In re Good, BAP No. NM-02-022.
| Decision Date | 07 August 2002 |
| Docket Number | Adversary No. 99-1190-M.,BAP No. NM-02-022.,Bankruptcy No. 7-99-13657 MS. |
| Parties | In re Deborra S. GOOD, doing business as That's Dancin' Studio, Debtor. Carol S. Dimeff, Plaintiff-Appellant, v. Deborra S. Good, Defendant-Appellee. |
| Court | Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Tenth Circuit |
Carol S. Dimeff, pro se.
George M. Moore of George M. Moore & Associates, Albuquerque, New Mexico, for defendant — appellee.
Before PUSATERI, CLARK, and BOHANON, Bankruptcy Judges.
Carol S. Dimeff ("Dimeff") appeals an order of the United States Bankruptcy Court for the District of New Mexico awarding Deborra S. Good, the Chapter 7 debtor ("Debtor"), attorney's fees pursuant to 11 U.S.C. § 523(d), and an order denying her motion for reconsideration of the fee award ("Reconsideration Order"). The Debtor has moved to dismiss the appeal for lack of appellate jurisdiction ("Motion to Dismiss"). For the reasons set forth below, the Court hereby GRANTS the Debtor's Motion to Dismiss in part, DENIES the Motion to Dismiss in part, and AFFIRMS the bankruptcy court's Reconsideration Order.1
Prior to the filing of the Debtor's Chapter 7 petition, Dimeff obtained a credit card and allowed the Debtor to use it to purchase a car. The Debtor ultimately returned the credit card to Dimeff, but she did not repay the credit card debt. Dimeff sued the Debtor in a New Mexico court for the unpaid debt, and she moved for summary judgment. When the Debtor did not respond to Dimeff's summary judgment motion the State Court deemed her to have admitted the facts asserted in Dimeff's complaint, and entered judgment against her in the amount of approximately $7,000, plus interest.
Shortly after entry of the State Court's judgment, the Debtor filed her Chapter 7 petition. Dimeff timely commenced an adversary proceeding against the Debtor in the bankruptcy court seeking a determination that the Debtor's debt to her was nondischargeable under 11 U.S.C. § 523(a)(2)(A) and (a)(4), and requesting that the Debtor's discharge be denied under 11 U.S.C. § 727(a)(4). On March 15, 2001, after the entry of a Pretrial Order and a trial, the bankruptcy court entered its Findings of Fact and Conclusions of Law and a Judgment in favor of the Debtor, dismissing Dimeff's complaint ("Underlying Judgment"). The bankruptcy court refused to deny the Debtor's discharge, holding that Dimeff had failed to meet her burden of proof under § 727(a)(4). It also did not except the Debtor's debt to Dimeff from discharge under § 523(a)(2)(A), because Dimeff presented no proof that the Debtor had made a false representation in using Dimeff's credit card.2 On April 19, 2001, Dimeff moved to set the Underlying Judgment aside, but her motion was denied by the bankruptcy court by an order entered on July 23, 2001.
After entry of the Underlying Judgment, the Debtor filed a motion pursuant to 11 U.S.C. § 523(d) ("Fee Motion"), and an application detailing the fees and costs requested ("Application"). Dimeff responded to the Fee Motion and the Application, the parties engaged in discovery, and several hearings were held. The bankruptcy court took the Fee Motion and Application under advisement following the conclusion of a final hearing.
On February 20, 2002, the bankruptcy court entered two separate documents disposing of the Fee Motion: a "Memorandum Opinion," and an "Order Granting in Part Defendant's Motion for Award of Attorney's Fees" ("Fee Motion Order"). In the Memorandum Opinion, the bankruptcy court stated that Dimeff was required to pay the Debtor's fees as required under § 523(d) because (1) it was undisputed that Dimeff had commenced an action against the Debtor under § 523(a)(2)(A) and that the Debtor's debt to Dimeff was discharged by the Underlying Judgment; (2) the debt in question was a credit card debt and a "consumer debt"; (3) Dimeff failed to prove that her § 523(a)(2)(A) action was substantially justified; and (4) Dimeff failed to show that special circumstances prevented the imposition of a fee award under § 523(d). Although the Debtor was entitled to fees under § 523(d), the bankruptcy court only allowed a portion of the fees requested in the Application. It concluded that fees attributable to the portion of the adversary proceeding dealing with § 523(a) and the Fee Motion could be billed to Dimeff under § 523(d), but that any fees related to litigation of the § 727(a) cause of action could not.
