Wiersma v. Bank of the West , 483 F.3d 933 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JIM LEE WIERSMA; In re: 
PATRICIA DARLENE WIERSMA,
Debtors,
No. 05-35246
JIM LEE WIERSMA; PATRICIA
DARLENE WIERSMA, BAP Nos.
Appellants,  ID-02-01523-MaPB
ID-02-01541-MaPB
v.
ID-03-01215-MaPB
BANK OF THE WEST, f/k/a United ID-03-01224-MaPB
California Bank,
Appellee,
UNITED STATES TRUSTEE,
Trustee-Appellee.

In re: JIM LEE WIERSMA; In re: 
PATRICIA DARLENE WIERSMA,
Debtors,
No. 05-35248
BANK OF THE WEST, f/k/a United
California Bank,  BAP No.
ID-02-01523-MaPB
Appellant,
OPINION
v.
JIM LEE WIERSMA; PATRICIA
DARLENE WIERSMA,
Appellees.

3921
3922 IN RE WIERSMA
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Brandt, Perris, and Marlar, Bankruptcy Judges, Presiding
Argued and Submitted
November 14, 2006—Portland, Oregon
Filed April 6, 2007
Before: Warren J. Ferguson, Diarmuid F. O’Scannlain, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Ferguson
IN RE WIERSMA 3925
COUNSEL
Brent T. Robinson, Ling, Robinson, & Walker, Rupert, Idaho,
for the debtors-appellants/cross-appellees.
Kelly Greene McConnell, Givens Pursley LLP, Boise, Idaho,
for the appellee/cross-appellant.
Michele M. Mansfield and Knight Elsberry, United States
Department of Justice, Executive Office for the United States
Trustee, Washington, D.C., for the appellee.
OPINION
FERGUSON, Circuit Judge:
Debtors Jim and Patricia Wiersma (“Debtors”), former
dairy farmers, appeal the decision of the Bankruptcy Appel-
late Panel (“BAP”) of the Ninth Circuit on issues related to
their Chapter 11 bankruptcy case.
Debtors allege error in the BAP’s conclusions that (1) cred-
itor Bank of the West (“Bank”) held a secure interest in Debt-
ors’ settlement proceeds; (2) issues pertaining to court
approval of that settlement were moot; (3) the bankruptcy
court did not err in denying confirmation of Debtors’ Second
Amended Plan for reorganization; and (4) the bankruptcy
court acted within its discretion in dismissing Debtors’ bank-
ruptcy case. Bank cross-appeals the BAP’s assertion of juris-
diction over the Secured Status Order, as does the U.S.
Trustee. The Trustee also appeals the BAP’s assertion of
jurisdiction over the bankruptcy court’s order of February 5,
3926 IN RE WIERSMA
2003, and urges the court to affirm the BAP’s conclusion that
the bankruptcy court did not abuse its discretion in dismissing
Debtors’ case.
We reverse the BAP’s holding that it had jurisdiction over
the Secured Status Order and, in a separate memorandum dis-
position, affirm the BAP on all other issues.
FACTUAL AND PROCEDURAL HISTORY
In 1985, Debtors began operating a large dairy farm in
Idaho. In 1998, they obtained a loan from Bank of the West
(f/k/a Sanwa Bank, f/k/a United California Bank), secured by
Debtors’ contractual rights to payment, general intangibles,
livestock, and milk products quota.
Faulty wiring installed and maintained at the dairy by Giet-
zen Electric (“Gietzen”) caused electrical shocks to the 2,000-
cow herd, and many of the animals became sick and died. In
September 2000, Debtors commenced an action in state court
against Gietzen for the losses caused by the faulty wiring.
Debtors raised claims of negligence, breach of contract, negli-
gent hiring and supervision, fraud, violations of the state Con-
sumer Protection Act, and breach of warranty. They sought
approximately $6 million in damages.
