* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 21 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
ASSET RESTRUCTURING FUND, L.P., Appellant,
v. FREDERICK J. SPITZ; HALCYON JANELL SPITZ; PAVE TECH, INC.,

Appellees.

_______________________________ ROBERT GARRETT; L. WINN HOLBROOK,

Trustees. No. 98-6430 (D.C. No. CV-98-149-T) (W.D. Okla.)

ORDER AND JUDGMENT *
Before EBEL , LUCERO , and MURPHY , Circuit Judges.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. SeeFed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. -2- Appellant Asset Restructuring Fund, L.P. appealed an adverse bankruptcy court decision to the federal district court. 1 The district court dismissed the appeal due to appellant’s delay in attempting to fi le an opening brief. Appellant now appeals the dismissal to this court. We exerci se jurisdiction pursuant to 28 U.S.C. §§ 158(d) and 1291. We affirm. The bankruptcy court record on appeal was transmitt ed to the district court on January 29, 1998. Consequently, pursuant to Loc al Rule 7.2(a) of the Western District of Oklahoma, appellant’s brief was due fif teen days later on February 13, 1998. See Fed. R. Bankr. P. 8009(a) (deferring to local rule ’s filing time limits). On July 29, 1998, the district court directed the p arties to inform it of the status of the appeal on or before August 7, 1998. An exte nsion of time was granted to appellant, and a joint status report was filed on August 14, 1998. Also on that date, appellant filed an application for leave to f ile an appeal brief out of time, to which was appended a proposed brief challenging the bankruptcy court’s order approving a sale of assets. The district court den ied leave to amend and dismissed the appeal.2 Because we affirm the district court’s decision to dismiss the appeal for

failure to prosecute, we do not address the distric t court’s alternative finding that the appeal was rendered moot by interim actions tak en by the bankruptcy court. -3- On appeal to this court, appellant argues (1) the b ankruptcy court erred because it did not require evidence showing the val ue of the assets to be sold, (2) the bankruptcy court’s order authorizing the sa le was not supported by sufficient evidence, (3) the bankruptcy court denie d appellant due process and a fair hearing, and (4) the district court erred indenying appellant leave to file a brief out of time and in dismissing the appeal. Unless we determine that the district court’s decis ion to dismiss the appeal was in error, we may not reach the merits of the un derlying bankruptcy order. We review the district court’s decision to dismiss the appeal for failure to prosecute for an abuse of discretion. See Nielsen v. Price , 17 F.3d 1276, 1277 (10th Cir. 1994). Appellant informed the district court that it had not filed its brief on time “for reasons attributable to . . . counsel aris[ing ] from health reasons.” Appellant’s App. at 37. Appellant offered no information or affidavits to support or explain why a brief could not have been filed ti mely or an extension requested. We have carefully reviewed the parties’ appendices and briefs. There is little in the record to warrant further discussion. Under th e circumstances, we find no abuse of discretion in the district court’s decision to dismiss the appeal. 2See Nielsen , 17 F.3d at 1277.-4-

The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge