Value Oil, Inc. v. Green River Dev. Assocs., Inc. (In re Value Oil, Inc.)
APPEAL
Unpublished
Debtor filed an adversary proceeding that was dismissed by the bankruptcy court based on debtor's failure to file a timely pre-trial order. Debtor's motion to set aside the dismissal order was denied by a minute entry that directed defendant to prepare an order for the court's signature. Debtor filed a notice of appeal prior to entry of a written order denying its motion. Under Bankruptcy Rule 8002, debtor's notice of appeal was untimely from the dismissal order, but debtor argued that the motion to set aside had tolled the appeal time, relying on Bankruptcy Rule 9023 (FRCP 59). The district court rejected debtor's characterization of the motion, concluding that the motion had been based on excusable neglect, and was therefore a motion under Bankruptcy Rule 9024 (FRCP 60(b)). Since Rule 9024 motions do not toll appeal time, debtor's notice of appeal was untimely with respect to the dismissal order. Additionally, as no separate order had been entered denying debtor's Rule 9024 motion, the district court held that it lacked jurisdiction to hear an appeal of that order under the separate document rule. The appeal was dismissed.