                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                  UNITED STATES COURT OF APPEALS                  July 30, 2007
                       FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 05-20934


           STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.,

                                                    Plaintiff-Appellee,

                               versus

                       RALPHAELL V. WILKINS,

                                                   Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (4:99-CV-2822)


Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

     Ralphaell   Wilkins   challenges   a    bankruptcy-court    judgment

against him in a fraud action.        Because Wilkins did not timely

appeal the district court’s decision dismissing his appeal from

that judgment, we lack jurisdiction.        DISMISSED.

                                 I.

     In 1993, Wilkins, a lawyer, became involved in a “sudden-stop

collision” insurance fraud scheme with his office manager Rita

Frillarte, whereby automobile accidents were staged to generate



     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
insurance claims.       In 1998, one of the insurers, State Farm, sued

Wilkins and Frillarte in state court, asserting, inter alia,

fraudulent misrepresentation and civil conspiracy due to their

presentment of over 150 false or inflated claims.

      Wilkins filed for bankruptcy in 1998; the bankruptcy court,

however, modified the automatic stay to allow State Farm’s state-

court action to proceed.      In that action, Wilkins filed claims in

1999 against State Farm’s lawyers; they removed the action to

federal court.    In 2000, the district court referred the fraud and

civil conspiracy claims to the bankruptcy court as an adversary

matter under 28 U.S.C. § 157        (specifying the classes of claims

that may be referred to bankruptcy court).

      The bankruptcy court rendered a judgment in May 2004 against

Wilkins, as debtor, and Frillarte.          It found them jointly and

severally liable to State Farm for approximately $2 million in

actual, and $1 million in punitive, damages and ruled Wilkins could

not   discharge   the    judgment   in   bankruptcy   due   to   statutory

prohibitions under 11 U.S.C. § 523(a)(2) (monies obtained by false

pretenses) and (a)(6) (willful and malicious injury by debtor to

another).

      Wilkins and Frillarte moved for a new trial.          On 25 August

2004, the bankruptcy court denied the motion but modified the prior

final judgment against Frillarte to a “proposed” judgment, in

accordance with 28 U.S.C. § 157(c)(1) (bankruptcy court shall


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submit proposed findings of fact and conclusions of law to the

district court in instances where it lacks “core” jurisdiction),

because it had “related to”, and not “core”, jurisdiction over

Frillarte.   The bankruptcy court did not revise the judgment as to

Wilkins, which it considered a final judgment.

     In September 2004, Wilkins filed a notice of appeal to contest

the bankruptcy court’s decision.         That appeal was dismissed by the

district court in December 2004 because Wilkins failed:          to file an

appellate brief within 15 days after entry of a judgment, as

required under Federal Rule of Bankruptcy Procedure 8009(a)(1); and

to designate a record on appeal, as required under Rule 8006.             In

February   2005,   the   district   court    denied   Wilkins’   motion   to

reconsider that decision.     Wilkins did not appeal.

     In March 2005, State Farm moved in district court to confirm

the bankruptcy court’s proposed findings and conclusions as to

Frillarte.   Wilkins and Frillarte jointly responded to the motion;

and, on 24 August 2005, the district court adopted those findings

and conclusions.    On 14 November 2005, the district court granted

Wilkins’ motion to extend the time in which to appeal; Wilkins

sought to appeal not only the district court’s August 2005 decision

as to Frillarte, but also the bankruptcy court’s August 2004

decision as to him.       Wilkins filed his notice of appeal on 21

November 2005.




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                                        II.

     Jurisdictional issues are raised by both parties.                      Because

Wilkins did not timely appeal the district court’s dismissal of his

appeal from the bankruptcy court’s August 2004 judgment, we lack

jurisdiction.        (Wilkins also contends State Farm’s claims fail

because:     they are barred by Texas’ statute of limitations; and,

even if they are not, State Farm knew the submitted claims were

false,     and   therefore,    he    cannot        be   liable   for     fraudulent

misrepresentations. Obviously, because we lack jurisdiction, we do

not reach these merits contentions.)

     The    bankruptcy      court   issued     a     final   judgment    respecting

Wilkins in August 2004, when it denied his new-trial motion.                     Under

Bankruptcy Rule 8002(a), Wilkins had 10 days to appeal from the

entry of that decision.        Wilkins filed his notice of appeal on 2

September 2004; as discussed, that appeal was dismissed by the

district     court     in    December        2004.       Wilkins’       motion    for

reconsideration of the dismissal was denied on 25 February 2005.

     Wilkins did not file a notice of appeal within 30 days

contesting that dismissal, as required under Federal Rule of

Appellate Procedure 4(a)(1)(A).                Instead, he waited until 21

November 2005, almost nine months later.

