Slimick, In re

• Decision Date: 04 June 1990
• Docket Number: No. 88-2927,88-2927
• Citation: 928 F.2d 304
• Parties: , 20 Bankr.Ct.Dec. 1754 In re Robert SLIMICK; Maxine Slimick, dba Danken Building, Danken Lounge & Restaurant, Debtors. Robert SLIMICK; Maxine Slimick, Appellants, v. Stanley E. SILVA, Trustee, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 304

928 F.2d 304

59 USLW 2283, 20 Bankr.Ct.Dec. 1754

In re Robert SLIMICK; Maxine Slimick, dba Danken Building,

Danken Lounge & Restaurant, Debtors.

Robert SLIMICK; Maxine Slimick, Appellants, v. Stanley E. SILVA, Trustee, Appellee.

No. 88-2927.

United States Court of Appeals, Ninth Circuit.

Submitted June 4, 1990 ^*.

Decided Sept. 26, 1990.

Richard Lindstrom, Placerville, Cal., for appellants.

Thomas McCampbell, Chico, Cal., for appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel.

Before NELSON and TROTT, Circuit Judges, and STEPHENS, ^** District Judge.

TROTT, Circuit Judge:

SUMMARY

Maxine and Robert Slimick, Chapter 7 debtors, appeal from the Bankruptcy Appellate Panel's ("BAP") dismissal of their appeal from the bankruptcy court's decision as untimely. 87 B.R. 98. The BAP found that the notice of appeal was not filed within the ten-day period set by Bankruptcy Rule 8002(a) and no unique circumstances existed warranting review nevertheless. We affirm.

BACKGROUND

On April 21, 1983, the Slimicks filed a Chapter 11 bankruptcy, which was converted on February 16, 1984, to Chapter 7. In their initial schedules, they elected the general federal exemption pursuant to 11 U.S.C. Sec. 522(b)(1), claiming as exempt $7,500 each. They neither specified the property claimed as exempt nor requested that the exemption be set aside in cash.

On March 11, 1985, after liquidation of the estate assets by the trustee, they sought to amend their schedule B-4 to claim as exempt the proceeds of the sale of specified assets, including a liquor license and various promissory notes. The trustee objected to the amendment on the grounds that the debtors had filed it unseasonably and had failed in their original exemption claim to list the property claimed as exempt under section 522 as required by Rule 4003(a), and that the trustee and unsecured creditors would be prejudiced.

On June 11, 1985, the bankruptcy court heard arguments regarding the trustee's objection and took the matter under submission. At the end of the hearing on the trustee's objection, the judge said:

What I'm going to do, I just haven't got the time ... to write a sweet little opinion....

I'm going to just put down "objection sustained" or "overruled."

And then ... if one of you wants to appeal, then let us know. We'll have Findings of Fact and Conclusions of Law prepared.

If no one's going to appeal, I can't waste our time.

On June 17, 1985, the court filed an Order Sustaining Trustee's Objection ("Order") stating that it was "of the opinion that the trustee's objection ... should be granted for the reasons set forth in [sic] trustee's points and authorities" and concluding, "IT IS THEREFORE ORDERED that the objection ... is, hereby sustained."

On July 16, 1985, 29 days after entry of the Order, the Slimicks filed their Request for Findings of Facts and Conclusions of Law. In this document, they recited that the court had "ruled in favor of the trustee" and had "proposed" at the hearing that either party could, as they now did, request findings and conclusions "after the order was made."

On October 31, 1985, the court filed Findings of Fact and Conclusions of Law prepared by the trustee. This document recited that "[o]n June 17, 1985, the Court gave notice of its Order Sustaining Trustee's Objection."

On November 15, 1985, the court filed a Judgment On Order Sustaining Trustee's having ruled in favor of the Trustee, sustaining the Objection, and Findings of Fact and Conclusions of Law having been ... filed ..., the Court now enters judgment as follows:

Objection ("Judgment"), also prepared by the trustee. This document states:

IT IS ORDERED that the Objection filed herein ... be and the same hereby are [sic] sustained, and the amended claim of exemptions is denied. Let judgment be entered accordingly.

Other than in title, the Judgment differed from the Order only in expressly denying the debtors' amended claim stating that the court "now enters judgment," and ordering, "Let judgment be entered accordingly"; both documents expressly sustained the trustee's objection.

On November 25, 1985, within ten days of entry of the Judgment but over five months after entry of the Order, the Slimicks filed their notice of appeal from the Judgment.

