claim objection and the order

sustaining the objection; and
11

(3) that the court improperly concluded that the Debtors

and the Co-op litigated the secured status of the Co-op’s claim

during the trial on good faith issues and plan feasibility at

the confirmation hearing.

In a one line order, entered August 13, 1997, the court

overruled the Debtors’ Motion to Vacate. Debtors filed their

Notice of Appeal on August 21, 1997, and stated that they were

appealing “from the Order to Vacate Order overruling the

debtors’ Motion to Alter or Amend.” In their briefs and at

argument, however, Debtors are seeking to have this court

review the merits of the June 4, 1997, order denying

confirmation.

II. ISSUE ON APPEAL

The issue in this appeal is procedural, and raises the

question whether Debtors’ Motion to Vacate effectively stayed

the period for appeal of the order denying confirmation so that

the court should consider the merits of the June 4, 1997,

order, or whether the Motion to Vacate preserved for appeal

only the question of the appropriateness of denial of the

Motion to Alter. This case illustrates that a motion to

vacate, whether treated as a Rule 60(b) or a Rule 59(e) motion,

even though filed within ten days of an order denying a prior

motion to alter or amend, preserves for appeal, at most, only

the orders denying the motions to alter or vacate. It does not

preserve for review the merits of the underlying order which

was challenged in the first motion. 

III. STANDARD OF REVIEW 

On appeal, we review the bankruptcy court’s findings of

fact for clear error and its conclusions of law de novo. Fed.

R. Bankr. P. 8013; In re Usery, 123 F.3d 1089, 1093 (8th Cir.
12

1997); O’Neal v. Southwest Mo. Bank (In re Broadview Lumber

Co.), 118 F.3d 1246, 1250 (8th Cir. 1997) (citing First Nat’l

Bank v. Pontow, 111 F.3d 604, 609 (8th Cir.1997)). “A finding

is ‘clearly erroneous’ when although there is evidence to

support it, the reviewing court, on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed.” Anderson v. City of Bessemer City, 470 U.S. 564,

573 (1985) (quoting United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948)). We review the
13

bankruptcy court’s grant or denial of a Rule 59(e) motion to

alter or amend a judgment for abuse of discretion. Perkins v.

U S West Communications, No. 97-2959, 1998 WL 91424 at *3 (8th

Cir. Mar. 5, 1998). See Twin City Const. v. Turtle Mountain

Band of Chippewa Indians, 911 F.2d 137, 139 (8th Cir.1990).

Similarly, Rule 60(b) motions are within the discretion of the

trial court, and we will reverse the denial of a Rule 60(b)

motion only when the court has clearly abused its discretion.

Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir.

1990); Baxter Int’l Inc. v. Morris, 11 F.3d 90, 92 (8th Cir.

1993). An abuse of discretion will only be found if the lower

court's judgment was based on clearly erroneous factual

findings or erroneous legal conclusions. Mathenia v. Delo, 99

F.3d 1476, 1480 (8th Cir.1996), cert. denied, 477 U.S. 909

(1997). 

IV. DISCUSSION

Bankruptcy Rule 8002(a) of the Federal Rules of Bankruptcy

Procedure requires that a notice of appeal must be filed within

ten days of entry of the judgment, order or decree appealed

from. Bankruptcy Rule 8002(b), however, provides that certain

motions, if timely filed, will toll the time for appeal so that

the time for appeal will begin running from the entry of an

order disposing of such motions. Specifically, Rule 8002(b)

provides that the timely filing of one of the following motions

will toll the time for appeal: (1) a motion to amend or make

additional findings of fact under Rule 7052, whether or not

granting the motion would alter the judgment; (2) a motion to

alter or amend the judgment under Rule 9023; (3) a motion for

a new trial under Rule 9023; and (4) a motion for relief from

the operation of a judgment or order under Rule 9024 if the

motion is filed no later than ten days after the entry of

judgment. Bankruptcy Rule 7052 incorporates Rule 52 of the

Federal Rules of Civil Procedure and permits the court to amend
14

its findings of fact on motion of a party in interest made

within ten days of entry of an order. Bankruptcy Rule 9023

incorporates Rule 59 of the Federal Rules of Civil Procedure

which permits new trials either on motion of a party made

within ten days of entry of a judgment, see Fed. R. Civ. P.

