            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                    Fifth Circuit

                                                                                 FILED
                                                                              January 24, 2008

                                             No. 07-11190                   Charles R. Fulbruge III
                                                                                    Clerk

In The Matter Of: RICKY KLEIBRINK

                                                          Debtor
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ELLEN KLEIBRINK; MID STATE TRUST VII

                                                          Appellees
v.

RICKY KLEIBRINK

                                                          Appellant



                      Appeal from the United States District Court
                           for the Northern District of Texas
                                      (07-CV-88)


Before JOLLY, DENNIS, and PRADO, Circuit Judges..
PER CURIAM:*
        The bankruptcy court held that Mid-State Trust had a claim secured by
debtor Ricky Kleibrink’s real property. On appeal, the district court affirmed.
The judgment was entered on August 29, 2007. On September 5, the debtor,



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                    No. 07-11190

who was represented by counsel, filed a “Motion for New Trial” in district court,
stating that the motion “has been filed within 10 days of entry of the Judgment
as required by Rule 59 FRCP.” Mid-State objected, arguing that Rule 59 did not
apply when the district court was acting as an appellate court in a bankruptcy
case. The district court denied the motion for new trial in an order entered on
October 17. On November 15, the debtor, still represented by counsel, filed a
notice of appeal from the judgment and the order denying the motion for new
trial.
         Federal Rule of Appellate Procedure 6(b)(2)(A) provides that, if a timely
motion for rehearing under Bankruptcy Rule 8015 is filed, the time for filing a
notice of appeal “runs from the entry of the order disposing of the motion.”
Federal Rule of Civil Procedure 59 “applies only to appeals from the bankruptcy
court to the district court, and not to appeals from the district court to the court
of appeals.” Matter of Butler, Inc. (Butler v. Merchants Bank & Trust Co.), 2
F.3d 154, 155 (5th Cir. 1993). “When the district court is acting as an appellate
court in a bankruptcy case, ‘Bankruptcy Rule 8015 provides the sole mechanism
for filing a motion for rehearing.’” Id. (quoting Matter of Eichelberger, 943 F.2d
536, 538 (5th Cir. 1991)).
         Mid-State has filed a motion to dismiss the appeal. Mid-State argues that,
because Bankruptcy Rule 8015 is the sole means of seeking rehearing when the
district court is acting as an appellate court in a bankruptcy case, the debtor’s
motion for a new trial under Rule 59 did not toll the time for filing a notice of
appeal; therefore, the debtor’s notice of appeal, filed after the district court
denied the motion for new trial, is untimely. Mid-State argues that this court
should not treat the debtor’s motion for a new trial as a motion for rehearing
under Rule 8015 because the motion requested that the district court reopen the
case to take additional evidence, which is an invalid basis for relief under Rule
8015.

                                          2
                                  No. 07-11190

      In Butler, both parties assumed that Butler’s pro se “Motion to Set Aside
Judgment and for New Trial Because of Newly Discovered Evidence,” filed in the
district court, was governed by Federal Rule of Civil Procedure 59. 2 F.3d at
155. This court stated that, “despite its title, Butler’s motion for rehearing is
governed by Bankruptcy Rule 8015....” Id. Thus the court treated a motion
seeking relief under Rule 59 as one governed by Bankruptcy Rule 8015. See also
English-Speaking Union v. Johnson, 353 F.3d 1013 (D.C. Cir. 2004)
(irrespective of how parties characterize their motions for reconsideration in
bankruptcy appeals, the timing of the filing of a post-judgment motion
determines whether it tolls the time for filing an appeal; thus, a motion filed
within the ten-day limit of Rule 8015 should be treated as a Rule 8015 motion
that postpones appellate review during its pendency).
      Although Kleibrink’s motion for a new trial asks that the case be re-opened
for the taking of new evidence, it also asserts that the court should amend its
findings of fact and conclusions of law regarding the value of appellee’s claim.
Therefore, under Butler, we treat the motion as one governed by Rule 8015,
notwithstanding its title. Because a timely Rule 8015 motion tolls the time for
filing a notice of appeal until the district court rules on the motion, Kleibrink’s
notice of appeal was timely filed. The motion to dismiss the appeal is
                                                                        DENIED.




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