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discussing excusable neglect under Federal Rule of Bankruptcy Procedure 8002(c)
Summary of this case from Wilkerson v. JonesOpinion
Case No.: 01-73897
March 11, 2002
OPINION AND ORDER AFFIRMING BANKRUPTCY COURT'S OCTOBER 4, 2001 ORDER DENYING APPELLANT'S MOTION FOR EXTENSION OF TIME TO FILE APPEAL
Appellant, Zinkel Associates, appeals from the Bankruptcy Court's Order of October 4, 2001, denying a motion to extend the time to file an appeal. The issue presented is whether the Bankruptcy Court abused its discretion by denying Appellant's motion to extend time to file an appeal of a previous bankruptcy order (reducing Appellant's attorney fee application from approximately $20,000 to $5,000) where Appellant, although present when the Judge ruled from the bench on his attorney fee application, did not receive the actual order in the mail until after the time for appealing it had elapsed, due to his own failure to update his address with the Bankruptcy Court, or otherwise monitor the court docket. The Court heard oral argument on the appeal on March 6, 2002. For the reasons set forth below, the Bankruptcy Court is AFFIRMED.
I. BACKGROUND
This case is here on appeal from the Bankruptcy Court (Bankruptcy Case No. 00-43507, Rhodes, J.). Debtor, Susan Lang, filed a voluntary Chapter 13 bankruptcy petition on March 8, 2000. Appellant, Robert Zinkel, is Debtor's attorney in the bankruptcy proceeding. The bankruptcy has proceeded in the normal course of progression. Only the facts relevant to the instant appeal are set forth below.
On March 2, 2001, Appellant filed an application for attorney fees in the amount of $20,481.75 and costs of $32.00, for his representation of Debtor in bankruptcy. The bankruptcy estate's only priority creditor (and largest unsecured creditor), the Michigan Department of Treasury (hereinafter "Treasury"), filed an objection to the fee application on March 6, 2001, as did the Trustee, on March 22, 2001. The Bankruptcy Court held a hearing on the motion on March 29, 2001, and took the matter under advisement.
Thereafter, the Bankruptcy Court, at a hearing on July 12, 2001, announced its decision from the bench: the amount of attorneys fees was reduced from the requested amount of $20,481.75 to the awarded amount of $5,000. Appellant was present at that hearing. A written order was entered thereafter on July 19, 2001 [hereinafter, "the 7/19/01 Order"], which reads: "On July 12, 2001, a hearing was held on the fee application of debtor's counsel. For the reasons indicated on the record in open court, IT IS HEREBY ORDERED that counsel is awarded fees in the amount of $5,000.00." Bankruptcy Rule 8002(a) requires that a notice of appeal must be filed within ten (10) days after entry of an order.
Appellant alleges he received the 7/19/01 Order on August 6, 2001. Appellant attaches a copy of an envelope from the Court, which bears a postmark of August 1, 2001. These facts, however, do not constitute the complete scenario, which will be discussed, infra.
On August 17, 2001, Appellant filed a Motion to Extend Time to File an Appeal with the Bankruptcy Court, under Bankruptcy Rule 8002(c). Appellant argued that the Bankruptcy Court's allegedly tardy mailing of the 7/19/01 Order should constitute "excusable neglect" for his failure to timely file an appeal within 10 days of that Order. On August 24, 2001, Treasury filed its response in opposition to Appellant's motion for an extension of the time to appeal. The Bankruptcy Court held a hearing on that motion on October 1, 2001, and denied the Appellant's motion from the bench. The Bankruptcy Court issued a written opinion to this effect on October 4, 2001 (hereinafter "the 10/04/01 Order"). Appellant filed his notice of appeal of the 10/04/01 Order on October 12, 2001.
Both at the time of the July 12th hearing and the mailing of the 7/19/01 Order, Appellant's address of record with the Bankruptcy Court was on East Brown Street, Birmingham, Michigan. Judge Rhodes stated at the October 1 hearing:
The docket sheet sent by the Bankruptcy Court to this Court with the instant appeal continues to reflect the East Brown Street address. This Court's docket sheet for the instant appeal reflects the correct post office box address.
Mr. Zinkel changed his mailing address, by his statement here today, in April of 2001, but the court docket does not reflect that he ever notified the court of that change of address. Indeed the Court has the official docket . . . and it still does not reflect any change of address by Mr. Zinkel.
Accordingly, the court clerk, when the order was entered on July 19, 2001, sent the order to Mr. Zinkel's address of record, which was his former address. That order was returned to the court as undeliverable, but on the envelope there was noted a forwarding address, and so that forwarding address . . . which was placed on the envelope by the post office, was then used to mail the order.
