On appeal from the United States Bankruptcy Court for the Southern District of Ohio, Adv. Pro. No. 00-2041.
The opinion of the court was delivered by: Judge Holschuh
MEMORANDUM OPINION & ORDER
On December 19, 2005, this Court issued a Memorandum Opinion and Order affirming a decision of the United States Bankruptcy Court for the Southern District of Ohio granting summary judgment in favor of Southern Air Transport, Inc. ("SAT") in an adversary proceeding. Triad International Maintenance Corporation ("TIMCO") filed a motion for reconsideration. After this Court denied the motion, TIMCO appealed to the Sixth Circuit Court of Appeals. This matter is currently before the Court on Appellee SAT's motion to correct the record on appeal. (Record at 28).
SAT seeks to strike two items that TIMCO included in its designation of the record to be certified and sent to the Circuit Clerk. The parties agree that although designated as two separate items -- a "Supplement to Exhibit A" and "Exhibits to the Transcript of the November 2, 2004 Hearing on TIMCO's Motion to Amend or Make Additional Findings of Fact, and Motion to Alter or Amend the Judgment Entered 1/25/02" -- they are, in fact, one and the same. The exhibit at issue consists of 28 pages of copies of Microsoft PowerPoint slides used by TIMCO's counsel as a visual aid during the November 4, 2004 hearing in bankruptcy court.
In support of its motion, SAT cites to Federal Rule of Appellate Procedure 10(e) which states:
(e) Correction or Modification of the Record.
(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.
(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of the record must be presented to the court of appeals.
SAT argues that TIMCO has misstated the record by including the slides in its designation of the record on appeal. According to SAT, the slides should be stricken from the record because: (1) although used as visual aids at the hearing in bankruptcy court, they were never offered or accepted into evidence and are not "exhibits" to the transcript of the hearing; and (2) on August 10, 2005, this Court, in connection with TIMCO's ...