                                                                                FILED
                                                                    United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                    Tenth Circuit

                                FOR THE TENTH CIRCUIT                     January 2, 2020
                            _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 In re: SONNY ALLAN PILCHER,

        Debtor.

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

 MONTY ELLIOTT,

        Plaintiff - Appellee,

 v.                                                        No. 19-8002
                                                       (BAP No. 18-100-WY)
 SONNY ALLAN PILCHER,                               (Bankruptcy Appellate Panel)

        Defendant - Appellant.
                       _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before LUCERO, O’BRIEN, and CARSON, Circuit Judges.
                  _________________________________

       After the bankruptcy court denied defendant Sonny Allan Pilcher a discharge

of his debts and denied his motions for summary judgment in an adversary

proceeding, he appealed to the Tenth Circuit Bankruptcy Appellate Panel (BAP).



       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
After the BAP jurisdictionally challenged his appeals, Pilcher voluntarily dismissed

them. He later asked the BAP to issue a writ of mandamus requiring the bankruptcy

court to resolve remaining matters in the case and to enter a final judgment. The

BAP dismissed his mandamus petition, concluding the bankruptcy court had already

entered a final, appealable judgment and Pilcher’s mandamus petition was an

impermissible substitute for a timely appeal. Pilcher appeals the BAP’s dismissal of

his mandamus petition. We affirm.

                                  BACKGROUND

      A. The Adversary Proceeding

      In 2016 plaintiff Monty Elliott filed an adversary proceeding in Pilcher’s

Chapter 7 bankruptcy. Elliott alleged Pilcher had fraudulently failed to disclose, or

made false statements concerning, certain transfers, assets, and other matters

concerning his financial condition. He sought to except Pilcher’s alleged debts to

him from discharge. Alternatively, he asked the court to deny Pilcher a bankruptcy

discharge altogether.

      Pilcher sought summary judgment on Elliott’s complaint. He contested

Elliott’s assertions he had made fraudulent transfers and had omitted relevant

financial information. He also raised objections to Elliott’s underlying claims,

arguing among other things that Elliott lacked standing to assert them. Elliott

responded with his own motion seeking a partial summary judgment denying Pilcher

a discharge and denying discharge of a judgment he had obtained against Pilcher.



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       In April 2018 the district court granted Elliott’s motion for partial summary

judgment and denied Pilcher a discharge in bankruptcy. By a separate order, it

reserved ruling on Pilcher’s motions for summary judgment.

       B. Pilcher’s BAP Appeals

       Pilcher appealed to the BAP from the bankruptcy court’s orders. The BAP

construed his notice of appeal (NOA) as two separate NOAs and opened two separate

appeals, No. WY-18-064 and WY-18-065. It then issued an order to show cause

concerning its appellate jurisdiction. The BAP later dismissed WY-18-065 (the

appeal from the order granting Elliott’s motion and denying Pilcher a discharge)

because Pilcher had failed to respond to the show-cause order or to its fee notice

concerning the appeal. It dismissed WY-18-064 because it determined the order

appealed from—reserving a ruling on Pilcher’s motion for summary judgment—was

not a final order.

       After this initial round of BAP appeals, proceedings continued in bankruptcy

court. Pilcher filed a motion seeking reconsideration of the court’s

summary-judgment findings. On June 29, 2018, the bankruptcy court entered orders

denying this motion for reconsideration and Pilcher’s motions for summary

judgment. It also entered a judgment pursuant to its earlier order granting Elliott’s

motion for partial summary judgment, certifying the judgment as a final order

pursuant to Fed. R. Bankr. P. 7054.

       On July 9, 2018, Pilcher filed a new NOA in which he appealed from the

bankruptcy court’s orders entered on April 11, 2018 (the date of its oral ruling on

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Elliott’s motion) and June 29, 2018. The BAP again construed his NOA as two

separate NOAs. It assigned Pilcher’s appeal from the judgment granting Elliott’s

motion for partial summary judgment to BAP Appeal No. WY-18-074, his appeal of

the denial of his motions for summary judgment to BAP Appeal No. WY-18-075, and

the order denying his motion for reconsideration to both appeals.

      On July 10, 2018, the BAP entered notices of deficiency in both pending

appeals, requiring Pilcher to satisfy the filing and docketing fees. It also entered an

order to show cause why No. WY-18-075 should not be dismissed as interlocutory.

      Rather than attempting to show cause, Pilcher moved to withdraw both

appeals. In his motion to withdraw No. WY-18-075, he explained he would “appeal

court order finding [Elliott] to be a creditor once that order becomes final.” Aplee.

App. at 215. In his motion to withdraw No. WY-18-074 he stated, “Defendant to

appeal Plaintiff was not creditor.” Id. at 209. The BAP then entered orders

dismissing both appeals with prejudice.

      Pilcher filed a motion for reconsideration with the BAP, requesting it change

its dismissal in No. WY-18-075 to a dismissal without prejudice. The BAP construed

his motion as a motion to reopen the appeal and denied it, reasoning the dismissal

with prejudice would not prevent Pilcher from eventually appealing any final order

entered in the underlying adversary proceeding.

      C. The Mandamus Petition

      After filing his second NOA to the BAP then dismissing his appeals, Pilcher

filed several additional motions or other pleadings in the bankruptcy court. The

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bankruptcy court denied two of these motions: his motion for stay pending appeal

(because there was no appeal pending), and his emergency motion for an order of

contempt of court (because the automatic stay in Pilcher’s bankruptcy had terminated

when it denied him a discharge). Pilcher’s other motions remained pending in

bankruptcy court.

