In Re: Sami Yousif, Debtor. Todd M. Halbert v. Sami Yousif Sana Yousif Florence Tanners, Incorporated,defendants-Appellees

201 F.3d 774, 2000 U.S. App. LEXIS 733, 2000 WL 38447

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 20, 2000
• Docket: 98-1805
• Status: Published

Opinions

WELLFORD, J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (pp. 780-84), delivered a separate concurring opinion.

OPINION

WELLFORD, Circuit Judge.

Todd M. Halbert, a Michigan attorney representing himself on this appeal as he did in the district court, takes appeals from denials of his applications for attorney fees with respect to two separate bankruptcy cases, one involving Sami and Sana Yousif and the other involving the corporation controlled by the Yousifs, Florence Tanners, Incorporated (“Tanners”). The Yousifs and Tanners filed Chapter 11 bankruptcy cases and were represented before and after these filings by Halbert. Ultimately, after protracted proceedings, the bankruptcy court issued an opinion denying the requested fees based on what the court perceived as a “systematic” pattern of impropriety on Halbert’s part, involving transfers of merchandise to the attorney from the debtors and allegations of preferential payments and transfers.

Debtors claim that Halbert was not qualified under bankruptcy law and rules to serve as counsel in the Chapter 11 proceedings, and that transfers of merchandise to Halbert had occurred during the 90-day period before the filings and constituted preferential transfers under § 547(b) of the Code. In one opinion of the bankruptcy court, appealed to the district court and essentially affirmed, at least in part, the former found that some antecedent debt was satisfied by the transfer at issue, disqualifying Halbert. We have found that there is a serious jurisdictional question in these cases consolidated for appeal and asked the parties to address the issue at oral argument. See Millers Cove Energy Co. v. Moore (In re Millers Cove Energy Co.), 128 F.3d 449, 450 (6th Cir.1997) (“ ‘Subject matter jurisdiction cannot be conferred on federal courts by consent of the parties. The existence of subject matter jurisdiction, moreover, is an issue that may be raised at any time, by any party, or even sua sponte by the court itself.’ ”) (quoting Ford v. Hamilton Invs., Inc., 29 F.3d 255, 257 (6th Cir.1994)).

We have jurisdiction to entertain orders and judgments that effectively and finally dispose of all claims presented to the district court. This requirement is referred to as the final judgment rule, embodied principally in 28 U.S.C. § 1291: “The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts.... ” In the dispute before us, each bankruptcy case retained its separate identity, although the appeals from the separate orders or judgments were consolidated for purposes of briefing and argument; the cases of the Yousifs and Tanners were treated separately by the bankruptcy court and subsequently by the district court.

I. THE YOUSIF APPEAL

The district court made the following findings pertinent to the Yousifs’ bankruptcy appeal:

Halbert submits that this Court should enter a summary judgment in his favor and against the Yousifs because the Bankruptcy Court did not cite any law and found no facts upon which to support its denial of his request for attorney fees relating to services rendered in the Yousifs’ bankruptcy. This Court agrees. All of his deficiencies, which were the subject of the two opinions by the Bankruptcy Court, relate to his conduct in the Tanners bankruptcy proceeding. In fact, there is no discussion or evaluation of Halbert’s compliance or noncompliance with his disclosure and disinterestedness duties in the Yousif case.³⁹

Therefore, the entry of a summary judgment by the Bankruptcy Court in favor of the Yousifs is vacated. Further, the issue of whether a summary judgment should be entered on Hal-bert’s application for fees in the Yousifs’ case is remanded for further consideration by the Bankruptcy Court.

(emphasis added). This judgment by the district court effectuating a remand to the bankruptcy court in the Yousifs’ case is not a final judgment and is therefore not appealable; the case was “vacated and remanded” to the bankruptcy court for necessary factual findings and/or legal conclusions. See, e.g., Marlow v. Rollins Cotton Co., 146 F.3d 420, 422 (6th Cir.1998) (“A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ”) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)).

