UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

In re: Trigee Foundation, Inc. 

NANCY DURANT, 

Appellant, 

v. 

JEFFREY M. SHERMAN 

LERCH, EARLY & BREWER, CHTD, 

 Appellees.

Case No. 17-cv-439 (CRC) 

MEMORANDUM OPINION 

Dr. Nancy Durant is a creditor of Trigee Foundation, Inc., the debtor in possession in a 

closed Chapter 11 reorganization proceeding before the United States Bankruptcy Court in this 

district. Dr. Durant appeals three orders by the bankruptcy court in that proceeding. All three 

stem from the court’s decision not to monetarily penalize Trigee’s attorney for failing to disclose 

a conflict of interest. For the reasons that follow, the Court will affirm all three orders. 

I. Background 

In September 2012, Trigee Foundation, Inc., which operates an apartment building in 

Washington, D.C., filed a voluntary petition for reorganization under Chapter 11 of the 

Bankruptcy Code, 11 U.S.C. §§ 101 et seq. App. 263. A few days later, Trigee petitioned the 

bankruptcy court to approve the retention of Jeffrey Sherman, an attorney with Lerch, Early & 

Brewer (“LEB”), to represent it during the proceedings. The bankruptcy court approved the 

petition on October 2, 2012, and Sherman represented Trigee (first as an attorney with LEB and 

later as a solo practitioner) until the bankruptcy court dismissed the case. App. 121. In January 

2014, LEB filed a final compensation application seeking fees for previously billed time. App. 
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253. Trigee did not object to the final application, and on February 4, 2014, the bankruptcy court 

issued an order directing Trigee to pay LEB the approved fees.1 App. 361. 

About two years later, in March 2016, Trigee filed a malpractice claim in D.C. Superior 

Court against LEB and Sherman, which the defendants removed to the bankruptcy court. App. 

742. One of the malpractice allegations was that Sherman had failed to disclose to Trigee that 

prior to joining LEB, he and another LEB attorney had represented a creditor against Trigee. 

App. 353–94. Specifically, Sherman failed to disclose the conflict in a Rule 2014(a) affidavit, 

which requires attorneys seeking employment from a bankruptcy estate to submit a verified 

statement setting forth the attorney’s connections with the debtor, the creditors, and any other 

party in interest. See Fed. R. Bankr. P. 2014(a). The bankruptcy court ultimately ruled that 

Trigee’s malpractice action was barred by the res judicata or collateral estoppel effect of the fee 

order. App. 353. See Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 

485 490–92 (D.C. Cir. 2009) (holding that a bankruptcy court’s approval of a fee application 

operates as a res judicata bar to subsequent malpractice claims as long as the debtor was on 

notice of the alleged malpractice at the time the final fee application was filed). Trigee thus 

moved to vacate the fee order pursuant to Federal Rule of Civil Procedure 60(b). The 

bankruptcy court denied the motion as untimely in October 2016. App. 75. 

Meanwhile, the bankruptcy court issued an order to show cause why it should not impose 

sanctions against Sherman for failing to disclose that he and another LEB attorney had 

previously represented one of Trigee’s creditors. App. 398–99. The bankruptcy court held a 

hearing on the show cause order in December 2016 and, after receiving testimony from Mr. 

 

1

 According to the Appellees, Trigee has not paid LEB or Sherman any fees or expenses 

other than an initial retainer. Appellee Br. at 6. 
3 

Sherman, concluded that “the evidence does not show an intentional, as opposed to a negligent, 

failure” to disclose the conflict and that “vacating the final fee award would be an inappropriate 

sanction.” App. 629. The court instead admonished Sherman to disclose future conflicts and to 

include a list of clients he represented at LEB in his conflict-check software. App. 632. 

In early December 2016, Dr. Nancy Durant, a creditor in the Trigee bankruptcy 

proceeding and relative of Trigee’s principals, filed her own motion to vacate the fee order on 

the same grounds—that Sherman failed to disclose his conflict. App. 400. The bankruptcy court 

scheduled a hearing to consider the motion for January 26, 2017. It noted, however, that Dr. 

Durant faced an “uphill battle” because the court had already found that the issue was time 

barred in a previous order and had held a sanctions hearing in which it found that Sherman had 

not acted intentionally in failing to disclose his prior representation. App. 447–48. Dr. Durant 

moved to reschedule the hearing to May so that she could travel to Washington, D.C. and appear 

in person. App. 642. Dr. Durant was 88 years old at that time and indicated that she had 

difficulty traveling by herself in the winter. Id. She also was not represented by counsel. Id. 

