A&S Entertainment, LLC v. Florida Department of Revenue

USCA11 Case: 22-12048 Document: 29-1 Date Filed: 12/19/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12048
Non-Argument Calendar
____________________
In Re: A & S ENTERTAINMENT, LLC,
d.b.a. The Office
d.b.a. Club Pink Pussy Cat, Inc.,
Debtor.
___________________________________________________
A & S ENTERTAINMENT, LLC,
d.b.a. The Office,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF REVENUE,
USCA11 Case: 22-12048 Document: 29-1 Date Filed: 12/19/2022 Page: 2 of 6
2 Opinion of the Court 22-12048
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cv-20919-BB
____________________
Before WILLIAM PRYOR, Chief Judge, NEWSOM, and GRANT, Circuit
Judges.
PER CURIAM:
A & S Entertainment appeals an order dismissing as un-
timely its appeal of bankruptcy orders establishing the amount and
priority of a tax claim by the Florida Department of Revenue.
A & S did not appeal those orders for over seven months until the
bankruptcy court confirmed an amended reorganization plan.
A & S argues that the orders establishing the priority status and
amount of the tax claim by the Department were not final until the
bankruptcy court confirmed the amended reorganization plan, so
the appeal to the district court was timely. We disagree and affirm.
In April 2021, A & S filed a voluntary petition for bankruptcy
under Chapter 11 of the Bankruptcy Code. The Department sub-
mitted a proof of claim for $2,366,000.84 for sales and use tax and
alleged that $2,056,595.88 of the claim was entitled to priority. See
11 U.S.C. § 507(a)(8)(C).
USCA11 Case: 22-12048 Document: 29-1 Date Filed: 12/19/2022 Page: 3 of 6
22-12048 Opinion of the Court 3
A & S objected. It agreed the Department was entitled to the
full amount of its claim, but only as a general unsecured claim. Af-
ter Florida responded, the bankruptcy court held a hearing on the
objection. On June 18, 2021, the bankruptcy court entered a prior-
ity order sustaining in part and overruling in part the objection by
A & S. The bankruptcy court ruled that $1,880,110.31 of the claim
was a priority claim and $485,890.53 was a general unsecured
claim.
A & S moved for reconsideration. On August 23, 2021, after
holding another hearing, the bankruptcy court confirmed the pri-
ority order. A & S did not immediately appeal.
On September 20, 2021, A & S filed a plan of reorganization.
The proposed plan stated, “All General Unsecured Creditors other
than Class 2 Claim will share, pro-rata in a fund of money of
$1,000.00 per month for 36 months Plus 15% of the savings, if any,
from the Debtor’s appeal of the priority of the Class 1 creditor, [the
Department], which will be more fully defined in a subsequent fil-
ing.” On November 2, 2021, A & S amended the plan and removed
the appeal language. On March 11, 2022, after holding a hearing,
the bankruptcy court confirmed the amended reorganization plan
and stated that all classes of creditors required to vote accepted the
amended reorganization plan.
On March 25, 2022, A & S filed a notice of appeal from the
priority order, the reconsideration order, and the confirmation or-
der “as to the Priority status of the State of Florida, Department of
Revenue.” The Department moved to dismiss the notice of appeal
USCA11 Case: 22-12048 Document: 29-1 Date Filed: 12/19/2022 Page: 4 of 6
4 Opinion of the Court 22-12048
as untimely. The bankruptcy court denied the motion to dismiss
without prejudice because it lacked the authority to decide
whether an order was final for purposes of appeal. But it stated that,
if it had that authority, it would grant the motion to dismiss.
In the district court, the Department again moved to dismiss
the appeal as untimely as to the priority and reconsideration orders.
After A & S responded, the district court granted the motion and
dismissed the case for lack of jurisdiction. The district court ruled
that the priority and reconsideration orders were final orders for
purposes of appeal, so A & S was required to file a notice of appeal
within 14 days after the reconsideration order was entered.
Our jurisdiction to hear appeals extends only to “final” or-
ders by a district court reviewing a decision by a bankruptcy court.
28 U.S.C. § 158(d). If the district court lacked jurisdiction due to an
untimely appeal from a bankruptcy order, we will affirm the dis-
missal by the district court. In re Williams, 216 F.3d 1295, 1298
(11th Cir. 2000); see also Ritzen Grp., Inc. v. Jackson Masonry, LLC,
140 S. Ct. 582, 592 (2020).
Ordinarily, a final order “must end the litigation on the mer-
its, leaving nothing to be done but execute the judgment.” In re
Donovan, 532 F.3d 1134, 1136 (11th Cir. 2008). But in the bank-
ruptcy context, “finality is given a more flexible interpretation.” Id.A bankruptcy case “involves an aggregation of individual contro-
versies, many of which would exist as stand-alone lawsuits but for
the bankrupt status of the debtor.” Bullard v. Blue Hills Bank, 575
U.S. 496, 501 (2015) (internal quotation marks omitted). As a result,
USCA11 Case: 22-12048 Document: 29-1 Date Filed: 12/19/2022 Page: 5 of 6
22-12048 Opinion of the Court 5
“Congress has long provided that orders in bankruptcy cases may
be immediately appealed if they finally dispose of discrete disputes
within the larger case.” Id. (citation omitted).
To be final and appealable, the bankruptcy order must
“completely resolve all of the issues pertaining to a discrete claim,”
leaving nothing more for the bankruptcy court to do but execute
the judgment. In re Donovan, 532 F.3d at 1137 (citation omitted).
An order denying priority status to a creditor’s claim is “final” be-
cause it resolves a discrete dispute within the bankruptcy proceed-
ing. See Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547
U.S. 651, 657 n.3 (2006); In re Saco Loc. Dev. Corp., 711 F.2d 441,
448 (1st Cir. 1983) (majority opinion of Breyer, J.) (“[A]s long as an
order allowing a claim or priority effectively settles the amount due
the creditor, the order is ‘final’ even if the claim or priority may be
reduced by other claims or priorities.”).
To appeal a final bankruptcy order, a party must file a notice
of appeal within 14 days after the entry of the order. Fed. R. Bankr.
P. 8002(a); 28 U.S.C. § 158(c)(2). When a party files a timely motion
for reconsideration, the time to file a notice of appeal runs from the
date of the entry of the order disposing of the motion. Fed. R.
Bankr. P. 8002(b); 28 U.S.C. § 158(c)(2).
The district court did not err in dismissing the appeal be-
cause the priority and reconsideration orders were final and imme-
diately appealable orders. The objection by A & S to the priority
claim by the Department initiated a dispute, which the bankruptcy
court resolved by holding a hearing on the matter and ruling that
USCA11 Case: 22-12048 Document: 29-1 Date Filed: 12/19/2022 Page: 6 of 6
6 Opinion of the Court 22-12048
the Department had a valid priority claim. 11 U.S.C. § 507(a)(8)(C).
After holding another hearing on reconsideration, the bankruptcy
court confirmed the priority status and amount of the claim by the
Department. These orders settled and disposed of a discrete dis-
pute—what was owed to the Department—within the larger bank-
ruptcy case. Bullard, 575 U.S. at 501; In re Donovan, 532 F.3d at
1137. And because the orders were final and appealable on August
23, 2021, the March 25, 2022 notice of appeal by A & S was un-
timely by over seven months. Fed. R. Bankr. P. 8002(a), (b); 28
U.S.C. § 158(c)(2). We affirm the dismissal of the appeal as un-
timely.
AFFIRMED.