                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 13-3636
                       ___________________________

                     In re: Civic Partners Sioux City, LLC

                             lllllllllllllllllllllDebtor

                           ------------------------------

                        Civic Partners Sioux City, LLC

                            lllllllllllllllllllllAppellant

                                         v.

  Main Street Theaters, Inc.; Main Street-Sioux City, Inc.; Steven Semingson;
Northwest Bank, successor by merger with First National Bank; City of Sioux City

                           lllllllllllllllllllllAppellees
                       ___________________________

                               No. 13-3638
                       ___________________________

                     In re: Civic Partners Sioux City, LLC

                             lllllllllllllllllllllDebtor

                           ------------------------------

                        Civic Partners Sioux City, LLC

                            lllllllllllllllllllllAppellant
                                           v.

    Main Street Theaters, Inc.; Main Street-Sioux City, Inc.; Northwest Bank,
       successor by merger with First National Bank; City of Sioux City

                              lllllllllllllllllllllAppellees
                                     ____________

                    Appeal from the United States Bankruptcy
                      Appellate Panel for the Eighth Circuit
                                 ____________

                            Submitted: October 7, 2014
                               Filed: March 3, 2015
                                  ____________

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
                           ____________

GRUENDER, Circuit Judge.

      Debtor Civic Partners Sioux City, LLC (“Civic”) appeals four orders of the
bankruptcy court.1 We dismiss for lack of jurisdiction.

      As part of a redevelopment project partially financed by Sioux City, Iowa (the
“City”), Civic borrowed money from Northwest Bank (the “Bank”) to build a movie-
theater complex. Main Street Theaters, Inc. (“Main Street”) leased the theater space
in 2004. Because of various problems, Main Street did not fully pay its rent to Civic,
and Civic did not fully make its loan payments to the Bank. After mediation, Civic
and Main Street agreed on an amended lease that substantially lowered Main Street’s



      1
        The Honorable Thad J. Collins, Chief Judge, United States Bankruptcy Court
for the Northern District of Iowa.

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rent. Nonetheless, difficulties continued. Eventually, Civic filed for Chapter 11
bankruptcy.

       In bankruptcy court, Civic filed a plan of reorganization. As part of the plan,
Civic argued that the court should subordinate the interests of the Bank and the City
because they had defrauded Civic into accepting the amended lease. After Civic
moved for a ruling that the original, 2004 lease with Main Street applied, the
bankruptcy court issued two orders deciding that the amended lease applied. Civic
moved for reconsideration, which the court denied. Civic then appealed the two lease
orders and the denial of reconsideration to the Bankruptcy Appellate Panel (the
“BAP”). On February 1, 2013, the BAP ruled that Civic’s appeal was improperly
interlocutory and dismissed for lack of jurisdiction. See 28 U.S.C. § 158(a), (c)(1).
Civic did not appeal that ruling.

       Civic filed a second plan, which restated the fraud argument. The bankruptcy
court denied confirmation of the second plan and rejected the fraud argument. The
court, however, did not dismiss the bankruptcy petition. Civic then appealed this new
order and—again—the three earlier orders. The BAP again dismissed for lack of
jurisdiction. Civic now appeals all four orders to this court—the two lease orders, the
denial of reconsideration of those two orders, and the denial of the second plan’s
confirmation.

       With exceptions not relevant here, our jurisdiction over appeals from the BAP
is limited to appeals from “final decisions, judgments, orders, and decrees.” Id.
§ 158(d). For this purpose, “a determination of the [BAP] is not ‘final’ unless the
underlying order of the bankruptcy court is final.” In re Popkin & Stern,
105 F.3d 1248, 1250 (8th Cir. 1997) (quoting In re Flor, 79 F.3d 281, 283 (2d Cir.
1996)). “Accordingly, jurisdiction to hear the merits . . . rests on whether the
bankruptcy court issued a final, appealable order.” In re Gaines, 932 F.2d 729, 731
(8th Cir. 1991). Further, the “[t]imely filing” of a notice of appeal “‘is mandatory and

                                          -3-
jurisdictional.’” United States v. Stute Co., Inc., 402 F.3d 820, 822 (8th Cir. 2005)
(quoting United States v. Fitzgerald, 109 F.3d 1339, 1342 (8th Cir. 1997)). Here, we
lack jurisdiction to review any of the four orders.

      The three earlier, lease-related orders were deemed non-final by the BAP on
February 1, 2013. Civic invokes our jurisdiction only by arguing that the three orders
were final. But even assuming the orders were final, Civic had only thirty days after
February 1, 2013 to appeal them to us. Fed. R. App. P. 4(a)(1)(A), 6(b)(1). Civic did
not appeal within that time, and so we lack jurisdiction.

       We also lack jurisdiction to review the fourth order, which denied confirmation
of Civic’s second plan. In Lewis v. United States, Farmers Home Administration,
992 F.2d 767 (8th Cir. 1993), we held that “bankruptcy orders denying confirmation
of a proposed plan but not dismissing the underlying petition are nonfinal decisions
not subject to appeal.” Id. at 772. Fifteen years later, we repeated that “[u]nder
Eighth Circuit law, which is consistent with the views of other circuits, an order
denying confirmation of a plan, which does not dismiss the case, is not a final order
and cannot be appealed.” In re Zahn, 526 F.3d 1140, 1143 (8th Cir. 2008). The
bankruptcy court has not dismissed Civic’s petition. It is thus clear that we cannot
review the denial of Civic’s second plan. To the extent that Civic’s reply brief urges
us to review the bankruptcy court’s rejection of the fraud claims, a ruling contained
within the plan denial, Lewis forecloses that possibility as well. Cf. Lewis,
992 F.2d at 769-771, 774 (finding plan denial not appealable where denial also
included ruling on underlying issue).




                                         -4-
      This appeal is dismissed.2
                       ______________________________




      2
       Immediately after Civic appealed to this court, the Bank filed a motion to
dismiss and a separate motion for damages and costs. See Fed. R. App. P. 38.
Presumably because it was filed immediately, the latter motion did not identify or
itemize the amounts requested. Having now effectively granted the motion to
dismiss, we deny the motion for damages and costs without prejudice to refiling such
a motion in accordance with Federal Rules of Appellate Procedure 38 and 39 and 8th
Circuit Rule 39A.


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