Woodman v. Concept Construction, LLC (In re Woodman)
- Summarized by Steven Mulligan , Coan, Payton & Payne, LLC
- 10 years 5 months ago
- Woodman v. Concept Construction, LLC (In re Woodman); -- F. 3d --; 2012 WL 5259193 (10th Cir. Oct. 25, 2012)
- A dismissal of an appeal after docketing must meet the standards of Fed. R. Bankr. P. 8001(c)(2) failing which, such appeal remains pending thereby rendering the filing of a second appeal to the US District Court a nullity and depriving the US District Court of jurisdiction to review the Bankruptcy Court decision.
- Procedural context:
- The Bankruptcy Court ruled that a debt owed by Appellant was non-dischargeable. In filing its appeal, Appellant failed to follow the rules set forth in Fed. R. Bankr. P. 8001, et. seq., creating a situation where two appeals were simultaneously pending in both the BAP and the US District Court. The US District Court denied a motion filed by appellee to dismiss the US District Court appeal and affirmed the Bankruptcy Court's decision and Appellant appealed.
- Appellant incorrectly filed a notice of appeal with the clerk of the US District Court appealing a ruling by the Bankruptcy Court in open court. The US District Court transmitted the appeal to the Bankruptcy Court noting that the Appellant elected to have the appeal heard by the US District Court.
The BAP denied the election to have the matter heard by the US District Court since a separate writing as required under Fed. R. Bankr. P. 8001(e) had not been submitted. The BAP further stated that the notice of appeal would be treated as filed on the date of the entry of judgment by the Bankruptcy Court as provided under Fed. R. Bankr. P. 8002(a). The Bankruptcy Court entered judgment the same day.
Subsequently, Appellant voluntarily withdrew the BAP appeal and filed a renewed notice of appeal and a written election to have the appeal heard by the US District Court.
The BAP dismissed the BAP appeal for failure to prosecute. The appellee moved to dismiss the US District Court appeal on the grounds that there was no precedent to initiate two appeals on the same issue. The US District Court denied the motion to dismiss and affirmed the Bankruptcy Court decision.
- Lucero, Hartz and O'Brien
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