II. THE TANNERS APPEAL

We have similar reservations concerning jurisdiction over the appeal in the Tanners case. The district court summarized the decision of the bankruptcy court and indicated its general approval of its actions. The district court concluded that the bankruptcy court correctly determined that Halbert unlawfully withdrew funds from a $26,600 retainer fee on several occasions “until it was fully depleted without filing supplemental disclosures or seeking Court approval” and thereby violated Bankruptcy Rule 2016(b) and 11 U.S.C. § 330. The district court held that the bankruptcy court correctly determined that Halbert violated these and other fiduciary obligations imposed on him by bankruptcy law and that it properly denied his fee applications as sanctions. The district court also found sufficient evidence supporting the bankruptcy court’s finding that Halbert violated Bankruptcy Rule 2014(a) by failing to disclose that he had received merchandise transfers from Tanners within ninety days of the Yousifs’ and Tanners’ bankruptcy filings, thus disqualifying himself under 11 U.S.C. § 327(a) to serve as Tanners’ counsel.

After approval of the bankruptcy court’s decision to deny Halbert’s fees on a number of bases, the district court added this observation calling for the vacating of at least a part of the bankruptcy court’s determination:

The Court, after noting that “[cjlearly, there was an agreement that Tanners would pay for those services, but Hal-bert did not disclose such an agreement,” concluded that Halbert’s failure to disclose this agreement violated his disclosure duties under § 329(a) and Rule 2016(b). Id.

Although it is undoubtedly plausible to deduce that a fee agreement existed between Halbert and Tanners for these services in contemplation of bankruptcy, there is no direct information relating to any such agreement in any of the material upon which the Bankruptcy Court relied. Thus, there is no extrinsic evidence from which the Bankruptcy Court could have found that this agreement existed, the method of payment, or the date on which it was mutually accepted by, and binding upon, the parties. Consequently, the applicable standards of review for the Appellees’ dispositive motion preclude the Bankruptcy court from having found sufficient material facts from which the existence and terms of the parties’ agreement could be determined.

Strict compliance with the directive to draw all reasonable inferences in favor of Halbert should have resulted in the Bankruptcy Court making no finding about such an agreement. Apart from whether this directive required the assumption that Halbert agreed to work on the bankruptcy pro bono, about which this Court expresses no opinion, the Bankruptcy Court improperly assumed that any such agreement fell within the bounds of § 329(a) and Rule 2016(b). This conclusion was reached even though Halbert presented uncontested extrinsic evidence which indicated that his only fee agreement with Tanners was achieved on September 1, 1993, more than one year before its petition was filed. Indeed, Halbert contends on appeal that this fee agreement, which provided for an hourly fee of $165, is the only one relating to the bankruptcy, a claim which is undisputed by the Appel-lees.

While the Court expresses no opinion as to whether Halbert was under a duty to disclose this fee agreement, it is apparent that the Bankruptcy Court drew inferences against him based on an incomplete understanding of the facts and the parties’ positions on this issue. The Bankruptcy Court also failed to set forth on the record the basis for this alleged violation while at the same time being unable to establish the date on which the alleged agreement was entered. Cf. In the Matter of Prudhomme, 43 F.3d 1000, 1002-03 (5th Cir.1995) (court can order disgorgement of fee paid more than one year before filing of petition because one year limitation period in § 329(a) is re-buttable presumption that any compensation paid before pre-petition year period is not in contemplation of bankruptcy and consequently § 329(a) does “not provide a limitations period beyond which the court cannot reach.”). Therefore, the findings and conclusions of the Bankruptcy Court on this issue must be vacated.

[T]he Bankruptcy Court gives no indication of having evaluated his argument that the November 19, 1994 merchandise transfer, as well as other merchandise deliveries, could be applied exclusively to non-bankruptcy related services that were provided before the petitions were filed. Moreover, the Bankruptcy Court does not appear to have addressed Tanners’ argument that all of the merchandise transfers to Halbert were in payment of pre-1994 fee obligations.

