In re Jennings
| Decision Date | 29 February 1988 |
| Docket Number | Bankruptcy No. CV S-86-937 RDF,Adv. No. 84-094.,No. BK LV-83-0959,BK LV-83-0959 |
| Citation | 83 BR 752 |
| Parties | In re Edith Anna JENNINGS a/k/a Edith Anna Marino, Debtor. Edith Anna JENNINGS a/k/a Edith Anna Marino, Plaintiff, v. Alexander COBLENTZ, Trustee, Defendant. |
| Court | U.S. District Court — District of Nevada |
COPYRIGHT MATERIAL OMITTED
Barney C. Ales, John Peter Lee, Las Vegas, Nev., for debtor, plaintiff and appellee.
Brian K. Berman of Marquis & Haney, Las Vegas, Nev., for defendant and appellant.
AMENDED ORDER
On July 5, 1983 Edith Anna Jennings a/k/a Edith Anna Marino ("debtor") filed a voluntary chapter 11 petition in the United States Bankruptcy Court for the District of Nevada ("bankruptcy court"). On June 14, 1984 debtor filed an adversary proceeding in the bankruptcy court against Alexander Coblentz ("Coblentz") claiming that the interest charged on a pre-petition loan made by Coblentz to debtor was usurious. On July 25, 1986 judgment was entered in debtor's favor entitling debtor to recover $234,370.90.
On August 1, 1986 Coblentz filed a notice of appeal from the July 25, 1986 judgment. On August 11, 1986 Coblentz designated the record and issues to be considered on appeal by the Bankruptcy Appellate Panel of the Ninth Circuit ("BAP"). However, the clerk of the bankruptcy court did not issue the "Notice of Referral of Appeal to the Bankruptcy Appellate Panel" ("Notice of Referral") or mail the transmittal form to debtor until August 20, 1986.1 An explanatory sentence on the transmittal form attributes the delay to the "backlog of this Court."
On August 22, 1986 debtor filed with the bankruptcy court a counter designation of the record and issues to be considered on appeal. The BAP acknowledged, in a letter received and filed by the bankruptcy clerk on September 5, 1986, that the notice of appeal had been received and docketed.
On September 10, 1986 debtor filed with the clerk of the BAP an objection to reference of the appeal to the BAP. On October 2, 1986 Judge Elliot, acting alone, entered an order transferring the appeal to this court. A letter which accompanied the order stated that even though the debtor's objection was untimely, the appeal was being transferred to the district court. No explanation for the transfer was given. However, this court assumes that the transfer was allowed because of the bankruptcy clerk's delay in giving notice of the appeal and of its reference to the BAP.
At this point the parties determined that each would proceed to the Court of Appeals should the other prevail at the district court level. Both parties agreed that the proper course of action was to stipulate to a direct appeal to the Court of Appeals pursuant to 28 U.S.C. § 1293(b). However, there was some disagreement or confusion as to the form the stipulation should take.2 On November 7, 1986 the parties filed a "Notice of Appeal by Agreement Directly to the Court of Appeals Under 28 U.S.C. § 1293(b)" the preparation of which, it is intimated, was guided by the clerk of the bankruptcy court.3 On November 19, 1986 the clerk of the bankruptcy court transmitted to the clerk of the Court of Appeals a memorandum entitled "Memorandum Re: Filing Notice of Appeal To The Court of Appeals Under 28 U.S.C. § 1293(b)." On that same date the bankruptcy clerk, acting pursuant to Rule 8001(d)(1), entered an order vacating Coblentz' August 1, 1986 notice of appeal.4 The bankruptcy clerk forwarded a copy of the order vacating Coblentz' notice of appeal to the clerk of the district court and on November 20, 1986 the district court clerk, also acting pursuant to Rule 8001(d)(1), entered an order dismissing the appeal from the district court.5 On January 26, 1987 the Court of Appeals notified the parties that its jurisdiction over the appeal was questionable. Appellant Coblentz was ordered to voluntarily dismiss the appeal or show cause why it should not be dismissed for lack of jurisdiction. In his response, Coblentz acknowledged the jurisdictional defect and requested that the appeal be transferred to the BAP pursuant to 28 U.S.C. § 1693. On May 7, 1987 the Court of Appeals issued the following order:
We have no jurisdiction over this appeal from bankruptcy court. The appeal is dismissed for lack of jurisdiction. We cannot transfer the appeal because the notice of appeal was not timely. Appellant may move in the district court for reinstatement of the appeal he withdrew in reliance on this appeal and the stipulation of counsel.6
On September 17, 1987 Coblentz filed a motion with the district court to reinstate the appeal from the judgment of July 25, 1986.7 It is this motion which is now before this court.
