By Ryan C. Wood
What is a docket entry or minute entry? These are entries made by the court to document what took place at hearing or other court proceeding. Never of these entries meant to be like a transcript of what took place, but a short and concise summary of what took place. It is documenting the events of a hearing or court proceeding in an efficient manner. So what if there is ambiguity or you just disagree with what the docket entry or minute entry says? We are all human and sometimes minute entries need to be edited or corrected. Fair enough. Can a minute entry be appealed because you believe the entry is wrong and has of course negatively impacted you as a party in the case?
It seems like at some point in time there is an appeal of everything that takes place in cases whether appealable or not. So here we go. There is a minute entry and you do not like.
Is a Minute Entry Appealable?
The Ninth Circuit Bankruptcy Appellate Panel recently discussed this issue resulting from an appeal of a minute entry from a bankruptcy case from the District of Arizona. The Chapter 11 bankruptcy filer filed on his own an application for an order to show cause to sanction other parties in the case. The other parties filed a motion to strike the application for an order to show cause on the basis that the bankruptcy filer had a bankruptcy attorney retained and it was not appropriate for the bankruptcy filer to represent himself in the bankruptcy case. The Bankruptcy Court granted the motion to strike the application for an order to show cause and vacated the hearing on the application for an order to show case. The Bankruptcy Court is merely saying the hearing on the order to show cause is off the calendar given the motion to strike was granted.
The original minute entry was as follows: “VACATED: ORDER Granting Motion to Strike and [sic] (Related Doc 453) and Order Denying without prejudice the Application for Order to show cause (Related doc 422) signed on 4/4/2017.”
A couple weeks after the above minute entry was placed on the docket the clerk’s office modified the minute entry to include: “*** THIS M.E. ONLY VACATES THE APRIL 28, 2017, HEARING ***.”
At a hearing held a week after the minute entry was modified, the bankruptcy court rejected the bankruptcy filers interpretation of the original minute order as including vacating the order on the motion to strike the application for order to show cause. According to the bankruptcy court, the original minute entry only vacated the hearing on the application for an order to show cause that had been scheduled for the day of the minute entry.
Now The Appeal
If we were to read the transcript of these various hearings or listen to them I believe we would all know beyond a doubt that the Bankruptcy Court granted the motion to strike the application for order to show cause and vacated the hearing the application as moot given the Bankruptcy Court granted the motion to strike.
The bankruptcy filer again representing himself appealed the minute entry. This calls into question the appealability of the minute entry. Let just cut to the chase here. There is not appealable order or final ruling. The Bankruptcy Court granted the motion to strike and entered an order granting the motion. That is not what is being appealed. The Bankruptcy Court vacated the hearing on the application for an order to show cause as moot given it struck it down. That is not really what is being appealed. The bankruptcy filer is appealing the subsequent minute ENTRY which arguably has some ambiguity as to what is be vacated, but it is not an order.
So there is no appealable order under these circumstances.
A minute entry may constitute a dispositive order for notice of appeal purposes if it: (1) states that it is an order; (2) is mailed to counsel; (3) is signed by the clerk who prepared it; and (4) is entered on the docket sheet.” See, e.g., Brown v. Wilshire Credit Corp. (In re Brown), 484 F.3d 1116, 1121 (9th Cir. 2007); Mullen v. Hamlin (In re Hamlin), 465 B.R. 863, 868 (9th Cir. BAP 2012).
This minute entry was just an administrative recounting of what took place and not a substantive ruling.
Everything about this case and appeal is strange. Why did the bankruptcy filer not have is Bankruptcy Attorney file the application for an order to show cause to begin with? Then after the Bankruptcy Court granted the motion to strike given the bankruptcy filer was representing himself while having a retained attorney the bankruptcy filer still did not have his retained attorney file the application for an order to show cause but instead chooses to appeal the subsequent minute entry. It is always possible there is something that is missing from the record that could shed some light on these circumstances. If you want to represent yourself you need to file a substitute of attorney form saying you now want to represent yourself and your old attorney is longer your attorney. That did not happen here. It also appears the attorney of record for the bankruptcy filer did not file a motion to withdraw from the case either.