United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT

No. 97-6055

In re: Food Barn Stores, Inc. * * Debtor *

* Hartford Casualty Insurance Co. * * Appeal from the United State s Appellant * Bankruptcy Court for the

* Western District of Missouri vs. * * Food Barn Stores, Inc. * * Appellee *

Submitted: September 30, 1997 Filed: November 14, 1997

Before KRESSEL, SCHERMER, and SCOTT SCOTT, Bankruptcy Judge

I

Har tford Casualty Insurance Company (“Hartford”) appeal s froman order denying a motion to extend the time for filin g a Notice of Appeal. Inasmuch as the bankruptcy court did not cl early err in its determination that the appellant failed to show excusable neglect, we affirm.Although the Notice of Appeal was submitted to the clerk for filing, it was apparently 1 later “withdrawn.” The Notice of Appeal in the record has VOID written across the clerk's file stamp. Thus, it does not appear that there is a valid Notice of Appeal filed in the bankruptcy case. 2 Food Barn Stores, Inc. ( “Food Barn”) filed its Chapter 11 petition in bankruptcy on January 5, 1993. Hartford timel y fi led its proof of claim in the case on January 22, 1993. On the same date, Hartford's counsel filed a Request for Notic e and En try of Appearance. Hartford thereafter was properl y served with all objections, motions, and notices, at th e address on the Request for Notice.

On A ugust 31, 1994, the debtor filed a Motion to Den y Claims

. This motion contained objections to numerous claim s filed by various creditors, includ ing the Hartford claim. The Mo tion included a notice of a hearing date, October 20, 1994, and advi sed that a response to the motion should be filed a t least five days prior to the date set for hearing. Hartford's attorn eyreceived the motion but, apparently not realizin g that the motion contained an objection to its claim, took n o action in response to the motion. On October 20, 1994, n o response having been filed, and no one appearing at hearing on behalf of Hartford, the bankruptcy court entered an orde r sustaining the objection to Hartford's proof of claim.
Twenty -sevenmonths later Hartford filed a Motion fo r Reconsideration of the October 20, 1994, order disallowing its cl aim. Hearing was held and the motion was denied mainly due to Hartford's failure to show excusable neglect in no t defend ing its proof of claim. Hartford then moved fo r recons iderationof the order denying reconsideration of th e October 20, 1994, order. This mot ion was also denied by order enteredJune 6, 1997. It was not until June 17, 1997, however , that Hartford submitted a Notice of Appeal of the June 6, 1997 , Order. On that sam e date it also filed a Motion for Leave to

13

Fi le Notice of Appeal out of Time. That motion was denied in a brief order entered on June 23, 1997. Hartford timely filed it s Notice of Appeal from this order three days later. It is the order denying Hartford's Motion for Leave to File Notic e of Appeal Out of Time that is before this Court.

II4

This Court reviews the bankruptcy court's findings of fa ct for clear error and reviews legal conclusions de novo . Fed

. R. Bankr. Proc. 8013; First Nation al Bank of Olathe v. Pontow , 111 F.3d 604, 609 (8 Cir. 1997). While the meaning o f th "excus able neglect" is a question of law, whether excusabl e neglect exists is a question of fact and thus the trial court' s fin dings may be reversed only if they are clearly erroneous

. Cf

. Belfance v. Black River Petroleum, Inc. ( In re Hess ), 209 B.R. 79, 80 (BAP 6th Cir. 1997).

III
Rule 8002(a), Federal Rules of Bankruptcy Procedure , requires that a Notice of Appeal be filed within ten days o f
en tryof the order from which an appeal is taken. Once th e ti me for filing an appeal has expired, "an appellate court is wi thout authority to exercise its jurisdiction." Vogelsang v. PattersonDental Co. , 904 F.2d 427, 429 (8th Cir. 1990); accor d Crockett v. Lineberger , 205 B.R. 580, 581 (8 Cir. BAP 1997). th Howeve r, Rule 8002(c) provides that the bankruptcy court ma y enlarge the time for filing a notice of appeal “for a perio d not to exceed 20 days from the expiration of the time otherwis e prescribed.” The rule also permit s, in most circumstances, an untimely

