                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0103n.06

                                        Case No. 16-3790

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Feb 13, 2017
SCHWAB INDUSTRIES,                                    )                      DEBORAH S. HUNT, Clerk
INCORPORATED,                                         )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )     ON APPEAL FROM THE UNITED
v.                                                    )     STATES DISTRICT COURT FOR
                                                      )     THE NORTHERN DISTRICT OF
HUNTINGTON NATIONAL BANK, HAHN                        )     OHIO
LOESER & PARKS, and ANDREW                            )
KRAUSE,                                               )
                                                      )
       Defendants-Appellees.                          )

Before: BOGGS, SILER, and DONALD, Circuit Judges.

       SILER, Circuit Judge. Schwab Industries, Inc. (“Schwab Inc.”) appeals from the district

court’s grant of motions to dismiss the case for want of jurisdiction. Schwab Inc. filed its appeal

in the district court two days after the statutory deadline for appeals from bankruptcy-court

orders and judgments. We affirm the district court’s order dismissing the bankruptcy appeal

because the district court lacked jurisdiction over the untimely appeal.

                                                 I.

       In 1992, Jerry Schwab retained attorney Andrew Krause to prepare an irrevocable trust.

The trust agreement identified Huntington Trust Company of Florida, an affiliate of Huntington

National Bank (the “bank”), as the trustee. Jerry Schwab’s business, Schwab Inc., entered into

an agreement with the bank, stipulating that Schwab Inc. would pay on the life-insurance policies

that were assets of the trust. In exchange for payment of the premiums, the bank granted Schwab
Case No. 16-3790, Schwab Indus., Inc. v. Huntington Nat’l Bank


Inc. a collateral interest in those life-insurance policies. See Schwab v. Huntington Nat’l Bank,

516 F. App’x 545, 546 (6th Cir. 2013) (reciting underlying facts). After forming the trust,

Krause joined Hahn Loeser & Parks, LLP (the “firm”). In 2009, Jerry Schwab advised the bank

that the advisory committee for the trust intended to assign some life-insurance contracts to

certain secured creditors. The bank retained Krause to review the proposed action and provide

an opinion on it.

       In 2010, the firm filed a voluntary bankruptcy petition under Chapter 11 on behalf of

Schwab Inc. See id. The bankruptcy court authorized the sale of certain assets and approved the

assignment of some contracts and leases. The case involving Schwab Inc.’s bankruptcy is

ongoing.

       In 2014, Schwab Inc. filed a lawsuit against the bank, firm, and attorneys affiliated with

the firm (“Defendants”), alleging various state-law claims. Defendants removed the case to the

bankruptcy court, thereby creating separate adversary proceedings involving the bank and firm.

Schwab Inc. moved to remand and withdraw the bankruptcy reference, which the bankruptcy

court denied in 2014. Defendants filed a motion for sanctions, which is still pending before the

bankruptcy court.

       Schwab Inc. filed separate notices of appeal to the district court, challenging the orders

denying remand and withdrawal.          While that appeal was pending, the bankruptcy court

consolidated the adversary proceedings. Observing that Schwab Inc. failed to move for leave to

file an interlocutory appeal, the district court nevertheless reviewed the appeal as if properly filed

and found “no basis to permit an interlocutory appeal in these matters.” Schwab Indus. v.

Huntington Nat’l Bank, Nos. 5:14CV2578, 5:14CV2586, 2015 U.S. Dist. LEXIS 65848, at *7

(N.D. Ohio May 19, 2015).



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Case No. 16-3790, Schwab Indus., Inc. v. Huntington Nat’l Bank


         On September 21, 2015, the bankruptcy court granted motions to dismiss on grounds that

Schwab Inc. lacked standing. On October 7, 2015—16 days after entry of the order—Schwab

Inc. moved for leave to file an interlocutory appeal from the orders denying remand and

dismissal.    The district court denied the motion as moot because the orders are “final.”

According to the district court, the pending sanctions motion is “collateral to the merits” and did

not affect the finality of the bankruptcy court’s orders. After accepting the case as a direct

appeal, the district court set a briefing schedule.

         In 2016, the district court granted motions to dismiss the appeal as untimely because the

notice of appeal was filed two days late. Schwab Indus. v. Huntington Nat’l Bank, No. 5:15-cv-

2098, 2016 U.S. Dist. LEXIS 83284, at *3–4 (N.D. Ohio June 24, 2016).

                                                  II.