The bankruptcy court denied the motion, App. 656, and held the hearing as scheduled on January 

26 with Dr. Durant appearing by phone. App. 1271–1389. An attorney for Trigee and one of its 

principals attended in person. Id. The bankruptcy court ultimately denied Dr. Durant’s motion 

to vacate the fee order the following month. App. 741. Dr. Durant filed her notice of appeal on 

February 9, 2017. 

II. Legal Standards 

This Court has jurisdiction over appeals of final orders issued by the Bankruptcy Court. 

See 28 U.S.C. § 158(a) (conferring on U.S. district courts jurisdiction over “appeals . . . from 

final judgments, orders, and decrees”). Findings of fact are reviewed for clear error; questions of 
4 

law are considered de novo. See Foskey v. Plus Properties, LLC, 437 B.R. 1, 8 (D.D.C. 2010). 

In other words, the appellant “must show that the [bankruptcy] court’s holding was clearly 

erroneous as to the assessment of the facts or erroneous in its interpretation of the law and not 

simply that another conclusion could have been reached.” In re WPG, Inc., 282 B.R. 66, 68 

(D.D.C. 2002). 

III. Analysis 

Dr. Durant has appealed three bankruptcy court orders: (a) the February 1, 2017 order 

denying her motion to vacate the fee order; (b) the January 27, 2017 order denying her motion to 

continue the hearing on the motion to vacate the fee order; and (c) the December 22, 2016 

disposal of the order to show cause why Mr. Sherman should not be sanctioned. The Court will 

affirm all three rulings. 

A. Order Denying Motion to Vacate the Fee Order 

Dr. Durant sought to have the fee order vacated on the ground that Mr. Sherman failed to 

disclose in his Rule 2014(a) statement that he had previously represented a secured creditor 

whose interests were adverse to his client’s in the case. Appellant’s Br. at 7. Despite having 

reservations about whether Dr. Durant was the real party in interest (as opposed to Trigee), the 

bankruptcy court proceeded to the merits of the motion. 

Durant originally filed the motion under Federal Rule of Civil Procedure 59, which 

permits motions “to alter or amend judgements.” Fed. R. Civ. P. 59(e). In bankruptcy actions, 

such motions must be filed with 14 days after entry of judgment. Fed. R. Bank. P. 9023. As the 

bankruptcy court explained, Dr. Durant could not obtain relief under Rule 59 because she filed 

her motion to vacate the fee order more than two years after the order was issued. App. 749–50. 
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An alternative avenue for relief was Federal Rule of Civil Procedure 60, which allows 

litigants to obtain relief from a judgment or order after it is issued, and subsection b of the rule 

provides six discrete grounds for relief. Fed. R. Civ. P. 60(b). One of these grounds—“fraud . . . 

misrepresentation, or misconduct by an opposing party”—appears to apply to Sherman’s failure 

to disclose his conflict. See, e.g. Ceats, Inc. v. Cont’l Airlines, Inc., No. 6:10-CV-120, 2013 WL 

12131714, at *3 (E.D. Tex. June 28, 2013) (challenging judgment under Rule 60(b)(3) for failure 

to disclose attorney conflicts); Hoffenberg v. United States, No. 00 CIV. 1686, 2010 WL 

1685558, at *5 (S.D.N.Y. Apr. 26, 2010) (same). However, any motion based on Rule 60(b)(3) 

must be made no more than a year after the entry of judgment. See Fed. R. Civ. P. 60(c)(1). 

Because Dr. Durant challenged the fee order over two years after it was issued, see App. 361 

(issuing fee order in February 2014), App. 400 (Durant’s challenge to the fee order in December 

2016), the bankruptcy correct correctly concluded that any motion under Rule 60(b)(3) was time 

barred.2 

Rule 60(b)(6), on the other hand, imposes no such time limits. That rule allows litigants 

to challenge final judgments for “any other reason that justifies relief.” But courts have 

interpreted “any other reason” to mean any reason not specified in subsections (b)(1) through 

(b)(3). See Baltia Air Lines, Inc. v. Transaction Management, Inc., 98 F.3d 640, 642 (D.C. Cir. 

1996). In other words, Rule 60(b)(6) cannot be used to circumvent the one-year limitation in 

subsections (b)(1) through (b)(3). More v. Lew, 34 F. Supp. 3d 23, 29 (D.D.C. 2014). So 

 

2

 Dr. Durant also suggests that her motion was proper under Rule 60(b)(2), which 

provides relief from judgment in the event of newly discovered evidence. Appellant Br. at 32. 