      Pilcher then filed his petition for a writ of mandamus with the BAP. He asked

the BAP to compel the bankruptcy court to (1) certify its judgments entered on

June 29, 2018, as final and appealable; (2) rule on his pending motions; and (3) stay

the order denying his discharge and all collection activities.

      The BAP dismissed the mandamus petition. It declined to reach the question

of whether it had jurisdiction to hear and issue writs under the All Writs Act.

Instead, it ruled that because Pilcher had “requested the writ as a substituted means of

appeal and because that appeal would be untimely, [it] lack[ed] jurisdiction to hear

the Petition.” R. at 25.

      Addressing Pilcher’s request to compel the bankruptcy court to enter a final

order denying his motions for summary judgment from which he could appeal, the

BAP opined that the bankruptcy court had already entered such a final, appealable

order. It stated “the bankruptcy court’s denial of [Pilcher’s] discharge . . . rendered

all other claims moot and [therefore] rendered the order denying [his] motions for

summary judgment final.” Id. at 26 n.7. But Pilcher “did not respond to address

finality before [moving] the [BAP] to dismiss his case.” Id. Thus, “because

appellate review of the Orders was available to [Pilcher] and a writ of mandamus

                                            5
cannot substitute for a timely appeal” the BAP concluded it did “not have jurisdiction

to consider this appeal labeled as a mandamus petition.” Id. at 26.

      Addressing his further requests to compel the bankruptcy court to rule on his

pending motions and to stay collection activity, the BAP concluded he could have

sought such relief in No. WY-18-075 had he not dismissed that appeal. See id. at 26

n.9. Thus the BAP appears to have concluded these requests for mandamus relief

would also operate as an impermissible substitute for an appeal.

                                    DISCUSSION

      1. Elliott’s Motion to Dismiss This Appeal

      Elliott has filed a motion to dismiss this appeal. He argues the BAP’s order

denying mandamus is not a final, appealable order over which we can exercise

appellate jurisdiction. We disagree. We have jurisdiction over appeals from the

BAP’s “final decisions, judgments, orders, and decrees.” 28 U.S.C. § 158(d)(1).

Pilcher’s appeal from the BAP’s dismissal of his attempted mandamus petition falls

within this jurisdiction. See Ozenne v. Chase Manhattan Bank (In re Ozenne),

841 F.3d 810, 814 (9th Cir. 2016) (en banc) (citing § 158(d)(1) and exercising

appellate jurisdiction over appeal from BAP’s denial of mandamus petition).

      Elliott also argues mandamus relief is not justified on the merits, and he

complains Pilcher’s pleadings are ghost-written. But these arguments do not warrant

dismissal of the appeal. See 10th Cir. R. 27.3(A)(1)(a) (limiting motions to dismiss,

other than for lack of appellate jurisdiction, to those presenting reasons for dismissal



                                            6
“permitted by statute, the Federal Rules of Appellate Procedure, or these rules”). We

therefore deny the motion to dismiss.

       2. BAP’s Denial of Mandamus

       We review the BAP’s jurisdictional determination de novo. Cf. Mason v.

Young (In re Young), 237 F.3d 1168, 1172 (10th Cir. 2001) (reviewing de novo

BAP’s jurisdictional determination). In exercising our review, however, we consider

only the arguments Pilcher has made in his opening brief. See Bronson v. Swensen,

500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider

arguments that are not raised, or are inadequately presented, in an appellant’s

opening brief.”); see also Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1260-61

(10th Cir. 2018) (arguments in favor of subject-matter jurisdiction may be waived).

       Pilcher does not challenge the BAP’s determination that the bankruptcy court’s

denial of a discharge made the order denying his summary-judgment motions final

and immediately appealable, see R. at 26 n.7. The BAP concluded it lacked

jurisdiction to consider Pilcher’s petition because the petition was in reality an

untimely appeal from the disposition of those motions, which Pilcher had labeled as a

mandamus petition. Pilcher fails to demonstrate this analysis was erroneous.

See Ozenne, 841 F.3d at 815 (“To allow a party to seek a writ of mandamus in an

appellate court in order to obtain relief from an appealable district court decision—

after the time to appeal that decision had passed—would be a plain evasion of rules

that are . . . mandatory and jurisdictional.”).



                                             7
      Pilcher also sought mandamus relief to compel the bankruptcy court to rule on

his pending motions, and to stay collection activity. As noted, the BAP concluded

Pilcher could have sought this relief by continuing with his appeal. Pilcher presents

no meritorious argument in opposition to this analysis. He does argue it would be

improper for collection efforts to go forward until he obtains appellate review of

Elliott’s standing. He contends such appellate review should be obtained by the BAP

recalling its mandate and reinstating appeal No. WY-18-075 and issuing a stay of

collection activity pending appeal. See Aplt. Opening Br. at 8-9. But his argument

goes beyond the scope of this appeal. This appeal is taken from the BAP’s dismissal

of the mandamus petition seeking to compel action by the bankruptcy court. The

issues properly before us involve only the BAP’s dismissal of that petition.

      Because Pilcher has failed to present any other argument that would justify

reversal of the BAP’s dismissal of his mandamus petition directed to the bankruptcy

court, we affirm.

                                   CONCLUSION

      Elliott’s motion to dismiss this appeal is denied. The BAP’s order dismissing

Pilcher’s petition for a writ of mandamus relief is affirmed.


                                            Entered for the Court


                                            Terrence L. O’Brien
                                            Circuit Judge




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