In re Rozark Farms, Inc.
| Decision Date | 19 March 1992 |
| Docket Number | Bankruptcy No. 86-00113-BKC-BSS,No. S91-0035C.,S91-0035C. |
| Citation | 139 BR 463 |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | In re ROZARK FARMS, INC., Debtor. CARNAHAN, CARNAHAN & HICKLE, Appellant, v. ROZARK FARMS, INC., et al., Appellees. |
Carl J. Spector, Bryan Cave McPheeters & McRoberts, St. Louis, Mo., for plaintiff.
Melvin E. Carnahan, Carnahan Carnahan & Hickle, Rolla, Mo., Bruce D. Livingston, Jim J. Shoemake, Guilfoil, Petzall & Shoemake, St. Louis, Mo., for defendants.
This cause is before the Court on an appeal from the United States Bankruptcy Court for the Eastern District of Missouri (hereinafter referred to as the Bankruptcy Court). Boatmen's Bank of Rolla, a creditor and party-in-interest, has filed a motion to dismiss contending that appellant Carnahan's appeal is improper and untimely, and therefore this Court lacks jurisdiction to review the Bankruptcy Court's order(s).
After reviewing the parties' pleadings, the Court finds the following procedural facts to be relevant to the disposition of this matter: On December 17, 1990, the Bankruptcy Court held a hearing regarding the Carnahan Fee Application, and announced certain findings and conclusions from the bench. On December 21, 1990, the Bankruptcy Court issued a written order documenting its oral pronouncements from the bench. This written order allowed Carnahan an administrative claim for $3833.89 in expenses, but denied the balance of the claim for attorneys' fees. The December 21, 1990 written order was entered on the docket on January 2, 1991. Meanwhile, on December 27, 1990 Carnahan filed its first notice of appeal, citing the oral order of December 17, 1990; and Boatmen's Bank filed a motion to amend the written order of December 21, 1990. Both the notice of appeal and the motion to amend were docketed also on January 2, 1991. The motion to amend sought denial of the administrative fees as well as the attorneys' fees. On January 22, 1991 the Bankruptcy Court issued a written order granting Boatmen's motion to amend, thereby denying both Carnahan's administrative costs and attorneys' fees. The January 22, 1991 order was entered on the docket on January 23, 1991. On February 4, 1991 Carnahan filed a motion to amend the order of January 22, 1991 and an amended notice of appeal citing both the oral order of December 17, 1990 and the written order of January 22, 1991. On February 5, 1991 the Bankruptcy Court denied Carnahan's motion to amend. The February 5, 1991 written order was entered on the docket on February 6, 1991. On February 14, 1991 Carnahan filed a Statement of Issues on Appeal and a Designation of the Record on Appeal.
The bankruptcy rules are very specific as to the appellate process regarding decisions rendered by the bankruptcy courts. Bankruptcy Rule 8002(a) requires that a "notice of appeal be filed with the clerk within 10 days of the date of the entry of judgment, order, or decree appealed from." Under Bankruptcy Rule 8001(a), an appeal can only be taken from a final judgment, order or decree. An order is final and therefore appealable only after it has been entered on the docket of the bankruptcy case. Bankruptcy Rules 5003(a) and 9021. However, the time period for filing a notice of appeal can be altered if any party files a timely motion "1) for judgment notwithstanding the verdict under Rule 9015; 2) under Rule 7052(b) to amend or make additional findings of fact . . .; 3) under Rule 9023 to alter or amend the judgment; or 4) under Rule 9023 for a new trial . . .". Bankruptcy Rule 8002(b). Bankruptcy Rule 8002(b) goes on to specifically state that "a notice of appeal filed before the disposition of any of the above motions shall have no effect; a new notice of appeal must be filed.".
Appellant Carnahan spends a considerable amount of time leading the Court through an exercise distinguishing among the finer points of when an order is "filed", "issued", or "entered". As enlightening as that might be, such distinctions are irrelevant to the issue at hand. Carnahan's two notices of appeal were premature by virtue of the motions to amend and consequently had no effect. The Bankruptcy Court's final appealable order regarding Carnahan's Fee Application was entered on the docket on February 6, 1991. Carnahan had ten (10) days, starting with February 7, 1991, in which to file its appeal. Instead, Carnahan filed a Statement of Issues on Appeal and a Designation of the Record on Appeal.
Bankruptcy Rule 8001(a) contains very specific requirements for a notice of appeal and addresses the consequences of failure of timely filing a notice of appeal. In pertinent part it reads:
Carnahan's Statement of Issues on Appeal and Designation of the Record on Appeal does not in any way conform to Official Form 35 or with Rule 8001(a). Carnahan argues, though, that the Court should accept these documents as the "functional equivalent" of a notice of appeal. Appellant relies on a few cases addressing the liberal interpretation of the appellate rules (governing civil cases in the district court) regarding the filing of a notice of appeal. Appellant fails to cite any caselaw which addresses whether or not the designation of issues and record on appeal, pursuant to Bankruptcy Rule 8006, can substitute as a notice of appeal pursuant to Ban...
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