As a result of the electrical shocks to the animals, Debtors’
business suffered, and in October 2001 Debtors filed for
Chapter 11 bankruptcy. Bank had a $2.2 million secured
credit claim, making it Debtors’ largest secured creditor. In
July 2002, Debtors filed a Motion To Determine Secured Sta-
tus to clarify what right, if any, Bank and O.H. Kruse (another
creditor, no longer a party to this action) held in the proceeds
of Debtors’ pending lawsuit against Gietzen. In September
2002, the bankruptcy court issued an order resolving the
respective interests in the Gietzen settlement (“Secured Status
Order” or “Order”). The Order held that both Bank and Kruse
IN RE WIERSMA 3927
had secured interests in any settlement proceeds. Debtors
timely appealed to the BAP.
In December 2002, the BAP clerk issued an order raising
questions about the finality of the Secured Status Order (and
thus its immediate appealability). The clerk’s order stated,
“The routine jurisdictional screening conducted by the BAP
suggests that there may be an issue concerning the finality of
the order on appeal.” In re Wiersma, Nos. ID-02-1523, ID-02-
1541 (B.A.P. 9th Cir. Dec. 5, 2002) (clerk’s order re finality
issue). The BAP order gave the parties fourteen days to brief
the finality issue. One week later, Bank submitted its
response, which, according to the BAP’s subsequent sum-
mary, “contend[ed] that there might be additional appeals
arising from the underlying bankruptcy case in the immediate
future.” In re Wiersma, Nos. ID-02-1523, ID-02-1541 (B.A.P.
9th Cir. Jan. 17, 2003) (order re finality issue). Debtors did
not respond to the order.
On January 17, 2003, the BAP issued a second order
regarding the finality of the Secured Status Order, directing
Debtors and Kruse to explain why the order was final, why
leave to appeal should be granted, and why the appeals should
not be stayed pending the confirmation hearing. Id. It also
stated, “Failure to timely respond may result in dismissal of
their respective cross-appeals for lack of prosecution.” Id.
On February 7, 2003, the BAP dismissed Debtors’ appeal
of the Secured Status Order for failure to prosecute. It gave
Debtors ten days to request judicial review and reconsidera-
tion of the order. Eleven days later, Debtors filed a response
with the Bankruptcy Court for the District of Idaho, not with
the BAP. The BAP received the response several days later,
construed it as an untimely request for judicial review, denied
it, and left the February 7 dismissal in place.
In April 2003, after the bankruptcy court dismissed Debt-
ors’ bankruptcy case, Debtors appealed the Secured Status
3928 IN RE WIERSMA
Order of several months earlier. On appeal, the BAP vacated
its prior dismissal of Debtors’ first appeal of the Secured Sta-
tus Order, concluding that the dismissal had been in error.
With one judge dissenting in part, the BAP held that it had
jurisdiction over the appeal of the Secured Status Order
because of its inherent authority to correct its own mistakes
and because of the unique circumstances doctrine. Wiersma v.
O.H. Kruse Grain & Milling (In re Wiersma), 324 B.R. 92,
104, 105 (B.A.P. 9th Cir. 2005). Bank appeals this holding.
DISCUSSION
We review de novo jurisdictional issues in bankruptcy
cases. Mantz v. Cal. State Bd. of Equalization (In re Mantz),
343 F.3d 1207, 1211 (9th Cir. 2003).
[1] Generally, a party to a bankruptcy action must file a
notice of appeal within ten days after entry of the order being
appealed. Fed. R. Bankr. P. 8002(a). The timely appeal
requirement is jurisdictional. Preblich v. Battley, 181 F.3d
1048, 1056 (9th Cir. 1999). “[T]he failure to timely file a
notice of appeal is a jurisdictional defect barring appellate
review.” Lopez v. Long (In re Long), 255 B.R. 241, 243
(B.A.P. 10th Cir. 2000) (quotations omitted). The purpose of
the Rule is to enable “prompt appellate review, often impor-
tant to the administration of a case under the Code.” Fed. R.
Bankr. P. 8002 advisory committee note.
[2] In this case, the order in question is the Secured Status
Order of September 20, 2002, in which the bankruptcy court
held that the Gietzen settlement proceeds belonged to Bank.1
Debtors timely appealed this order to the BAP on September
1
The U.S. Trustee argues that Debtors’ appeal of the bankruptcy court’s
settlement approval order is also untimely and hence jurisdictionally
barred. The BAP, however, did not assert jurisdiction over that portion of
the appeal. It properly dismissed the settlement appeal as moot and thus
nonjusticiable.
