In re: Carlton Boggs v. ( 2000 )

ELECTRONIC CITATION: 2000 FED App. 0004P (6th Cir.)File Name: 00b0004p.06
BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
In re: CARLTON P. BOGGS, )
)
Debtor. )
_____________________________________ )
)
LUDWIG W. SCHMIDT, JR., et al., )
)
Plaintiffs-Appellants, )
)
)
v. ) No. 99-8057
)
CARLTON P. BOGGS, et al., )
)
Defendants-Appellees. )
)
_____________________________________ )
Appeal from the United States Bankruptcy Court
for the Southern District of Ohio, Eastern Division, at Columbus.
No. 97-50941, Adv. No. 97-0122.
Submitted: February 3, 2000
Decided and Filed: March 27, 2000
Before: MORGENSTERN-CLARREN, RHODES, and STOSBERG
Bankruptcy Appellate Panel Judges.
____________________
COUNSEL
ON BRIEF: David Watkins, Columbus, Ohio, for Appellants. James W. Lewis, LANE,
ALTON & HORST, Columbus, Ohio, for Appellees.
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OPINION
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STEVEN RHODES, Bankruptcy Judge. On June 8, 1999, the plaintiffs filed a
motion for leave to appeal an order entered by the bankruptcy court on May 25, 1999. The
bankruptcy court denied the motion, holding that the plaintiffs had not demonstrated
excusable neglect for failing to file their notice of appeal or motion for extension of time to
appeal within the 10 day time period required by FED. R. BANKR. P. 8002. The plaintiffs
then appealed the denial of their motion for leave to appeal. The Panel has unanimously
determined after examining the briefs, record, and appendix that oral argument is not
needed. FED. R. BANKR. P. 8012. The Panel holds that the bankruptcy court applied the
proper standard for determining that there was no excusable neglect. Accordingly, the
bankruptcy court’s order denying the motion for leave to appeal is AFFIRMED.
I. ISSUE ON APPEAL
The issue is whether the bankruptcy court erred in holding that the plaintiffs had not
demonstrated excusable neglect and in denying the motion for leave to appeal.
II. JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this
appeal. The United States District Court for the Southern District of Ohio has authorized
appeals to the BAP. A final order of a bankruptcy court may be appealed by right under
28 U.S.C. §158(a)(1). For purposes of appeal, an order is final if it “‘ends the litigation on
the merits and leaves nothing for the court to do but execute the judgment.’” Midland
Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S. Ct. 1494,1497 (1989) (citations
omitted). An order denying a motion for leave to appeal is a final order. See Belfance v.
Black River Petroleum, Inc. (In re Hess), 209 B.R. 79, 80 (B.A.P. 6th Cir. 1997).
“Denial of a motion for extension of time to file a notice of appeal is reviewed for
abuse of discretion.” Id. (citations omitted). “An abuse of discretion occurs only when the
[trial] court relies upon clearly erroneous findings of fact or when it improperly applies the
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law or uses an erroneous legal standard.” Id. at 80-81 (internal quotations and citations
omitted).
“The meaning of ‘excusable neglect’ is a question of law, the resolution of which is
subject to de novo review.” Id. at 80. Conclusions of law are reviewed de novo. See
Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir. 1994). “De novo
review requires the Panel to review questions of law independent of the bankruptcy court’s
determination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 469
(B.A.P. 6th Cir. 1998) (citation omitted).
III. DISCUSSION
Plaintiffs filed a “Motion for Leave to Appeal Instanter.” However, based on the
language of the motion and because it was filed after the expiration of the ten day period
for filing a notice of appeal, the bankruptcy court interpreted it as a motion for extension
of time to appeal, or leave to file an appeal outside of the time requirements, pursuant to
FED. R. BANKR. P. 8002(c).
FED. R. BANKR. P. 8002(a) requires that a notice of appeal be filed within ten days
of the date of the entry of the judgment or order. Rule 8002(c) requires that a request for
an extension of time to appeal be filed within ten days as well. However, the rule allows
the court to consider a request filed within twenty days after the expiration of the time to
appeal if the movant demonstrates excusable neglect.
Plaintiffs’ counsel asserts that excusable neglect exists because the person in his
office who was responsible for the mail was seriously ill at the time the order was received.
Plaintiffs’ counsel states that the order was received in a timely manner and that the
deadline was missed because the person responsible for docketing the deadline was out
of the office.
The bankruptcy court rejected counsel’s argument, stating, “Where counsel have
attempted to convince courts that deadlines missed through mistakes made by office staff
or by other pressures associated with the operation of a legal practice were the result of
excusable neglect, they have been soundly rebuffed.” Ludwig v. Boggs (In re Boggs), Ch.
7 Case No. 97-50941, Adv. No. 97-0122, slip op. at 3 (Bankr. S.D. Ohio Sept. 13, 1999)
(citing Hess, 209 B.R. at 83; Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S
380, 398, 113 S. Ct. 1489 (1993); Huennekens v. Marx (In re Springfield Contracting
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Corp.), 156 B.R. 761, 766-67 (Bankr. E.d. Va. 1993); In re Lashinger, 1999 WL 409389(Bankr. E.D. Penn. June 15, 1999)) (parenthetical quotations omitted).
In Hess, the Panel explained that excusable neglect is to be analyzed under the
Pioneer standard. Hess, 209 B.R. at 82. “‘[T]he determination is at bottom an equitable
one, taking account of all relevant circumstances surrounding the party’s omission.’” Id.(quoting Pioneer, 507 U.S. at 395).
The Panel concludes that the bankruptcy court correctly applied the Pioneer
standard to determine if excusable neglect exists, and that the bankruptcy court did not
abuse its discretion in determining that plaintiffs did not demonstrate excusable neglect.
Attorneys are responsible for filing notices of appeal in a timely manner. Hess, 209 B.R.
at 83. “Clerical or office problems” are simply not a sufficient excuse for failing to file a
notice of appeal within the ten day period. See Pioneer, 507 U.S. at 398 (“[W]e give little
weight to the fact that counsel was experiencing upheaval in his law practice at the time
of the bar date.”).
IV. CONCLUSION
The bankruptcy court’s order denying the motion for leave to appeal is AFFIRMED.
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