Elkin v. Metropolitan Property & Casualty Insurance

          United States Court of Appeals
                        For the First Circuit


No. 06-9003

                       IN RE: YURY SHKOLNIKOV,

                                Debtor.
                              __________

                        MIKHAIL ELKIN ET AL.,

                              Appellees,

                                  v.

       METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY,

                              Appellant.


              APPEAL FROM THE BANKRUPTCY APPELLATE PANEL
                         FOR THE FIRST CIRCUIT


                                Before

                          Selya, Circuit Judge,
                   Campbell, Senior Circuit Judge,
                       and Lynch, Circuit Judge.


     Stephen F. Gordon, with whom Peter J. Haley, Leslie F. Su, and
Gordon Haley LLP were on brief, for appellant.
     Edward Foye, with whom Todd & Weld LLP and Marc Alpert were on
brief, for appellees.


                          November 20, 2006
            SELYA, Circuit Judge.      As a general rule, parties may

appeal from a final decision, order, or judgment rendered by a

court, but not simply from statements or findings contained in the

body   of   such   a   decision,   order,   or   judgment.     This   appeal

contradicts that general rule.         Consequently, we dismiss it for

want of appellate jurisdiction.

            Much of the relevant background is laid out in an opinion

resolving an earlier, related appeal. See Metro. Prop. & Cas. Ins.

Co. v. Shan Trac, Inc., 324 F.3d 20 (1st Cir. 2003). We draw

heavily upon that opinion in recounting the travel of this case.

            On March 8, 2000, the debtor, Yury Shkolnikov, drove a

rented van into a median barrier in Clark County, Nevada.          Eight of

the van's passengers were killed and five were injured, apparently

because Shkolnikov fell asleep at the wheel.                 The applicable

automobile liability insurance policy, issued in Massachusetts by

Metropolitan Property & Casualty Insurance Co. (Metropolitan),

provided a per-accident limit of $300,000 in coverage.

            Faced with potential damages far in excess of that sum,

Metropolitan commenced a statutory interpleader action, 28 U.S.C.

§ 1335, in the United States District Court for the District of

Massachusetts.     Attempts to settle the interpleader action never

quite came to fruition: the action culminated in a process by which

the victims could collect the insurance proceeds without litigating

their tort claims, but some claimants found the scope of the


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required waiver to be unacceptable, and the process aborted.                      See

Shan Trac, 324 F.3d at 24-25.             Pertinently, however, while this

action was wending its way through the federal courts, a number of

tort claimants sued Shkolnikov for negligence and/or wrongful death

in a California state court.             On the eve of trial in the state

case, Shkolnikov declared bankruptcy.               That filing shifted the

battlefield to the bankruptcy court in Massachusetts.

            On November 17, 2003, the claimants, qua creditors,

brought a motion in the bankruptcy court for relief from the

automatic    stay   and   for    an   assignment        of   rights.    The    motion

described in detail the asset that the creditors sought to have

assigned — Shkolnikov's rights against his liability insurance

carrier (Metropolitan).         Without opposition, the bankruptcy court

granted the motion on December 3, 2003.

            Simultaneous    with        the    filing    of    the     motion,    the

creditors, for whatever reason, brought an adversary proceeding

against Shkolnikov to compel an assignment of the same rights. The

bankruptcy    court,   acting     sua    sponte,    dismissed        the    adversary

proceeding on February 13, 2004.              The creditors appealed.

            During the pendency of the appeal, the creditors agreed

to   purchase   whatever        rights    Shkolnikov         might   have     against

Metropolitan from the trustee in bankruptcy rather than attempting

to obtain them through continued prosecution of the adversary

proceeding. However, when the trustee gave notice of his intention


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to sell the asset, Metropolitan objected.       The trustee appeared at

the hearing before the bankruptcy court and said, in essence, that

he thought there was no merit to the creditors' putative claims

against Metropolitan but that, as a fiduciary, he saw no reason to

pass up an opportunity to sell the asset (and, thus, enrich the

bankruptcy estate).      The bankruptcy court nonetheless denied the

motion to sell, stating that it would be "an abuse of . . .

power[]"    to   grant   the   motion    in   light   of    the   trustee's

representations.

