Lillie Mae McDonald

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Case 8:04-bk-08585-MGW Doc 88 Filed 10/22/04 Page1of5

UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

In re: Chapter 13
Case No. 04-08585-8W3
Lillie Mae McDonald,

Debtor.

MEMORANDUM DECISION AND ORDER DENYING MOTION FOR EXTENSION
OF TIME TO FILE NOTICE OF APPEAL BY EDWARD MCDONALD

This case came on for consideration on the Motion for
Extension of Time to File Notice of Appeal (Doc. No. 86)
(“Motion”) filed by Edward McDonald, pro se. The Motion,
filed on October 19, 2004, appears to seek an extension of
time to appeal the following: (1) Memorandum Decision (Doc.
No. 71); (2) Order Denying Motion for Enforcement of the
Automatic Stay (Doc. No. 72); (3) Order Denying Motion to
Stay All Proceedings Pending Hearing on Violation of
Automatic Stay (Doc. No. 73); (4) Order Annulling the
Automatic Stay as to State Guardianship Proceedings (Doc.
No. 74); (5) Order Denying Motion to Dismiss/Withdraw
Document (Doc. No. 75); and (6) Order Denying Motion for
Relief From Stay (Doc. No. 76) (collectively, “Orders”).
These Orders, which followed the hearing held before this
Court on October 1, 2004, essentially annulled the

automatic stay in this case to allow guardianship

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 8:04-bk-08585-MGW Doc 88 _ Filed 10/22/04 Page2of5

proceedings against the Debtor to proceed in the state

1 The Orders were

court, despite Mr. McDonald’s opposition.
entered on October 7, 2004.

Rule 8002 of the Federal Rules of Bankruptcy Procedure
governs the time for filing notices of appeal. Rule
8002(a) requires that a “notice of appeal shall be filed
with the clerk within 10 days of the date of the entry of
the judgment, order, or decree appealed from.” In re Dow
Corning Corp., 255 B.R. 445, 465-66 (E.D. Mich. 2000); In
re Williams, 216 F.3d 1295, 1296 (11 Cir. 2000). The 10-
day period “begins to run after the entry of the order and
includes intermediate weekends and legal holidays.

The last day of the period is also included unless it isa
weekend or a legal holiday.” Id. at 466 (citing to Rule
9006(a)); Williams, 216 F.3d at 1296, fn. 3. According to
the Rules, since the Orders were entered on October 7,
2004, the last day to file notices of appeal would be
October 18, 2004, because the 17° of October fell on a
Sunday. The Motion, filed on the 19°" was filed one day
past the deadline.

Generally, a bankruptcy court may extend the time for

filing the notice of appeal if the motion for extension is

+ The factual history of this dispute can be found in the Court’s

Memorandum Decision (Doc. No. 71).

Case 8:04-bk-08585-MGW Doc 88 _ Filed 10/22/04 Page 3of5

filed before the expiration of the ten-day period. Id.,
Rule 8002(c)(1) and (2). However, under circumstances not
present here, a court may extend the deadline on the
showing of “excusable neglect.” Rule 8002(c) (2).

Unfortunately, in this case, even if the Motion were
filed within the ten-day deadline, Rule 8002 (c) (1) (A)
prevents the Court from granting any extension because the
Orders that Mr. McDonald seeks to appeal involve the
lifting of the automatic stay. Rule 8002(c) (1) (A); Cf.,
Dow Corning, 255 B.R. at 465-66; In re Dow Corning, 2002 WL
551020, *3 (E.D. Mich. 2002) (discussing Rule
8002(c) (1) (F)); In re Worldcom, Inc., 2003 WL 21498904, *2-
*3 (S.D.N.Y. 2003) (discussing Rule 8002(c), in dicta when
deciding whether order approving disclosure statement was a
final order). The 1997 amendment to Rule 8002(c) removed the
Court's discretion to grant any extensions for certain
types of orders because “([t]hese types of orders are often
relied upon immediately after they are entered and should
not be reviewable on appeal after the expiration of the
original appeal period under Rule 8002(a) and (b).”
Colliers, | App. 8002[4] (citing to 1997 Advisory Committee
Note to Rule 8002); Worldcom, 2003 WL 21497904, *2.

