In re Lang

Decision Date08 July 2005
Docket NumberNo. 04-4064.,04-4064.
Citation414 F.3d 1191
PartiesIn re Marsha McQuarrie LANG, also known as Marsha Lang, also known as Marsha M. Lang, Debtor. Robert F. Lang, M.D., Plaintiff-Appellee, v. Marsha McQuarrie LANG, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Marsha McQuarrie Lang, pro se.

Steven W. Dougherty of Anderson & Karrenberg, Salt Lake City, UT, for Appellee.

Before HENRY, BRISCOE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

This appeal* arises out of an adversary proceeding brought by Robert F. Lang against debtor Marsha McQuarrie Lang to establish the non-dischargeability of a claim, determine Ms. Lang's liability therefor, and award a money judgment. The bankruptcy court resolved these matters in Mr. Lang's favor, and Ms. Lang appealed to the Bankruptcy Appellate Panel (BAP). When it became apparent that the appeal was untimely,1 Ms. Lang filed a motion for extension of time under Fed. R. Bankr.P. 8002(c) to file a second, timely notice of appeal. The bankruptcy court denied the motion, because Ms Lang had not demonstrated the excusable neglect required for relief under the rule. Ms. Lang appealed to the BAP, which affirmed. Lang v. Lang (In re Lang), 305 B.R. 905 (10th Cir. BAP 2004). She now appeals to this court. We affirm the Rule 8002(c) ruling on the basis of the BAP's opinion, which we formally adopt. We also reject, for reasons explained below, Ms. Lang's attempt to use this appeal as a vehicle to raise jurisdictional objections relating to the underlying bankruptcy court decision on Mr. Lang's substantive claim, i.e., the judgment from which she failed to take a timely appeal.

Rule 8002(c) Ruling

"The question of excusable neglect [under Rule 8002(c)] is by its very nature left to the discretion of the bankruptcy court whose decision should not be set aside unless the reviewing court, a district court [or BAP] or court of appeals, has a definite and firm conviction that the court below committed a clear error of judgment." Eck v. Dodge Chem. Co. (In re Power Recovery Sys., Inc.), 950 F.2d 798, 801 (1st Cir.1991). Thus, the governing standard of review and the ruling at which it is directed are the same for us as it was for the BAP. See Lang, 305 B.R. at 908 & n. 15. We agree fully with the well-reasoned opinion of the BAP and, as we have on other appropriate occasions, we formally adopt the decision, attached as an appendix hereto, as our own.2 See, e.g., Hollytex Carpet Mills, Inc. v. Okla. Employment Sec. Comm'n (In re Hollytex Carpet Mills, Inc.), 73 F.3d 1516, 1518 (10th Cir.1996).

Lack of Appellate Jurisdiction to Review Bankruptcy Court Jurisdiction

Ms. Lang devotes a large portion of her appellate briefing to an attack on the bankruptcy court's jurisdiction over the adversary proceeding resolved in favor of Mr. Lang as summarized above. Recognizing the procedural discontinuity between the judgment concluding the adversary proceeding and the collateral ruling before us, she seeks to bridge the gap by invoking the familiar principle that "[s]o long as a case is pending, the issue of federal court jurisdiction may be raised at any stage of the proceedings either by the parties or by the court on its own motion." Ramey Constr. Co. v. Apache Tribe, 673 F.2d 315, 318 (10th Cir.1982). This argument has some facial appeal, but is undercut here by another, even more basic jurisdictional principle.

The Supreme Court has made it clear that a court's threshold determination of its jurisdiction is a prerequisite to any judicial action: "Without jurisdiction the court cannot proceed at all in any cause," and, thus, "when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quotation omitted). This principle applies with equal force to appellate jurisdiction. See, e.g., United States v. Ceballos-Martinez, 387 F.3d 1140, 1143, 1146 (10th Cir.), cert. denied, ___ U.S. ___, 125 S.Ct. 624, 160 L.Ed.2d 466 (2004); Butler v. Biocore Medical Techs., Inc., 348 F.3d 1163, 1166 (10th Cir.2003).

