*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-21040

Summary Calendar

____________________

In The Matter Of: HARVEN MICHAEL MCKENZIE,

Debtor.

-------------

HARVEN MICHAEL MCKENZIE,

Appellant,

v.

KUKUI INCORPORATED; W STEVE SMITH, Trustee,

Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-97-CV-3311)

_________________________________________________________________

July 16, 1998

Before KING, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Harven Michael McKenzie filed a Chapter 7 bankruptcy

petition. His discharge was contested by Kukui, Incorporated,

and by the Trustee, W. Steve Smith. The bankruptcy court entered
2

judgment denying McKenzie a discharge. McKenzie appealed the

judgment to the district court. The district court dismissed his

appeal and McKenzie now appeals the district court’s dismissal. 

We vacate the district court’s judgment.

I. FACTS AND PROCEDURAL HISTORY

In October 1995, McKenzie filed a Chapter 7 bankruptcy

petition. Kukui, Incorporated and Trustee W. Steve Smith

(collectively, Kukui) filed an adversary proceeding objecting to

McKenzie’s discharge. On September 18, 1997, the bankruptcy

court entered final judgment denying McKenzie’s discharge. 

On September 24, 1997, McKenzie timely filed a notice of

appeal. On October 2, 1997, McKenzie filed an emergency motion

to extend the time to file his designation of record. The

district court denied the motion for an extension of time the

next day. On October 6, McKenzie timely filed his designation of

record. On October 8, McKenzie filed a motion for extension of

time to file his appellate brief. The district court denied the

motion for an extension of time the next day.

 On October 8, McKenzie called the clerk’s office and the

transcription service regarding trial transcripts to be included

in the designated record, as is required by Bankruptcy Rule 8006. 

According to a series of affidavits, the transcript order form,

which was promptly submitted to the clerk’s office by McKenzie,

was not forwarded by the clerk’s office to the transcription
3

service, nor were alleged deficiencies in the form called to

McKenzie’s attention for correction. In short, the form simply

sat in the “trouble basket” in the clerk’s office. McKenzie

discovered nearly five weeks later that the order had never been

forwarded to the transcription service. On November 19, McKenzie

resubmitted his trial transcript order form to the clerk’s

office. On November 20, 1997, the district court dismissed

McKenzie’s appeal based on his failure to timely file an

appellate brief pursuant to Bankruptcy Rule 8009, giving no

further reasons.

II. DISCUSSION

In reviewing actions of the district court acting in its

appellate capacity, several different standards of review may

govern our decision, depending on the nature of the holdings

reviewed. See HECI Exploration Co. v. Holloway (In re HECI

Exploration Co.), 862 F.2d 513, 518 (5th Cir. 1988). We review

the district court’s disposition of questions of law de novo. 

See United States v. Kolstad (In re Kolstad), 928 F.2d 171, 173

(5th Cir. 1991). Where the disputed holding involves a matter

that is within the district court’s discretion, we will affirm

the judgment of a district court acting in its appellate role

unless the court has clearly abused its discretion. See In re

HECI Exploration Co., 862 F.2d at 518. The determination of the

appropriate sanction for a party’s violation of the Bankruptcy
4

Rules related to appeal of the bankruptcy court’s final orders is

a matter within the district court’s discretion; we therefore

review this determination for an abuse of discretion. See

Pyramid Mobile Homes, Inc. v. Speake (In re Pyramid Mobile Homes,

Inc.), 531 F.2d 743, 746 (5th Cir. 1976); see also Resolution

Trust Corp. v. SPR Corp. (In re SPR Corp.), 45 F.3d 70, 73-74

(4th Cir. 1995); see also 10 COLLIER ON BANKRUPTCY ¶ 8001.06[2]

(Lawrence P. King et al. eds., 15th ed. rev. 1998) (“Under the

plain language of the second sentence of Rule 8001(a), the

district court . . . may dismiss the appeal (or impose lesser

sanctions) if no designation is forthcoming, if no brief is

filed, or if the appellant fails to take any of the other steps .

