United States v. Antiques Limited Partnership

760 F.3d 668, 2014 WL 3702580, 114 A.F.T.R.2d (RIA) 5512, 2014 U.S. App. LEXIS 14515
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 28, 2014
Docket12-2998, 12-3380, 13-1113, 13-2918, 14-1266
StatusPublished
Cited by12 cases

This text of 760 F.3d 668 (United States v. Antiques Limited Partnership) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Antiques Limited Partnership, 760 F.3d 668, 2014 WL 3702580, 114 A.F.T.R.2d (RIA) 5512, 2014 U.S. App. LEXIS 14515 (7th Cir. 2014).

Opinion

POSNER, Circuit Judge.

Before us are five related appeals, presenting both jurisdictional issues and issues of federal tax procedure.

The principal defendants are Robert and Debra Zabka and partnerships they controlled and transferred property to. The government sued to enforce tax assessments against the Zabkas and tax liens against their property and against property of the partnerships. The district judge ruled that the assessments (amounting to several million dollars) were valid and likewise the tax liens, and that when the Internal Revenue Service had made the assessments the liens had attached to all the Zabkas’ personal property and to all their rights to property, including their ownership interests in the partnerships. In the light of these rulings the government filed a motion for the appointment of a receiver who would manage the partnerships and sell their assets to enable the assessments to be satisfied.

That motion was filed in April of 2012. In June the court ordered briefing of the motion, denied motions by the defendants to reconsider the court’s calculation of the unpaid assessments, and directed the court clerk to enter judgment in the case. The clerk entered an order that is captioned “Judgment in a civil case” and states: “Judgment is entered in favor of the Plaintiff.” The docket entry adds: “CASE TERMINATED.” The partnership defendants filed a notice of appeal.

Whoever made the docket entry was wrong. The case had not been terminated. The judgment was not a final judgment, because the receiver hadn’t been appointed and thus the complete relief to which the prevailing party was entitled had not been ordered. See Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 570 F.3d 856, 857 (7th Cir.2009); Buchanan v. United States, 82 F.3d 706, 708 (7th Cir.1996). In fact, it wasn’t a “judgment” at all, because it neither dismissed the suit nor provided any relief to the plaintiff. It clearly was not an appealable order.

In September 2012, however, the district court granted the motion to appoint a receiver and directed the government to file a proposed order appointing one. The Zabkas filed a notice of appeal from the order granting the motion. That appeal was premature too. Although an interlocutory order appointing a receiver is immediately appealable, 28 U.S.C. § 1292(a)(2), the September order was not the appointment of a receiver, but rather a direction to the government to propose a receiver for the judge to appoint. The government complied and in November the judge ordered the appointment of the receiver proposed by the government. The partnership defendants filed a timely notice of appeal from that order. In form it was an amendment to the Zabkas’ earli *671 er notice of appeal from the August 2012 order, but in substance it was a new notice of appeal and was assigned a new docket number.

The defendants’ appeal from the receiver’s appointment was thus their third appeal. The fourth was an appeal they filed in August 2013 challenging the district court’s approval of property sales by the receiver, and the fifth, filed in February 2014, was an appeal from an order awarding interim compensation to the receiver. We have, as we’ll explain, no jurisdiction over those two appeals.

We do have jurisdiction over the third appeal, the appeal from the appointment of the receiver. The appointment ended the merits phase of the litigation while kicking off a postjudgment collection proceeding. To understand this critical distinction, imagine a simple suit for damages. The original proceeding ends with a $1 million judgment for the plaintiff. That’s it; case over. But suppose the defendant doesn’t pay, saying he has no money. The plaintiff can initiate a post-judgment collection proceeding in which he can ask a receiver (if one has been appointed) both to determine the defendant’s ability to pay the judgment, and to collect on the plaintiffs behalf as much of the judgment as he can. The collection proceeding would not affect the finality of the earlier damages judgment, a final judgment appealable under 28 U.S.C. § 1291. But the judgment concluding the collection proceeding would likewise be an appeal-able final judgment. In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F.3d 755, 760 (7th Cir.1994); Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1224-25 (7th Cir.1993); Central States, Southeast & Southwest Areas Pension Fund v. Express Freight Lines, Inc., 971 F.2d 5 (7th Cir.1992); Armstrong v. Schwarzenegger, 622 F.3d 1058, 1064-65 (9th Cir.2010); Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 829 (11th Cir.2010). As succinctly explained in the Armstrong case, “appeals courts have jurisdiction over post judgment orders, such as a district court might enter pursuant to the jurisdiction it has retained to enforce a prior order.” 622 F.3d at 1064. While from the standpoint of the district court a postjudgment proceeding is part of the original proceeding, from the appellate court’s standpoint the judgment awarding the plaintiff relief and the final order in the collection proceeding are separate final orders both appealable therefore under section 1291.

The purported judgment terminating the case in June 2012 had not been a final judgment, because an issue in that proceeding — the appointment of a receiver, a critical component of the relief sought by the government — had remained pending. But once the appointment was made, all the issues presented in the litigation had finally been resolved, and the fact that collection problems might require further proceedings in the district court did not detract from the finality and therefore ap-pealability of the judgment.

But the fourth appeal in this case — the one challenging the district court’s approval of property sales by the receiver — was from an interlocutory order in the postjudgment collection proceeding and thus is not within our jurisdiction. This is so even though, as we said, an interlocutory order appointing a receiver is appealable, as is an interlocutory order “refusing to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property.” 28 U.S.C. § 1292(a)(2).

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Bluebook (online)
760 F.3d 668, 2014 WL 3702580, 114 A.F.T.R.2d (RIA) 5512, 2014 U.S. App. LEXIS 14515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-antiques-limited-partnership-ca7-2014.