## United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT

No. 98-6048MN

In re: * * JOSEPH HUNTER DREVLOW, and * JODI RENAE DREVLOW * * Debtors. *

* FHC ENTERPRISES, INC., * APPEAL FROM THE UNITED * STATES BANKRUPTCY COURT Appellant, * FOR THE DISTRICT OF

* MINNESOTA v. * * JOSEPH HUNTER DREVLOW * * Appellee. *

Submitted: June 8, 1998 Filed: June 16, 1998

Before KOGER, Chief Judge, SCHERMER and SCOTT, Bankruptcy Judges

PER CURIAM
The question before this court is the timeliness of an appeal where the appellan t timely paid the filing fee for appeal but failed to file a written notice within the ten-da y period required by Rule 8002(a).The Honorable Dennis D. O’Brien, Chief Judge, United States Bankruptcy Court for 1 the District of Minnesota.
2 On May 11, 1998, the bankruptcy court dismissed an adversary complaint filed by 1 FHC Enterprises, Inc. (“FHC”) against Joseph Drevlow. On that same date, the court also entered an order allowing FHC’s attorney to withdraw as counsel in the case. Thereafter,
on May 21, 1 998, FHC, through Mr. Lowell Austinson, as an officer, director, o r representa tive of the corporation, paid the filing fee of $105.00 to appeal the order o f dismissal. The corporation did not, however, file anypleading or notice of appeal until June 1, 1998. The minute entries in th e record of this case indicate an entry for May 21, 1998 as follows: LOWELLAUSTINSON, REPRESENTING PLAINTIFF, FILED A N APPEAL BY PRESENTING A CHECK FOR $105.00. NO NOTICE O F APPEAL OR OTHER PAPERS WERE FILED. LETTER SENT TO MR

. AUSTINSON STATING THAT NOTICE OF APPEAL IS NECESSARY.
Ba nkruptcy Rule 8001(a) provides that “[a]n appeal . . . shall be taken by filing a notice of appeal with the clerk within the time allowed by Rule 8002.” Rule 8002 requires the appellant to file a notice of appeal “within 10 days of the date of the entry of th e judgment, order, or decree appealed from.” Rule 8001(a) further states in relevant part: An app ellant’s failure to take any step other than timely filing a notice o f appeal does not affect the validity of the appeal, but is ground only for such action as the district court or bankruptcy appellate panel deems appropriate , which may include dismissal of the appeal. The notice of appeal shall (1 ) conform substantially to the appropriate Official Form, (2) contain the names of all parties to the judgment, order, or decree appealed from and the names, addresses, and telephone numbers of their respective attorneys, and (3) b e ac companiedby the prescribed fee. Each appellant shall file a sufficien t num ber of copies of the notice of appeal to enable the clerk to compl y promptly with Rule 8004.

Rule 8 001 is exceptionally clear. While failure to take any step other than filing a timely notice of appeal does not render the appeal invalid, the timely filing of a notice o f appeal is both “mandatory and jurisdictio nal.” Luedtke v. Nationsbanc Mortgage Corp. , 215 B.R. 390, 391 (8th Cir. B.A.P. 1997); Crockett v. Lineberger , 205 B.R. 580, 581 (8th Cir. B.A.P. 1997) (quoting Carnahan, Carnahan & Hickle v. Rozark Farms, Inc. ( In re Rozark3

Farms, In c. ), 139 B.R. 463, 465 (E.D. Mo. 1992). Without a timely filed notice of appeal, this court lacks jurisdiction over the appeal. See Veltman v. Whetzal , 93 F.3d 517 (8th Cir. 1996); Jacobson v. Nielsen , 932 F.2d 1272(8th Cir. 1991)(per curiam) cited for application to bankruptcy appellate panels in, Luedtke , 215 B.R. at 391; United States v. Henry Bros. Partnership , 214 B.R. 192, 196 (8th Cir. B.A.P. 1997); Crockett , 205 B.R. at 581.
A notice of appeal is “filed” when it is del ivered into the actual custody of the proper officer, a clerk, authorized deputy , or a judge. Henry Bros. , 214 B.R. at 195 (citing United States v. Lombardo , 241 U.S. 73, 36 S.Ct. 508 (1916); McIntosh v. Antonino , 71 F.3d 29 (1st Cir. 1995). Without a d ocument, there can be no filing. Only from the filing of a notice of appeal can the court and parties determine precisely what o rder the appellant challenges, and from what d ate the appeal process begins. Rule 8004 requires the clerk to promptly mail a copy of the notice of appeal to all parties to the judgment, and without a writing, the court cannot perform this function. Accordingly, the appeal is dismissed.

The cou rt also reaches this result on alternative grounds. The record reflects tha t F H C, as a corporate entity, attempted to prosecute this appeal pro-se after its attorney was permitted to withdraw. As a representative of the corporation, Mr. Austinson paid the filing f e e and later filed a letter as the corporation’s notice of appeal. Because this appeal arises from the b ankruptcy court in Minnesota, we look to Minnesota law for rules regulating the practice of law in c ourts located in the state of Minnesota. Under Minnesota common law, a corporation must be represented by a licensed attorne y when appearing in court, regardless of wheth er the person seeking to represent the corporation is a director, officer o r shareholder. Nicollet Restoration, Inc. v. Turnham , 486 N.W.2d 753, 754-55 (Minn. 1992). M i nnesota courts have also adopted the position that actions taken in legal proceedings by non-attorneys are a nullity, and “if appropriate and timely steps are taken, the suit may be dismisse d, the judgment reversed, or the actions of the non-attorney disregarded.” Gonsior v. Alternative Staffing, Inc. , 390 N.W.2d 801, 805 (Minn. Ct. App. 1986) (citing McKenzie v. Burris , 255 Ark. 330, 500 S.W.2d 357, 360 (1973).4

A true copy.

Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE

EIGHTH CIRCUIT