Blagg v. Miller ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 19 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
In re: JESSE DOYLE BLAGG;
LEASA DAWN BLAGG,
Debtors.
No. 98-5197
, (BAP Nos. NO-97-092 & NO-98-006)
(Bankr. No. 97-03510-R)
JESSE DOYLE BLAGG; LEASA (N.D. Okla.)
DAWN BLAGG; TY H. STITES,
Appellants,
v.
GERALD R. MILLER,
Appellee.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and HENRY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
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.
Through their attorney, Ty Stites, debtors in this bankruptcy case filed their
chapter seven petition in the Northern District of Oklahoma, alleging that venue
was proper in that district because the husband/debtor was employed there. The
bankruptcy court granted the trustee’s motion to dismiss for improper venue,
sanctioned Mr. Stites $500 for misrepresenting the law to the court, ordered him
to refile in the proper district and prosecute the case without further cost to
debtors, and further ordered him to pay the trustee’s reasonable fees and
expenses. Without affording Mr. Stites the opportunity to be heard on this latter
matter, the bankruptcy court eventually ordered him to pay the trustee $735.00 in
fees and $42.40 in expenses.
The debtors and Mr. Stites appealed all of these rulings to the Bankruptcy
Appellate Panel. That court affirmed both the dismissal of the case for improper
venue and the imposition of sanctions. It remanded, however, to allow Mr. Stites
to address issues surrounding the order to pay fees and expenses incurred by the
trustee. The debtors and Mr. Stites then appealed to this court.
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On October 29, 1998, the trustee filed a motion to dismiss the appeal for
lack of jurisdiction which we now grant. We conclude that the BAP order is not
final, and that we are therefore without jurisdiction to hear this appeal.
As mentioned above, the BAP remanded this case to the bankruptcy court
for further inquiry into the reasonableness of the trustee’s fee and cost request.
“[A] decision of the [BAP] on appeal from a bankruptcy judge’s final order is not
itself final if the decision remands the case to the bankruptcy judge for significant
further proceedings.” Homa Ltd. v. Stone (In re Commercial Contractors, Inc.) ,
771 F.2d 1373, 1375 (10th Cir. 1985) (quotation omitted). 1
[T]wo general principles regarding finality [are] well-settled in
this circuit, i.e. , (1) an order is not final unless it ends the litigation
on the merits, leaving nothing for the court to do but execute the
judgment and (2) a district court order is not final if it contemplates
significant further proceedings in the bankruptcy court.
Cascade Energy & Metals Corp. v. Banks (In re Cascade Energy & Metals
Corp.) , 956 F.2d 935, 938 n.2 (10th Cir. 1992) (citations omitted).
1
“Although one holding of the court in Commercial Contractors was
undercut by the Supreme Court in Connecticut National Bank v. Germain , 503
U.S. 249 . . . (1992), this court has held that Commercial Contractors ‘continues
to provide the test for the finality of district court decisions in bankruptcy
proceedings.’ Temex Energy, Inc. v. Underwood, Wilson, Berry, Stein & Johnson ,
968 F.2d 1003, 1005 (10th Cir. 1992).” Matsunaga v. Stoltenberg (In re Rex
Montis Silver Co. , 87 F.3d 435, 438 (10th Cir. 1996).
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Here, the BAP, in examining the fee/cost sanction noted:
The plain language of Rule 9011 requires that the court
independently analyze the reasonableness of the requested fees and
expenses. White [v. General Motors Corp. , 908 F.2d 675, 684 (10th
Cir. 1990)]. We note that the Trustee never requested nor obtained
approval of his employment as attorney for the Trustee as required by
11 U.S.C. § 327(a). We further question whether the actions taken
by the Trustee in filing the motions to transfer and dismiss required
the services of an attorney, or whether they could have been
performed in his capacity as trustee of the estate. Finally, we note
that Stites was not given the opportunity to respond to the attorney
fee request prior to the court’s approval. Because Debtors did not
have the opportunity to address these issues, we find it appropriate to
remand the matter and direct the bankruptcy court to reexamine the
Trustee’s fee request after permitting Stites to respond in writing to
the reasonableness of the requested fees.
Appellants’ Opening Br., Tab 7 at 16-17.
We conclude that this BAP remand order requires the bankruptcy court to
engage in “significant further proceedings” and is, therefore, not final for
purposes of appellate review. Where an order of the BAP “requires the
bankruptcy court to perform more than a mere ministerial duty, or if it involves
the exercise of considerable judicial discretion,” that order will not be considered
final. Matsunaga v. Stoltenberg (In re Rex Montis Silver Co.) , 87 F.3d 435, 438
(10th Cir. 1996) (quotation omitted) (holding that order imposing sanctions but
failing to consider expressly the White factors in determining amount of sanctions
was not final).
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APPEAL DISMISSED.
Entered for the Court
Wade Brorby
Circuit Judge
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