United States District Court, S.D. Florida
FRANCISCO R. AMADOR and EDUVINA I. AMADOR, Appellants,
JACQUELINE CALDERIN, Appellee.
Francisco R. Amador, pro se
Eduvina I. Amador, pro se
G. COOKE United States District Judge
MATTER is before me upon Debtor's Motion For Leave to
Appeal Filed Pursuant to FRBP 8003 and 8004
(“Appellants' Motion”) (ECF No. 1). I have
carefully considered Appellant's arguments,
Appellee's Response in Opposition to Debtor's Motion
for Leave to Appeal (ECF No. 5), Appellants' Reply (ECF
No. 8), the record, and relevant legal authorities. The
matter is now ripe for review.
seek leave to appeal an order of the bankruptcy court
granting Appellants' motion to dismiss their bankruptcy
case on the condition they pay the reasonable attorneys'
fees of the bankruptcy trustee, the Appellee in the instant
case. See Order, ECF No. 1, p. 17- 18. The order
specifically gave Appellants a deadline by which to file any
objections to the Appellee's Fee Statement, and provided
that if Appellants and Appellee's counsel could not agree
on a reasonable fee and terms of payment, the Appellants
could file a motion. Id. Appellants maintain that
the order is final and their appeal is as of right, but also
argue that their situation meets the standard to grant an
interlocutory appeal. While both Appellants and Appellees
argue over the propriety of each other's actions
throughout the underlying bankruptcy proceeding, at this
procedural stage of the case, my review is confined to
whether the order is appealable.
bankruptcy court order is not a final order.
to the Bankruptcy Code, district court judges have
jurisdiction to hear appeals from final judgments, orders,
and decrees of the bankruptcy court. See 28 U.S.C.
§ 158(a)(1). “Generally speaking, to be
‘final' under 28 U.S.C. § 158(d) and §
1291, an order must end the litigation on the merits, leaving
nothing to be done but execute the judgment.” In re
Donovan, 532 F.3d 1134, 1136 (11th Cir. 2008). While
“finality” has a somewhat more flexible
connotation in bankruptcy proceedings, “to be final, a
bankruptcy court order must completely resolve all of the
issues pertaining to a discrete claim, including issues as to
the proper relief.'” Id. at 1136-37. The
order at issue here simply does not dispose of any of the
issues to which it pertains-the case is not yet dismissed,
and the amount of the fees to be paid is still to be
determined. The order is therefore not a final order.
Appellants have not met the standard to proceed with an
Standard of Review for Interlocutory Appeals
the bankruptcy order on appeal is not final, it is within the
discretion of this Court whether to entertain the appeal
pursuant to 28 U.S.C. § 158(a)(3).” Figueroa
v. Wells Fargo Bank N.A., 382 B.R. 814, 823 (S.D. Fla.
2007). Interlocutory appeals are generally disfavored;
however, district courts can grant interlocutory review
“if the subject issue: ‘(1) involves a
controlling question of law, (2) as to which there is a
substantial ground for difference of opinion, and (3) is such
that an immediate appeal would advance the ultimate
termination of the litigation.'” Id., at
824 n.5 (collecting cases which apply the factors in 28
U.S.C. § 1292(b) to bankruptcy appeals). If a party
fails to establish any one of these criteria, leave to appeal
must be denied. Id. (citing Celotex Corp. v. AIU
Ins. Co. (In re Celotex Corp.), 187 B.R. 746, 749
(M.D.Fla.1995)). “Even applying these factors, the
moving party still has ‘the burden of persuading the
court that exceptional circumstances justify a departure from
the basic policy of postponing appellate review until after
the entry of final judgment.'” In re
Lorenzo, 2014 WL 273130, at *2 (S.D. Fla. Jan. 24, 2014)
(quoting Coopers & Lyband v. Livesay, 437 U.S.
463, 475 (1978)). As such, interlocutory bankruptcy appeals
should be the exception, not the rule. Id.; see
also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251,
1259 (11th Cir. 2004) (“Because permitting piecemeal
appeals is bad policy, permitting liberal use of §
1292(b) interlocutory appeals is bad policy.”).
Controlling Issue of Law
issue is characterized as a controlling question of law if it
deals with a question of ‘pure' law, or matters
that can be decided quickly and cleanly without having to
study the record.” Figueroa, 382 B.R. at 824.
“It does not mean any question the decision of which
requires rooting through the record in search of the facts or
of genuine issues of fact.” McFarlin, 381 F.3d
at 1258. Decisions that involve the exercise of discretion
also are not controlling issues of law. See In re
Lorenzo, 2014 WL 273130, at *2 (“The bankruptcy
orders appealed here involve an exercise of discretion, and
not a controlling question of law.”). While Appellants
argue that the bankruptcy court did not have discretion and
was required to dismiss the bankruptcy proceeding, whether to
dismiss a voluntary bankruptcy petition under 11 U.S.C.
§ 707(b) is clearly discretionary. The statute states,