Brown v. Foresight Investment ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: THURMAN BROWN, 
No. 05-15605
THURMAN BROWN, D.C. No.
Appellant,  CV-04-01439-SRB
v. Adv.No. 02-1381
WILSHIRE CREDIT CORPORATION, OPINION
Appellee.

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted February 14, 2007*
San Francisco, California
Filed April 26, 2007
Before: Stephen Reinhardt, Pamela Ann Rymer and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Silverman;
Concurrence by Judge Rymer
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
4579
IN RE: BROWN 4581
COUNSEL
Ronald J. Ellett, Jay S. Volquardsen; Ellett Law Offices, P.C.,
Phoenix, Arizona, for debtor Thurman Brown and appellant
Ellett Law Offices, P.C.
David Wm. Engelman, William H. Anger; Engelman Berger,
P.C., Phoenix, Arizona, for Appellee Wilshire Credit Corpo-
ration.
4582 IN RE: BROWN
OPINION
SILVERMAN, Circuit Judge:
A bankruptcy judge ruled in open court on cross-motions
for summary judgment regarding debtor Thurman Brown’s
claim that Wilshire Credit Corporation violated the Bank-
ruptcy Code’s automatic stay. Later that day, the judge signed
a minute entry stating that Wilshire’s motion for summary
judgment was granted and that Brown’s was denied, and tak-
ing under advisement a related motion for sanctions. Brown
filed his appeal nearly three months later when the court
entered judgment awarding sanctions against his counsel. We
hold today that a minute entry that merely grants summary
judgment — without more — does not become a final,
appealable judgment just because it has been signed by the
judge. The minute entry in this case was the memorialization
of a ruling, not a judgment, and thus did not trigger the 10-day
window in which Brown was required to appeal. Accordingly,
the district court erred in dismissing Brown’s appeal as
untimely.
BACKGROUND
Because this opinion is limited to the timeliness of Brown’s
appeal to the district court,1 we will just briefly summarize the
facts. Brown obtained a loan from LaSalle National Bank
secured by a deed of trust. Wilshire Credit Corporation ser-
viced the loan for the bank. After Brown defaulted, Fidelity
National Title Insurance Company, the foreclosure trustee on
the deed of trust, scheduled a non-judicial foreclosure sale.
The sale took place a few hours after Brown had filed for
bankruptcy protection. Complications ensued. Ultimately,
Brown brought an adversary proceeding against Wilshire
alleging that Wilshire violated the automatic stay.
1
In a separate memorandum disposition filed contemporaneously with
this opinion, we reverse the bankruptcy court’s award of sanctions against
Ronald Ellett, Brown’s counsel.
IN RE: BROWN 4583
Cross-motions for summary judgment were filed, and argu-
ment on the motions was held on April 22, 2004. Ruling from
the bench at the conclusion of the argument, the bankruptcy
judge granted Wilshire’s motion for summary judgment and
gave his reasons. At the end of the bankruptcy judge’s
remarks, the following exchange occurred:
COURT: Those are my findings of fact and con-
clusions of law. Do you wish to lodge a
— or propose formal findings and conclu-
sions,2 or do you want me to simply sign
the minute entry?
WILSHIRE’S COUNSEL:
If you’ll sign the minute entry, that will
suffice, Your Honor.
COURT: I’ll sign the minute entry. That will be
the order.
Later that day, the court issued a document labeled “MIN-
UTE ENTRY” that read as follows:
Appearances:
JAY S. VOLQUARDSEN, ATTORNEY
FOR THURMAN BROWN
RICK SHERMAN ATTORNEY FOR
WILSHIRE
2
Ordinarily, findings of fact and conclusions of law are made in the
wake of a contested hearing, not in the course of granting summary judg-
ment, which presupposes that the facts are undisputed. We presume that
the bankruptcy judge meant either that he would allow counsel to submit
a proposed written order granting the motion and containing the judge’s
rationale, or a proposed formal written judgment dismissing the action.
4584 IN RE: BROWN
Proceedings:
Mr. Volquardsen reviewed the history of
this matter and urged the Court to grant the
debtor’s motion for summary judgment.
COURT: FINDINGS OF FACT AND CONCLU-
SIONS OF LAW WERE STATED ON THE
RECORD. IT IS ORDERED DENYING THE
DEBTOR’S MOTION FOR SUMMARY JUDG-
MENT AND GRANTING WILSHIRE’S MOTION
FOR SUMMARY JUDGMENT.
/s/ Randolph J. Haines
RANDOLPH J. HAINES
U.S. BANKRUPTCY JUDGE
Mr. Sherman requested the Court rule on his 9011
motion advising he believes it is fully briefed.
