United States Court of Appeals

Fifth Circuit 

## FILED

April 25, 2003

Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 02-41404

_______________



### I N THE 

### M ATTER OF 

### : C LAMONT 

### E NERGY 

### C ORPORATION 

### I NC



### .,

Debtor.



### L EO 

### R OGER 

### D UGAS



### ,

Appellant,

VERSUS



### J ASON 

### R. S EARCY



### ,

Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas



### m 1:02-CV-27

_________________________2

Before H IGGINBOTHAM

, S MITH , and

C LEMENT , Circuit Judges.

PER CURIAM: *

Leo Dugas seeks review of the district

court’s order dismissing his appeal from a final

order of the bankruptcy cour t. Because the

d ist rict court lacked jurisdiction over the appeal, we affirm.

I.

Th is appeal arises from an adversary proceeding that commenced May 10, 1993, which

related to chapter 7 bankruptcy proceeding concerning the estate of Clamont Energy Corporati on Inc. (“Clamont”). Appellee Jason Searcy served as the trustee of Clamont. The bankruptcy court approved a s et t lement between Searcy and Dugas on February 23, 1994 (“settlement order”).

On May 14, 1996, the bankruptcy court ordered that the adversary proce e ding be remanded to state court. Dugas appealed that

remand order. The district court dismissed the appeal f o r lack of jurisdiction on November 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 C lamont should not be

held in contempt of the settlement order. The bankruptcy court issued an order o n November 8, 2001 (“first November order”), striking appellant’s motion be cause 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 (“De cember

o rder”) because the case was closed and the question had already been decide d in the

November order.

On December 19, 2001, Du gas filed a notice of appeal to the district court; Searcy filed a motion to dismiss the appeal as untimely on

Januar y 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 ord er and i ts

re fusal to vacate the settlement order. The bankruptcy court denied c o nsideration of these questions with its first and sec o nd November orders, respectively. These orders were both final orders disposing of the motions.

Dugas filed his notice of appeal to the district court on December 19, 2001. He therefore missed the ten-day deadline prescribed by

the Federal Rules of Bankruptcy Procedure

with respect to both orders. S ee F ED

. R.

B ANKR

. P. 8002(a) (“The notice of appeal shall

be filed with th e clerk within 10 days of the

date of the entry of judgment, order, or decree appealed from.”).

“Failure to file a t imely notice of appeal dep rives the district court of jurisdiction to

consider the appeal.” I

n re Don Vincente

Mac ias, Inc. , 168 F.3d 109, 211 (5th Cir. 1999) (punctuation omitted). Because the district court lacked jurisdiction, we also lack jurisdiction over the merits raised on appeal by * Pursuant to 5 TH C IR. 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 5 TH C IR . R. 47.5.4.3

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