Opinion
Case No. 2:02-cv-593-FTM-29DNF, Bankr. No. 01-00526-9P7, Adversary No. 01-00062
December 12, 2002
ORDER
This matter comes before the Court on review of the pending appeal. It would appear that the Notice of Appeal (Doc. #85) was filed on October 18, 2002, from the Final Judgment (Doc. #74) entered on September 24, 2002. Although a Motion for Rehearing and for Relief from Final Judgment (Doc. #81) was subsequently filed, no Notice of Appeal was filed from the Order Denying Motion for Rehearing/Reconsideration (Doc. #84).
The Docket Numbers hereafter refer to the numbers assigned in Bankruptcy Court unless otherwise stated. Copies of the relevant documents are included in the record transmitted by the Bankruptcy Court.
The Court has no jurisdiction over this appeal because it was untimely. Federal Rule of Bankruptcy Procedure 8002(a) requires that
[t]he 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. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 10 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.
The ten day period begins to run from the date the order or judgment is entered, not the date it is served or received by the party. In re Williams, 216 F.3d 1295, 1297 n. 3 (11th Cir. 2000). Weekends are not excluded from the time computation. Id.; F.R.Bankr.P. 9006. In this case, the Order was entered on September 24, 2002, and the Notice of Appeal was filed on October 18, 2002. The Notice of Appeal was to be filed on or before October 3, 2002, to be timely and a timely notice of appeal is mandatory and jurisdictional. Id. at 1298; Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61 (1982); In re Morrow, 564 F.2d 189, 190 (5th Cir. 1977); In re Sun-Island Realty, Inc., 177 B.R. 391, 394-95 n. 2 (S.D. Fla. 1994) (collecting cases).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
Although the ten-day period can be tolled by the filing of a Motion for Rehearing, two requirements are necessary to satisfy F.R.Bankr.P. 8002(b) and suspend the running of the ten day period: First, the motion must itself be timely, i.e., filed within ten days of the judgment or order which is appealed. Untimely motions will not toll or suspend the time for filing a notice of appeal. E.g., Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1323 (11th Cir. 1996). Second, the motion must be of the type identified in Rule 8002(b). In re Mike, 796 F.2d 382, 383-84 (11th Cir. 1986). The Motion for Rehearing in this case was filed on the eleventh day after the entry of the Final Judgment. Therefore, the motion was untimely and did not toll the ten-day period. In any event, even if the motion for rehearing was timely and within the confines of F.R.Bankr.P. 8002(b), no Notice of Appeal was filed from the Order Denying Motion for Rehearing/Reconsideration (Doc. #84). See F.R.Bankr.P. 8002(b)(4).
Federal Rule of Bankruptcy Procedure 8002(b) provides that if "any party makes a timely motion of the type specified immediately below, the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding." Compliance with this rule effectively suspends the finality of the judgment or order. Missouri v. Jenkins, 495 U.S. 33, 48 n. 17 (1990) (finding that a timely petition for rehearing will stay a mandate until disposition); United States v. Ibarra, 502 U.S. 1, 6 (1991) ("final decision of district court not final until it decides petition for rehearing").
Accordingly, it is now
ORDERED AND ADJUDGED:
The appeal is hereby DISMISSED for lack of jurisdiction. The Clerk shall enter judgment accordingly and transmit a certified copy of said judgment to the United States Bankruptcy Court. The Clerk shall terminate any remaining deadlines and motions as moot and close the file.