In Re Sweet Transfer & Storage, Inc., Debtor. Michael R. Miyao Steven D. Betten Anton J. Miller v. David J. Kuntz Sweet Transfer & Storage, Inc.

Michael R. Miyao, Steven D. Betten and Anton J. Miller appeal the Bankruptcy Appellate Panel (“BAP”)’s dismissal of their appeal for failing to timely file their notice of appeal. They argue that the BAP’s decision should be reversed because there has not yet been a final judgment. Alternatively, they argue that their notice of appeal was timely under Bankruptcy Rule (“BR”) 8002 and Fed.R.App.P. 4(a) or should be treated as if it were due to the “unique circumstances” of this case. They also argue that the papers they submitted within the ten-day period following the filing of Sweet Transfer & Storage, Inc. (“Sweet”)’s notice of appeal should be held to constitute timely notice of appeal. Further, they contend that the court should use its nunc pro tunc power to modify the date of entry for the bankruptcy court’s final judgment. We affirm.

I

On September 9, 1986, attorney Miller filed an involuntary petition under Chapter 7, supposedly on behalf of Miyao, Betten and Kuntz. On September 16, 1986, Sweet filed an answer to the petition and raised a counterclaim based on allegations that the action was without merit and filed in bad faith.

After a hearing on October 26, 1986, the…