                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 March 30, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                          FOR THE TENTH CIRCUIT




    In re: TOBY SCRIVNER;
    ANGELIQUE PISANO,

              Debtors.
    _____________________________                      No. 09-6029
                                                     (No. 08-083-WO)
    JOHN D. MASHBURN,                                      (BAP)

              Plaintiff-Appellee,

    v.

    TOBY SCRIVNER; ANGELIQUE
    PISANO,

              Defendants-Appellants.


                          ORDER AND JUDGMENT *


Before GORSUCH and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Debtors Toby Scrivner and Angelique Pisano, husband and wife, appeal

from an order and judgment of the Bankruptcy Appellate Panel (BAP) dismissing

their appeal for lack of jurisdiction. We agree with the BAP that the appeal was

premature. Accordingly, we affirm the order and judgment of the BAP.

      Mr. Scrivner and Ms. Pisano filed for bankruptcy under Chapter 7 on

October 14, 2005, listing income from an ownership interest in the television

show Cheaters L.L.C. On March 7, 2006, the bankruptcy court granted the two a

discharge. Later that month, the Trustee moved for turnover of the income the

two received from Cheaters after filing for bankruptcy. The bankruptcy court

granted the motion. Mr. Scrivner and Ms. Pisano neither appealed the order nor

turned over the Cheaters income.

      On August 23, 2006, the Trustee filed a motion to surcharge the exempt

property of Mr. Scrivner and Ms. Pisano, because they had failed to comply with

the turnover order. The bankruptcy court, on October 24, directed that the two

turn over to the Trustee $17,424.75, which was the income they had received

from Cheaters since filing bankruptcy, plus interest and attorney’s fees, and, if

they did not do so, the court authorized the Trustee to surcharge their exempt

property.

      Mr. Scrivner and Ms. Pisano appealed to the BAP. The BAP affirmed the

bankruptcy court’s surcharge order. Scrivner v. Mashburn (In re Scrivner),

370 B.R. 346 (B.A.P. 10th Cir. 2007). We, however, reversed the BAP’s

                                         -2-
judgment and the bankruptcy court’s order authorizing the surcharge of the

exempt assets. Scrivner v. Mashburn (In re Scrivner), 535 F.3d 1258 (10th Cir.

2008), cert. denied, 129 S. Ct. 1613 (2009).

      While the appeal to the BAP on the surcharge order was pending, the

Trustee filed an adversary proceeding in the bankruptcy court. In the complaint’s

first count, he sought judgment against Mr. Scrivner and Ms. Pisano for the

outstanding turnover amount, plus interest, attorney’s fees, and costs. In the

second count, he asked the court to revoke Mr. Scrivner’s and Ms. Pisano’s

discharge under 11 U.S.C. § 727(d)(2), because they knowingly and fraudulently

failed to deliver property of the estate to the Trustee, and under 11 U.S.C.

§ 727(d)(3), because they refused to obey the bankruptcy court’s orders. The

parties filed cross motions for summary judgment.

      On September 12, 2008, the bankruptcy court granted the Trustee’s motion

for summary judgment and denied Mr. Scrivner’s and Ms. Pisano’s motion for

summary judgment. The court decided the first count was moot due to our

reversal of the surcharge order. The bankruptcy court revoked the discharge as

requested in the second count. Declining to address the Trustee’s entitlement to

revocation of discharge based on § 727(d)(2), the court revoked discharge under

§ 727(d)(3), due to Mr. Scrivner’s and Ms. Pisano’s failure to comply with the

court’s order requiring turnover or to provide a sufficient explanation for their

failure to comply.

                                         -3-
      On September 19, 2008, Mr. Scrivner and Ms. Pisano filed a notice of

appeal to the BAP. See Fed. R. Bankr. P. 8002(a) (1997) (amended in 2009 to

change time for filing notice of appeal from bankruptcy court decision from ten to

fourteen days). Also that day, the Trustee filed a timely post-decisional Motion

to Alter or Amend the Court’s Findings and Judgment or, in the Alternative,

Motion for New Trial on Count I of the Trustee’s Complaint, pursuant to

Fed. R. Civ. P. 52, 59, and 60, made applicable by Fed. R. Bankr. P. 7052, 9023,

and 9024, respectively. See generally Fed. R. Bankr. P. 8002(b) (1997) (amended

in 2009 to change time periods for filing timely motions). He contended that the

first count was not moot and that a money judgment was needed for the amount of

the turnover debt, because the turnover order did not state any dollar amount and

the order granting a surcharge had been reversed. Thus, the Trustee sought an

order amending the judgment to state the Trustee could recover from Mr. Scrivner

and Ms. Pisano $17,425.75, plus interest and reasonable attorney’s fees and costs.