As a consequence, it appears that the Bankruptcy Court did not evaluate this issue in a light most favorable to Hal-bert. Hence, its findings and conclusions with regard to this matter must be vacated.

The Bankruptcy Court held that Hal-bert violated his disclosure duties under Rule 2016(b) by not revealing the receipt of six post-confirmation fees from Tanners, totaling $51,868.92.

... [T]he record on this issue is insufficient and, thus, it precludes any meaningful judicial review of the contested issue.

For these reasons, the findings and conclusions of the Bankruptcy Court on this issue are vacated.

(footnotes omitted). Despite vacating the bankruptcy court’s opinion and judgment in several particulars as above-related, the district court proceeded to find that “the Bankruptcy Court’s denial of Halbert’s fee application in the Tanners’ case was fully warranted.”

The judgment, however, concluded:

The denial by the Bankruptcy Court of Halbert’s fee application in the Tanners’ bankruptcy case is affirmed, although certain findings of fact and conclusions of law upon which the holding by the Bankruptcy Court was based are vacated and remanded to the Bankruptcy Court.

(emphasis added). Under the circumstances, although the district court has noted affirmance of the bankruptcy court in the Tanners case in a number of aspects, we confess that we cannot determine, due to what we perceive are, at best, ambiguities in the lengthy decision of the district court, whether there has been ren-

dered a final judgment within the meaning of § 1291 in the Tanners case. “Certain findings ... upon which the holding by the Bankruptcy Court was based” were “vacated and remanded,” and are relevant to the issues presented in this appeal. “If ... the district court order remands the case for a factual determination on an issue central to the case, the district court order is determined not to be appealable because the case cannot be resolved properly until the appropriate fact-finder, the bankruptcy court, makes necessary factual findings.” Breyfogle v. Grange Mutual Casualty (In re Gardner), 810 F.2d 87, 91-92 (6th Cir.1987). Because the bankruptcy court serves as an “adjunct” to the district court, “we view all the proceedings in this action, whether in the Bankruptcy Court or the District Court as one proceeding in bankruptcy.” SEOR, Inc. v. Textron Oil Corp. (In re Frederick Petroleum, Corp.), 912 F.2d 850, 853 (6th Cir.1990). Thus, we view this appeal as an adversary proceeding to determine Halbert’s eligibility for attorney’s fees and liability for sanctions and apply Federal Rules of Bankruptcy Procedure 7054 and 7001(1) and Fed.R.Civ.P. 54(6). See, id. at 853-54; Millers Cove Energy Co. v. Moore (In re Millers Cove Energy Co.), 128 F.3d 449 (6th Cir.1997). Rule 54(b) provides that:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or other rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438, 76 S.Ct. 895, 100 L.Ed. 1297 (1956) (“[Rule 54(b)] does not supersede any statute controlling appellate jurisdiction. It scrupulously recognizes the statutory requirement of a ‘final decision’ under § 1291 as a basic requirement for an appeal to the court of appeals.”).

The district court has made no determination that “there is no just reason for delay” on a final judgment entered as “to one or more but fewer than all the claims or parties.” No Rule 54(b) certification was issued or requested. “In the absence of certification under Rule 54(b) as to the finality of a partial disposition by the district court in a bankruptcy proceeding, any partial disposition is deemed non-final for purposes of appeal.” In re Millers Cove Energy Co., 128 F.3d at 452.

We therefore lack subject matter jurisdiction under 28 U.S.C. § 158(d) and must dismiss the appeal. See id.

We pass to another matter of concern on the issue of jurisdiction — Halbert’s notice of appeal, which is set out below:

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

TODD M. HALBERT, Appellant, v. SAMI YOUSIF, SANA YOUSIF, and FLORENCE TANNERS, INC., Appellees.

CONSOLIDATED APPEALS, Case Nos.97-CV-75047, 97-CV-75048.

