King City Transit Mix, Inc., Matter of, No. 83-2449

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before SNEED and FLETCHER; PER CURIAM
• Citation: 738 F.2d 1065
• Parties: Bankr. L. Rep. P 69,960 In the Matter of KING CITY TRANSIT MIX, INC., Debtor. Geraldine D. WALTHER, Counterclaimant/Appellant, v. KING CITY TRANSIT MIX, INC., Counterdefendant/Appellee.
• Docket Number: No. 83-2449
• Decision Date: 17 April 1984

Page 1065

738 F.2d 1065 Bankr. L. Rep. P 69,960 In the Matter of KING CITY TRANSIT MIX, INC., Debtor.
Geraldine D. WALTHER, Counterclaimant/Appellant,
v.
KING CITY TRANSIT MIX, INC., Counterdefendant/Appellee. No. 83-2449. United States Court of Appeals,
Ninth Circuit. Submitted April 17, 1984. ^*
Decided July 27, 1984.

Trevor Clegg, Wild, Carter, Tipton, & Oliver, Fresno, Cal., for counterclaim/appellant.

Bruce Lindsey, Salinas, Cal., for counterdefendant/appellee.

Appeal from the United States District Court for the Northern District of California.

Before SNEED and FLETCHER, Circuit Judges, and BURNS, ^** District Judge.

PER CURIAM.

This is an appeal from an order of the District Court for the Northern District of California affirming the order of the Bankruptcy Court for the Northern District of California. Because we conclude that the ruling challenged on appeal is an interlocutory ruling over which we lack appellate jurisdiction, we dismiss the appeal.

Page 1066

FACTS

In 1979, King City Transit Mix, Inc. (King City) bought a 1978 Peterbilt Transfer and Reliance Trailer from Geraldine Walther, giving Walther a security interest in the trailer to secure a note for $20,471. Pursuant to both the contract of sale and a court order, King City was to list Walther as legal owner on the registration certificate. King City never did.

On April 16, 1981, King City filed a voluntary petition under Chapter 11 of the Bankruptcy Code. In an adversary proceeding, King City sought to avoid Walther's claim of a security interest on the ground that she had failed to perfect as required by the California Vehicle Code Sec. 6300. Walther responded with a counterclaim to establish an equitable lien (count I), and for damages for breach of contract, fraud and conversion (counts II, III and IV, respectively). The bankruptcy court granted King City's motion to dismiss count I of the counterclaim for failure to state a claim upon which relief could be granted. Counts II, III, and IV remain. Walther appealed to the district court which issued an order affirming the bankruptcy court's decision. Walther then appealed to this court.

Though the issue of our appellate jurisdiction was not raised by the parties, we requested additional briefing on the issue.

DISCUSSION

Our jurisdiction to review decisions of the bankruptcy court is defined by 28 U.S.C. Sec. 1293(b) effective prior to April 1, 1984 under section 405(c)(2) of the Bankruptcy Reform Act of 1978,...