OpenJurist

919 F2d 145 Martinez Martinez v. Peelle Financial Corp

919 F.2d 145

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

In re Oscar J. MARTINEZ, Debtor.
Oscar J. MARTINEZ, Appellant,
v.
PEELLE FINANCIAL CORP., et al., Appellees.

No. 89-15614.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1990.*
Decided Nov. 20, 1990.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Oscar Martinez appeals pro se the Bankruptcy Appellate Panel's (BAP) order dismissing his appeal as untimely under Bankruptcy Rule 8002(a). Martinez contends that because he appealed from the bankruptcy court to this court, Rule 8002 does not apply. We review conclusions of law in bankruptcy proceedings de novo, and apply the clearly erroneous standard to findings of fact. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). We affirm.

3

To appeal a bankruptcy court order, the appellant must file a notice of appeal within 10 days of the date of entry of the judgment, order, or decree appealed from. Bankr.R. 8002(a). Timely filing of the notice of appeal is jurisdictional, and thus the BAP may dismiss an untimely appeal. In re Slimick, No. 88-2927, slip op. 11951, 11957 (9th Cir. Sept. 26, 1990) (citations omitted). The bankruptcy court may grant an extension of the 10-day limit to file a notice of appeal. Bankr.R. 8002(c). A request for an extension of time made less than 20 days after the expiration of time for filing a notice of appeal may only be granted upon a showing of excusable neglect. Id.

4

Lack of notice of the entry of a bankruptcy court "judgment does not affect the time to appeal or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 8002." Bankr.R. 9022(a). Thus, a party has an independent duty to keep informed, and a clerk's failure to notify a party of entry of final judgment is not a ground for excusable neglect. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411-12 (9th Cir.1986).

5

Martinez's argument that Bankr.R. 8002 does not apply to appeals from the bankruptcy court to the court of appeals is frivolous. Martinez could not appeal directly to this court from the bankruptcy court.

6

Martinez also points to the failure of the bankruptcy court to serve him notice of the entry of the bankruptcy court's order. Martinez does not allege that he ever called the bankruptcy court clerk to determine whether judgment had been entered. Martinez's request for an extension of time was not filed until 36 days after entry of judgment and thus was untimely. See Bankr.R. 8002(c). Moreover, Martinez did not attempt to show excusable neglect, nor could he have since the court's failure to notify him of entry of final judgment is not a ground for excusable neglect. Bankr.R. 9022(a); see also Alaska Limestone Corp., 799 F.2d at 1411-12. Finally, the unique circumstances doctrine is inapplicable to this case. See In re Slimick, No. 88-2927, slip op. at 11963. Therefore, the BAP did not err in dismissing Martinez's appeal as untimely. See id. at 11957 (citations omitted).

7

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3