Indeed, the parties immediately relied upon these Orders to

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proceed to state court to resolve the guardianship of the
Debtor.?

Rule 8002 is jurisdictional, and failure to timely
comply requires an appeal to be dismissed. In re Belcher,
293 B.R. 265, 267 (Bankr. N.D. Ga. 2001); Dow Corning, 255
B.R. at 465 (citing to Walker v. Bank of Cadiz (In re LBL
Sports Center, Inc.), 684 F.2d 410, 412 (6™ Cir. 1982)); 10
Colliers on Bankruptcy, § 8002.03 (15°" Ed. 2001) (“Unless
an appeal is timely taken, the reviewing court lacks
jurisdiction to hear it.”). This rule is always strictly
construed and requires exact compliance. Dow Corning, 255
B.R. at 465 (citing Hotel Syracuse, Inc. v. City of
Syracuse Indus. Dev. Agency (In re Hotel Syracuse, Inc.),
154 B.R. 13, 15 (N.D.N.Y. 1993)); Colliers, § 8002.03
(“Cases interpreting Rule 8002 and its predecessor, ... ,
have uniformly held that the sine qua non of a bankruptcy
appeal is a timely filed notice”, inter alia citing to
Anderson v. Mouradick (In re Mouradick), 13 F.3d 326 (9%
Cir. 1994)).

While the Debtor is pro se, and may not fully

understand the rules or procedures, this pro se status does

2 There was an urgency to proceed with the guardianship proceeding in

state court as the temporary guardianship of the Debtor was to expire
shortly after the October 1, 2004, hearing. Julie Goddard, the
Debtor’s temporary guardian, and Mr. McDonald’s wife (and the debtor’s
daughter-in-law) both sought to be the Debtor’s permanent guardian.

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not excuse compliance with the Rules. Dow Corning, 255 B.R.
at 466; In re Frontier Airlines, Inc., 108 B.R. 277, 278
(D. Colo. 1989) (“The group’s pro se status does not suspend
the requirement that it comply with the jurisdictional
rules relating to notices of appeal. See Bolden v. Odum,
695 F.2d 549, 550 (11° Cir. 1983). To hold otherwise would
eliminate the finality of bankruptcy orders and frustrate
the central policy of the bankruptcy laws to promote the
expedient administration of the bankrupt estate. See Galt
v. Jericho-Britton (In re Nucorp Energy, Inc.), 812 F.2d
582, 584 (9°° cir. 1987).”). Accordingly, it is:

ORDERED that the Motion is denied.

DONE AND ORDERED in Tampa, Florida, on October 22, 2004 ,

Michael G. Williamson
United States Bankruptcy Judge

Copies to:

Movant: Edward McDonald, 4010 Pocahontas Avenue, Tampa, FL
33610;

Debtor: Lillie Mae McDonald, 7203 N. 40th Street, Tampa, FL
33604;

Debtor: Lillie Mae McDonald, c/o Ybor City Healthcare, 1709
Taliafero, Room # 250, Tampa, FL 33602;

Attorney for the Debtor: Scott A. Rosin, Esq., 5835
Memorial Highway, Suite 6, Tampa, FL 33615-5005;

Emergency Temporary Guardian: Julie M. Goddard, P.O. Box
273792, Tampa, FL 33688;

Chapter 13 Trustee: Terry E. Smith, P.O. Box 25001,
Bradenton, FL 34206-5001;

United States Trustee: Timberlake Annex, Suite 1200, 501 E.
Polk Street, Tampa, FL 33602

F: \WORDWILL\CASES\McDonald\DecAppl .doc