Colvin v. Amegy Mortgage Company, LLC

Filing 10

ORDER GRANTING 3 Defendant's Motion to Dismiss the bankruptcy appeal. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
RICHARD B. COLVIN,
Appellant,
v.
AMEGY MORTGAGE COMPANY, LLC,
Appellee.

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Civil Action No. 5:15-CV-413-XR
(Adversary No. 12-05106-cag)
(Bankruptcy No. 11-51241-cag)

ORDER
On this date the Court considered Appellee’s Motion to Dismiss Appeal (docket no. 3).
For the following reasons, the Court GRANTS the motion.
Factual and Procedural Background
Appellant Richard Colvin filed his Second Amended Complaint to avoid the transfer of a
lien in favor of Appellee Amegy Mortgage Company (“Amegy”) against his real property on
July 11, 2014. (Docket no. 3, at 1). The complaint contained what the Bankruptcy Court
interpreted as six basic causes of action: (1) avoidance claims relating to a piece of real property
called the “Home Tract,” (2) a claim for violation of the co-debtor stay, (3) claims for violation
of the automatic stay predicated on recognition of the easement on a piece of real property called
the “Cell Tower Tract,” (4) a claim for violation of the automatic stay based on Amegy’s
foreclosure on the Home Tract, (5) a claim for equitable subordination, and (6) claims for
violation of the automatic stay based on Amegy’s actions in precluding Colvin’s realtor from
placing a “For Sale” sign and/or denying Colvin’s realtor access to the Home Tract. (Docket no.
3, at 10).

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Amegy moved to dismiss for failure to state a claim under FED R. CIV. P. 12(b)(6) on
August 6, 2014. (Docket no. 5, at 1). The Bankruptcy Judge conducted a hearing on September
23, 2014. (Docket no. 3, at 2). On January 7, 2015, the Bankruptcy Court issued its Order
Granting, In Part, and Denying, In Part, Defendant Amegy Mortgage Company LLC’s Motion to
Dismiss (ECF No. 74) (“First Dismissal Order”). (Docket no. 3, App. A-1). In that order, the
Bankruptcy Court dismissed claims (1)-(5) as they are listed above, but did not dismiss claim (6).
(Id.)
Amegy filed a motion to sever all of the causes of action dismissed by the First Dismissal
Order, numbers (1)-(5), from the remaining cause of action yet to be tried by the Bankruptcy
Court, number (6), on March 6, 2015. (Docket no. 3, at 2). In response, Colvin filed a motion to
dismiss his only remaining cause of action. (Docket no. 5, at 2). The Bankruptcy Court granted
Colvin’s motion to dismiss, entering its Order of Dismissal (“Second Dismissal Order”) on April
8, 2015. (Docket no. 3, App. A-2). The Second Dismissal Order states, “that the [Colvin] claims
that [Amegy] violated the automatic stay by precluding [Colvin’s] realtor from placing a ‘For
Sale’ sign and/or denying [Colvin’s] realtor access to the Home Tract are Dismissed.” Id. Five
days later, on April 13, 2015, Colvin filed his Notice of Appeal, which states:
Richard B. Colvin, debtor in possession, the Plaintiff, appeals under 28 U.S.C. §
158(a) or (b) from the judgment, order or decree of the bankruptcy judge that
dismisses this adversary proceeding entered in this adversary proceeding on April
8, 2015.
(Docket no. 3, App. A-3). No copies of either the First or Second Dismissal Orders were
attached to this Notice of Appeal. (Id.)
Eleven days later, on April 24, 2015, sixteen days after the Bankruptcy Court issued its
final judgment, Colvin filed his Amended Notice of Appeal, which states:

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Richard B. Colvin, debtor in possession, the Plaintiff, appeals under 28 U.S.C. §
128(a) or (b) from the judgment, order or decree of the bankruptcy judge that
dismisses most claims in his adversary proceeding dated January 7, 2015 (Dkt.
No. 89) and which will become final when the Order entered on April 8, 2015
(Dkt. No. 100) becomes final.
(Docket no. 3, App. A-4). A copy of the First Dismissal Order was attached to this notice of
appeal. (Id.)
Amegy filed the motion presently under consideration, its Motion to Dismiss Appeal
(docket no. 3) on June 9, 2015. In its motion, Amegy argues that “this Court does not have
subject matter jurisdiction to consider [this] appeal” because Colvin did not attach a copy of the
order being appealed to his first Notice of Appeal and thus did not file a “perfected” notice of
appeal within the 14-day time period required by Federal Rule of Bankruptcy Procedure 8002
(“Rule 8002”).