(Transcript of "Excerpt of Hearing on Motion by Attorney Robert J. Zinkel, Jr., to Extend Time to File an Appeal until August 20, 2001. . . ." Oct. 1, 2001, at page 4 lines 6-20.) Judge Rhodes ruled that Appellant's failure to keep the Court apprized of his correct address, which directly caused the delay, did not constitute "excusable neglect" under Pioneer Investment Services Co. v. Brunswick Associates, 507 U.S. 380 (1993). ( Id., Transcript at 9, lines 10-11.)
Appellant filed a timely appeal of the 10/04/01 Order with this Court. Appellant discussed his mailing situation:
On March 31, 2001 the law firm Mr. Zinkel was sharing space with lost its lease, causing all the lawyers to seek new locations. Mr. Zinkel was unable to find a suitable new location and decided to move home on a temporary basis until he could find an appropriate location. Because this move was intended to be temporary, a change of address form was filed at the Birmingham Post Office forwarding all mail from the old address located in Birmingham to a post office box at the very same Birmingham Post Office. This is the same Post Office that handled all mailings for the old address.
Accordingly, all mail sent to the old address was promptly forwarded to the post office box in the same building and there were no noticeable delays in receiving mail. Because this methodology seemed to work fine, a blanket notice of change of address was not sent out to the courts, clients and other businesses because of the temporary nature of the situation and the possibility of confusion that might have been created as a result from numerous address changes. Nevertheless, the Trustee and State of Michigan, the active litigants in this case, were notified of the address change.
The Bankruptcy Court did not consider these facts and circumstances in its ruling of October 1, 2001 denying Robert J. Zinkel, Jr.'s application to extend time to file an appeal pursuant to Bankruptcy Rule 8002(c).
(App. Brief at [unpaginated] 2-3.)
Treasury filed a brief in support of affirming the Bankruptcy Court on February 15, 2002. Treasury notes the operative facts in this case: (1) Appellant was in attendance at the hearing when the Bankruptcy Court judge announced his decision from the bench, and thus, had actual notice of the decision; (2) Appellant failed to update the court with his current address; and (3) Appellant failed to monitor entry of the Order on the case docket. Treasury argues that these factors weigh against a finding of excusable neglect, such that the Bankruptcy Court cannot be said to have abused his discretion.
Technically, there is no "appellee." Treasury is, however, directly impacted by the decision.
II. ANALYSIS
A. Standard of Review on Appeal
The Bankruptcy Appellate Panel for the Sixth Circuit has stated:
A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). . . . "An order denying a motion for extension of time to file a notice of appeal pursuant to Fed.R.Bankr.P. 8002(c)(2) is a final order." Belfance v. Black River Petroleum, Inc. (In re Hess), 209 B.R. 79, 80 (B.A.P. 6th Cir. 1997).
The bankruptcy court's denial of the Debtor's "motion for extension of time to file a notice of appeal is reviewed for abuse of discretion." Id. (citing Baker v. Raulie, 879 F.2d 1396, 1399 (6th Cir. 1989) and Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989))."A court has abused its discretion if the reviewing court has a definite and firm conviction that the trial court committed a clear error of judgment in the conclusion that it reached based on all of the appropriate factors." In re Hess, 209 B.R. at 80 (citations omitted). While acknowledging this standard, the Court of Appeals for the Sixth Circuit has recently expressed it in another way as well: "The question is not how the reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court's decision; if reasonable persons could differ as to the issue, then there is no abuse of discretion." Barlow v. M.L Waterman Assocs., Inc. (In re M.J. Waterman Assocs., Inc.), 227 F.3d 604, 608 (6th Cir. 2000).
"The meaning of `excusable neglect" is a question of law, the resolution of which is subject to de novo review. In re Hess, 209 B.R. at 80 (citation omitted).In re Schultz, Allied Domecq Retailing USA v. Schultz, 254 B.R. 149, 151 (B.A.P. 6th Cir. 2000).
Thus, this Court has jurisdiction to entertain this appeal, and the standard of review is whether the Bankruptcy Court judge abused his discretion in denying Appellant's motion to extend the time to file an appeal.
B. Discussion
While Bankruptcy Rule 9022(a) provides that the clerk shall mail orders to the contesting parties upon their entry, it also provides: "Lack of notice of the entry does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted by Rule 8002."
