In re Johns-Manville Corp., 82 B 11656 (BRL) through 82 B 11676 (BRL).

• Decision Date: 29 June 1984
• Docket Number: No. 82 B 11656 (BRL) through 82 B 11676 (BRL).,82 B 11656 (BRL) through 82 B 11676 (BRL).
• Parties: In re JOHNS-MANVILLE CORP., et al., Debtors.
• Court: U.S. District Court — Southern District of New York

39 B.R. 234 (1984)

In re JOHNS-MANVILLE CORP., et al., Debtors.

Nos. 82 B 11656 (BRL) through 82 B 11676 (BRL).

United States District Court, S.D. New York.

March 30, 1984.

Reargument Denied June 29, 1984.

Davis, Polk & Wardwell, by Lowell Gordon Harriss, and Levin, Weintraub & Crames, by Mitchell H. Perkiel, New York City, for Johns-Manville Corp.

Hahn & Hessen by Steven J. Mandelsberg, New York City, for the Equity Security Holders Committee.

Covington & Burling by Oscar M. Garibaldi, William H. Allen, Washington, D.C., for Armstrong World Industries, Inc.

Moses & Singer by Peter J. Gurfein, Babette Tenzer, New York City, for the Committee of Asbestos Related Litigants and/or Creditors.

Hannoch, Weisman, Stern, Besser, Berkowitz & Kinney by Anthony J. Marchetta, Newark, N.J., for GAF Corp.

Doros & Blessey, P.C. by Jerrold T. Doros, New York City, for Johnnie Leon Patton and Peter John Robinson.

Anderson Russell Kill & Olick, P.C. by Adrienne M. Coffin, New York City, for Keene Corp.

Silverman & Harnes by Joan T. Harnes, Martin H. Olesh, New York City, for M.J. Whitman & Co., Inc.

MEMORANDUM OPINION

MOTLEY, Chief Judge.

These motions arise out of the proceedings in bankruptcy resulting from Chapter 11 petitions filed by the Johns-Manville Corporation and affiliated companies. The two orders of the Bankruptcy Court sought to be appealed are one which denied several motions to dismiss Manville's petitions, 36 B.R. 727, and one which granted a motion to appoint a legal representative for potential future claimants, 36 B.R. 743.

Notices of appeal of the order denying the various motions to dismiss were filed by the Committee of Asbestos Related Litigants and/or Creditors (the Asbestos Committee); Johnnie Leon Patton; M.J. Whitman & Co., Inc.; GAF Corp.; and Armstrong World Industries, Inc. and fifteen other producers of asbestos products. Notices of appeal of the order granting the motion to appoint a legal representative were filed by the Asbestos Committee and Peter John Robinson.

Before the appeals were docketed and assigned, Manville and the Equity Security Holders Committee moved in Part I of this court for an order dismissing the appeals or, in the alternative, for an order denying leave to appeal should this Court deem the notices of appeal as motions for leave to appeal.

The procedures for appeals of interlocutory bankruptcy court orders is set forth in Emergency Bankruptcy Rule I(e)(1), which provides:

An application for leave to appeal an interlocutory order of a bankruptcy judge, shall be filed within ten (10) days of the entry of the judgment or order . . . and the procedures set forth in Bankruptcy Interim Rule 8004 apply to applications for leave to appeal interlocutory orders of bankruptcy judges.

Bankruptcy Interim Rule 8004 has been replaced by Bankruptcy Rule 8001(b), which provides in pertinent part:

An appeal from an interlocutory judgment, order or decree of a bankruptcy judge as permitted by 28 U.S.C. § 1334(b) or § 1482(b) shall be taken by filing a notice of appeal . . . accompanied by a motion for leave to appeal. . . .

28 U.S.C. § 1334(b) provides:

The district courts . . . shall have jurisdiction of appeals from interlocutory orders and decrees of bankruptcy courts, but only by leave of the district court to which the appeal is taken.

Here, the two orders sought to be appealed are interim orders and clearly are not appealable as of right. In no sense are they final orders terminating any aspect of the proceedings and they did not irrevocably decide the rights of any party or a dispositive issue of law. In issuing the orders, the Bankruptcy Court expressly declined to rule on the issue of the dischargeability of potential future claims. Indeed, a reorganization plan with that objective has not even been submitted. Contrary to the assertions of some of the parties, the decision to appoint a representative is not a final determination that the prospective rights of future claimants can be impacted by a bankruptcy court. The impairment of future claims will happen, if ever, when a reorganization plan purporting to do so is approved. The mere appointment of a representative, however, has no such effect.

Because no appeal as of right lies from these orders, the putative appellants' only recourse is for this Court to grant leave to appeal. They, however, simply filed notices of appeal from the Bankruptcy Court's orders without also filing motions for leave to appeal as required by Bankruptcy Rule 8001. Nevertheless, in situations where an appeal is improperly taken and the required motion for leave to appeal is not filed, Rule 8003(c) permits the court to "consider the notice of appeal as a motion for leave to appeal." The Court will therefore deem the notices of appeal as motions for leave to appeal.

The statutes and rules do not provide a standard for evaluating the merits of motions for leave to appeal interlocutory bankruptcy court orders. It has been recognized, however, that the decision is...