Hon. Julian Abele Cook, Jr.

NOTICE OF APPEAL

Todd M. Halbert (“Appellant”) appeals as a matter of right from that certain Order entered by the District Court on July 2,1998.

The parties to the Order appealed from and the names of their respective attorneys are as follows:

Sami Yousif and Sana Yousif: C. William Garratt, Esq.

Florence Tanners, Inc.: C. William Gar-ratt, Esq.

TODD M. HALBERT (P33488), Counsel for Appellant, 24359 Northwestern Hwy., #250, Southfield, MI 48075, (243) 356-6204.

DATED: July 10,1998

The notice of appeal may be insufficient because, among other things, it does not name the court to which appeal is taken. See, however, Dillon v. United States, 184 F.3d 556 (6th Cir.1999) (en banc) (holding that “where only one avenue of appeal exists, [Fed. R.App. P.] 3(c)(1)(C) is satisfied even if the notice of appeal does not name the appellate court”). The notice makes no reference to a separate judgment entry that appears in the joint appendix in the Tanners case. The only reference is to the lengthy “Order” from which we have cited a number of excerpts. The “Order” is really an opinion dealing with two separate cases, one of which we have found to be clearly not appealable.

Furthermore, the record does not reflect that there was a separate judgment entry, pursuant to Fed.R.Civ.P. 58, which mandates entry of a separate document. This requirement may be waived, however, under certain circumstances. See Bankers Trust Co. v. Mollis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). In the present case, the district court entered its order on the docket sheet, and the defendants did not object to perfecting the appeal from that order. However, because it remanded the Yousifs case in its entirety and the Tanners case in part for further findings, it is certainly arguable that the district court did not evidence clear intent that the opinion be a final decision in the case and thus did not meet the requirements for waiver.

In certain cases “although the absence of a separate document does not foreclose appellate review, ... ‘the question raised by [the] appeal can be more fully considered if the decision below is made explicit in a judgment.’ ” Beukema’s Petroleum Co. v. Admiral Petroleum Co., 613 F.2d 626, 628-29 (6th Cir.1979) (holding that Bankers Trust applied to appeals from preliminary injunctions) (quoting Turner v. Air Transport Lodge 189I, 585 F.2d 1180 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2841, 61 L.Ed.2d 286 (1978)).

Following Bankers Trust, this court held that

[T]he parties to an appeal may waive the separate judgment requirement where three conditions have been met; first, the district court must “clearly evidence[ ] its intent that the opinion ... represented] the final decision in the case;” second, the judgment must have been “properly recorded on the clerk’s docket;” and third, “the appellee from the district court [must not have] objected to perfecting the appeal from that order.”

Whittington v. Milby, 928 F.2d 188, 192 (6th Cir.), cert. denied, 502 U.S. 883, 112 S.Ct. 236, 116 L.Ed.2d 192 (1991) (quoting Bankers Trust v. Mollis, 435 U.S. 381, 387, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978)).

In this case, a remand for entry of a separate judgment while retaining jurisdiction over the appeal would serve no purpose if the judgment was not a final ap-pealable order. Likewise, even if the district court had entered a separate document, we still would need to inquire into its finality. See Bankers Trust, 435 U.S. at 385-86 n.6, 98 S.Ct. 1117 (“Even if a separate judgment is filed, the courts of appeals must still determine whether the district court intended the judgment to represent the final decision in the case.”); see also Green v. Nevers, 196 F.3d 627 n. 2 (6th Cir.1999).

Accordingly, we find that we clearly have no jurisdiction in the Yousifs’ appeal. We must also decline jurisdiction in the attempted Tanners’ appeal for the reasons indicated because it is premature.

39 Although the Bankruptcy Court did recite the Rule 2016(b) disclosures made by Halbert in the Yousif case, In re. Florence Tanners, 209 B.R. at 442, it did not make any factual findings or legal conclusions that are pertinent to those disclosures.