United States Bankruptcy Appellate Panel

FOR THE EIGHTH CIRCUIT

 

No. 01-6081ND

 

In re: *

*

William S. Brown and Gayle Brown, *

*

Debtors. *

*

FarmPro Services, Inc., *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * Bankruptcy Court for the

* District of North Dakota.

William S. Brown and Gayle Brown *

*

Defendants-Appellants. *

*

WSB Trucking, *

*

Defendant. *

*

William S. Brown and Gayle Brown *

*

Plaintiffs-Appellants, *

*

v. *

*

AG Acceptance Corporation, *

*

Defendant-Appellee. *
1

 The Honorable William A. Hill, United States Bankruptcy Judge for the

District of North Dakota.

2

 

Submitted: February 7, 2002

Filed: February 15, 2002

 

Before KOGER, Chief Judge, KRESSEL, and DREHER, Bankruptcy Judges.

 

KRESSEL, Bankruptcy Judge.

The debtors William S. Brown and Gayle Brown have appealed from

judgments entered by the bankruptcy court1

 in two different adversary proceedings.

While none of the parties to these appeals has raised the issue of jurisdiction,

we, like every federal court, have the duty to examine our own jurisdiction. See, e.g.,

Krein v. Norris, 250 F.3d 1184, 1187 (8th Cir. 2001). Having conducted such an

examination, we conclude that we lack jurisdiction over both appeals, albeit for

different reasons.

BACKGROUND

The debtors filed a bankruptcy petition under chapter 12 on February 18, 1999.

The case was dismissed at their request on July 20, 2000. During the pendency of

their chapter 12 case, the debtors borrowed money from FarmPro Services, Inc., and

Ag Acceptance Corporation. Both loans were approved by the bankruptcy court and

properly perfected.
3

On September 29, 2000, the debtors filed another case, this time under chapter

13. A month later, on October 28, 2000, Congress enacted Public Law 106-397

which provided certain disaster relief payments for the 2000 crop year. On December

29, 2000, the debtors converted their case to a case under chapter 11 and converted

their case, yet again, to a case under chapter 12 on June 4, 2001. In July of 2001, the

Department of Agriculture issued two checks in the total sum of $80,000.00 as the

debtors’ entitlement under the year 2000 Disaster Program. The checks were actually

made payable to FarmPro Services, Inc., and it is those payments which are the

subject of the dispute among the parties.

ADVERSARY PROCEEDING 01-7031

On June 5, 2001, this adversary proceeding was commenced by FarmPro

Services, Inc., against the debtors and WSB Trucking. The complaint asked that the

court determine, as among the parties to that adversary proceeding, the right to the

disaster payments. The defendants answered and on September 3, 2001, the

bankruptcy court issued a joint opinion in which it discussed the issues raised in this

adversary proceeding and the Ag Acceptance Corporation adversary proceeding,

which will be discussed later. In its opinion, the bankruptcy court determined that

both FarmPro and Ag Acceptance had valid security interests in the disaster payments

and that Ag Acceptance’s interest was ahead of FarmPro’s. While the court issued

a joint opinion in the two adversary proceedings, it entered separate judgments for

each. The judgment in this adversary proceeding read simply “[t]hat the security

interest of FarmPro Services, Inc. in the crop disaster payment is not defeated by the

event of the bankruptcy filing.”

On September 13, 2001, FarmPro filed a motion to alter or amend the order and

judgment. 
4

The next day, the debtors filed a notice of appeal from the September 3rd

judgment in this adversary proceeding. Although the notice of appeal was filed 11

days after entry of the judgment, one day after the last day of the appeal period, the

pendency of FarmPro’s timely motion extended the appeal period until the

bankruptcy court’s entry of an order disposing of the motion. See, Fed. R. Bankr. P.

8002(b). On October 12, 2001, the bankruptcy court denied FarmPro’s motion to

alter or amend the order and judgment. Ten days later, on October 22, 2001, the

bankruptcy court extended the time for FarmPro to file an appeal from the order

denying the motion. The order did not, at least by its terms, extend the time for

appealing from the September 3rd judgment.

On November 13, 2001, FarmPro filed an appeal from the September 3rd

judgment, together with a proper election to have its appeal heard by the district

court. Two weeks later, on November 27, 2001, FarmPro filed an amended notice of

appeal, together with another election to have its appeal heard by the district court,

which indicated that it was instead appealing from the order denying its motion to

alter or amend.

While the parties seem to assume that we have jurisdiction over the debtors’

appeal from the September 3rd judgment and the district court has jurisdiction over

FarmPro’s appeal from the bankruptcy court’s September 3rd opinion and order for

judgment, we disagree. The issues in the two appeals are from closely interwoven,

if not identical, determinations by the bankruptcy court. The fact that FarmPro tries

to characterize its appeal as being from the opinion and order for judgment or from

the order denying FarmPro’s motion to alter or amend, while the debtors’ is from the

judgment, is a distinction that has no meaning in this context. Since FarmPro’s

election to have its appeal heard by the district court was timely, we conclude that we

have been divested of jurisdiction over the debtors’ appeal from the September 3rd

judgment. We will thus dismiss that appeal with direction to return it to the clerk of

the bankruptcy court for transmission to the district court.
2 Federal Rule of Bankruptcy Procedure 8002(g) provides that a notice of

appeal must be filed within ten days from entry of the judgment.

5

ADVERSARY PROCEEDING 01-7037

This was a separate adversary proceeding commenced by the debtors on

June 28, 2001, against Ag Acceptance Corporation, which was also making a claim

to the disaster relief payments. While the debtors could have brought Ag Acceptance

into the FarmPro adversary proceeding as third party defendants, the debtors chose

not to do so. Also, no party ever made a motion to consolidate the two adversary

proceedings.

Ag Acceptance answered and the issues raised in this adversary proceeding

were also addressed by the bankruptcy court in its September 3, 2001, opinion and

order for judgment. Pursuant to its opinion and order, on September 3, 2001, the

bankruptcy court entered a separate judgment in this adversary proceeding,

dismissing the debtors’ complaint against Ag Acceptance. Also, as discussed earlier,

the debtors filed their notice of appeal from the two judgments on September 14,

2001, one day late.2

 Since there were no timely post judgment motions made in this

adversary proceeding, the notice of appeal is simply untimely. We therefore lack

jurisdiction over the appeal from the judgment in this adversary proceeding.

Hamilton v. Lake Elmo Bank (In re Delta Eng’g Int’l, Inc.), 270 F.3d 584 (8th Cir.

2001).

CONCLUSION

Therefore, we dismiss the appeal from both judgments . The clerk shall send

the appeal from the judgment entered in Adversary Proceeding 01-7031 back to the

clerk of bankruptcy court for transmission to the district court.
6

A true copy.

Attest:

CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE

EIGHTH CIRCUIT.