Armstrong v. Rushton (In Re Armstrong) , 99 F. App'x 860 ( 2004 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAY 27 2004
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    In re:
    DONALD E. ARMSTRONG,
    Debtor.                                   No. 02-4101
    (BAP No. UT-02-011)
    (BAP)
    DONALD E. ARMSTRONG,
    Appellant,
    v.
    KENNETH A. RUSHTON, Trustee;
    STEPPES APARTMENTS, LTD.;
    STEVEN R. BAILEY, Trustee;
    UNITED STATES TRUSTEE,
    Appellees.
    ORDER AND JUDGMENT            *
    Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    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)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    In this appeal, debtor-appellant Donald E. Armstrong appeals an order of
    the Bankruptcy Appellate Panel (BAP) dismissing his appeal from an order of the
    bankruptcy court that confirmed a reorganization plan in Armstrong’s Chapter 11
    case. We dismiss this appeal.
    As the BAP noted, Fed. R. Bankr. P. 8002(a) requires an appellant to file
    a notice of appeal within ten days of the entry of the order appealed from. The
    bankruptcy court order confirming the plan was entered on January 31, 2002;
    Armstrong’s notice of appeal, however, was not filed until February 12, 2002,
    one day after the filing deadline. The bankruptcy court was open and accessible
    on Monday, February 11, 2002.
    After the time for appeal had lapsed, Armstrong attempted to get an
    extension of time to appeal under Rule 8002(c) from the bankruptcy court, but his
    request was denied. In the absence of an extension of time to file the notice of
    appeal, the untimely notice did not confer jurisdiction on the BAP to adjudicate
    the matter.   Deyhimy v. Rupp (In re Herwit)    , 
    970 F.2d 709
    , 710 (10th Cir. 1992).
    The BAP properly dismissed the appeal for lack of jurisdiction as do we.
    -2-
    Armstrong has filed supplemental authority in the form of two decisions
    from the BAP holding that certain sanctions imposed by the bankruptcy court for
    criminal contempt exceeded that court’s jurisdiction. Those decisions have no
    relevance in this appeal and do not undermine the general jurisdiction of the
    bankruptcy court over the Armstrong bankruptcy matters.
    Because this court finds Armstrong’s allegation of poverty to be untrue, his
    motion to proceed on appeal without prepayment of costs or fees is DENIED, and
    Armstrong is directed to make immediate payment of the balance of his appellate
    filing fee. Armstrong’s motion to file a supplemental appendix and to include the
    pleadings and appendix from appeal No. 02-4106 is DENIED. Appellee
    Rushton’s motion to strike Armstrong’s opening brief and dismiss the appeal
    because the brief does not comply with this circuit’s rules is DENIED.
    This appeal is DISMISSED. The mandate shall issue forthwith.
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
    -3-
    

Document Info

Docket Number: 02-4101

Citation Numbers: 99 F. App'x 860

Judges: Anderson, Baldock, McCONNELL

Filed Date: 5/27/2004

Precedential Status: Non-Precedential

Modified Date: 8/3/2023