Opinion
BAP No. AK-02-1420, Bk. No. 85-40071.
Filed September 18, 2002
Before: MONTALI, KLEIN and PERRIS, Bankruptcy Judges.
ORDER DENYING MOTION TO DISMISS
This is an appeal from two orders: (1) an order entered on July 9, 2002, denying Appellee-trustee's motion to revoke technical abandonment, and (2) an order entered on July 12, 2002 denying Appellant-Debtor's reconsideration motion. Appellant did not file her notice of appeal until August 6, 2002, twenty-five days after entry of the July 12, 2002 order denying the reconsideration motion. Also on August 6, 2002, Appellant filed a motion for an extension of time in which to file her notice of appeal. The bankruptcy court denied the extension motion on jurisdiction grounds, holding that the filing of the notice of appeal divested the bankruptcy court of jurisdiction.
Appellee has filed a motion to dismiss this appeal as untimely, and Appellant has filed an opposition thereto, along with a second motion for an extension of time to appeal. Whereas the first extension motion was addressed to the bankruptcy court, the second extension motion is addressed to the BAP.
Neither of the orders on appeal satisfy the separate document requirement (Fed.R.Civ.P.58), which is made applicable to final judgments and orders in adversary proceedings and contested matters by Fed.R.Bankr.P. 9021. See Mitchell v., Idaho, 814 F.2d 1404, 1405 (9th Cir. 1987) (holding that eight page "Memorandum and Order" discussing the facts and law of the case and detailing the court's reasoning failed to satisfy the separate judgment requirement). Where the separate document requirement has not been satisfied, the time limit for filing an appeal does not run. Id.; In re Bonham, 229 F.3d 750, 760 n. 3 (9th Cir. 2000).See also Corrigan v. Bargala, 140 F.3d 815, 818-19 (9th Cir. 1998) (holding that two-page order granting motion to dismiss lawsuit did not satisfy the separate document requirement, and that the requirement cannot be waived if such waiver would serve to defeat appellate jurisdiction).
Thus this appeal is not untimely. In fact, this appeal is premature. See Fed.R.Bankr.P. 8002(a) ("A notice of appeal filed after the announcement of a decision or order but before entry of the judgment, order, or decree shall be treated as filed after such entry and on the day thereof.") Once a final order in compliance with Fed.R.Bankr.P. 9021 has been entered, this appeal will become effective pursuant to Fed.R.Bankr.P. 8002(a), and thereafter this appeal can proceed.
It is Appellant's responsibility to take all steps necessary to ensure that the bankruptcy court enters an order in compliance with Fed.R.Bankr.P. 9021. Within forty-five (45) days, Appellant must file in the BAP Clerk's Office proof that the required order has been entered. Failure to do so may result in dismissal of this appeal for lack of prosecution. So long as the final order denying the revocation motion complies with Fed.R.Bankr.P. 9021, it is not necessary to obtain a further order on Appellant's prior reconsideration motion. See Hollywood v. City of Santa Maria, 886 F.2d 1228, 1231-32 (9th Cir. 1989).
Accordingly, Appellee's motion to dismiss is hereby ORDERED DENIED, and this matter is hereby ORDERED REMANDED for the limited purpose of enabling the bankruptcy court to enter an order in compliance with Fed.R.Bankr.P. 9021.
Appellant's second extension motion is hereby ORDERED DENIED. This court lacks authority to grant an extension time to appeal. That authority is given to the bankruptcy court.
I agree with Judges Perris and Klein that the motion to dismiss should be denied and also that the second extension motion be denied. I also agree that we should remand, but for an entirely different reason.
The July 9, 2002 order denying the trustee's motion clearly disposed of the matter, and contained a limited amount of extraneous material. Nothing could be more clear than the court's concluding sentence: "The trustee may administer [the condemnation proceeds]" Moreover, Appellant has not suggested that the entry of the July 9, 2002 order generated any confusion concerning the commencement of the ten-day appeal period.
Further, any such confusion (if it had existed) would have been relieved by the entry of the July 12, 2002 order denying the reconsideration motion. It was short and to the point. Under the caption "Discussion" the court stated appellant's contention, rejected it in one sentence, then quoted a section of the Bankruptcy Code. It then referred to the prior order, recited in one sentence another contention, and again referenced its prior order two more times, concluding with its denial of the motion. Therefore, I do not think there was a violation here of the separate document requirement. This was anything but a memorandum or an opinion. Brief explanatory sentences in the order do not render the order insufficient to satisfy the separate judgment requirement. See In re Schimmels, 85 F.3d 416, 421 (9th Cir. 1996).
I am mindful that Corricran v. Bargala, 140 F.3d 815 (9th Cir. 1998) and cases it cites instructs us not to invoke the separate judgment rule so as to defeat appellate jurisdiction. Id. at 818. But that would not happen here because the court retained jurisdiction to decide whether appellant was entitled to an extension of time to appeal under Fed.R.Bankr.P. 8002(c)(2) based upon excusable neglect. See Ruby v. Secretary of the Navy, 365 F.2d 385, 388 (9th Cir. 1966); Rutter Group, NINTH CIRCUIT CIVIL APPELLATE PRACTICE, at ¶ 3:410 (2002) (stating that an untimely or otherwise ineffective notice of appeal does not convey jurisdiction to the appellate court, so the trial court retains jurisdiction to proceed with matters otherwise properly before it). Even where the notice of appeal is effective, the trial court retains jurisdiction over some matters. See e.g. In re Ho, 265 B.R. 603, 604-05 (9th Cir. BAP 2001).
We should remand based on the court's erroneous belief that it lacked jurisdiction and instruct it to consider the merits of appellant's motion under the standards of Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd. P'Ship, 507 U.S. 380, 395 (1993). Its decision either granting or denying the requested extension would have been subject to appellate review.