CLOSED

CIVIL UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE
Case No. 98-2674-CIV-MIDDLEBROOKS

In re: FILED by (JP D.C.

STEPHEN JAY LAWRENCE JAN 2 5 1999

Debtor. CARLOS JUENKE
CLERK U.S. DIST. CT.
S.D. OF FLA- - MIAMI
____/

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 defaultfinal,judgment for the Plaintiff Alan Gg^berg and
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.
8
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