     A party’s timely filing of a notice of appeal is “mandatory

and jurisdictional”.        E.g., Smith v. Smith, 145 F.3d 335, 339 (5th

Cir. 1998); Moody Nat’l Bank of Galveston v. GE Life and Annuity


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Assur. Co., 383 F.3d 249, 250 (5th Cir. 2004) (“A timely filed

notice of appeal is an absolute prerequisite to this court's

jurisdiction.”).      Therefore, failure to adhere to this requirement

strips us of jurisdiction. See Budinich v. Becton Dickinson & Co.,

486 U.S. 196, 203 (1988) (a court “lacks discretion to consider the

merits of a case over which it is without jurisdiction”) (internal

citations and quotation marks omitted).

     In maintaining we can consider the 2004 bankruptcy-court

judgment, Wilkins presents two independent bases.                        Each fails.

                                            A.

     First,    Wilkins       contends:               the    bankruptcy    court     lacked

jurisdiction to issue a final judgment based on its August 2004

decision; because his case was a “non-core” proceeding under the

Bankruptcy Code, the court should have entered only a “proposed”

judgment   under     28    U.S.C.    §    157(c)(1);          and,    accordingly,     the

district court       should      have    either        treated    the    judgment     as a

proposed judgment or remanded the case to the bankruptcy court with

instructions to change the judgment to a “proposed” one.                            As the

bankruptcy court correctly noted, however, State Farm’s claims

against Wilkins are core proceedings under the Bankruptcy Code,

specifically    under       28     U.S.C.        §    157(b)(2)(B)       (allowance     or

disallowance    of        claims    against           the    estate)     and   (b)(2)(I)

(determinations as to the dischargeability of particular debts).

Even though    State       Farm’s    claims          arose    under    state   law,   “the


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relevant inquiry is whether the nature of the adversary proceeding,

rather than the state or federal basis for the claim, falls within

the core of bankruptcy power”.          In re Case, 937 F.2d 1014, 1020

(5th Cir. 1991) (internal citations and quotations omitted). Here,

the   dispute   clearly   affects   “the    distribution   of   [Wilkins’]

assets”.     Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 190

(5th Cir. 1990).

                                    B.

      In the alternative, Wilkins claims that, because this case

involved multiple parties, disposition as to some of them does not

result in a final judgment, absent certification under Bankruptcy

Rule 7054.    That Rule incorporates Federal Rule of Civil Procedure

54(b).     See In re Wood & Locker, Inc., 868 F.2d 139, 142-43 (5th

Cir. 1989).     Under Rule 54(b), an order is not appealable when it

has disposed of fewer than all of the claims in a case, leaving

other claims to be determined, absent a certification by the court

that there is no just reason for delay in the entry of a final

judgment for that portion of the case that has been finally

adjudicated.     E.g., Road Sprinkler Fitters Local Union v. Cont’l

Sprinkler Co., 967 F.2d 145, 148 (1992); Ellender v. Schweiker, 781

F.2d 314, 318 (2d Cir. 1986).        Therefore, Wilkins contends, the

bankruptcy court’s August 2004 judgment did not become final until

August 2005, when the district court affirmed the bankruptcy




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court’s rulings as to Frillarte.      That decision, he claims, was

timely appealed.

     The bankruptcy court made clear in its August 2004 ruling that

the decision was a final judgment for Wilkins.   Its opinion denying

the motion for a new trial referred to the underlying May 2004

decision as a “Final Judgment”.   In its order, the court stated it

did not “in any manner, modify the Findings, Conclusions, Holdings

and Judgment against ... Wilkins”.       Indeed, there was nothing

further for the bankruptcy court to do with respect to Wilkins but

enter the judgment.   In re Bartee, 212 F.3d 277, 282 (5th Cir.

2000) (“[A]n appealed bankruptcy order must constitute either a

final determination of the rights of the parties to secure the

relief they seek, or a final disposition of a discrete dispute

within the larger bankruptcy case for the order to be considered

final”) (internal citations and quotation marks omitted)); Kelly v.

Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d      1218, 1220 (5th

Cir. 1990) (en banc) (“If the language in the order appealed from,

either independently or together with related portions of the

record referred to in the order, reflects the district court's

unmistakable intent to enter a partial final judgment under Rule

54(b), nothing else is required to make the order appealable.”)

      Any dispute Wilkins had with that decision, including any

under Bankruptcy Rule 7054, should have been raised in a properly

filed appeal to the district court.       Indeed, recognizing that,


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Wilkins did appeal to the district court after the August 2004

judgment, but it was dismissed. Furthermore, his failure to timely

appeal to this court following the district court’s February 2005

denial of his motion for reconsideration of that dismissal was

fatal to any possible claims he may have raised.

                              III.

     Accordingly, the appeal is

                                                    DISMISSED.




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