                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 7 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    In re: CRAY COMPUTER
    CORPORATION,

                Debtor,
                                                         No. 97-1185
                                                     (D.C. No. 97-AP-453)
                                                           (D. Colo.)
    WILLIAM KUNTZ, III,

                Appellant,

    v.

    DASU L.L.C.,

                Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, LOGAN, and LUCERO, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       William Kuntz, III, a shareholder of debtor Cray Computer Corporation,

appealed a judgment of the district court dismissing, as untimely filed, his appeal

from an order of the bankruptcy court. The bankruptcy court had denied Kuntz’s

Fed. R. Civ. P. 60(b) motion to vacate an earlier order granting debtor’s motion to

sell certain patent assets. 1

       The bankruptcy court denied the Rule 60(b) motion on January 30, 1997.

On March 4, Kuntz filed a motion for reconsideration and/or for an extension of

time in which to file a notice of appeal, citing Bankruptcy Rules 8002(c) and

9024 and Federal Rule of Civil Procedure 60(a) and (b). The bankruptcy court

denied the motion; it concluded that the request for an extension of time was

untimely under Bankruptcy Rule 8002(c). The district court then ordered the

appeal dismissed as untimely filed.


1
       Kuntz, unhappy with the price Dasu L.L.C. paid for the patents, earlier
challenged the January 1996 sale of debtor’s assets. We held that although the
district court erred in dismissing the bankruptcy appeal as untimely, because the
sale of the patent assets had been consummated and neither the bankruptcy court
nor the district court had granted a stay, the bankruptcy court’s determination that
Dasu was a good faith purchaser under 11 U.S.C. § 363(m) rendered the appeal
moot. See Kuntz v. Cray Computer (In re Cray Computer Corp.), No. 96-1125,
1996 WL 547320, at **1 (10th Cir. Sept. 26, 1996) (citing Osborn v. Durant Bank
& Trust Co. (In re Osborn), 24 F.3d 1199, 1203-04 (10th Cir. 1994) (§ 363(m)
moots appeals in those cases where the only remedies available are those
affecting validity of sale)).

                                         -2-
      We review the district court’s dismissal for lack of jurisdiction de novo.

See Weston v. Mann (In re Weston), 18 F.3d 860, 862 (10th Cir. 1994). An

appellate court has no jurisdiction absent a timely notice of appeal. See id.;

Saunders v. Band Plus Mortgage Corp. (In re Saunders), 31 F.3d 767 (9th Cir.

1994). Kuntz’s brief does not address the sole issue before us--whether his

appeal to the district court was timely filed. Instead, he reargues his theory of

why the underlying sale of the patent assets should be reconsidered.

      Kuntz had ten days in which to file a notice of appeal from the bankruptcy

court’s January 30, 1997 order, including intermediate calendar days. See Bankr.

R. 8002(a), 9006(a). The calculation of time and excludable days in this case is

governed by Bankruptcy Rule 9006(a), not Federal Rule of Civil Procedure 6(a).

A request for an extension of time to appeal must be made within the appeal

period, except that a request made no more than twenty days after the expiration

of time for filing a notice of appeal may be granted on a showing of excusable

neglect. See Bankr. R. 8002 (c). Kuntz’s request for extension of time filed on

March 4, 1997, exceeded by one day the bankruptcy court’s authority to grant the

extension.

      Failure to receive notice of the entry of judgment is not an excuse for an

untimely appeal. See Key Bar Invs., Inc. v. Cahn (In re Cahn), 188 B.R. 627, 632

(B.A.P. 9th Cir. 1995). It is also well established that Bankruptcy Rule 9006(f),


                                         -3-
allowing three additional days to undertake a proceeding where notice is served

by mail, does not apply to the filing of a notice of appeal under Bankruptcy Rule

8002(a). See United States ex rel. Rudd v. Schimmels (In re Schimmels), 85 F.3d

416, 420 n.4 (9th Cir. 1996); In re Zerr, 180 B.R. 281, 282-83 (D. Kan. 1995)

The district court correctly concluded it lacked jurisdiction to entertain Kuntz’s

appeal.

      We also have before us Dasu L.L.C.’s motion for sanctions, which includes

the declaration that it has incurred legal fees of over $28,000 in this appeal.

Because Kuntz appears to be a frustrated shareholder of debtor, acting pro se and

without an understanding of the law, we decline to impose sanctions in the instant

case. But he has filed six different proceedings relating to this transaction, and

that is more than enough. We admonish him that this case is final and that any

further attempts to relitigate the sale of the debtor’s patent assets, affirmed by our

earlier decision, will warrant appropriate sanctions.

      AFFIRMED. The mandate shall issue forthwith.

                                                      Entered for the Court

                                                      James K. Logan
                                                      Circuit Judge




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