United States Court of Appeals,
Fifth Circuit.
No. 94-10366
Summary Calendar.
In the Matter of Charles S. CHRISTOPHER, Debtor.
Charles S. CHRISTOPHER, Appellant,
v.
DIAMOND BENEFITS LIFE INSURANCE COMPANY, Appellee.
Oct. 18, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:
Charles S. Christopher appeals the judgment of the district
court dismissing his appeal as untimely. For the following
reasons, the judgment of the district court is reversed and this
case is remanded to the bankruptcy court.
BACKGROUND/PROCEDURAL HISTORY
On July 24, 1991, Charles S. Christopher filed an adversarial
proceeding in the bankruptcy court against Diamond Benefits Life
Insurance Company ("Diamond Benefits") and twelve other defendants.
He sought a declaration that his bankruptcy discharge barred the
prosecution of several pending lawsuits that had been filed against
him in several different states. The thirteen defendants were
divided into four different groups by the bankruptcy court: the
Diamond Benefits Group, the Sequa Group, the RHI Group, and the
American Universal Group.
1
On September 23, 1992, the adversarial proceeding was tried on
its merits. At issue was whether Christopher or his affiliated
agents and representatives had provided constitutionally adequate
notice of his bankruptcy to Diamond Benefits and the other
defendants. At the conclusion of part of Christopher's
case-in-chief, Diamond Benefits moved to dismiss Christopher's
claim against it. The bankruptcy court issued an oral rule on the
record granting Diamond Benefits' motion to dismiss; a written
judgment confirming this ruling was rendered on November 4, 1992.
Christopher filed a motion for rehearing on the motion for
dismissal which was denied on December 11, 1992.
On December 30, 1992, the bankruptcy court rendered a judgment
against the other three groups of defendants, 148 B.R. 832. On
January 8, 1993, Christopher filed a notice of appeal. On January
11, 1993, one of the defendants in the Sequa Group filed a motion
for additional findings of fact. On January 15, 1993, the
bankruptcy court denied the motion for additional findings of fact.
On February 17, 1993, Diamond Benefits filed a motion to
dismiss Christopher's appeal. This motion was denied. On February
18, 1993, Christopher filed a motion for extension of time to
appeal. The bankruptcy court granted this motion without a hearing
or written reasons. On the same day, Christopher filed another
notice of appeal. On February 26, 1993, Diamond Benefits filed a
notice of cross-appeal and a motion for reconsideration of
Christopher's motion for extension of time. The bankruptcy court
denied this motion on March 16, 1993.
2
On appeal, the district court found that the bankruptcy court
had abused its discretion in granting Christopher's motion for
additional time to file an appeal. The court held that
Christopher's first notice of appeal had been nullified by the
motion for additional findings of fact and that the second notice
of appeal was untimely. It also found that there was no excusable
reason for the tardiness of the notice of appeal. Christopher
appeals the judgment of the district court.
LEGAL PRECEPTS
Parties have ten days to appeal the judgment of the bankruptcy
court. Fed.R.Bankr.P. 8002(a). Under Fed.R.Bankr.P. 8002(b):
If a timely motion is filed in the bankruptcy court by any
party: (1) under Rule 7052(b) to amend or make additional
findings of fact, whether or not an alteration of the judgment
would be required if the motion is granted; (2) under Rule
9023 to alter or amend the judgment; or (3) under Rule 9023
for a new trial, the time for appeal for all parties shall run
from the entry of the order denying a new trial or granting or
denying any other such motion.
If the time period for an appeal is tolled by one of the above
motions, then any notice of appeal filed before the disposition of
the motion is nullified. Id. The time for an appeal runs anew
from the time the motion is granted or denied. Fed.R.Bankr.P.
8002(c). A court may extend the time for an appeal upon a showing
of excusable neglect. Id.
DISCUSSION
Perfection of Appeal Argument
Christopher initially contends that Diamond Benefits' notice
of appeal was nullified when it filed a motion for reconsideration
of the motion to dismiss appeal on the same day as the notice of
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appeal. He argues that the motion for reconsideration was made
under Fed.R.Bankr.P. 9023.1 Thus, under Fed.R.Bankr.P. 8002(b),
the time period for an appeal was tolled until the motion was
decided and a new notice of appeal had to be filed. We disagree.
In Fox v. Brewer, 620 F.2d 177 (8th Cir.1980), the court found
that a motion for reconsideration of a motion to dismiss an appeal
was not the type of motion that would toll the appeal period under
Fed.R.Civ.P. 4(a). Id. at 179. See also, Reinbold v. Dewey County
Bank, 942 F.2d 1304, 1307 (8th Cir.1991), cert. denied, --- U.S. --
--, 112 S.Ct. 1499, 117 L.Ed.2d 639 (1992). Fed.R.App.P. 4(a) and
Fed.R.Bankr.P. 8002(b) are similar in regards to the types of
motion that will toll the time period for appeal and nullify
previously filed notices of appeal. See Fed.R.Civ.P. 8002 advisory
committee note (stating that Fed.R.Civ.P. 8002 is an adaptation of
Fed.R.App.P. 4(a)). We therefore hold that Diamond Benefits'
motion for reconsideration of motion to dismiss an appeal is not
the type of motion that would toll the appeal period under
Fed.R.Bankr.P. 8002(b). Correspondingly, Diamond Benefits did not
need to file a new notice of appeal.
