* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. 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 file an opening brief. Appellant

now appeals the dismissal to this court. We exercise jurisdiction pursuant to

28 U.S.C. §§ 158(d) and 1291. We affirm.

The bankruptcy court record on appeal was transmitted to the district court

on January 29, 1998. Consequently, pursuant to Local Rule 7.2(a) of the Western

District of Oklahoma, appellant’s brief was due fifteen 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 parties to inform it of the status

of the appeal on or before August 7, 1998. An extension 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 file 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 denied 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 district court’s alternative finding that

the appeal was rendered moot by interim actions taken by the bankruptcy court. 

-3-

On appeal to this court, appellant argues (1) the bankruptcy court erred

because it did not require evidence showing the value of the assets to be sold,

(2) the bankruptcy court’s order authorizing the sale was not supported by

sufficient evidence, (3) the bankruptcy court denied appellant due process and

a fair hearing, and (4) the district court erred in denying appellant leave to file

a brief out of time and in dismissing the appeal.

Unless we determine that the district court’s decision to dismiss the appeal

was in error, we may not reach the merits of the underlying 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 timely or an extension requested. 

We have carefully reviewed the parties’ appendices and briefs. There is little in

the record to warrant further discussion. Under the circumstances, we find no

abuse of discretion in the district court’s decision to dismiss the appeal. 2 See

Nielsen , 17 F.3d at 1277. 
-4-

The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge