Lattier-Holmes v. Peoples St Bnk Many ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-30521
Summary Calendar
In the Matter of: PATRICIA LATTIER-HOLMES
Debtor,
--------------------------------
PATRICIA LATTIER-HOLMES,
Appellant,
VERSUS
PEOPLES STATE BANK OF MANY,
Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
(02-CV-575)
December 24, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
Per Curiam:*
In this appeal, Patricia Lattier-Holmes pro se challenges the
district court’s dismissal of her appeal of a bankruptcy court
order. We DISMISS her appeal for lack of appellate jurisdiction.
*
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opinion should not be published and is not precedent except under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.
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This case arises out of Lattier-Holmes’s bankruptcy
proceeding. The Peoples State Bank of Many (“PSB”) initiated an
adversary proceeding against Lattier-Holmes, seeking to prevent her
discharge of certain debt on grounds of fraud. On February 22,
2002, the bankruptcy court denied the discharge. On March 4, 2002,
Lattier-Holmes’s counsel filed in the bankruptcy court a notice of
appeal to this Court. The notice of appeal was treated as an
appeal to the district court. On March 25, 2002, the district
court dismissed the appeal for failure to prosecute according to
Rule 8006 of the Bankruptcy Rules. A copy of the order was sent to
Lattier-Holmes’s counsel but not to her. Some point after the
March 4, 2002, appeal had been filed, counsel withdrew.
On April 28, 2002, Lattier-Holmes pro se moved the district
court to reconsider its order of dismissal. She filed an identical
motion the next day. In her motions she explained that she did not
learn of the order until April 18, 2002. The district court denied
reconsideration on May 6, 2002. On May 16, 2002, Lattier-Holmes
pro se filed a notice of appeal of the district court’s order of
dismissal.
After the district court dismissed her appeal on March 25,
2002, Lattier-Holmes had ten days to file a motion for
reconsideration. Fed. R. Bankr. P. 8015. Her motion for
reconsideration, which she filed on April 28, 2002, was therefore
untimely. Because Lattier-Holmes did not timely move for
reconsideration, the time for her appeal to this Court ran from the
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entry of the district court’s order of dismissal on March 25, 2002.
Id. By rule, Lattier-Holmes had thirty days to appeal the district
court’s order. Fed. R. App. P. 4(a)(1)(A), 6(b)(1). This
limitation period was not disturbed by her untimely motion for
reconsideration. See id. 6(b)(2)(A)(i); Fed. R. Bankr. P. 8015;
16A Wright & Miller, Federal Practice & Procedure § 3952.2 n.4 (3d
ed. 1999). Lattier-Holmes did not move to extend the limitations
period pursuant to Rule 4(a)(1)(5), and the district court was
without power to grant such an extension sua sponte. See In re MDL
262, 799 F.2d 1076, 1079 (5th Cir. 1986); 16A Wright & Miller,
Federal Practice & Procedure § 3950.3 n.7. Her notice of appeal
was therefore untimely filed on May 16, 2002.
This Court lacks jurisdiction to hear an untimely appeal. See
Matter of Lacey, 114 F.3d 556, 557 (5th Cir. 1997). We also lack
the power to enlarge the time for filing a notice of appeal under
the circumstances of this case. Fed. R. App. P. 26(b)(1); Matter
of Lacey, 114 F.3d at 557. Accordingly, we DISMISS Lattier-
Holmes’s appeal for lack of appellate jurisdiction.
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