537 B.R. 310
W.D. Tex.2015Background
- Colvin filed a Second Amended Complaint July 11, 2014 against Amegy Mortgage Company to avoid transfer of a lien on real property and asserted six causes of action.
- Bankruptcy Court dismissed claims 1–5 in the First Dismissal Order (Jan 7, 2015) but preserved claim 6.
- Amegy moved to sever and Colvin dismissed the remaining action; Second Dismissal Order (Apr 8, 2015) dismissed the remaining stay-violation claim.
- Colvin filed a Notice of Appeal on Apr 13, 2015; Amended Notice of Appeal followed Apr 24, 2015 but lacked attachment to the order being appealed.
- Amegy argued lack of jurisdiction because Colvin did not attach the order being appealed to the initial Notice and did not timely file a perfected appeal under Rule 8002; the court analyzed timeliness, attachment, and intent to appeal.
- Court concluded there is no jurisdiction to review and dismissed the appeal
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colvin’s timely notice appealed the correct order | Colvin’s intent to appeal the entire adversary proceeding can be inferred | Initial notice did not reference the First Dismissal Order; timeliness and attachment requirements unmet | No; intent cannot be inferred; no jurisdiction over First Dismissal Order |
| Whether the Amended Notice saved the appeal | Amended notice clarified appeal scope and timing | Untimely amendment outside the deadline; cannot save jurisdiction | No; amended notice untimely and insufficient to save jurisdiction |
| Whether Rule 8003’s attachment requirement deprives jurisdiction | Rule 8003 does not affect jurisdiction if intent is clear | Failure to attach order to notices violated Rule 8003 | Yes; failure to attach defeated jurisdiction, so appeal must be dismissed |
| Whether the court properly dismissed the appeal entirely | Colvin sought relief against the entire adversary proceeding | Only Second Dismissal Order was directly appealable; other orders not properly appealed | Yes; because no timely, attached notice of appeal for the first order and no surviving properly filed appeal for the second, the appeal is dismissed in its entirety |
Key Cases Cited
- In re Blast Energy Services, Inc., 593 F.3d 418 (5th Cir. 2010) (leniently construing notices of appeal when intent to appeal the correct judgment is apparent)
- In re Premier Operations, 290 B.R. 33 (S.D.N.Y. 2003) (amended notices can save an appeal if docket and intent are clear; distinguishable facts)
- In re TransAmerican Natural Gas Corp., 978 F.2d 1409 (5th Cir. 1992) (tests for inferring appeal intent from notices of appeal)
- Derrow v. Bales, 210 F.3d 367 (5th Cir. 2000) (voluntary dismissal without prejudice cannot be appealed)