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In re Fundamental Long Term Care

United States District Court, M.D. Florida, Tampa Division

July 30, 2019

IN RE FUNDAMENTAL LONG TERM CARE, Debtor.
v.
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,

          ORDER

          VIRGINIA M. HERNANDEZ COVTNGTON, UNITED STATES DISTRICT JUDGE

         In the 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) is denied.

         I. Background

         The 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 required. (Id.).

         Judge 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).

         Dissatisfied 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 Scriven.

         Now, 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.

         II. Discussion

         “When 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 823.

         The Court will address each of the three elements separately.

         A. Controlling Question of Law

         “An 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).

         Here, 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).

         But “[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 ...


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