59(a), or on the court’s initiative within such ten day period,

see Fed. R. Civ. P. 59(d). Additionally, and perhaps most

frequently employed, Rule 59(e) permits the court to entertain

motions to alter or amend a judgment if made within ten days

of entry of the judgment.
15

Bankruptcy Rule 9024, adopts Rule 60 from the Federal

Rules of Civil Procedure. Rule 60(b), which is relevant to

this appeal, authorizes the court to grant relief because of:

(1) mistake, inadvertence, surprise or excusable neglect; (2)

newly discovered evidence which by due diligence could not have

been discovered in time to move for a new trial under Rule

59(b); (3) fraud, misrepresentation or misconduct of an adverse

party; (4) entry of a void judgment; (5) release, satisfaction

or discharge of the judgment; or (6) any other reason

justifying relief from the judgment. A Rule 60(b) motion must

be made within a reasonable time and does not affect the

finality of the judgment or suspend its operation. See Fed.

R. Civ. P. 60(b); see also Assoc. for Retarded Citizens v.

Sinner, 942 F.2d 1235, 1239 (8th Cir. 1991) (“Although the

filing of a Rule 60 (b) motion for relief from a final order

does not extend a party’s time to appeal the underlying order,

the denial of Rule 60(b) relief is appealable.”).

We first address the Motion to Vacate. Because Debtors

neglected to identify under which rule they were proceeding in

their Motion to Vacate, they left “the characterization of the

motion to the court’s somewhat unenlightened guess.” Sanders

v. Clemco Indus., 862 F.2d 161, 168 (8th Cir. 1988). When a

moving party fails to specify the rule under which it makes a

post-judgment motion, the characterization is left to the court

with the risk that the moving party may lose the opportunity

to present the merits underlying the motion to an appellate

court. Sanders, 862 F.2d at 168 (8th Cir. 1988). Typically,

such motions have been characterized as motions under either

Fed. R. Civ. P. 59 or 60, with the precise categorization

depending to some extent on the substance of the motion.

Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th

Cir. 1986). In other instances, courts have considered “‘any

motion that draws into question the correctness of the judgment

[as] functionally a motion under Rule 59(e), whatever its
16

label.’” Norman v. Arkansas Dept. of Educ., 79 F.3d 748, 750

(8th Cir. 1996) (quoting 9 J. Moore, Moore’s Federal Practice

¶ 204.12[1] at 4-82 (2d ed. 1995)) cited in Quartana v.

Utterback, 789 F.2d 1297, 1300 (8th Cir. 1986). Courts have

generally viewed any motion which seeks a substantive change

in a judgment as a Rule 59(e) motion if it is made within ten

days of the entry of the judgment challenged. Omaha Indian

Tribe v. Tract I--Blackbird Bend Area, 933 F.2d 1462, 1467 n.3

(8th Cir. 1991) (citing 6A J. Moore, Moore’s Federal Practice

¶ 59.12[1] (2d ed. 1989)).
17

Conversely, if a motion is filed more than ten days after the

judgment, it is treated as a Rule 60(b) motion. See Baxter

Int’l. Inc. v. Morris, 11 F.3d 90, 92 (8th Cir. 1993) (holding

that motion denominated as “Motion to Reconsider” would be

treated as Rule 60(b) motion where it was filed more than 10

days after entry of the judgment).

In this case, it does not matter whether we consider the

Debtors’ Motion to Vacate under Rule 59(e) or Rule 60(b) for

purposes of reviewing the denial of confirmation because, under

either construction, the motion does not preserve jurisdiction

for our review of that order. Because the parties have treated

the motion as directed to both the Motion to Alter and the

order denying confirmation, we will consider the motion as it

applies to both of these orders. As directed to the Motion to

Alter, our characterization of the motion under Rule 59(e) or

Rule 60(b) affects whether we review only the propriety of

denial of the Motion to Vacate or whether we also review the

court’s denial of the Motion to Alter. 

First, we consider the Motion to Vacate as directed to the

order denying confirmation. If we consider the motion to be

a Rule 59(e) motion challenging the confirmation order, the

motion was filed more than ten days after entry of the

confirmation order and thus, was untimely. 

As a Rule 60(b) motion directed to setting aside the

confirmation order, the Motion to Vacate did not stay or toll

the finality of that order denying confirmation, and thus, this

appeal, if deemed from the order denying confirmation, is

untimely. Sanders, 862 F.2d at 169 (8th Cir. 1988).