COURT: THE COURT WILL REVIEW THE
DOCKET TO DETERMINE IF THE MOTION
HAS BEEN FULLY BRIEFED. IT IS ORDERED
TAKING THE MOTION UNDER ADVISEMENT
UNLESS BY NEXT TUESDAY, APRIL 27, 2004
EITHER PARTY FILES A REQUEST FOR HEAR-
ING.
cc: Pat
Jim
Six days later, in an April 28, 2004 “Memorandum Deci-
sion” — which also bears the judge’s signature — the bank-
ruptcy court decided in principle to sanction Brown’s lawyer,
Ronald Ellett, because, the bankruptcy judge said, he “never
advanced a single fact demonstrating that Wilshire took an
active step in violation of the automatic stay after having
knowledge of the existence of the bankruptcy,” and because
IN RE: BROWN 4585
his papers were void of any law or non-frivolous argument for
the extension of existing law that “imputed knowledge is a
sufficient basis to find a willful stay violation.” The amount
of the sanction remained to be determined.
In a ruling dated June 30, 2004, the bankruptcy court
largely denied Brown’s motion for reconsideration. As to
sanctions, the bankruptcy court awarded $18,791.63, and
directed Wilshire’s counsel to lodge a form of judgment.
On July 6, 2004, the bankruptcy court entered a formal
“Judgment Awarding Rule 11 Sanctions Against Ellett Law
Offices, P.C.” In contrast to the April 22 minute entry, this
document bore the court seal and language apparently rubber-
stamped on the top of the first page reading: “IT IS HEREBY
ADJUDGED and DECREED this is SO ORDERED. The
party obtaining this order is responsible for noticing it pursu-
ant to Local Rule 9022-1.” Immediately below the stamped
language was the date, followed by the judge’s signature. In
the body of the document, it says, “IT IS FURTHER
ORDERED granting judgment in favor of defendant Wilshire
Credit Corporation and against plaintiff/debtor’s attorney . . .
in the amount of $18,791.63, with post-judgment interest . . . .
IT IS FURTHER ORDERED expressly directing the entry of
this judgment as the Court finds that there is no just reason for
delay.”
Accompanying that document was a separate document
captioned, “Notice of Entry of Judgment or Order,” in which
the court clerk gave notice that judgment had been entered on
the court docket, and certified that copies of the judgment had
been mailed to the parties.
On July 15, 2004, nine days after entry of the judgment
awarding sanctions, Brown appealed the bankruptcy court’s
summary judgment order. Ellett appealed the judgment
awarding sanctions against his firm on July 7, 2004.
4586 IN RE: BROWN
The district court dismissed Brown’s appeal of the order
granting summary judgment against him because his appeal
was not filed within ten days of April 22, 2004, the day the
bankruptcy court entered its minute order granting Wilshire’s
motion for summary judgment. See Bankr. R. Proc. 8002(a)
(“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.”). That minute entry, the district court rea-
soned, was a “final order” in so much as it evidenced the
bankruptcy court’s intent that the summary judgment ruling
“end the controversy regarding the alleged violation of the
automatic stay.” “Most importantly,” the district court went
on to say, “Judge Haines signed the minute entry.” The dis-
trict court then affirmed the award of sanctions against Ellett
and his law firm, concluding that he “offer[ed] no plausible
factual or legal basis for holding Wilshire liable for the acts
or failures to act of the trustee, Fidelity.”
ANALYSIS
We must determine whether the bankruptcy court’s April
22, 2004 minute entry constitutes a final, appealable order. If
it does, Brown’s appeal to the district court was untimely,
depriving us of jurisdiction to hear his appeal. In re Slimick,
928 F.2d 304, 306-09 (9th Cir. 1990). If the minute entry is
not a final, appealable order, Brown’s appeal was not
untimely, and we may review the merits of the bankruptcy
court’s summary judgment ruling. For the reasons that follow,
we hold that the minute entry was not a final, appealable
order.
[1] A disposition is final if it contains “ ‘a complete act of
adjudication,’ that is, a full adjudication of the issues at bar,
and clearly evidences the judge’s intention that it be the
court’s final act in the matter.” Id. at 307 (emphasis in origi-
nal); see also United States v. Lummi Indian Tribe, 235 F.3d
443, 448 (9th Cir. 2000) (“A final decision is one that ends
the litigation on the merits and leaves nothing for the court to
IN RE: BROWN 4587
do but execute judgment.” (internal quotations omitted)). “Ev-
idence of intent consists of the Order’s content and the
judge’s and parties [sic] conduct.” In re Slimick, 928 F.2d at
308.3
[2] On its face, the April 22, 2004 minute entry, although
signed, is simply the memorialization of the proceedings of
that day. A comparison of the April 22 minute entry with the
July 6, 2004 judgment awarding sanctions illustrates this
point. The July 6, 2004 judgment came affixed with the court
seal and contained unequivocal judgment-granting language.
