United States District Court, M.D. Florida, Fort Myers Division
IN RE BENJAMIN H. YORMAK
BENJAMIN H. YORMAK, Appellee. STEVEN R YORMAK, Appellant,
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on appellant Steven R.
Yormak's September 19, 2018 interlocutory Notice of
Appeal/Mandamus (Doc. #1) from the Bankruptcy Court's
Order Denying Creditor Steven R. Yormak's Motion for
Recusal or Disqualification of Presiding Judge Caryl E.
Delano (Doc. #1-3). Attached to the Notice of Appeal is a
corresponding Motion for Leave and Appeal and Petition for
Writ of Mandamus (Doc. #1-2). The appeal was transferred to
the Fort Myers Division on December 3, 2018. (Doc. #8.)
before the Court is appellant's Motion to District Court
to Stay Bankruptcy Proceedings Until Final Disposition of
Motion for Disqualification Appeal(s) or Order for Mandamus
(Doc. #3) filed on September 27, 2018. Appellee filed a
Response (Doc. #6) on October 8, 2018, and appellant filed a
Reply (Doc. #7) on October 11, 2018. For the reasons set
forth below, the motions are denied and the appeal is
2014, Steven Yormak filed suit against his son Benjamin
Yormak in federal court for breach of an oral and written
consulting agreement and for unjust enrichment. The Second
Amended Complaint alleges that Steven Yormak provided
consulting services to his son based on his own practice of
law for 33 years with a focus on disability and employment
law. Steven Yormak alleged that his son had a successful law
practice as a result of the consulting services, but that his
son failed to make payments to him and refused to allow him
to continue providing consulting services. (No.
2:14-cv-33-FTM-29CM, Doc. #190.)
the pendency of this case, Benjamin Yormak filed for
bankruptcy protection, and Steven Yormak became a creditor in
the bankruptcy proceeding. (No. 9:15-bk-04214.) As a result,
the underlying breach of contract claim was automatically
stayed, and remains stayed. (No. 2:14-cv-33-FTM-29CM, Docs.
## 181, 198.)
have been several other interlocutory appeals filed from the
Bankruptcy Court proceeding by creditor Steven Yormak. The
first such appeal sought review of the Bankruptcy Court's
decision to allow the case to try the issue of whether the
contracts were void as a matter public policy because they
constituted the unlicensed practice of law. Leave to appeal
was denied on June 19, 2017 by the district court. (No.
2:17-cv-73-FTM-38, Doc. #29.) Creditor Yormak appealed the
decision, and the Eleventh Circuit dismissed the appeal for
lack of jurisdiction on September 13, 2017. (Id.,
second such appeal was from an Order granting debtor leave to
amend an objection to a claim. Leave to appeal was denied on
June 8, 2018 by the district court. (No. 2:18-cv-309-FTM-29,
Doc. #14.) An appeal was dismissed by the Eleventh Circuit
for lack of jurisdiction. (Id., Doc. #21.)
third such matter was a request to withdraw the reference to
the bankruptcy court, which was denied without prejudice to
seeking withdrawal if the case proceeded to trial and the
creditor wished to assert his right to a jury trial. (No.
2:18-cv-508-FTM-29, Doc. #7.)
current matter, Steven Yormak seeks an interlocutory appeal
of the denial of his motion to recused the assigned
bankruptcy court judge who is handling the case.
Standards of Review
The United States District Court functions as an appellate
court in reviewing decisions of the United States Bankruptcy
Court. 28 U.S.C. § 158(a); In re JLJ, Inc., 988
F.2d 1112, 1116 (11th Cir. 1993). The threshold issue is the
district court's jurisdiction to entertain the appeal.
In re Donovan, 532 F.3d 1134, 1136 (11th Cir. 2008).
The first inquiry is whether the appealed Order was final and
appealable, or whether it was an interlocutory order. If the
Court determines that the Order was interlocutory in nature,
the second inquiry is whether leave to file an interlocutory
appeal should be granted. In re Charter Co., 778
F.2d 617, 620-621 (11th Cir. 1985).
An interlocutory order is one that “does not finally
determine a cause of action but only decides some intervening
matter pertaining to the cause, and which requires further
steps to be taken in order to enable the court to adjudicate
the cause on the merits.” In re Kutner, 656
F.2d 1107, 1111 (5th Cir. Unit A Sept. 1981) (citation
In re Yormak, No. 2:18-CV-309-FTM-29, 2018 WL
2763343, at *2 (M.D. Fla. June 8, 2018), appeal
dismissed, No. 18-12623-FF, 2018 WL 4587767 (11th Cir.
Aug. 14, 2018). If the order from which appeal is sought is
an interlocutory order, the district court considers leave to
appeal should be granted.
A federal district court has jurisdiction to consider
interlocutory appeals from the orders of a bankruptcy court
if the district court grants leave. 28 U.S.C. §
158(a)(3). If a district court, on its own motion or on the
request of a party, determines:
(i) the judgment, order, or decree involves
a question of law as to which there is no controlling
decision of the court of appeals for the circuit or of the
Supreme Court of the United States, or involves a matter of
(ii) the judgment, order, or decree involves
a question of law requiring resolution of conflicting
(iii) an immediate appeal from the judgment,
order, or decree may materially advance the progress of the
case or proceeding in which the appeal is taken, the district
court shall certify the appeal. 28 U.S.C. §
158(d)(2)(A). See also 28 U.S.C. § 1292(b).
In re Yormak, at *2. If an order denying recusal is
reviewed, the denial reviewed for abuse of discretion.
Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir.
Bankruptcy Court Order
September 7, 2018, Bankruptcy Judge Delano denied a motion to
recuse herself. (Doc. #1-3.) Judge Delano started with a
comprehensive history of the litigation between the parties,
including the appeals described above. (Id., pp.
3-13.) As relevant here, while Creditor was still represented
by counsel, the Bankruptcy Court entered an Attorney Eyes
Only Order (AEO Order) regarding debtor's clients'
information that would not otherwise be publicly available
because creditor wanted to join the Trustee's discovery
requests. (Id., pp. 14-15.) After creditor became
pro se, he filed a motion to rescind the AEO Order.
After an intervening first appeal, the matter was continued
and creditor was directed to file a separate and supported
motion to compel. (Id., p. 15.) The AEO Order was
rescinded and discovery was stayed pending a ruling on
debtor's motion for leave to amend the objection.
(Id., p. 16.) The Bankruptcy Court allowed debtor an
opportunity to react if creditor started contacting ...