Hunt v. Giuliano & Father Construction

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 7, 2005
TENTH CIRCUIT
Clerk of Court
HENNESSEY HUNT,
Plaintiff-Appellant,
v. No. 04-1466
GIULIANO & FATHER (D.C. No. 04-AP-1355)
CONSTRUCTION, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.
Hennessey Hunt appeals pro se from the district court order dismissing his
case for failing to timely file his notice of appeal pursuant to Bankruptcy Rule
8002. Additionally, appellee Giuliano & Father Construction (“Giuliano”) filed a
motion to dismiss Hunt’s appeal to this court for lack of appellate jurisdiction.
Hunt filed a “Motion Requesting Court Appoint Counsel for Appellant/Status
Report on Case Paid in Full Notice of Appeal as Well, Returned Appeal Fee if
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Proceeding Not to Go Forward: In the Tenth Circuit.” We deny the motion to
dismiss filed by Giuliano, affirm the district court’s dismissal, and deny other
pending motions as moot.
BACKGROUND:
Hunt is a state prisoner in Amarillo, Texas. He filed a claim for $8,000.00
in Giuliano’s Chapter 11 case. Giuliano objected, arguing that Hunt filed his
claim after the bar date for creditors to file petitions and that it has never “had
any business or employment arrangement with Mr. Hunt.” Appellee Br. at 4. On
April 19, 2004, the bankruptcy court for the District of Colorado denied Hunt’s
claim. On June 17, 2004, Hunt filed his notice of appeal to the district court. On
July 7, 2004, the district court ordered Hunt to show cause why the appeal should
not be dismissed as untimely. Hunt responded to the district court’s show cause
order. On September 10, 2004, in a one-page order and minute entry, the district
court dismissed Hunt’s appeal because he failed to file his notice of appeal within
ten days of the bankruptcy court’s order. The district court did not enter
judgment in a separate document. Hunt subsequently filed two motions for
reconsideration pursuant to Rule 59, and the district court denied both motions.
Hunt filed a notice of appeal with this court on November 5, 2004.
ANALYSIS:
We review de novo the district court’s dismissal of an appeal from the
bankruptcy court for lack of jurisdiction. In re Weston, 18 F.3d 860, 862 (10th
2
Cir. 1994).
A. Appellate Jurisdiction
We first address whether Hunt timely filed his notice of appeal to this
court. Timely notice of appeal is mandatory and jurisdictional. Senjuro v.
Murray, 943 F.2d 36, 37 (10th Cir. 1991) (per curiam).
Giuliano asserts that this court lacks appellate jurisdiction because Hunt did
not file his notice of appeal until early November 2004. Giuliano argues that the
deadline for Hunt to file his notice of appeal was October 25, 2004, which was
one month after the district court denied his first motion to reconsider. See Fed.
R. App. P. 4(a).
Giuliano’s argument fails. Because the district court did not set forth a
separate judgment entry dismissing Hunt’s case, judgment is entered 150 days
after the entry in the civil document.
Rule 58 requires that “every judgment and amended judgment must be set
forth on a separate document. . . .” Fed. R. Civ. P. 58(a)(1). Where a separate
judgment is required, judgment is entered “when the earlier of these events
occurs: (A) when it is set forth on a separate document, or (B) when 150 days
have run from entry in the civil docket under Rule 79(a).” Fed. R. Civ. P.
58(b)(2). “[W]here no separate judgment is entered within 150 days, judgment is
deemed entered when 150 days have run from entry in the civil docket.” Funk v.
LFLM Defendants, 382 F.3d 1058, 1064 (10th Cir. 2004).
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In this case, the district court’s order of dismissal does not satisfy the
separate document requirement. See id. at 1063-64 (10th Cir. 2004); Clough v.
Rush, 959 F.2d 182, 185 (10th Cir. 1992). Because the district court failed to set
forth the judgment on a separate document, judgment was entered 150 days after
the district court entered the order on the civil docket. Thus, Hunt’s time for
filing a notice of appeal began to run 150 days after September 10, 2004. See
Freudensprung v. Offshore Technical Servs., 379 F.3d 327, 335 (5th Cir. 2004).
Hunt filed his notice of appeal on November 5, 2004. This court treats
Hunt’s notice of appeal “as filed on the date of and after the [judgment] entry”
because he filed it “after the court announces a decision or order – but before the
entry of the judgment or order.” Fed. R. App. P. 4(a)(2); see Ford v. MCI
Commc’ns Corp. Health & Welfare Plan, 399 F.3d 1076, 1080-81 (9th Cir. 2005).
Hunt’s notice of appeal is timely, and this court has appellate jurisdiction
over this case. 1
B. Timeliness of Hunt’s appeal to the district court
Because we have appellate jurisdiction, we next consider whether Hunt’s
notice of appeal to the district court was timely. We agree with the district
1
Even though the district court failed to enter its dismissal in a separate
document, this court has jurisdiction of final decisions of the district court
pursuant to 28 U.S.C. § 1291. See Kunkel v. Continental Cas. Co., 866 F.2d
1269, 1272 n.3 (10th Cir. 1989). Because no question exists as to the finality of
the district court’s decision, the absence of a separate judgment entry does not
prohibit appellate review. See id.4
court’s conclusion that Hunt’s appeal to the district court was untimely.
According to Bankruptcy Rule 8002, Hunt had ten days after the dismissal
from the bankruptcy court to file his appeal with the district court. Fed. R. Bankr.
P. 8002. This court strictly construes the time requirements of Rule 8002. In re
Herwit, 970 F.2d 709, 710 (10th Cir. 1992). The bankruptcy court may extend
the time for filing a notice of appeal only as permitted by Rule 8002(c).
In this case, the district court correctly held that Hunt’s notice of appeal
was untimely. Hunt’s notice of appeal was due on April 29, 2004, which was ten
days after the bankruptcy court denied Hunt’s claim. But Hunt did not file his
notice of appeal until June 17, 2004, which was fifty-nine days after the
bankruptcy court’s order disallowing his claim. Moreover, Hunt did not request
an extension within the ten-day period. Nor did he request an extension due to
excusable neglect. Fed. R. Bankr. P. 8002(c)(2). Further, that Hunt is an
incarcerated pro se litigant does not change the result. See Senjury v. Murray,
943 F.2d 36, 37 (10th Cir. 1991) (per curiam).
Because Hunt failed to file a timely notice of appeal from the bankruptcy
court, the district court correctly held that it had no jurisdiction over this case.
Accordingly, we AFFIRM the district court’s dismissal, DENY the motion
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to dismiss filed by Giuliano, and DENY all other pending motions as moot.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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