Because our power to review any decision—including decisions involving a lower court's subject matter jurisdiction—depends on our appellate jurisdiction, "[o]n every ... appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes." Steel Co., 523 U.S. at 94, 118 S.Ct. 1003 (quotation omitted and emphasis added). Thus, "the question of this Court's jurisdiction (i.e., our appellate jurisdiction) is antecedent to all other questions, including the question of the subject matter of the District Court." Petroleos Mexicanos Refinacion v. M/T KING A (Ex-TBILISI), 377 F.3d 329, 333 n. 4 (3d Cir.2004) (holding appellant's challenge to district court's subject matter jurisdiction could not be reached until appellate jurisdiction was established); accord Resolution Trust Corp. v. Sonny's Old Land Corp., 937 F.2d 128, 129 (5th Cir.1991) ("Before addressing the district court's jurisdiction on removal, we must decide our own jurisdiction."). While this court has not stated the point so explicitly, we have adhered to its substance. See, e.g., Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1276 (10th Cir.2001) ("Having established our appellate jurisdiction, we now turn to the merits of [this] appeal regarding the district court's subject matter jurisdiction over [plaintiff's] state law claims.").

Two concrete examples will illustrate this important point and help to flesh out its application here. Suppose a party moved to dismiss a case for lack of jurisdiction and the district court denied the motion. Such a ruling is generally not subject to interlocutory appeal. See Magic Circle Energy 1981-A Drilling Program v. Lindsey (In re Magic Circle Energy Corp.), 889 F.2d 950, 954 (10th Cir.1989) (citing Catlin v. United States, 324 U.S. 229, 236, 65 S.Ct. 631, 89 L.Ed. 911 (1945)); John E. Burns Drilling Co. v. Cent. Bank of Denver, 739 F.2d 1489, 1491 (10th Cir.1984) (same). But this well-established prohibition on interlocutory review would be left meaningless if, as Ms. Lang contends, the lack of appellate jurisdiction did not preclude review of questions of trial court jurisdiction: following the denial of a motion to dismiss for lack of jurisdiction, the movant could bring an unauthorized appeal and still insist that the appellate court decide the jurisdictional issue on the basis that such matters can be raised at any time.

Or, more directly germane to the present circumstances, suppose the same case proceeded to final judgment and no appeal was taken. Then months later, the unsuccessful movant filed an untimely notice of appeal. One of the most firmly rooted and fundamental principles of appellate practice is the rule that a timely appeal is a prerequisite to appellate review. Yet Ms. Lang would have us hold that the untimely appellant could still insist on appellate review because a jurisdictional challenge was involved.

The direct application of the jurisdictional point made above is obscured here somewhat by the presence of two complicating circumstances that may divert attention away from the salient procedural facts, but in the end neither should have any effect on the analysis. First, the appellate jurisdictional deficiency here (Ms. Lang's failure to take a timely appeal from the underlying judgment) arose at the BAP level, not our circuit level. But for this fact to have any pertinence, it would have to be possible for a party to cure an untimely appeal to one court by appealing the resultant dismissal of that appeal to the next higher court while actually seeking review of the underlying ruling of the trial court. That is not the law. Many decisions in the bankruptcy context demonstrate that an untimely appeal to an intermediate appellate court, a district court or BAP, precludes a subsequently reviewing circuit court from reaching the underlying bankruptcy court ruling even when the intermediate court has erroneously done so. See, e.g., Deyhimy v. Rupp (In re Herwit), 970 F.2d 709, 709-10 (10th Cir.1992); Arbuckle v. First Nat'l Bank of Oxford (In re Arbuckle), 988 F.2d 29, 32 (5th Cir.1993) (per curiam); Ramsey v. Ramsey (In re Ramsey), 612 F.2d 1220, 1221-22 (9th Cir.1980). And, consistent with the authority discussed earlier, the fact that the untimely appeal challenged the bankruptcy court's subject matter jurisdiction would not alter that result. See Arbuckle, 988 F.2d at 32.

Second, this case concerns the denial of Ms. Lang's motion for extension of time to file the BAP appeal, not the dismissal of the BAP appeal itself. But this also is immaterial to the analysis. An unsuccessful motion to cure an untimely appeal cannot itself be the vehicle for review of the matter not timely appealed. Generally, a ruling on a post-judgment motion is subject to independent appeal separate from the underlying judgment, and this is true of proceedings on motions for extension of time. 15B Charles Alan Wright, et al., Federal Practice and Procedure § 3916, at 351, 375-76 (2d ed.1992); see, e.g., Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir.2004). The scope of this stand-alone appeal "should be restricted to the questions properly raised by the post-judgment motion [and] should not extend to revive lost opportunities to appeal the underlying judgment." Wright et al., supra, § 3916, at 351; see, e.g., Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 627 & n. 2 (1st Cir.2000); cf. Stubblefield v. Windsor Capital Group, 74 F.3d 990, 993-94 (10th Cir.1996) (discussing Rule 60(b) cases). This principle is especially apt here, where the limited reach of the post-judgment appeal is clear as a matter of logic and common sense—if a party appealing the denial of an extension motion were allowed to challenge the underlying substantive...

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