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FILED

FEB 05 2015

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. HI-13-1459-KuJuKi

)

GUY R. EUGENIO and LYNN L. ) Bk. No. 13-00833

MAINAAUPO-EUGENIO, )

) Adv. No. 13-90020

Debtors. )

______________________________)

)

GUY R. EUGENIO; LYNN L. )

MAINAAUPO-EUGENIO, )

)

Appellants, )

)

v. ) MEMORANDUM*

)

CONTINENTAL PACIFIC, LLC, )

)

Appellee. )

______________________________)

Argued and Submitted on January 22, 2015

at Pasadena, California

Filed – February 5, 2015

Appeal from the United States Bankruptcy Court

for the District of Hawaii

Honorable Robert J. Faris, Chief Bankruptcy Judge, Presiding

 

Appearances: Anthony Paul Locricchio argued for appellants Guy

R. Eugenio and Lynn L. Mainaaupo-Eugenio; Jesse W.

Schiel of Kobayashi Sugita & Goda argued for

appellee Continental Pacific, LLC.

 

Before: KURTZ, JURY and KIRSCHER, Bankruptcy Judges.

*This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8024-1.
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INTRODUCTION

Continental Pacific, LLC commenced a state court action

against the Eugenios seeking summary possession of the real

property on which the Eugenios resided. After the state court

denied Continental Pacific’s summary judgment motion and set the

matter for trial, the Eugenios filed their chapter 131 bankruptcy

petition. Continental Pacific then removed the state court

action to the bankruptcy court and filed a new summary judgment

motion. The bankruptcy court granted the summary judgment motion

and also denied the Eugenios’ motion to set aside that judgment. 

The Eugenios did not timely appeal either of these rulings.

The Eugenios thereafter filed a reconsideration motion in

which they argued that Continental Pacific’s removal of the state

court action was improper, that the bankruptcy court lacked

subject matter jurisdiction, and that the state court’s prior

denial of Continental Pacific’s summary judgment motion precluded

the bankruptcy court from granting summary judgment. The

bankruptcy court denied the reconsideration motion, and the

Eugenios appealed.

Because each of the arguments the Eugenios made in their

reconsideration motion lack merit, we AFFIRM.

FACTS

The Eugenios leased a parcel of land from Continental

Pacific under a written month-to-month lease agreement. In

1Unless specified otherwise, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

all "Rule" references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037.

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September 2012, Continental Pacific notified the Eugenios in

writing that it was terminating the lease 120 days from the date

of that notice. Continental Pacific offered several different

justifications for the termination of the lease. In one notice

sent in February 2012, Continental Pacific stated that it needed

to terminate the lease in furtherance of its redevelopment plans,

which contemplated the conversion of the subject real property

pursuant to Hawaii’s condominium property regime, Haw. Rev.

Stats. § 514B-1, et seq. At other times, Continental Pacific

said that it was terminating the lease because: (1) the Eugenios

were delinquent in paying their monthly rent; and (2) the

Eugenios denied Continental Pacific’s contractors access to the

real property for the purpose of making improvements.

When the Eugenios did not move out by the termination date,

Continental Pacific filed a complaint for summary possession of

the property in the district court for the State of Hawaii. 

Continental Pacific then filed a motion for summary judgment,

which the state court ultimately denied, but the court shortly

thereafter set the matter for trial. On May 20, 2013, a few days

before the scheduled trial date, the Eugenios filed their

chapter 13 bankruptcy petition, and the automatic stay prevented

the state court from moving forward with the trial. A week

later, Continental Pacific removed the state court litigation to

the bankruptcy court by filing a notice of removal pursuant to

28 U.S.C. 1452(a) and Rule 9027 and then filed a summary judgment

motion. The Eugenios did not initially file any opposition to

the summary judgment motion. Instead, they requested a

continuance of the summary judgment proceedings, which request

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the bankruptcy court denied.

On July 17, 2013, the bankruptcy court issued an order

granting Continental Pacific’s motion for summary judgment and

also issued a judgment for possession of the property. Two days

later, the Eugenios filed a motion to set aside the judgment and

to stay enforcement of the judgment. The court partially granted

that motion. The court temporarily stayed its prior judgment for

possession and, with the consent of both parties, re-opened

briefing on the summary judgment motion to permit the Eugenios a

further opportunity to file a brief and declarations opposing the

motion.

The Eugenios filed their summary judgment opposition and

over a hundred pages of supporting documents and declarations. 

In their opposition, the Eugenios argued that there were genuine

issues of material fact. According to the Eugenios, there were

genuine factual issues concerning whether Continental Pacific was

engaging in a retaliatory eviction and concerning whether

Continental Pacific had “unclean hands,” which the Eugenios

believed would bar Continental Pacific from obtaining any relief

from the bankruptcy court. The Eugenios also argued that

Continental Pacific had no entitlement to evict them unless and

until Continental Pacific satisfied all prerequisites for

converting the subject property in accordance with Hawaii’s

community property regime.

