In re Robert SLIMICK; Maxine Slimick, dba Danken Building, Danken Lounge & Restaurant, Debtors. Robert SLIMICK; Maxine Slimick, Appellants, v. Stanley E. SILVA, Trustee, Appellee.
No. 88-2927.
United States Court of Appeals, Ninth Circuit.
Submitted June 4, 1990. Decided Sept. 26, 1990.
928 F.2d 304 | 59 USLW 2283 | 20 Bankr.Ct.Dec. 1754
Thomas McCampbell, Chico, Cal., for appellee.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel.
Before NELSON and TROTT, Circuit Judges, and STEPHENS,** District Judge.
TROTT, Circuit Judge:
SUMMARY
Maxine and Robert Slimick, Chapter 7 debtors, appeal from the Bankruptcy Appellate Panel\‘s (“BAP“) dismissal of their appeal from the bankruptcy court\‘s decision as untimely. 87 B.R. 98. The BAP found that the notice of appeal was not filed within the ten-day period set by
BACKGROUND
On April 21, 1983, the Slimicks filed a Chapter 11 bankruptcy, which was converted on February 16, 1984, to Chapter 7. In their initial schedules, they elected the general federal exemption pursuant to
On March 11, 1985, after liquidation of the estate assets by the trustee, they sought to amend their schedule B-4 to claim as exempt the proceeds of the sale of specified assets, including a liquor license and various promissory notes. The trustee objected to the amendment on the grounds that the debtors had filed it unseasonably and had failed in their original exemption claim to list the proрerty claimed as exempt under section 522 as required by
On June 11, 1985, the bankruptcy court heard arguments regarding the trustee\‘s objection and took the matter under submission. At the end of the hearing on the trustee\‘s objection, the judge said:
What I\‘m going to do, I just haven\‘t got the time ... to write a sweet little opinion....
I\‘m going to just put down “objection sustained” or “overruled.”
And then ... if one of you wants to appeal, then let us know. We\‘ll have Findings of Fact and Conclusions of Law prepared.
If no one\‘s going to appeal, I can\‘t waste our time.
On June 17, 1985, the court filed an Order Sustaining Trustee\‘s Objection (“Order“) stating that it was “of the opinion that the trustee\‘s objection ... should be granted for the reasons set forth in [sic] trustee\‘s points and authorities” and concluding, “IT IS THEREFORE ORDERED that the objection ... is, hereby sustained.”
On July 16, 1985, 29 days after entry of the Order, the Slimicks filеd their Request for Findings of Facts and Conclusions of Law. In this document, they recited that the court had “ruled in favor of the trustee” and had “proposed” at the hearing that either party could, as they now did, request findings and conclusions “after the order was made.”
On October 31, 1985, the court filed Findings of Fact and Conclusions of Law prepared by the trustee. This document recited that “[o]n June 17, 1985, the Court gave notice of its Order Sustaining Trustee\‘s Objection.”
On November 15, 1985, the court filed a Judgment On Order Sustaining Trustee\‘s Objection (“Judgment“), also prepared by the trustee. This document states:
having ruled in favor of the Trustee, sustaining the Objection, and Findings of Fact and Conclusions of Law having been ... filed ..., the Court now enters judgment as follows:
IT IS ORDERED that the Objection filed herein ... be and the same hereby are [sic] sustained, and the amended claim of exemptiоns is denied. Let judgment be entered accordingly.
Other than in title, the Judgment differed from the Order only in expressly denying the debtors\’ amended claim stating that the court “now enters judgment,” and ordering, “Let judgment be entered accordingly“; both documents expressly sustained the trustee\‘s objection.
On November 25, 1985, within ten days of entry of the Judgment but over five months after entry of the Order, the Slimicks filed their notice of appeal from thе Judgment.
The Bankruptcy Appellate Panel (“BAP“) sua sponte raised the question of the timeliness of the appeal and, after affording the parties the opportunity to file supplemental briefs, dismissed the appeal as untimely. The BAP reasoned that: (1) the Order, not the Judgment, was the final and appealable decision on the objection, so that the notice of appeal was untimely under
We agree with the majority and affirm.
