State Farm Mutual Automobile Insurance v. Wilkins , 242 F. App'x 183 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS July 30, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20934
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.,
Plaintiff-Appellee,
versus
RALPHAELL V. WILKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(4:99-CV-2822)
Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Ralphaell Wilkins challenges a bankruptcy-court judgment
against him in a fraud action. Because Wilkins did not timely
appeal the district court’s decision dismissing his appeal from
that judgment, we lack jurisdiction. DISMISSED.
I.
In 1993, Wilkins, a lawyer, became involved in a “sudden-stop
collision” insurance fraud scheme with his office manager Rita
Frillarte, whereby automobile accidents were staged to generate
*
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this opinion should not be published and is not precedent except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.
insurance claims. In 1998, one of the insurers, State Farm, sued
Wilkins and Frillarte in state court, asserting, inter alia,
fraudulent misrepresentation and civil conspiracy due to their
presentment of over 150 false or inflated claims.
Wilkins filed for bankruptcy in 1998; the bankruptcy court,
however, modified the automatic stay to allow State Farm’s state-
court action to proceed. In that action, Wilkins filed claims in
1999 against State Farm’s lawyers; they removed the action to
federal court. In 2000, the district court referred the fraud and
civil conspiracy claims to the bankruptcy court as an adversary
matter under 28 U.S.C. § 157 (specifying the classes of claims
that may be referred to bankruptcy court).
The bankruptcy court rendered a judgment in May 2004 against
Wilkins, as debtor, and Frillarte. It found them jointly and
severally liable to State Farm for approximately $2 million in
actual, and $1 million in punitive, damages and ruled Wilkins could
not discharge the judgment in bankruptcy due to statutory
prohibitions under 11 U.S.C. § 523(a)(2) (monies obtained by false
pretenses) and (a)(6) (willful and malicious injury by debtor to
another).
Wilkins and Frillarte moved for a new trial. On 25 August
2004, the bankruptcy court denied the motion but modified the prior
final judgment against Frillarte to a “proposed” judgment, in
accordance with 28 U.S.C. § 157(c)(1) (bankruptcy court shall
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submit proposed findings of fact and conclusions of law to the
district court in instances where it lacks “core” jurisdiction),
because it had “related to”, and not “core”, jurisdiction over
Frillarte. The bankruptcy court did not revise the judgment as to
Wilkins, which it considered a final judgment.
In September 2004, Wilkins filed a notice of appeal to contest
the bankruptcy court’s decision. That appeal was dismissed by the
district court in December 2004 because Wilkins failed: to file an
appellate brief within 15 days after entry of a judgment, as
required under Federal Rule of Bankruptcy Procedure 8009(a)(1); and
to designate a record on appeal, as required under Rule 8006. In
February 2005, the district court denied Wilkins’ motion to
reconsider that decision. Wilkins did not appeal.
In March 2005, State Farm moved in district court to confirm
the bankruptcy court’s proposed findings and conclusions as to
Frillarte. Wilkins and Frillarte jointly responded to the motion;
and, on 24 August 2005, the district court adopted those findings
and conclusions. On 14 November 2005, the district court granted
Wilkins’ motion to extend the time in which to appeal; Wilkins
sought to appeal not only the district court’s August 2005 decision
as to Frillarte, but also the bankruptcy court’s August 2004
decision as to him. Wilkins filed his notice of appeal on 21
November 2005.
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II.
Jurisdictional issues are raised by both parties. Because
Wilkins did not timely appeal the district court’s dismissal of his
appeal from the bankruptcy court’s August 2004 judgment, we lack
jurisdiction. (Wilkins also contends State Farm’s claims fail
because: they are barred by Texas’ statute of limitations; and,
even if they are not, State Farm knew the submitted claims were
false, and therefore, he cannot be liable for fraudulent
misrepresentations. Obviously, because we lack jurisdiction, we do
not reach these merits contentions.)
The bankruptcy court issued a final judgment respecting
Wilkins in August 2004, when it denied his new-trial motion. Under
Bankruptcy Rule 8002(a), Wilkins had 10 days to appeal from the
entry of that decision. Wilkins filed his notice of appeal on 2
September 2004; as discussed, that appeal was dismissed by the
district court in December 2004. Wilkins’ motion for
reconsideration of the dismissal was denied on 25 February 2005.
Wilkins did not file a notice of appeal within 30 days
contesting that dismissal, as required under Federal Rule of
Appellate Procedure 4(a)(1)(A). Instead, he waited until 21
November 2005, almost nine months later.
