Gravel and Shea v. Vermont Nat. Bank
| Decision Date | 30 November 1993 |
| Docket Number | 2:92-CV-244.,Civ. A. No. 2:92-CV-147 |
| Court | U.S. District Court — District of Vermont |
| Parties | GRAVEL AND SHEA, Appellant, v. VERMONT NATIONAL BANK, Appellee. |
Norman C. Williams, Robert F. O'Neill, Gravel & Shea, Burlington, VT, for appellant.
Richard A. Lang, Jr., Frank E. Talbott, Wilson, Powell, Lang & Faris, Burlington, VT, for appellee.
Appellant Gravel and Shea, a law firm, seeks review of an adverse decision of the Bankruptcy Court pursuant to 28 U.S.C. § 158.1 To this end, the instant appeal advances four theories under which Gravel and Shea is entitled to review. After a brief chronology of the relevant facts, the merits of Gravel and Shea's position will be discussed.
The adverse order that Gravel and Shea seeks to have reviewed is Bankruptcy Judge Conrad's June 13, 1991 bench ruling indicating that Vermont National Bank ("VNB") was entitled to certain funds of the Debtor held in escrow. Gravel and Shea had claimed an interest in these funds and disagreed with the Bankruptcy Judge's ruling. The firm filed a notice of appeal on June 18, 1991. On June 21, 1991, VNB submitted proposed findings of fact and conclusions of law, which the Bankruptcy Court adopted on September 12, 1991.
On September 23, 1991, Gravel and Shea mailed a Motion for Reconsideration to the Bankruptcy Court, which was filed September 24. A hearing was held on December 11, 1991. At the hearing, the Court stated that it would deny the motion to reconsider, but that it would amend a portion of its findings of fact. On January 29, 1992, a written order reflecting the substance of the December 11 hearing was submitted to the Bankruptcy Court, as the Court had directed. The written Order had been reviewed by Gravel and Shea and VNB prior to its submission.
The order was signed on February 5 and was filed on February 7, 1992. Because of an error in the Clerk of the Courts office, neither party was sent notice that the Order was signed and docketed. Gravel and Shea inquired of the Clerk's office on February 25, 1992 and learned that the Order had been entered on February 7.
On February 28, Gravel & Shea filed a notice of appeal and a motion to extend time to file notice of appeal. On March 5, Gravel and Shea also filed a motion to vacate and reissue order, or in the alternative, to give effect to notice of appeal dated June 18, 1991 ("motion to vacate").
VNB opposed the motion to vacate but did not oppose the motion to extend time. On March 20, the Bankruptcy Court denied the motion to extend time, stating, "this Court is without jurisdiction to extend the time to appeal under the facts of this motion." The Order was docketed April 20, 1992 and Gravel and Shea properly appealed the Bankruptcy Judge's determination to this Court.
The Bankruptcy Court denied the motion to vacate on July 20, 1992. The Bankruptcy Court did not discuss Gravel and Shea's alternative request that the June 18, 1991 notice of appeal be given effect. Gravel and Shea also appealed to this Court for review of this order. The two appeals were consolidated on January 4, 1993.
Gravel and Shea's appeals of the two Orders of the Bankruptcy Court argue that: (1) the Bankruptcy Court should have extended the appeal period based on excusable neglect, and thus its April 20 order denying an extension of time should be reversed; (2) the Bankruptcy Court should have vacated and reissued its February 7 order denying reconsideration to permit appellate review, and thus the July 20 order denying the motion to vacate should be reversed; and (3) the Bankruptcy Court never considered Gravel and Shea's argument that the June 18, 1991 notice of appeal should be given effect, thus the July 20 order should be modified and the June 18 notice given effect.
In addition to the above arguments, Gravel and Shea raises an alternative theory that it did not argue in any its motions in Bankruptcy Court. Gravel and Shea now argues that the February 28, 1992 notice of appeal was timely in the first instance because the February 7 order was not properly entered on the docket sheet of the Bankruptcy Court, and thus the appeals period did not start to run until a corrected entry was made. The Court will address this argument first because if the February 28 notice of appeal should indeed be given effect, the need to discuss the Bankruptcy Court's denial of the motions to extend time and to vacate will be obviated.
