Intern. Coating Applicators, Inc., In re, s. 79-1656
| Decision Date | 16 April 1981 |
| Docket Number | 79-1657 and 79-1658,Nos. 79-1656,s. 79-1656 |
| Parties | , Bankr. L. Rep. P 68,324 In re INTERNATIONAL COATING APPLICATORS, INC., Lou Ann Garroutte d/b/a International Coating Applicators, Inc., and Jerry Dean Garroutte d/b/a International Coating Applicators, Inc., Bankrupts, FIRST NATIONAL BANK & TRUST COMPANY OF PONCA CITY, Oklahoma, Plaintiff-Appellee, v. INTERNATIONAL COATING APPLICATORS, INC., Lou Ann Garroutte and Jerry Dean Garroutte, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John G. Maddox of Armstrong, Burns, Baumert, Maddox & Cummings, Ponca City, Okl. for plaintiff-appellee.
John E. Northcutt, of Northcutt, Northcutt, Raley, Clark, Gardner, Hron & Northcutt, Ponca City, Okl., for defendants-appellants.
Before McWILLIAMS, BREITENSTEIN, and LOGAN, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
International Coating Applicators, Inc., and its owners, Lou Ann Garroutte and Jerry Dean Garroutte in their individual capacities, filed petitions in bankruptcy. The corporation and the Garrouttes will hereinafter be referred to as Garroutte.
The First National Bank & Trust Company of Ponca City, Oklahoma, a creditor of Garroutte, filed a complaint in the Garroutte bankruptcy proceeding wherein the Bank objected to discharge of Garroutte's indebtedness to the Bank. The basis for the Bank's objection was that Garroutte had obtained loans from the Bank by the means of false and misleading financial statements and inventory records. After an evidentiary hearing, the Bankruptcy Judge found that certain loans by the Bank resulted from false and misleading representations by Garroutte and that Garroutte's indebtedness to the Bank in the sum of $27,034.00 was nondischargeable. Accordingly, on June 30, 1978, judgment was entered in favor of the Bank and against Garroutte, the bankrupt, in the sum of $27,034.00.
As indicated, judgment was entered on June 30, 1978. Nothing occurred thereafter in the proceeding between the Bank and Garroutte until August 4, 1978. On that date Garroutte filed the following: (1) a notice of appeal to the District Court from the Bankruptcy Court's judgment; (2) a motion for new trial on the grounds that the order of the Bankruptcy Judge was against the weight of the evidence and that the Bankruptcy Judge considered matters not in evidence; and (3) a motion for rehearing to allow a further presentation of evidence.
Underlying Garroutte's motion for new trial and the motion for rehearing was the belief that the Bankruptcy Judge considered evidentiary matter that was not properly before him. After concluding his evidentiary hearing into the merits of the Bank's claim of nondischargeability, the Bankruptcy Judge took the matter under advisement and asked that each party submit proposed findings. This was done. The Bankruptcy Judge, by letter of March 14, 1978, inquired of counsel concerning a matter that was giving him concern. 1 Counsel for Garroutte responded to the Judge's inquiry by letter on May 15, 1978. Counsel for the Bank responded by letter on May 24, 1978. A copy of the Bank's letter response was sent to Garroutte's counsel. After receiving the responses from both parties, the Bankruptcy Judge entered his order on June 20, 1978. In the motions for new trial and rehearing, counsel suggests that the Bankruptcy Judge considered statements made in the Bank's letter response of May 24, 1978, which were not technically in evidence. 2 It was on this ground that Garroutte asked that the entire matter be reopened and that he be allowed to introduce additional evidence to rebut these statements.
In connection with his hearing on Garroutte's post-judgment motions, the Bankruptcy Judge first held that Garroutte's notice of appeal filed on August 4, 1978, was untimely, and that he therefore had jurisdiction to entertain the motions for new trial and rehearing. In this latter regard, the Bankruptcy Judge then held that the motion for new trial was itself not timely filed, and that the motion for rehearing was without merit since there was no showing of mistake, inadvertence, excusable neglect, newly discovered evidence or fraud. Accordingly, on September 22, 1978, the Bankruptcy Judge denied Garroutte's motion for new trial and his motion for rehearing. On October 2, 1978, Garroutte filed a second notice of appeal in order to obtain review of the Bankruptcy Judge's order of September 22, 1978. On appeal to the District Court, the Honorable Luther B. Eubanks affirmed the Bankruptcy Judge "in all respects" and entered judgment to that effect. Garroutte now seeks reversal of Judge Eubanks' order. Judge Eubanks acted properly, under the circumstances, and we therefore affirm.
The Bankruptcy Judge initially ruled that the first notice of appeal attacking the order of June 30, 1978, was not timely filed, and that therefore he had not been divested of jurisdiction. Bankruptcy Rule 802(a) provides that a notice of appeal shall be filed with the referee within ten days after the date of entry of the judgment or order sought to be appealed. Rule 802(c) provides that the time for filing a notice of appeal may be extended not to exceed twenty days, but that a request to extend the time within which to file the notice of appeal must be made within the initial ten-day period provided in Rule 802(a), unless there be a showing of excusable neglect. 3 In the instant case, the notice of appeal was filed thirty-four days after the entry of judgment, 4 well beyond the time limitation provided in Rule 802. Although, under the circumstances it is irrelevant, Garroutte's claim of excusable neglect falls far short. The inability of counsel to contact Garroutte because he sent a letter to Garroutte at a wrong address does not constitute excusable neglect. 5
Bankruptcy Rule 803 provides that unless a notice of appeal is filed as prescribed by Rules 801 and 802, the judgment or order of the referee shall become final. Hence, the Bankruptcy Judge's order of June 30, 1978, did become final, subject only to Garroutte's right under applicable rules to file post-judgment motions. Because the August 4, 1978, notice of appeal was legally ineffective, it,...
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