IN RE WIERSMA 3929
30, 2002, within ten days of the filing of the Order. After
Debtors twice failed to respond to the BAP clerk’s questions
concerning finality, however, the BAP dismissed that appeal
for failure to prosecute. Debtors’ second appeal of the
Secured Status Order was filed on April 9, 2003, six and a
half months after the Order was filed, well beyond the ten-day
limit provided by Fed. R. Bankr. P. 8002(a).
Nevertheless, the BAP held that it retained jurisdiction for
two reasons. First, it concluded that because a court has juris-
diction to correct its own mistakes, it was entitled to correct
its “mistake” with regard to the finality of the Order. Second,
the BAP held that the unique circumstances doctrine allowed
the untimely appeal to proceed because the BAP clerk’s final-
ity orders had misled Debtors into believing the Order was
interlocutory. For the reasons discussed below, neither of
these rationales justifies the BAP’s exercise of jurisdiction
over the Secured Status Order.
Finality
[3] As a threshold issue, we must determine whether the
Order was in fact final. If it was interlocutory, as Debtors
argue, their appeal in April was timely. If, on the other hand,
the Order was final, the appeal should have been filed within
ten days of its issuance. Fed. R. Bankr. P. 8002.
[4] An order is final if it constitutes a complete adjudication
of the issues at bar and clearly evidences the judge’s intention
that it be final. In re Slimick, 928 F.2d 304, 307 (9th Cir.
1990). The Secured Status Order met these requirements. The
bankruptcy court’s determination of Bank’s security interest
in any proceeds from the Gietzen suit resolved every issue
relating to the validity and extent of the Bank’s liens. Subse-
quent appeals of the court’s refusal to confirm a plan and its
decision to dismiss the case did not relate to the court’s analy-
sis of Bank’s ability to attach the Gietzen settlement proceeds.
Regardless of the outcome of the plan confirmation, Bank’s
3930 IN RE WIERSMA
interests were resolved by the Order. The record also evi-
dences the judge’s intent that the Secured Status Order be
final where the judge stated, “As far as I’m concerned in
[these] proceedings that’s a final order.” In re Wiersma, No.
BK-01-41874 (Bankr. D. Or. Mar. 28, 2003) (judge’s tele-
phonic ruling).
Furthermore, “a bankruptcy order is appealable where it 1)
resolves and seriously affects substantive rights and 2) finally
determines the discrete issue to which it is addressed.” In re
Frontier Properties, Inc., 979 F.2d 1358, 1363 (9th Cir.
1992). In determining the parties’ respective interests in the
proceeds of a major damages action, the Secured Status Order
resolved and seriously affected the parties’ substantive rights
and finally determined to whom the proceeds would flow. As
the bankruptcy judge observed, “If this case were to be dis-
missed presumably the bank would be entitled to receive the
1.442 million dollars in cash from the Gietzen settlement.” In
re Wiersma, No. BK-01-41874 (Bankr. D. Or. Mar. 28, 2003)
(judge’s telephonic ruling).
[5] For these reasons, we conclude the Order was final and
Debtors’ first appeal was not interlocutory.
Doctrine of Mistake
[6] A bankruptcy court has the authority to correct its own
mistakes of fact by discharging a prior order. Cisneros v.
United States (In re Cisneros), 994 F.2d 1462, 1466 (9th Cir.
1993). In Cisneros, the court granted the debtors a full com-
pliance discharge after it mistakenly concluded that all credi-
tors had been paid. Id. at 1464. In fact, however, the Internal
Revenue Service had filed a proof of claim that went unre-
corded and unpaid. Id. The court learned this fact after it had
discharged the case, and it accordingly dismissed the dis-
charge and reinstated the case. Id. On appeal, we affirmed the
bankruptcy court’s authority to vacate the discharge based on
“a misapprehension as to the facts of the case.” Id. at 1467.
IN RE WIERSMA 3931
[7] A bankruptcy court also retains “inherent power to cor-
rect its own clerical errors.” Duplessis v. Valenti (In re
Valenti), 310 B.R. 138, 147 (B.A.P. 9th Cir. 2004) (quoting
Ford v. Ford (In re Ford), 159 B.R. 590, 593 (Bankr. D. Or.
1993)); see also Fed. R. Civ. P. 60(a); Fed. R. Bankr. P. 9024.
