                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-22-2006

In Re: David Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2506




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Recommended Citation
"In Re: David Smith " (2006). 2006 Decisions. Paper 852.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/852


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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 05-2506


                             IN RE: DAVID A. SMITH,

                                              Debtor

                                    David A. Smith,

                                            Appellant



          ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                             (Dist. Court No. 04-cv-04318)
                District Court Judge: The Honorable Charles R. Weiner


                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                   June 16, 2006


           Before: FISHER, CHAGARES, and REAVLEY,* Circuit Judges.

                           (Opinion Filed: June 22, 2006)


                            OPINION OF THE COURT




      *
       Honorable Thomas M. Reavley, Senior Circuit Judge of the United States Court
of Appeals for the Fifth Circuit, sitting by designation.
CHAGARES, Circuit Judge:

       Debtor/Appellant David A. Smith appeals the decision of the District Court,

affirming the Bankruptcy Court’s denial of his motion to reopen his bankruptcy

proceeding. Because Smith’s appeal from the Bankruptcy Court was untimely, the appeal

must be dismissed for lack of jurisdiction.

                                              I.

       Smith’s Chapter 7 bankruptcy proceeding was closed in 2002. In March 2004,

Smith filed two papers against Appellees Jodie White and David Sobotka: a motion to

reopen the bankruptcy proceeding, and an adversary proceeding. The Bankruptcy Court

considered only the motion to reopen, noting that it lacked jurisdiction over the adversary

proceeding because the underlying case was closed. (App. at 10 n.7).

       The Bankruptcy Court denied Smith’s motion to reopen on July 27, 2004,

simultaneously filing and entering an opinion and order. (App. at 7, 17, 41). On August

13, the adversary proceeding was terminated as moot. (App. at 41).

       Six days later, on August 19, Smith filed his notice of appeal, and he paid his fee

on August 26. (App. at 41–42.) The entire text of the notice is as follows: “David Smith

hereby appeals to the District Court Judge Twardowski’s July 27, 2004 Order of Court

received this July 31, 2004 denying his petition to reopen his bankruptcy.” In re: David

Smith, No. 01-24981, Notice of Appeal at 2, docket #33, (Bankr. E.D. Pa. Aug. 19, 2004).

As is evident, Smith made no mention of the August 13 termination in his notice of

appeal. Smith did not file a motion for reconsideration, nor did he request an extension of

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time in which to appeal. (App. at 41). The parties and the District Court did not address

the timeliness of the appeal. The District Court affirmed the denial of the motion to

reopen on April 13, 2005.

       Because Smith’s notice of appeal appeared to be filed after the ten-day deadline set

forth in Fed. R. Bankr. P. 8002(a), this Court requested letter briefs from counsel on

whether the appeal should be dismissed for lack of jurisdiction. Smith asserts two

arguments against dismissal: that the final order triggering his appeal occurred on August

13, 2004, and that estoppel should prevent dismissal.

                                             II.

       Smith’s appeal was untimely. “The notice of appeal shall be filed with the clerk

within 10 days of the date of the entry of the judgment, order, or decree appealed from.”

FRBP 8002(a). The denial of a motion to reopen is a final, appealable order, the entry of

which starts the ten-day period. In re Crofford, 277 B.R. 109, 112 (B.A.P. 8th Cir. 2002);

In re Deutsch-Sokol, 290 B.R. 27, 29–30 (S.D.N.Y. 2003). “The failure to file a timely

notice of appeal [from Bankruptcy Court] creates a jurisdictional defect barring appellate

review.” Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997). The

Court may raise this jurisdictional issue sua sponte. In re Mouradick, 13 F.3d 326, 328

(9th Cir. 1994); Adapt of Philadelphia v. Philadelphia Housing Authority, 433 F.3d 353,

361 n.10 (3d Cir. 2006) (this Court must consider its appellate jurisdiction).

       Smith’s appeal clock began to run on July 27, 2004, when the Bankruptcy Court

denied Smith’s motion to reopen. The Bankruptcy Court’s closure of the adversary

                                              3
proceeding on August 13 did not trigger the appeal clock because the denial of the motion

to reopen is the only subject of this appeal, and it is the only order that the parties briefed

here or in the District Court. This fact is made clear from Smith’s August 19 notice of

appeal, which specifies that he is appealing “Judge Twardowski’s July 27, 2004 Order”

and makes no mention of the August 13 termination in his notice of appeal. “[W]here the

order or judgment upon which the appellant seeks review is neither directly nor indirectly

referred to in the notice of appeal, then the issue is not fairly raised and the Court of

Appeals does not acquire jurisdiction.” United States v. Rivera Construction Co., 863

F.2d 293, 298 (3d Cir. 1988). Moreover, the Bankruptcy Court unambiguously indicated

on July 27 that the adversary proceeding was improperly filed and was distinct from the

motion to reopen. See Crofford, 277 B.R. at 113 (where the Bankruptcy Court denied

two motions in succession, and the Debtors’ appeal was only timely with respect to the

second, jurisdiction did not exist to appeal of the first).

       Under FRBP 9006(a), Smith was required to file his notice of appeal on or before

August 6, 2004. Therefore, his August 19 notice of appeal was 13 days late, depriving

this Court and the District Court of jurisdiction over the appeal.

                                            III.

       Smith is not entitled to estoppel to prevent dismissal of his appeal. Smith argues

that because the Bankruptcy and District Courts did not inform him that his August 19

appeal was late, they deprived him of the opportunity to file a motion for an extension of

time in which to appeal. A motion for an extension of time must be filed, at the latest,

                                               4
twenty days after the ten-day deadline. FRBP 8002(c)(2). In this case, therefore, the

deadline for an extension motion expired on August 26, 2004.

       Smith bears responsibility for missing the appeal and extension deadlines. As

explained above, Smith should have known that his appeal clock had begun on July 27

and had expired on August 6. He should not have been waiting for the adversary

proceeding to be closed, and he would not have been reasonable in believing that the

August 13 order reset his clock. Even if the Bankruptcy Court was under some obligation

to inform Smith that his August 19 notice of appeal should have been a motion for an

extension of time, Smith gave the Bankruptcy Court an insufficient amount of time in

which to correct his error. Smith squandered almost two weeks of his time between

August 6 and August 19. After Smith filed his notice, only a week remained before his

August 26 deadline to file a motion for an extension, and Smith did not pay his appeal fee

until August 26. The District Court would not have had time to inform Smith of his error

because (as Smith was told in the August 19 docket entry) the District Court would not

receive the notice of appeal until September 13. (App. at 41–42).

       The two estoppel cases that Smith cites are inapposite. In both Thompson v. INS,

375 U.S. 384 (1964), and Harris Truck Lines, Inc., v. Cherry Meat Packers, Inc., 371 U.S.

215 (1962), the Supreme Court allowed appellants to proceed with their appeals despite

untimeliness. Both lower courts, however, had explicitly ruled that the appellants’

actions were timely, and the appellants had relied on those rulings by not requesting

extensions of time when they still would have been able to make such requests.

                                             5
Thompson, 375 U.S. at 388–89. Here, the Bankruptcy and District Courts made no such

rulings, and because of Smith’s delay, he gave them little or no time in which to do so.

                                            IV.

       For the foregoing reasons, neither this Court nor the District Court had jurisdiction

over Smith’s appeal. Accordingly, we will vacate the decision of the District Court and

remand with an order that the District Court dismiss the appeal for lack of jurisdiction.




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