DISCUSSION
Initially, we must determine which, the Order or the Judgment, constituted the final, appealable order in this case. If the latter, then the appeal to the BAP was timely; if the former, then it was untimely and we must determine whether the BAP should have nevertheless еxercised jurisdiction under the unique circumstances doctrine.
I
Finality and Appealability of Order
An appeаl from a final ... order ... of a bankruptcy judge to a ... bankruptcy appellate panel shall be taken by filing a notice of appeal with the clerk ... within the time allowed by
Rule 8002 . Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal....
This appeal raises the recurrent problem of which of two documents filed by a court, both arguably pronouncing the court\‘s final order in a matter, constitutes the final, appealable order. We start from the proposition that if, after filing a final disposition, a court files a more formal judgment, the latter does not constitute a second final disposition or extend the appeal period. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 233, 78 S.Ct. 674, 678, 2 L.Ed.2d 721 (1958); Liberty Mut. Ins. Co. v. Pillsbury, 154 F.2d 559 (9th Cir.1946), cert. denied, 329 U.S. 717, 67 S.Ct. 47, 91 L.Ed. 621 (1946). Accordingly, we must determine whether the Order was the final disposition of the objection to the amended exemption claim.
A disposition is final if it contains “a complete act of adjudication,” that is, a full adjudication of the issues at bar, and clearly evidences the judge\‘s intention that it be the court\‘s final act in the matter. Schaefer, 356 U.S. at 234, 78 S.Ct. at 678; Maddox v. Black, Raber-Kief & Assocs., 303 F.2d 910, 911 (9th Cir.1962).1
The Order in the present case constituted a complete act of adjudication. The decision it expressed, sustaining the trustee\‘s objections to the debtors\’ amended exemption claim, finally resolved all issues regarding the claimed exemption. It is irrelevant that the Order, unlike the later Judgment, did not expressly deny the debtors\’ amended exemption claim; the grant of the objection obviously and necessarily constituted such denial.2
The absence of accompanying findings and conclusions did not prevent the Order from fully adjudicating the objection. In Steccone v. Morse-Starrett Products Co., 191 F.2d 197, 200 (9th Cir.1951), we held that the absence of findings of fact required by
Such an absence of findings would at most stamp the judgment as erroneous, not void, and a determination of its correctness, if sought, would be obtained by appeal. The absence of requisite findings of fact is not such a jurisdictional defect as would prevent an appeal.
See also Johnson v. Wilson, 118 F.2d 557, 558-59 (9th Cir.1941) (bankruptcy court\‘s order granting judgment and reserving jurisdiction to later file opinion was final and appealable). Bеcause the Order stated that the court based its ruling on the reasons presented in the trustee\‘s memoranda, the record provided adequate basis for review by the BAP. Also, the absence of findings did not prevent appellants from understanding and considering the court\‘s reasoning in deciding whether to appeal. See In re Dahnken\‘s of Santa Barbara, Inc., 11 B.R. 536, 537-38 (9th Cir. BAP 1981) (while not jurisdictional requirement for review, findings sеrve to facilitate review; failure to file findings does not preclude review if record provides adequate basis for it).
It is irrelevant that the court designated the first disposition an order and the later disposition a judgment. Appealability turns on the effect of the ruling, not the label assigned to it by the trial court. See United States v. Lee, 786 F.2d 951, 955 (9th Cir.1986); Spates v. Manson, 619 F.2d 204, 209 n. 3 (2d Cir.1980).
Having found that the Order constituted a complete act of adjudication, we now consider whether it satisfied the second requirement for finality of a disposition under Schaefer, that the judge intended it be final. Evidence of intent consists of the Order\‘s content and the judge\‘s and parties conduct. Schaefer, 356 U.S. at 235-36, 78 S.Ct. at 679-80; Cedar Creek Oil & Gas Co. v. Fidelity Gas Co., 238 F.2d 298, 301 (9th Cir.1956).