. . in Part VIII of the Bankruptcy Rules. . . . The severity of

the sanction rests in the sound discretion of the court, in light

of all the circumstances, which may include the substantiality of

the questions presented on appeal, prejudice to the appellee or

want of it, and the bona fides of the appellant.”)

A. Perfection of Appeal

Because both parties argue specific provisions of the

Bankruptcy Rules, the starting point of our analysis is an

examination of the language of the pertinent rules. Bankruptcy

Rules 8001 through 8009 govern the timing of the basic documents

necessary to perfect an appeal from a bankruptcy court’s judgment

or order. Rules 8001 and 8002 require the appellant to file
1 McKenzie also contends that the district court abused

its discretion in denying his motion to extend time to file a

brief, and that the district court’s dismissal of his appeal

deprived him of his right to due process. Because we conclude

that the district court’s dismissal of McKenzie’s appeal was

improper, we need not address these claims. 

5

notice of appeal with the bankruptcy clerk within ten days of the

entry of the final judgment or order. See FED. R. BANKR. P. 8001,

8002. Rule 8006 requires the appellant to file a record

designation and statement of issues on appeal within ten days of

the clerk’s filing of the notice, and also to submit a written

request to the court reporter “immediately” should trial

transcripts be needed. See FED. R. BANKR. P. 8006. Rule 8007(a)

requires the reporter to acknowledge and forward the trial

transcript request to the district court clerk with an estimated

date of completion. Rule 8007(b) requires the bankruptcy clerk

to forward a copy of the record to the district court clerk once

the record is complete. See FED. R. BANKR. P. 8007. The district

court clerk is then responsible for docketing the appeal and

providing notice to all concerned parties. See id. Rule 8009

requires the appellant to serve and file the appellate brief

within fifteen days of the entry of the appeal on the docket,

pursuant to Rule 8007. See FED. R. BANKR. P. 8009. 

B. Analysis

McKenzie argues that the district court erred in dismissing

the appeal based on his failure to file an appellate brief

because the brief was not yet due.1 In support of this argument,
2 Bankruptcy Rule 8001(a) provides, in part: “An

appellant’s failure to take any step other than timely filing a

notice of appeal does not affect the validity of the appeal, but

is ground [for] . . . dismissal of the appeal.” See FED. R.

BANKR. P. 8001.

6

McKenzie asserts that the Bankruptcy Rules regarding the

perfection of an appeal operate in a specific sequence. 

Dismissal cannot be premised on the failure to timely file the

appellate brief when the obligation to file that brief has not

yet been triggered under the rules. 

Kukui contends that because McKenzie himself caused the

delays in fulfilling the requirements of the preceding Bankruptcy

Rules, he should not be allowed to prevent a sanction imposed

under Rule 8009. Kukui further contends that even if the

district court did improperly rely on Rule 8009 in dismissing the

appeal, the judgment should be affirmed if some other basis in

the record justifies dismissal. In support of this argument,

Kukui contends that McKenzie’s failure to adhere to the

procedural requirements of Rule 8006 and other rules warrants

discretionary dismissal pursuant to Rule 8001(a).2 We must thus

determine whether the district court abused its discretion in

dismissing McKenzie’s appeal based upon its purported violation

of Rule 8009 and, if so, whether the dismissal can nevertheless

be affirmed on grounds not relied upon by the district court. 

In order to file a bankruptcy appeal, the parties and

various court officials must carry out certain duties prescribed
7

by the Bankruptcy Rules. See Jewelcor Inc. v. Asia Commercial

Co. (In re Jewelcor), 11 F.3d 394, 397-98. (3d Cir. 1993). Rule

8009 sets the appellant’s 15-day time period for filing his

brief, specifically indicating that such period begins to run

“after entry of the appeal on the docket pursuant to Rule 8007." 