The Bankruptcy Appellate Panel of the Sixth Circuit explained the analysis to be applied in the instant case in In re Schultz:
Federal Rule of Bankruptcy Procedure 8002(a) provides that a notice of appeal "shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from." The 10-day appeal period may be extended, however, under certain conditions as set forth in Bankruptcy Rule 8002(c)(2), which provides:
A request to extend the time for filing a notice of appeal must be made by written motion filed before the time for filing a notice of appeal has expired, except that such a motion filed not later than 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect. An extension of time for filing a notice of appeal may not exceed 20 days from the expiration of the time for filing a notice of appeal otherwise prescribed by this rule or 10 days from the date of entry of the order granting the motion, whichever is later.
Fed.R.Bankr.P. 8002(c)(2). The . . . "excusable neglect" language creat[es] an exception to the appeal limitations period.
Although "`excusable neglect' is not defined by the Bankruptcy Rules, the concept has been appropriately characterized as the failure to timely perform a duty due to circumstances which were beyond the reasonable control of the person whose duty it was to perform." Gilbert v. Suburban Athletic Club an re Dayton Circuit Courts # 2), 85 B.R. 51, 54 (Bankr. S.D. Ohio 1988) (citing In re Kelly Lyn Franchise Co., Inc., 26 B.R. 441, 448 (Bankr. M.D. Tenn.), aff'd. 33 B.R. 112 (M.D. Tenn. 1983), and In re Digby, 29 B.R. 658 (Bankr. N.D. Ohio 1983)). A determination of excusable neglect involves a two-part analysis: first, the bankruptcy court must determine that the failure to timely file was the result of neglect. Second, the court must determine whether the neglect was excusable. "The ordinary meaning of `neglect' is `to give little attention or respect' to a matter, or, closer to the point for our purposes, `to leave undone or unattended to especially through carelessness.'" Pioneer, 507 U.S. at 388 (quoting Webster's Ninth New Collegiate Dictionary 791 (1983) (emphasis in original)). Clearly, the Debtor's attorney's failure to timely file a notice of appeal or an extension of the time to appeal constitutes neglect. The issue is therefore whether that neglect is excusable.
Regarding the "excusable" inquiry, as the Supreme Court declared in Pioneer:
The determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the [nonmovant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.
507 U.S. at 395. Although the Pioneer Court was considering the excusable neglect provision of Bankruptcy Rule 9006(b)(1), this Court, citing Sixth Circuit unpublished opinions, has determined that the Pioneer standard of excusable neglect applies to Bankruptcy Rule 8002(c) as well. In re Hess, 209 B.R. at 82 (citations omitted).
Most courts addressing the issue in the context of this Rule have focused on the reason for the delay. As the bankruptcy court correctly noted, courts have consistently held that "clerical or office problems' are simply not a sufficient excuse for failing to file a notice of appeal within the ten day period." Schmidt v. Boggs an re Boggs), 246 B.R. 265, 268 (B.A.P. 6th Cir. 2000) (citing Pioneer, 507 U.S. at 398) (no excusable neglect where failure to meet deadline was due to illness of employee responsible for docketing appeals)). See also In re Hess, 209 B.R. at 83 (no excuse that a lawyer's practice interferes with compliance with limitations and deadlines); In re Mizisin, 165 B.R. 834, 835 (Bankr. N.D. Ohio 1994) ("misunderstanding of the Bankruptcy Code and Rules and heavy workload of counsel do not constitute excusable neglect."); In re GE Furniture Sys., Inc., 127 B.R. 382, 383-384 (Bankr. N.D. Ohio 1991) (solo practitioner's preoccupation with other litigation was not excusable neglect so as to excuse attorney's failure to timely file notice of appeal or request for extension); Edmondson v. Bradford-White, Corp. (In re Tinnell Traffic Serv., Inc), 43 B.R. 280, 282-283 (Bankr. M.D. Tenn. 1984) (no excusable neglect where timely notice of appeal was not filed due to fact that appeal was assigned to an associate attorney who was not made aware of fact that bankruptcy court's decision must be appealed within 10 days).254 B.R. at 153-54.
Like In re Schultz, supra, the "neglect" prong is met in this case, as Appellant "left undone" the filing of the notice of appeal. The issue is whether this neglect was "excusable."
Appellant cites In re Katzman, Southern Commerce Bank v. Katzman, 207 B.R. 295 (Bankr. M.D. Fla. 1997) to support his position that this Court should find excusable neglect in the instant case. However, In re Katzman is wholly distinguishable from the instant case on the facts. In In re Katzman, the movant seeking an extension of time to appeal was the pro se debtor himselt who had attempted to determine the time/procedures for appealing by asking attorneys, all but one of which had (incorrectly) informed him he had 30 days. Id. at 298-99. There were no mail/address delays present in In re Katzman. However, in the instant case, Appellant is an attorney practicing in the Bankruptcy Court. He cannot claim the benefit of the doubt the court provided Mr. Katzman in In re Katzman.