Moreover, as an appeal from denial of a Rule 60(b) motion, this

appeal does raise the underlying judgment for review. An

appeal from denial of a Rule 60(b) motion only presents the

appellate court with the question of whether the trial court
18

abused its discretion in ruling on the motion. Sanders, 862

F.2d at 169; Browder v. Dir. Dep’t of Corrections, 434 U.S.

257, 263 n.7 (1978). Thus, by construing the Motion to Vacate

as a Rule 60(b) motion directed to the confirmation order, we

do not squarely consider the merits of that underlying order.

We only ask whether the court abused its discretion in denying

the Motion to Vacate. Brooks v. Ferguson-Florissant Sch.

Dist., 113 F.3d 903, 904 (8th Cir. 1997). In deciding whether

the court abused its discretion in denying the Motion to

Vacate, we are guided by the principle that Rule 60(b) relief

provides “extraordinary relief” which
19

should be granted only upon an adequate showing of exceptional

circumstances. Baxter Int’l. Inc. v. Morris, 11 F.3d at 92

(8th Cir. 1993). See Rosebud Sioux Tribe v. A & P Steel, Inc.,

733 F.2d 509, 515 (8th Cir.) (motions under Rule 60(b) are

viewed with disfavor), cert. denied, 469 U.S. 1072 (1984).

Because the Debtors presented no new evidence or new legal

arguments in their Motion to Vacate, but instead, reiterated

the substance of their objections asserted in the Motion to

Alter, we find that the court did not abuse its discretion in

denying the Motion to Vacate. Where a motion to vacate raises

only issues of law that previously were rejected by the trial

court, the court cannot be said to have abused its discretion

in subsequently denying relief on the motion. Sanders, 862

F.2d at 170 (8th Cir. 1988) (citing Fox v. Brewer, 620 F.2d

177, 180 (8th Cir. 1980) (the failure to present reasons not

previously considered by the court “alone is a controlling

factor against granting relief”)).

Debtors asserted at oral argument that their Motion to

Vacate did raise a new legal argument in that the Motion to

Vacate, for the first time, included a challenge to the Court’s

sua sponte reconsideration and allowance of the Co-op’s claim.

In the Motion to Vacate, Debtors asserted that the court

improperly reconsidered and allowed the Co-op’s claim as part

of its order denying the Motion to Alter and that such

reconsideration required hearing and notice under Bankruptcy

Rule 3008. 

The Debtors’ legal conclusion concerning the exclusive

procedure for reconsideration of claims in this instance, and

the assertion that the Motion to Vacate raised, for the first

time, the propriety of reconsidering the Co-op’s claim are

incorrect. Debtors’ Motion to Alter raised these questions,

and, in fact, asked the court to disregard the Co-op’s claim

which, at the time of hearing on confirmation, was an allowed
20

claim. When ruling on the Motion to Alter, the court soundly

rejected the assertion that the claim should neither be reinstated nor considered for confirmation because the court

found that the parties had actually tried the validity of the

claim at confirmation. 

Additionally, in the Motion to Alter, the court correctly

concluded that bankruptcy rules authorize the court to

reconsider the allowance or disallowance of a claim. While not

reciting the rule relied upon, it is clear that under

Bankruptcy Rule 9024 and Rule 60(a) the court may reconsider

its own orders, and any errors therein, arising from oversight

or
21

omission. Here, it is apparent that the bankruptcy court

believed its order disallowing the Co-op’s claim was entered

in error because the parties actually litigated the validity

of the claim at confirmation. Conversely, the claim objection

was sustained, not after determination on the merits, but only

because the Co-op failed to respond. Thus, we do not find that

the bankruptcy court abused its discretion in denying the

Motion to Vacate.

Next, we consider the Motion to Vacate as if directed to

the order denying the Motion to Alter. If we characterize the

motion as a Rule 60(b) motion, we again may only ask whether

the bankruptcy court based its denial of the Motion to Vacate

on clearly erroneous factual findings or erroneous legal

conclusions. Because, as stated above, the Motion to Vacate

did not raise new factual matters or legal arguments, as a Rule

60(b) motion, we again hold that the court did not abuse its

discretion in refusing to vacate its order denying Debtors’

Motion to Alter. 

Alternatively, because Debtors’ Motion to Vacate was filed

within 10 days of the entry of the court’s order denying the

Motion to Alter, we may consider the Motion to Vacate as a Rule

59(e) motion. An appeal from an order denying a Rule 59(e)

motion brings up for review all non-moot orders rendered by the

trial court. Kunik v. Racine, 106 F.3d 168,173 (7th Cir.

