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In re National Century Financial Enterprises

March 23, 2007

IN RE: NATIONAL CENTURY FINANCIAL ENTERPRISES, INC., ET AL.,


The opinion of the court was delivered by: Judge Gregory L. Frost

OPINION & ORDER

This matter comes before the Court for consideration of motion for leave to file an appeal (Doc. # 4) filed by Appellant Biomar Technologies, Inc. ("Biomar"), a memorandum in opposition (Doc. # 5) filed by Appellee the Unencumbered Assets Trust ("Trust"), and a reply. (Doc. # 6). For the reasons that follow, this Court denies Biomar's motion. (Doc. # 4).

A. Background

In its April 18, 2006 Opinion and Order, the United States Bankruptcy Court for the Southern District of Ohio, Eastern Division, entered judgment against Biomar on the Trust's complaint and objection to claim. Pursuant to 8002(a) of the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules"), Biomar had 10 days thereafter in which to file a timely notice of appeal. It is undisputed that counsel for Biomar contacted Biomar as soon as counsel received notice of Bankruptcy Court's judgment. It is also undisputed that Biomar's counsel did not file a notice of appeal within those ten days. On May 16, 2006, 28 days after judgment, Biomar filed a motion to extend the time for filing notice of appeal pursuant to 8002(c) of the Bankruptcy Rules. Section 8002(c) authorizes such an extension pursuant to a timely motion and a showing of excusable neglect. On May 17, 2006 Biomar filed an amended motion and an untimely notice of appeal. The Trust opposed the amended motion and separately moved to strike the second notice of appeal.

On July 19, 2006 the Bankruptcy Court issued an Opinion and Order granting the Trust's motion to strike and denying Biomar's motion for extension of time to file an appeal. The Bankruptcy Court found that Biomar failed to establish grounds that would constitute excusable neglect under Section 8002(c).

On July 28, 2006, Biomar timely filed a notice of appeal of the Bankruptcy Court's July 19, 2006 Opinion and Order pursuant to Bankruptcy Rule 8002(c)(2). On August 28, 2006 Trust filed a written statement of election to District Court.*fn1 Subsequently, on October 18, 2006 the Bankruptcy Appellate Panel of the Sixth Circuit issued an order striking the notice of appeal for lack of jurisdiction and transferred the instant appeal to this Court.

In the present action, Biomar requests that this Court reverse the Bankruptcy Court's finding by granting Biomar leave to file notice of its appeal.

B. Issue Presented

This case presents the following issue to the Court: did the Bankruptcy Court abuse its discretion in denying Biomar's motion for an extension of time to file an appeal based on its finding that Biomar's failure to file a timely notice of appeal was not the result of excusable neglect.

C. Jurisdiction and Standard of Review

A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1), which provides that "[t]he district courts of the United States shall have jurisdiction to hear appeals . . . from final judgments, orders, and decrees . . . of bankruptcy judges."

28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Allied Domecq Retailing USA v. Schultz (In re Schultz), 254 B.R. 149, 151 (B.A.P. 6th Cir. 2000); (quoting Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989) (citations omitted)). As in the present case, "[a]n order denying a motion for extension of time to file a notice of appeal pursuant to Fed. R. Bankr. P. 8002(c)(2) is a final order." Schultz, 254 B.R. at 151 (quoting Belfance v. Black River Petroleum, Inc. (In re Hess), 209 B.R. 79, 80 (B.A.P. 6th Cir. 1997)). Thus, because this appeal lies from a final judgment, §158(a)(1) vests this Court with jurisdiction over the matter.

Denial of a motion for extension of time to file a notice of appeal is reviewed for abuse of discretion. See, e.g., Schultz, 254 B.R. at 151. "A court has abused its discretion if the reviewing court has a definite and firm conviction that the trial court committed a clear error of judgment in the conclusion that it reached based on all of the appropriate factors." Schultz, 254 B.R. at 152 (quoting Hess, 209 B.R. at 80). The Sixth Circuit has also phrased the test for abuse of discretion as: "[t]he question is not how the reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court's decision; if reasonable persons could differ as to the issue, then there is no abuse of discretion." Shultz, 254 B.R. at 152 (citing Barlow v. M.J. Waterman & Assocs., Inc. (In re M.J. Waterman & Assocs., Inc.), 227 F.3d at 608).

The meaning of excusable neglect is a question of law that is subject to de novo review. Schultz, 254 B.R. at 151. De novo review requires this Court to review questions of law independent of the Bankruptcy Court's determination. Id.

D. Discussion

Biomar argues that its neglect is excusable for several reasons. First, Biomar admits to its ignorance of the Bankruptcy Rules regarding the amount of time it had to file a notice of appeal. Second, Biomar acknowledges that filing notice of an appeal is a simple task. It argues, however, that the complexity of the issues both legally and factually led it to immediately focus on the merits of its appeal and not the amount of time it had to file notice. Biomar also mentions that counsel and the client reside three time zones away, which allegedly made it difficult to communicate with one ...


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