110 Beaver Street v. Murphy

[Not for Publication - Not to be Cited as Precedent]
United States Court of Appeals
For the First Circuit
No. 00-1502
IN RE 110 BEAVER STREET PARTNERSHIP,
Debtor,
____________
110 BEAVER STREET PARTNERSHIP; JEFF BUSTER; PAUL MCGINTY;
MARTHA JEAN EAKIN,
Appellants,
v.
HAROLD B. MURPHY; GOFFE, INC; UNITED STATES TRUSTEE; WALTHAM,
CITY OF; SIDNEY J. CRONSBERG; BALLET SHOP OF NE; ACTIVE VIDEO,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
David J. Fine, with whom Dangel & Fine, LLP, was on brief,
for appellants.
Andrew G. Lizotte, with whom Harold B. Murphy and Hanify &
King, P.C., were on brief, for appellee Murphy.
John J. Monaghan, with whom Paul Killeen, Lynne B. Nowak
Xerras, Daniel K. Hampton, and Holland & Knight LLP, were on
brief, for appellee Goffe.
A. Hugh Scott, with whom Robert M. Buchanan, Jr., Douglas
R. Gooding, and Choate, Hall & Stewart, were on brief, for
intervenor Choate, Hall & Stewart.
June 26, 2001
Per curiam. In this appeal, the 110 Beaver Street
Partnership and the Partnership's partners, individually and in
their capacity as partners, take issue with the district court's
rejection of their challenges to certain orders issued by the
bankruptcy court during the Partnership's attempt to reorganize
under Chapter 11 of the Bankruptcy Code.1 Specifically, insofar
as is relevant, appellants contend that the district court erred
in reaching the following four conclusions: (1) appellants'
appeal of the appointment of a Chapter 11 trustee was untimely,
(2) appellants effectively waived their right to appeal the
bankruptcy court's allowance of certain professional fee
applications by failing to lodge timely objections to the
applications in the bankruptcy court, (3) the bankruptcy court
did not clearly err in denying the Partnership's motion to
employ as its counsel David J. Fine, Esq., and (4) the
bankruptcy court acted lawfully in declining on several
occasions to hear argument on behalf of the Partnership from Mr.
Fine.2
1
The attempt at reorganization was unsuccessful and the
bankruptcy court eventually converted the case to a Chapter 7
proceeding.
2In their brief, appellants also challenged the district
court's affirmation of the bankruptcy court's denial of their
Bankruptcy Rule 9024 and Fed. R. Civ. P. 60(b)(3) motion for
relief from the October 8, 1997 order permitting foreclosure on
the Partnership's principal asset. At oral argument, however,
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We have given careful consideration to appellants'
arguments and are of the opinion that they fail to undermine the
reasoning which led to these four conclusions, which is cogently
set forth in the district court's February 11, 2000 memorandum
of decision. That being the case, we will not reinvent the
wheel. We affirm the district court's judgment largely on the
basis of the district court's memorandum of decision, e.g.,
Mullin v. Raytheon Co., 164 F.3d 696, 699 (1st Cir.), cert.
denied, 528 U.S. 811 (1999), adding only the following
qualifications and elaborations:
1. We reject appellants' suggestion that it is an open
question in this circuit whether the appointment of a Chapter 11
trustee is a final and immediately appealable order.
Notwithstanding its idiosyncratic facts, we think that In re
Plaza de Diego Shopping Center, Inc., 911 F.2d 820 (1st Cir.
1990), clearly establishes, as a general rule, that the
appointment of a Chapter 11 trustee is "a final decision of a
significant and discrete dispute . . . [which] is appealable,"
id. at 826. The district court was duty-bound to apply this
precedent, as is this newly-constituted panel. E.g. United
States v. Owens, 167 F.3d 739, 754 n.7 (1st Cir.), cert. denied,
appellants explicitly dropped their challenges to this ruling.
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528 U.S. 894 (1999). Appellants remain free, of course, to
petition the en banc court to revisit the matter. See id.
2. Appellants do not contend that they are entitled
to ask for appellate review even if they failed to lodge an
objection to the fee applications they now seek to challenge.
Rather, they make two arguments: (a) the Partnership's December
12, 1997 motion to postpone the adjudication of the pending fee
applications, filed by Attorney Fine as "Proposed Counsel for
Debtor" on the day objections were due,3 was a de facto objection
to the fee applications, and (b) the bankruptcy court
effectively deprived them of the opportunity to object to the
fee applications by failing to rule either on the aforesaid
motion to postpone or the Partnership's December 8, 1997 motion
to employ Attorney Fine as counsel prior to issuing its order
allowing the fee applications. Both arguments lack merit.
As appellants appear to recognize, see Appellants'
Brief at 45, an efficacious opposition requires the presentation
of "evidence and legal authorities which will be of aid to the
court in making its decision." In re Malmart Mortg. Co., Inc.,
166 B.R. 499, 503 (D. Mass. 1994). The Partnership's motion to
3The original due date for objections was December 5, 1997,
but the bankruptcy court extended the deadline to December 12,
1997 when it allowed the Partnership's untimely December 8, 1997
motion for a one-week extension.
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postpone contained no such presentation. Indeed, the motion
implicitly acknowledged that it was not an objection when it
stated: "It is beyond the scope of this motion to describe the
Debtor's view [as to why one of the fee applications should be
denied] and the grounds for that view in any detail." Given
this statement, appellants' first argument is difficult to
comprehend.
Appellants' second argument fares no better. We think
it obvious that a party cannot unilaterally push back a case
management due date by filing a motion to extend the deadline
(which was, in effect, the relief sought by the motion to
postpone) on the due date itself. Similarly, if the Partnership
saw the retention of counsel as a prerequisite to filing a
timely objection to the fee application, it should have so
advised the bankruptcy court explicitly. The Partnership's
generic motion to employ counsel, filed three days after the
expiration of the original deadline and four days before the
extended deadline, fell well short of doing so.
3. To the district court's convincing explanation for
rejecting appellants' assignment of error with respect to the
motion to employ Attorney Fine, we add only that appellants do
not contradict the Trustee's assertion, see Trustee's Brief at
22-23, that Attorney Fine represents Paul McGinty, who has
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asserted claims against the Partnership. Attorney Fine
obviously cannot simultaneously represent the Partnership and
one of its creditors. See Rome v. Braunstein, 19 F.3d 54, 57-58
(1st Cir. 1994).
4. Finally, we have scrutinized the portions of the
record cited by appellants in support of their argument that the
bankruptcy court improperly prevented Mr. Fine from speaking on
behalf of the Partnership but see no factual basis for the
argument. And even if there were such a basis, it does not
appear that appellants brought the alleged error to the
attention of the bankruptcy court. The argument therefore is
waived. E.g., In re Rauh, 119 F.3d 46, 51 (1st Cir. 1997).
Affirmed. Costs are awarded to appellees.
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