But any motion under that rule was also time barred. See Fed. R. Civ. P. 60(c)(1) (noting oneyear time limit for section (b)(1) through (b)(3). 
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because Dr. Durant sought relief for reasons covered by subsection (b)(3), she was not able to 

rely on subsection (b)(6), as the bankruptcy court correctly found. See App. 751. 

That leaves Rule 60(d)(3), which allows a court to set aside a judgment for fraud on the 

court without any time limit. Fraud on the court is fraud “which is directed to the judicial 

machinery itself and is not fraud between the parties or . . . false statements, or perjury.” Baltia 

Air Lines, 98 F.3d at 642. Relief based on fraud on the court is “very rarely warranted,” More, 

34 F. Supp. 3d at 28, and must involve “far more than an injury to a single litigant,” Baltia Air 

Lines, 98 F.3d at 643. The bankruptcy court found that Sherman’s failure to disclose his conflict 

did not rise to this level. After holding an evidentiary hearing, the court concluded that Sherman 

did not deliberately attempt to mislead the court, and that his failure to disclose his conflict was 

“at most negligence.” App. 754. It also found that Sherman’s prior representation of a Trigee 

creditor did not establish an actual conflict of interest as to Trigee or the estate because the prior 

representation was limited to sending dunning letters. App. 755. In other words, Sherman did 

not “deceive” the bankruptcy court because it would have approved Trigee’s representation of 

LEB and Sherman even if it had known about the conflict. App. 756–59. These factual findings 

about Sherman’s conflict are not clearly erroneous. And in light of those findings, the Court 

affirms the bankruptcy court’s legal conclusion that Dr. Durant’s motion did not meet the 

requirements of Rule 60(d)(3). 

In the end, Dr. Durant’s motion to vacate the fee order was too little too late. Over two 

and a half years after the entry of judgment, she had only limited procedural tools to challenge 

the order. And the bankruptcy court did not err in finding that the crux of her challenge—

Sherman’s failure to disclose his conflict—simply did not rise to the level of fraud on the court. 
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B. Order Denying Motion to Continue the Hearing 

Dr. Durant next challenges the bankruptcy court’s denial of her motion to continue the 

hearing on her motion to vacate the fee award for 90 to 120 days. After she filed the motion, the 

bankruptcy court scheduled a hearing for January 26—about seven weeks after the filing. App. 

447–48. Dr. Durant asked to reschedule the hearing until May so that she could travel to 

Washington, D.C. and find an attorney. App. 642. The bankruptcy court denied the motion, 

finding that it would unduly delay the Court’s resolution of the issue in a long-closed bankruptcy 

case. The Court proceeded with the hearing and Dr. Durant appeared by telephone on January 

26, 2017. 

Denying Dr. Durant’s motion to delay the hearing for several months was squarely within 

the bankruptcy court’s discretion to manage its case load and expeditiously resolve issues before 

it. See 11 U.S.C.A. § 105 (codifying inherent power of bankruptcy courts to manage the cases 

on their docket). And in this particular case, the court had twice previously considered the same 

issue about Sherman’s purported conflict: in Trigee’s previous motion to vacate the fee order 

(which Durant’s motion largely parroted) and in its order to show cause why Sherman shouldn’t 

be sanctioned. Having already considered the issue twice, the bankruptcy court did not abuse its 

discretion in refusing to substantially delay the hearing. 

Nor were Dr. Durant’s due process rights violated. See Appellant’s Br. at 34. Litigants 

are not automatically entitled to a hearing, let alone the right to appear in person for a hearing. 

See Fed. R. Civ. P. 78(b) (“[T]he court may provide for submitting and determining motions on 

briefs, without oral hearings.”). In any case, Dr. Durant was able to participate in the hearing 

telephonically and fully brief her motion. That satisfies due process. 
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C. Order Dissolving Show Cause Order 

Finally, Dr. Durant challenges the bankruptcy court’s decision to dissolve the show cause 

order and sanction Sherman with an admonition rather than a monetary penalty. Appeals of 

bankruptcy court orders must be noticed within 14 days. See Fed. R. Bank. P. 8002(a). The 

bankruptcy court discharged the show cause order on December 22, 2016. App. 442–43. Dr. 

Durant filed her appeal 49 days later, on February 9, 2017. She thus failed to timely notice her 

appeal. In any case, the bankruptcy court did not abuse its discretion in issuing limited sanctions 

after holding a hearing and concluding that Sherman’s failure to disclose his conflict was 

unintentional. 

IV. Conclusion 

For the foregoing reasons, the Court will affirm the bankruptcy court and deny Dr. 

Durant’s appeal. A separate order will accompany this memorandum opinion. 

 

 CHRISTOPHER R. COOPER 

 United States District Judge 

Date: August 3, 2018