Moody, In re, No. 86-2973

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore RUBIN, HIGGINBOTHAM, and DAVIS; RUBIN
Citation817 F.2d 365
Parties16 Collier Bankr.Cas.2d 1327, Bankr. L. Rep. P 71,842 In re Shearn MOODY, Jr., Debtor. W. Steve SMITH, Trustee of the Estate of Shearn Moody, Jr., Plaintiff-Appellee, v. Norman D. REVIE, Defendant-Appellant. Summary Calendar.
Docket NumberNo. 86-2973
Decision Date27 May 1987

Page 365

817 F.2d 365
16 Collier Bankr.Cas.2d 1327, Bankr. L. Rep. P 71,842
In re Shearn MOODY, Jr., Debtor.
W. Steve SMITH, Trustee of the Estate of Shearn Moody, Jr.,
Norman D. REVIE, Defendant-Appellant.
No. 86-2973
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
May 27, 1987.

Page 366

Kevin Dubose, Houston, Tex., for defendant-appellant.

E. Ann Dickerson, Ben B. Floyd, Kevin D. McDonald, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, HIGGINBOTHAM, and DAVIS, Circuit Judges.

RUBIN, Circuit Judge:

Following the lead of every circuit court that has considered the question directly or indirectly, we hold that a bankruptcy court's turnover order, in a separate adversary proceeding, compelling a defendant to turn over property in his possession to the trustee in bankruptcy, is a final order and hence appealable as of right.

The bankruptcy trustee for Shearn Moody, Jr. filed an adversary complaint against Norman D. Revie for the purpose of compelling Revie to turn over a valuable antique coin, described as an 1879 "Coiled Hair 10 Struck," alleged to be property of the bankruptcy estate. After a trial on the merits, the bankruptcy judge signed a document entitled "Decision and Order on Complaint to Compel Turnover of Property," directing Revie to turn over the coin to the trustee within three days.

On the fourth day after its order, the bankruptcy court held a hearing to determine whether Revie had complied. The trustee reported that he had not done so. The bankruptcy court then directed the trustee to "file papers to proceed accordingly for non-compliance with the Court's order." Without requesting leave from the district court, Revie filed with it an appeal of the turnover order. The district court dismissed the appeal, concluding that the bankruptcy order was not appealable for the following reasons: (1) It was interlocutory; (2) Revie had not requested the leave required by 28 U.S.C. Sec. 158(a) for appealing interlocutory bankruptcy court orders; and (3) Revie had demonstrated, in the words of the district court, "no exception to the prohibition [in Sec. 158(a) ] against appeal of interlocutory orders."

Finality is a prerequisite to appealability of district court judgments. 1 Although 28 U.S.C. Sec. 1291, which requires finality for appeals from district courts, is not applicable to appeals in bankruptcy cases unless the district court has sat as a trial court, 2 a similar provision in 28 U.S.C. Sec. 158(d) requires finality for the appeal of all other district court decisions in bankruptcy cases. As a court of appeals, therefore, we do not have jurisdiction unless the decision of the district court meets the finality requirements of Sec. 158(d).

28 U.S.C. Sec. 158(a), moreover, requires finality for appeals from bankruptcy court decisions to the district court unless the district court grants leave to pursue an interlocutory appeal. 3 The district court in our case did not grant such leave to appeal. We need not review the district court's failure to grant leave, however, for if the bankruptcy court order was indeed interlocutory, the district court's denial of leave to appeal would also be interlocutory and hence unappealable as well. 4

The issues before us, therefore, are solely whether the order of the bankruptcy court, which Revie has sought to appeal, was a final order appealable as of right, and whether the district court erred in deciding that it was not. In non-bankruptcy matters, a final order is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." 5

Page 367

] Litigation in bankruptcy proceedings is, however, different from litigation in ordinary civil suits. As pointed out in Collier on Bankruptcy, "[i]n considering the finality of orders entered by bankruptcy judges, some courts begin their analysis by stating what they obviously think is the absurd position that,...

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