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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10325
Non-Argument Calendar
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D.C. Docket Nos. 2:16-cv-00653-JES; 9:08-bkc-16204-FMD
In Re: LAWRENCE N. PETRICCA, SR.,
Debtor.
_____________________________________________________
LAWRENCE N. PETRICCA, SR.,
Plaintiff-Appellant,
versus
DIANE L. JENSEN,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 22, 2018)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Lawrence Petricca, a Chapter 7 debtor proceeding pro se, appeals following
the district court’s December 2016 dismissal of his bankruptcy appeal for lack of
standing, which it issued after concluding that he was not a “person aggrieved” by
the bankruptcy court order on appeal.
By way of background, Petricca was granted a full Chapter 7 discharge in
2013. In 2014, the Chapter 7 Trustee filed a report of sale of bankruptcy estate
property, which indicated that the estate’s interests in certain trusts and civil
lawsuits were sold to a third party. Petricca filed objections to that report and the
underlying sale, which the bankruptcy court overruled. Petricca appealed that
order to the district court, which dismissed his appeal in 2015. Petricca did not
appeal that ruling to this Court.
In 2016, the Trustee filed a final report, which proposed distributions to
creditors and implicitly indicated that Petricca would not be receiving any proceeds
from the disposition of the estate. Petricca objected, arguing in relevant part that
the earlier sale of estate property deprived him of a “fresh start” because it was
likely to spawn litigation under state law. After the bankruptcy court entered an
order overruling the objections, Petricca filed a motion to vacate that order, which
the bankruptcy court denied. Petricca appealed that order to the district court. In
December 2016, the district court dismissed the appeal for lack of standing under
the “person aggrieved” doctrine.
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In the present appeal, Petricca now challenges that order, arguing that the
district court erred in determining that he was not a “person aggrieved” because the
bankruptcy court order deprived him of a “fresh start.” He also makes several
arguments related to the bankruptcy court’s earlier order overruling his objections
to the Chapter 7 Trustee’s sale of bankruptcy estate property, and its failure to
sanction and disqualify various parties. We first address the scope of our appellate
jurisdiction before proceeding to the merits of the district court’s dismissal for lack
of standing.
I.
We “sua sponte examine the existence of appellate jurisdiction and review
jurisdictional issues de novo.” United Steel, Paper & Forestry, Rubber, Mfg.,
Energy, Allied Indus. & Serv. Workers Int'l Union AFL-CIO-CLC v. Wise Alloys,
LLC,
807 F.3d 1258, 1266 (11th Cir. 2015). We have noted that a party is not
entitled to two appeals of the same underlying order. United States v. Arlt,
567
F.2d 1295, 1296-97 (5th Cir. 1978). 1
In a civil action, the appealing party must file a notice of appeal within 30
days of the entry of the judgment or order appealed from. Fed. R. App. P. 4(a).
The notice of appeal must “designate the judgment, order, or part thereof being
1
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this Court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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appealed.” Fed. R. App. P. 3(c)(1)(B). Satisfying this requirement is a
prerequisite to the exercise of appellate jurisdiction in a civil case. United Steel,
807 F.3d at 1266.
As an initial matter, Petricca makes several arguments on appeal that
challenge: (1) the bankruptcy court’s 2014 order overruling his objections to the
Chapter 7 Trustee’s sale of bankruptcy estate property; and (2) the bankruptcy
court’s failure to sanction or disqualify various parties. These arguments are
beyond the scope of our appellate jurisdiction, however. As to the order overruling
his objections to the sale, Petricca previously appealed that order to the district
court, which dismissed his appeal in 2015. That dismissal occurred in a separate
district court proceeding from the case below, and Petricca failed to appeal it to
this Court. Petricca is not now entitled to a second appeal of the bankruptcy
court’s order. Arlt,
567 F.2d at 1296-97. Moreover, any challenge to that order is
untimely because the district court entered it in 2015, and Petricca did not file the
present appeal until 2017. See Fed. R. App. P. 4(a).
As to Petricca’s challenges to the bankruptcy court’s failure to sanction or
disqualify various parties, neither Petricca’s notice of appeal from bankruptcy
court to district court, or from the district court to this Court, designated any order
denying sanctions or disqualification. We therefore lack appellate jurisdiction to
review these claims. United Steel, 807 F.3d at 1266.
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In light of the preceding, the scope of our appellate jurisdiction is limited to
Petricca’s appeal of the district court’s December 2016 order. That order
dismissed—for lack of standing—Petricca’s appeal from the bankruptcy court’s
denial of Petricca’s motion to vacate an earlier bankruptcy court order overruling
his objections to the Chapter 7 Trustee’s final report and request for compensation.
To the extent Petricca challenges the bankruptcy court’s 2014 order overruling his
objections to the Trustee’s sale, or its refusal to sanction or disqualify any party,
his appeal is DISMISSED.
II.