      The BAP issued an order and a judgment, dismissing Mr. Scrivner’s and

Ms. Pisano’s appeal on jurisdictional grounds. First, the BAP decided it lacked

jurisdiction because the bankruptcy court’s decision was not final and appealable

under 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1) as it did not decide whether the

Trustee was entitled to revoke discharge under § 727(d)(2). Also, the BAP

decided the appeal was premature under Rule 8002(b) because the bankruptcy




                                         -4-
court had not ruled on the Trustee’s pending motion. Mr. Scrivner and

Ms. Pisano appealed.

      We review de novo whether the BAP properly dismissed their appeal for

lack of jurisdiction. See Mason v. Young (In re Young), 237 F.3d 1168, 1172

(10th Cir. 2001). Rule 8002(b) governs the effect of a timely filed motion to alter

or amend, or for a new trial, on the time for filing an appeal. The rule provides

that a notice of appeal filed before the motion is decided is ineffective until an

order is entered disposing of the motion. The Advisory Committee Notes state

that Rule 8002(b) “is essentially the same as” Fed. R. App. P. 4(a)(4).

      Under the version of Rule 4(a)(4)(A) in effect at the time of the appeal to

the BAP, 1 if a party filed a timely motion to amend under Rule 52(b); a timely

motion to alter or amend under Rule 59; a motion for new trial under Rule 59; or

a motion for relief under Rule 60 filed no later than ten days after judgment was

entered, the time for filing an appeal ran from the date of the order disposing of

the motion. See Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (“If

a party files a postjudgment motion within ten days of the final order, the time for

filing a notice of appeal is tolled pending resolution of the motion.”). If a party

filed a notice of appeal before the court disposed of any of these motions, the




1
       Rule 4(a)(4)(A) was also amended in 2009 to match revisions to the time
limits in the Federal Rules of Civil Procedure.

                                          -5-
notice of appeal became effective when an order was entered disposing of the

motion. Fed. R. App. P. 4(a)(4)(B)(i).

      As of this date, the bankruptcy court has not ruled on the Trustee’s motion

to alter or amend or, alternatively, for a new trial. Thus, the adversary proceeding

remains open, and the bankruptcy court retains jurisdiction. Mr. Scrivner’s and

Ms. Pisano’s notice of appeal, which was filed before the disposition of the

motion, therefore has no effect. See Fellows v. Colonial Savings & Loan Ass’n

(In re Fellows), 19 F.3d 245, 246 (5th Cir. 1994).

      Mr. Scrivner and Ms. Pisano argue that because the Trustee’s motion only

concerns the first count of the adversary proceeding, nothing precludes their

appeal of the revocation of discharge. They, however, cite no authority, and we

have found none, supporting their argument. Neither Rule 4(a)(4)(A) nor Rule

8002(b) lists exceptions to the rule that a timely motion tolls the time for an

appeal.

      Additionally, Mr. Scrivner and Ms. Pisano argue that the Trustee’s motion

was not a proper Rule 52, 59, or 60 motion. Specifically, they contend that the

Trustee did not ask the bankruptcy court to amend its findings or make additional

findings as is required by Rule 52(b). Also, they contend that the Trustee asked

the court to exchange the money judgment contained in the surcharge order for a

new money judgment of $17,424.75, and this does not qualify for a new trial

under Rule 59(a). Through these arguments, Mr. Scrivner and Ms. Pisano, in

                                          -6-
effect, ask us to rule on the merits of the Trustee’s motion. But we have no

jurisdiction to do so.

      We conclude that the BAP correctly decided that Mr. Scrivner’s and

Ms Pisano’s appeal from the bankruptcy court was premature. 2 Accordingly, we

AFFIRM the judgment of the BAP.


                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




2
      Because the appeal was premature, we need not address whether the
bankruptcy court’s order was final and appealable.

                                        -7-
