UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 98-2674-CIV-MIDDLEBROOKS

In re:

STEPHEN JAY LAWRENCE

Debtor. _ _ _ _ /

ALAN L. GOLDBERG, BANK. CASE NO. 97-14687-BKC-AJC

Plaintiff Appellee, ADV. NO.: 98-1211-BKC-AJC-A

v.

STEPHEN JAY LAWRENCE,

Defendant/ Appellant. . ; i

ORDER

THIS CAUSE came before the Court upon Appellant/Debtor Stephan Jay Lawrence's

Motion to Reinstate Bankruptcy Appeal (DE#l)("Mot. to Reinstate"), and Appellant's Motion to

Review Bankruptcy Court's Order of November 18, 1998 (DE#4)("Mot. tO'Review"). The Court

has considered the pertinent portions of the motion and is otherwise fully advised in the

premises.

I Background

Appellant brings this action for review of the dismissal of an appeal by the United Stated

Bankruptcy Court for the Southern District of Florida. This action is before the United States

District Court pursuant to 28 U.S.C. § 158. On September 22,1998, the Bankruptcy Court,

Chief Judge A. Jay Cristol, issued a default final, judgment for the Plaintiff Alan Gg^berg and

CLOSED CIVIL CASE

FILED by (JP D.C.

JAN 2 5 1999 CARLOS JUENKE

CLERK U.S. DIST. CT. S.D. OF FLA- - MIAMI

Reinstate, Ex. B), counsel was aware of the pending deadlines because he requested an

enlargement of time of 30 days for in which to obtain new counsel and prosecute the appeal.

Counsel was also aware that this case was proceeding forward, as the Bankruptcy Court

continued to issue orders, and no extension had been granted. Failure to file the required

designations was therefore a result of at worst, bad faith (purposeful refusal to comply with

procedures or to further prosecute the appeal), or at the very least, negligence or indifference as

to the rules governing the appeals process (not caused by factor's beyond Appellant's control).

Because this inaction by previous counsel, when clearly aware of the pending procedural

requirements, is not excusable neglect, the Court finds that the bankruptcy court's dismissal is

proper.11

V Conclusion

Based upon the foregoing and upon consideration, it is hereby ORDERED AND

ADJUDGED that Appellant's Motion to Review the Order of the Bankruptcy Court Denying

Reconsideration is GRANTED to the extent that this Court has undertaken the foregoing

analysis. ^

Upon review of the facts presented in this case, the Court finds that the failure to file the

appropriate designations was not the result of excusable neglect. Accordingly, Appellant

11 Given the harshness of a dismissal and the fact that substitute counsel now appears in this case, the Court is aware of the concern that the wrongdoing of the attorney would be visited on the client. See In re Remington Dev. Group, Inc., 177 B.R. 755 (D.R.I. 1994); In re Hill, 775 F.2d 1385 (9th Cir. 1985). It is well established and necessary rule that the faults and defaults of the attorney may be imputed to, and their consequences visited on, the client. Although the result of dismissal based on a non-jurisdictional failure to file is a harsh penalty, appellant had ample reason to be aware of the potential for problems in this case and ample time to consider and seek out new counsel. Notably, counsel had made prior motions to withdraw that had been denied, and counsel had stated in various pleadings filed with the court that the attorney-client relationship was both difficult and troubled. Furthermore, after the filing of the notice of appeal, counsel for appellant filed two "Emergency Motions to Withdraw," one of which was faxed to appellant and one of which was served on appellant. As discussed above, the Motion requests an enlargement of time to prosecute the appeal, based on counsel's belief that the Motion should be granted.

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Lawrence's appeal is properly dismissed, and the Bankruptcy Court's decision of October 28,

1998 is AFFIRMED.

Based on the foregoing, it is further ORDERED AND ADJUDGED that this case is

CLOSED and all pending Motions are DENIED AS MOOT^—N ./£_

DONE AND ORDERED in Chambers at Miap^lorida,)his2^day of January, 1999.

)NALD M. MEDDLEBROOKS UNITED STATES DISTRICT JUDGE

Copies Provided: Ilyse Homer Mark Cohen Howard Zahn Susan Trench Richard Goldstein Office of the U.S. Trustee Alan Goldberg, Trustee Brian Behar Jill Traina Michael Budwick Stephan Jay Lawrence Harold Moorfield Jr. Paul McMahon

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