A person may appeal from a bankruptcy court’s order only if he is a person
aggrieved by the order. Westwood Cmty. Two Ass’n, Inc. v. Barbee (In re Westwood
Cmty. Two Ass’n, Inc.),
293 F.3d 1332, 1336-38 (11th Cir. 2002) ; see also Atkinson
v. Ernie Haire Ford, Inc. (In re Ernie Haire Ford, Inc.),
764 F.3d 1321, 1325 & n.
3 (11th Cir. 2014). “The person aggrieved doctrine limits the right to appeal a
bankruptcy court order to those parties having a direct and substantial interest in
the question being appealed.” In re Ernie Haire Ford, Inc., 764 F.3d at 1325
(quotation omitted).
The “person aggrieved” doctrine is more restrictive than traditional
Article III standing because it allows a person to appeal only when that person is
“directly and adversely affected pecuniarily” by the bankruptcy court’s order. In re
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Westwood Cmty. Two Ass’n, Inc.,
293 F.3d at 1335 (quotation omitted). “An order
will directly, adversely, and pecuniarily affect a person if that order diminishes
their property, increases their burdens, or impairs their rights.” Ernie Haire Ford,
Inc., 764 F.3d at 1325 (quotation omitted). In addition, “for a person to be
aggrieved, the interest they seek to vindicate on appeal must be one that is
protected or regulated by the Bankruptcy Code.” Id. at 1326.
In Ernie Haire Ford, we concluded that a defendant in an adversary
proceeding was not a person aggrieved by a bankruptcy court order that allowed
the adversary proceeding to continue. Ernie Haire Ford, Inc., 764 F.3d at 1324-27.
In that case, a Chapter 11 proceeding, the bankruptcy court had confirmed the
debtor’s second amended plan for reorganization (the “Second Plan”). Id. at 1323.
That Second Plan empowered a liquidating agent to sue any third parties alleged to
owe money to the bankruptcy estate, but only if suit was brought before the Second
Plan’s Litigation Bar Date. See id. at 1324. After the Litigation Bar Date had
passed, the liquidating agent named Benjamin Atkinson—a former creditor and
employee of the debtor—as a defendant in 16 adversary proceedings. Id. Atkinson
moved to enjoin the liquidating agent from proceeding with those claims on the
grounds that they were filed after the Litigation Bar Date. Id. The debtor then
filed a motion to modify the Second Plan to amend the definition of the Litigation
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Bar Date specifically to allow the adversary proceedings against Atkinson to
continue. Id.
The bankruptcy court granted the debtor’s motion and confirmed the
debtor’s third amended plan for reorganization, allowing the adversary proceedings
against Atkinson to continue. Id. Atkinson appealed to the district court, which
affirmed. Id. Atkinson then appealed to this Court. See id.
On appeal, we concluded that Atkinson was not a person aggrieved by the
bankruptcy court’s order. See id. at 1325-27. We explained that “a party is not
aggrieved, for the purposes of appealing from a bankruptcy court order, when the
only interest allegedly harmed by that order is the interest in avoiding liability from
an adversary proceeding.” Id. at 1325-26. We reasoned that “an order subjecting a
party to litigation, or the risk thereof, causes only indirect harm to the asserted
interest of avoiding liability.” Id. at 1326 (emphasis in original). This is because
“[o]rders allowing litigation to go forward do not burden a party’s ability to defend
against liability; they simply require parties to exercise that ability.” Id.
The filing of a bankruptcy case creates an estate, distinct from the debtor.
11 U.S.C. § 541(a). Property of that estate includes “all legal or equitable interests
of the debtor… as of the commencement of the case.”
11 U.S.C. § 541(a)(1). The
code allows the bankruptcy trustee to sell property of the estate and distribute the
proceeds to the estate’s creditors.
11 U.S.C. § 363(b). The benefit to the debtor is
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that an effective bankruptcy discharge extinguishes his personal liability.
11
U.S.C. §§ 524(a)(1), 727(b); Johnson v. Home State Bank,
501 U.S. 78, 83 (1991).
Here, the district court did not err in determining that Petricca lacked
standing under the “person aggrieved” doctrine. Although the interest Petricca
seeks to vindicate—receiving a “fresh start” by avoiding litigation related to assets
disposed of in the bankruptcy—is protected or regulated by the Bankruptcy Code,
see Myers v. TooJay’s Mgmt. Corp.,
640 F.3d 1278, 1286 (11th Cir. 2011), he has
failed to show that he will be “directly, adversely, and pecuniarily” affected by the
disposition of estate property. In re Ernie Haire Ford, Inc., 764 F.3d at 1325.
Petricca was granted a discharge in 2013, and the Trustee’s Final Report in 2016
indicated that he would not be receiving any distributions from the estate. Thus, it
was the bankruptcy estate’s property interests that were sold, and any future
litigation involving those interests would involve the estate, not Petricca, and
would be tied to the nature and extent of the estate’s ownership. Thus, Petricca has
suffered, at best, indirect harm to his interest in avoiding litigation, which is
insufficient to satisfy the “person aggrieved” standard. Id. at 1326. Accordingly,
we affirm the district court’s dismissal for lack of standing.
DISMISSED IN PART, AFFIRMED IN PART.
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