            The creditors moved for reconsideration and, when the

court denied that motion, they appealed.        On February 2, 2006, the

Bankruptcy Appellate Panel (the BAP) dismissed the appeal.           See In

re Shkolnikov, 337 B.R. 1 (1st Cir. BAP 2006).             The BAP did not

dwell on the denial of the motion to sell but, rather, focused on

the December 3, 2003 order granting the creditors' earlier motion.

The BAP interpreted that order as assigning to the creditors "all

rights the Debtor and/or Debtor's estate may have pursuant to

Chapters 93A and 176D of Massachusetts and/or bad faith law, and/or

common or statutory law of any applicable jurisdiction against

[Metropolitan] and any other individual or entity" with respect to

the accident.     Id. at 3 (quoting 2003 order) (alteration in BAP

opinion).   The BAP then stated:

            When   the  bankruptcy   court  granted   the
            appellants' motion seeking relief from stay
            and assignment of Shkolnikov's rights against
            Metropolitan (and others), its order conveyed

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            to them the very rights that were the subject
            of the trustee's sale motion. That order is
            final and binding on all parties, including
            Metropolitan.     The   court's  refusal   to
            authorize conveyance of the same rights to
            them a second time aggrieved the appellants
            not at all. Accordingly, they lack standing.
            . . . There is no right to redundant relief.

Id. at 4-5 (citations and footnote omitted).        Accordingly, the BAP

dismissed the creditors' appeal for lack of standing.

            Since   Metropolitan    appeared    before   the    BAP   as    an

appellee,   this    ruling   represented   a   victory   for   it.    Though

triumphant, Metropolitan has now appealed. It does not contest the

result of the underlying proceeding — after all, as we have pointed

out, the BAP's dismissal of the creditors' appeal was favorable to

Metropolitan — but, rather, contests the BAP's statement that the

earlier order conveyed Shkolnikov's rights to the creditors.               That

is not a permissible basis for an appeal.

            It is an abecedarian rule that a party cannot prosecute

an appeal from a judgment in its favor.           See Lindheimer v. Ill.

Bell Tel. Co., 292 U.S. 151, 176 (1934); W. W. Windle Co. v.

Comm'r, 550 F.2d 43, 45 (1st Cir. 1977).         There is a corollary to

this rule: since courts of appeals sit to review final decisions,

orders, and judgments of lower courts, such as the BAP, not to

review passages in lower court opinions, a party may not appeal a

favorable decision, order, or judgment for the purpose of securing

appellate review of statements or findings therein. See California

v. Rooney, 483 U.S. 307, 311 (1987). That proposition remains true

                                    -5-
even though the appealing party considers the offending statements

or findings to be erroneous.1   See id.

          That proposition captures the essence of this case:

Metropolitan, though successful in defending against the creditors'

appeal to the BAP, takes umbrage with the BAP's statements about

the 2003 order. That sort of dissatisfaction, without more, cannot

confer a right to appeal upon a successful litigant.    See, e.g.,

Abbs v. Sullivan, 963 F.2d 918, 924 (7th Cir. 1992) (explaining

that "a winner cannot appeal a judgment merely because there are

passages in the court's opinion that displease him").

          We need go no further. Because Metropolitan had no right

to appeal from the BAP's decision in its favor, we dismiss this

proceeding without prejudice for want of appellate jurisdiction.

We take no view as to the correctness vel non of the BAP's

interpretation of the 2003 order which, as we understand it,

remains open to testing in other proceedings.2

          Appeal dismissed.     All parties shall bear their own

costs.



     1
      There may be a narrow exception to this proposition in cases
in which an essential element of the decision will have detrimental
preclusive legal effect on the would-be appellant in future
proceedings. See Elect'l Fittings Corp. v. Thomas & Betts Co., 307
U.S. 241, 242 (1939); W. W. Windle, 550 F.2d at 46. That exception
is not implicated here.
     2
      We are advised that Metropolitan has pending, before the
district court, an appeal from the denial of a motion for relief
from the 2003 order.

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