Parker et al v. Mitchell

Filing 10

ORDER granting 4 Motion for Reconsideration, and the dismissal of the appeal is VACATED; denying as moot 7 Motion for Extension of Time to Appeal 7 Order of 10/9/08. Appellant's Brief due on or before 15 days from t he date Bankruptcy Court files the record with this Court. Appellee's Brief due on or before 15 days from the date of filing of the Appellant's Brief. The US Bankruptcy Clerk of Court is requested to file the record on appeal with this Court. Signed by District Judge Martin Reidinger on 9/11/10. (Pro se litigant served by US Mail.)(gpb)

P a r k e r et al v. Mitchell

D o c . 10

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA C H AR L O TTE DIVISION C IV IL CASE NO. 3:08cv373

IN RE: TH O M AS BRUCE PARKER,

D e b to r. ) R ic h a rd M. Mitchell, C h a p te r 7 Trustee, A p p e l l e e / P l a i n t if f , vs .

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Bankruptcy Case Number 0 4 -3 0 5 9 3

Adversary Proceeding Number 04-3051

Th e o d o re Gregg Parker, A p p e lla n t , a n d Th o m a s Bruce Parker, Betty J e a n Parker, Margaret June P a rk e r Schlaphohl, D e fe n d a n ts .

ORDER

TH IS MATTER is before the Court on the Appellant's Motion for R e c o n s id e ra tio n of the Court's Order of October 9, 2008 Dismissing the A p p e a l [Doc. 4] and the Appellant's Motion for an Extension of Time to File a Notice of Appeal of the Court's Order of October 9, 2008 Dismissing the

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A p p e a l [Doc. 7]. PROCEDURAL HISTORY O n August 18, 2008, the Appellant filed a Notice of Appeal in this C o u rt seeking to appeal the July 8, 2008 decision of United States B a n k ru p tc y Court Judge J. Craig Whitley. [Doc. 1]. The Appellant did not file in the record of this Court a copy of an Order from Judge Whitley which e xte n d e d the time within which he could appeal from that decision. As a re s u lt, the undersigned, based on the record presented by the Appellant to th is Court, dismissed his appeal as untimely, the appeal having been filed m o re than ten days after the Bankruptcy Court's decision. [Doc. 2]. In response to that dismissal, the Appellant moved for re c o n s id e ra tio n and for the first time advised the Court that Judge Whitley h a d extended the time within which he could appeal. [Doc. 4-2]. On O c to b e r 27, 2008, more than two months after filing the appeal, the A p p e lla n t added a copy of that Order as an attachment to the Notice of A p p e a l originally filed on August 18, 2008. [Doc. 1, "Additional a tta c h m e n t(s ) added on 10/27/08: #2 BK Order lv to appeal"]. The Appellee objected to the motion for reconsideration, arguing that th e appeal should remain dismissed. [Doc. 5]. Thereafter, the Appellant file d a reply. [Doc. 6].
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T wo days later, the Appellant moved for an extension of time to a p p e a l from the October 9, 2008 decision dismissing the appeal as u n tim e ly. [Doc. 7]. The Appellee has responded to that motion as well. [D o c . 8].

