170 B.R. 453 (D.Kan. 1994), 91-40410-11, In re Wiston XXIV Ltd. Partnership

Docket NºBankruptcy No. 91-40410-11.
Citation170 B.R. 453
Party NameIn re WISTON XXIV LIMITED PARTNERSHIP. BALCOR PENSION INVESTORS V, Plaintiff/Appellee/Cross-Appellant, v. WISTON XXIV LIMITED PARTNERSHIP, Defendant/Appellant/Cross-Appellee. Civ. A. No. 93-4097-DES.
Case DateJuly 15, 1994
CourtUnited States District Courts, 10th Circuit, United States District Courts. 10th Circuit. District of Kansas

Page 453

170 B.R. 453 (D.Kan. 1994)

In re WISTON XXIV LIMITED PARTNERSHIP.

BALCOR PENSION INVESTORS V, Plaintiff/Appellee/Cross-Appellant,

v.

WISTON XXIV LIMITED PARTNERSHIP, Defendant/Appellant/Cross-Appellee.

Civ. A. No. 93-4097-DES.

Bankruptcy No. 91-40410-11.

United States District Court, D. Kansas.

July 15, 1994

Page 454

[Copyrighted Material Omitted]

Page 455

William H. Zimmerman, Jr., Minter, Case & Zimmerman, Wichita, KS, Joel Pelofsky, Shughart, Thomson & Kilroy, Kansas City, MO, for Wiston XXIV Ltd. Partnership.

Harry D. Dixon, Jr., Dixon & Dixon P.C., Omaha, NE, for Robert L. Thompson and Wiston Management Inc.

Jonathan A. Margolies, McDowell, Rice & Smith, P.C., Kansas City, MO, Michael L. Molinaro, Katten, Muchin & Zavis, Chicago, IL, for Balcor Pension Investors V.

Daniel M. Runion, Western Resources, Inc., Topeka, KS, Douglas G. Peterson, Missouri

Page 456

Gas Energy, Law Div., Kansas City, MO, for Western Resources, Inc.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter is before the court on the appeal taken by the debtor, Wiston XXIV Limited Partnership ("Wiston") from the orders of the bankruptcy court filed on April 2, 1993, denying confirmation of the debtor's fourth amended plan of reorganization under Chapter 11 and granting relief from the automatic stay to Wiston's primary creditor, Balcor Pension Investors V ("Balcor"). 1 Balcor cross-appeals from the order denying confirmation and from certain other orders of the bankruptcy court.

The facts underlying this dispute have previously been set forth in the memorandum decision of this court filed November 12, 1992. See In re Wiston XXIV Ltd. Partnership, 147 B.R. 575, 577-78 (D.Kan.1992), appeal dismissed, 988 F.2d 1012 (10th Cir.1993). On remand, the bankruptcy court entered orders on April 2, 1993, denying confirmation of the debtor's fourth amended plan and granting Balcor relief from the automatic stay so that it could proceed with the foreclosure sale of the debtor's apartment complex. Wiston, pursuant to Bankruptcy Rule 9023, timely filed a motion for reconsideration.

A hearing was held on the motion to reconsider on April 13, 1993, at which time the bankruptcy court orally issued its ruling denying Wiston's motion to reconsider. The bankruptcy court directed counsel for Balcor to prepare and submit a written order. The court signed the order denying reconsideration on April 20, 1993. The order was entered on the bankruptcy court's docket on April 21, 1993.

Wiston filed its notice of appeal with the clerk of the bankruptcy court, pursuant to Bankruptcy Rule 8001(a), on April 20, 1993. The notice of appeal stated Wiston's intent to appeal the final judgments entered by the bankruptcy court on April 2, 1993. On April 30, 1993, Balcor filed its notice of cross-appeal as permitted by Bankruptcy Rule 8002(a).

