Estate of Petro v. Holland

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 19, 2008
No. 07-51058 Charles R. Fulbruge III
Summary Calendar Clerk
IN THE MATTER OF IRENE ELIZABETH HOLLAND
Debtor
ESTATE OF ROSE PETRO
Appellant
v.
IRENE ELIZABETH HOLLAND
Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 06:07CV78
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
The sole issue on appeal is whether the district court erred in dismissing
this bankruptcy appeal for lack of jurisdiction and in denying a motion for
rehearing. On January 16, 2007, the bankruptcy court entered final judgment
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-51058
in Adversary Proceeding Nos. 06-6001, 06-6002, and 06-6004. On January 26,
2007, Appellant filed a motion for a new trial in Adversary Proceeding No. 06-
6001. On February 5, 2007, after the bankruptcy court closed Adversary
Proceeding No. 06-6002, Appellant filed a Rule 60(b) motion for relief from
judgment and a Rule 15(b) motion to amend arguing that counsel inadvertently
forgot to include Adversary Proceeding No. 06-6002 in the motion for a new trial
filed in Adversary Proceeding No. 06-6001. On February 9, 2007, Appellant filed
an untimely notice of appeal in Adversary Proceeding No. 06-6002. On February
20, 2007, the bankruptcy court denied the Rule 60(b) and Rule 15(b) motions in
Adversary Proceeding No. 06-6002 on the ground that counsel’s inadvertence did
not constitute excusable neglect. On May 3, 2007, Appellant filed an untimely
notice of appeal from that order.1
Meanwhile, on March 15, 2007, Appellee filed a motion to dismiss the
bankruptcy court appeal on the ground that the notice of appeal was not timely
filed. On April 4, 2007, Appellant filed a motion for leave to file an out of time
response to the motion to dismiss. On May 2, 2007, the district court granted
the motion for leave and on May 29, 2007, granted the motion to dismiss. In
doing so, the district court noted that Appellant never filed a response to the
motion to dismiss. The district court then conducted an independent review of
the record and concluded that the motion to dismiss “is meritorious and should
be granted.” On June 6, 2007, Appellant filed a motion for rehearing arguing
that the response to the motion to dismiss was included with the initial motion
for leave. On July 19, 2007, the district court denied the motion for rehearing,
noting that the response was never electronically filed in conformity with the
1
Although counsel maintains he did not receive notice of the February 20, 2007 order,
he admits he was aware of it as of April 4, 2007. Nonetheless, he did not file a notice of appeal
from that order until May 3, 2007, well beyond the 10-day deadline.
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No. 07-51058
local rules for the district court. On August 20, 2007, Appellant filed a timely
notice of appeal to this court.
We review actions taken by a district court in its appellate role for abuse
of discretion. Int’l Bhd. of Teamsters v. Braniff Airways, Inc. (In re Braniff
Airways, Inc.), 774 F.2d 1303, 1305 (5th Cir. 1985). However, “[j]urisdictional
questions are questions of law which are reviewed de novo.” Estate of Smith v.
Comm’r of Internal Revenue, 429 F.3d 533, 537 (5th Cir. 2005).
Bankruptcy Rule 8002(a) governs the time for filing a notice of appeal from
the bankruptcy court to the district court. According to that Rule, “[t]he notice
of appeal shall be filed with the clerk of the bankruptcy court within 10 days of
the date of the entry of the judgment, order, or decree appealed from.” Fed. R.
Bankr. P. 8002(a). A district court lacks jurisdiction of a bankruptcy appeal that
is not timely filed. Arbuckle v. First Nat’l Bank of Oxford (In re Arbuckle), 988
F.2d 29, 32 (5th Cir. 1993); Robinson v. Robinson (In re Robinson), 640 F.2d 737,
738 (5th Cir. 1981); Rowles, Winston & Co. v. Morrow (In re Morrow), 564 F.2d
189, 190 (5th Cir. 1977).
Because the notice of appeal was not timely filed, the district court plainly
lacked jurisdiction in this case. See In re Arbuckle, 988 F.2d at 32; In re
Robinson, 640 F.2d at 738; In re Morrow, 564 F.2d at 190. Thus, the district
court did not err in granting the motion to dismiss and in denying the motion for
rehearing.2 Appellant argues that the district court erred in failing to address
the issue of whether counsel’s inadvertence constitutes excusable neglect.
However, the bankruptcy court rejected this argument in its order denying
Appellant’s Rule 60(b) motion. Inexplicably, Appellant failed to file a timely
2
Appellant maintains that the district court granted the motion to dismiss on the
mistaken belief that Appellant failed to file a response. This contention is only partly true.
The district court also conducted an independent review of the record and concluded that the
motion to dismiss “is meritorious and should be granted.”
3
No. 07-51058
notice of appeal from that order as well. Thus, the district court did not err in
failing to address Appellant’s excusable neglect argument. AFFIRMED.
4