Unpublished Disposition, 936 F.2d 577 (9th Cir. 1987)

MEMORANDUM^** 

Lenard E. Schwartzer appeals the Bankruptcy Appellate Panel's ("BAP") decision dismissing Crystal Palace Gambling Hall's ("Crystal Palace") appeal from the bankruptcy court's order granting fees to Schwartzer on the ground that the order was not final. Schwartzer contends that the order was final and the appeal should have been dismissed on the ground that the notice of appeal was untimely. We review the decision of the BAP de novo, Cox v. Landsdowne (In re Cox), 904 F.2d 1399, 1401 (9th Cir. 1990), and affirm.

* Finality of Bankruptcy Court Order

The BAP has jurisdiction to review final orders of the bankruptcy courts. 28 U.S.C. § 158(a). In the context of bankruptcy proceedings, however, " [t]his court has adopted a pragmatic approach to deciding whether a bankruptcy court's order is final, recognizing that certain proceedings in a bankruptcy case are so distinct and conclusive either to the rights of individual parties or the ultimate outcome of the case that final decisions as to them should be appealable as of right." Dunkley v. Rega Properties, Ltd. (In re Rega Properties, Ltd.), 894 F.2d 1136, 1138 (9th Cir. 1990) (quotations omitted), cert. denied, 111 S. Ct. 251 (1990). Orders which resolve discrete issues and seriously affect substantial rights are immediately appealable. Allen v. Old Nat'l Bank of Washington (In re Allen), 896 F.2d 416, 418 (9th Cir. 1990). If, however, further proceedings in the bankruptcy court will affect the scope of the order, then the order is not subject to review as a final order under section 158. In re Rega Properties, 894 F.2d at 1138.

In Yermakov v. Fitzsimmons (In re Yermakov), 718 F.2d 1465, 1469 (9th Cir. 1983), we found that an order of the bankruptcy court awarding fees to the debtor's former attorney was a final appealable order because it determined the entire compensation to be paid to the attorneys and conclusively resolved a separable dispute. Here, the bankruptcy court issued a "Minute Entry Order" granting Schwartzer a premium of $56,000, "to be paid upon the order on final account and report becoming final," and an order finding that Schwartzer was not negligent in the representation of Crystal Palace. The bankruptcy court orders conclusively determined the amount of the premium to be paid to Schwartzer. The only contingency in the order was the timing of the payment. Furthermore, Schwartzer, like the attorney in In re Yermakov, was no longer representing Crystal Palace. Thus, there was no possibility that the amount of the fee would change. See id. Thus, the orders of February 19, 1987 conclusively determined the compensation to be paid to Schwartzer, thereby resolving a separable dispute, and were final, appealable orders. See id.

II

Notice of Appeal

Bankruptcy Rule 8002(a) provides 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." The untimely filing of a notice of appeal is jurisdictional. Slimick v. Silva (In re Slimick), 928 F.2d 304, 306 (9th Cir. 1990).

The bankruptcy court's orders were entered on February 19, 1987. Crystal Palace did not timely appeal from these orders. On June 24, 1987, the bankruptcy court issued its findings of fact and conclusions of law, and on June 25, 1987 Crystal Palace filed its notice of appeal from the findings of fact, conclusions of law and judgment.

We recently addressed the issue of which of two documents filed by a court constitutes the final, appealable order in the bankruptcy context. See In re Slimick, 928 F.2d 304. If a court files a more formal judgment after filing a final disposition, the latter does not constitute a second final disposition or extend the appeal period. Id. at 307. "A disposition is final if it contains a complete act of adjudication, that is, a full adjudication of the issues at bar, and clearly evidences the judge's intention that it be the court's final act in the matter." Id. (quotation omitted).

In In re Slimick, we found that an order was a final disposition which triggered the time for filing a notice of appeal, although the findings of fact and conclusions of law and judgment were not filed until several months after entry of the order. Id. at 307-08. Here, similarly, the orders entered on February 19, 1987 constituted the final disposition of the issue of payment of the premium. Crystal Palace did not timely appeal from these orders. The entry of the findings of fact and conclusions of law did not extend the time for appeal. See id. Finally, Crystal Palace did not show that the unique circumstances doctrine was applicable.

Thus, the BAP should have dismissed the appeal for lack of jurisdiction because the notice of appeal was untimely. Accordingly, although we find that it was error for the BAP to dismiss the appeal on the ground that the orders were not final, we nevertheless affirm on the ground that the notice of appeal was untimely.

AFFIRMED.