Yigal Bosch v. Frost National Bank , 494 F. App'x 463 ( 2012 )

Case: 12-20135 Document: 00512015324 Page: 1 Date Filed: 10/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 10, 2012
No. 12-20135 Lyle W. Cayce
Summary Calendar Clerk
In the Matter of: 2646 SOUTH LOOP WEST LIMITED PARTNERSHIP; 201-
209 EAST MULBERRY, L.L.C.; YB & SJ ENTERPRISES, INCORPORATED;
MIDLAND WESTERN BUILDING, L.L.C.,
Debtors
------------------------------
YIGAL BOSCH,
Appellant
v.
FROST NATIONAL BANK; YB & SJ ENTERPRISES, INCORPORATED;
MIDLAND WESTERN BUILDING, L.L.C.; SHEINESS, SCOTT,
GROSSMAN & COHN, L.L.P.; BEIRNE, MAYNARD & PARSONS, L.L.P.; H.
MILES COHN, Esq.; TRENT L. ROSENTHAL, as the Former Chapter 11
Trustee of 2646 South Loop West Limited Partnership; TRENT L.
ROSENTHAL, P.L.L.C., as the Former Chief Restructuring Manager of 201-
209 East Mulberry, L.L.C.,
Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-cv-02587
Case: 12-20135 Document: 00512015324 Page: 2 Date Filed: 10/10/2012
No. 12-20135
Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
In this case, Appellant Yigal Bosch appeals the district court’s dismissal
of his appeal of multiple orders issued by the U.S. Bankruptcy Court for the
Southern District of Texas. Bosch also appeals the district court’s denial of a
motion for reconsideration. Because we find that the district court was correct
in dismissing Bosch’s appeal of the bankruptcy court’s orders and denying
reconsideration, either because the district court lacked appellate jurisdiction or
because it did not abuse its discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Bosch’s appeal arises from the bankruptcy proceedings of a limited
partnership, 2646 South Loop West Limited Partnership (“2646”), and three
wholly-owned subsidiaries of 2646. Bosch was the principal partner of 2646.
After the four entities filed individually for bankruptcy, the bankruptcy court
consolidated the cases on October 14, 2009. Over the next two years, the
bankruptcy court confirmed plans for reorganization of 2646 and two of the
subsidiaries, and dismissed the bankruptcy case of the third subsidiary. On July
8, 2011, Bosch filed a notice of appeal to the district court appealing five of the
bankruptcy court’s orders: a March 12, 2010 order modifying stay and providing
for adequate protection payments (“Order Modifying Stay”); a May 23, 2011
order confirming the joint reorganization of two of 2646’s subsidiaries
(“Confirmation Order”); and three orders, issued on June 27, 2011, approving the
compensation and reimbursement of expenses incurred by Sheiness, Scott,
Grossman & Cohn, L.L.P., a law firm which served as general counsel for the
three subsidiaries (“Fee Orders”). In addition, in his August 22, 2011
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
2
Case: 12-20135 Document: 00512015324 Page: 3 Date Filed: 10/10/2012
No. 12-20135
Appellant’s Brief, Bosch challenged other orders of the bankruptcy court that
were not raised in his notice of appeal, including the court’s appointment of a
trustee on July 22, 2009 and a January 11, 2011 order approving an unsecured
claim by a former tenant against 2646 (“Appellant’s Brief Orders”). The district
court dismissed Bosch’s appeal on November 28, 2011 and denied his motion for
reconsideration on January 27, 2012. This timely appeal followed.
STANDARD OF REVIEW
This Court has jurisdiction to hear appeals of “‘all final decisions of the
district courts,’ including final judgments in bankruptcy appeals.” Spencer Ad
Hoc Equity v. Idearc, Inc. (In re Idearc, Inc.), 662 F.3d 315, 318 (5th Cir. 2011)
(quoting 28 U.S.C. § 129). We review actions of the district court in its appellate
role for an abuse of discretion, Zer-Ilan v. Frankford (In re CPDC Inc.), 221 F.3d
693, 698 (5th Cir. 2000), but questions of law, including jurisdictional questions,
are reviewed de novo. Estate of Smith v. Comm’r, 429 F.3d 533, 537 (5th Cir.
2005).
ANALYSIS
I. Order Modifying Stay, Confirmation Order, and Appellant’s Brief Orders
Pursuant to Rule 8002(a) of the Federal Rules of Bankruptcy Procedure,
a notice of appeal from the bankruptcy court to the district court “shall be filed
with the clerk within 14 days of the date of the entry of the judgment, order, or
decree appealed from.” Fed. R. Bankr. P. 8002(a). A district court lacks
appellate jurisdiction when a notice of appeal is not timely filed. Arbuckle v.