In contrast, the minute entry of April 22 merely recites that
one motion was “ordered” granted and another one denied.
That phrase, “IT IS ORDERED,” often precedes utterances
that are not final judgments at all, e.g., “IT IS ORDERED
continuing the case” and “IT IS ORDERED setting the fol-
lowing briefing schedule.” More important than “IT IS
ORDERED” is what has been ordered. Tellingly, the April
22, 2004 minute entry did not order that “judgment be
entered” in favor of Wilshire or that Brown’s case be “dis-
missed with prejudice.” These are conspicuous omissions.
Indeed, with respect to finality, we have previously drawn
a distinction between (1) an order that merely provides that
“[t]he motion of the Defendant for summary judgment . . . is
now decided as follows: The said motion is hereby granted,”
and (2) a later judgment that concluded, “It is, therefore,
ordered, adjudged and decreed that the plaintiff take nothing
by its actions against the defendant.” Monarch Brewing Co.
3
Two things are necessary to trigger the time in which to appeal: (i) the
lower court’s intent that its order be “final,” and (ii) compliance with Fed.
R. Civ. P. 58, which, in cases like this one, “requires entry of a document
distinct from any opinion or memorandum.” Hollywood v. City of Santa
Maria, 886 F.2d 1228, 1231 (9th Cir. 1989); see also Bankr. R. Proc. 9021
(Fed. R. Civ. P. 58 generally applies in bankruptcy). Because the April 22,
2004 minute entry does not satisfy the first requirement for appealability,
we do not reach the question of whether it satisfies the “separate docu-
ment” rule in Fed. R. Civ. P. 58.
4588 IN RE: BROWN
v. George J. Meyer Mfg. Co., 130 F.2d 582, 583 (9th Cir.
1942) (“We are satisfied that the [earlier order] was not
intended as the rendition of a judgment in favor of the defen-
dant.”); see also Am. Nat’l Bank & Trust Co. of Chicago v.
Sec’y of Hous. & Urban Dev., 946 F.2d 1286, 1289 (7th Cir.
1991) (minute entry is final order where it provided that
“Judgment is entered as follows” and then outlined the relief
ordered by the court); In re Cahn, 188 B.R. 627, 630 (9th Cir.
BAP 1995) (order granting summary judgment and dismiss-
ing adversary proceeding was final and appealable).
[3] While we recognize that “no formal words of judgment
are necessary to convey finality,” In re Slimick, 928 F.2d at
308, there must be some dispositive language sufficient to put
the losing party on notice that his entire action — and not just
a particular motion or proceeding within the action — is over
and that his next step is to appeal. The minute entry at issue
here gives exactly the opposite sort of notice. It specifically
recites that the bankruptcy judge intends to rule in the near
future on Wilshire’s then-pending motion for sanctions. See
Nat’l Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d
432, 434 (9th Cir. 1997) (“The rulings on their face demon-
strate that the court contemplated further action, and we will
not venture to guess whether the court subjectively intended
otherwise.”).
We follow a “pragmatic approach” to finality in bankruptcy
— “a complete act of adjudication need not end the entire
case, but need only end any of the interim disputes from
which an appeal would lie.” In re Slimick, 928 F.2d at 307 n.1.4
4
In re Slimick involved an order sustaining a trustee’s objection to an
amended schedule of exemptions, which was necessarily “a complete act
of adjudication” in so far as the objection constituted the entire proceeding
at hand. 928 F.2d at 307 (“the sustaining of the objection here necessarily
simultaneously denied the amended exemption claim”). The same is not
true of a motion for summary judgment within an adversary proceeding;
there, finality is achieved when the entire proceeding is dismissed, see In
IN RE: BROWN 4589
But here, the two motions clearly were intertwined. The
motion for sanctions simply cannot be characterized as
involving “discrete issue[s]” apart from the summary judg-
ment motion. In re Lazar, 237 F.3d 967, 985 (9th Cir. 2001)
(“[B]ankruptcy court order is final, and thus appealable,
where it (1) resolves and seriously affects substantive rights
and (2) finally determines discrete issue to which it is
addressed.” (internal quotations omitted)).
We have held that a minute entry triggered the time period
in which to appeal, but those cases involved post-judgment
motions for relief, which do not raise the same concerns that
the losing party lacks notice that he can exercise his right to
appeal. In Beaudry Motor Co. v. Abko Props., Inc., 780 F.2d
751 (9th Cir. 1986), for example, the district court denied a
motion for a new trial and leave to amend, both of which fol-
lowed its grant of summary judgment and entry of judgment.
Unlike Brown here, then, the plaintiff in Beaudry Motor
already knew its case was dead — judgment already had been
handed down. Its post-judgment motions were an effort to res-
urrect the case, but for purposes of appealability, they merely
stayed the time for appeal, which had otherwise begun to run.
