Harvey Friedman v. Melp, Ltd. ( 1996 )

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No. 95-2148
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In re: Melp, Ltd., a Missouri *
Limited Partnership, *
*
Debtor. *
*
------------------- *
*
Harvey A. Friedman, *
* Appeal from the United States
Appellee, * District Court for the
* Eastern District of Missouri.
v. *
* [PUBLISHED]
Melp, Ltd., a Missouri Limited *
Partnership; Davis & Davis, *
*
Appellants. *
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Submitted: March 29, 1996
Filed: April 2, 1996
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Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
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PER CURIAM.
After the Bankruptcy Court granted an application for attorney fees,
the District Court1 reversed as to fees incurred in defending another fee
award on appeal (the "appeal fees"), and remanded for further findings as
to other fees. Friedman v. Melp, Ltd. (In re Melp, Ltd.), 179 B.R. 636
(E.D. Mo. 1995). Melp, Ltd. and its attorneys, the law firm of Davis &
Davis, appeal only that part of the District Court's order reversing the
award of the appeal fees.
1
The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.
Although the parties do not discuss appellate jurisdiction in their
briefs, we are nonetheless obliged to consider it. See Lewis v. United
States, 992 F.2d 767, 771 (8th Cir. 1993). We conclude that the District
Court's order was not final. See 28 U.S.C. § 158(d) (1994) (limiting court
of appeals jurisdiction in bankruptcy cases to final orders). Even though
the District Court held that a portion of the requested fees--i.e., the
appeal fees--were not recoverable from the debtor's estate as a matter of
law, it vacated the entire fee award, and remanded the case for further
inquiry into whether the services for which the other fees were incurred
benefited the estate. See Broken Bow Ranch, Inc. v. Farmers Home Admin.
(In re Broken Bow Ranch, Inc.), 33 F.3d 1005, 1008 (8th Cir. 1994).
We therefore hold the appeal to be premature, and on that ground we
dismiss it, without prejudice to appellants' right to refile upon final
disposition of the fee application as a whole. Cf. Cochrane v. Vaquero
Invs., 76 F.3d 200, 204 (8th Cir. 1996) (involving bifurcated litigation
over exempt status of condominium; holding this court lacked jurisdiction
over appeal from decision on homestead exemption until district court
entered final decision on tenancy-by-entirety exemption).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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