Clerical errors involve “administrative lapse[s].” In re Brown,
No. 02-63073-aer13, 2006 Bankr. LEXIS 939, at *18 (Bankr.
D. Or. May 31, 2006).
In this case, the BAP concluded that it made two mistakes
in the original dismissal. First, it “mistakenly believed the
[Secured Status Order was] interlocutory.” In re Wiersma,
324 B.R. at 104. Second, it “mistakenly dismissed [the
appeal] for lack of prosecution when [its] orders were
intended . . . to dismiss the appeals as interlocutory.” Id. Nei-
ther mistake is sufficient to discharge the original order dis-
missing the appeal.
[8] The first mistake, regarding the actual status of the
order as either interlocutory or final, is an issue of law, not
one of fact. Cisneros, on which the BAP relied, dealt with the
bankruptcy court’s misapprehension of whether all creditors
had been paid, an issue of fact. Cisneros, 994 F.2d at 1467.
Cisneros did not deal with whether the court correctly ana-
lyzed the legal issues on appeal. The BAP’s legal mistake in
this case cannot be characterized as a “clerical error.”
[9] The second purported mistake, that the BAP dismissed
the appeal for failure to prosecute when it really meant to dis-
miss it as interlocutory, could be the type of administrative
lapse that constitutes a clerical error. That this was such an
error, however, is not supported by any evidence in the
record. The second order by the BAP court clerk explicitly
stated that failure to respond to the request for briefing on the
finality issue “may result in dismissal . . . for lack of prosecu-
tion.” In re Wiersma, Nos. ID-02-1523, ID-02-1541 (B.A.P.
9th Cir. Jan. 17, 2003) (order re finality issue) (emphasis
added). When Debtors failed to respond, that is exactly what
3932 IN RE WIERSMA
happened: “the appeal [was] DISMISSED for failure to prose-
cute.” In re Wiersma, Nos. ID-02-1523, ID-02-1541 (B.A.P.
9th Cir. Feb. 7, 2003) (order of dismissal). There is no evi-
dence that the BAP’s intent was to dismiss the appeal as inter-
locutory. As the dissenting BAP judge recognized, “There
was neither an inadvertent misapprehension of the facts, nor
did the initial dismissals not reflect the panel’s real inten-
tions.” In re Wiersma, 324 B.R. at 115 (Brandt, J., dissenting
in part).2
[10] For these reasons, there was no mistake of fact that
would justify revoking the BAP’s dismissal of the original
appeal of the Secured Status Order.
Doctrine of Unique Circumstances
[11] The second doctrine invoked by the BAP to justify its
jurisdiction was the doctrine of unique circumstances. In re
Wiersma, 324 B.R. at 104-05. Under the doctrine of unique
circumstances, a party’s untimeliness in appealing an order
may be excused if the party relied on the specific assurances
of a court that the appeal would be timely. Osterneck v. Ernst
& Whinney, 489 U.S. 169, 179 (1989).3
In concluding that the unique circumstances doctrine
allowed it to revisit the Secured Status Order, the BAP relied
on In re McAuley v. Orange Coast Thrift & Loan Ass’n (In
re McAuley), 66 B.R. 696, 700 (B.A.P. 9th Cir. 1986). In re
McAuley adopted the “reasonable, good faith reliance” stan-
dard established in United Artists Corp. v. La Cage Aux Fol-
2
Judge Brandt was in an ideal position to determine the panel’s intent:
the second order to show finality, threatening to dismiss for failure to
prosecute, had been before him.
3
The doctrine arose from three Supreme Court cases in the 1960s. See
Wolfsohn v. Hankin, 376 U.S. 203 (1964); Thompson v. INS, 375 U.S. 384(1964); Harris Truck Lines v. Cherry Meat Packers, Inc., 371 U.S. 215(1962).
IN RE WIERSMA 3933
lies, Inc., 771 F.2d 1265, 1268 (9th Cir. 1985). In re McAuley,
66 B.R. at 700. Under that test, an appellant’s untimely appeal
will be overlooked if, in good faith, she reasonably relied on
some action by the court that led her to believe a later appeal
would still be timely. United Artists, 771 F.2d at 1268. In
Slimick v. Silva (In re Slimick), 928 F.2d 304, 309-10 (9th Cir.
