Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

MEMORANDUM^** 

Gertrude Doyel, pro se, appeals (1) the Bankruptcy Appellate Panel's (BAP) decision affirming the denial of Doyel's request for an extension of time to appeal the bankruptcy court's order lifting an automatic stay and from (2) the BAP's order denying Doyel's petition for rehearing.

BACKGROUND

Doyel filed for bankruptcy under Chapter 11 in November 1984 in the Bankruptcy Court for the District of Arizona. Appellees were secured creditors of Doyel's real property. They moved to terminate the automatic stay in effect pursuant to 11 U.S.C. § 362(a). On July 23, 1985 the district court entered judgment lifting the automatic stay which allowed appellees to purchase Doyel's real property at a trustee's sale.

Doyel did not file timely her notice of appeal of the July 23 judgment which was due by August 2, 1985. Doyel failed, also, to seek a stay of the judgment. On August 7, 1985 she moved for an extension of time to file the notice of appeal pursuant to Bankruptcy Rule 8002(c) alleging her attorney's excusable neglect. The bankruptcy court denied the application for extension of time on August 26, 1985. Doyel appealed the denial of an extension of time to the Bankruptcy Appellate Panel which affirmed the bankruptcy court on January 9, 1986. She then filed a motion for rehearing which was denied by the BAP February 26, 1986. Doyel filed two notices of appeal to this court on March 7, 1986; one from the January 9, 1986 BAP affirmance of the denial of an extension of time and one from the February 26, 1986 BAP order denying Doyel's motion for rehearing.

DISCUSSION

* Appeal from the January 9, 1986 Decision Affirming the

Denial of an Extension of Time to File a Notice of Appeal

Fed. R. App. P. 4(a) (1) provides that appeals in civil cases "shall be filed ... within 30 days after the date of entry of the judgment or order appealed from." Here, the notice of appeal to this court from the January 9, 1986 memorandum decision was filed March 7, 1986, more than 30 days beyond the date of the decision appealed from. Because the time limits for filing a notice of appeal are "mandatory and jurisdictional", Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264 (1978), the appeal from the January 9, 1986 decision is dismissed for lack of jurisdiction.

II

Appeal from the February 26, 1986 Order Denying Reconsideration

This appeal was filed on March 7, 1986, within 30 days of February 26, 1986, the date of entry of judgment, and is timely under Fed. R. App. P. 4(a) (1).

Contrary to appellees' contention that Doyel's appeal of the motion for reconsideration is moot because she failed to obtain a stay, we find it is not.

Where an order lifts the automatic stay, bankruptcy's mootness rule dictates that appellant's failure to obtain a stay moots the appeal. Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1423-24 (9th Cir. 1985). However, an exception to the general mootness rule is available when real property is sold to a creditor who is a party to the appeal when the sale is subject to statutory rights of redemption. In re Onouli-Kona Land Co., 846 F.2d 1170, 1173 (9th Cir. 1988).

Here, Doyel's real property was sold to appellees, Doyel's creditors and parties to the appeal. The sale was subject to Arizona's statutory rights of redemption. See 4A Ariz.Rev.Stat.Ann. Sec. 12-1281 (1982). The exception to the general mootness rule therefore applies to Doyel's appeal. The appeal is not moot. We proceed to consider the merits.

Doyel's petition for rehearing alleging her counsel's excusable neglect in failing to file timely the notice of appeal was denied by the BAP because it raised no new matter not fully considered by the panel.

This court reviews the denial of a motion for an extension of time to file a notice of appeal for abuse of discretion. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir. 1986) (per curiam) (Alaska Limestone) . The standard for determining excusable neglect is a strict one. Id. at 1411. The standard allows an extension of time only in " 'extraordinary cases where injustice would otherwise result.' " Id., (quoting Oregon v. Champion Int'l Corp., 680 F.2d 1300, 1301 (9th Cir. 1982)). "Inadvertence or mistake of counsel; does not constitute excusable neglect under this standard." Alaska Limestone, 799 F.2d at 1411 (citation omitted); see also Pratt v. McCarthy, No. 87-5540, slip op. at 7777-7778 (9th Cir. June 29, 1988) (Pratt) (no excusable neglect where defendant's five attorneys each assumed that one of the other four would file a timely notice of appeal, but no one checked to see that notice was filed).

Counsel's affidavit submitted in support of the application for extension of time to file an appeal states that he "was out of his office on vacation from July 23, 1985 until August 7, 1985, and was not aware that the Judgment had been signed by the Court until August 7, 1985, and therefore could not advise the Debtor of her right to appeal" (ER 16). These facts are neither unique nor extraordinary. To the contrary, vacations are routine. Counsel failed to explain why another attorney could not have prepared the simple one-page notice of appeal or why Doyel, in her lawyer's absence, was not advised of the vacation and put on notice the order may be forthcoming. A party has an independent duty to keep informed of the entry of final judgment. Alaska Limestone, 799 F.2d at 1412. Doyel's and her counsel's failure to keep informed is not excusable neglect under this strict standard. We find the BAP did not abuse its discretion by denying the motion for rehearing. See Pratt, No. 87-5540 slip op. at 7778; Matter of Estate of Butler's Tire and Battery Co., 592 F.2d 1028 (9th Cir. 1979) (counsel's ignorance of time limit and inability to contact client do not constitute excusable neglect).

We decline to award appellees attorney's fees. Each party will bear its own costs.

The appeal from the February 26, 1986 order is dismissed for lack of jurisdiction. The BAP's order entered February 26, 1986 denying the petition for reconsideration is affirmed.