IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-3144
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IN THE MATTER OF: ALBERT J. AUCOIN, JR.
Debtor.
ALBERT J. AUCOIN, JR.,
Appellant,
versus
SOUTHERN INSURANCE FACILITIES LIQUIDATING
CORPORATION and CAMPBELL & ASSOCIATES
LIQUIDATING CORPORATION,
Appellees.
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Appeal from the United States District Court for the
Eastern District of Louisiana
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(September 30, 1994)
Before GARWOOD and BARKSDALE, Circuit Judges, and WALTER,*
District Judge.
GARWOOD, Circuit Judge:
Appellant Albert J. Aucoin (Aucoin), a debtor in a Chapter 7
bankruptcy proceeding, appeals the lower courts' decisions
granting Southern Insurance Facilities Liquidating Corporation
and Campbell & Associates Liquidating Corporation (Appellees) an
*
District Judge of the Western District of Louisiana, sitting
by designation.
extension of time to object to discharge or the dischargeability
of certain debts pursuant to 11 U.S.C. §§ 523(c) and 727. We
dismiss the appeal for want of jurisdiction.
Facts and Proceedings Below
On April 26, 1991, Aucoin filed a Chapter 7 bankruptcy
petition, which listed Appellees as creditors. Thereafter,
Appellees were given notice, pursuant to 11 U.S.C. § 341(a), of a
meeting of the creditors scheduled for June 4, 1991. The notice
also stated that August 5, 1991, was the deadline for filing 11
U.S.C. § 727 objections to discharge of the debtor and/or filing
11 U.S.C. § 523(c) objections to the dischargeability of specific
debts.
On August 2, 1991, Appellees filed a "Motion to Extend Time
to Object to Discharge" (Motion to Extend). The Motion to Extend
alleged that Aucoin, a former officer and director of each of
Appellees, had not turned over certain corporate books and
records and also had failed to provide an accounting respecting
the period of time he was in control of the corporations.
Appellees asserted that as the books and records concerned
possible grounds for objection to discharge, they needed
additional time to obtain and review the requested documents.1
1
In a memorandum in support of their Motion to Extend, the
Appellees asserted that they had learned of "many instances of
mishandling of funds, breach of fiduciary duty, conflicts of
interest and fraud" committed by Aucoin. The Appellees alleged
that Aucoin, in his capacity as controller of Appellees, had:
(1) paid a personal debt to a bookie out of a corporate account;
(2) deposited only $19,000 of a $30,000 IRS refund in the
appropriate corporate account, claiming the remainder was a
professional fee; (3) made numerous checks payable to one entity
2
On January 8, 1992, the bankruptcy court granted Appellees'
Motion to Extend. Aucoin appealed the decision in district
court, arguing that Appellees' potential objections related to
dischargeabilty of specific debts pursuant to section 523(c), yet
their Motion to Extend referred only to objections to discharge
of the debtor pursuant to section 727(a). The district court
affirmed the bankruptcy court's decision and held that the
extended deadline applied to objections under both section 727(a)
and section 523(c). Aucoin now appeals to this Court.
Discussion
I. 28 U.S.C. § 158
"Under 28 U.S.C. § 158(a), district courts have jurisdiction
to hear appeals from final and interlocutory judgments and orders
of the bankruptcy court."2 In re Watson, 884 F.2d 879, 880 (5th
Cir. 1989). However, appellate courts, pursuant to 28 U.S.C. §
158(d)3, can review only appeals from a bankruptcy court's final
decisions, judgments, and orders. In re First Financial
while the check stubs and accounts showed payment to a different
entity or person; and (4) written a corporate check to another
corporation in which he personally was a twenty percent
shareholder at a time when Appellees owed no money to that payee
corporation.
2
Section 158(a) states in part: "[t]he district courts of the
United States shall have jurisdiction to hear appeals from final
judgments, orders, and decrees, and, with leave of the court,
from interlocutory orders and decrees . . . ."
3
Section 158(d) states in part: "[t]he court of appeals shall
have jurisdiction of appeals from all final decisions, judgments,
orders, and decrees . . . ."