request--one made after the time for filing the notic e of appeal--upon a showing of excusable neglect.
Hartford argues that the bankruptcy court erred in faili ng to und ertake an equitable analysis as required by Pionee r In vestment Services Company v. Brunswick Associates Limite d Partnership , 113 S. Ct. 1489 (1993), and that excusable neglec t ex isted. Specifically, it asserts that the failure to timely fi le the notice of appeal was due solely to counsel's mistake incalculating the time under Rule 6(a) of the Federal Rule sUnder the Federal Rules of Civil Procedure holidays and weekends are not taken into 2 account in calculating a time period less than eleven days. In contrast, under the Federal Rules of Bankruptcy Procedure holidays and weekends are excluded in calculating any time period of less than eight days. Since the ten-day period for filing an appeal falls between these two methods of calculation, whether Rule 6(a) of the Federal Rules of Civil Procedure or Rule 9006 of the Federal Rules of Bankruptcy Procedure applies makes a difference.
5 of Civil Procedure, rather than Rule 9006(a) of the Federa l Rules of Bankruptcy Procedure. 2Inasmuch as it is well-settled that Rule 9006 applies rather than Rule 6(a), Fed. R. Civ. 3 Proc. 81(a)("These rules...do not apply to proceedings in bankruptcy..."); e.g. , Aycock v. Eaton ( In re Eichelberger ), 943 F.2d 536, 538-39 (5th Cir. 1991), Hartford prudently did not pursue this argument on appeal. 6 In Pioneer Investment Services Company v. Brunswic k Associ ates Limited Partnership , 113 S. Ct. 1489 (1993), th e Supreme Court addressed the burden s and standards a party must meet when seeking a determination of excusable neglect. Whethe r a party's neglect of a deadline is excusable is an equitabl e de termination, "taking account of all the relevan t circumstances surrounding the part y's omission." Id . at 1498. Factors for consideration include: (1) The danger of prejudice to the debtor; (2) The length of the delay and its potential impact o n judicial proceedings; (3) The reason for the delay, including whether it wa s within the reasonable control of the movant; and (4) Whether the movant acted in good faith. Pioneer Investment , 113 S. Ct. at 1498. The proper focus i s upon whether the neglect is excusable. Id. at 1499.
While all of these factors are to be analyzed by th e Court, it is first the movant's burden to demonstrate to th e tr ial court that excusable neglect exists. McGraw v. Betz ( In re Bell & Beckwith ), 112 B.R. 879, 880 (N.D. Ohio 1990)

. Hartford's motion before the bankr uptcy court, however, stated onlythat it was unclear whether Rule 9006, Federal Rules o f Bankru ptcyProcedure, or Rule 6(a), Federal Rules of Civi l Proce dure, applied, and that Hartford's counsel, i n 3 calend aring, relied on Rule 6(a) rather than Rule 9006

. Hartford made no argument raising the equitable factors it now
asse rts before this Court. By failing to even argue thes e fa ctors before the bankruptcy court, Hartford failed to meets its burden of demonstrating excusable neglect.7

Moreover, we find, in ex amining the Pioneer factors, that the bankruptcy court did not err in its determination tha t ex cusable neglect did not exist. Like the bankruptcy court's
ear lier determination of May 8, 1997, there is no indicatio n of bad fai th on the part of Hartford or a lengthy delay i n filing this motion. However, the remaining factors weigh8

he avily against a finding that the neglect is excusable. Cf. Pyramid Energy Limited v. Duquoin National Bank ( In re Pyramid En ergy Limited ), 165 B.R. 249 (Bankr. S.D. Ill 1994)(although many factors weighed in favor of excusable neglect, where dela y wa s in control of party, no excusable neglect existed). I n this instance delay was solely wit hin the control of Hartford. It was Hartford's responsibility to review the rules, ascertai n the correct date for filing the Notice of Appeal, and to timel y fi le the Notice of Appeal. There was no reason offered other thanneglect for its failure to do these acts. Indeed , Ha rtfordapparently located the relevant rule regarding tim e to file an appeal from a bankruptc y court order in the logical place, the Federal Rules of Bankruptcy Procedure, but there is
no e xcuse offered for not locating the procedure to follo w re garding the proper calculation of time for taking an appeal within the same set of rules.

Cour ts have long held, both prior to and after Pioneer , tha t ignorance or misreading of the law, particularly in th e app licationof Rule 8002(c), does not constitute excusabl e neglect

. Silver Oak Homes, Ltd , 169 B.R. 349 (D. Md

. 1994)(unfamiliaritywith bankruptcy and reliance upon th e Federa l Rules of Civil Procedure is not excusable neglect) ; Roma s v. Callahan( In re Callahan ), 211 B.R. 131 (N.D.N.Y

. 19 97)(confusionover "proper procedure" is not excusabl e neglect); Pyramid Energy, Ltd. v. Duquoin National Bank ( In re Pyrami dEnergy, Ltd. ), 165 B.R. 249 (Bankr. S.D. Ill

