In The Matter Of: GWILLIAM BARNETT DEBTOR BENSON CAPITAL MANAGEMENT INC. v. Gwilliam Barnett, Ii

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1 The appeal has been docketed with the party’s name spelled “Benson.” From the
briefs and most indications in the record, it appears the proper spelling is “Bensen.” We leave
the official case name alone, but use “Bensen” in our discussion.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-11308
In The Matter Of: G WILLIAM BARNETT
DEBTOR
______________________________________________
BENSON CAPITAL MANAGEMENT INC.
APPELLANT
v.
G WILLIAM BARNETT, II
APPELLEE
Appeal from the United States United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-642-A
Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Bensen1 Capital Management, Inc. brings this appeal from an order of the
bankruptcy court dismissing its complaint, which challenged the
United States Court of Appeals
Fifth Circuit
F I L E D
February 8, 2008
Charles R. Fulbruge III
Clerk

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No. 06-11308
2
dischargeability of a debt owed to Bensen Capital in the bankruptcy case of G.
William Barnett. The complaint was filed after the deadline to challenge the
dischargeability of a particular debt. See FED. R. BANKR. P. 4007(c). The
bankruptcy court dismissed Bensen Capital’s complaint as untimely under the
Bankruptcy Rules, and the district court affirmed.
This Court has held that the fixed time limitations imposed in the
Bankruptcy Rules further the goal of finality in proceedings and should be
strictly enforced. State Bank & Trust v. Dunlap, 217 F.3d 311, 316-17 (5th Cir.
2000). Bensen Capital asks this Court to reconsider this position in light of the
Supreme Court case of Kontrick v. Ryan, 540 U.S. 443 (2004). In its opinion, the
Supreme Court held that the deadlines established in Bankruptcy Rule 4004 are
not jurisdictional in nature, but the Court expressly refused to address the issue
of whether the rules setting out filing deadlines “could be softened on equitable
grounds . . . .” Kontrick, 540 U.S. at 457.
Bensen Capital asserts that the actions of Barnett in resisting discovery
in the bankruptcy case justifies adoption of the doctrine of “equitable tolling” and
applying it to reinstate Bensen Capital’s late-filed complaint. After a hearing
in this case, the Bankruptcy Court held that even if equitable tolling were to be
adopted, it would not be appropriate here. That was because the delay in
Bensen Capital’s filing its complaint was due to the mis-calendaring of the
deadline by Bensen Capital’s attorney and not due to any misconduct on the part
of the debtor. A finding of fact by the Bankruptcy Court is reviewed for “clear
error.” Carrieri v. Jobs.com, Inc., 393 F.3d 508, 517 (5th Cir. 2004). Bensen
Capital has pointed to no error in the Bankruptcy Court’s finding concerning the
cause of the delay in filing. We also agree with the conclusion that equity would
not support tolling in these factual circumstances.
Therefore, regardless of whether equitable tolling would be relevant in
some cases, it is not appropriate here. We AFFIRM.

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