Charter Co., In re
| Decision Date | 02 December 1985 |
| Docket Number | No. 84-3458,84-3458 |
| Citation | 778 F.2d 617 |
| Parties | Bankr. L. Rep. P 70,873 In re The CHARTER COMPANY, et al., Debtors. The CHARTER COMPANY, et al., Plaintiffs-Appellees, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Alan B. Miller, Weil, Gotshal & Manges, New York City, J. Richard Moore, Jacksonville, Fla., for defendants-appellants.
Myron Trepper, Levin & Weintraub & Crames, New York City, Stephen D. Busey, James J. Taylor, Jr., Smith & Hulsey, Jacksonville, Fla., for plaintiffs-appellees.
Joel B. Zweibel, Kramer, Levin, Nessen, Kamin & Frankel, New York City, for Unsecured Creditors' Committee.
Appeal from the United States District Court for the Middle District of Florida.
Before GODBOLD, Chief Judge, TJOFLAT, Circuit Judge, and SIMPSON, Senior Circuit Judge.
This appeal is from a district court order determining that an order of the bankruptcy court was interlocutory and denying leave to appeal from that order. We affirm.
On April 20, 1984, The Charter Company and forty-three of its subsidiaries (collectively debtors) filed petitions for relief pursuant to chapter eleven of the bankruptcy laws, 11 U.S.C. Secs. 1101-1174 (1982). All of the debtors were continued in possession of their estates pursuant to 11 U.S.C. Secs. 1107-1108 (1982). Approximately 140 other Charter subsidiaries continued to operate without filing petitions for relief under the bankruptcy laws.
Along with their petition for relief, the debtors moved the bankruptcy court for an order authorizing them to maintain their existing bank accounts and continue to consolidate cash management for the entire group, transferring monies among the affiliated entities as had been their practice and custom. The bankruptcy court entered such an order ex parte on April 20, 1984, authorizing the debtors to "continue to consolidate the management of their cash as has been usual and customary in the past, and to transfer monies from affiliated entity to entity, including operating entities that are not debtors herein; provided, however, that strict records be maintained respecting all such transfers."
Prudential Insurance Company of America and several banks (collectively lenders) are unsecured creditors of Charter Oil Company and Charter International Oil Company, two of the debtors and subsidiaries of The Charter Company, in an amount aggregating approximately $215 million. On April 27, 1984, the lenders filed an emergency motion with the bankruptcy court, asking it to vacate the order authorizing the debtors to consolidate cash management. The lenders alleged that the order allowed the debtors unfettered discretion to transfer money from debtor to nondebtor entities thereby dissipating the assets of those debtors owing money to the lenders. In addition to seeking an immediate cessation of cash transfers, the lenders also requested the bankruptcy court to direct repayment, with interest, of any funds transferred after its April 20 order and grant priority status to the claims for repayment.
The bankruptcy judge held a hearing on April 30 to consider the lenders' emergency motion. In his initial remarks, the judge made it clear that his concern at that time was whether the April 20 order should remain in effect, be modified, or vacated. He indicated that he did not then intend to consider remedies for any transfers that had occurred subsequent to the order, but would leave that issue for another hearing after appropriate motions were filed indicating what damages had been suffered.
The lenders presented evidence at the hearing and attempted to demonstrate that very substantial amounts of money had flowed from debtor to nondebtor entities, going far beyond the debtors' prepetition ordinary business practice. 1 As the debtors' counsel began his response, the court again instructed that the sole issue before it at that time was whether to vacate the April 20 order. At the conclusion of the hearing, the bankruptcy judge indicated that he was troubled by the provision of the order allowing cash transfers to nondebtor affiliates that were beyond the court's control. He also indicated a concern that all creditors receive notice and information regarding the proceedings. The hearing concluded with the judge's suggestion that the parties get together and submit an order that would reflect the concerns indicated.
