Dugas v. Searcy

United States Court of Appeals
Fifth Circuit
F I L E D
April 25, 2003
Charles R. Fulbruge III
ClerkIn the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-41404
_______________
IN THE MATTER OF:
CLAMONT ENERGY CORPORATION INC.,
Debtor.
LEO ROGER DUGAS,
Appellant,
VERSUS
JASON R. SEARCY,
Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 1:02-CV-27
_________________________

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Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
PER CURIAM:*
Leo Dugas seeks review of the district
court’s order dismissing his appeal from a final
order of the bankruptcy court. Because the
district court lacked jurisdiction over the
appeal, we affirm.
I.
This appeal arises from an adversary pro-
ceeding that commenced May 10, 1993, which
related to chapter 7 bankruptcy proceeding
concerning the estate of Clamont Energy Cor-
poration Inc. (“Clamont”). Appellee Jason
Searcy served as the trustee of Clamont. The
bankruptcy court approved a settlement be-
tween Searcy and Dugas on February 23, 1994
(“settlement order”).
On May 14, 1996, the bankruptcy court or-
dered that the adversary proceeding be re-
manded to state court. Dugas appealed that
remand order. The district court dismissed the
appeal for lack of jurisdiction on Novem-
ber 26, 1996; we affirmed the dismissal order.
The case was closed February 3, 1998.
On October 29, 2001, Dugas filed a motion
to show cause why Clamont should not be
held in contempt of the settlement order. The
bankruptcy court issued an order on Novem-
ber 8, 2001 (“first November order”), striking
appellant’s motion because the case was
closed. On November 19, 2001, Dugas moved
to vacate the settlement order; this motion was
stricken by the bankruptcy court’s November
29, 2001, order (“second November order”).
Briefs filed by both parties were also stricken
by a December 12, 2001, order (“December
order”) because the case was closed and the
question had already been decided in the
November order.
On December 19, 2001, Dugas filed a no-
tice of appeal to the district court; Searcy filed
a motion to dismiss the appeal as untimely on
January 14, 2002. The district court entered
an order on September 16, 2002, dismissing
the appeal as untimely.
II.
Dugas appealed to the district court seeking
review of the bankruptcy court’s striking of his
motion seeking a contempt order and its
refusal to vacate the settlement order. The
bankruptcy court denied consideration of these
questions with its first and second November
orders, respectively. These orders were both
final orders disposing of the motions.
Dugas filed his notice of appeal to the dis-
trict court on December 19, 2001. He there-
fore missed the ten-day deadline prescribed by
the Federal Rules of Bankruptcy Procedure
with respect to both orders. See FED. R.
BANKR. P. 8002(a) (“The notice of appeal shall
be filed with the clerk within 10 days of the
date of the entry of judgment, order, or decree
appealed from.”).
“Failure to file a timely notice of appeal
deprives the district court of jurisdiction to
consider the appeal.” In re Don Vincente
Macias, Inc., 168 F.3d 109, 211 (5th Cir.
1999) (punctuation omitted). Because the dis-
trict court lacked jurisdiction, we also lack jur-
isdiction over the merits raised on appeal by
* Pursuant to 5TH CIR. R. 47.5, the court has deter-
mined that this opinion should not be published and is
not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.

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Dugas. See id. The district court’s dismissal
of the appeal is therefore AFFIRMED.

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