1 United States Court of Appeals,

Fifth Circuit.

No. 94-10366

Summary Calendar.

In the Matter of Charles S. CHRISTOPHER, Debtor.

Charles S. CHRISTOPHER, Appellant,

v.

DIAMOND BENEFITS LIFE INSURANCE COMPANY, Appellee.

Oct. 18, 1994.

Appeal f rom the United States District Court for the Northern

District of Texas.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM:

Charles S. Christopher appeals the judgment of the district

court dismissing his appeal as untimely. For the following

reasons, the judgment of the district court is reversed and this

case is remanded to the bankruptcy court.

BACKGROUND/PROCEDURAL HISTORY

On July 24, 1991, Charles S. Christopher filed an adversarial

proceeding in the bankruptcy court against Diamond Benefits Life

Insurance Company ("Diamond Benefits") and twelve other defendants.

He sought a declaration that his bankruptcy discharge barre d the

prosecution of several pending lawsuits that had been filed against

him in several different states. The thirteen defendants were

divided into four different groups by the bankruptcy court: the

Diamond Benefits Group, the Sequa Group, the RHI Group, and the

American Universal Group.2

On September 23, 1992, the adversarial proceeding was tried on

its merits. At issue was whether Christopher or his affiliated

agents and representatives had provided constitutionally adequate

notic e of his bankruptcy to Diamond Benefits and the other

defendants. At the conclusion of part of Christopher's

case-in-chief, Diamond Benefits moved to dismiss Christopher's

claim against it. The bankruptcy court issued an oral rule on the

record gra nting Diamond Benefits' motion to dismiss; a written

judgment confirming this ruling was rendered on November 4, 1992.

Christopher filed a motio n for rehearing on the motion for

dismissal which was denied on December 11, 1992.

On December 30, 1992, the bankruptcy court rendered a judgment

agains t the other three groups of defendants, 148 B.R. 832. On

January 8, 1993, Christopher filed a notice of appeal. On January

11, 1993, one of the defendants in the Sequa Group filed a motion

for additional findings of fact. On January 15, 1993, the

bankruptcy court denied the motion for additional findings of fact.

On February 17, 1993, Diamond Benefit s filed a motion to

dismiss Christopher's appeal. This motion was denied. On February

18, 1993, Christopher filed a motion for extension of time to

appeal. The bankruptcy court granted this motion without a hearing

or written reasons. On the same day, Christopher filed another

notice of appeal. On February 26, 1993, Diamond Benefits filed a

notice of cross-appeal and a moti on for reconsideration of

Christopher's motion for extension of time. The bankruptcy court

denied this motion on March 16, 1993.3

On appeal, the district court found that the bankruptcy court

had abused its discretion in granting Christopher's motion for

additional time to file an appeal. The court held that

Christopher's first notice of appeal had been nullified by the

motion for additional findings of fact and that the second notice

of appeal was untimely. It also found that there was no excusable

reason for the tardiness of the notice of appeal. Christopher

appeals the judgment of the district court.

LEGAL PRECEPTS

Parties have ten days to appeal the judgment of the bankruptcy

court. Fed.R.Bankr.P. 8002(a). Under Fed.R.Bankr.P. 8002(b):

If a timely motion is filed in the bankruptcy court by any

party: (1) under Rule 7052(b) to amend or make additional

findings of fact, whether or not an alteration of the judgment

would be required if the mo tion is granted; (2) under Rule

9023 to alter or amend the judgment; or (3) under Rule 9023

for a new trial, the time for appeal for all parties shall run

from the entry of the order denying a new trial or granting or denying any other such motion.

If the time p eriod for an appeal is tolled by one of the above

motions, then any notice of appeal filed before the disposition of

the motion is nullified. I d. The time for an appeal runs anew

from the time the motion is granted or denied. Fed.R.Bankr.P.

8002(c). A court may extend the time for an appeal upon a showing

of excusable neglect. Id.

DISCUSSION

Perfection of Appeal Argument

Christopher initially contends that Diamond Benefits' notice

of appeal was nullified when it filed a motion for reconsideration

of the motion to dismiss appeal on the same day as the notice of1 In actuality, Christopher cites Fed.R.Civ.P. 59; however,

Fed.R.Bankr.P. 9023 makes Fed.R.Civ.P. 59 applicable to cases

under the Bankruptcy Code.

4 appeal. He argues that the motion for reconsideration was made

under Fed.R.Bankr.P. 9023. 1 Thus, under Fed.R.Bankr.P. 8002(b),

the time period for an appeal was tolled until the motion was

decided and a new notice of appeal had to be filed. We disagree.

In Fox v. Brewer, 620 F.2d 177 (8th Cir.1980), the court found

that a motion for reconsideration of a motion to dismiss an appeal

was not the type of motion that would toll the appeal period under

Fed.R.Civ.P. 4(a). I d. at 179. S ee also, Reinbold v. Dewey County

Bank, 942 F.2d 1304, 1307 (8th Cir.1991), cert. denied,

--- U.S.

--

--, 112 S.Ct. 1499, 117 L.Ed.2d 639 (1992). Fed.R.App.P. 4(a) and

Fed.R.Bankr.P. 8002(b) are similar in regards t o the types of

motion that will toll the time period for appeal and nullify

previously filed notices of appeal. S ee Fed.R.Civ.P. 8002 advisory

committee note (stating that Fed.R.Civ.P. 8002 is an adaptation of

Fed.R.App.P. 4(a)). We therefore hold that Diamond Benefits'

motion for reconsideration of motion to dismiss an appeal is not

the type of motion that would toll the appeal period under

Fed.R.Bankr.P. 8002(b). Correspondingly, Diamond Benefits did not

need to file a new notice of appeal.