The court held another hearing on May 3. 2 Testimony was presented indicating that further cash transfers had occurred. 3 At the conclusion of the parties' presentations, the court again expressed its concern over transfers to nondebtor affiliates and the lack of notice to all creditors. The court stated that it could not protect people who were unable to participate in the proceedings and be heard. Reflecting the hurried nature of the proceedings, the court informed everyone present that the order it would enter in the cash management situation would remain open to challenge and that it would welcome whatever suggestions anyone would care to make.
At the conclusion of the hearing, the debtors and lenders presented a proposed order to the court. The proposed order would have frozen the level of cash transfers, required the repayment of all funds previously transferred and the posting of collateral to secure such repayment, provided for payment of interest on such transferred funds after April 20, and imposed reporting requirements on the debtors. The court refused to enter the proposed order because it went well beyond what the court was willing to do at that time. The court had no intention of dealing with prepetition debt in an order of this type and had been clear in its intention to reserve for another hearing the question of possible remedies for transfers occurring between April 20 and the date of any modified order. The court noted that, because it was acting in an emergency situation, it was willing to consider an order that would grant the lenders some protection in the manner the debtors operated their cash management system prospectively. The court believed that, given the posture of the case, it would not be appropriate at that time to issue a more sweeping order. The hearing was continued until the following day, at which time the court entered an amended cash management order.
The amended order authorized the debtors "to continue to consolidate the management of their cash as has been usual and customary in the past, and to transfer monies from affiliated entity to entity, including operating entities that are not debtors herein." Several conditions were imposed on the debtors. Strict record keeping and weekly reporting were required. In addition, a transfer could not be made to a nondebtor affiliate without notice and a hearing if such a transfer would cause the aggregate outstanding indebtedness of nondebtor entities to exceed by more than $20 million the amount of such indebtedness as of May 4. The order expressly provided that it was not addressing cash transfers made prior to May 4, but did require the debtors to provide information regarding those transfers by May 8.
On May 14, 1984, the lenders filed a notice of appeal to the district court from the bankruptcy court's amended cash management order, treating it as a final order. 4 On May 30, the lenders moved the district court to expedite the appeal and suspend the debtors' ability to make any further cash transfers pending resolution of the appeal. Three other creditors filed leave to appeal to the district court from the amended cash management order, treating the order as interlocutory. The district court ordered the four cases consolidated on June 4 and held a hearing on June 6.
On June 12, 1984, the district court entered its dispositive order. It determined that the bankruptcy court's order was interlocutory and treated the lenders' notice of appeal as a motion for leave to appeal. The court denied both sets of creditors leave to appeal, concluding that the case did not involve a controlling question of law as to which there was substantial ground for difference of opinion and that accepting their appeals would not ultimately advance the termination of the bankruptcy proceedings. 5 The court determined that the amended cash management order merely maintained the status quo, allowing the debtors to use the cash management system as they had previously. In addition, the bankruptcy court expressly left the issue open for revisitation. The district court concluded that to accept the appeals would merely interpose another judge overseeing the bankruptcy judge and add unwarranted complexity to the case. Rather than present their argument to the district court, the lenders and the other creditors should have given the bankruptcy court the opportunity to amend its order upon the presentation of additional evidence. The lenders appeal from the district court's dismissal of their appeal.
Resolution of this appeal requires two determinations. First, we must decide whether the district court erred in determining that the bankruptcy court's order was interlocutory and thus not appealable as of right. Second, if the order was interlocutory, we must determine whether the district court abused its discretion in failing to grant leave to appeal. We conclude that the bankruptcy court's order was interlocutory and the district court did not abuse its discretion in denying leave to appeal.
The district courts have "jurisdiction to hear appeals from final judgments, orders, and decrees ... of bankruptcy judges." 28 U.S.C.A. Sec. 158(a) (West Supp.1985). See supra note 4. A final decision is generally "one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); see In re Alchar Hardware Co., 730 F.2d 1386, 1388 (11th Cir.1984) ...
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