La Ponderosa Corp. v. Soltero Harrington

• Court: Court of Appeals for the First Circuit
• Decided: April 30, 1993
• Docket: 92-2212
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                      __________
        No. 92-2212
                           IN RE HILDA SOLTERO HARRINGTON,
                                       Debtor,

                                        ______

                   ESTANCIAS LA PONDEROSA DEVELOPMENT CORPORATION,

                                 Plaintiff, Appellee,

                                          v.

                             HILDA SOLTERO HARRINGTON AND
                               RAFAEL DURAND MANZANAL,

                               Defendants, Appellants.

                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                     [Hon. Carmen C. Cerezo, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                               Torruella, Selya and Cyr,
                                   Circuit Judges.
                                   ______________

                                 ____________________

Jose Luis Novas-Dueno for appellants.
             _____________________
             Jaime  Sifre  Rodriguez with  whom  Luis  A. Melendez-Albizu  and
             _______________________             ________________________
        S nchez-Betances & Sifre were on brief for appellee.
        ________________________

                                 ____________________

                                    April 30, 1993
                                 ____________________

CYR,  Circuit Judge.   After the  chapter 11  estate of
                    CYR,  Circuit Judge.
                          _____________

          Hilda  Soltero  Harrington  recovered judgment  in  an  adversary

          proceeding against Estancias La Ponderosa Development Corporation

          (hereinafter "Ponderosa"), Ponderosa filed an untimely  notice of

          appeal and a motion  to permit late filing under  Bankruptcy Rule

          8002(c).    The  bankruptcy court  denied  Ponderosa's motion  to

          permit  late  filing,  and,   accordingly,  declined  to   docket

          Ponderosa's   notice   of   appeal.       Ponderosa   moved   for

          reconsideration, which  was denied.  Ponderosa  then appealed the

          denial of  its motion for reconsideration to  the district court.

          Following  a further appeal to this court to clarify the district

          court's jurisdiction, the district court reversed the  bankruptcy

          court's denial  of Ponderosa's motion for  reconsideration of the

          Rule  8002(c)  motion, and  remanded  with  directions to  docket

          Ponderosa's  original notice  of appeal.   Appellants  now appeal

          from the district court remand order.1

                    An appellate order entered  by a district court sitting

          in bankruptcy  is not appealable to the court of appeals under 28

          U.S.C.     158(d)  unless   it  is   "final,"  i.e.,   unless  it
                                                         ____

          conclusively determines  "a discrete  dispute  within the  larger

          case."   See In re  G.S.F. Corp., 938  F.2d 1467, 1473  (1st Cir.
                   ___ ___________________

          1991); Tringali v.  Hathaway Mach.  Co., 796 F.2d  553, 558  (1st
                 ________     ___________________

          Cir.  1986); In re  American Colonial Broadcasting  Co., 758 F.2d
                       __________________________________________

          794, 801 (1st  Cir. 1985); see also In re  Saco Local Dev. Corp.,
                                     ___ ____ ____________________________

____________________

               1Appellants  are  chapter  11  trustee  David  Manzanal  and
          chapter 11 debtor Hilda Soltero Harrington.

711 F.2d 441, 445-46  (1st Cir. 1983) ("separable dispute  over a

          creditor's claim or priority"); 9 Collier on Bankruptcy   8001.06
                                            _____________________

          (15th ed. 1991).  As appellants see it, the district court remand

          order  is  "final" because  it  directs the  bankruptcy  court to

          docket Ponderosa's initial notice  of appeal despite its untimely

          filing, thereby  resolving the  one issue  placed  in dispute  by
                                              _____

          Ponderosa's  appeal from  the  bankruptcy court's  denial of  the

          motion  for  reconsideration.     We  disagree  with  appellants'

          analysis.