On August 29, 2013, the bankruptcy court entered an order

denying the Eugenios’ motion to set aside. In that order, the

court rejected all of the Eugenios’ arguments, denied them any

further relief on account of their motion to set aside, and

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dissolved the temporary stay of the judgment. The bankruptcy

court’s grant of summary judgment, its denial of the Eugenios’

motion to set aside, and the issues the Eugenios raised in their

summary judgment opposition are all beyond the scope of this

appeal because the Eugenios did not timely file a notice of

appeal either from the order granting summary judgment or from

the order denying the motion to set aside that judgment.

On September 18, 2013, the Eugenios filed a motion for

reconsideration of the court’s order denying their motion to set

aside. The Eugenios asserted that there were grounds for

reconsideration based on Civil Rule 60(b)(3) and (4)

(respectively, providing relief from judgments that are void and

judgments that were obtained by fraud). In essence, the Eugenios

argued in their reconsideration motion that the removal of the

state court lawsuit to the bankruptcy court was improper, that

the bankruptcy court lacked jurisdiction over the matter, and

that the state court’s order denying summary judgment precluded

the bankruptcy court from granting summary judgment.

The bankruptcy court entered an order denying the

reconsideration motion on September 23, 2013. The bankruptcy

court in relevant part reasoned that none of the allegations set

forth in the motion, even if they were found to be true, would

support the conclusion that the judgment was either fraudulently

obtained or void. The bankruptcy court further reasoned that all

of the arguments set forth in the motion either already were

raised, or should have been raised, in the Eugenios’ summary

judgment opposition. That same day, the Eugenios filed their

notice of appeal.

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JURISDICTION

We address the relevant jurisdictional issues in the

discussion section, below.

ISSUES

1. Is this appeal moot?

2. Did the bankruptcy court have subject matter jurisdiction

over Continental Pacific’s removed complaint for summary

possession?

3. Did the state court’s denial of summary judgment preclude

the bankruptcy court from granting summary judgment?

STANDARDS OF REVIEW

We consider jurisdictional issues under the de novo standard

of review. Mantz v. Cal. State Bd. of Equalization

(In re Mantz), 343 F.3d 1207, 1211 (9th Cir. 2003); see also Rev

Op Group v. ML Manager LLC (In re Mortgs. Ltd.), 771 F.3d 1211,

1214 (9th Cir. 2014).

We review the bankruptcy court’s denial of the Eugenios’

reconsideration motion for an abuse of discretion. First Ave. W.

Bldg. LLC v. James (In re OneCast Media, Inc.), 439 F.3d 558, 561

(9th Cir. 2006). The bankruptcy court abused its discretion in

denying the reconsideration motion if its ruling was based on an

erroneous view of the law or a clearly erroneous factual finding. 

United States v. Loew, 593 F.3d 1136, 1139 (9th Cir. 2010).

DISCUSSION

A. Mootness Issue

One of the threshold issues that we must resolve before we

can address the merits of this appeal is whether this appeal is

moot. This issue is jurisdictional and arises from the case or

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controversy requirement of Article III of the Constitution. 

In re Mortgs. Ltd., 771 F.3d at 1214; Motor Vehicle Cas. Co. v.

Thorpe Insulation Co. (In re Thorpe Insulation Co.), 677 F.3d

869, 880 (9th Cir. 2012). We have an independent duty to assure

ourselves that this appeal is not moot even when the parties do

not raise the issue. Pilate v. Burrell (In re Burrell), 415 F.3d

994, 997 (9th Cir. 2005).

An appeal is moot, and does not present a live case or

controversy, when it would be impossible for us to grant any

meaningful relief to the appellants even if they were to prevail. 

In re Mortgages Ltd., 771 F.3d at 1214. Here, the Eugenios have

admitted that they already have been evicted from their residence

and that their residence has been demolished. See Aplt. Opn. Br.

at p. 19 (“It has now since been bulldozed down, despite the fact

improper possession of the home owned by the Eugenios was

obtained through a defective Writ of Possession.”). 

Consequently, even if we were to rule in the Eugenios' favor and

reverse or vacate the summary judgment ruling granting possession

to Continental Pacific, the Eugenios could not be restored to

possession of their residence, as it no longer exists.

