Miscalendaring from ECF Notice Is Not Excusable Neglect under Rule 8002(d); No Hearing Required Absent Request — Tenth Circuit BAP Affirms

Miscalendaring from ECF Notice Is Not Excusable Neglect under Rule 8002(d); No Hearing Required Absent Request — Tenth Circuit BAP Affirms

Introduction

In Douglas Gould v. KT Weaver, the United States Bankruptcy Appellate Panel for the Tenth Circuit (BAP) affirmed a bankruptcy court’s refusal to extend the time to file a notice of appeal where appellants missed the 14‑day deadline by one day and sought relief based on “excusable neglect.” The appellants argued that the delay stemmed from a good-faith calendaring mistake tied to electronic notice of the judgment rather than its docket entry date. The BAP held that, under controlling Tenth Circuit authority, miscalculation of a clear, unambiguous appellate deadline does not constitute excusable neglect. The Panel also rejected the argument that the bankruptcy court abused its discretion by denying the motion without an evidentiary hearing, explaining that no hearing was requested under local rules and no material facts were in dispute.

Although unpublished and not precedential, this decision reinforces two practical and doctrinal points for bankruptcy practitioners in the Tenth Circuit:

  • Excusable neglect does not encompass miscalendaring based on ECF/CM notice rather than the docketed entry date when the deadline rule is clear (Rule 8002(a)).
  • Bankruptcy courts need not hold a hearing on such motions absent a proper request or disputed facts.

Background

After a two-day trial in an adversary proceeding arising in In re Amy Liebl Darter, MD, PC, the bankruptcy court entered judgment on December 16, 2024. The judgment awarded the Chapter 7 trustee, Douglas N. Gould, partial relief on fraudulent transfer claims under 11 U.S.C. § 548 against Amy Liebl‑Weaver, KT Weaver, and KT Weaver Construction, LLC (collectively, “Appellants”) in the amount of $623,347.82 and granted partial relief to Appellants on civil conspiracy and embezzlement claims.

The appellants filed their notice of appeal on December 31, 2024—one day late under Federal Rule of Bankruptcy Procedure 8002(a)(1), which requires filing “within 14 days after the entry” of the judgment. They simultaneously moved to extend the time under Rule 8002(d)(1)(B), asserting excusable neglect due to a calendaring error. The bankruptcy court denied the motion on January 23, 2025. Appellants’ first merits appeal (from the judgment itself) was later dismissed as untimely for lack of jurisdiction; they then appealed the order denying their extension request to the BAP, which affirmed.

Summary of the Opinion

The BAP affirmed the bankruptcy court’s order denying an extension of time to file a late notice of appeal. Applying Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership’s equitable framework for “excusable neglect,” the BAP held that, in the Tenth Circuit, the “reason for the delay” is the most important factor and can be dispositive. Relying on United States v. Torres and the Tenth Circuit’s unpublished but persuasive decision in Biodiversity Conservation Alliance v. Bureau of Land Management, the Panel concluded that misreading or miscalculating a clear and unambiguous rule—here, counting from the date of counsel’s email receipt rather than the docketed entry date—is not excusable neglect. The Panel also held there was no abuse of discretion in deciding the motion without an evidentiary hearing, given the absence of a formal hearing request, undisputed material facts, and local rules discouraging routine hearings.