1997); see In re Grabill Corp., 983 F.2d 773, 775 (7th Cir.

1993). Cf. Sanders, 862 F.2d at 169 (appeal from denial of

motion under Rule 60(b) does not raise the underlying judgment

for review). The Supreme Court explained the effect of Rule

59 and Rule 60 post-judgment motions on appeals in Stone v.

INS, 514 U.S. 386, 402-03 (1995), stating:

The majority of post-trial motions, such as Rule 59,

render the underlying judgment nonfinal both when

filed before an appeal is taken (thus tolling the
22

time for taking an appeal), and when filed after the

notice of appeal (thus divesting the appellate court

of jurisdiction). Other motions, such as Rule 60(b)

motions filed more than 10 days after judgment, do

not affect the finality of a district court's

judgment, either when filed before the appeal (no

tolling), or afterwards (appellate court jurisdiction

not divested). Motions that do toll the time for

taking appeal give rise to only one appeal in which

all matters are reviewed; motions that do not toll

the time for taking an appeal give rise to two

separate appellate proceedings that can be

consolidated.
23

quoted in Kunik v. Racine, 106 F.3d at 172 (7th Cir. 1997)

(emphasis added). 

By treating Debtors’ Motion to Vacate as a Rule 59(e)

motion, appeal from its denial raises the merits of the court’s

denial of Debtors’ prior Motion to Alter. Because we review

the denial of the both 59(e) and Rule 60(b) motions under the

abuse of discretion standard, Perkins v. U. S. West

Communications, No. 97-2959, 1998 WL 91424 at *3 (8th Cir. Mar.

5, 1998), we again find nothing to suggest that the court erred

in denying the Motion to Vacate or the Motion to Alter. With

respect to the Motion to Alter, the Court’s order of July

1,1997, indicates that the court carefully addressed each of

the asserted points of error raised by Debtors. Only after

reviewing the points raised by Debtors in light of its

familiarity with the proceedings, the testimony at trial, and

the court’s impression of the credibility of the witness, did

the bankruptcy court deny the Motion to Alter. There is

nothing in the record, particularly without review of the

transcript of the hearing on confirmation, to convince this

court that the bankruptcy court abused its discretion in

denying Debtors’ Motion to Alter. 

By treating the Motion to Vacate as a Rule 59(e) motion,

we reject the Co-op’s assertion that this court does not have

jurisdiction to consider the merits of any order other than the

Motion to Vacate. The Co-op made this argument because the

notice of appeal identified only the Motion to Vacate as the

order from which appeal was taken. As a Rule 59(e) motion,

appeal from the Motion to Vacate properly raised the merits of

denial of the Motion to Alter. Moreover, both parties

addressed the merits of the Motion to Alter in their briefs,

and we hold that allowing consideration of the Motion to Alter

is consistent with the more lenient approach to appeals

required by the Supreme Court in Forman v. Davis, 371 U.S. 178,
24

181 (1962) where the Court allowed an appeal of a dismissal

order even though the notice of appeal identified the order

denying a Rule 59(e) motion as the order from which appeal was

taken. The Court explained: “It is too late in the day and

entirely contrary to the spirit of the Federal Rules of Civil

Procedure for decisions on the merits to be avoided on the

basis of such mere technicalities.” Id. at 181. 

Despite this standard, however we reiterate that we cannot

reach the merits of denial of confirmation. Had Debtors timely

appealed from denial of their Motion to Alter rather than

substituting the Motion to Vacate for an appeal, the underlying

issue of confirmation
25

could have been preserved for this court. See Sanders, 862

F.2d at 169 (stating “district court was not required to grant

relief under Rule 60(b) as a substitute for . . . exercising

[the] right to appeal the alleged error”). Debtors either

mistakenly believed their Motion to Vacate would toll the time

for appeal of the adverse decision at confirmation, or they

attempted to substitute their Motion to Vacate for an immediate

appeal. In either case, the use of multiple motions to

reconsider caused Debtors to lose their right for appellate

review on the merits of the order denying confirmation. 

For the forgoing reasons, the decisions of the bankruptcy

court in denying Debtors’ Motion to Vacate and Motion to Alter

are affirmed. 

A true copy.

Attest:

CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE

EIGHTH CIRCUIT