UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-30779
(Summary Calendar)
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In The Matter Of: JOANN L ULMER
Debtor,
DAN FRISARD,
Appellant,
versus
CYNTHIA LEE TRAINA,
Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
(96-CV-3804-F)
February 16, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
This case arises out of the Chapter 7 bankruptcy proceedings
of JoAnn Ulmer, in which Dan Frisard (“Frisard”) is a creditor and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Cynthia Traina (“Traina”), the bankruptcy trustee. Frisard is also
a defendant in related litigation brought by Traina in the
bankruptcy court, and a defendant in a Louisiana state court suit
in which Traina is an intervenor.
Frisard’s appeal arises from his Motion to Remove Trustee
filed in the bankruptcy court. Following an evidentiary hearing,
the bankruptcy court denied Frisard’s motion without prejudice and
stated that Frisard could refile his motion when it was warranted.
Frisard sought leave to appeal the bankruptcy court’s order in the
district court. See 28 U.S.C. § 158(a)(3). The district court
refused to grant Frisard leave to appeal, holding that the
bankruptcy court’s decision was an interlocutory order and that
Frisard presented no evidence warranting leave to appeal. Id.
Frisard appeals the bankruptcy court’s denial of his Motion to
Remove Trustee and the district court’s holding that the bankruptcy
court’s order was interlocutory. Traina argues that this Court
lacks jurisdiction to hear Frisard’s appeal because it is from an
interlocutory order in the bankruptcy court. See In re Greene
County Hosp., 835 F.2d 589, 591 (5th Cir. 1988) (holding that we do
not have jurisdiction to review interlocutory orders from
bankruptcy court). Frisard asserts two grounds for our
jurisdiction: he argues (1) that the bankruptcy court’s order is
not collateral, and that as a final order, it is appealable to this
Court; and (2) that a failure by this Court to review the
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bankruptcy court’s denial of his Motion to Remove violates his due
process rights. We disagree on both counts.
With regards to his due process claim, Frisard puts forth no
case and makes no argument that he has a liberty or property
interest in our review of an interlocutory order from the
bankruptcy court. As for his first claim, the district court
correctly found that the bankruptcy court’s denial of Frisard’s
Motion to Remove Trustee was an interlocutory order. A final order
is “one which ends the litigation . . . and leaves nothing for the
court to do but execute the judgment.” Catlin v. United States,
324 U.S. 229, 233, 65 S. Ct. 631, 633 (1945); see also In re Greene
County Hosp., 835 F.2d at 595 (“A final order must ‘conclusively
determine substantive rights.’”) (quoting In re Delta Services
Industries, 728 F.2d 1267, 1271 (5th Cir. 1986).
Frisard does not dispute that his motion was denied without
prejudice and that there continues to be substantive proceedings in
the bankruptcy court. In light of these facts, we agree with the
district court that the bankruptcy court’s order was interlocutory.
This disposes of Frisard’s claim; we have held that “[a] district
court may, in its discretion, take jurisdiction over interlocutory
appeals from the bankruptcy court, but we have no such discretion.
We have jurisdiction only over final orders.” See In re Greene
County Hosp., 835 F.2d at 591; cf. In re Aegis Specialty Marketing
Inc., 68 F.3d 919, 921 (5th Cir. 1995) (“This court has stated
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‘that when a district court sitting as a court of appeals in
bankruptcy remands a case to the bankruptcy court for significant
further proceedings, the remand order is not ‘final’ and therefore
not appealable under § 158(d).”) (quoting In re Nichols, 21 F.3d
690, 692 (5th Cir. 1994).
This Court lacks jurisdiction to entertain Frisard’s appeal.
It is hereby DISMISSED.
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