* Pursuant to 5th Cir. R. 47.5, the Court has determ ined th at this opinio n should not be published and is not precedent except under the limit ed circumstances set fo rth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED December 14, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50462 Summary Calendar

In The Matter Of: ANNETTE S. MUECKE Debtor, ANNETTE S. MUECKE, P laint iff-Appellant,

versus MARION A. OLSON, Jr., Defendant-Appellee. Appeal from the United States District Court fo r the Western District of Texas (No. SA-05-CV-0538-RF) Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM: * Annette Muecke (“Muecke”) appeals from the district court’s affirmance of the bankruptcy court’s denial of a mo tion to reinstate her appeal. Because we lack jurisdiction over this appeal, we vacate the district court’s decision and dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND2

Muecke has filed five Chapter 13 bankruptcy proceedings over the past two decades. The lat est Chapter 13 filing on March 11, 2004, was dismissed by the bankruptcy court on July 30, 2004. Muecke filed a Motion to Reconsider on August 10, 2004, which the bankruptcy court denied on August 16, 2004. Muecke then filed a Notice o f Appeal on Septem ber 10, 2004, which the bankruptcy court dismissed on November 18, 2004. This dismissal was not directly appealed. On January 18, 2005, Muecke filed a Motion to Reinstate her appeal, which was denied by th e bankruptcy court on February 3, 2005. Muecke then filed an appeal with the district court on February 14, 2005. The district court affirmed the bankruptcy court’s order and dismissed Muecke’s appeal on November 14, 2005. Muecke then filed this appeal with this court on April 19, 2006. II. DISCUSSION Muecke’s appeal in this court is a pro se mo tion based on FED . R. C IV . P RO . 60 to reconsider th e bankruptcy court’s dismissal of her Chapter 13 filing on July 30, 2004. S ee Travelers Ins. Co.

v. Liljeberg Enters., Inc. , 38 F.3d 1404, 1410 (5th Cir. 1994); see also In re Stangel , 219 F.3d 498, 500 n.3 (5th Cir. 2000), cert. denied , 532 U.S. 910 (2001). Muecke did no t directly appeal this decision, and a Rule 60 mo tion should not be used as a substitute fo r a direct appeal. T ravelers , 38 F.3d at 1408. In reviewing a Rule 60 motio n, we review only for abuse of discretion and do not review the merits of the Rule 60 motion. Travelers , 38 F.3d at 1409 n.6. However, we mu st fi

rst consider our jurisdiction to hear this appeal. S tangel , 219 F.3d at 500. Muecke’s Motion to Reinstate her appeal was untimely filed in the bankruptcy court. The time limit s fo r an appeal from a bankruptcy court decision are fo und in Bankruptcy Rule 8002(a), which1 Bankruptcy Rule 9006(a) require s that intermediate Saturdays and Sundays be included when

com puting this time period. S ee Butler , 2 F.3d at 156. Additionally, any intermediate motions, such as Muecke’s August 10, 2004 Motion to Reconsider, do not toll Bankruptcy Rule 8002(a). S tangel , 219 F.3d at 500. 3 provides th at such a mo tion must be filed wit hin ten days o f t he bankruptcy court’s decision. S ee Stangel , 219 F.3d at 500. 1 The bankruptcy court’s dismissal of Muecke’s Chapter 13 bankruptcy occurred on July 30, 2004. For an appeal to be timely, it would have to filed by Monday, August 9, 2004. In stead Muecke’s appeal was not filed until September 10, 2004. When this appeal was dismissed by t he bankruptcy court on November 18, 2004, Muecke did not file the inst ant Motion to Reinstate until January 18, 2005, well aft er th e ten day time limit fo r an appeal. Therefore, the bankruptcy court’s dismissal o f t his case became final on August 10, 2004, and the district court had no jurisdiction to hear Muecke’s appeal. Because the district court had no jurisdiction in this case, we also have no jurisdiction over this appeal. See Stangel , 219 F.3d at 500. III. CONCLUSION For th e fo regoing reasons, we VACATE the judgment of the district court and dismiss the appellant’s claims for lack of jurisdiction.