3
Development Corp., 960 F.2d 23, 25 (5th Cir. 1992).4
"A decision is final when it 'ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.'" Askanase v. Livingwell, Inc., 981 F.2d 807, 810 (5th
Cir. 1993) (citations omitted). The order granting the Motion to
Extend was not a final decision since after Appellees file their
objections pursuant to the extension, the bankruptcy court will
still have to determine whether to grant or deny those objections
(and will doubtless have to conduct a trial or hearing for that
purpose). Therefore, that order is the prologue to, rather than
the termination of, the dispute between the parties. As Aucoin's
appeal is interlocutory in nature, this Court does not have
jurisdiction pursuant to section 158(d).5
4
This Court in First Financial, citing the Supreme Court's
decision in Connecticut National Bank v. Germain, 112 S.Ct. 1146
(1992), noted that section 158 is not the exclusive provision
governing bankruptcy appellate jurisdiction. First Financial at
25. The court stated "one who is dissatisfied with an
interlocutory order of a bankruptcy court has available an
alternative avenue of appeal . . . in 28 U.S.C. § 1292(b), which
allows a court of appeals to hear an appeal of any certified
interlocutory order of a district court." Id. As the district
court's decision was not certified pursuant to 28 U.S.C. §
1292(b), we will address only whether we have jurisdiction
pursuant to section 158(d).
5
In Matter of Ichinose, 946 F.2d 1169 (5th Cir. 1991), the
bankruptcy court denied the debtor's motion to dismiss as
untimely a creditor's complaint seeking to determine
dischargeability under section 523. The debtor took an
interlocutory appeal to the district court under section 158(a),
which the district court allowed. The district court then
reversed the bankruptcy court and held that creditor's complaint
was untimely and, in substance, ordered it dismissed. The
creditor appealed to us. We held that "although the bankruptcy
court's order was interlocutory," the "district court's reversal
'cured' the interlocutory nature of the bankruptcy court's order"
because "as a result of the district court's order reversing the
4
II. Collateral Order Doctrine
Aucoin argues that even if the Order is interlocutory, this
Court still has jurisdiction under the collateral order doctrine.
That doctrine recognizes a narrow exception to the final judgment
rule for interlocutory orders that "finally determine claims of
right separable from, and collateral to, rights asserted in the
action, [which are] too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated."
Cohen v. Beneficial Industrial Loan Corporation, 69 S.Ct. 1221,
1225-1226 (1949). To fall under the collateral order doctrine
"an order must at a minimum satisfy three conditions: [1] It
must 'conclusively determine the disputed question,' [2] 'resolve
an important issue completely separate from the merits of the
action,' and [3] 'be effectively unreviewable on appeal from a
final judgment.'" Richardson-Merrell, Inc. v. Koller, 105 S.Ct.
2757, 2761 (1985). These conditions are conjunctive: failure of
any one results in the failure of jurisdiction. In re Delta
Services, 782 F.2d 1267, 1272 (5th Cir. 1986).
Although Aucoin's appeal might arguably satisfy the first
and second conditions, the appeal definitely does not satisfy the
bankruptcy court and rendering judgment (dismissing Homer's [the
creditor's] complaint), there is no further action to be taken by
the bankruptcy court, except mechanical entry on the docket that
the complaint is dismissed." Id. at 1177 (emphasis added).
Here, by contrast, the district court affirmed, and did not
change or "cure" the interlocutory nature of, the bankruptcy
court's order, and under the district court's order the
bankruptcy court must still decide the merits of Appellees'
complaints under sections 727 & 523(c).
5
last condition. If, in accordance with the district court's
order, Appellees timely file objections, the bankruptcy court
will ultimately either grant or deny Appellees' objections to
dischargeability and/or discharge. Thereafter, if the ruling is
adverse to Aucoin, he can then appeal, and his appeal may embrace
not only the bankruptcy court's decision regarding discharge, but
also any of the procedural rulings that adversely affected that
decision, including the order granting the Motion to Extend.
Thus, the order granting the Motion to Extend is reviewable on
appeal after the lower courts have rendered final judgment on the
merits of the adversary proceeding between Aucoin and Appellees.
Therefore, the collateral order doctrine is not applicable to
Aucoin's interlocutory appeal. The order is no more "collateral"
than an order denying a defendant's motion to dismiss based on
the statute of limitations.
For the foregoing reasons we lack jurisdiction and
accordingly the appeal is
DISMISSED.
6