Unpublished Disposition, 936 F.2d 579 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 936 F.2d 579 (9th Cir. 1989)

In re PARKWAY INN, LTD., Debtor.S & M DEVELOPMENT COMPANY, LTD., Samuel Spizman, Allan G.Lieb, Appellants,v.PARKWAY INN, LTD., Quality Inns International, United StatesTrustee, Appellees.

No. 90-55244.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 1991.Decided June 18, 1991.

Before BEEZER, CYNTHIA HOLCOMB HALL and TROTT, Circuit Judges.


MEMORANDUM* 

S & M Development Company, Ltd. ("S & M") appeals the Bankruptcy Appellate Panel's (the "BAP") dismissal of its appeal as untimely. We have jurisdiction under 28 U.S.C. § 158, and we affirm.

* Parkway Inn, Ltd. is a debtor in a Chapter 11 proceeding. Quality Inns International, Inc. ("Quality Inns"), a creditor, filed a motion for relief from the automatic stay, which S & M opposed. On October 24, 1989, the bankruptcy court imposed sanctions against S & M under Bankruptcy Rule 9011 for frivolously opposing Quality Inn's motion.

Pursuant to Bankruptcy Rule 8002(a), S & M's notice of appeal should have been filed within ten days after entry of the judgment, by November 3, 1989. On November 9, S & M filed a motion to extend the time for filing the notice of appeal, claiming it did not receive notice of the judgment until November 6. On November 17, the court granted a twenty-day extension pursuant to Bankruptcy Rule 8002(c). The order was not entered by the Bankruptcy Court until November 22.

According to the order, S & M's last day to file the notice of appeal was November 23. Because this was Thanksgiving Day, S & M actually had until November 24. See Bankruptcy Rule 9006(a). The notice of appeal was not filed until November 27, however, and the BAP accordingly dismissed the appeal for lack of jurisdiction.

We review the BAP's decision de novo. Vanderpark Properties v. Buchbinder (In re Windmill Farms), 841 F.2d 1467, 1469 (9th Cir. 1988).

II

S & M claims the fault for its failure to timely file a notice of appeal lies with the Bankruptcy Clerk. Since the Clerk did not enter the order until November 22, S & M argues it could not possibly have filed the notice of appeal by the November 24 deadline. We disagree.

Bankruptcy Rule 8002(a) provides that a notice of appeal "shall be filed with the clerk within ten days of the entry of the date of the judgment, order, or decree appealed from." Bankr.Rule 8002(a). Bankruptcy Rule 8002(c) authorizes the bankruptcy court to grant an extension of time to file a notice of appeal "for a period not to exceed 20 days from the expiration of the time otherwise prescribed by this rule." Bankr.Rule 8002(c). As a result, S & M should have known that the absolute latest date on which it could have filed its notice of appeal was November 24.

Further, the order was filed on November 17. As of that date, S & M could have discovered that its motion was granted simply by checking the case record. The Bankruptcy Clerk's failure to enter the order in a timely fashion did not relive S & M of its duty to check the record. Bankruptcy Rule 9022(a) provides that " [l]ack of notice of the entry does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed." In Miyao v. Kuntz (In re Sweet Transfer & Storage), 896 F.2d 1189, 1193 (9th Cir. 1990), we held:

Courts have strictly enforced [Bankruptcy Rule 9022], holding that parties must monitor the dockets to inform themselves of the entry of orders they wish to appeal.

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.... The fact that it was inconvenient for them to monitor the court's docket is not an excuse.

(citations omitted). Similarly, in Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411-12 (9th Cir. 1986) we held:

The unique circumstances doctrine only applies when a party delays filing a notice of appeal in reliance on judicial action that indicated to the party that its notice of appeal would be timely.... It does not apply to a clerk's failure to notify counsel of the entry of final judgment. A party has an independent duty to keep informed and mere failure of the clerk to notify the parties that judgment has been entered does not provide grounds for excusable neglect or warrant an extension of time.

(emphasis added). Finally, in Stagecoach Utilities v. County of Lyon (In re Stagecoach Utilities), 86 Bankr. 229, 230 (Bankr. 9th Cir. 1988), the BAP held:

The ... Clerk may have failed to timely notify the Appellant of entry of judgment, but the Appellant did not have the right to rely on the Clerk's notice of entry of judgment. Bankruptcy Rule 9022 is explicit ... Bankruptcy Rule 9022; In re Roanca Realty, Inc., 747 F.2d 816, 817 (1st Cir. 1984); In re Rehbein, 60 B.R. 436, 439 (9th Cir. BAP 1986). See also In re St. Cloud Tool & Die, 533 F.2d 387 (8th Cir. 1976) (Party assumed to know what is in the file, and has a duty to constantly check the record).

These cases are directly on point.

III

S & M also claims that because it mailed the notice of appeal on November 21 by first class mail, it was only by the Bankruptcy Clerk's oversight that the notice was not filed until November 27. This argument is also without merit.

It is well settled that a notice of appeal to the BAP must be received by the Clerk, not simply mailed, within the time allowed for filing. Bankruptcy Rule 8008(a); Ramsey v. Ramsey, 612 F.2d 1220, 1223 (9th Cir. 1980). Moreover, the fact that S & M mailed the notice of appeal on November 21--before receiving the court's order--is further indication that S & M's untimely filing was not due to lack of notice.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.Rule 36-3