Garden v. Central Nebraska Housing Corp. et al

Filing 94

MEMORANDUM AND ORDER - The Motion to Stay or Motion for Supersedeas Bond and Motion to Extend Time for Filing Notice of Appeal (Filing No. 93 ) filed by Defendant Central Nebraska Housing Corp. is denied, without prejudice. Ordered by Chief Judge Laurie Smith Camp. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD P. GARDEN, JR., Trustee,
Plaintiff,
v.
CENTRAL NEBRASKA HOUSING
CORP., PINNACLE BANK OF
NEWCASTLE WYOMING, SECURITY
FIRST BANK, RICK ROBERTS,
LORETTA SUE ROBERTS, JOHN
ZAPATA, COLJO INVESTMENTS,
LLC, PINNACLE BANK, and
UNVERZAGT FEED LOT,
Defendants.

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CASE NO. 8:11CV292

MEMORANDUM
AND ORDER

This matter is before the Court on the Motion to Stay or Motion for Supersedeas and
Motion to Extend Time for Filing Notice of Appeal (Filing No. 93) filed by Defendant Central
Nebraska Housing Corp. (“CNH”).
CNH represents that it intends to prosecute an appeal of a judgment entered on
March 26, 2012. CNH requests that, pursuant to Federal Rule of Appellate Procedure 8,
the Court stay the judgment pending its anticipated appeal, or in the alternative, set the
amount needed for a supersedeas bond CNH could post to operate as a stay pending its
anticipated appeal. CNH expresses its concern that, if Defendants Rick and Loretta Sue
Roberts receive a distribution from the $165,000.00 deposited with the Clerk of Court and
CNH is successful on its anticipated appeal, it will be unable to recoup the proceeds paid
to the Robertses. CNH also states that it is concerned filing a notice of appeal would divest
the Court of its jurisdiction, thereby rendering it unable to rule on the Robertses’ pending

Amended Motion for Sanctions (Filing No. 85).1 CNH requests that, pursuant to Federal
Rule of Appellate Procedure 4(a), all parties be granted a forty-five day extension to file
notices of appeal so that the Court may resolve the pending motion for sanctions and allow
the parties to avoid successive or multiple appeals.
“In an action tried on the facts without a jury,” a court must issue findings of fact and
conclusions of law, and must issue a judgment, Fed. R. Civ. P. 52(a)(1), “set out in a
separate document.” Fed. R. Civ. P. 58(a).2 “[T]he time for appeal runs from the entry of
the judgment.” 11 Charles Alan Wright et al., Federal Practice and Procedure § 2781 (3d
ed. 2012); see also Fed. R. App. P. 4(a).3
On March 26, 2012, this Court issued Findings of Fact and Conclusions of Law,
(Filing No. 82), indicating the parties’ relative priorities to the $165,000.00 that had been
deposited with the Clerk of Court under applicable bankruptcy and Nebraska law. The

1

See Chambers v. Pennycook, 641 F.3d 898, 903-04 (8th Cir. 2011) (alteration in original) (quoting
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam)) (“Generally, ‘[t]he filing of a
notice of appeal . . . confers jurisdiction on the court of appeals and divests the district court of its control over
those aspects of the case involved in the appeal.’”).
2

Every judgment and amended judgment must be set out in a separate document, but a
separate document is not required for an order disposing of a motion:
(1) for judgment under Rule 50(b);
(2) to amend or make additional findings under Rule 52(b);
(3) for attorney's fees under Rule 54;
(4) for a new trial, or to alter or amend the judgment, under Rule 59; or
(5) for relief under Rule 60.
Fed. R. Civ. P. 58(a).
3

“In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal . . . must
be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App.
P. 4(a)(1)(A).

2

Court did not enter a separate judgment. Instead, it indicated it would enter a judgment
after ruling on the Robertses’ motion for sanctions.4 The Court also did not direct any of
the $165,000.00 to be paid out to the parties at that time. Since then, the Court has
directed funds to be distributed to Defendant Pinnacle Bank and Plaintiff Richard P.
Garden. (Filing No. 84.) However, the Court still has not directed any funds to be
distributed to the Robertses or to CNH.
Because a separate judgment has not been entered on the Findings of Fact and
Conclusions of law, at this time there is no judgment to stay. As a result, there also is
currently no need to grant an extension of time for filing notices of appeal; the time for
appealing the Findings of Fact and Conclusions of Law has not yet begun to run.
Accordingly,
IT IS ORDERED that the Motion to Stay or Motion for Supersedeas Bond and
Motion to Extend Time for Filing Notice of Appeal (Filing No. 93) filed by Defendant Central
Nebraska Housing Corp. is denied, without prejudice.

DATED this 26th day of April, 2012.
BY THE COURT:

S/Laurie Smith Camp
Chief United States District Judge

4
The Robertses had requested that any amount of sanctions awarded to them offset the amount of
the $165,000.00 that would otherwise be distributed to CNH. (Filing No. 75, ¶ 5.)

3