Case Information

Randy Joseph NETZER, Plaintiff-Appellant, v. OFFICE OF LAWYER REGULATION and Matthew F. Anich, Defendants-Appellees.

Nos. 16-3236 & 16-3713

United States Court of Appeals, Seventh Circuit.

Decided March 13, 2017

Rehearing and Rehearing En Banc Denied April 12, 2017

786 F.3d 587

Submitted March 8, 2017

ford, 786 F.3d at 587. At that point, we made this distinction to show that APS could fire Burford only for cause, not at will.

Those same terms in the contract illustrate a different but equally valid point: saying that A may terminate if B breaches does not mean A must do so immediately or else lose forever the right to terminate. Adopting Burford's theory of this contract would lead to perverse results. In any case of material breach, the non-breaching party would need to terminate the contract promptly or forever waive the right to terminate. Such a draconian approach would destabilize commercial relationships where breaches may be tolerated for a host of reasons, from the difficulty in finding substitutes to recognizing headwinds from macroeconomic troubles, or to humane reasons like excusing Burford's failure to record any sales in a year when he had serious health problems.

At trial, APS's Holmes testified to such reasons. He said he did not terminate Burford's contract earlier because he "wanted to be fair", and wanted "to give him a chance" to improve his performance. Holmes noted that Burford had received surgery in one year, and that 2008 was a bad economic time for everyone. During another year, Burford was involved in a lawsuit, which had evidently taken up much of his time. For these reasons, Holmes testified, APS gave Burford multiple chances to improve his performance. When Burford continued to struggle, Holmes ultimately had a "heart-to-heart" with him in 2010 before terminating his contract at the beginning of 2012. The jury was not required to accept APS's explanation, but given this and other evidence offered at trial, the jury's verdict that APS had not waived its right to terminate Burford was certainly not contrary to the weight of the evidence.

This result is entirely consistent with our reasons for reversing in the earlier appeal and finding that the contract was not terminable at will. It made good sense for the parties to agree that Burford would have an exclusive territory and that his contract could be terminated only for cause. Otherwise, APS could have watched while Burford built up his territories and then terminated his contract, grabbing for itself all the fruits of his labors. 786 F.3d at 587-88. At the same time, if a manufacturer or other upstream company like APS agrees to give a sales representative an exclusive territory, its right to terminate for poor performance is critical. Without that right, it risks effectively abandoning the territory, unable to replace the poor performer in his exclusive territory. For that reason, neither courts nor juries should quickly find waiver when the manufacturer or upstream company tolerates poor performance but ultimately loses patience and terminates the contract for the exclusive territory.

The judgment of the district court is AFFIRMED.

Randy Joseph Netzer, Pro Se.

Sean Michael Murphy, Attorney, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, for Appellees.

Before BAUER, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

Randy Netzer, a debtor in bankruptcy, asked the court to discharge a debt to Wisconsin's Office of Lawyer Regulation. Bankruptcy Judge Furay concluded in this adversary proceeding that the approximately $9,200 the Supreme Court of Wisconsin imposed as costs in a disciplinary proceeding against a member of the state's bar is a "fine, penalty, or forfeiture" under 11 U.S.C. § 523(a)(7) and therefore is not dischargeable. 545 B.R. 254 (Bankr. W.D. Wis. 2016).

The bankruptcy court entered its decision on February 3, 2016, and Netzer had 14 days to appeal. Fed. R. Bankr. P. 8002(a)(1). He took 41, filing a notice on March 15. He asked the district judge to excuse his tardiness, contending that until a few days earlier he had not known of the bankruptcy court's decision. But the district court dismissed the appeal as untimely. 2016 U.S. Dist. LEXIS 84260 (W.D. Wis. June 29, 2016), reconsideration denied, 2016 U.S. Dist. LEXIS 129476 (Sept. 22, 2016). The judge stated that he lacks authority to extend the time on equitable grounds, because the 14-day period is jurisdictional.

In re Sobczak-Slomczewski, 826 F.3d 429 (7th Cir. 2016), holds that the 14-day period in Rule 8002(a)(1) is jurisdictional, and Bowles v. Russell, 551 U.S. 205, 213-14 (2007), holds that there cannot be equitable exceptions to jurisdictional rules. The grant of review in Hamer v. Neighborhood Housing Services of Chicago, 835 F.3d 761 (7th Cir. 2016), cert. granted, No. 16-658 (U.S. Feb. 27, 2017), which poses the question whether Fed. R. App. P. 4(a)(5)(C) sets a jurisdictional time limit, suggests that the Supreme Court may soon decide how far rules about the times for appeal, as opposed to statutory limits, can affect a court's jurisdiction. See also Kontrick v. Ryan, 540 U.S. 443 (2004) (time limit in Fed. R. Bankr. P. 4004 is not jurisdictional); Eberhart v. United States, 546 U.S. 12 (2005) (time limit in Fed. R. Crim. P. 33(a) is not jurisdictional); United States v. Neff, 598 F.3d 320 (7th Cir. 2010) (time limit in Fed. R. App. P. 4(b) is not jurisdictional).

We need not hold these appeals for Hamer, however, or revisit the issue resolved in Sobczak-Slomczewski. For whether or not a given rule is "jurisdictional" it is still a rule, and when invoked it must be enforced. Appellees have claimed the benefit of the 14-day limit for bankruptcy appeals. Bankruptcy Rule 9022(a), which requires bankruptcy courts to notify litigants of judicial orders, 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 in Rule 8002." This takes us to Rule 8002(d), which specifies the conditions under which a bankruptcy judge may extend the time for appeal. Rule 8002(d)(1) permits a bankruptcy judge to allow a belated appeal if application is made within 35 days after the order's entry. Netzer missed that deadline—and, even if he had asked in time, still the power to decide would have belonged to the bankruptcy judge, not to the district judge or the court of appeals.

Courts lack an "equitable" power to contradict the bankruptcy statutes and rules. Law v. Siegel, 571 U.S. 415, 134 S.Ct. 1188, 188 L.Ed.2d 146 (2014); In re Kmart Corp., 359 F.3d 866, 871 (7th Cir. 2004). Rule 9022(a) says that lack of notice authorizes additional time only to the extent allowed by Rule 8002, and Rule 8002(d)(1) sets a limit of 35 days from the decision for such a request to be made. Those rules promote expeditious resolution of bankruptcy appeals. Litigants have only to check the court's electronic docket once a month in order to protect their interests; this step will ensure that, even if notice miscarries, a request for additional time can be made within the 35 days allowed by Rule 8002(d)(1).

AFFIRMED