Michael Lynn Kirkbride and Dolores Avoline Kirkbride

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
WILSON DIVISION
IN RE:
MICHAEL LYNN KIRKBRIDE and
DELORES AVOLINE KIRKBRIDE,
Debtors.
ALAN VOTTA CONSTRUCTION, INC.,
Plaintiff,
MICHAEL LYNN KIRKBRIDE and
DELORES AVOLINE KIRKBRIDE,
Defendants.
Case Number: 08-00120-8-JRL
Chapter 11
Adversary Proceeding Number
08-00211-8-AP
ORDER
This matter came before the court on the plaintiff’s motion for extension of time to file
notice of appeal. On September 14, 2009, the court conducted a telephonic hearing in Raleigh,
North Carolina.
Background
The debtors, defendants in this adversary proceeding, filed a petition under Chapter 11 of
SO ORDERED.
SIGNED this 01 day of October, 2009.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
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the United State Bankruptcy Code on January 8, 2008. At the commencement of the bankruptcy
case, a state civil court action was pending between the plaintiff and the defendants, which was
removed to the bankruptcy court on October 7, 2008. By order and judgment entered on August
13, 2009, the court granted the defendants’ motion for summary judgment, thereby requiring the
plaintiff to return to the defendants the sum of $75,000.00 in earnest money. Docket entries 35
and 36, the order and judgment respectively, contain the “filed” date of August 13, 2009, the
“entered” date of August 13, 2009, and the appeal deadline of August 24, 2009, on the face of
both entries. Each document also bears the August 13, 2009, date prominently at the top of the
page. Counsel for all parties were notified electronically of the entry of the order, the judgment,
and of the appeal deadline on August 24, 2009. Copies of the order and judgment were served
by mail on August 15, 2009. The plaintiff filed a notice of appeal from the August 13 order and
a motion for extension of time to file notice of appeal on August 25, 2009.
Analysis
Bankruptcy Rule 8002(a) provides that a notice of appeal “shall be filed with the clerk of
the court within ten days of the date of the entry of the judgment, order, or decree appealed
from.” FED . R. BANKR . P. 8002(a). It is well established that the ten day period begins to run
upon entry of the judgment or order and not from the date of service of the notice. See, e.g., In
re Roasters Corp. No. 98-80704C-11D, 2000 WL 33673776, 2000 Bankr. Lexis 1916 (Bankr.
M.D.N.C. 2000) (citing 10 Collier on Bankruptcy, § 9006.2 (15th ed. 1999)). Ten days from the
entry date was Sunday, August 23, 2009. Under Rule 9006(a), when the last day prescribed for
an act falls on a Sunday, the period runs until the end of the next day. FED . R. BANKR . P.
9006(a). Therefore, the time for filing the notice of appeal ran through Monday, August 24,
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2009. The plaintiff’s notice of appeal was filed on Tuesday, August 25, 2009.
Counsel for the plaintiff (“Nash”) explains the untimeliness by stating that his office staff
miscalculated the deadline while he was away on vacation. Nash admits to receiving notice of
entry of the order and judgment prior to going on vacation Thursday, August 20, 2009. He did
not ensure that the notice was filed before leaving, just four days shy of the deadline, but instead
left instructions to file the notice in his absence. A staff member claims to have calculated the
filing period based on the docket entry for the certificate of mailing, entry number 37, which was
filed on August 15, but contains the “entered” date of August 16, under the mistaken belief that
the order and judgment were entered on that date. Nash argues that this constitutes excusable
neglect.
Bankruptcy Rule 8002(c) permits a bankruptcy judge to extend the time for filing a
notice of appeal for up to twenty days, if the request is made within twenty days of the expiration
of the time for filing such notice of appeal, and then only upon a showing of excusable neglect.
FED . R. BANKR . P. 8002(c). The plaintiff’s motion for extension of time was filed within the
twenty day period, and therefore may be granted if the plaintiff can demonstrate that the lateness
was due to excusable neglect. When determining whether a showing of excusable neglect has
been made in the context of an untimely filed notice of appeal, the Fourth Circuit has routinely
relied on the two-prong test set forth by the Supreme Court in Pioneer Investment Services v.
