Opinion
21-8051
09-02-2021
ROBERT M. LANE; CHRISTOPHER LANE; JEFFREY PLIMPTON, Appellants, v. BANK OF JACKSON HOLE; ESTATE OF ROBERT BIOLCHINI; PETE LAWTON; DAVID W. PERINO; BALLARD SPAHR, LLP; GARY BARNEY; DENNIS O'MALLEY; MICHAEL T. GILBERT; RANDY ROYAL; JOHN C. SMILEY; LUCAS BUCKLEY; HATHAWAY AND KUNZ PC; CHARLES HINGLE; HOLLAND & HART LLP; COLLEEN LANE; MATTHEW W. LANE; PATRICIA E. LANE; SCOTT W. MEIER; TIMOTHY LANE, Appellees.
(D.C. No. 0:21-CV-00097-ABJ)(D. Wyo.)
Before PHILLIPS, McHUGH, and CARSON, Circuit Judges.
ORDER
This matter is before the court on: (1) the jurisdictional show cause order it issued on July 30, 2021, challenging the finality of the district court decision which pro se Appellants Robert M. Lane, Christopher Lane, and Jeffrey Plimpton seek to appeal; and (2) Appellants' response to that order. Upon consideration of the response, the district court's decision, and the applicable law, the court dismisses the appeal for lack of jurisdiction.
In the bankruptcy context, appellate courts such as this one generally have jurisdiction to review only final orders of district courts. 28 U.S.C. § 158(d)(1); see also Strong v. W. United Life Assurance Co., Inc. (In re Tri-Valley Distrib.), 533 F.3d 1209, 1213 (10th Cir. 2008) (citation omitted) ("Generally, an order is final if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."). Thus, "[i]f the bankruptcy court's order is not final, and the district court's order does not cure that nonfinality, [this court] must dismiss this appeal for lack of jurisdiction." Bailey v. Connolly, 361 Fed.Appx. 942, 946 (10th Cir. 2010) (citing Tri-Valley, 533 F.3d at 1214-15).
With respect to interlocutory orders, the plain language of 28 U.S.C. § 1292(a) provides that certain district court orders, including orders regarding injunctions, may be appealed to the court of appeals as of right. However, there is no similar provision for orders of bankruptcy courts. See Bailey, 361 Fed.Appx. at 950 n.10. Rather, "appeals from orders and judgments of bankruptcy courts may be taken to the district court in conformity with the requirements of 28 U.S.C. § 158(a). . . ." Faragalla v. Access Receivable Mgmt. (In re Faragalla), 422 F.3d 1208, 1210 (10th Cir. 2005). Appeals from "final judgments, orders, and decrees" may be taken as of right. 28 U.S.C. § 158(a)(1). Whereas, interlocutory orders and decrees, with a limited exception not implicated here, may be appealed only "with leave of the court." 28 U.S.C. § 158(a)(2)-(3).
Here, Appellants seek to appeal the district court's order denying leave to appeal the bankruptcy court's interlocutory order granting a preliminary injunction, and dismissing their intermediate appeal for lack of jurisdiction. While there may be circumstances in which the intermediate appellate decision by the district court "cures" a finality problem by effecting its own final disposition of the underlying adversary proceeding, see Adelman v. Fourth Nat'l Bank & Tr. Co., N.A. (In re Durability, Inc.), 893 F.2d 264, 266 (10th Cir. 1990), the district court's order in this case did not do so. Thus, this court is without jurisdiction to consider this appeal. The bankruptcy court's subsequent order purporting to grant leave to appeal to this court did not cure the jurisdictional defect, as the bankruptcy court had no authority to grant leave to appeal under these circumstances.
APPEAL DISMISSED.