Timely Notice of Appeal Argument

Christopher contends that the trial court erred in holding

that his first notice of appeal was nullified. On its face it

would appear that Christopher's first notice of a ppeal was

nullified, because it was filed more than ten days after the Sequa5

Group defendant's motion for addi tional findings of fact was

denied. See Fed.R.Bankr.P. 8002(b). Christopher argues that the

motion for additional findings of facts did not affect his January

8, 1992 notice of appeal because a motion for additional findings

of fact by one group of defendants does not affect the time period

to file an appeal for another group of defend ants. He relies on

Stacey v. Charles J. Rogers, Inc., 756 F.2d 440 (6th Cir.1985), to

support this proposition.

In Stacey, several groups of plaintiffs had sued the defendant

corporation for fraud in connection with a stock repurchase. The

plaintiffs had filed several different s uits which had been

consolidated. A judgment was rendered against all of the

plaintiffs. One group of plaintiffs in one of the consolidated

actions fil ed a motion for new trial. The court held that the

motion for new trial, which would normally toll the time period to

file an appeal, did not delay the time period that the plaintiffs

in the other consolidated actions had to appeal. 756 F.2d at 442.

Ch ristopher argues that the principle in S tacey should apply in

t his case and that a motion for additional findings filed by the

defendant in the Sequa group would not affect the appeal period for

the other three groups of defendants. We disagree.

The court, in Stacey, based its holding on the fact that each

group of plaintiffs was in a separate action. S tacey, 756 F.2d at

442. It stated that "[e]ach cause of action retained a separate

identity, and each party was responsible for complying with

procedural requirements." I d. In the instant case, the defendants6

are not in separate actions; they are co-defendants in a single

action. The division of groups was not based on separate actions,

but was instead an easy reference to determine the commonality of

issues and law between the defendants. Thus, the rationale in

Stacey is not apropos to this case.

Moreover, even if t he rationale in S tacey did apply,

Christopher's notice of appeal still would be untimely. The denial

of the rehearing on the judgment favoring Diamond Benefits was

rendered on December 11, 1992. Thus, Christopher would have had

ten days from this denial of his motion to appeal and not ten days

from the judgment against the other defendants to appeal. S ee

Fed.R.Civ.P. 8002(b). Therefore, even under Christopher's own

logic, the first notice of appeal was filed untimely.

Excusable Neglect Argument

Christopher contends that even if his notice of appeal was

filed untimely, excusable neglect exists because of the confusion

of law on this issue. A court may extend the time for an appeal

upon a showing of excusable neglect. Fed.R.Bankr.P. 8002(c). The

district court found Christopher's conf usion on the law did not

constitute excusable neglect. It applied a very high standard of

excusable neglect, rejecting any negligence by the attorney as an

excuse. However, the utilization of such a standard was error in

l ight of the Supreme Court's decision in P ioneer Investment

Services Co. v. Brunswick Associates Ltd. Partnership,

--- U.S.

---

-, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).

I n Pioneer, creditors in a Chapter 11 bankruptcy sought an7

extension of a bar date for filing proofs of claim, alleging

excusable neglect. The attorney in the case had forgotten to file

the proof of claim because the bar date had been buried in a stack

of paper. The Supreme Court held that an attorney's inadvertence

could constitute excusable neglect. Pioneer Investment, --- U.S.

at

---- - ----, 113 S.Ct. at 1498-1490. The court rejected the

notion that excusable neglect can only encompass those actions

beyond the movant's reasonable control. I d. at ----, 113 S.Ct. at

1494. The court stated that excusable neglect at bottom is an

equitable consideration "taking account of all relevant

circumstances surrounding the party's omission." I d. at ----, 113

S.Ct. at 1498 (footnote omitted). These circumstances include the

danger of prejudice to the debtor, the length of the delay

including whether it was within the reason able control of the

debtor, and whether the movant acted in good faith. Id.

Although the court in Pioneer was interpreting the standard

of excusable neglect under Fed.R.Bankr.P. 9006(b)(1), we find this

ap plication of excusable negligence applies to appeals from the

bankruptcy court. In its opinion, the Supreme Court used standards

from different places in the Federal Rules of Civil Procedure in

determining the standards of excusable neglect. S ee Pioneer

Investment,

--- U.S. at

---- - ----, 113 S.Ct. at 1497-1498 (using

the relaxed standard of excusable neglect in Fed.R.Civ.P. 60(b) as

a reason for determining the standard for excusable neglect in the

bankruptcy rules). One other circuit has used the standard of

excusable neglect in a non-bankruptcy appeal. S ee United States v.8

Hooper

, 9 F.3d 257, 259 (2d Cir.1993) (using the standard

enunciated in Pioneer Investment to determine whether the failure

to file a timely criminal appeal was due to excusable neglect).

CONCLUSION

The district court erred in applying a standard of excusable

neglect that excludes an attorney's negligence. However, the

bankruptcy court made no findings of fact when it granted the

extension. Such findings are necessary. Morin v. United States,

522 F.2d 8, 9 (4th Cir.1975). We therefore remand this case to the

bankruptcy court to d etermine whether excusable neglect exists.

The judgment of the district court dismissing Christopher's appeal

is REVERSED and this case is REMANDED to the bankruptcy court.