See FED. R. BANKR. P. 8009 (emphasis added). Rule 8007

establishes the procedure for docketing an appeal in the district

court; the completed record must be forwarded to the district

court clerk, who must enter the appeal on the docket and give

notice of the docketing date to the parties concerned. Without

these mandatory actions, an appeal is not docketed “pursuant to

Rule 8007." See In re Jewelcor, 11 F.3d at 398 (describing

compliance with Rule 8007 as a condition precedent to

commencement of the brief-filing period); see also 10 COLLIER ON

BANKRUPTCY ¶ 8007.04 (Lawrence P. King et al., eds., 15th ed. rev.

1998) (“[The district court] clerk is to enter the appeal in the

docket . . . . It is the docketing which commences the running

of the period within which briefs are to be filed.”); see also

WILLIAM L. NORTON, JR., BANKRUPTCY RULES 561 editor’s comments (1997-

1998) (same).

Although the facts surrounding the delay in transcript

preparation and record transmission are disputed, it is clear

from the record that the appeal was never docketed, the district

court clerk’s required notice of docketing was never sent, and

therefore the briefing period did not begin to run. The plain
8

language of Rules 8007 and 8009 therefore indicates that

McKenzie’s brief was not yet due. Consequently, dismissal

predicated solely on McKenzie’s failure to file a brief was

erroneous under the circumstances. 

Although this court can defer to the district court’s

discretionary sanction of dismissal, it cannot do so when

dismissal is based upon an inapplicable bankruptcy rule. A lower

court necessarily abuses its discretion when it bases a ruling on

an erroneous view of the law. See Chaves v. M/V Medina Star, 47

F.3d 153, 156 (5th Cir. 1995) (citing Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405 (1990)). Because the dismissal cannot

reasonably be premised on Rule 8009, we find that the district

court abused its discretion in so holding. 

Dismissal of a bankruptcy appeal is an extremely severe

sanction. See International Bhd. of Teamsters v. Braniff

Airways, Inc. (In re Braniff Airways), 774 F.2d 1303, 1305 (5th

Cir. 1985) (describing dismissal as a “penalty of last resort”);

see also DANIEL R. COWAN, BANKRUPTCY LAW & PRACTICE § 18.6, at 530 (6th

ed. 1994) (describing dismissal for failure to file brief as

“severe”). It should be a sanction reserved for the most

egregious of situations. See In re Braniff Airways, 774 F.2d at

1304 (affirming the district court’s dismissal where the

appellant had not filed its brief over a year and a half after

docketing of the appeal); see also In re Pyramid Mobile Homes,

Inc., 531 F.2d at 746 (affirming the district court’s dismissal
9

where no effort was made to comply with the Bankruptcy Rules four

months after filing the appeal). This court has set a high

standard for discretionary dismissal, condoning it where imposed

“only after clear delay or contumacious conduct by the plaintiff

and a finding that lesser sanctions would not cure the problem.” 

In re Braniff Airways, 774 F.2d at 1305. Here, the district

court made no finding as to why lesser sanctions could not remedy

McKenzie’s purported violation of Rule 8009. 

Kukui additionally argues that the district court’s judgment

can be upheld regardless of erroneous reasoning as long as

another ground in the record justifies dismissal. Kukui suggests

that McKenzie violated Rule 8006 by failing to submit a request

for a transcript to the clerk’s office immediately and that this

is an adequate alternative ground for upholding the dismissal. 

We disagree. 

There was no district court finding as to violations of

other Bankruptcy Rules in this case, and it is inappropriate for

this court to make the factual determinations attendant to

determining whether McKenzie violated other Bankruptcy Rules. We

can say that, judging solely from the “cold” affidavits, the

blame for the delay in processing McKenzie’s transcript order

form may not belong solely on McKenzie. In view of the added

delay that has occurred by reason of this appeal, it seems to us

that the best thing for all concerned would be to get on with the

appeal of the important issue that McKenzie is challenging--the
10

denial of his discharge--rather than to engage in the factfinding and blame-placing about a considerably less important

issue that would have to occur to support another dismissal of

the appeal.

III. CONCLUSION

For the foregoing reasons, we VACATE the district court’s

judgment dismissing McKenzie’s appeal. The costs of this appeal

shall be borne by the appellees.