(Docket no. 3, at 1-2).

Amegy argues that Federal Rule of Bankruptcy

Procedure 8003 (“Rule 8003”) requires the judgment being appealed to be attached to the notice
of appeal. Amegy also argues that Colvin’s initial Notice of Appeal “refers only to the Second
Dismissal Order . . . neither referenc[ing] nor mention[ing] the First Dismissal Order.” (Docket
no. 3, at 5-6).
Colvin filed his Response to Amegy Mortgage Company LLC’s Motion to Dismiss Appeal
(docket no. 5) on June 23, 2015. Colvin argues that Rule 8003 does not affect jurisdiction, that
he did file a proper notice of appeal, and that Amegy has suffered no prejudice in any case. (See
generally docket no. 5). Amegy replied on June 30, 2015 (docket no. 7).
Analysis
The statute granting the district courts appellate jurisdiction in bankruptcy cases is 28
U.S.C. § 158(a)(1), which states that “[t]he district courts of the United States shall have
jurisdiction to hear appeals from final judgments, orders, and decrees.” Appeals to the district

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courts “shall be taken in the same manner as appeals in civil proceedings generally are taken to
the courts of appeals from the district courts and in the time provided by Rule 8002 of the
Bankruptcy Rules.” Id. § 158(c)(2).
Rule 8002(a)(1) provides that “a notice of appeal must be filed with the bankruptcy clerk
within 14 days after entry of the judgment, order, or decree being appealed.” Rule 8003 of the
Federal Rules of Bankruptcy Procedure states, in relevant part: “The notice of appeal must be
accompanied by the judgment, order, or decree, or the part of it, being appealed.” FED. R.
BANKR. P. 8003(a)(3)(B). This rule requires that an appellant actually attach the order being
appealed to his notice of appeal.1 In a separate subsection, Rule 8003 also gives district courts
discretion to dismiss an appeal for failure to adhere to the requirements of filing a notice of
appeal. Id. 8003(a)(2) (“An appellant’s failure to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal, but is ground only for the district court
or [Bankruptcy Appellate Panel] to act as it considers appropriate, including dismissing the
appeal.”).
The bankruptcy court’s final judgment was entered on April 8, 2015. Therefore, the last
day on which Colvin could have filed or amended his appeal was April 22, 2014. See Rule 8002.
The only means the bankruptcy rules provide to extend this deadline is to file a motion under
Rule 8002(d)(1), which states “the bankruptcy court may extend the time to file a notice of
appeal upon a party’s motion that is filed: (A) within the time prescribed by [Rule 8002(a)(1)]; or
(B) within 21 days after that time, if the party shows excusable neglect.” FED R. BANKR. P.
8002(d)(1).
1

The 2014 Committee Notes to FED. R. BANKR. P. 8003 state that “[t]he rule now requires that the
judgment, order, or decree being appealed be attached to the notice of appeal.” (emphasis added). This clarifies
that the word “accompanied” in Rule 8003(a)(3)(B) means attachment. Rule 8003(a)(3)(B) requires actually
attaching the order being appealed to the notice of appeal.

