UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 99-40203 _____________________

In The Matter Of: DANIS R. TUCKER, doing business as Ralph’s Foods Co., doing business as Laredo Spice Co., doing business as Pepper Tree Foods, doing business as Nevada Converting Company, doing business as Silver State Bookkeeping, doing business as Fifth Avenue Fashions, doing business as B.G. Tucker,

Debtor. ****************************************

BEVERLY TUCKER,

Appellant,

versus

ROBERT C. WOLTER, Attorney; DEBRA J. GREER, Attorney; LAW FIRM OF WOOD, BOYKIN & WOLTER, a Professional Corporation; MICHAEL DAVID BOUDLOCHE,

Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (C-98-CV-389) _________________________________________________________________ March 6, 2000

Before JOLLY and DeMOSS, Circuit Judges, and DOWD,* District Judge.

PER CURIAM:**

* District Judge of the Northern District of Ohio, sitting by designation.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Beverly Tucker appeals the denial of her Rule 60(b) motion by

the district court and the bankruptcy court. Her motion sought to

set aside a summary judgment granted by the bankruptcy court, which

denied her legal malpractice claim against the appellees’ attorneys

on grounds that the underlying facts supporting her malpractice

claim have been litigated and resolved earlier in the bankruptcy

proceeding. Unfortunately, she did not receive notice of the

bankruptcy court’s order issued on March 12, 1997 until April 16,

1997, because the bankruptcy court failed to list her as a person

entitled to notice of the order. Everyone agrees that her failure

to receive the order was not her fault. The next day, April 17,

she filed a motion asking the court to allow an out-of-time appeal.

However, because untimely appeals may be allowed only within twenty

days of the expiration of the ten-day period for appeal, see

Federal Bankruptcy Procedure 8002(c), the bankruptcy court was

powerless to allow the appeal because thirty-six days had expired

after the bankruptcy court had entered its order. In other words,

although it would appear that Beverly Tucker is clearly entitled to

equitable considerations, the courts, including this court, are

powerless to grant her equitable relief in the form of an out-of-

time appeal, which we take from her brief she is effectively

requesting.

Furthermore, we must keep in mind that the appeal before us is

from a judgment denying relief under Rule 60(b). Federal Rule of

Civil Procedure 60(b) permits a trial court to relieve a party of

2 a final judgment because of mistake, inadvertence, surprise,

excusable neglect, newly discovered evidence or fraud; or because

a judgment is void or no longer deserving of prospective

application; or for any other reason justifying relief. See Hill

v. McDermott, Inc.,

(5th Cir. 1987). This rule

originated in response to the “plaintive cries of parties who have

for centuries floundered . . . among the snares and pitfalls of the

ancillary common law and equitable remedies.” Banker’s Mortgage

Co. v. United States,

(5th Cir. 1970), cert.

denied,

(1970). Thus, Rule 60(b) is primarily an

instrument of equitable relief. It is not to be “made a vehicle

for the relitigation of issues.” Id. at 79. Nor is it to be used

as a substitute for, or alternative to, appeal. See Hill v.

McDermott, Inc.,

(citing Alvestad v. Monsanto Co.,

(5th Cir.) 1982)); Seven Elves, Inc. v. Eskenazi,

(5th Cir. Unit A Jan. 1981); 7 J. Moore & Lucas,

Moore’s Federal Practice ¶ 60.18[8] at 60, 140-41 (2d ed. 1985).

Therefore, a party may not invoke Rule 60(b) to avoid the

expiration of the time for appeal or to simply seek reconsideration

of claims.

Ms. Tucker fails to make any claim in her brief that would

entitle her to relief under Rule 60(b). Her brief states as

follows: “The issues in this case are all legal. The specific

issue which has brought forth this appeal revolve around the

Bankruptcy Court’s denial of Appellant’s Rule 60b Motion to Vacate

3 a Summary Judgment, which Appellees admit was not sent to her by

the Court in time to initiate an appeal.”

In sum, because none of the arguments made by Ms. Tucker fall

within the purview of relief available under Rule 60(b), the

district court’s judgment affirming the bankruptcy court’s decision

denying relief from judgment under Rule 60(b) is

A F F I R M E D.

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