                    We  recognize  that  "'finality'  is [to  be]  given  a

          flexible interpretation in bankruptcy," G.S.F. Corp., 938 F.2d at
                                                  ____________

          1472-73, where  necessary to  accommodate concerns unique  to the

          nature  of bankruptcy proceedings.   See In re Empresas Noroeste,
                                               ___ ________________________

          Inc.,  806  F.2d  315,  316-17  (1st  Cir. 1986)  (relaxation  of
          ____

          "finality" doctrine appropriate in bankruptcy proceedings only on

          sufficient   showing   of   "special  considerations   bankruptcy

          proceedings deserve").2   Nevertheless, a  district court  remand
                              
          ____________________

               2As we acknowledged in G.S.F Corp., one such concern is that
                                      ___________
          "bankruptcy  cases  typically   involve  numerous   controversies
          bearing only  a slight relationship to each other," G.S.F. Corp.,
          _______ ____  _ ______ ____________ __ ____ _____   ____________
          938 F.2d at 1473 (emphasis  added), and extraordinary delay could
          result  if  parties  whose  substantive  rights  had  been  fully
          litigated  below were required to await  resolution of the entire
          bankruptcy  case before taking an  appeal.  For  example, we have
          entertained an immediate appeal under 28 U.S.C.   1291 to resolve
          a  dispute over  the  authority and  procedure  for appointing  a
          chapter 11  trustee.   See In re  Plaza de  Diego Shopping  Ctr.,
                                 ___ ______________________________________
          Inc.,  911 F.2d  820, 826 (1st  Cir. 1990) (noting  that "[i]f an
          ____
          appeal were  postponed until a  plan of reorganization  were con-
          firmed,  there would be no satisfactory way to vindicate the U.S.
          Trustee's right to appoint, as there is no authority to appoint a
          new  trustee after  confirmation"  of a  chapter  11 plan).    On
          somewhat different  grounds, we have  permitted immediate appeals
          from  district  court  orders   lifting  automatic  stays.    See
                                                                        ___

                                          3

order in an  intermediate appeal  from a judgment  entered in  an

          adversary proceeding  is not  final and appealable  under section

          158(d) of the Judicial Code, see Fed. R. Civ. P. 54(a), (b); Fed.
                                       ___

          R.  Bankr.  P.  7054(a),  9002,  9014,  unless  it  resolves  all

          procedural  and  substantive  issues  necessary  to  conclude the

          entire  appeal.3    Were  appellate review  available  on  demand

          whenever a district court definitively resolved a contested legal
                                                                      _____

          issue, without regard to  whether the entire adversary proceeding
          _____

          had  been resolved,  the  "finality" rule  would be  eviscerated.

          Cf., e.g., American Colonial Broadcasting, 758 F.2d at 801 ("[a]n
          ___  ____  ______________________________
                              
          ____________________

          Tringali, 796  F.2d at 557;  see also G.S.F.  Corp., 938  F.2d at
          ________                     ___ ____ _____________
          1473 (citing In re Chateaugay Corp., 880 F.2d 1509, 1512 (2d Cir.
                       ______________________
          1989)).  But see infra note 3.
                   ___ ___ _____

               3An important purpose  of the Bankruptcy Reform  Act of 1978
          was to  conform  the practice  and procedure  in Bankruptcy  Code
          cases as near as may be to ordinary civil actions.  See, e.g., 28
                                                              ___  ____
          U.S.C.    158(c); Fed. R. Bankr.  P. 7054(a), 8002  & 9002.  With
          that aim in  mind, most Federal Rules of Civil Procedure are made
          directly applicable  in certain proceedings in  bankruptcy.  See,
                                                                       ___
          e.g., Fed.  R. Bankr. P. 7001-7071  (adversary proceedings), 9014
          ____
          (contested  matters).    The  Bankruptcy  Rules  recognize  three
          distinct  types   of  proceedings   within  a  bankruptcy   case:
          adversary proceedings, administrative proceedings,  and contested
          matters.   Adversary  proceedings  are most  like ordinary  civil
          actions;  contested  matters are  substantially  similar; whereas
          most administrative proceedings are  quite dissimilar to ordinary
          civil actions.
               The  great  similarity between  an  adversary  proceeding in
          bankruptcy   and  an   ordinary  civil   action   has  particular
          significance  in the present  context.  In  the typical adversary
          proceeding,  the "finality"  determination closely  resembles the
          finality  determination  in  "an  ordinary  'case'  [between  the
          parties] in a  district court," In re Public  Serv. Co., 898 F.2d
                                          _______________________
          1,  2  (1st Cir.  1990).   Just as  an appeal  in a  civil action
          normally may not be  taken under section 1291 until all claims of
          all parties to the action have been finally resolved, see Fed. R.
                                                                ___
          Civ.  P. 54(b), so too  must some special  justification be shown
          for  departing  from  the  finality rule  relating  to  adversary
          proceedings  and contested matters, see Fed. R. Bank. P. 7054(a),
                                              ___
          9002(1) & 9014.  See also supra note 2.
                           ___ ____ _____