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Colvin did not move the Court to extend the time for him to file his notice of appeal in
the initial 14 days after the April 8, 2015 judgment. His time expired on April 22. Colvin did
not move the Court to extend the time for him to file his notice of appeal within 21 days of April
22, which expired on May 13, and still has not done so. Colvin did file an “Amended Notice of
Appeal” on April 24, but he did not move for leave to do so, nor did he attempt to demonstrate
“excusable neglect.” (See docket no. 3, App. A-4); see also FED R. BANKR. P. 8002(d)(1).
Therefore, the Court finds Colvin’s April 24 Amended Notice of Appeal untimely and cannot
consider it. See Rule 8002; In re Lin, No. ADV. 14-1373, 2015 WL 1736500, at *5 (D.N.J. Apr.
16, 2015) (dismissing as untimely a bankruptcy appeal filed more than 14 days after final
judgment where appellant also failed to move for an extension of time).
However, Colvin did submit his first notice of appeal in a timely fashion. Final judgment
in the adversary proceeding was entered on April 8, 2015. (Docket no. 3, App. A-2). Colvin
submitted his first notice of appeal five days later on April 13, well within the time constraints of
Rule 8002(a)(1). (Docket no. 3, App. A-3). The portion of the notice of appeal identifying the
judgment being appealed from states, in full:
Richard B. Colvin, debtor in possession, the Plaintiff, appeals under 28 U.S.C. §
158(a) or (b) from the judgment, order or decree of the bankruptcy judge that
dismisses this adversary proceeding entered in this adversary proceeding on April
8, 2015.
(Id.) This notice of appeal makes no direct reference to the First Dismissal Order from January
7. However, that is not automatically fatal to Colvin’s appeal.
The general policy of the Fifth Circuit is to be “‘lenient’ in interpreting notices of
appeals, and [to maintain] ‘a policy of liberal construction . . . where the intent to appeal an
unmentioned or mislabeled ruling is apparent and there is no prejudice to the adverse party.’” In
re Blast Services, Inc., 593 F.3d 418, 424 n.3 (5th Cir. 2010) (quoting C.A. Marine Supply v.

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Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981)). The test for whether a court should
consider appeals on issues or orders not clearly indicated in the notice of appeal is whether: (1)
“the intent to appeal a particular judgment can be fairly inferred, and (2) . . . the appellee is not
prejudiced or misled by the mistake.” In re TransAmerican Natural Gas Corp., 978 F.2d 1409,
1414 (5th Cir. 1992) (“If there is an error in designating a judgment appealed, the error should
not bar an appeal if the intent to appeal a particular judgment can be fairly inferred, and if the
appellee is not prejudiced or misled by the mistake.”). Thus, if from Colvin’s first notice of
appeal, it may be fairly inferred that he intended to appeal the First Dismissal Order from
January 7, and if Amegy has not been prejudiced, then Colvin’s failure to designate the correct
order being appealed will not bar his appeal. Still, if Colvin has failed to adhere to any of the
rules governing the filing of notices of appeal in bankruptcy proceedings, this Court has
discretion to dismiss the case. FED. R. BANKR. P. 8003(a)(2).
I.

Whether it may be fairly inferred that Colvin intended to appeal the entire
adversary proceeding.
Colvin argues that his intent to appeal the First Dismissal Order is clear in his first notice

of appeal. The text of that notice of appeal states that Colvin is appealing “the judgment, order
or decree of the bankruptcy judge that dismisses this adversary proceeding entered in this
adversary proceeding on April 8, 2015.” This language, Colvin argues, when construed liberally,
clearly indicates that he intended to appeal the entirety of the adversary proceeding, not just the
Second Dismissal Order. Colvin himself requested the dismissal in the Second Dismissal Order.
He could therefore not appeal from it. See Derrow v. Bales, 210 F.3d 367 (5th Cir. 2000) (per
curiam) (citing LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976) (“A plaintiff who
successfully moves for voluntary dismissal without prejudice cannot appeal the district court's
order granting the same.”). Colvin argues because he could not appeal the second dismissal

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order, the inference that he was appealing the First Dismissal Order was even more clear and fair
than reading the language on its own. He argues the very fact that Colvin submitted an appeal is
indication that he intended to appeal the portion of his adversary proceeding that is appealable –
the First Dismissal Order.
To support this argument, Colvin cites two bankruptcy cases. In In re Blast Energy
Services, Inc., the appellant submitted a notice of appeal that referred only to an order dismissing
a motion for rehearing, but did not refer to the underlying dismissal order. 593 F.3d at 421-22.
The court found that appellant’s notice of “appeal effectively included an appeal of the Dismissal
Order.