VNB's primary objection to Gravel and Shea's argument that the February 7 docket entry was incorrect and thus did not start the appeals period is that Gravel and Shea waived this argument by not raising it in any of the Bankruptcy proceedings. Gravel and Shea rebuts this assertion by pointing out that an appellant need not convince a lower court that its appeal is timely; such a determination is the within the province of the appellate court. See Rule 4, F.R.A.P.; Rule 8002, F.R.B.P.; Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 57, 103 S.Ct. 400, 401, 74 L.Ed.2d 225 (1982) ()
In other words, Gravel and Shea argues that the motions to extend time to file appeal and the motion to vacate, which were initially filed in Bankruptcy Court, become significant only if this Court decides that the February 28, 1993 notice was indeed untimely under F.R.B.P. 8002. Because those motions were premised on the assumption that the appeal notice was untimely, Gravel and Shea asserts that "there is simply no occasion for an appellant to argue to a trial court that it filed its appeal notice in a timely fashion."
The Court substantially agrees with this contention. While it is true that the incorrect docket entry issue has been waived with respect to this Court's review of Bankruptcy Judge Conrad's decisions not to extend time to file a notice of appeal and not to vacate and reissue the February 7 order, the question of whether the February 28 notice of appeal was timely was never presented to the Bankruptcy Court.2 Thus the determination of the timeliness of the February 28 notice of appeal must be made independent of any review of the motions for extension of time and to vacate.
The parties agree that Bankruptcy Rule 8002 provides an appeals period of ten days from the date of entry of the order to be appealed from. The Rule specifies that the appeals period runs "from the entry of" the order appealed from. In this case the order that Gravel and Shea seeks to have reviewed was filed and docketed on February 7, 1992. If this was also the date of entry, there can be no doubt that the notice of appeal was untimely. However, the docket entry in question stated:
2/07/92 61 ORDER/granting Motion # 45 by Defendant for Reconsideration of Court\'s Decision to Amend Findings of Fact and for Stay of Writ of Execution.
(Record, Tab 1). The entry is incorrect. Although one finding of fact was modified by Bankruptcy Judge Conrad, the motion for Reconsideration was denied. (Record, Tab 13). The docket was corrected on June 20 with the following entry:
06/20/92 61X RE; # 61 — DOCKET ENTRY WAS IN ERROR — Should read: ORDER: a.) Denying that part of Motn # 45, for Reconsideration; b.) Granting that part of Motn # 45, to amend Finding of fact # 10, and Denying in all other respects; c.) Granting Motn # 52 for Stay of Execution, and granting to VT Natl Bnk leave to reapply to this Crt for a Writ of Execution. Cps: As stated @# 61.
Thus the timeliness of the February 28 notice turns on the question of whether the appeal period began to run on February 7 or on June 20.
Bankruptcy Rule 9021 requires that F.R.B.P. 9021 Rule 5003 provides that:
The clerk shall keep a docket in each case under the Code and shall enter thereon each judgment, order, and activity in that case as prescribed by the Director of the Administrative Office of the United States Courts. The entry of a judgment or order in a docket shall show the date the entry is made.
F.R.B.P. 5003(a). There is no dispute that the date of entry was shown on the docket. The question is whether the incorrect entry3 can be considered an "entry" under Rule 8002 for the purpose of starting the appeal period. VNB argues that the plain reading of Rules 9021 and 5003 does not require the that the entry be correct, but only requires that the docket show the date of entry.4 Gravel and Shea argues that the entry must reflect the substance of the judgment and the date entry was made. See 7 Moore's Federal Practice ¶ 79.02 (); Charles Wright, Arthur Miller, Federal Practice and Procedure § 3103 (1973) (); O'Brien v. Harrington, 233 F.2d 17, 20 (D.C.Cir.1956) (...
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