                                          4

order which '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,'  is considered

          interlocutory") (quoting In re Merle's, Inc., 481  F.2d 1016 (9th
                                   ___________________

          Cir. 1973)).

                    The district court remand order contemplated no "signi-

          ficant further proceedings" before the bankruptcy court; that is,

          the bankruptcy court's role on remand    docketing the late-filed

          notice of appeal    fairly can be characterized as "ministerial."

          See  In re Gould  & Eberhardt Gear  Mach. Corp., 852  F.2d 26, 29
          ___  __________________________________________

          (1st  Cir. 1988); In  re Riggsby, 745  F.2d 1153, 1156  (7th Cir.
                            ______________

          1984)).   Moreover,  the  narrow issue  presented by  Ponderosa's

          current  appeal to the district court, i.e., the propriety of the
          _______                                ____

          bankruptcy  court's denial  of the  Rule 8002(c) motion,  has now

          been decided.   Nevertheless,  upon the docketing  of Ponderosa's

          original notice  of appeal  from the judgment  of the  bankruptcy

          court, all substantive and  procedural claims raised by Ponderosa

          in its challenge to the merits of the underlying bankruptcy court

          judgment  will remain  to be  determined in  the district  court.

          Should  the  district  court  resolve  the  merits  favorably  to

          appellants,  the present  appeal from  the district  court remand

          order "may well [be]  obviate[d] . . . ."  Bowers  v. Connecticut
                                                     ______     ___________

          Nat'l Bank, 847 F.2d 1019, 1023 (2d Cir. 1988); Riggsby, 745 F.2d
          __________                                      _______

          at 1155-56.  Thus, the  remand order is not final and  appealable

          under  28 U.S.C.    158(a),(d).   See Fed. R.  Civ. P. 54(a),(b);
                                            ___

5

Fed. R. Bankr. P. 7054(a), 9001(7), 9002(1), (2),(5).

                    Finally,   no   cognizable   "hardship"    or   special

          bankruptcy-related  consideration  is   demonstrated  simply   by

          pointing to the  time and expense  of litigating an  intermediate

          appeal to its  conclusion in  the district court.   See  Empresas
                                                              ___  ________

          Noroeste, 806  F.2d at 317; see also In re El San Juan Hotel, 809
          ________                    ___ ____ _______________________

          F.2d  151, 154 (1st Cir.  1987) ("The burden  of litigation . . .

          cannot alone constitute the irreparable harm necessary to warrant

          appellate  jurisdiction  over  an interlocutory  order.").    For

          similar reasons,  we reject  Harrington's attempts to  invoke the

          "collateral-order" doctrine, see Cohen v. Beneficial  Indus. Loan
                                       ___ _____    _______________________

          Corp., 337 U.S. 541 (1949), and our mandamus jurisdiction, see 28
          _____                                                      ___

          U.S.C.    1651,   neither  of  which  is   available  unless  the

          challenged  interlocutory  ruling  would  result  in "irreparable

          harm" incapable of vindication  on appeal from a later  judgment.

          See, e.g.,  Appeal of Licht  & Semonoff,  796 F.2d 564,  571 (1st
          ___  ____   ___________________________

          Cir.  1986)  ("collateral  order"  doctrine requires  showing  of

          "irreparable harm");  In re Recticel  Foam Corp., 859  F.2d 1000,
                                __________________________

          1006 (1st Cir. 1988) ("irremediable harm," beyond mere burden  of

          extended litigation, necessary for issuance of writ of mandamus).

                    The appeal is dismissed for lack of jurisdiction; costs
                    The appeal is dismissed for lack of jurisdiction; costs
                    _______________________________________________________

          to appellee.
          to appellee.
          ___________

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