893 F.2d 264 (10th Cir. 1990), 88-2186, In re Durability

Docket Nº88-2186.
Citation893 F.2d 264
Party NameIn re DURABILITY, INC., Debtor. James R. ADELMAN, Trustee, v. FOURTH NATIONAL BANK AND TRUST COMPANY, N.A., OF TULSA, OK, Appellee, Fred I. Palmer, Sr., Appellant.
Case DateJanuary 04, 1990
CourtUnited States Courts of Appeals, United States Court of Appeals (10th Circuit)

Page 264

893 F.2d 264 (10th Cir. 1990)

In re DURABILITY, INC., Debtor.

James R. ADELMAN, Trustee,

v.

FOURTH NATIONAL BANK AND TRUST COMPANY, N.A., OF TULSA, OK, Appellee,

Fred I. Palmer, Sr., Appellant.

No. 88-2186.

United States Court of Appeals, Tenth Circuit

January 4, 1990

Page 265

Steven M. Harris of Doyle & Harris, Tulsa, Okl., for appellant.

Thomas E. English, C. Bruce Jones, and Carol Wood of English, Jones & Faulkner, Tulsa, Okl., for appellee.

Before MOORE, BARRETT, and BRORBY, Circuit Judges.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Fred I. Palmer, Sr. (Palmer), president and creditor of debtor, Durability, Inc., appeals from a district court order affirming an order of the bankruptcy court holding Palmer's $500,000 claim against debtor subordinate to a $1,618,331.80 claim asserted by Fourth National Bank and Trust Co. of Tulsa, Oklahoma B. Palmer and FNB are the named defendants in this adversary proceeding brought by the trustee to determine the validity, priority, and extent of defendants' liens, as well as to avoid certain allegedly fraudulent transfers. We do not, at this time, reach the merits of the issues raised by Palmer, because we hold that our jurisdiction over this premature appeal has not yet been established. See Tuck v. United Servs. Auto. Ass'n, 859 F.2d 842, 844 (10th Cir.1988) (recognizing federal court's duty to determine matter of its own jurisdiction sua sponte whenever it becomes apparent that jurisdiction may be lacking), cert. denied, --- U.S. ----, 109 S.Ct. 1534, 103 L.Ed.2d 839 (1989); see, e.g., In re Watson, 884 F.2d 879, 879-80 (5th Cir.1989) (same principle applied where bankruptcy appellate jurisdiction under 28 U.S.C. Sec. 158(d) is questioned).

In the bankruptcy context, the provisions of 28 U.S.C. Sec. 158(d) "limit the jurisdiction of the courts of appeals to reviewing final orders from the district court." In re Commercial Contractors, Inc., 771 F.2d 1373, 1374 (10th Cir.1985). 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. McKinney v. Gannett Co., 694 F.2d 1240, 1246 (10th Cir.1982), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Under Bankr.R. 7054(a), which incorporates the established approach to civil judgment finality reflected in Fed.R.Civ.P. 54(a)-(c), see, e.g., In re Wood & Locker, Inc., 868 F.2d 139, 142-43 (5th Cir.1989); In re White Beauty View, Inc., 841...

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89 practice notes
  • 127 B.R. 267 (D.Colo. 1991), 90-K-1863, In re Blinder, Robinson & Co., Inc.
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Court of Colorado
    • May 17, 1991
    ...nothing for the court to do but execute the judgment." Adelman v. Fourth Nat'l Bank & Trust Co., N.A. (In re Durability, Inc.), 893 F.2d 264, 265 (10th Cir.1990). The concept of finality, however, is less rigid in the bankruptcy context. It applies "not in the overall case, bu......
  • 583 B.R. 759 (10th Cir. BAP. 2018), BAP NM-17-031, In re Winkle
    • United States
    • Federal Cases United States Bankruptcy Courts Tenth Circuit
    • April 3, 2018
    ...U.S.C. § 158(a)(1), (b)(1), and (c)(1) ). [15] Adelman v. Fourth Nat’l Bank & Tr. Co., N.A., of Tulsa (In re Durability, Inc.), 893 F.2d 264, 266 (10th Cir. 1990) (" the appropriate ‘judicial unit’ for application of [ ] finality requirements in bankruptcy is not the......
  • 153 B.R. 316 (D.Kan. 1993), 90-7339, In re American Freight System, Inc.
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • March 15, 1993
    ...if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." In re Durability, Inc., 893 F.2d 264, 265 (10th Cir.1990). The Tenth Circuit has stayed with the traditional finality rule rather than the more accommodating standard adopted by ot......
  • 180 B.R. 629 (D.Kan. 1995), 93-22056-11, In re KAR Development Associates, L.P.
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • March 3, 1995
    ...by the petition.' " In re Cascade Energy & Metals Corp., 956 F.2d 935, 938-39 (10th Cir.1992) (quoting In re Durability, Inc., 893 F.2d 264, 266 (10th Cir.1990)). In this case, the cash collateral issue was so closely tied to the question of relief from the automatic stay that both......
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89 cases
  • 147 B.R. 575 (D.Kan. 1992), 91-40410-11, In re Wiston XXIV Ltd. Partnership
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • November 12, 1992
    ...relief from the automatic stay, this court finds that it is not a final order appealable as of right. See, e.g., In re Durability, Inc., 893 F.2d 264, 266 (10th Cir.1990) (appropriate "judicial unit" for finality purposes in bankruptcy is the particular adversary proceeding or dis......
  • 382 B.R. 814 (S.D.Fla. 2007), 06-81084, Figueroa v. Wells Fargo Bank N.A.
    • United States
    • Federal Cases United States District Courts 11th Circuit United States District Courts. 11th Circuit. Southern District of Florida
    • September 24, 2007
    ...by virtue of Bankruptcy Rule 7054, which incorporates Rule 54(b)); Adelman v. Fourth Nat'l Bank & Trust Co. ( In re Durability, Inc.), 893 F.2d 264, 265-66 (10th Cir.1990)(noting that Bankruptcy Rule 7054(a) affords the bankruptcy court the same procedural mechanism ordinarily available......
  • 127 B.R. 267 (D.Colo. 1991), 90-K-1863, In re Blinder, Robinson & Co., Inc.
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Court of Colorado
    • May 17, 1991
    ...nothing for the court to do but execute the judgment." Adelman v. Fourth Nat'l Bank & Trust Co., N.A. (In re Durability, Inc.), 893 F.2d 264, 265 (10th Cir.1990). The concept of finality, however, is less rigid in the bankruptcy context. It applies "not in the overall case, bu......
  • 583 B.R. 759 (10th Cir. BAP. 2018), BAP NM-17-031, In re Winkle
    • United States
    • Federal Cases United States Bankruptcy Courts Tenth Circuit
    • April 3, 2018
    ...U.S.C. § 158(a)(1), (b)(1), and (c)(1) ). [15] Adelman v. Fourth Nat’l Bank & Tr. Co., N.A., of Tulsa (In re Durability, Inc.), 893 F.2d 264, 266 (10th Cir. 1990) (" the appropriate ‘judicial unit’ for application of [ ] finality requirements in bankruptcy is not the......
  • Request a trial to view additional results

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