Christopher v. Diamond Benefits Life Insurance (In Re Christopher)

                   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.

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      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.


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     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.

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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


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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


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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.


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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.




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