Although [appellant’s] notice of appeal only referred expressly to the [Motion for

Rehearing], it certainly implied that it was appealing the entire case.” Id. at 424 n.3. Colvin
argues that, like the appellant in Blast, his notice of appeal, while failing to refer expressly to the
January 7 dismissal order, certainly implies that he is appealing the entire adversary proceeding.
In the second case, In re Premier Operations, 290 B.R. 33, 36 (S.D.N.Y. 2003), the
appellant inadvertently referred to the incorrect order in its notice of appeal. After the deadline
for filing a notice of appeal had passed, appellant submitted an amended notice of appeal
properly identifying what was being appealed. Id. The court found that “even if [appellant’s]
original notice itself was incorrectly worded, the Bankruptcy Court’s official record contained
sufficient information to put [appellee] on notice of the error” because the bankruptcy court’s
docket entry for the notice of appeal referred to the correct orders being appealed. Id. at 38.
Additionally, the court found that appellant’s amended notice of appeal clearly showed that the
appellant “took timely steps to give sufficient notice of the filing of an appeal.” Id. Therefore,
the court found there was “no genuine doubt . . . about who is appealing, from what judgment, to
which appellate court.” Id. (quoting Becker v. Montgomery, 532 U.S. 757, 759 (2001)).

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Colvin argues that his case is similar to Premier. In both cases: (1) the initial notice of
appeal referred to the incorrect order, (2) an amended appeal was submitted after the filing
deadline clarifying the judgment being appealed, and (3) according to Colvin, the Bankruptcy
Courts’ docket revealed the true intent of the appellant. Thus, Colvin argues that his initial
notice of appeal, like the appellant’s in Premier, leaves no doubt about who is appealing what to
whom and is therefore adequate.
The Court does not find these cases persuasive. First, looking at the plain text of
Colvin’s initial notice of appeal, it states that Colvin appeals “from the judgment, order or decree
of the bankruptcy judge that dismisses this adversary proceeding entered in this adversary
proceeding on April 8, 2015.” Only one order was entered on April 8 – the Second Dismissal
Order. A simple reading of the notice of appeal gives no indication on its own that Colvin
intended to appeal any other order.
Second, Blast Energy Services, Inc., is an inapt analogy for the case at bar. In that case,
the Fifth Circuit found that the appellant’s first notice of appeal asking for review of the lower
court’s refusal to grant a motion for rehearing effectively contained an appeal of the underlying
dismissal order that dismissed the entire case. The Fifth Circuit found so for two reasons: (1) the
relief requested in the motion for rehearing itself specifically included review of the earlier
dismissal order, In re Blast Energy Services, Inc., 593 F.3d at 423-24; and (2) appellant’s appeal
“was styled, in part, as an appeal of a Rule 59(e) motion; [the Fifth Circuit has] specifically
treated appeals of such motions as appeals of the underlying judgment when the intent to do so
was clear.” Id. at 424 n.3. In this case, Colvin has appealed the Bankruptcy Court’s order of
April 8. That order does not mention any other orders nor does it deny any relief related to the
First Dismissal Order from January 7. Unlike the notice of appeal in Blast Energy Services,