D I S C U S S IO N O n July 8, 2008, United States Bankruptcy Judge J. Craig Whitley e n te r e d Findings of Fact, Conclusions of Law and Order in an adversary p r o c e e d in g in the Debtor's bankruptcy case. [Doc. 107 in Adversary P ro c e e d in g (AP) Case No. 04-3051; Docs. 49, 50 in Bankruptcy Case No. 0 4 - 3 0 5 9 3 ].1 On July 28, 2008, the Appellant filed a motion in the adversary p ro c e e d in g to extend the time within which he could file a notice of appeal fro m the Court's July 8, 2008 decision. [AP Doc. 109]. He did not file that m o tio n in his bankruptcy case. O n August 5, 2008, Appellant presented his Notice of Appeal to the B a n k ru p tc y Clerk of Court in the adversary proceeding. [AP Doc. 113]. He d id not file a copy of the notice of appeal in his bankruptcy case. The docket in the adversary proceeding shows that the Appellant was
Documents filed in the Adversary Proceeding file will hereafter be identified as [AP Doc. ]. Documents filed in the Bankruptcy base file will hereafter be identified as [Bcy Doc. ]. Any documents identified as [Doc. ] refer to the filings in this case file before the District Court. 3
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a d v is e d that he was required to file the designation of record on or before A u g u s t 15, 2008. [AP Doc. 113]. He did not do so. O n August 18, 2008, Hon. J. Craig Whitley granted the Appellant's m o tio n for leave to appeal out of time. [AP Doc. 115]. That Order, which wa s filed in the adversary proceeding, was not filed in the bankruptcy case. In that Order, Judge Whitley specifically noted that the appeal should be d o c k e te d as of the date the notice was tendered to the Court; that is, A u g u s t 5, 2008. [AP Doc. 115]. The Notice of Appeal was filed in this Court on August 18, 2008. [D o c . 1]. As previously noted, at the time that notice was filed, the A p p e lla n t did not attach to it a copy of the Order granting leave to file the a p p e a l out of time. On August 26, 2008, the Appellant filed in the adversary proceeding a Designation of Items to be Included in the Record on Appeal and S ta te m e n t of the Issues on Appeal. [AP Doc. 126]. There is no certificate o f service attached to the document showing that it was served on the A p p e lle e . Appellant did not file this document in the bankruptcy case or in th is Court. On September 5, 2008, Judge Whitley denied the Appellant's motion to stay the bankruptcy proceeding pending appeal. [AP Doc. 128]. This
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d o c u m e n t was filed in the bankruptcy case even though the notice of a p p e a l was never docketed in that case. Appellant did not file a copy of th a t Order with this Court. O n September 17, 2008, the Appellee filed in the adversary p r o c e e d in g a Designation of Additional Items to be Included in the Record o n Appeal. [AP Doc. 137]. The Appellee served the document on the A p p e lla n t. The designation was not docketed or cross-referenced in the b a n k ru p tc y case and was not filed with this Court. On September 24, 2008, the Appellant filed, again in the adversary p r o c e e d in g , an Amended Designation of Items to be Included in the Record o n Appeal. [AP Doc. 141]. The amended document contains a certificate o f service. The Appellant did not file that document with this Court. At no tim e has the Appellant filed and served a brief on appeal. A s of October 9, 2008, the date the undersigned dismissed the a p p e a l as untimely, there had been filed in the record before this Court a N o tic e of Appeal to which was attached a copy Judge Whitley's July 8, 2 0 0 8 Order. [Doc. 1]. Appellant did not file the Order allowing him to a p p e a l out of time, the designation of record or a statement of issues on a p p e a l. As of the date of this decision, the Appellant still has not filed a d e s ig n a tio n of record or statement of issues on appeal with this Court in
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th is appellate proceeding. In support of the motion to reconsider, the Appellant admits that he "d id not include [the order granting an extension of time within which to a p p e a l] in the record on appeal as the Appellant may have erroneously th o u g h t jurisdiction was decided at the bankruptcy court level, where the a p p e a l was allowed and docketed, and these pleadings do not directly a d d re s s the issues the Appellant asks this Court to consider." [Doc. 4, at 4] (e m p h a s is provided). The Court notes the Appellant has stated that he "m a y have" thought it unnecessary to supply a copy of the order to this C o u rt. Appellant also argues that his appeal has merit and would correct a n error worth $10,000. In this regard, the findings of the Bankruptcy Court, which the A p p e lla n t has attached to his motion to reconsider, are compelling. The C o u rt specifically noted that it granted the motion for leave to appeal out of tim e with reservations. [Doc. 4-2, at 7]. The Court stated that the A p p e lla n t's "latest appeal [seeks] to reargue matters determined in prior ru lin g s which were themselves appealed, upheld and which have become fin a l." [Id., at n.1]. Although the Court granted the motion for leave to a p p e a l out of time, it denied the Appellant's motion to stay the July 8, 2008 O rd e r pending the appeal. In so doing, the Bankruptcy Court noted that