         A federal court must determine whether it has jurisdiction before reaching the merits of a

case. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007). The

appellant has the burden of establishing that the appellate court has jurisdiction to hear the case.

Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016). A statutory deadline to file an

appeal is “mandatory and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264

(1978) (internal quotation marks and citation omitted). We review de novo questions about

jurisdiction. Internal Revenue Serv. v. Hildebrand (In re Brown), 248 F.3d 484, 486 (6th Cir.

2001).

                                                  III.

         Schwab Inc. argues that the district court erred in deeming final the bankruptcy court’s

orders because the Constitution and relevant statutes preclude the bankruptcy court from entering

a final order on non-core bankruptcy proceedings. Schwab Inc. contends that the bankruptcy



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Case No. 16-3790, Schwab Indus., Inc. v. Huntington Nat’l Bank


court had no authority to issue a final order on the state-law claims. The district court’s order

setting a briefing schedule for the appeal, Schwab Inc. asserts, tainted the entire appeal because

the district court erred in concluding that a final order had issued from which the appeal was

sought.     Schwab Inc. argues that the timing of its appeal is immaterial because the issue

presented is whether the bankruptcy court had the capacity to enter final judgment on the claims.

According to Schwab Inc., the district court erroneously concluded, without analysis or briefing,

that the appealed judgments are final.

          We affirm without addressing the district court’s conclusion on finality because Schwab

Inc. filed its appeal two days late without excuse. True, “Article III prevents bankruptcy courts

from entering final judgments on claims that seek only to ‘augment’ the bankruptcy estate and

would otherwise ‘exis[t] without regard to any bankruptcy proceeding.’” Wellness Int’l Network,

Ltd. v. Sharif, 135 S. Ct. 1932, 1941 (2015) (quoting Stern v. Marshall, 564 U.S. 462, 498

(2011)). But before the underlying merits can be addressed, the appeal must be timely and the

appellate court must have jurisdiction to review the matter. Bowles v. Russell, 551 U.S. 205, 210

(2007) (“[T]he courts of appeals routinely and uniformly dismiss untimely appeals for lack of

jurisdiction.”); Giovanni v. Johnson (In re Johnson), 82 F. App’x 166, 167 (6th Cir. 2003)

(“Accordingly, the BAP’s order dismissing Giovanni’s untimely bankruptcy appeal for lack of

jurisdiction is affirmed.”).

          “[A] notice of appeal must be filed with the bankruptcy clerk within 14 days after entry

of the judgment, order, or decree being appealed.” Fed. R. Bankr. P. 8002(a). “Compliance with

the [14-day] filing rule is a jurisdictional requirement.” Crider v. Dobbs (In re Crider), No. 98-

2376, 2000 U.S. App. LEXIS 2098, at *7 (6th Cir. Feb. 10, 2000). Exceptions exist for

untimeliness, but none are relevant in this case. See Schwab Indus., 2016 U.S. Dist. LEXIS



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Case No. 16-3790, Schwab Indus., Inc. v. Huntington Nat’l Bank


83284, at *4 (“Here, appellant filed no motion with the bankruptcy court (or with this Court)

seeking an extension of time.”); see also French v. Phoenix Corp. (In Re Phoenix Corp.), Nos.

95-6679, 96-5024, 1997 U.S. App. LEXIS 19193, at *12 (6th Cir. July 22, 1997) (noting an

exception for “substantial compliance,” which is not alleged here). “Cases interpreting Rule

8002 hold that it shall be strictly construed and that failure to timely file is a jurisdictional

[requirement] that precludes a district court from reaching the merits.” Willis v. Sicherman, 904

F.2d 709, No. 89-3482, 1990 U.S. App. LEXIS 9487, at *3–4 (6th Cir. Jun. 11, 1990)

(unpublished table decision) (citations omitted); see also Walker v. Bank of Cadiz (In re LBL

Sports Center, Inc.), 684 F.2d 410, 412 (6th Cir. 1982) (“[A] district court lacks jurisdiction over

an appeal that is not timely filed pursuant to Rule [8002(a)].”).

       Whether the bankruptcy court’s actions are final is not relevant or essential to decide the

issue of timeliness. The reticent analysis by the district court reflects that little needs to be said

when an appeal is untimely. That Schwab Inc. declines to brief untimeliness or proffer an excuse

is salient and dispositive on a record without contradiction. Schwab Inc. filed its notice of appeal

two days after the deadline and provides no explanation for how the district court—sitting in an

appellate instance—could exercise jurisdiction to review the bankruptcy appeal.

       AFFIRMED.




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