Analysis

Precedents Cited and Their Influence

  • Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993): The Supreme Court defined “excusable neglect” broadly to include inadvertence and carelessness, and prescribed a flexible, equitable, four-factor test: (1) prejudice to the opposing party; (2) length of delay and effect on proceedings; (3) reason for delay, including whether within movant’s control; and (4) good faith. Although Pioneer rejects categorical rules, it recognizes that all relevant circumstances must be weighed. Here, Pioneer provides the governing framework.
  • United States v. Torres, 372 F.3d 1159 (10th Cir. 2004): Applying Pioneer to a missed appellate deadline, the Tenth Circuit held that misreading or misinterpreting a clear and unambiguous deadline does not constitute excusable neglect. Torres emphasizes that “fault in the delay” is “perhaps the most important” factor, and an attorney’s confusion between plainly stated deadlines will not suffice. The BAP treated Torres as binding and controlling on the Rule 8002(d) question.
  • Biodiversity Conservation Alliance v. Bureau of Land Mgmt., 438 F. App’x 669 (10th Cir. 2011) (unpublished): Counsel calculated the appeal deadline from the date of email receipt rather than the date of entry on the docket; the Tenth Circuit reversed an extension, holding the mistake indistinguishable from Torres and therefore not excusable neglect. The BAP found Biodiversity directly analogous and persuasive: relying on ECF/email receipt rather than docketed entry is a miscalculation of a clear rule and not excusable neglect.
  • In re Higgins, 220 B.R. 1022 (10th Cir. BAP 1998): Establishes that an order denying a motion to extend time to file a notice of appeal is a final order for appellate purposes. This supported jurisdiction.
  • Standards of review authorities: In re Lang, Berger v. Buck (In re Buck), and Shaw v. AAA Eng’g & Drafting, Inc. confirm abuse-of-discretion review for denial of time extensions and for declining evidentiary hearings. Moothart v. Bell, Cruz v. Farmers Ins. Exch., and Jackson v. Los Lunas Cmty. Program explain that abuse of discretion exists if a court commits legal error or relies on clearly erroneous facts. Carter-Waters (In re Eufaula Indus. Auth.) and City of Chanute v. Williams Nat. Gas Co. address the weight of the “reason for delay” factor and when de novo review applies to legal standards.
  • Hearing-related authorities and local rules: W.D. Okla. Bankr. L.R. 9013‑1(F) discourages routine hearings absent request or rule-based requirement. Robinson v. City of Edmond clarifies that deciding without an evidentiary hearing is not an abuse of discretion where no request is made. In re Padilla, Jones v. Azar, and Justice v. Wallace reinforce that “opportunity for a hearing,” not an actual hearing, may suffice where issues are adequately presented on the papers.

Legal Reasoning

The BAP’s analysis proceeded in two steps. First, it examined whether the bankruptcy court correctly interpreted and applied the Pioneer excusable neglect standard. Second, it examined whether the bankruptcy court abused its discretion by ruling without an evidentiary hearing.

1) Excusable Neglect under Pioneer and Tenth Circuit Emphasis on the “Reason for the Delay”

The bankruptcy court considered all four Pioneer factors. It explicitly acknowledged that three factors favored the appellants: minimal prejudice to the trustee, a short delay (one day), and no evidence of bad faith. Yet, consistent with Tenth Circuit authority, it weighed the third factor—the reason for delay—as the most important and potentially dispositive consideration.

The appellants’ proffered reason was that counsel “mistakenly docketed” the deadline based on the date he received the court’s email notification (December 17, 2024) rather than the actual date of entry on the docket (December 16, 2024), as Rule 8002(a)(1) plainly requires. The BAP agreed that this was a miscalculation of an unambiguous rule that was entirely within counsel’s control, placing the case squarely within Torres and Biodiversity. Accordingly, despite the other Pioneer factors favoring appellants, the “reason for delay” factor weighed so heavily against them that no excusable neglect was established.

The appellants attempted to distinguish Torres by arguing they had not “misread” Rule 8002(a)(1); rather, they merely misidentified the entry date based on an assumption about the email notice. The BAP rejected this distinction as foreclosed by Biodiversity, which treats miscalculating from email receipt rather than entry date as functionally the same “misreading/miscalculation” error under Torres.

The Panel emphasized that it would not disturb the bankruptcy court’s factual finding that the error stemmed from counsel’s miscalculation of a clear deadline unless that finding lacked evidentiary support or was irrational—neither of which was shown.

2) No Abuse of Discretion in Denying a Hearing

The BAP also affirmed the denial of an evidentiary hearing. Under Local Rule 9013‑1(F), hearings are not held routinely unless requested or required by an applicable rule. While the motion included standard “notice of opportunity for hearing” language (as required by L.R. 9013‑1(G)), the appellants did not formally request an evidentiary hearing, nor did they identify any disputed material facts. The facts relevant to the motion—the entry date, the email notice date, and the calendaring mistake—were undisputed on the papers.

The BAP further observed that even if a hearing had clarified that counsel understood Rule 8002(a)(1) but simply miscalculated based on the email notice date, the outcome would have been the same under Biodiversity. In other words, the legal insufficiency of the excuse, not the absence of a hearing, controlled the result.