A party’s timely filing of a notice of appeal is “mandatory
and jurisdictional”. E.g., Smith v. Smith, 145 F.3d 335, 339 (5th
Cir. 1998); Moody Nat’l Bank of Galveston v. GE Life and Annuity
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Assur. Co., 383 F.3d 249, 250 (5th Cir. 2004) (“A timely filed
notice of appeal is an absolute prerequisite to this court's
jurisdiction.”). Therefore, failure to adhere to this requirement
strips us of jurisdiction. See Budinich v. Becton Dickinson & Co.,
486 U.S. 196, 203 (1988) (a court “lacks discretion to consider the
merits of a case over which it is without jurisdiction”) (internal
citations and quotation marks omitted).
In maintaining we can consider the 2004 bankruptcy-court
judgment, Wilkins presents two independent bases. Each fails.
A.
First, Wilkins contends: the bankruptcy court lacked
jurisdiction to issue a final judgment based on its August 2004
decision; because his case was a “non-core” proceeding under the
Bankruptcy Code, the court should have entered only a “proposed”
judgment under 28 U.S.C. § 157(c)(1); and, accordingly, the
district court should have either treated the judgment as a
proposed judgment or remanded the case to the bankruptcy court with
instructions to change the judgment to a “proposed” one. As the
bankruptcy court correctly noted, however, State Farm’s claims
against Wilkins are core proceedings under the Bankruptcy Code,
specifically under 28 U.S.C. § 157(b)(2)(B) (allowance or
disallowance of claims against the estate) and (b)(2)(I)
(determinations as to the dischargeability of particular debts).
Even though State Farm’s claims arose under state law, “the
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relevant inquiry is whether the nature of the adversary proceeding,
rather than the state or federal basis for the claim, falls within
the core of bankruptcy power”. In re Case, 937 F.2d 1014, 1020
(5th Cir. 1991) (internal citations and quotations omitted). Here,
the dispute clearly affects “the distribution of [Wilkins’]
assets”. Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 190
(5th Cir. 1990).
B.
In the alternative, Wilkins claims that, because this case
involved multiple parties, disposition as to some of them does not
result in a final judgment, absent certification under Bankruptcy
Rule 7054. That Rule incorporates Federal Rule of Civil Procedure
54(b). See In re Wood & Locker, Inc., 868 F.2d 139, 142-43 (5th
Cir. 1989). Under Rule 54(b), an order is not appealable when it
has disposed of fewer than all of the claims in a case, leaving
other claims to be determined, absent a certification by the court
that there is no just reason for delay in the entry of a final
judgment for that portion of the case that has been finally
adjudicated. E.g., Road Sprinkler Fitters Local Union v. Cont’l
Sprinkler Co., 967 F.2d 145, 148 (1992); Ellender v. Schweiker, 781
F.2d 314, 318 (2d Cir. 1986). Therefore, Wilkins contends, the
bankruptcy court’s August 2004 judgment did not become final until
August 2005, when the district court affirmed the bankruptcy
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court’s rulings as to Frillarte. That decision, he claims, was
timely appealed.
The bankruptcy court made clear in its August 2004 ruling that
the decision was a final judgment for Wilkins. Its opinion denying
the motion for a new trial referred to the underlying May 2004
decision as a “Final Judgment”. In its order, the court stated it
did not “in any manner, modify the Findings, Conclusions, Holdings
and Judgment against ... Wilkins”. Indeed, there was nothing
further for the bankruptcy court to do with respect to Wilkins but
enter the judgment. In re Bartee, 212 F.3d 277, 282 (5th Cir.
2000) (“[A]n appealed bankruptcy order must constitute either a
final determination of the rights of the parties to secure the
relief they seek, or a final disposition of a discrete dispute
within the larger bankruptcy case for the order to be considered
final”) (internal citations and quotation marks omitted)); Kelly v.
Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th
Cir. 1990) (en banc) (“If the language in the order appealed from,
either independently or together with related portions of the
record referred to in the order, reflects the district court's
unmistakable intent to enter a partial final judgment under Rule
54(b), nothing else is required to make the order appealable.”)
Any dispute Wilkins had with that decision, including any
under Bankruptcy Rule 7054, should have been raised in a properly
filed appeal to the district court. Indeed, recognizing that,
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Wilkins did appeal to the district court after the August 2004
judgment, but it was dismissed. Furthermore, his failure to timely
appeal to this court following the district court’s February 2005
denial of his motion for reconsideration of that dismissal was
fatal to any possible claims he may have raised.
III.
Accordingly, the appeal is
DISMISSED.
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