United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
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No. 07-6023EM
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In re: *
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Robert Wayne Hicks, Sr.; *
Janice Virginia Hicks, *
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Debtors. *
* Appeal from the United States
Robert Wayne Hicks, Sr.; * Bankruptcy Court for the Eastern
Janice Virginia Hicks, * District of Missouri
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Plaintiffs - Appellants, *
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v. *
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Missouri Department of Revenue, *
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Defendant - Appellee, *
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Arizona Department of Revenue; *
Internal Revenue Service, *
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Defendants. *
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Submitted: May 21, 2007
Filed: May 31, 2007
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Before KRESSEL, Chief Judge, FEDERMAN and MAHONEY, Bankruptcy Judges.
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KRESSEL, Chief Judge.
The plaintiffs appeal from an order of the bankruptcy court granting
summary judgment to one of the defendants in this pending adversary proceeding.
Because we conclude that the notice of appeal was filed both too late and too early,
we dismiss the appeal for lack of jurisdiction.
BACKGROUND
The debtors commenced a chapter 7 case in 2006. In January of 2007, they
received their discharge and their case was closed. Shortly after it was closed, the
debtors applied to the bankruptcy court to reopen the case and on January 29,
2007, the bankruptcy court granted the debtors’ application. On February 27,
2007, the debtors commenced this adversary proceeding against the Missouri
Department of Revenue, the Arizona Department of Revenue, and the Internal
Revenue Service. In their complaint, the plaintiffs made a number of claims
regarding the validity of various tax laws, the failure of the three taxing authorities
to file claims in their case, and made various claims as to the validity of the various
tax debts and liens. The Missouri Department of Revenue filed an answer and a
motion for summary judgment.
The bankruptcy court granted summary judgment in favor of the Missouri
Department of Revenue. It also directed entry of a judgment in favor of the
Department of Revenue which was in fact entered on April 23, 2007, the same day
as the court’s order. The plaintiffs filed their notice of appeal on May 8, 2007.
JURISDICTION
Our jurisdiction depends on the existence of a final order or judgment and
the timely filing of a notice of appeal. We conclude that neither exists here.
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THE APPEAL IS LATE
Federal Rule of Bankruptcy Procedure 8002 requires that a notice of appeal
be filed within ten days of the date of the entry of the judgment, order, or decree
appealed from. The plaintiffs’ notice of appeal was filed after the ten day period
and thus was late. Since the timely filing of a notice of appeal is a jurisdictional
prerequisite, we lack jurisdiction over this appeal. Hamilton v. Lake Elmo Bank (In
re Delta Eng’g Int’l), 270 F.3d 584, 586 (8th Cir. 2001); Farmpro Servs., Inc. v.
Brown (In re Brown), 273 B.R. 194, 197 (B.A.P. 8th Cir. 2002).
THE APPEAL IS PREMATURE
By operation of Fed. R. Bankr. P. 7054(a), Rule 54(b) of the Federal Rules
of Civil Procedure governs the entry of judgments in adversary proceedings. Rule
54(b) is wordy to be sure, but its import is clear. As a general proposition, every
adversary proceeding should have exactly one judgment, entered at the conclusion
of the proceeding, which should include the court’s disposition of every claim,
counterclaim, cross claim and third-party claim by or against any and all of the
parties.1
The rule does contain a proviso for the entry of a judgment at an
intermediate stage of the adversary proceeding, but only if the bankruptcy court
determines that there is no just reason for delay and upon an express direction for
the entry of a judgment. The sole purpose of a Rule 54(b) order is to provide an
opportunity to appeal claims affecting some, but not all of the parties or some, but
not all of the issues. Nebraska v. Strong (In re Strong), 293 B.R. 764, 768 (B.A.P.
8th Cir. 2003) (citing Orion Fin. Corp. v. American Foods Group, Inc., 201 F.3d
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Fed. R. Civ. P. 58(a)(1) requires that the judgment be a document separate
from the court’s various orders, except in the iterated circumstances.
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1047, 1049 (8th Cir. 2000)). In its order, the bankruptcy court made no such
determination. As a result, entry of judgment was premature.
Rule 54 covers this situation.
In the absence of such determination and direction, any
order or other form of decision, however designated,
which adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and
the order or other form of decision is subject to revision
at any time before the entry of judgment adjudicating all
the claims and the rights and liabilities of all the parties.
Fed. R. Civ. P. 54(b). Thus, notwithstanding the entry of a document denominated
a judgment, the bankruptcy court’s decision in favor of the Missouri Department of
Revenue did not terminate the action as to the Department of Revenue and the
bankruptcy court’s decision is subject to revision at any time until an actual final
judgment is entered. This is the antithesis of a final judgment and we lack
jurisdiction over the appeal. Thousand Acres Dev., LLC v. Kreger (In re Kreger),
302 B.R. 375 (B.A.P. 8th Cir. 2003).
Since the order is interlocutory, the appeal is premature. When the
bankruptcy court has determined the plaintiffs’ claims against all of the other
defendants in this adversary proceeding, it will enter a judgment incorporating the
relief granted to the various parties, including the relief granted in its April 23,
2007 order. Then, and only then, will the plaintiff or any other party aggrieved by
the judgment have the right to appeal.
CONCLUSION
Because we lack jurisdiction over this appeal, it is dismissed.
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