United States Court of Appeals,
Fifth Circuit.
No. 95-10400
Summary Calendar.
In the Matter of AEGIS SPECIALTY MARKETING INC. OF ALABAMA; Wood
Agency Inc.; Aegis Specialty Marketing Inc. of Delaware; Aegis
Specialty Marketing Inc. of Nevada, Debtors.
AEGIS SPECIALTY MKTG. INC., et al. Appellants,
v.
Donald N. FERLITA, Appellee.
Nov. 9, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:
Debtors-Appellants Aegis Specialty Marketing Inc. of Alabama,
et al., appeal from a district court decision reversing the
bankruptcy court's confirmation of a reorganization plan filed
pursuant to Chapter 11 of the Bankruptcy Code. We find that the
decision of the district court is not a "final order"1, and we
therefore dismiss this appeal for want of jurisdiction.
PROCEEDINGS BELOW
On November 17, 1992, Aegis Specialty Marketing Inc. of
Alabama, et al. ("the Debtors"), filed for relief under Chapter 11
of the Bankruptcy Code. Donald L. Ferlita ("Ferlita"), a creditor
in the bankruptcy proceedings, timely filed a Proof of Claim in the
1
See 28 U.S.C. § 158(d)
1
bankruptcy court. This claim was classified as a general unsecured
claim pursuant to Class 6 of the Debtor's Plan of Reorganization.
On June 10, 1993, the Debtors filed their Chapter 11 Plan of
Reorganization. After determining that the Debtor's proposed plan
complied with the requirements of 11 U.S.C. § 1129(a), the
bankruptcy court confirmed the plan. The bankruptcy court later
entered findings of facts and conclusions of law to support its
decision to confirm. Ferlita appealed the confirmation to the
federal district court for the Northern District of Texas.
On appeal to the district court, Ferlita argued that the
Debtors had failed to present the bankruptcy court with any
evidence that would support a finding that the plan complied with
the requirements of 11 U.S.C. § 1129(a). Specifically, Ferlita
argued that the "good faith" requirement of § 1129(a)(3)2 was not
met.
The district court concluded that, under the law of this
circuit, the bankruptcy court is to hold an evidentiary hearing on
the confirmability of a plan of reorganization, with the burden on
the plan's proponents to present evidence supporting a finding of
compliance with the requirements of § 1129(a).3 The district court
held that, because the bankruptcy court incorrectly based its
2
11 U.S.C. § 1129(a)(3) provides:
(a) The court shall confirm a plan only if all of the
following requirements are met:
(3) The plan has been proposed in good faith and not by
any means forbidden by law.
3
Memorandum Opinion and Order, at 4 (March 29, 1995).
2
ruling confirming the plan on the erroneous assumption that Ferlita
had the burden of proving the plan unconfirmable, the bankruptcy
court's ruling was invalid and had to be reversed and remanded to
the bankruptcy court for further proceedings to determine whether
the plan met the requirements of § 1129(a).
The Debtors filed the present appeal urging us to reverse the
district court on the basis that the district court erred when it
disregarded the bankruptcy court's factual findings and reversed
the order confirming the reorganization plan. The issue of
jurisdiction was raised by this court, and we requested
supplemental briefs from the parties on this issue. After
reviewing the parties' briefs and the applicable case law, we have
determined that we are without jurisdiction to reach the merits of
this appeal.
JURISDICTION UNDER 28 U.S.C. § 158(d)
This court has jurisdiction to hear "appeals from all final
decisions, judgments, orders, and decrees." 28 U.S.C. § 158(d).
The jurisdictional question we are presented with in the instant
case is whether, under the facts presented, the district court's
order reversing and remanding "for further proceedings to determine
whether such [reorganization] plan meets the requirements of 11
U.S.C. § 1129"4 is a "final order" for purposes of appeal.
This court has stated "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
4
Supra note 4, at 5-6.
3
"final' and therefore not appealable under § 158(d)." In re
Nichols, 21 F.3d 690, 692 (5th Cir.1994) (citing In re Bowman, 821
F.2d 245 (5th Cir.1987)). Therefore, where a district court's
remand entails significant further proceedings, such as additional
fact-finding, then the order should not be considered final.
However, if the remand involves only ministerial proceedings, such
as the entry of an order by the bankruptcy court in accordance with
the district court's decision, then the order should be considered
final.5
We hold that the district court's order reversing and
remanding for further proceedings is not final under § 158(d).
Consequently, we are without jurisdiction to reach the merits of
the Debtors' appeal.
We are not to be understood as holding that a reversal of a
confirmation order can never be considered final. In fact, we have
previously implicitly recognized circumstances in which a district
court's order reversing a confirmation order is final for purposes
of appeal. See In re Briscoe Enter., Ltd., II., 994 F.2d 1160 (5th
Cir.1993) (addressing the merits of an appeal from a district
court's reversal of the bankruptcy court's confirmation order
without discussing jurisdictional issues). Consequently, the
finality of an order for purposes of appeal pursuant to § 158(d)
must be made on a case-by-case basis.
JURISDICTION UNDER THE COLLATERAL ORDER EXCEPTION
5
See Bowman, 821 F.2d at 247 (final order is one in which
all that remains to be done is the mechanical entry of judgment).
4
In the alternative, the Debtors contend that if we do not
have jurisdiction under § 158(d), we may still find jurisdiction
under the collateral order exception. In order to establish
jurisdiction under this exception, three requirements must be
satisfied. The order appealed from must: "(1) "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.' " In re
Aucoin, 35 F.3d 167, 170 (5th Cir.1994) (quoting Richardson-Merrel,
Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d
340 (1985)). "These conditions are conjunctive: failure of any
one results in the failure of jurisdiction." Id. (citing In re
Delta Servs. Indus., Etc., 782 F.2d 1267, 1272 (5th Cir.1986)).
While the order appealed from in the instant case might
arguably satisfy the first two requirements of the collateral order
exception, it clearly does not satisfy the third. Assuming,
arguendo, that the district court improperly placed the burden of
proving that the reorganization plan complied with the requirements
of § 1129(a) on the proponents of the plan, such ruling would still
be reviewable on appeal from a final judgment. Consequently, the
order appealed from does not satisfy the third requirement of the
collateral order exception and we are therefore without
jurisdiction to hear this appeal.
CONCLUSION
Because we lack jurisdiction in the instant case, we do not
address the issue of whether the district court was correct when it
5
held that the the burden of proving the confirmability of a plan of
reorganization is upon the proponent of the plan. We also express
no opinion as to whether the confirmation hearing conducted by the
bankruptcy judge on October 28, 1993, amounted to a sufficient
evidentiary hearing.6 The appeal is therefore DISMISSED.
6
See Williams v. Hibernia Nat'l Bank, 850 F.2d 250, 253 (5th
Cir.1988) (bankruptcy court must hold an evidentiary hearing in
ruling on confirmation).
6