See Fed. R. App. P. 4(a)(4)(A)(v). Thus, all that mattered was
when the district court entered its order disposing of the post-
judgment motions, because a notice of appeal must then be
filed within thirty days, measured from the entry of the order.
See Beaudry Motor, 780 F.2d at 753-54 (citing Fed. R. App.
4(a)(4)(B)).
The same is true of Ingram v. ACandS, Inc., 977 F.2d 1332
(9th Cir. 1992). That case went to trial, and judgment was
re Cahn, 188 B.R. at 630, not when one motion is granted or denied. In
other words, with respect to the “pragmatic approach” to finality, Brown’s
adversary proceeding was the “interim dispute[ ]” from which an appeal
may lie, In re Slimick, 928 F.2d at 307 n.1, not the cross-motions for sum-
mary judgment.
4590 IN RE: BROWN
entered in favor of plaintiffs on the jury’s findings. See id. at
1336 (“The [district] court determined that Fibreboard was
jointly and severally liable for the full amount of the judgment
. . . .”). The defendants’ right to pursue motions for a new trial
suspended the time in which to appeal, but unless and until
they were granted, the fact remained that they had lost and the
case was over. They did not need any further notice from the
district court on that issue.
[4] We reaffirm the rule that a minute entry ordering the
denial of a motion for new trial, after a final judgment has
already been entered, starts the appeal clock. But that’s not
the case here. The minute entry of April 22, 2004 was not a
ruling on a post-judgment motion. As already explained, it
merely memorialized the bankruptcy court’s ruling on pre-
judgment motions.
[5] Lest litigants be misled about when their time to appeal
begins to run, there must be some “clear and unequivocal
manifestation by the trial court of its belief that the decision
made, so far as it is concerned, is the end of the case.” Fia-
taruolo v. United States, 8 F.3d 930, 937 (2d Cir. 1993). As
we said in Carter v. Beverly Hills Sav. & Loan Assoc., 884
F.2d 1186, 1189 (9th Cir. 1989), “Wherever the rules estab-
lish a time requirement that limits a litigant’s ability to obtain
relief from a final judgment, it is imperative that the district
court provide a clear signal that the time period within which
that relief can be sought has begun to run.” Because that kind
of certainty is lacking here, the April 22, 2004 minute entry
cannot be deemed a final, appealable order.
[6] Accordingly, we REVERSE the district court’s order
dismissing Brown’s appeal of the summary judgment rulings
for lack of jurisdiction and REMAND for the district court’s
consideration of his appeal.
IN RE: BROWN 4591
RYMER, Circuit Judge, concurring in the judgment:
I agree that Brown’s appeal to the district court was timely,
though for somewhat different reasons.
Brown argues that the April 22 minute order was not final
because it was intertwined with a sanctions motion on which
the bankruptcy court had not yet ruled. If so, then the bank-
ruptcy court’s June 30 order regarding sanctions was the final
order, its July 6 judgment was the “separate document”
required by Fed. R. Bankr. P. 9021, and the July 15 appeal
was timely under Fed. R. Bankr. P. 8002(a).
Alternatively, if the April 22 order is independent of the
sanctions motion, then the question is whether the minute
entry was a “document” within the meaning of Bankruptcy
Rule 9021, which incorporates Fed. R. Civ. P. 58. We have
held that a minute order denying post-judgment relief consti-
tutes a “document” for purposes of Civil Rule 58 only “if it
(1) states that it is an order; (2) is mailed to counsel; (3) is
signed by the clerk who prepared it; and (4) is entered on the
docket sheet.” Ingram v. ACandS, Inc., 977 F.2d 1332, 1338-
39 (9th Cir. 1992) (citing Beaudry Motor Co. v. Abko Props.,
Inc., 780 F.2d 751, 754-55 (9th Cir. 1986)); Carter v. Beverly
Hills Sav. & Loan Ass’n, 884 F.2d 1186, 1188-90 (9th Cir.
1989). While it is possible that more should be required of a
document purporting to set forth summary judgment than of
a post-judgment order, certainly we should not require less.
This being so, the minute entry here could not trigger the
clock for filing an appeal because, at a minimum, it was not
mailed to counsel.1
As the appeal would be timely even if the minute order
were final, I wouldn’t venture to guess what more magic
1
I express no opinion as to whether electronic communication satisfies
or renders obsolete the mailing requirement in ACandS, as Wilshire’s con-
tention to this effect is not supported by the record.
4592 IN RE: BROWN
words are needed to make an order granting summary judg-
ment a final disposition in bankruptcy than “It is ordered . . .
granting Wilshire’s motion for summary judgment.” I’d stick
with In re Slimick, 928 F.2d 304, 305-06 (9th Cir. 1990).