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In re Ceda Mills

September 4, 2009

CEDA MILLS, INC., APPELLANT.


MEMORANDUM OPINION AND ORDER OF COURT

Pending before the Court is an appeal from the order of the Bankruptcy Court dated December 19, 2008, filed by Debtor/Appellant Ceda Mills, Inc. ("Ceda Mills"). Ceda Mills filed a comprehensive brief in support of its position (Document No. 10), and the appeal is ripe for decision.

The parties are familiar with the general background of this case, and it need not be detailed extensively here. The order from which Appellant now seeks an appeal is actually the third in a series of three orders beginning with the underlying decision of the Bankruptcy Court by order dated September 19, 2008. The chronology of Appellant's attempts to obtain relief is as follows. In the September 19, 2008 Order the Bankruptcy Court determined the following:

a) various claim settlements effectuated by Appellant with creditors were tainted with inequity, having been made by Appellant with the benefit of non-public information;

b) in light of the fact that hundreds of thousands of dollars of payments to, and for the benefit of Appellant's principal and his relatives were unauthorized and improper because no such person had any valid claim allowed against the Appellant, coupled with the fact that Appellant's financial reporting, to that point, had been woefully inadequate and inaccurate, the Court ordered Appellant to account for all receipt and disbursements;

c) in light of the fact this case was one of a liquidating Chapter 11 that has resulted in enough funds to pay creditors in full and to pay a sizable distribution to equity holders, coupled with the fact that Appellant had been paying its principal and his relatives without remitting any distributions to minority shareholders, the Court ordered Appellant to provide shareholders and the Court itself with a full accounting and to further provide an opportunity for the minority shareholders to be paid their ratable share of the surplus funds recovered.

See Sept. 19, 2008, Order of Bankruptcy Court, Doc. # 260 at Bankruptcy No. 04-24452-JAD, also attached to Appellant's Appeal to District Court at Doc. # 1-14.

Instead of appealing that Order, on September 29, 2008, Appellant opted to move for modification/reconsideration. In particular, Appellant lodged six challenges to the September 19, 2008 Order exclusively related to the proposed Notice to Shareholders. See "Motion of the Debtor, Ceda Mills, Inc., to Modify Order and Notices Dated September 19, 2008, or, in the Alternative, Motion to Reconsider Order and Notices dated September 19, 2009", Doc. # 362 at Bankruptcy No. 04-24452-JAD; also attached to Appellant's Appeal to District Court at Doc. # 1-15. A hearing was conducted on October 21, 2008, to consider Appellant's motion to modify order/motion for reconsideration. On November 14, 2008, the Bankruptcy Court entered a Memorandum Opinion and Order which denied said motion.

On November 25, 2008, the Bankruptcy Court granted Appellant's motion for an extension of time to December 15, 2008 to appeal the November 14, 2008 order. See Nov. 25, 2008, Order Granting Motion for Extension of Time, Doc. # 373 at Bankruptcy No. 04-24452-JAD, also attached to Appellant's Appeal to District Court at Doc. # 1-20. Once again, Appellant chose not to file an appeal, but rather filed a motion for appropriate relief under Fed.R.Civ.P. 60(b) from the November 14, 2008 Memorandum Opinion and Order, arguing that the actions it took subsequent to the November 14, 2008 Order satisfied Appellant's obligations to account to the shareholders. See Dec. 15, 2008, Motion for Appropriate Relief, Doc. # 380 at Bankruptcy No. 04-24452-JAD, also attached to Appellant's Appeal to District Court at Doc. # 1-21. By Order of December 19, 2008, the Bankruptcy Court denied Appellant's motion for appropriate relief as without merit.

On December 29, 2008, Appellant moved for reconsideration of the December 19, 2008, order advancing substantially similar arguments as raised in its December 15, 2008 motion for appropriate relief, essentially that Appellant had complied with the original September 19, 2008, order. On December 31, 2009, the Bankruptcy Court denied Appellant's motion to reconsider the December 19, 2008 Order.

On January 9, 2009, Appellant filed a notice of appeal, styled as an appeal from the December 19, 2008, order. In effect, however, this appeal is nothing more than an appeal of the September 19, 2008 Order of the Bankruptcy Court whereby Appellant seeks to avoid a full accounting to shareholders and to the Court as prescribed by the Court. After three extensions to file its brief on appeal, Appellant has raised arguments identical to those in the first motion for reconsideration (filed on September 29, 2008). For the reasons that follow, Appellant's appeal will be dismissed as untimely.

This appeal requires a review of the sequence, nature, and timing of Appellant's various filings and the Bankruptcy Court's orders, as "[t]he failure to file a timely notice of appeal [from a Bankruptcy Court order] creates a jurisdictional defect barring appellate review." Shareholders v. Sound Radio, Inc. 109 F.3d 873, 879 (3d Cir. 1997).

By opting to pursue relief in the manner in which it has, Appellant now finds itself with an untimely appeal. To be timely, a notice of appeal from a Bankruptcy Court order must be filed no later than 10 days after the order is entered. Fed.R.Bankr.P. 8002(a). However, filing a motion to amend or alter judgment under Fed.R.Civ. P. 59 or Fed.R.Civ.P. 60 re-starts the 10-day clock: the 10-day period begins to run from the denial of the motion to amend or alter judgment. See Fed.R.Bank. P. 8002(b)(2). A motion for reconsideration is generally treated as arising under Fed.R.Civ.P. 59 for the purpose of tolling the time limit in which a party must appeal. Turner v. Evers, 726 F.2d 112, 114 (3d Cir. 1984); Kelly v, Pennsylvania Railroad Co., 228 F.2d 727, 730 (3d Cir. 1955); accord American Secuirty Bank v. John Y. Hardison, Inc., 670 F.2d 317 (D.C.Cir. 1982).

Appellant's first motion for reconsideration was denied on November 14, 2008. As such, the 10 day time limit in which Appellant was required to file its appeal restarted on that date. On November 25, 2008, Appellant was granted an extension until December 15, 2008 to file a notice of appeal, which Appellant did not do until January 9, 2009. Had Appellant appealed on December 15, 2008, such an appeal would have been timely. Obviously, in order for the January 9, 2009, notice of appeal to be considered timely would have required some additional tolling of the time limit set by Fed.R.Bank.P. 8002.

On December 15, 2008, Appellant filed a motion for relief under Fed.R.Civ.P. 60(b), which was denied on December 19, 2008. If this motion had the effect of once again tolling the 10 day time limit in which to file a notice of appeal, the 10 day time limit would have restarted on December 19, 2008. On the other hand, if this motion did not effectively toll the 10 day time limit, December 15, 2008 was ...


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