It is obvious from the Eugenios' filings in the bankruptcy

court and on appeal that, by opposing Continental Pacific's

summary judgment motion, they sought to continue to live in their

residence. Now that possession of their residence no longer can

be restored to them, resolving this appeal in their favor would

appear to confer upon them little meaningful relief. See

Benavides v. Hous. Auth. of San Antonio, Tex., 238 F.3d 667, 670

(5th Cir. 2001) (holding that action seeking to enjoin demolition

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project was moot where demolition was 55% complete and had

progressed to the point where the plaintiffs' dwellings were no

longer habitable); see also Pres. Pittsburgh v. Conturo, 477 F.

App’x 918, 920 (3d Cir. 2012) (holding that action seeking to

enjoin demolition of Pittsburgh's Civic Arena was rendered moot

by the demolition of the Arena); Interior Reg. Hous. Auth. v.

Vill. of Dot Lake, 303 Fed.Appx. 483 (9th Cir. 2008) (dispute

regarding housing authority's legal right to evict tenants

despite passage of tribal ordinance purporting to prohibit those

evictions was moot because all of the tenants already had moved

out of the subject building, the housing authority had closed

down the building, and there was no legal impediment to the

housing authority demolishing the building if it chose to do so).

The Eugenios suggest that we still might be able to afford

them other meaningful relief, that we could order Continental

Pacific to replace the demolished residence. See Aplt. Opn. Br.

at pp. 31-32. We disagree. The proceedings before the

bankruptcy court were limited to Continental Pacific's complaint

seeking summary possession of the real property. As a result,

the Eugenios’ attempt now to seek affirmative relief is beyond

the scope of this appeal.

Even so, we decline to dismiss this appeal as moot. The

lease the Eugenios entered into with Continental Pacific was in

essence a ground lease. If the Eugenios were to prevail, the

facts currently before us suggest that we could restore

possession of the raw land to the Eugenios pending resolution of

the litigation over the parties' respective rights to possession. 

While this certainly is not the complete relief the Eugenios

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would have preferred, it is sufficient effective relief to

prevent this appeal from being declared moot.2

B. Merits Analysis

The only issues properly within the scope of this appeal are

the Eugenios’ jurisdiction argument and their preclusion

argument. Those were the only two arguments the Eugenios raised

in their reconsideration motion, and the Eugenios’ appeal was

only timely as to the order denying that reconsideration motion. 

We will address each of these arguments in turn. However, before

we do so, we will set forth the standards generally governing

reconsideration motions.

1. General Reconsideration Motion Standards

Depending on the timing of the motion, a motion generically

named as a reconsideration motion may seek relief under either

Civil Rule 59 or Civil Rule 60 (as made applicable in bankruptcy

cases by Rules 9023 and 9024). See United Student Funds, Inc. v.

Wylie (In re Wylie), 349 B.R. 204, 209 (9th Cir. BAP 2006);

Captain Blythers, Inc. v. Thompson (In re Captain Blythers,

Inc.), 311 B.R. 530, 539 (9th Cir. BAP 2004).

When a party files a reconsideration motion within fourteen

days of entry of the judgment or order, the court may treat the 

2At oral argument, counsel for Continental Pacific asserted

that the Eugenios leased their dwelling from Continental Pacific. 

The record does not support Continental Pacific’s assertion. The

lease Continental Pacific presented to the court in support of

its summary judgment motion plainly stated that Continental

Pacific was leasing the land to the Eugenios and specifically

excluded from the lease any improvements built on the land. In

fact, the lease also contained an acknowledgment stating that

Continental Pacific did not own the improvements built on the

land.

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motion as a motion for new trial or to alter or amend the

judgment under Civil Rule 59(e). See Rule 9023; In re Wylie,

349 B.R. at 209. On the other hand, when (as here) the

reconsideration motion is filed more than fourteen days after

entry of the judgment or order, a motion for reconsideration must

be construed as a motion for relief from judgment under Civil

Rule 60(b). See Rule 9024; In re Captain Blythers, Inc.,

311 B.R. at 539; Negrete v. Bleau (In re Negrete), 183 B.R. 195,

197 (9th Cir. BAP 1995).

When a party seeks Civil Rule 60(b) relief after the time

period for filing an appeal has expired, that party may not

revisit the underlying merits of the judgment or otherwise attack

the court’s rulings leading up to that judgment. In re Wylie,

349 B.R. at 209. Consequently, the moving party generally cannot

use his or her 60(b) motion to reargue points already made, or

that could have been made, when the dispute originally was

presented to the bankruptcy court. Branam v. Crowder

(In re Branam), 226 B.R. 45, 55 (9th Cir. BAP 1998); aff'd,

205 F.3d 1350 (table) (9th Cir. 1999).

Consistent with these general principles, the bankruptcy

court here determined that the Eugenios’ reconsideration motion

should be denied because the Eugenios only offered in support of

their motion factual and legal points that they did offer or

could have offered in their response to Continental Pacific’s

summary judgment motion or in their prior motion to set aside the

summary judgment. In any event, each of the arguments the

Eugenios attempted to make in their reconsideration motion was

meritless, as explained below.

