* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 7 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

In re: CRAY COMPUTER CORPORATION,

Debtor,

WILLIAM KUNTZ, III,

Appellant,

v. DASU L.L.C.,

Appellee. No. 97-1185 (D.C. No. 97-AP-453) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , LOGAN , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 Kuntz, unhappy with the price Dasu L.L.C. paid for the patents, earlier

challenged the January 1996 sale of debtor’s assets . We held that although the district court erred in dismissing the bankruptcy appeal as untimely, because the sale of the patent assets had been consummated and neither the bankruptcy court nor the district court had granted a stay, the bankruptcy court’s determination that Dasu was a good faith purchaser under 11 U.S.C. § 3 63(m) rendered the appeal moot. See Kuntz v. Cray Computer (In re Cray Computer Corp.) , No. 96-1125, 1996 WL 547320, at **1 (10th Cir. Sept. 26, 1996) ( citing Osborn v. Durant Bank & Trust Co. (In re Osborn) , 24 F.3d 1199, 1203-04 (10th Cir. 1994) (§ 363(m) moots appeals in those cases where the only remedie s available are those affecting validity of sale)). -2- this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. William Kuntz, III, a shareholder of debtor Cray Co mputer Corporation, appealed a judgment of the district court dismissin g, as untimely filed, his appeal from an order of the bankruptcy court. The bankrup tcy court had denied Kuntz’s Fed. R. Civ. P. 60(b) motion to vacate an earlier o rder granting debtor’s motion to sell certain patent assets. 1 The bankruptcy court denied the Rule 60(b) motion o n January 30, 1997. On March 4, Kuntz filed a motion for reconsideratio n and/or for an extension of time in which to file a notice of appeal, citing Bankruptcy Rules 8002(c) and 9024 and Federal Rule of Civil Procedure 60(a) and (b). The bankruptcy court denied the motion; it concluded that the request fo r an extension of time was untimely under Bankruptcy Rule 8002(c). The distri ct court then ordered the appeal dismissed as untimely filed.-3-

We review the district court’s dismissal for lack o f jurisdiction de novo.
See Weston v. Mann (In re Weston) , 18 F.3d 860, 862 (10th Cir. 1994). An appellate court has no jurisdiction absent a timelynotice of appeal. See id. ; Saunders v. Band Plus Mortgage Corp. (In re Saunder s) , 31 F.3d 767 (9th Cir. 1994). Kuntz’s brief does not address the sole iss ue before us--whether his appeal to the district court was timely filed. Ins tead, he reargues his theory of why the underlying sale of the patent assets shouldbe reconsidered. Kuntz had ten days in which to file a notice of app eal from the bankruptcy court’s January 30, 1997 order, including intermedi ate calendar days. See Bankr. R. 8002(a), 9006(a). The calculation of time and e xcludable days in this case is governed by Bankruptcy Rule 9006(a), not Federal Ru le of Civil Procedure 6(a). A request for an extension of time to appeal must b e made within the appeal period, except that a request made no more than twe nty days afterthe expiration of time for filing a notice of appeal may be grante d on a showing of excusable neglect. See Bankr. R. 8002 (c). Kuntz’s request for extensionof time filed on March 4, 1997, exceeded by one day the bankruptcy c ourt’s authority to grant the extension. Failure to receive notice of the entry of judgment is not an excuse for an untimely appeal. See Key Bar Invs., Inc. v. Cahn (In re Cahn) , 188 B.R. 627, 632 (B.A.P. 9th Cir. 1995). It is also well establishe d that Bankruptcy Rule 9006(f),-4-

allowing three additional days to undertake a proce eding where notice is served by mail, does not apply to the filing of a notice o f appeal under Bankruptcy Rule 8002(a). See United States ex rel. Rudd v. Schimmels (In re Sch immels) , 85 F.3d 416, 420 n.4 (9th Cir. 1996); In re Zerr , 180 B.R. 281, 282-83 (D. Kan. 1995) The district court correctly concluded it lacked ju risdiction to entertain Kuntz’s appeal. We also have before us Dasu L.L.C.’s motion for san ctions, which includes the declaration that it has incurred legal fees of over $28,000 in this appeal. Because Kuntz appears to be a frustrated shareholde r of debtor, acting pro se and without an understanding of the law, we decline to impose sanctions in the instant case. But he has filed six different proceedings r elating to this transaction, and that is more than enough. We admonish him that thi s case is final and that any further attempts to relitigate the sale of the debt or’s patent assets, affirmed by our earlier decision, will warrant appropriate sanction s. AFFIRMED. The mandate shall issue forthwith. Entered for the Court James K. Logan Circuit Judge