Impact and Practical Implications

Though unpublished, this opinion consolidates and clarifies the Tenth Circuit’s approach to late bankruptcy appeals and provides concrete practice guidance:

  • ECF/CM notices are not the deadline trigger—docket entry is. Rule 8002(a)(1) runs from “entry” of the judgment, order, or decree, not the date counsel reads an email notice. Counting from the email receipt date is a miscalculation of a clear rule and will almost certainly fail the excusable neglect standard in the Tenth Circuit.
  • The “reason for delay” dominates Pioneer in the Tenth Circuit. Even where prejudice is minimal, delay is brief, and the movant acted in good faith, a calendaring error grounded in misunderstanding or misusing a clear rule generally defeats excusable neglect (Torres; Biodiversity).
  • Hearing strategy matters. Do not assume a hearing will be set; local rules discourage routine hearings. File an explicit request if a hearing is desired and identify disputed, material facts warranting live testimony. Absent that, courts may (and often will) rule on the papers.
  • Choose the right standard. A motion filed after the 14‑day window of Rule 8002(a) requires “excusable neglect” under Rule 8002(d)(1)(B). The appellants’ motion invoked “good cause,” but that is not the operative standard for a post‑deadline motion under Rule 8002(d).
  • Short delays still matter. The one‑day lateness did not rescue the appellants. The Tenth Circuit treats fault in delay as paramount. Practitioners should calendar appeal deadlines from the docket entry date and double‑check time computations before filing.
  • Unpublished but persuasive. While not precedential, this BAP decision will carry persuasive weight in the Tenth Circuit, especially given its faithful application of binding authority (Torres) and persuasive circuit precedent (Biodiversity).

Complex Concepts Simplified

  • Rule 8002(a) Deadline (Bankruptcy Appeals): A notice of appeal must be filed within 14 days after the judgment or order is “entered” on the docket. “Entry” is when the clerk records the judgment on the docket—not when counsel receives or reads an email notice.
  • Rule 8002(d) Extensions: The bankruptcy court may extend the time for filing a notice of appeal. If the motion is filed after the 14-day period expires, it can be granted only on a showing of “excusable neglect.” Merely asserting “good cause” is not enough for a post‑deadline motion.
  • Excusable Neglect (Pioneer factors): Courts weigh four factors: prejudice, length of delay, reason for delay (and whether it was within the movant’s control), and good faith. In the Tenth Circuit, the “reason for delay” often carries the most weight and can control the outcome.
  • Miscalculation vs. Misinterpretation: Whether counsel misread a rule or simply miscalculated timing from the wrong date (e.g., email receipt), the Tenth Circuit treats both as non‑excusable when the underlying rule is clear and unambiguous (Torres; Biodiversity).
  • Abuse of Discretion Standard: On appeal, the reviewing court will reverse only if the lower court’s decision was arbitrary, capricious, whimsical, manifestly unreasonable, or rested on legal error or clearly erroneous facts. This is a highly deferential standard.
  • Hearings on Motions: Local rules (e.g., W.D. Okla. Bankr. L.R. 9013‑1) may discourage routine hearings. Courts may decide motions on the briefs if there is no request for a hearing and no disputed material facts. An “opportunity for a hearing” can suffice; parties must timely and explicitly request a hearing if one is necessary.

Conclusion

The Tenth Circuit BAP’s opinion in Douglas Gould v. KT Weaver confirms and clarifies two critical points for bankruptcy appellate practice in the Tenth Circuit. First, under Rule 8002(d) and the Pioneer framework—construed through Torres and Biodiversity—miscalendaring a clear deadline based on ECF/CM email notice rather than the docket entry date is not “excusable neglect,” even if the delay is brief, the opponent suffers no prejudice, and counsel acted in good faith. The “reason for delay” remains “perhaps the most important” factor and can be dispositive. Second, absent a proper request and disputed material facts, a bankruptcy court does not abuse its discretion by resolving a motion to extend the appeal deadline without an evidentiary hearing.

While unpublished and non‑precedential, the decision is squarely aligned with controlling Tenth Circuit authority and will likely be cited for its persuasive value in similar deadline‑extension disputes. Its practical teaching is straightforward: calculate bankruptcy appeal deadlines from the docketed entry date, not the email notice date; verify time computations; and, when necessary, expressly request a hearing and identify genuine factual disputes. In the Tenth Circuit, excusable neglect will rarely rescue a missed notice-of-appeal deadline caused by a calendaring mistake of a clear rule.

Case Snapshot

  • Court: U.S. Bankruptcy Appellate Panel for the Tenth Circuit
  • Date: November 10, 2025
  • Panel: Chief Judge Romero, Judges Hunt and Herren (opinion by Judge Herren)
  • Disposition: Affirmed denial of motion to extend time to file notice of appeal
  • Key Holdings:
    • Miscalculation of a clear Rule 8002(a) deadline based on ECF/email receipt does not constitute excusable neglect (Torres; Biodiversity).
    • No abuse of discretion in denying a hearing where none was formally requested, facts were undisputed, and local rules discourage routine hearings.
  • Status: Unpublished; citable for persuasive value only (except under law‑of‑the‑case, claim preclusion, issue preclusion).

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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