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2. Jurisdiction Argument

Citing no legal authority, the Eugenios claimed that

Continental Pacific’s removal of its complaint to the bankruptcy

court was improper and that the bankruptcy court lacked

jurisdiction over the subject matter of the complaint. We

disagree. At the time the Eugenios filed their bankruptcy case,

they had at least a possessory interest in the land they were

leasing, and Continental Pacific’s complaint sought to divest

them of that interest. At a minimum, these undisputed facts were

sufficient to confer upon the bankruptcy court subject matter

jurisdiction under the broad scope of the bankruptcy court’s

“related to” jurisdiction, as set forth in 28 U.S.C. § 1334(b). 

See Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 868–69 (9th

Cir. 2005) (stating that bankruptcy court “related to”

jurisdiction is very broad, “including nearly every matter

directly or indirectly related to the bankruptcy”); Feitz v.

Great W. Sav. (In re Feitz), 852 F.2d 455, 457 (9th Cir. 1988)

(stating that an action is “related to” the debtor’s bankruptcy

case if the action’s disposition “could alter the debtor's

rights, liabilities, options, or freedom of action (either

positively or negatively) and which in any way impacts upon the

handling and administration of the bankrupt estate.”). Thus, the

bankruptcy court had subject matter jurisdiction over Continental

Pacific’s action sufficient to support Continental Pacific’s

removal of that action under 28 U.S.C. § 1452(a).

If the Eugenios truly believed that the removal was

improper, 28 U.S.C. §§ 1334(c) and 1452(b) set forth procedures

that they could have invoked by filing a motion for abstention

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and/or remand. But the Eugenios never filed such a motion or

otherwise requested such relief from the bankruptcy court. We

know of no authority that compelled the bankruptcy court to sua

sponte remand the matter to the state court, nor have the

Eugenios cited us to any such authority.

Under these circumstances, the bankruptcy court correctly

exercised jurisdiction over Continental Pacific’s removed state

court complaint.3

3. Preclusion Argument

Alternately, the Eugenios argued that the state court’s

order denying Continental Pacific’s summary judgment motion

precluded the bankruptcy court from later granting summary

judgment in favor of Continental Pacific. At the outset, we note

that the Eugenios did not specify or cite any authority

indicating whether they were relying upon issue preclusion

doctrine or claim preclusion doctrine. Either way, the Eugenios’

preclusion argument would fail. We acknowledge that, under the

full faith and credit doctrine, the bankruptcy court and this

Panel must give the same preclusive effect to the Hawaii state

court’s rulings that the Hawaii courts themselves would give

them. See Ormsby v. First Am. Title Co. of Nev. (In re Ormsby),

3Per Rule 9027(a)(1), Continental Pacific alleged in its

notice of removal that its complaint constituted a “core”

proceeding governed by 28 U.S.C. § 157(b)(1). The Eugenios never

challenged the alleged “core” nature of the proceeding, nor did

they ever dispute the bankruptcy court’s authority under

28 U.S.C. § 157(b)(1) to render a final decision. As a result,

the Eugenios forfeited these issues. See Exec. Benefits Ins.

Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d

553, 566-70 (9th Cir. 2012), aff'd on other grounds, 134 S.Ct.

2165 (2014).

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591 F.3d 1199, 1205 n.3 (9th Cir. 2010). Nonetheless, Hawaii law

requires a final judgment on the merits for the application of

either claim preclusion or issue preclusion. See E. Sav. Bank,

FSB v. Estaban, 296 P.3d 1062, 1067 (Haw. 2013); Exotics

Hawaii-Kona, Inc. v. E.I. Dupont De Nemours & Co., 90 P.3d 250,

257 (Haw. 2004). Here, the state court’s order denying summary

judgment was not a final judgment on the merits in any sense. 

Continental Pacific’s action unequivocally was still pending in

the state court when Continental Pacific removed it to the

bankruptcy court.

Moreover, even if there were some validity to the Eugenios’

preclusion argument (which there is not), the so-called

preclusive effect of the state court’s order denying summary

judgment would not be sufficient by itself to establish that the

Eugenios were entitled to relief under either Civil Rule 60(b)(3)

or (4), as asserted in their reconsideration motion. In other

words, the so-called preclusive effect of the state court’s order

denying summary judgment would not establish that the bankruptcy

court’s summary judgment was fraudulent or void. See generally

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293

(2005) (stating that the principles of res judicata – claim

preclusion and issue preclusion – are not jurisdictional and must

be pled as an affirmative defense under Civil Rule 8(c)(1));

In re Sasson, 424 F.3d at 872 (same).

CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy

court’s order denying the Eugenios’ reconsideration motion.

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