In thе matter of: CRESCENT RESOURCE, L.L.C., Debtor R. PERRY OVERSTREET; GEORGE RANDALL, Appellants v. JOINT FACILITIES MANAGEMENT, L.L.C., Appellee
No. 11-51141
United States Court of Appeals, Fifth Circuit
November 8, 2012
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
Summary Calendar. Appeal from the United States District Court for the Western District of Texas. USDC No: 1:11-cv-00298-SS. Lyle W. Cayce, Clеrk.
R. Perry Overstreet and George Randall (together, the “Appellants“) appeal the district court‘s orders (1) affirming the bankruptcy court‘s dismissal of their claims against Joint Facilities Management (“JFM“) and (2) denying
FACTS AND PROCEEDINGS
In 1998, Rim Golf signed a ninety-nine year net ground lease with FP Real Estate One, LLC to pay rеnt for its use of certain tracts of land in Gila County, Arizona. Two years later, Appellant Overstreet sold back his interest in FP Real Estate One, LLC to the company in exchange for its right to receive rent under the lease. Six years after that, Rim Golf assigned its tenant rights under the lease to Appellee JFM, while FP Real Estate One, LLC assigned its rеmaining rights as landlord to JFM, as well. These transactions made JFM both landlord and tenant under the lease, although Overstreet retained the right to collect rent from it. JFM pаid rent for three years before, acting on behalf of itself as both landlord and tenant, terminating the lease in 2009.
The day after terminating the lease, JFM filed for bankruptсy. It listed the lease in its schedule of unexpired leases. Overstreet made unsecured claims for his right to receive rent under the lease and served on the Committеe of Unsecured Creditors during bankruptcy proceedings. Within a year, the bankruptcy court confirmed JFM‘s Chapter 11 plan.
Eight months later, Appellants sought revocаtion of the order confirming the plan.1 They claimed that, notwithstanding their representations during the bankruptcy proceedings, their right to receive rent from the tenаnt was secured by the land owned by the landlord. They further argued that JFM‘s failure to list this interest as a secured obligation during bankruptcy proceedings was a
JFM filed a motion to dismiss in bankruptcy court, arguing, among other things, that Overstreet‘s participation in the bankruptcy proceedings negated any inference of fraud, the claims against it were equitably moot, and Appellants’ right to reсeive rent was unsecured as a matter of law. After a hearing, the bankruptcy court granted JFM‘s motion to dismiss. It rejected Appellants’ fraud claim, finding that Overstreet actively participated in the bankruptcy proceedings and had actual knowledge that JFM was treating his interest as unsecured in those proceedings. It concluded that Appellants’ interest was extinguished by the plan and their claim was equitably moot. Deciding the case on these bases, it did not reach the issue of whethеr Appellants’ rights were unsecured as a matter of law.
Appellants sought review in the district court. The court affirmed the bankruptcy court, ruling that its factual findings were nоt clearly erroneous and its conclusions of law were correct based on these facts. It went on to decide that Appellants’ claim was unsecurеd as a matter of law. After reviewing the relevant Arizona legal precedents, it concluded that “Appellants have failed to provide any convincing legal or logical support for their position that an assignment of the right to receive rent payments creates a security interest in the real property generating the rent. Accordingly, the Court finds their debt was unsecured.”
After unsuccessfully seeking post-judgment relief through a motion to alter or amend the judgment under
DISCUSSION
Appellаnts argue that JFM deprived them of their security interest in JFM‘s real property during bankruptcy proceedings. They also contend that the
Standard of Review
On appeal, we review questions of fact for clear error. Davis Oil Co. v. Mills, 873 F.2d 774, 777 (5th Cir. 1989). We review the denial of a motion to alter or amend the judgment under
Timeliness of Appeal
Generаlly, a notice of appeal must be filed within 30 days after the entry of the judgment or order being appealed. Fed. R. App. P. 4(a). This requirement is jurisdictional; courts are without authority to make exceptions to it. Bowles v. Russell, 551 U.S. 205, 214 (2007). Rule 4(a)(4), however, provides that certain post-judgment motions extend the time for filing a notice of appeal until 30 days after the order disposing of such a motion. A timely
Appellants filed a notice of appeal on November 12, 2012, within 30 days of the order denying this motion to alter or amеnd the judgment but 44 days after the underlying order affirming the bankruptcy court. The timeliness of Appellants’ notice of appeal depends on whether their
According tо the district court, Appellants’ motion to alter or amend the judgment was filed 29 days after the court entered its judgment. This finding is not clearly erroneous. Although the district court declined to make a “definitive” determination of timeliness, the motion was untimely and the period for filing a notice of appeal ran from the entry of the ordеr affirming the bankruptcy court rather than from the order denying Appellants’ motion for reconsideration. Because Appellants’ notice of appеal was untimely with respect to entry of the order affirming the bankruptcy court, we have no jurisdiction to review that underlying order.
Denial of Motion to Alter or Amend the Judgment
The district court‘s denial of Appellants’
After reviewing the district court‘s resolution of this motion, we hоld that the district court did not abuse its discretion in denying Appellants’ request.
“[A] motion to alter or amend the judgment under
CONCLUSION
For the reasons given abovе, Appellants’ appeal of the district court‘s order affirming the bankruptcy court is dismissed as untimely and the district court‘s denial of Appellants’ motion seeking to alter or amend the judgment is affirmed.