Rule 8002(a) requires that a party wishing to appeal a judgment of the bankruptcy court file a notice of appeal "with the clerk of the bankruptcy court within 10 days" after the date "of the entry of the judgment, . . . appealed from." This time limit is jurisdictional and is strictly enforced. If a notice of appeal is not filed within the prescribed period, there is no appellate jurisdiction. In re Souza, 795 F.2d 855, 857 (9th Cir.1986); In re Abdullah, 778 F.2d 75, 77 (1st Cir.1985); In re Universal Minerals, Inc., 755 F.2d 309, 310 (3rd Cir.1985); and In re Ramsey, 612 F.2d 1220, 1221-1222 (9th Cir.1980) ().
Rule 9006(a) explains that the day on which the judgment is entered is not included in the computation of the ten (10) day period but that the "last day of the period" is included in the computation "unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday."8
The judgment was entered on the bankruptcy court's docket Friday, July 25, 1986. The time period began running Saturday, July 26, 1986. The tenth day was Monday, August 4, 1986. Coblentz' notice of appeal was filed August 1, 1986 and was therefore timely.9
28 U.S.C. § 158(a) gives the district court jurisdiction to hear appeals from bankruptcy court. As an alternative, 28 U.S.C. § 158(b) authorizes the judicial council of a circuit to establish a bankruptcy appellate panel "to hear and determine, upon consent of all the parties," appeals from the bankruptcy court. Therefore, if the parties consent, appeal may be taken directly to the BAP.
The BAP's jurisdiction derives generally from 28 U.S.C. § 158(b)(1) and specifically from The Judicial Council of the Ninth Circuit's Amended Order Establishing and Continuing the Bankruptcy Appellate Panel of the Ninth Circuit, effective May 20, 1985, ("Amended Order") which states;
When a notice of appeal is filed with the clerk of the bankruptcy court, the appeal shall be referred immediately to the bankruptcy appellate panel. All parties to the appeal shall be notified of the filing and reference within the time and in the manner provided for in Paragraph 3 of this order. Unless a party to the appeal files a written objection with the clerk of the bankruptcy appellate panel within twenty-one (21) days from the date of filing of the notice of appeal the parties will be deemed to have consented to the hearing and the disposition of the appeal by the bankruptcy appellate panel pursuant to 28 U.S.C. § 158(b)(1).10
Amended Order at ¶ 2.
Coblentz' timely notice of appeal was filed August 1, 1986. Debtor then had 21 days in which to file a written objection with the clerk of the BAP. That time expired Friday, August 22, 1986. On that date, August 22, 1986, debtor filed with the bankruptcy clerk a counter designation of the record to be considered on appeal. Debtor subsequently filed an objection with the clerk of the BAP on September 10, 1986. The objection was untimely and Judge Elliot so stated. However, debtor claims that the bankruptcy clerk's failure to give notice of the appeal and reference within the time prescribed excuses the untimeliness of the objection. (Debtor's Objection to Referral to the Bankruptcy Appellate Panel and Motion to Transfer. pp. 2-3).
It is this court's position that the clerk's delay did not extend the time period for objection or otherwise excuse the objection's untimeliness. Instead, debtor is "deemed" to have waived her personal right to an Article III adjudication by not objecting within the time prescribed by the Amended Order and has consented to adjudication by the BAP. Therefore, Coblentz appeal should have remained with, and been disposed of by, the BAP. It need not have been transferred to this court.
Recognizing that this position warrants further explanation, this court will, in the pages that follow, discuss more carefully the concept of "jurisdiction by consent" and the propriety of implied or "deemed" consent. However, to put each of these topics in context it is helpful to first discuss the jurisdiction of the bankruptcy court to be certain that the nature and character of this jurisdiction are clearly understood.
In January of 1980 Northern Pipeline Co. ("Northern") filed a voluntary petition for reorganization under The Bankruptcy Reform Act of 1978, Pub.L. 95-598, 92 Stat. 2549 ("the 1978 Act"). In March of that same year Northern filed an action in Bankruptcy Court against Marathon Pipeline Co. ("Marathon") alleging state law breaches of warranty and contract. Marathon moved for dismissal claiming that the 1978 Act "unconstitutionally conferred Article III Judicial power upon judges who" were not also granted Article III protections. Northern Pipeline Co. v. Marathon Pipeline Co., 458 U.S. 50, 56-57, 102 S.Ct. 2858, 2863-2864, 73 L.Ed.2d 598 (1982).
Northern Pipeline did not produce a majority opinion. Justice Brennan wrote for a plurality of four (4) and Justice Rehnquist authored a concurring opinion joined by...
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