Brunswick Associates, 507 U.S. 380 (1993). Thompson v. E.I. DuPont de Nemours & Co., Inc.,
76 F.3d 530, 533 (4th Cir. 1996) (applying the Pioneer standard to Federal Rule of Appellate
Procedure 4(a)(5)); In re Roasters Corp. 2000 WL 33673776, 3 (Bankr. M.D.N.C. 2000)
(applying the Pioneer standard to Bankruptcy Rule 8002); In re Springfield Contracting Corp.,
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156 B.R. 761, 762 (Bankr. E.D. Va. 1993) (applying the Pioneer standard to Bankruptcy Rule
8002). First, the court must determine whether the failure to timely file the notice of appeal was
due to neglect, then it must determine whether the neglect is excusable. Pioneer, 507 U.S. at 388,
395.
Neglect is defined by the Supreme Court with reference to Webster’s Dictionary as “to
leave undone or unattended to especially through carelessness,” and includes situations where a
party misses a deadline through “inadvertence, miscalculation, or negligence.” Id. at 388.
Whether neglect rises to the level of “excusable neglect” is an equitable determination that takes
account of all of the relevant circumstances, including:
the danger of prejudice to the debtor, the length of the delay and its
potential impact on judicial proceedings, the reason for the delay,
including whether it was within the reasonable control of the movant,
and whether the movant acted in good faith.
Id. at 395. Under Pioneer, excusable neglect is an “elastic concept” that rejects the requirement
that the delay must have been caused by circumstances beyond the movant’s control, but one that
generally does not include “inadvertence, ignorance of the rules, or mistakes construing the
rules.” Id. at 392 (see also Thompson, 76 F.3d at 533; Roasters, 2000 WL 33673776 at 4;
Springfield Contracting, 156 B.R. at 765-66. Additionally, the Court specifically noted that a
client must be held responsible for the any neglect by its attorney.
In applying the equitable standard set forth in Pioneer to the plaintiff’s untimely notice of
appeal, this court must balance the interests of the parties along with the public interest in
bringing an end to the litigation. Springfield Contracting, 156 B.R. at 767. Nash’s excuse for
the late filing appears to have been caused by inadvertence, miscalculation or neglect, and thus
satisfies the first prong of the test. It weighs in favor of the plaintiff that the delay in filing was
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only one day and that Nash acted in good faith. The record does not show that the defendants
will be prejudiced other than by litigating an appeal, which would result in significant additional
expenses and a substantial delay in remitting the $75,000 to the estate. Allowing this untimely
notice of appeal would impact the judicial proceedings by continuing litigation on a matter that
would otherwise come to an end.
Finally, the Fourth Circuit identifies the most important factor in Pioneer for determining
whether neglect is excusable as the reason for the delay. Thompson, 76 F.3d at 534. In
Thompson v. E.I. DuPont, the court declined to find excusable neglect where “the neglect at
issue . . . is nothing more than inexcusable, run-of the-mill inattentiveness by counsel.” Id. at
535. In Thompson the late filing resulted from a delay in mail delivery. The Bankruptcy Court
for the Middle District of North Carolina followed Thompson in holding that “the fact that an
attorney is out of the office when an order or judgment is received by the law firm does not
require a finding of excusable neglect.” Roasters, 2000 WL 33673776 at 4 (citing Pioneer, “in
assessing the culpability of the respondent’s counsel, we give little weight to the fact that
counsel was experiencing upheaval in his law practice”). Nash was well aware of the deadline
for filing the appeal prior to leaving for vacation. He received notice of the entry of the order
and judgment both electronically and by mail before departing. The deadline for filing a notice
of appeal was conspicuously noted on the face of the docket and on the electronic notification.
The untimely filing was caused by a flagrant computational error that multitudes of cases have
held does not rise to the level of excusable neglect.
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Based on the foregoing, the plaintiff’s motion for extension of time to file notice of
appeal is DENIED.
“END OF DOCUMENT”
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