The Order on its face evidenced the judge\‘s intention that it be final. As discussed above, it fully adjudicated the issues at bar. Cf. Schaefer (failure of disposition to resolve all issues at bar is evidence that judge did not intеnd it to be final). Appellants\’ contention that the Order merely stated the court\‘s “opinion” that the objection should be sustained ignores the fact that the Order proceeded to sustain the objection in language that was immediately operative. Cf. Cedar Creek, 238 F.2d at 300 (disposition ambiguous as to intent where stated judgment “to be entered” and hence did not denote current operation). Although no formal words of judgment are necessary to convey finality, see United States v. Hark, 320 U.S. 531, 534, 64 S.Ct. 359, 361, 88 L.Ed. 290 (1944), we note that the Order, in stating “IT IS THEREFORE ORDERED that the objection ... is, hereby sustained,” contained language typical of a final disposition.3
Appellants urge that the judge intended that the Order merely state his intended decision, or that its finality be contingent upon a party\‘s request for findings. We disagree. On its face, the Order does not refer to any contingency upon which finality depends, and hence is distinguishable from many of our precedents in this area.4 The judge\‘s remarks at the hearing—that he would have findings prepared if a party wished to appeal—did not clearly state the intention urged. While the judge could have filed an order merely stating his intended decision or conditioning finality of his decision on entry of findings, or could have verbally attached such qualifications to the Order as it stood, he did none of these. We presume that a facially final order does not constitute a statement of intended decision or conditional disposition unless the court clearly states that it is such. That the judge set no deadline for submission of a request for findings shows the improbability of his having intended that the Order\‘s finality depend upon such a request, for this could have rendered the Order indefinitely interlocutory.5
Although a formal judgment is prima facie the final decision and we do not assume that a judge did a useless act or acted indirectly to extend the appeal time, Schaefer, 356 U.S. at 235, 78 S.Ct. at 679; Cedar Creek, 238 F.2d at 301, the evidence shows that the judge intended that the Order be final. His action in filing the later Judgment seems merely to reflect his effort to satisfy the Separate Judgment Rule codified in
The appeal was technically untimely.
II
Applicability of Unique Circumstances Doctrine
The Supreme Court articulated the unique circumstances doctrine in three per curia decisions, see Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964); Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964); Harris Truck Lines v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), and recently returned to it in Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989).
In Thompson, petitioner filed with the district court an untimely motion for new trial. In reliance on the court\‘s explicit statement that the motion was timely, petitioner did not appeal the original judgment and appealed only the later denial of the new trial motion. The Court found that “unique circumstances” warranted review because petitioner\‘s motion, if timely, would have tolled the appeal period and petitioner relied on the court\‘s statement that the motion was timely in delaying appeal.
In Osterneck, petitioners timely filed a postjudgment motion for prejudgment interest without specifying whether it was a motion under
Thompson applies only where a party has performed an act which, if properly done, would postpоne the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done. That is not the case here.
Osterneck, 109 S.Ct. 987, 993 (emphasis added).7
In the instant case, the bankruptcy court neither explicitly extended the deadline for appeal from the Order nor specifically assured appellants that the appeal period would not begin until entry of findings. Accordingly, the unique circumstances doctrine is inapplicable.
Appellants urge that the BAP should have exercised jurisdiction under our formulation of the unique circumstances doctrine in United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265 (9th Cir.1985). In that case, we stated that unique circumstances warranting review of an untimely appeal exist when
the appellant reasonably and in good faith relied uрon judicial action that indicated to the appellant that his assertion of his right to appeal would be timely, so long as the judicial action occurred prior to the expiration of the official time period such that the appellant could have given timely notice had he not been lulled into inactivity.
In other words, ambiguous or implicitly misleading conduct by courts does not release litigants from their appeal deadlines. If a party believes a court has acted ambiguously as to an appeal deadline, it bears the burden of seeking clarification. Here, appellants should have asked the judge to clarify whether the Order was final and appealable.
III
CONCLUSION
The appeal was technically untimely and no unique circumstances warranted its allowance. Accordingly, the BAP\‘s opinion dismissing the appeal is affirmed.
Notes
If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party ... under Rule 59 to alter or amend the judgment ..., the time for appeal for all parties shall run from the entry of the order ... granting or denying any ... such motion. A notice of appeal filed before the disposition of ... the above motion[ ] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry оf the order disposing of the motion....