The separate Fee Motion Order entered by the bankruptcy court in conjunction with the Memorandum Opinion states: Fee Motion Order, in Appellee's Appendix at 23.
On March 4, 2002, the bankruptcy court, apparently on its own initiative, entered a second document related to the Fee Motion and Application, entitled "Judgement" ("Fee Judgment"). The Fee Judgment states: Fee Judgment, in Appellee's Appendix at 26.
On March 8, 2002, sixteen days after entry of the Fee Motion Order, but only four days after entry of the Fee Judgment, Dimeff filed a "Motion for the Court to Reconsider Award of Attorney Fees" ("Reconsideration Motion"), and a Notice of Appeal, stating that she was appealing the Fee Judgment. On or about March 19, 2002, the bankruptcy court denied the Reconsideration Motion by entering the Reconsideration Order.
On March 28, 2002, within ten days of the entry of the Reconsideration Order, Dimeff filed an "Amended Notice of Appeal"3 appealing the Fee Judgment as well as the Reconsideration Order. Although the Underlying Judgment, dismissing her §§ 523(a)(2) and 727(a)(4) complaint, is not mentioned in either Dimeff's Notice of Appeal or Amended Notice of Appeal, papers filed herein indicate that Dimeff also contests the Underlying Judgment.
The Debtor has moved to dismiss Dimeff's appeal, arguing that the Court lacks appellate jurisdiction because Dimeff's attempt to appeal the Underlying Judgment is untimely, as is her appeal of the Fee Judgment and Reconsideration Order. Dimeff contests the Debtor's Motion to Dismiss.
Section 158(a)(1) of title 28 of the United States Code grants this Court appellate jurisdiction over "final judgments, orders, and decrees" entered by a bankruptcy court. 28 U.S.C. § 158(a)(1); see id. at § 158(b)-(c). "[A] decision is ordinarily considered final and appealable under [§ 158(a)(1)] only if it `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)), quoted in Personette v. Kennedy (In re Midgard Corp.), 204 B.R. 764, 768 (10th Cir. BAP 1997).
Appeals of "final judgments, orders or decrees" must be filed within the time set forth in Fed.R.Bankr.P. 8002. This Rule states, in relevant part, that:
(a) Ten-Day Period. The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from.... A notice of appeal filed after the announcement of a decision or order but before entry of the judgment, order, or decree shall be treated as filed after such entry on the day thereof....
(b) Effect of Motion on Time for Appeal. If any party makes a timely motion of a type specified immediately below, the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion: ... (2) to alter or amend the judgment under Rule 9023; (3) for a new trial under Rule 9023; or (4) for relief under Rule 9024 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment, order, or decree but before disposition of any of the above motions is ineffective to appeal from the judgment, order, or decree, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding. Appellate review of an order disposing of any of the above motions requires the party, in compliance with Rule 8001, to amend a previously filed notice of appeal.
Fed.R.Bankr.P. 8002(a)-(b). It is well-established that Rule 8002 "`is strictly construed and requires strict compliance,' and the failure to timely file a notice of appeal is `a jurisdictional defect barring appellate review.'" Lopez v. Long (In re Long), 255 B.R. 241, 243 (10th Cir. BAP 2000) (quoting Deyhimy v. Rupp (In re Herwit), 970 F.2d 709, 710 (10th Cir.1992)); see generally Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)) (timely appeal is jurisdictional prerequisite).
Based on this law and for the reasons stated below, the Debtor's Motion to Dismiss must be partially granted, because Dimeff's appeal of the Underlying Judgment and the bankruptcy court's award of fees under § 523(d) is untimely under Rule 8002. But, also for the reasons stated below, Dimeff's appeal of the final Reconsideration Order is timely, and thus, the Court partially denies the Debtors' Motion to Dismiss and, upon review, concludes that the bankruptcy court must be affirmed.
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