The Bankruptcy Appellate Panel ("BAP") sua sponte raised the question of the timeliness of the appeal and, after affording the parties the opportunity to file supplemental briefs, dismissed the appeal as untimely. The BAP reasoned that: (1) the Order, not the Judgment, was the final and appealable decision on the objection, so that the notice of appeal was untimely under Rule 8002(a), which sets a ten-day appeal period; and (2) the bankruptcy court had not misled the debtors to believe that they should delay filing their appeal until entry of the findings and conclusions, so that the unique circumstances doctrine did not apply. Bankruptcy Judge Volinn of the BAP dissented, arguing that the bankruptcy judge implicitly believed that entry of findings was a prerequisite for finality of his order and effectiveness of appeal, the debtors could contend they delayed appeal in reliance on the judge's implicit view, and therefore the doctrine governed.

We agree with the majority and affirm.

DISCUSSION

Initially, we must determine which, the Order or the Judgment, constituted the final, appealable order in this case. If the latter, then the appeal to the BAP was timely; if the former, then it was untimely and we must determine whether the BAP should have nevertheless exercised jurisdiction under the unique circumstances doctrine.

I Finality and Appealability of Order

28 U.S.C. Sec. 158(a) and (b)(1) grant jurisdiction to the BAP "to hear appeals from final judgments, orders, and decrees ... of bankruptcy judges ...," and (c) provides that appeals "shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules." Bankruptcy Rule 8001(a) states:

An appeal from a final ... order ... of a bankruptcy judge to a ... bankruptcy appellate panel shall be taken by filing a notice of appeal with the clerk ... within the time allowed by Rule 8002. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal....

Rule 8002(a) provides that "[t]he notice of appeal shall be filed ... within 10 days of the date of the entry of the ... order ... appealed from." Subsection (c) allows extension of the appeal period for up to twenty days upon request made before the ten-day appeal period expires, or upon request made no more than twenty days after expiration of the ten-day period plus a showing of excusable neglect. Although Rule 8002 thus incorporates some flexibility, we strictly enforce its time provisions. In re Nucorp Energy, Inc., 812 F.2d 582, 584 (9th Cir.1987). The untimely filing of a notice of appeal is jurisdictional. Id. (citing In re Souza, 795 F.2d 855, 857 (9th Cir.1986)).

This appeal raises the recurrent problem of which of two documents filed by a court, both arguably pronouncing the court's final order in a matter, constitutes 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. Schaefer, 356 U.S. at 234, 78 S.Ct. at 678; Maddox v. Black, Raber-Kief & Assocs., 303 F.2d 910, 911 (9th Cir.1962). ¹

the final, appealable order. We start from the proposition that if, after filing a final disposition, a court files a more formal judgment, the latter does not constitute a second final disposition or extend the appeal period. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 233, 78 S.Ct. 674, 678, 2 L.Ed.2d 721 (1958); Liberty Mut. Ins. Co. v. Pillsbury, 154 F.2d 559 (9th Cir.1946), cert. denied, 329 U.S. 717, 67 S.Ct. 47, 91 L.Ed. 621 (1946). Accordingly, we must determine whether the Order was the final disposition of the objection to the amended exemption claim.

The Order in the present case constituted a complete act of adjudication. The decision it expressed, sustaining the trustee's objections to the debtors' amended exemption claim, finally resolved all issues regarding the claimed exemption. It is irrelevant that the Order, unlike the later Judgment, did not expressly deny the debtors' amended exemption claim; the grant of the objection obviously and necessarily constituted such denial. ²

The absence of accompanying findings and conclusions did not prevent the Order from fully adjudicating the objection. In Steccone v. Morse-Starrett Products Co., 191 F.2d 197, 200 (9th Cir.1951), we held that the absence of findings of fact required by Fed.R.Civ.P. 52(a) did not undermine the finality of a memorandum opinion that adjudicated all matters in controversy. We explained:

Such an absence of findings would at most stamp the judgment as erroneous, not void, and a determination of its correctness, if sought, would be obtained by appeal. The absence of requisite findings of fact is not such a jurisdictional defect as would prevent an appeal.

See also Johnson v. Wilson, 118 F.2d 557, 558-59 (9th Cir.1941) (bankruptcy court's order granting judgment and reserving jurisdiction to later file opinion was final and appealable). Because the Order stated that the court based its ruling on the reasons presented in the trustee's memoranda, the record provided adequate basis for review by the BAP. Also, the absence of findings did not prevent appellants from understanding and considering the court's reasoning in deciding whether to appeal. See In re Dahnken's of Santa Barbara, Inc., 11 B.R. 536, 537-38 (9th Cir. BAP 1981) (while not jurisdictional requirement for review, findings serve to facilitate review; failure to file findings does...