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P a rk e r has appealed three other bankruptcy decisions relating to th e sale of the residence in question. In these appeals, [A p p e lla n t] was denied a stay (in part) due to lack of a bond or o th e r security. Apart from any other consideration as to whether a stay should issue, that bond prerequisite has not changed. [A p p e lla n t's ] prior, and heretofore entirely unsuccessful, appeals h a ve greatly increased the Trustee's costs, delayed administration o f this case, and denied creditors a timely distribution on their c la im s . [D o c . 4-2, at 7-8]. T h e Trustee moved the Bankruptcy Court to reconsider allowing the a p p e a l out of time. In denying that motion, the Court further stated: W h e th e r to permit this appeal out of time is a close call. On the o n e hand, I have serious reservations whether [Appellant's] latest a p p e a l is being sought in good faith. I am also concerned that the b a n k ru p tc y estate's resources could be depleted in defending wh a t may turn out to be a feckless appeal. [Appellant's] motion to file out of time suggests that the primary purpose of his latest a p p e a l is to collaterally attack a prior order permitting the sale of th e residence. [Appellant] has already unsuccessfully appealed th a t decision, and the property has been sold. ... F ra n k ly, if [Appellant] was represented by counsel in this action, h is motion to appeal out of time would be denied for lack of "e xc u s a b le neglect." [Appellant's] excuses for filing out of time ( h e did not understand the appeal period; he was out of town d u rin g the appeal period; and he wanted to speak with his sister b e fo re making the decision), even if true, would not constitute e xc u s a b le neglect under Rule 8002. The sole basis on which I fin d "excusable neglect" in this instance is [Appellant's] pro se s ta tu s . This is admittedly weak, given that [Appellant] is not the typ ic a l uninformed, pro se litigant. Not only does he oversee fe d e ra l litigation as a part of his job, [Appellant] has previously a p p e a le d three decisions in this bankruptcy case. All appeals we re accomplished within the Rule 8002 ten day time deadline.
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It appears he knows what he is doing. [D o c . 4-2, at 10-11]. Although as noted above the Trustee moved the Bankruptcy Court to re c o n s id e r its finding of excusable neglect, he did not appeal that finding. Moreover, the Appellee did not cross-appeal in this Court asserting that th e extension of time granted by the Bankruptcy Court or its finding of e xc u s a b le neglect was erroneous. The Court has reviewed the B a n k ru p tc y Court's decision granting the extension of time within which to a p p e a l and finds that it comports with the time periods prescribed by B a n k ru p tc y Court Rule 8002. Since no cross-appeal was taken by the A p p e lle e as to the Bankruptcy Court's finding of excusable neglect, this C o u rt concludes that the decision of the Bankruptcy Court concerning e xc u s a b le neglect is the law of the case. A lth o u g h the Appellee opposed the motion to reconsider, the cases c ite d in support are inapposite. In the case of In re Kloza, 222 Fed.Appx. 5 4 7 (9 th Cir. 2007), the appellant did not file its motion for an extension of tim e within the twenty day period prescribed by Bankruptcy Rule 8002 and a ls o failed to establish excusable neglect. Both the cases of In re Swann, 2 0 0 7 WL 1728706 (Bkrtcy.D.Md. 2007), and In re Gardner, 2007 WL 1 5 7 7 8 6 2 (Bkrtcy.N.D.Tex. 2007), involve findings by the bankruptcy court
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th a t the movant failed to establish excusable neglect. Here, the B a n k ru p tc y Court found that the Appellant did show excusable neglect and th e re is no appeal before this Court from that ruling. The Bankruptcy Court has succinctly stated its reservations as to w h e th e r this appeal is taken in good faith. Indeed, the Bankruptcy Court re fe rre d to this appeal as possibly "feckless" and stated that the c irc u m s ta n c e s suggest that the purpose for the appeal is to harass and to re litig a te matters already resolved. The Appellant's failure to place re le va n t pleadings before this Court, such as the Bankruptcy Court's order e xte n d in g the time within which to appeal, would further support such a c o n c lu s io n . In addition, language contained in the filings before this Court d is c lo s e s that the Appellant seeks to relitigate issues which have been d e c id e d as long ago as 2006. The Appellant is cautioned that the issues p re s e n te d on this appeal must be limited to the order from which appeal is ta k e n .

ORDER IT IS, THEREFORE, ORDERED that the Appellant's Motion for R e c o n s id e ra tio n of the Court's Order of October 9, 2008 Dismissing the A p p e a l [Doc. 4] is hereby GRANTED and the dismissal of the appeal is
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h e re b y VACATED. IT IS FURTHER ORDERED that the Appellant's Motion for an E xte n s io n of Time to File a Notice of Appeal of the Court's Order of O c to b e r 9, 2008 Dismissing the Appeal [Doc. 7] is hereby DENIED as m o o t. IT IS FURTHER ORDERED that on or before fifteen (15) days from th e date that the Bankruptcy Court files the record with this Court, the A p p e lla n t shall file his brief on appeal. The brief may not exceed twenty (2 0 ) double-spaced pages in size 14 font. IT IS FURTHER ORDERED that on or before fifteen (15) days from th e date of filing of the Appellant's brief, the Appellee shall file his brief on a p p e a l. The brief may not exceed twenty (20) double-spaced pages in s iz e 14 font. T h e Clerk of Court for the United States Bankruptcy Court for the W e s te rn District of North Carolina is requested to file the record on appeal with this Court.
Signed: September 11, 2010

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