Balcor contends that this court lacks subject matter jurisdiction to consider Wiston's appeal because its notice of appeal was untimely filed. The court agrees, but for different reasons than those advanced by Balcor. 2

The untimely filing of a notice of appeal is a jurisdictional defect barring appellate review. E.g., In re Herwit, 970 F.2d 709, 710 (10th Cir.1992); In re Slimick, 928 F.2d 304, 306 (9th Cir.1990); In re Colorado Energy Supply, Inc., 728 F.2d 1283, 1285 (10th Cir.1984); In re Cordry, 149 B.R. 970, 975 (D.Kan.1993); see Fed.R.Bankr. 8001(a)

Page 457

(failure of appellant to take any step other than timely filing of notice of appeal does not affect validity of appeal). The court may consider the timeliness of an appeal sua sponte. In re Nucorp Energy, Inc., 812 F.2d 582, 584 (9th Cir.1987); In re Stagecoach Utilities, Inc., 86 B.R. 229, 230 (9th Cir. BAP 1988).

As a general rule, the notice of appeal must be filed with the clerk of the bankruptcy court within ten days of the entry date of the judgment or order from which the appeal was taken. Fed.R.Bankr. 8002(a). The filing date is the date the notice of appeal was received by the bankruptcy court clerk. Fed.R.Bankr. 8008(a); In re Herwit, 970 F.2d at 710 n. 2. In this instance, Wiston brings its appeal from the order denying confirmation and granting relief from the stay, entered on April 2, 1993. Under the general rule, therefore, Wiston's notice of appeal filed with the bankruptcy clerk on April 20, 1993, would have been untimely.

However, a motion to reconsider pursuant to Rule 9023 3 brings into question the correctness of the underlying decision, and therefore tolls the time for filing a notice of appeal until entry of the order granting or denying the motion to reconsider. See In re Shields, 150 B.R. 259, 260 (D.Colo.1993); In re Frontier Airlines, Inc., 108 B.R. 274, 275-76 & n. 3 (D.Colo.1989). In this event, Rule 8002(b) governs the time for filing the notice of appeal. It reads as follows:

(b) Effect of motion on time for appeal

If a timely motion is filed by any party: (1) under Rule 7052(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (2) under Rule 9023 to alter or amend the judgment; or (3) under Rule 9023 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect; a new notice of appeal must be filed. No additional fees shall be required for such filing.

(Emphasis added.) Hence, when a timely motion is filed to reconsider or to alter or amend the bankruptcy court's order, the ten-day time for filing the notice of appeal runs from the date of entry of the order granting or denying the motion. In re American Freight System, Inc., 153 B.R. 316, 319 (D.Kan.1993).

The time requirements of Rule 8002 are strictly construed and require strict compliance. See In re Herwit, 970 F.2d at 710; In re Slimick, 928 F.2d at 306; In re Souza, 795 F.2d 855, 857 (9th Cir.1986); In re Weston, 139 B.R. 543, 546 (D.Utah 1992), aff'd, 18 F.3d 860 (10th Cir.1994). The language of the rule explicitly requires the notice of appeal to be filed within the ten days after the entry of the order denying reconsideration. In re Sweet Transfer & Storage, Inc., 896 F.2d 1189, 1192 (9th Cir.1990). Notice filed before entry or more than ten days later is ineffective. Id. This rule is consistent with the principle that a judgment of the bankruptcy court is final, and therefore appealable, only after it has been entered on the docket of the bankruptcy case. See Fed.R.Bankr. 9021(a) (judgment effective when entered pursuant to Rule 5003); Fed.R.Bankr. 5003(a) (entry of judgment or order in a docket shall show the date entry is made); see also In re Rozark Farms, Inc., 139 B.R. 463, 464 (E.D.Mo.1992).

In this case, Wiston's notice of appeal was received by the bankruptcy court clerk and filed on April 20, 1993. Although the bankruptcy court orally denied the motion to reconsider on April 13, 1993, the written order he signed on April 20 was not entered by the bankruptcy court clerk until April 21, 1993. To take an appeal, Wiston was therefore required to file its notice of appeal within the ten day period commencing with the date the document was entered representing final disposition of the issue from which the appeal was taken, in this case April 21, 1993. See In re Weston, 139 B.R. at 547 (time for appeal commences with entry

Page 458

of document representing final disposition of issue appealed from); see also Stelpflug v. Federal Land Bank of St. Paul, 790 F.2d 47, 49-50 (7th Cir.1986) (entry of...

