United States District Court, M.D. Florida, Tampa Division
IN RE FUNDAMENTAL LONG TERM CARE, Debtor.
SHUMAKER, LOOP & KENDRICK, LLP, and STEVEN M. BERMAN, ESQ., Appellees. ESTATE OF ARLENE TOWNSEND, ESTATE OF ELVIRA NUNZIATA, ESTATE OF JAMES HENRY JONES, ESTATE OF JOSEPH WEBB, ESTATE OF OPAL LEE SASSER, and ESTATE OF JUANITA JACKSON, Appellants,
VIRGINIA M. HERNANDEZ COVTNGTON, UNITED STATES DISTRICT JUDGE
context of a Chapter 7 bankruptcy proceeding, Appellants -
the Estates of Arlene Townsend, Elvira Nunziata, James Henry
Jones, Joseph Webb, Opal Lee Sasser, and Juanita Jackson -
seek leave to file an interlocutory appeal of the Bankruptcy
Court's order denying the motion to recuse the assigned
bankruptcy judge. (Doc. # 2). Appellees Shumaker, Loop &
Kendrick, LLP, and Steven M. Berman, Esq., responded in
opposition on July 19, 2019. (Doc. # 9). Likewise, the
Trustee, Beth Ann Scharrer, responded as an interested party
on July 19, 2019. (Doc. # 8). For the reasons that follow,
the Motion for Leave to File Interlocutory Appeal (Doc. # 2)
underlying Chapter 7 bankruptcy proceeding has been ongoing
for several years. And a recitation of its history is not
necessary here. Suffice it to say that Appellants moved for
the recusal of the bankruptcy judge, Judge Michael G.
Williamson, on January 17, 2019, arguing that recusal was
necessary based on the alleged conflicts of one of Judge
Williamson's law clerks, Edward Comey. (Doc. # 2 at
21-22, 28). Specifically, Appellants argued that Comey was
conflicted because he previously worked for Shumaker, Loop
& Kendrick - which served as the Trustee's special
litigation counsel from 2012 to 2015 - and his wife is
currently a partner at that firm. (Id. at 2-3, 22).
Because Comey had not been screened from the case earlier,
Appellants argued that late screening of Comey was
insufficient to cure the alleged bias. (Id.). They
insisted that recusal of Judge Williamson from the case was
Williamson granted Appellants' motion to recuse in part
and denied it in part. (Doc. # 2 at 21-40). He declined to
recuse himself, but screened Comey from the case.
(Id. at 39).
with this result, Appellants filed the instant Motion for
Leave to File Interlocutory Appeal. (Id. at 1).
Appellants also filed a separate petition for writ of
mandamus, seeking to compel Judge Williamson to recuse
himself from the entire Chapter 7 proceeding. See In Re:
Estate of Juanita Jackson et al., 8:19-cv-01517-MSS-TGW
(Doc. # 1). That petition is still pending before Judge
Appellees and the Trustee have responded in opposition to the
Motion for Leave to File Interlocutory Appeal. (Doc. ## 8,
9). The Motion is ripe for review.
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 review is generally disfavored
for its piecemeal effect on cases.” Id. Still,
this Court has “discretion to grant interlocutory
review of bankruptcy court orders 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. (citation omitted); see
also In re Celotex Corp., 187 B.R. 746, 749 (M.D.
Fla. 1995)(“In determining when to exercise this
discretionary authority [to hear interlocutory appeals of
bankruptcy orders], a district court will look to the
standards which govern interlocutory appeals from the
district court to the court of appeals pursuant to 28 U.S.C.
§ 1292(b).”). “Leave must be denied if the
party seeking leave to appeal fails to establish any one of
the three elements.” Figueroa, 382 B.R. at
Court will address each of the three elements separately.
Controlling Question 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.” Id. at 824 (citing
McFarlin v. Conseco Servs., LLC, 381 F.3d 1251,
1258, 1260-62 (11th Cir. 2004)). “The ‘antithesis
of a proper [Section] 1292(b) appeal is one that turns on
whether there is a genuine issue of fact or whether the
district court properly applied settled law to the facts or
evidence.'” In re Pac. Forest Prod. Corp.,
335 B.R. 910, 920 (S.D. Fla. 2005)(citation omitted).
Appellants list eight supposed “controlling questions
of law” raised by this appeal. (Doc. # 2 at 13-14).
Appellants argue this case satisfies the controlling question
of law prong because their listed “controlling
questions of law” “are legal in nature” and
“the underlying material facts are uncontested”
such that the issues presented on appeal “can be sorted
out quickly and through reliance on pleadings, court orders,
and hearing transcripts.” (Id. at 15).
“[t]he issue of whether the bankruptcy judge should
have recused himself does not involve a controlling question
of law as to which there is substantial ground for difference
of opinion.” McCallan v. Hamm,502 B.R. 245,
249 (M.D. Ala. 2013). “As was the case in
McCallan, the parties in this case do not disagree
as to the standard applicable to a bankruptcy judge's
recusal determination.” In re Gonzalez, No.
8:12-bk-19213-KRM, 2016 WL 1253274, at *5 (M.D. Fla. Mar. 30,
2016). “Rather, the parties disagree about the
bankruptcy judge's ...