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In re Rivermeadows Associates

February 14, 1997

IN RE: RIVERMEADOWS ASSOCIATES, LTD., A CALIFORNIA LIMITED PARTNERSHIP, DEBTOR.
RIVERMEADOWS ASSOCIATES, LTD., A CALIFORNIA LIMITED PARTNERSHIP, APPELLANT,
v.
THOMAS M. FALCEY, TRUSTEE; THE EDMOND OPLER, JR. LIVING TRUST; THE PATRICIA ANN OPLER LIVING TRUST; EDMOND OPLER, JR., IN HIS INDIVIDUAL CAPACITY AND AS TRUSTEE OF THE RESPECTIVE TRUSTS; AND PATRICIA ANN OPLER, IN HER INDIVIDUAL CAPACITY AND AS TRUSTEE OF THE RESPECTIVE TRUSTS, APPELLEES.



Appeal from the United States Bankruptcy Court for the District of Wyoming Bankr. No. 95-20322-11

Before Pearson, Boulden, and Cornish, Bankruptcy Judges.

The opinion of the court was delivered by: Pearson, Bankruptcy Judge

PUBLISH

OPINION

The debtor in the above captioned chapter 11 case appeals an order of the Bankruptcy Court for the District of Wyoming dismissing an appeal to the United States District Court for that District under Wyoming Local Bankruptcy Rule 806 for failure to comply with procedures for completing the appeal process. For the reasons set out below, we conclude that the adoption of the local rule by the bankruptcy court and the district court's approval of the rule constitute an appropriate delegation to the bankruptcy court of the district court's power to dismiss an appeal for failure to prosecute it in a timely fashion. *fn1

JURISDICTION

A Bankruptcy Appellate Panel, with the consent of the parties, has jurisdiction to hear appeals from final judgments, orders and decrees of bankruptcy judges within this circuit. 28 U.S.C. § 158(a), (b)(1), (c)(1). As neither party has opted to have the appeal heard by the District Court for the District of Wyoming, they are deemed to have consented to jurisdiction. 10th Cir. BAP L.R. 8001-1(c). An order dismissing an appeal is considered a final order.

The Bankruptcy Appellate Panel may affirm, modify, or reverse a bankruptcy court's judgment, order, or decree, or remand with instructions for further proceedings. Findings of fact shall not be set aside unless clearly erroneous. Fed. R. Bankr. P. 8013; see First Bank v. Reid (In re Reid), 757 F.2d 230, 233-4 (10th Cir. 1985). The clearly erroneous standard does not apply to the bankruptcy court's conclusions of law. Conclusions of law are reviewed de novo. Pierce v. Underwood, 487 U.S. 552, 558 (1988).

Neither party challenges the jurisdiction of this Panel to review the bankruptcy court's order of dismissal.

FACTS

This case is unusual in that the appellant presents for consideration for the first time on appeal the question of the validity of the bankruptcy court's local rule under which the order appealed was entered. Since the bankruptcy court made no findings of fact in the order appealed, the Panel must look to the record designated by the parties to glean the surrounding facts. The facts are only sketched in the appellant's materials, and the Panel has relied upon the statements of fact by the appellees, the Appendix and the Supplemental Appendices. The facts are not in dispute.

The appellant, Rivermeadows Associates, Ltd.("Rivermeadows"), is a California limited partnership in a chapter 11 case presently pending in the United States Bankruptcy Court for the District of Wyoming. Rivermeadows is no longer a debtor-in-possession as appellee Thomas M. Falcey ("Falcey") was appointed as trustee. See In re Rivermeadows Assocs., Ltd., 185 B.R. 615 (Bankr. D. Wyo. 1995). Falcey and the other appellees, the Opler Parties who are creditors of Rivermeadows, reached an agreement concerning a real estate asset of the estate. *fn2 The bankruptcy court, after notice to creditors and a two day evidentiary hearing, approved that agreement over the objection of Rivermeadows. Rivermeadows appealed that decision to the United States District Court for the District of Wyoming. (Appeal I). The bankruptcy court dismissed Appeal I-apparently under the Local Rule 806 challenged in this appeal. Rivermeadows filed a motion to reconsider the dismissal. The bankruptcy court denied the motion in an order dated June 11, 1996.

On June 21, 1996, Rivermeadows filed an appeal of the June 11, 1996 order-(Appeal II) again to the United States District for the District of Wyoming. On July 3, 1996, the appellees moved to dismiss Appeal II under Local Rule 806. On July 10, the bankruptcy court entered an order dismissing Appeal II. On July 22, 1996, Rivermeadows ...


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