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4 practice notes
  • 172 B.R. 647 (D.Kan. 1994), 91-40410-11, In re Wiston XXIV Ltd. Partnership
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • August 19, 1994
    ...In a Memorandum and Order filed and entered on the docket on July 15, 1994, this court dismissed Wiston's appeal for lack of jurisdiction, 170 B.R. 453. Specifically, the court dismissed Wiston's appeal because the notice of appeal was premature and, therefore, untimely On July 25, 1994, Wi......
  • 328 B.R. 137 (Bkrtcy.W.D.Mo. 2005), 04-046536-11, In re Vantage Investments, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Eighth Circuit
    • August 5, 2005
    ...Life Assurance Soc'y of the United States, 674 F.2d 134, 143 (2nd Cir.1982); Balcor Pension Investors v. Wiston XXIV Ltd. P'ship., 170 B.R. 453, 460 (Bankr.D.Kan.1994). Since it is the Debtor urging that the provision is an unenforceable penalty, the Debtor bears the burden of demonstrating......
  • 388 B.R. 202 (Bkrtcy.W.D.Tex. 2008), 07-10642, In re Save Our Springs (S.O.S.) Alliance, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Fifth Circuit
    • April 11, 2008
    ...he had any tangible means of satisfying that promise. In re Wiston XXIV, Ltd. P'ship, 153 B.R. 322, 327 (Bankr.D.Kan.1993), appeal dism'd, 170 B.R. 453,motion to amend denied, 172 B.R. 647,aff'd, 45 F.3d 441 (10th Cir.1994), cert. denied sub nom. Wiston XXIV Ltd. P'ship v. Balcor Pension In......
  • In re Save Our Springs Alliance, Inc., 041108 TXWBC, 07-10642
    • United States
    • Federal Cases United States Bankruptcy Courts Fifth Circuit
    • April 11, 2008
    ...had any tangible means of satisfying that promise. In re Wiston XXIV, Ltd. P'ship, 153 B.R. 322,327 (Bankr. D. Kan. 1993), appeal dism'd, 170 B.R. 453, motion to amend denied, 172 B.R. 647, affd, 45 F.3d 441 (10th Cir. 1994), cert, denied sub nom, Wiston XXIV Ltd. P'ship v. Balcor Pension I......
4 cases
  • 172 B.R. 647 (D.Kan. 1994), 91-40410-11, In re Wiston XXIV Ltd. Partnership
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • August 19, 1994
    ...In a Memorandum and Order filed and entered on the docket on July 15, 1994, this court dismissed Wiston's appeal for lack of jurisdiction, 170 B.R. 453. Specifically, the court dismissed Wiston's appeal because the notice of appeal was premature and, therefore, untimely On July 25, 1994, Wi......
  • 328 B.R. 137 (Bkrtcy.W.D.Mo. 2005), 04-046536-11, In re Vantage Investments, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Eighth Circuit
    • August 5, 2005
    ...Life Assurance Soc'y of the United States, 674 F.2d 134, 143 (2nd Cir.1982); Balcor Pension Investors v. Wiston XXIV Ltd. P'ship., 170 B.R. 453, 460 (Bankr.D.Kan.1994). Since it is the Debtor urging that the provision is an unenforceable penalty, the Debtor bears the burden of demonstrating......
  • 388 B.R. 202 (Bkrtcy.W.D.Tex. 2008), 07-10642, In re Save Our Springs (S.O.S.) Alliance, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Fifth Circuit
    • April 11, 2008
    ...he had any tangible means of satisfying that promise. In re Wiston XXIV, Ltd. P'ship, 153 B.R. 322, 327 (Bankr.D.Kan.1993), appeal dism'd, 170 B.R. 453,motion to amend denied, 172 B.R. 647,aff'd, 45 F.3d 441 (10th Cir.1994), cert. denied sub nom. Wiston XXIV Ltd. P'ship v. Balcor Pension In......
  • In re Save Our Springs Alliance, Inc., 041108 TXWBC, 07-10642
    • United States
    • Federal Cases United States Bankruptcy Courts Fifth Circuit
    • April 11, 2008
    ...had any tangible means of satisfying that promise. In re Wiston XXIV, Ltd. P'ship, 153 B.R. 322,327 (Bankr. D. Kan. 1993), appeal dism'd, 170 B.R. 453, motion to amend denied, 172 B.R. 647, affd, 45 F.3d 441 (10th Cir. 1994), cert, denied sub nom, Wiston XXIV Ltd. P'ship v. Balcor Pension I......

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