K&B Capital, LLC v. Official Unsecured Creditors' Committee

335 Fed. Appx. 523, 335 F. App'x 523, 2009 U.S. App. LEXIS 15352
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 19, 2009
Docket06-5932, 07-5525, 07-6140, 07-6164
StatusUnpublished
Cited by10 cases

This text of 335 Fed. Appx. 523 (K&B Capital, LLC v. Official Unsecured Creditors' Committee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K&B Capital, LLC v. Official Unsecured Creditors' Committee, 335 Fed. Appx. 523, 335 F. App'x 523, 2009 U.S. App. LEXIS 15352 (6th Cir. 2009).

Opinions

KETHLEDGE, Circuit Judge.

K&B Capital, LLC (“K&B”) seeks to appeal four orders entered by the bankruptcy court and affirmed by the district court. None of the subject orders are final. We therefore dismiss the appeals for lack of appellate jurisdiction.

I.

In June 2003, six related waste disposal companies — LWD Inc., LWD Equipment, Inc., LWD Field Services, Inc., LWD Land Company Inc., LWD Trucking, Inc., and LWD Sanitary Landfill, Inc. — each filed petitions for relief under Chapter 7 of the Bankruptcy Code. In September 2003, a related entity, General Environmental Services, LLC (collectively, the “Debtors”) filed a petition for relief under Chapter 11 of the Code. The LWD eases were later converted to Chapter 11 cases and jointly administered with the GES case. The bankruptcy trustee thereafter appointed a single Unsecured Creditors’ Committee (the “Committee”) for purposes of all the Debtors’ cases.

Each of the Debtors was effectively controlled by Robert Kattula, who was himself a principal of K&B. K&B was itself a secured creditor of the Debtors, and lent money to them during the pendency of them bankruptcy cases. In return, the Debtors made certain “protection payments” to K&B, which totaled $476,500.00.

The debtors’ assets were later sold pursuant to an auction that K&B won. On March 23, 2004, the bankruptcy court issued a broadly worded sale order, authorizing the conveyance of all of the debtors’ assets and claims, tangible and intangible, to K&B. At a telephonic hearing later that day, however, the creditors expressed concern that this broad language might be read to suggest that the debtors’ Chapter 5 claims had been sold to K&B, even though those claims had never been advertised or offered for sale. Indeed, the creditors argued, those claims could not be sold as a matter of law. Without any objection from K&B, counsel for the debtors agreed to draft a supplemental order clarifying that the sale order did not include the Chapter 5 claims. At another telephonic conference held the following day, the debtors’ counsel stated that he had circulated a draft clarification order to all of the parties and that all were in agreement. Again, counsel for K&B was present but did not object. On March 25, 2004, the bankruptcy court entered the requested clarification, which was captioned a “Supplemental Sale Order.” As the bankruptcy court later explained, this order was merely a clerical correction entered pursuant to Fed.R.Civ.P. 60(a).

The Committee later commenced an adversarial proceeding in which it challenged the Debtors’ protection payments to K&B as excessive, and challenged the sale of the Debtors’ assets to K&B on the ground that the Debtors did not disclose the existence of a valuable insurance asset, allegedly worth more than $350,000.00. With respect to the latter claim, the Committee argued — successfully—that the Debtors’ nondisclosure of the asset gave K&B an unfair advantage in the auction, because, of all the potential bidders, presumably only Kattula — as an insider of both the Debtors and K&B — knew of the asset’s existence.

[526]*526These appeals concern four orders entered by the bankruptcy court. Two of the orders were entered in the jointly administered Chapter 11 cases. The first (the “substitution order”) substituted Baker & Hostetler LLP for Nixon Peabody LLP, over K&B’s objection, as counsel for the Committee. The second (the “Rule 60(b) order”) denied K&B’s Rule 60(b)(4) motion to vacate the bankruptcy court’s Rule 60(a) order clarifying the sale order entered nearly two years earlier.

The other two orders were entered in the adversarial proceeding between K&B and the Committee. The first (the “damages order”) required, among other things, K&B to return to the Debtors’ estate $476,500.00 (representing excessive protection payments) and an additional $352,375.00 (representing the auction windfall), plus interest. The second (the “reference order”) denied K&B’s motion to withdraw the reference of the adversarial proceeding to the bankruptcy court pursuant to a local rule, and to have the proceeding adjudicated instead in the district court.

The district court affirmed all four orders. K&B thereafter filed notices of appeal to this court as to each order. We consolidated the appeals.

II.

We must determine whether we have jurisdiction over these appeals. Although a motions panel of this court previously issued an order denying K&B’s motion to dismiss this appeal for lack of appellate jurisdiction, we are not precluded from reexamining this issue under the law-of-the-case doctrine. That doctrine is not a limit on a court’s power, but rather is “discretionary when applied to a coordinate court or the same court’s own decisions.” Bowling v. Pfizer, Inc., 132 F.3d 1147, 1150 (6th Cir.1998); see also Brady-Morris v. Schilling (In re Kenneth Allen Knight Trust), 303 F.3d 671, 677 (6th Cir.2002). Moreover, “[ijssues such as ‘subject matter jurisdiction’ or ‘appellate jurisdiction’ may be ‘particularly suitable for reconsideration.’ ” Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir.2001) (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure: Jurisdiction § 4478, at 799 & n. 32 (1981)). We therefore find it appropriate to reconsider whether appellate jurisdiction exists in this case.

“The courts of appeals ... only have jurisdiction to hear bankruptcy appeals when both the bankruptcy and district courts’ orders are final.” In re M.T.G., Inc., 403 F.3d 410, 413 (6th Cir.2005) (internal quotation marks omitted). Accordingly, “[wjhen the bankruptcy court’s order is interlocutory the general rule is that a court of appeals lacks jurisdiction unless the district court order in some sense ‘cures’ the non-finality of the bankruptcy court order.” Id. (internal quotation marks omitted). “A district court order has been found to ‘cure’ the non-finality of the bankruptcy court order only in cases where the district court’s order in some way ended all litigation in the bankruptcy court.” Id. (internal quotation marks omitted).

None of the orders here are final. The substitution order is not final in these Chapter 11 cases, because it concerns only the counsel that will represent the Committee in that litigation. See generally Cottrell v. Schilling (In re Cottrell), 876 F.2d 540, 542 (6th Cir.1989) (“Generally, a bankruptcy court’s order approving or substituting counsel in a bankruptcy proceeding is not appealable”).

Nor is the Rule 60(b) order final. It is true that a sale order by a bankruptcy court is generally a final, appealable order. [527]*527But the sale order in this case never covered the Chapter 5 avoidance claims that K&B now contends it purchased along with the debtors’ other assets. If K&B had believed that the sale order did

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Bluebook (online)
335 Fed. Appx. 523, 335 F. App'x 523, 2009 U.S. App. LEXIS 15352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kb-capital-llc-v-official-unsecured-creditors-committee-ca6-2009.