S.C. of Okaloosa, Inc. v. Sunnyside Timber LLC , 81 F. App'x 840 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS December 4, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30291
Summary Calendar
S.C. OF OKALOOSA, INC.,
Appellant,
versus
SUNNYSIDE TIMBER LLC; SUNNYSIDE LAND LLC;
WASHINGTON STATE BANCSHARES, INC.; D. CREIG BRIGNAC;
SUE S. BREIGNAC; FRANK BARNES; W. F. BARNES CORP.;
PAUL SIMS; REGIONS BANK N.A.; MERRILL LAND CO.;
BERNIE H. MERRILL; WILLIS C. MERRILL; J. COLLIER MERRILL,
Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(02-CV-2315)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
According to the parties, at issue is whether, under Louisiana
law, there was an enforceable settlement agreement in an adversary
action in the bankruptcy court. Instead, we lack jurisdiction.
In early 2002 the parties to this appeal were involved in
settlement discussions. Some thought an agreement had been
reached; others disagreed. Those who thought there was an
*
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this opinion should not be published and is not precedent except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.
agreement filed a motion to enforce it in the bankruptcy court. On
20 March 2002, the motion was granted. In so doing, the bankruptcy
judge stated:
For these reasons, I conclude ... that a
valid agreement of compromise was entered into
by and between those parties named, and
identified in the Memorandum of Settlement
attached to Mr. Durio’s letter of February 28,
2002, identified as Exhibit 8.
The settlement, however, is without
effect as to the Debtor, unless and until the
Court approves the settlement after notice and
a hearing.
(Emphasis added.)
This order is interlocutory. For a bankruptcy order to be
final, it must be either “a final determination of the rights of
the parties to secure the relief they seek, or a final disposition
of a discrete dispute within the larger bankruptcy case”. In re
Bartee, 212 F.3d 277, 282 (5th Cir. 2000) (quotation marks
omitted).
S.C. of Okaloosa, Inc. (S.C.) filed a notice of appeal with
the bankruptcy court on 9 April 2002. That same day, it filed a
motion for leave to appeal to the district court. It does not
appear this motion was filed in district court; instead, it appears
it was filed in bankruptcy court (28 U.S.C. § 158(a), governing
appeals to the district court from bankruptcy court, requires that
most interlocutory appeals can only be taken with leave of district
court).
2
The bankruptcy judge — apparently thinking that the motion for
leave to appeal was before him — signed an order on 16 April 2002
denying the motion. A few days later, he realized his error and
vacated the order (19 April).
The district court never ruled on the motion for leave to
appeal. Instead, it docketed the appeal in November 2002 and ruled
against S.C. on 27 January 2003, stating that it did so for the
reasons in the bankruptcy court’s 20 March 2002 ruling. We assume
that the district court gave valid, implied leave to S.C. to appeal
the bankruptcy court’s interlocutory order.
Our jurisdiction is controlled by 28 U.S.C. § 158(d). The
instant appeal presents a final district court order of a nonfinal
bankruptcy court order. Needless to say, we do not ordinarily have
jurisdiction over such orders. In re Phillips, 844 F.2d 230, 234
(5th Cir. 1988) (“Generally, in our circuit, for the courts of
appeals to have jurisdiction over an appeal, the underlying
bankruptcy court order must have been final.”).
Phillips recognized an exception to this general rule when the
final district court order “cured” the non-finality of the
bankruptcy court order. Id. at 234-35. The order granting the
motion to enforce a settlement agreement was interlocutory.
Therefore, at issue is whether the district court’s order cured
that nonfinality. If not, we lack jurisdiction. See id. at 235.
3
Because the district court order simply affirmed the
bankruptcy court, it could not have cured the interlocutory nature
of that order.
DISMISSED
4