Timely Notice of Appeal Argument
Christopher contends that the trial court erred in holding
that his first notice of appeal was nullified. On its face it
would appear that Christopher's first notice of appeal was
nullified, because it was filed more than ten days after the Sequa
1
In actuality, Christopher cites Fed.R.Civ.P. 59; however,
Fed.R.Bankr.P. 9023 makes Fed.R.Civ.P. 59 applicable to cases
under the Bankruptcy Code.
4
Group defendant's motion for additional findings of fact was
denied. See Fed.R.Bankr.P. 8002(b). Christopher argues that the
motion for additional findings of facts did not affect his January
8, 1992 notice of appeal because a motion for additional findings
of fact by one group of defendants does not affect the time period
to file an appeal for another group of defendants. He relies on
Stacey v. Charles J. Rogers, Inc., 756 F.2d 440 (6th Cir.1985), to
support this proposition.
In Stacey, several groups of plaintiffs had sued the defendant
corporation for fraud in connection with a stock repurchase. The
plaintiffs had filed several different suits which had been
consolidated. A judgment was rendered against all of the
plaintiffs. One group of plaintiffs in one of the consolidated
actions filed a motion for new trial. The court held that the
motion for new trial, which would normally toll the time period to
file an appeal, did not delay the time period that the plaintiffs
in the other consolidated actions had to appeal. 756 F.2d at 442.
Christopher argues that the principle in Stacey should apply in
this case and that a motion for additional findings filed by the
defendant in the Sequa group would not affect the appeal period for
the other three groups of defendants. We disagree.
The court, in Stacey, based its holding on the fact that each
group of plaintiffs was in a separate action. Stacey, 756 F.2d at
442. It stated that "[e]ach cause of action retained a separate
identity, and each party was responsible for complying with
procedural requirements." Id. In the instant case, the defendants
5
are not in separate actions; they are co-defendants in a single
action. The division of groups was not based on separate actions,
but was instead an easy reference to determine the commonality of
issues and law between the defendants. Thus, the rationale in
Stacey is not apropos to this case.
Moreover, even if the rationale in Stacey did apply,
Christopher's notice of appeal still would be untimely. The denial
of the rehearing on the judgment favoring Diamond Benefits was
rendered on December 11, 1992. Thus, Christopher would have had
ten days from this denial of his motion to appeal and not ten days
from the judgment against the other defendants to appeal. See
Fed.R.Civ.P. 8002(b). Therefore, even under Christopher's own
logic, the first notice of appeal was filed untimely.
Excusable Neglect Argument
Christopher contends that even if his notice of appeal was
filed untimely, excusable neglect exists because of the confusion
of law on this issue. A court may extend the time for an appeal
upon a showing of excusable neglect. Fed.R.Bankr.P. 8002(c). The
district court found Christopher's confusion on the law did not
constitute excusable neglect. It applied a very high standard of
excusable neglect, rejecting any negligence by the attorney as an
excuse. However, the utilization of such a standard was error in
light of the Supreme Court's decision in Pioneer Investment
Services Co. v. Brunswick Associates Ltd. Partnership, --- U.S. ---
-, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
In Pioneer, creditors in a Chapter 11 bankruptcy sought an
6
extension of a bar date for filing proofs of claim, alleging
excusable neglect. The attorney in the case had forgotten to file
the proof of claim because the bar date had been buried in a stack
of paper. The Supreme Court held that an attorney's inadvertence
could constitute excusable neglect. Pioneer Investment, --- U.S.
at ---- - ----, 113 S.Ct. at 1498-1490. The court rejected the
notion that excusable neglect can only encompass those actions
beyond the movant's reasonable control. Id. at ----, 113 S.Ct. at
1494. The court stated that excusable neglect at bottom is an
equitable consideration "taking account of all relevant
circumstances surrounding the party's omission." Id. at ----, 113
S.Ct. at 1498 (footnote omitted). These circumstances include the
danger of prejudice to the debtor, the length of the delay
including whether it was within the reasonable control of the
debtor, and whether the movant acted in good faith. Id.
Although the court in Pioneer was interpreting the standard
of excusable neglect under Fed.R.Bankr.P. 9006(b)(1), we find this
application of excusable negligence applies to appeals from the
bankruptcy court. In its opinion, the Supreme Court used standards
from different places in the Federal Rules of Civil Procedure in
determining the standards of excusable neglect. See Pioneer
Investment, --- U.S. at ---- - ----, 113 S.Ct. at 1497-1498 (using
the relaxed standard of excusable neglect in Fed.R.Civ.P. 60(b) as
a reason for determining the standard for excusable neglect in the
bankruptcy rules). One other circuit has used the standard of
excusable neglect in a non-bankruptcy appeal. See United States v.
7
Hooper, 9 F.3d 257, 259 (2d Cir.1993) (using the standard
enunciated in Pioneer Investment to determine whether the failure
to file a timely criminal appeal was due to excusable neglect).
CONCLUSION
The district court erred in applying a standard of excusable
neglect that excludes an attorney's negligence. However, the
bankruptcy court made no findings of fact when it granted the
extension. Such findings are necessary. Morin v. United States,
522 F.2d 8, 9 (4th Cir.1975). We therefore remand this case to the
bankruptcy court to determine whether excusable neglect exists.
The judgment of the district court dismissing Christopher's appeal
is REVERSED and this case is REMANDED to the bankruptcy court.
8