Both parties, and the Bankruptcy Court Judge, were unable to locate any published/ binding decisions directly on point. However, there is at least one unpublished Sixth Circuit decision, and decisions from other federal courts, that are analogous to the case at bar.
In In re Hilliard, 36 B.R. 80 (S.D.N.Y. 1984), the appellant sought leave to file a notice of appeal from an order of the bankruptcy judge. The attempted filing was untimely. The district court found that where the attorney was aware of the impending issuance of an order, the time frame in which the order could be expected, and what the order would say, his failure to receive a copy of the order from the court clerk, as set forth in Bankr. R. 9022(a), was not excusable neglect under Bankr. R. 8002(c).
In In re Cahn, 188 B.R. 627 (B.A.P. 9th Cir. 1995), the court held that the parties have an affirmative duty to monitor court dockets in order to discover entry of orders and times for appeal, such that failure to receive an order is not excusable neglect for failing to file a timely notice of appeal. See also In re Richmond, Richmond v. Pearl, 1992 WL 25469 (9th Cir. 1992) (failure to check docket fatal to claim for excusable neglect).
The unpublished Sixth Circuit decision that Judge Rhodes found persuasive in the instant case was Considine v. Atkinson, No. 98-6455, 1999 U.S. App. LEXIS 20347 (6th Cir., Aug. 18, 1999), where the attorney was seeking an extension of time to appeal an order which he belatedly received in the mail from the court. He had not updated his address of record with the bankruptcy court. The Sixth Circuit determined that the attorney could not show excusable neglect
because his lack of notice is the result of his own inaction. Considine did not receive the . . . order because he did not keep the bankruptcy court apprized of his current address as required under Rule 9009. Furthermore, Bankr. R. 9022(a) . . . provides, inter alia, that "lack of notice of the entry [of an order] does not affect the time to appeal . . .Id. at *4, Judge Rhodes specifically noted that although the unpublished case(s) he discussed had limited precedential value, ( see Excerpt of Hearing, Transcript, at page 7, lines 3-5), they were nevertheless persuasive. This Court finds no impropriety in the Bankruptcy Court's reference to this Sixth Circuit case.
The Court finds that Appellant's failure to file a timely notice of appeal is not the result of excusable neglect. Mr. Zinkel was present at the hearing, during which the Bankruptcy Court Judge issued his decision from the bench. Appellant was on notice at that point, not only of what the ruling would be, but of the likelihood an order would be entered soon thereafter. Appellant had an affirmative duty to monitor the docket. Appellant also had an affirmative duty to provide the Bankruptcy Court with a correct mailing address. Whatever confusion that occurred relating to Appellant's mail delivery situation, was Appellant's doing. The bottom line is that Appellant did not provide the Bankruptcy Court with his correct address. Simply put, it was his responsibility — not the court's and not the postal service's — to list the proper address.
Treasury has alleged that the factors in Pioneer (i.e., the danger of prejudice to the Treasury, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, whether it was within the reasonable control of the movant, and whether the movant acted in good faith) weigh heavily against this Court's overturning of the Bankruptcy Court's decision. Treasury notes that the danger of harm and the potential impact of a decision reversing the Bankruptcy Court would be a delayed distribution of the assets of the bankruptcy estate, as the estate cannot be distributed until after the administrative claims (such as Appellant's fee application) are resolved. Treasury argues that it would be unduly prejudiced by this delay. Treasury further argues that avoiding this delay was within the reasonable control of the Appellant.
The uncontroverted facts are that Appellant failed to monitor the docket, and failed to update his address with the Bankruptcy Court. The Court finds, under all the factors, in particular, the "reason for delay" factor under Pioneer (as quoted in In re Schultz, supra), Appellant is not entitled to relief
The Court is mindful of the unfortunate impact of this ruling on Appellant. Yet, a contrary ruling would set a dangerous precedent. Appellant wants this Court to rule that one may avoid legal deadlines by (1) failing to properly update the court with address changes, and (2) failing to monitor the court docket for entry of an order following a decision on the bench, when the party wishing to appeal was present at the time of decision, and therefore aware of the impending entry of the order. The Court refuses to set such a precedent.
The Court concludes that the Bankruptcy Court did not abuse its discretion in denying Appellant's motion to extend the time to file an appeal under Bankr. R. 8002(c). The decision of the Bankruptcy Court is therefore AFFIRMED.
SO ORDERED.