112 B.R. 879 | Bankr. N.D. Ohio | 1990
MEMORANDUM OPINION AND ORDER
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on Thomas L. McGhee’s Motion for Extension of Time to File Notice of Appeal and Memorandum in support of the Motion. The Court has reviewed the Motion, and the Memorandum, as well as the entire record in this adversary case. Based on that review, and for the following reasons, the Court finds that the Motion for Extension of Time should be denied as there still remains time in which Defendant McGhee can file his appeal.
FACTS
The facts necessary for this decision are not in dispute. On January 19, 1990, this Court issued a Judgment against Mr. McGhee and six (6) other Defendants. 112 B.R. 863. A Motion was subsequently filed by the Trustee seeking to have the Judgment certified as final under Federal Rule of Civil Procedure 54(b). This Court issued a Memorandum Opinion and Order certifying the Judgment as final and appealable on February 15, 1990. 112 B.R. 871.
Under Bankruptcy Rule 8002(a), the Defendants had ten (10) days to file their
Counsel for Thomas L. McGhee has filed for an extension of time to file his Notice of Appeal under Bankruptcy Rule 8002(c). Mr. McGhee requests that the time for appeal be extended until Thursday, March 8, 1990.
LAW
Thomas L. McGhee’s Motion requests an extension of time under Bankruptcy Rule 8002(c), which states:
(c) Extension of Time for Appeal. The bankruptcy judge may extend the time for filing the notice of appeal by any party for a period not to exceed 20 days from the expiration of the time otherwise prescribed by this rule. A request to extend the time for filing a notice of appeal must be made before the time for filing a notice of appeal has expired, except that a request made no more than 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect if the judgment or order appealed from does not authorize the sale of any property or the obtaining of credit or the incurring of debt under § 364 of the Code, or is not a judgment or order approving a disclosure statement, confirming a plan, dismissing a case, or converting the case to a case under another chapter of the Code.
Counsel for Mr. McGhee states in his Memorandum that he was out of town, and has not had adequate time to review and evaluate the issue of appeal. The Court notes that Mr. McGhee’s attorney is not a sole practitioner, and that additional time for preparation has been afforded Mr. McGhee’s counsel due to the litigation of the finality issue prior to the start of the ten (10) day time period. Moreover, Bankruptcy Rule 8002(c) requires a showing of “excusable neglect” by the party moving for the proposed extension of time. The burden of proof is on the movant, and an examination of the Motion and Memorandum do not reflect an affidavit stating the circumstances which would allow a finding that any neglect was “excusable” under the Bankruptcy Rules. Thus, under Bankruptcy Rule 8002(c), the Motion should be denied. See, e.g., In re Culmtech, Ltd., 89 B.R. 418 (Bankr.M.D.Pa.1988); In re O’Connor, 85 B.R. 590 (W.D.Okla.1987); Matter of Dayton Circuit Courts No. 2, 85 B.R. 51 (Bankr.S.D.Ohio 1988); In re Tinnell Traffic Services, Inc., 43 B.R. 280 (Bankr.M.D.Tenn.1984); In re Zeller, 38 B.R. 739 (Bankr. 9th Cir.BAP 1984).
However, a review of Bankruptcy Rule 8002(a) indicates that the Notices of Appeal filed by J. Robert Jesionowski, John E. Thompson, George M. Todd, and Donald Henniger, provide an automatic extension to Mr. McGhee. Bankruptcy Rule 8002(a) states:
(a) TEN-DAY PERIOD. The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 10 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires. If a notice of appeal is mistakenly filed with the district court or the bankruptcy appellate panel, the clerk of the district court or the clerk of the bankruptcy appellate panel shall note thereon the date on which it was received and transmit it to the clerk and it shall be deemed filed with the clerk on the date so noted, (emphasis added)
Pursuant to this provision, Mr. McGhee is accorded an additional ten (10) day period from the date of the first appeal, as is “any other party”. Since all appeals were filed on the same day, Monday, February 26, 1990, Mr. McGhee’s appeal may be timely filed during that additional period. See In re White Motor Corp., 25 B.R. 293, 297 (N.D.Ohio 1982) (construing former Bank
In reaching these conclusions, the Court has considered all the evidence and arguments of counsel, regardless of whether or not they are specifically referred to in this Opinion.
Accordingly, it is
ORDERED that Thomas L. McGhee’s Motion for Extension of Time be, and is hereby, Denied.
It is FURTHER ORDERED that the Court finds that Thomas L. McGhee’s time to file a Notice of Appeal has not yet expired under Bankruptcy Rule 8002(a).
