Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.in Re Ronald W. Gregory, Dorothy L. Gregory, Debtors.ronald W. Gregory, Dorothy L. Gregory, Appellants, v. Ross J. Wabeke, Trustee, Appellee, 931 F.2d 62 (10th Cir. 1991)Annotate this Case
Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges.
ORDER AND JUDGMENT*
LOGAN, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
Ronald W. and Dorothy L. Gregory originally filed a Chapter 11 bankruptcy proceeding which subsequently was converted into a Chapter 7 proceeding. They appeal to this court the district court's dismissal of an appeal in which they objected to the trustee's sale of certain commercial real estate they owned in Wyoming. The Gregorys make various arguments of misfeasance on the part of the trustee, the bankruptcy court, and the district court. But the only issue in this appeal is whether the Gregorys' appeal must be dismissed because they failed to file it timely under the bankruptcy rules.
The bankruptcy court entered an order approving the sale of the property on April 27, 1990; the order was entered on its docket on May 2, 1990. The Gregorys' notice of appeal was filed May 21, 1990, although they assert they prepared the notice on May 11 and transmitted it by facsimile on that date. There is nothing in the record to substantiate the allegation in their brief about the facsimile transmission. Bankr.R. 8002(a) requires that the notice of appeal be filed with the clerk within ten days of the date of the entry of the judgment from which the appeal was taken. No request for an extension of time was made.
The appeal from the bankruptcy court's order has to be filed with the district court. 28 U.S.C. § 158(a). The Gregorys attempted to appeal directly to this court but the district court properly treated the matter as an appeal to the district court, as there is no procedure permitting bypass of the district court.
Compliance with the rules on timeliness of appeals is mandatory and not waivable except by the application for an extension of time pursuant to and within the time limitations of Bankr.R. 8002(c). Although the Gregorys complain of lack of notice, it is apparent that they knew that the sale was being approved on April 27, when they filed their objections. It is the duty of the litigating parties to keep themselves apprised of the orders of the court, and even the failure of the court to notify parties of its order does not extend the time for appeal. See Fed. R. Civ. P. 77(d); Bankr.R. 9022; Lathrop v. Oklahoma City Housing Auth., 438 F.2d 914, 915 (10th Cir.), cert. denied, 404 U.S. 840 (1971); In re Frontier Airlines, 108 Bankr. 274, 277 (D. Colo. 1989).
The mandate shall issue forthwith.
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3