McIntyre v. Anthony ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-20651
Summary Calendar
_____________________
IN THE MATTER OF: TIGHE ANTHONY and
NANCY LEE MERELLI,
Debtors.
FRANK MCINTYRE,
Appellant,
v.
NANCY LEE MERELLI and TIGHE ANTHONY,
Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA H 94 1752)
_________________________________________________________________
(April 14, 1995)
Before KING, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
The district court correctly dismissed appellant Frank
McIntyre's appeal. The bankruptcy court judgment appealed from was
entered on October 23, 1992. Under Bankruptcy Rule 8002, a notice
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
of appeal must be filed within ten days of the date of entry of the
judgment. The ten-day period may be extended once, for a maximum
of twenty days, upon a showing of excusable neglect. McIntyre's
motion for leave to appeal was filed more than five months after
the entry of judgment by the bankruptcy court. McIntyre argued
that he lacked actual notice of the entry of the bankruptcy court's
judgment. But, as the district court correctly pointed out,
McIntyre's lack of notice of the entry of judgment is irrelevant.
Under Bankruptcy Rule 9022, lack of notice of the entry of a court
order does not affect the time to appeal or authorize the court to
relieve a party for failure to file a timely appeal. We agree with
the district court that Bankruptcy Rule 9022 should be construed in
the same manner as Fed. R. Crim. P. 49(b), i.e., it is mandatory
and precludes out-of-time appeals. See United States v. Awalt, 728
F.2d 704, 705 (5th Cir. 1984).
The district court's order dismissing McIntyre's appeal is
AFFIRMED.
2