Webb, et al v. Hendren

* Pursuant to 5TH CIR. R. 47.5, the Court has determined 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-50479
Summary Calendar
_____________________
In The Matter Of: WILLIAM C. WEBB, JR; ELMA MAE WEBB,
Debtors
______________________________________________________
WILLIAM C. WEBB, JR.; ELMA MAE WEBB,
Appellants
versus
G. RAY HENDREN,
Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-01-CV-230
_________________________________________________________________
October 7, 2002
Before JOLLY, JONES and PARKER, Circuit Judges.
PER CURIAM:*
Appellants William C. Webb, Jr. and Elma Mae Webb (the Webbs)
appeal the final judgment of the district court in their appeal of
a bankruptcy court decision. The bankruptcy court entered its
judgment on June 22, 2001. The Webbs timely appealed that judgment

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to the district court on July 2, 2001. The district court entered
its final judgment affirming the bankruptcy court on January 18,
2002. The Webbs filed a motion for rehearing in the district court
on January 30, 2002, more than ten days after the entry of the
final judgment. The district court denied the motion on March 15,
2002. The Webbs filed a notice of appeal to this court on April 12,
2002. However, because the Webbs’ motion for rehearing in the
district court was not timely filed, it did not stay the running of
the thirty day period for filing a notice of appeal from the final
judgment. Therefore, their notice of appeal to this court was not
timely filed. Accordingly, we dismiss this appeal for lack of
jurisdiction.
DISCUSSION
Bankruptcy Rule 8015 provides:
A motion for rehearing may be filed within 10
days after entry of the judgment of the
district court or the bankruptcy appellate
panel. If a timely motion for rehearing is
filed, the time for appeal to the court of
appeals for all parties shall run from the
entry of the order denying rehearing or the
entry of a subsequent judgment.
Fed. R. Bankr. P. 8015 (emphasis added). Bankruptcy Rule 9006(a)
governs the method for computing the ten-day period for filing a
motion for rehearing under Bankruptcy Rule 8015. Eichelberger v.
Eaton, 943 F.2d 536 (5th Cir. 1991). That rule provides:
The last day of the period so computed shall
be included unless it is a Saturday, a Sunday,
or a legal holiday, or, when the act to be
done is the filing of a paper in court, a day
on which weather or other conditions have made

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the clerk’s office inaccessible, in which
event the period runs until the end of the
next day which is not one of the
aforementioned days.
Fed. R. Bankr. P. 9006(a).
As we have noted, the district court entered its final
judgment on Friday, January 18, 2002. Under Rules 8015 and
9006(a), the Webbs had until Monday, January 28, 2002 to file a
motion for rehearing. The Webbs filed their motion for rehearing
in the district court on Wednesday, January 30, 2002, twelve days
after the entry of judgment and two days late.
The Webbs’ reliance on the so-called “mailbox rule” of
Bankrupcy Rule 9006(f) is misplaced. That rule provides:
When there is a right or requirement to do
some act or undertake some proceedings within
a prescribed period after service of a notice
or other paper and the notice or paper other
than process is served by mail or under Rule
5(b)(2)(C) or (D) F.R.Civ. P., three days
shall be added to the prescribed period.
Fed. R. Bankr. P. 9006(f)(empahsis added). The Webbs argue that
because they received a copy of the court’s order entering judgment
by mail, they had three additional days within which to file their
motion for rehearing under this rule. They are incorrect. The
extension of time in Rule 9006(f) applies only to time periods
keyed to the date of service. See Arbuckle v. First Nat’l Bank of
Oxford, 988 F.2d 29 (5th Cir. 1993). The ten day period for filing
a motion for rehearing under Bankruptcy Rule 8015 begins upon the
entry of judgment, not service of the judgment. Therefore, the
time to file a motion for rehearing cannot be extended by Rule

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9006(f). The Webbs’ motion for rehearing was filed more than ten
days from the entry of judgment; therefore, it was not timely
filed.
Because their motion for rehearing in the district court was
not timely, the Webbs could not claim the stay of the time period
for appeal under Rule 8015. See also Fed. R. App. P. 6(b)(2)(i),
Eichelberger, 943 F.2d at 537-38. Under the Federal Rules of
Appellate Procedure, a party must file a notice of appeal within
thirty days from the entry of judgment by the district court unless
that period is otherwise stayed by some applicable rule. Fed. R.
App. P. 4(a)(1), 4(a)(4). Thus, because the Webbs were not
entitled to a stay under Bankruptcy Rule 8015, they had thirty days
from January 18, 2002 to file their notice of appeal to this court.
They did not file their notice of appeal until April 12, 2002,
eighty-four days after the entry of final judgment by the district
court. Accordingly, this court is without jurisdiction and the
appeal is
DISMISSED.

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