First Nat’l Bank of Oxford (In re Arbuckle), 988 F.2d 29, 32 (5th Cir. 1993);
Robinson v. Robinson (In re Robinson), 640 F.2d 737, 738 (5th Cir. 1981).
Bosch did not file his notice of appeal until July 8, 2011, which was
untimely with respect to the bankruptcy court’s March 12, 2010 Order Modifying
3
Case: 12-20135 Document: 00512015324 Page: 4 Date Filed: 10/10/2012
No. 12-20135
Stay and its May 23, 2011 Confirmation Order.1 Similarly, the additional orders
challenged by Bosch in his August 22, 2011 Appellant’s Brief were issued more
than fourteen days before Bosch filed his July 8, 2011 notice of appeal, with the
latest of those orders issued on January 11, 2011. Accordingly, because it lacked
jurisdiction, the district court properly dismissed Bosch’s appeal from the
bankruptcy court with respect to these orders.
II. Fee Orders
Because the bankruptcy court’s Fee Orders were issued on June 27, 2011,
Bosch’s appeal of these orders complied with Rule 8002(a) and thus fell within
the appellate jurisdiction of the district court. Nonetheless, the district court
had discretion to dismiss Bosch’s appeal of the Fee Orders under Bankruptcy
Rule 8006. Rule 8006 provides that “[w]ithin 14 days after filing the notice of
appeal . . . the appellant shall file with the clerk and serve on the appellee a
designation of the items to be included in the record on appeal.” Fed. R. Bankr.
P. 8006. Although a district court should not “invariably dismiss” an appeal for
failure to comply with Rule 8006, In re CPDC, 221 F.3d at 698–699, it is
generally within the court’s discretion to do so. See Fed. R. Bankr. P. 8001(a)
(“An appellant’s failure to take any step other than timely filing a notice of
appeal does not affect the validity of the appeal, but is ground only for such
action as the district court or bankruptcy appellate panel deems appropriate,
which may include dismissal of the appeal.”); see also M.A. Baheth & Co. v.
Schott (In re M.A. Baheth Constr. Co.), 118 F.3d 1082, 1083–1084 (5th Cir. 1997)
1
Bosch’s claim that these orders were not final and could not be appealed until the
conclusion of the bankruptcy proceeding is unavailing. This circuit has long held that a
bankruptcy case “need not be appealed as a single judicial unit at the end of the entire
bankruptcy proceeding.” IRS v. Orr (In re Orr), 180 F.3d 656, 659 (5th Cir. 1999) (quotation
marks omitted). Instead, an order need only “constitute a final determination of the rights of
the parties to secure the relief they seek in [the] suit, or the order must dispose of a discrete
dispute within the larger bankruptcy case for the order to be considered final.” Id. (quotation
marks omitted).
4
Case: 12-20135 Document: 00512015324 Page: 5 Date Filed: 10/10/2012
No. 12-20135
(dismissing appeal for breach of Rule 8006). Bosch’s designation, which was
filed on July 26, 2011, did not comply with Rule 8006 because it was not filed
within fourteen days of the filing of the notice of appeal. Accordingly, it was
within the district court’s discretion to dismiss Bosch’s appeal.
Furthermore, in addition to failing to meet Rule 8006’s fourteen-day
requirement, Bosch has run afoul of Rule 8006 because of his failure to prepare
a proper record with respect to the Fee Orders. Specifically, Rule 8006 provides
that “[t]he record on appeal shall include the items so designated by the parties,
the notice of appeal, the judgment, order, or decree appealed from, and any
opinion, findings of fact, and conclusions of law of the court.” Fed. R. Bankr. P.
8006. Rule 8006 also states that “[i]f the record designated by any party
includes a transcript of any proceeding or a part thereof, the party shall,
immediately after filing the designation, deliver to the reporter and file with the
clerk a written request for the transcript and make satisfactory arrangements
for payment of its cost.” Id. It is thus the responsibility of the appellant to
ensure that the record on appeal includes relevant transcripts of the bankruptcy
court’s proceedings. See Pyramid Mobile Homes, Inc. v. Speake, 531 F.2d 743,
745–46 (5th Cir. 1976) (affirming dismissal of appeal for failure to obtain
transcript and noting that “[t]he responsibility for providing an adequate record
and insuring its timely transmittal rests squarely with appellant”). Bosch
requested that the bankruptcy court clerk prepare a transcript of the June 27,
2011 hearing at which the bankruptcy court considered the fees at issue, but no
such transcript appears in the record. By failing to secure a transcript of the
Fee Orders hearing, Bosch has not met his responsibility to prepare a proper
record, and insofar as we do not have a record of the hearing, Bosch has also
failed to produce a record that would enable us to assess the merits of the Fee
Orders.
5
Case: 12-20135 Document: 00512015324 Page: 6 Date Filed: 10/10/2012
No. 12-20135
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s dismissal of
Bosch’s appeal and its denial of reconsideration.
6