Hamilton v. Lake Elmo Bank (In Re Delta Engineering International, Inc.) , 270 F.3d 584 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-4078
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In re: Delta Engineering International, *
Inc. *
*
Debtor. *
*
-------------------------------------------- *
*
Archie Hamilton; Debra Horning; *
John Bland; Douglas Swanson; John *
Thill; Thomas Ernst; Bonnie Amundson;*
Shirley McDonough; Harland Hess; *
Mike Joosten; Pamela Humpreys; *
Daniel Swanson; Jeff Ryhn; Brian *
Stine; Donald Lenz; Lester Johnson; *
Mark Schaut; Richard Mann; Mark * Appeal from the United States
Anderson; Larisa Yeroshevskaya; * Bankruptcy Appellate Panel
Lori Braun; Christine Longwell; * for the Eighth Circuit
Mark Vincent Zimmerman; Carl *
Woodington; Tim Lauro, *
*
Appellants, *
*
v. *
*
Lake Elmo Bank; Lyon Financial *
Services, Inc., also known as *
Spectrum Commercial Services; *
Clinton Cutler; Delta Engineering *
International; John Docken, *
*
Appellees. *
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Submitted: October 19, 2001
Filed: November 2, 2001
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Before McMILLIAN, BEAM and MURPHY, Circuit Judges.
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McMILLIAN, Circuit Judge.
A group of employees and subcontractors (“appellants”) of Delta Engineering
International, Inc., (“DEI”), a Chapter 7 debtor in bankruptcy, appeals from a final
order entered by the clerk of the court at the direction of the Bankruptcy Appellate
Panel (“BAP”) for the Eighth Circuit, dismissing their appeal from a final order of the
bankruptcy court1 in an adversary proceeding they brought against Lake Elmo Bank,
Spectrum Commercial Services, Clinton Cutler, and John Docken.2 In re: Delta
Eng’g Int’l, Inc. (Hamilton v. Lake Elmo Bank), No. 00-6109 (B.A.P. 8th Cir.
Nov. 20, 2000) (“BAP order”). For reversal, appellants argue that (1) the BAP erred
in holding that it lacked jurisdiction to consider the appeal because the notice of
appeal was untimely filed and (2) Rule 8002(a) of the Bankruptcy Rules, limiting the
time for filing a notice of appeal to ten days, is unconstitutional under the due process
clause of the Fourteenth Amendment. For the reasons stated below, we affirm the
order of the BAP.
1
The Honorable Gregory F. Kishel, United States Bankruptcy Judge for the
District of Minnesota.
2
In re: Delta Engineering Int’l, Inc. (Hamilton v. Lake Elmo Bank),
No. 97-34671 (Bankr. D. Minn. Nov. 20, 2000).
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Jurisdiction in the BAP was proper based upon 28 U.S.C. § 158(b), (c).
Jurisdiction in this court is proper based upon 28 U.S.C. § 158(d).
In the present case, it is undisputed that the bankruptcy court entered its final
order on September 15, 2000. On October 16, 2000, appellants personally served a
notice of appeal on the bankruptcy court. See Brief for Appellants at 10. Included
in the notice of appeal was a “Motion for Leave to File Notice of Appeal Out of
Time.” In that motion, appellants asserted that the untimeliness of their filing should
be excused because, “where the time to file a notice of appeal in every other forum
with which plaintiffs’ attorney is familiar is 30 or more days, plaintiffs’ attorney must
be excused for never thinking that a decision as to whether or not to appeal had to be
made within such an unreasonably short period of time.” See id. at 10-11 (quoting
motion).
By order dated November 13, 2000, the bankruptcy court, for reasons that are
irrelevant to the present appeal,3 denied appellants’ motion for leave to file the notice
of appeal out of time. The BAP order was entered shortly thereafter. The BAP order
explains that the appeal is dismissed for lack of jurisdiction because appellants failed
to timely file their notice of appeal. BAP order at 1 (citing Luedtke v. Nationsbanc
Mortgage Corp., 215 B.R. 390 (B.A.P. 8th Cir. 1997), and FHC Enterprises, Inc. v.
Drevlow, 221 B.R. 767 (B.A.P. 8th Cir. 1998)).
Upon review of the record and the parties’ arguments in the present appeal, we
hold that the BAP did not err in dismissing for lack of jurisdiction appellants’
untimely appeal from the bankruptcy court’s order of September 15, 2000. Title 28
U.S.C. § 158(c)(2) provides that “[a]n appeal under [28 U.S.C. § 158(a) or (b)] shall
be taken in the same manner as appeals in civil proceedings generally are taken to the
3
The reasons for the denial of the motion are irrelevant because appellants did
not appeal the bankruptcy court’s order of November 13, 2000.
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courts of appeals from the district courts and in the time provided by Rule 8002 of the
Bankruptcy Rules.” (Emphasis added.) Rule 8002(a) provides: “The notice of appeal
shall be filed with the clerk within 10 days of the date of the entry of the judgment,
order, or decree appealed from.”
Moreover, appellants cite no authority for the proposition that the ten-day filing
requirement in Rule 8002(a) violates the due process clause of the Fourteenth
Amendment, and we are not aware of any.
The order of the BAP is affirmed. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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