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nothing in Colvin’s notice of appeal asks for relief from the earlier order of January 7, nor is
Colvin’s notice of appeal of a class that receives special treatment from the Fifth Circuit.
Therefore, under the logic of Blast Energy Services, an appeal of the January 7 order cannot be
fairly inferred from Colvin’s notice of appeal.
Third, In re Premier Operations is also distinguishable. While the Bankruptcy Court’s
docket in Premier indicated the correct orders that the appellant intended to appeal, the
Bankruptcy Court’s docket in this case does not do so. Here, the Bankruptcy Court’s docket
entry for Colvin’s notice of appeal (104) states:
Notice of Appeal Filed by Alan S. Gerger for Plaintiff Richard B. Colvin . . .
(related document(s): [Docket No.] 100 Order of Dismissal (related document(s):
[Docket no.] 95 Motion to Dismiss Case filed by Alan S. Gerger for Plaintiff
Richard B. Colvin))
(Docket no. 5, at 10). None of those orders (“related documents”) mentioned in the Bankruptcy
Court’s docket concern the First Order of Dismissal from January 7 or any of the causes of
action it dismissed. The only related documents on the Bankruptcy Court’s docket pertaining to
Colvin’s notice of appeal are Colvin’s own motion to dismiss the final cause of action and the
Bankruptcy Court’s Second Dismissal Order. Thus, neither Colvin’s notice of appeal indicated
he intended to appeal the First Dismissal Order, nor did the Bankruptcy Court’s docket. Further,
while Colvin, like the appellant in Premier, filed an amended notice of appeal, this Court has
already addressed that Colvin’s amended notice of appeal was filed without leave and outside the
time limit and will not be considered.
The most similar case to the facts here is one the court in Premier went to great pains to
distinguish: In re Taylor, No. 98 CIV. 9205 (DC), 1999 WL 777955, at *4 (S.D. N.Y. Sept. 30,
1999). In Taylor, the only timely notice of appeal was mis-captioned and appealed from the
wrong order. Realizing his mistake, the appellant filed an amended notice of appeal four days

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after the deadline that named the correct order it intended to appeal. Id. at *4. The Taylor court
held that while the amended notice of appeal purported to appeal the correct order, it did not save
the faulty initial appeal, or relate back to it, because the initial notice did not refer to that correct
order. Id. The Court therefore granted the motion to dismiss the appeal of the correct order
because it was not mentioned in the only timely notice of appeal on record and that flaw could
not be saved by an untimely amended notice of appeal. Id. The case here is virtually identical in
every relevant way. Colvin’s initial notice of appeal contains no information about the First
Dismissal Order, and the untimely amended notice of appeal does not save it.
Colvin’s timely notice of appeal lacks any information from which it could be fairly
inferred that he intended to appeal the First Dismissal Order: the wrong order was in the notice
of appeal, the wrong documents were listed in the Bankruptcy Court’s docket, the amended
notice of appeal was untimely, and the order being appealed was not attached to any of the
notices. To say that his intent could be fairly inferred from his notice of appeal is to ask the
reader to somehow infer that Colvin meant to appeal nothing he did mention and everything he
did not mention in his notice of appeal. However liberal the standard may be for interpreting
notices of appeal in the Fifth Circuit, it certainly does not allow for one to plead the opposite of
what he means. If this Court interpreted the notice of appeal to fairly infer an appeal of the First
Dismissal Order, it would be lowering the standards so low they would lose all meaning.
Because Colvin has not filed a notice of appeal from which it could be fairly inferred that
Colvin desired to appeal the First Dismissal Order, this Court has no jurisdiction over an appeal
of that order. As Colvin cannot appeal the Second Dismissal Order because he requested it
himself, See Derrow v. Bales, 210 F.3d 367 (5th Cir. 2000), and there are no other orders or
issues properly before the Court, Colvin’s appeal must be dismissed in its entirety.

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Finally, Colvin also did not attach a copy of the First Dismissal Order to either his initial
or his amended notice of appeal.2 Because Colvin failed to attach a copy of any order to any of
his notices of appeal, the Court finds that Colvin has violated Rule 8003(a)(3)(b). Given this
failure, and the other pleading failures in this case, the Court would exercise its discretion
provided in Rule 8003(a)(2) to dismiss the appeal even if an appeal of the First Dismissal Order
could be fairly inferred from the first notice of appeal. See Rule 8003(a)(2) (“An appellant’s
failure to take any step other than the timely filing of a notice of appeal does not affect the
validity of the appeal, but is ground only for the district court . . . to act as it considers
appropriate, including dismissing the appeal.”). For all of the above reasons, Colvin’s appeal is
dismissed.
Conclusion
For all of the above stated reasons, the Court GRANTS Defendant’s motion to dismiss
the bankruptcy appeal (docket no. 3). The Clerk is instructed issue judgment and to close the
case.
It is so ORDERED.
SIGNED this 3rd day of August, 2015.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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Perhaps if he had attached it to the first notice of appeal, his intention to appeal the First Dismissal Order could
have been fairly inferred. He did not.

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