1990), however, we expressly disapproved of the United Art-
ists standard in light of the Supreme Court’s decision in
Osterneck. See also Mount Graham Red Squirrel v. Madigan,
954 F.2d 1441, 1462 (9th Cir. 1992) (observing that
“[s]ubsequent decisions of the Supreme Court and of our
court . . . have invalidated the good faith and reasonable reli-
ance standard”).
[12] In the wake of Osterneck, In re Slimick, and Mt. Gra-
ham Red Squirrel, it is no longer sufficient for the appellant
to show that her delay was caused by her reasonable and good
faith reliance on some action by a judicial officer that led her
to believe a delayed appeal would be timely. Rather, “the doc-
trine applies only where a court has affirmatively assured a
party that its appeal will be timely.” In re Slimick, 928 F.2d
at 310 (emphasis added). It is not enough that the court have
engaged in some “ambiguous or implicitly misleading con-
duct.” Id. The court must have “explicitly misl[ed] a party.”
Allred v. Kennerley (In re Kennerley), 995 F.2d 145, 148 (9th
Cir. 1993).
In this case, the BAP concluded that it had “led [Debtors]
to believe that their original appeals were interlocutory” and
that they could therefore wait to appeal until after the final
order was issued. In re Wiersma, 324 B.R. at 105. The BAP
held that Debtors had “relied, in good faith, on the panel’s
judicial action in renewing their appeals in 2003.” Id.[13] In using a “good faith” standard, the BAP misapplied
the unique circumstances doctrine. The BAP should have
determined whether it or the bankruptcy court had explicitly
misled Debtors or given affirmative assurances that a subse-
3934 IN RE WIERSMA
quent appeal would be timely. See In re Kennerley, 995 F.2d
at 148; In re Slimick, 928 F.2d at 309-10. A review of the
record indicates there were no such assurances. The BAP
clerk’s order stated, “The routine jurisdictional screening con-
ducted by the BAP suggests that there may be an issue con-
cerning the finality of the order on appeal.” In re Wiersma,
Nos. ID-02-1523, ID-02-1541 (B.A.P. 9th Cir. Dec. 5, 2002)
(clerk’s order re finality issue) (emphasis added). At no point
did the BAP actually conclude that the Order was interlocu-
tory and that appeal would be available later in the case.
[14] At most, the BAP’s language in the order was “ambig-
uous or implicitly misleading,” but even that conduct “does
not release litigants from their appeal deadlines.” In re Slim-
ick, 928 F.2d at 310. If Debtors believed the BAP clerk’s
requests for briefing on the finality issue were conclusions
that the appeal was interlocutory, they should have sought
clarification that they would be allowed to file a timely appeal
later in the proceedings. See id.[15] For these reasons, the unique circumstances doctrine
did not give the BAP jurisdiction to reconsider the Secured
Status Order.
Law of the Case Doctrine
[16] Finally, the BAP’s exercise of jurisdiction over the
Order violates the law of the case doctrine. “Under the ‘law
of the case’ doctrine, a court is ordinarily precluded from
reexamining an issue previously decided by the same court,
or a higher court, in the same case.” Hydrick v. Hunter, 466
F.3d 676, 687 (9th Cir. 2006) (quoting Richardson v. United
States, 841 F.2d 993, 996 (9th Cir. 1988)); see also Coleman
v. Calderon, 210 F.3d 1047, 1052 (9th Cir. 2000) (discussing
finality rationale for the doctrine). Had the BAP actually
made a mistake or had there been unique circumstances,
equity concerns might outweigh the finality concerns of the
IN RE WIERSMA 3935
doctrine. In this case, however, the BAP’s decision to revisit
a previously dismissed issue was improper.
CONCLUSION
The BAP no longer retained jurisdiction over the appeal of
the Secured Status Order after it dismissed the appeal for fail-
ure to prosecute. The doctrines of mistake and unique circum-
stances do not justify the BAP’s reassertion of jurisdiction
over the issue at the end of the case. Furthermore, the law of
the case doctrine precludes the BAP from revisiting the Order.
For these reasons, the BAP’s holding that it had jurisdiction
to review the Secured Status Order is REVERSED.