In Re Rodger Kolyn Latture, 09-6016.

• Citation: 605 F.3d 830
• Decision Date: 20 May 2010
• Docket Number: No. 09-6016.,09-6016.
• Parties: In re Rodger Kolyn LATTURE, Debtor.Tracy Emann, Plaintiff-Counter-Defendant-Appellee,v.Rodger Kolyn Latture, Defendant-Counter-Claimant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

605 F.3d 830

In re Rodger Kolyn LATTURE, Debtor.

Tracy Emann, Plaintiff-Counter-Defendant-Appellee,

v.Rodger Kolyn Latture, Defendant-Counter-Claimant-Appellant.

No. 09-6016.

United States Court of Appeals, Tenth Circuit.

May 20, 2010.

Submitted on the briefs: ^*

Sam George Caporal and Mark W. Hayes, Oklahoma City, OK, for Defendant-Counter-Claimant-Appellant.

Tom M. Cummings, Oklahoma City, OK, for Plaintiff-Counter-Defendant-Appellee.

Before BRISCOE, Chief Judge, BALDOCK and GORSUCH, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff-Appellee Tracy Emann obtained a judgment against Defendant-Appellant Rodger Latture. Latture subsequently filed for bankruptcy. The bankruptcy court granted Emann's motion for summary judgment, finding Emann's claim non-dischargeable. The bankruptcy court entered summary judgment for Emann on November 14, 2008. Latture did not file his notice of appeal with the Bankruptcy Appellate Panel of the Tenth Circuit (B.A.P.) until November 25, 2008-eleven days after the bankruptcy court entered its judgment-making it one day out of time according to Fed. R. Bankr.P. 8002(a) and 9006(a). ¹ Relying on In re Herwit, 970 F.2d 709, 710 (10th Cir.1992), the B.A.P. concluded Latture's failure to file a timely notice of appeal was a jurisdictional defect which bars appellate review and, accordingly, dismissed Latture's appeal.

Like our sister circuits, we have previously declared a “failure to file a timely notice of appeal [is] a jurisdictional defect barring appellate review” of a bankruptcy court's order. In re Herwit, 970 F.2d 709, 710 (10th Cir.1992); In re Siemon, 421 F.3d 167, 169 (2d Cir.2005); In re Bond, 254 F.3d 669, 673 (7th Cir.2001); Preblich v. Battley, 181 F.3d 1048, 1057 (9th Cir.1999); In re Universal Minerals, Inc., 755 F.2d 309, 312 (3d Cir.1985); In re LBL Sports Ctr., Inc., 684 F.2d 410, 412 (6th Cir.1982). However, recent Supreme Court decisions in Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) Reed Elsevier, Inc. v. Muchnick, 559 U.S. ----, 130 S.Ct. 1237, 176 L.Ed.2d 17 (2010), as well as our own precedent in United States v. Garduño, 506 F.3d 1287 (10th Cir.2007), prompt us to reexamine In re Herwit's holding. We acknowledge, as the Supreme Court has as well, that unfortunately jurisdiction “ ‘is a word of many, too many, meanings.’ ” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n. 2 (D.C.Cir.1996)). But after careful review, we conclude these cases confirm our holding in In re Herwit-the failure to file a timely notice of appeal from a bankruptcy court's order constitutes a jurisdictional defect. We, consequently, affirm the B.A.P.'s dismissal of Latture's appeal for lack of jurisdiction.

I.

Upon granting Emann's motion for summary judgment, the bankruptcy court entered as docket entry # 48:

Memorandum Of Decision And Order Denying Motion For Summary Judgment (Related Doc # 39) For Defendant Rodger Kolyn Latture, Granting Motion For Summary Judgment (Related Doc # 42) For Plaintiff Tracy Emann Signed by Judge Bohanon cc: Judge, Cummings, Caporal, Matrix service by dcur date: 11/14/2008 (dcur, ca) Date filed corrected by the clerk's office on 11/14/2008 (dcur, ca). (Entered: 11/14/2008).

The Memorandum itself, however, is dated November 13, 2008. The bankruptcy court entered as docket entry # 49:

Judgment for Plaintiff Tracy Emann Against Defendant Rodger Kolyn Latture. BKOB # 08-089 For the reasons stated in the Memorandum of Decision and Order Signed by Judge Bohanon cc: Judge, Matrix service by dcur date: 11/14/2008. (dcur, ca) (Entered: 11/14/2008).

The Judgment itself, however, is dated November 13, 2008. Then, the docket sheet lists as entry # 50:

BNC Certificate of Mailing. (RE: related document(s) 48 Order on Motion For Summary Judgment) No. of Notices: 0. Service Date 11/16/2008. (Admin.) (Entered: 11/17/2008)

And, as entry # 51 it lists:

BNC Certificate of Mailing. (RE: related document(s) 49 Judgment) No. of Notices: 0. Service Date 11/16/2008. (Admin.) (Entered: 11/17/2008).

