Ron Sommers v. Bank of America, N.A.
2016 U.S. App. LEXIS 15818
| 5th Cir. | 2016Background
- Brad Jones, sole shareholder of Exquisite Designs, moved to intervene pro se in an adversary suit brought by the Chapter 7 Trustee (Sommers) against Bank of America after Exquisite’s Chapter 11/7 proceedings.
- The Trustee sued Bank of America; after mediation the Trustee and Bank filed a stipulation of dismissal on November 2, 2015, and the district court entered the dismissal on November 4.
- Jones filed a motion to intervene on November 18, which the district court denied on December 1 without a hearing or findings.
- Jones filed a notice of appeal on December 30 challenging both the denial of intervention and the dismissal order.
- The Fifth Circuit concluded Jones’s appeal of the dismissal order was untimely and therefore beyond its jurisdiction, but it retained review of the denial of intervention as of right.
- The Fifth Circuit affirmed the district court, holding Jones’s motion to intervene as of right was untimely and that his other arguments (about the settlement/merits) were outside the scope of the appeal or brought in the wrong forum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| timeliness of appeal of dismissal order | Jones challenged the dismissal order | Trustee/Bank argued appeal was untimely | Appeal of dismissal order untimely; court lacks jurisdiction to review it |
| intervention as of right under Rule 24(a)(2) — timeliness | Jones argued he could not know his interest was harmed until dismissal and sought to intervene after dismissal | Trustee/Bank argued intervention was untimely and prejudicial | Denial of intervention as of right affirmed: Jones’s motion was untimely (de novo review) |
| permissive intervention under Rule 24(b) | Jones also sought permissive intervention | Defendants opposed; district court denied without findings | Jones waived argument on permissive intervention on appeal; issue not reached (provisional jurisdiction) |
| scope of review re: mediated settlement/merits | Jones sought to attack bankruptcy settlement and release language | Trustee/Bank said suit is separate; district court never approved settlement; settlement binds only parties | Court refused to consider settlement/merits issues as outside notice of appeal and/or wrong forum for challenging bankruptcy-court approval |
Key Cases Cited
- Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) (distinguishes appealability of denial of intervention as of right and permissive intervention)
- New Orleans Pub. Serv., Inc. v. United Gas Pipeline Co., 732 F.2d 452 (5th Cir. 1984) (en banc) (four-prong test for intervention as of right)
- Ford v. City of Huntsville, 242 F.3d 235 (5th Cir. 2001) (timeliness factors for intervention)
- Texas v. United States, 805 F.3d 653 (5th Cir. 2015) (standard of review for denial of intervention as of right: de novo)
- SmallBizPros, Inc. v. MacDonald, 618 F.3d 458 (5th Cir. 2010) (effect of Rule 41(a)(1)(A)(ii) stipulation of dismissal on district-court jurisdiction to enforce settlement)
- United States v. Burns, 668 F.2d 855 (5th Cir. 1982) (timeliness of notice of appeal is a prerequisite to appellate jurisdiction)