. 1994)(confusion as to whether to e xclude holidays and weekends is not excusable neglect); In re Auto Specialties MFG Co. , 133 B. R. 384, 391-392 (Bankr. W.D. Mich. 1991); Thistlethwaite v. Fe deral Deposit Insurance Corp. ( In re Pernie Bailey Drilling Co. ), 111 B.R. 561 (Bankr. W.D. La. 1989); Federal Land Ban k of Columbia v. Fisher ( In re Fishe r ), 65 B.R. 261 (Bankr. N.D. Ga. 19 86); Speciner v. Miller (In re Miller) , 59 B.R. 57 29

(B ankr. E.D.N.Y. 1986); Tyler v. Capitol Chemical Industries, Inc. ( In re Metro Paper Co. ), 18 B.R. 831 (Bankr. D.D.C. 1982)

. Moreover, as noted by th e court in Duquoin , 165 B.R. 249, Pion eer does not, in fact, furnish relief for the error o f applyi ng an incorrect rule: "The Pioneer court, in assessin g th e culpability of counsel's actions, gave `little weight' to the fact that counsel was experiencing upheaval in his la w prac tice at the time of the bar date....Further, the cour t in dicated that ignorance of the rules or a mistake i n construing the rules does not constitute 'excusable10

ne glect' even under the liberal standard there espoused. 113 S. Ct. at 1496." See also Harlow Fay, Inc. F. Federal lan d Bank of St. Louis ( In re Harlow Fa y, Inc. ), 993 F.2d 1351 (8th Cir. 1993), cert. denied , 510 U.S. 825 (1993).

As to the remaining factor Hartford merely offers it s legal conclusion that no prejudice results, but fails to offer anysp ecific, factual argument regarding this element. Th e recordis not silent, however, on this point inasmuch as th e bankru ptcycourt, in its earlier order of May 8, 1997 , addressed the prejudice to the deb tor if the litigation on the
now almost three year old objection to Hartford's proof o f claim were to go forward. In light of the passage of time i n this case and litigation which would remain before the ultimat e concl usionof this matter, the prejudice not only to th e debt or, but to other creditors, as well as to th e administration of the case, is obv ious. Since the time of the disallowance of the claim in October of 1994, the debtor ha s liquid atedits assets and destroyed its books and records , in cluding documents relating to the claims resolution process anddocuments relating to Hartford's proof of claim. Th e de btor would be thus severely limited in its ability, at this late date, to prosecute the objection to claim. Moreover , distributionunder the plan of reorganization commenced and ha s progres sed such that it appears that the plan may b e su bstantiallyconsummated. Since there is no indication tha t Ha rtford obtained a stay of the reorganization process, it is
even questionable whether, by the time Hartford is able t o obtain a hearing on the objection its claim, there would exist any funds for distribution to it.
Second, we do not believe the bankruptcy court "erred in failin g to undertake an equitable analysis." Although th e bankruptcy court's order is brief, the record reveals that the bankru ptcycourt undertook the appropriate analysis. In it s11

order of May 8, 1997, decided less than two months prior to th e order at issue, the bankruptcy court thoroughly analyzed th e Pioneer standard. Thus, the record demonstrates that the tria l court wa s well aware of the required analysis. A reading o f the bankruptcy court's citation to authority in the order o f Ju ne 23, 1997, also indicates that it not only considered the facts of this case and the relevant law, but also undertook th e appropriate analysis.
Lastly, although not an issue raised by the appellee, we note that this appeal may be moot. The Federal Rules o f Bankruptcy Procedure, as currently written, provide:This result will be obviated by amendment to Rule 8002(c) which will be effective 4 December 1, 1997. Under this amendment, the bankruptcy judge will have the authority to extend the time for filing a notice of appeal for up to ten days following the order granting the motion. 12

Th e bankruptcy judge may extend the time for filin g the notice of appeal by any party for a periodnot to ex ceed20 days from the expiration of the tim e otherwise prescribed by this rule.

Fe d. R. Bankr. P. 8002(c). Even if we were to agree with the appellant and reverse the decision of the bankruptcy court, th e maximum relief that the bankruptcy court could grant under the
ru le would be to extend the time to timely file a notice o f appea l to July 7, 1997. Since that time has long passed , neither this court nor the bankrup tcy court can issue an order providing meaningful relief such that this appeal is moot. 4

IV
The bankruptcy court's d etermination that Hartford failed to show excusable neglect with regard to Hartford's motion to extend the time for filing a Notic e of Appeal under Rule 8002, Fe deral Rules of Bankruptcy Procedure was not clearl y erroneous. Accordingly, we affirm.
A true copy.

Attest:

CLER K, U.S. BANKRUPTCY APPELLATE PANEL FOR TH E EIGHTH CIRCUIT