Fed. R. Bankr.P. 9021 provides “[a] judgment or order is effective when entered under Rule 5003.” Rule 5003, in turn, provides the bankruptcy court clerk “shall keep a docket in each case ... and shall enter thereon each judgment, order, and activity in that case.... The entry of a judgment or order in a docket shall show the date the entry is made.” Fed. R. Bankr.P. 5003(a). As we have explained on multiple occasions:

“The signing of the order or judgment by the judge does not constitute an ‘entry’ by the judge. The entry occurs when it is noted on the docket and thereby becomes public.... A document is entered when the clerk makes the notation on the official public record, the docket, of the activity or submission of the particular document.”

In re Faragalla v. Access Receivable Mgmt., 422 F.3d 1208, 1210 (10th Cir.2005) (quoting United States v. Henry Bros. P'ship, 214 B.R. 192, 195 (B.A.P. 8th Cir.1997)); see also

Herrera v. First Nat'l Sav. & Loan Ass'n, 805 F.2d 896, 899 (10th Cir.1986) (explaining that the date of entry of an order or judgment is the date it is recorded on the docket, not the date the order is “filed” or “dated”). Consequently, the effective judgment in this case was entered as docket entry # 49 on November 14, 2008.

At the time this appeal was filed, Rule 8002(a) stated: “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.” Rule 9006(a) also stated:

In computing any period of time prescribed or allowed by these rules or by the Federal Rules of Civil Procedure made applicable by these rules, by the local rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday.... When the period of time prescribed or allowed is less than 8 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

As a result, the tenth day and the last day Latture could have timely filed his notice of appeal with the B.A.P. was Monday, November 24, 2008.

II.

Latture offers three challenges to this conclusion. First, even using November 14 as the date the judgment was entered and applying the rules as we have laid them out, he claims he had until November 25 to file his notice of appeal. We fear Latture read Rule 9006(a) improperly. Yes, Rule 9006(a) instructs us to begin counting the ten days on the day after the judgment was entered: November 15. But, we cannot just add ten days to November 15 to reach the final day to file the appeal. Instead, we must look to a 2008 calendar and count ten days, with the first day beginning on November 15 and the last ending on November 24.

III.

Second, Latture questions whether his failure to timely file an appeal in compliance with Rule 8002(a) deprives the B.A.P. of jurisdiction to hear his appeal. In Kontrick, the Supreme Court unanimously held that Fed. R. Bankr.P. 4004(a), which provides the time limit for filing an objection to a debtor's discharge, and Fed. R. Bankr.P. 9006(b)(3), which provides for the enlargement of the time limit under Rule 4004(a), are not jurisdictional. Kontrick, 540 U.S. at 447, 454-56, 124 S.Ct. 906. The Court explained “[o]nly Congress may determine a lower federal court's subject-matter jurisdiction” but no statute specifies the time limit for filing an objection to a discharge. Id. at 452-54, 124 S.Ct. 906. In authorizing bankruptcy courts to adjudicate certain matters, Congress enacted some statutory provisions containing “built-in time constraints.” Id. at 453, 124 S.Ct. 906. “For example, § 157(c)(1) addresses de novo district court review of bankruptcy court findings and conclusions in noncore proceedings; that provision confines review to ‘matters to which any party has timely and specifically objected.’ ” Id. The Court also provided as another example of a statutory timeliness condition the thirty day time limit for filing a notice of appeal in a civil case set forth in 28 U.S.C. § 2107(a) (also found in Fed. R.App. P. 4(a)). Id. at n. 8. In contrast, Congress merely instructs that “ ‘objections to discharges' are ‘core proceedings' within the jurisdiction of the bankruptcy courts” without any “timeliness condition.” Id. (citing 28 U.S.C. § 157(b)(2)(J)). Because the time limits at issue were only found in Rules 4004 and 9006 and “ ‘it is axiomatic’ that [federal procedural] rules ‘do not create or withdraw federal jurisdiction,’ ” the Court concluded those time limits are “claim-processing rules that do not delineate what cases bankruptcy courts are competent to adjudicate.” Id. at 453-54, 124 S.Ct. 906 (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978)). The time limits in claim-processing rules are subject to forfeiture while time limits in jurisdictional rules may be raised as a defense at any time during litigation. See id. at 456, 124 S.Ct. 906 (“[A] court's subject-matter jurisdiction cannot be expanded to account for the parties' litigation conduct; a claim-processing rule, on the other hand, even if unalterable on a party's application, can nonetheless be forfeited if the party asserting the rule waits too long to raise the point.”).

Relying on Kontrick, a unanimous Supreme Court declared in Eberhart that Fed.R.Crim.P. 33, which provides that a motion for new trial for any reason other than newly discovered evidence must be filed within seven days after a verdict,...