Halbert v. Yousif ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0031P (6th Cir.)
File Name: 00a0031p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

In Re: SAMI YOUSIF,

Debtor.

________________________

No. 98-1805

TODD M. HALBERT, >
Plaintiff-Appellant, 



v.


SAMI YOUSIF; SANA YOUSIF;
FLORENCE TANNERS, 

Defendants-Appellees. 
INCORPORATED,

1
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 97-75047; 97-75048—Julian A. Cook, Jr.,
District Judge.
Argued: October 29, 1999
Decided and Filed: January 20, 2000
Before: WELLFORD, MOORE, and GILMAN, Circuit
Judges.
1
2 In re Yousif No. 98-1805 No. 98-1805 In re Yousif 19
_________________ that enables a court of appeals to determine whether the
district court’s order is a final and appealable order without
COUNSEL having first to reach the merits of the appeal. Accordingly, I
think that we should adopt “the prevailing view that courts of
ARGUED: Todd M. Halbert, Southfield, Michigan, for appeals lack jurisdiction over appeals from orders of district
Appellant. John D. Hertzberg, Southfield, Michigan, for courts remanding for significant further proceedings in
Appellees. ON BRIEF: Todd M. Halbert, Southfield, bankruptcy courts.” Dicola v. American Steamship Owners
Michigan, for Appellant. John D. Hertzberg, Southfield, Mut. Protection and Indem. Ass’n, Inc. (In re Prudential
Michigan, for Appellees. Lines, Inc.), 59 F.3d 327, 331 (2d Cir. 1995) (quotation
omitted); see also In re Lopez, 116 F.3d at 1192 (“[A]
WELLFORD, J., delivered the opinion of the court, in decision by the district court on appeal remanding the
which GILMAN, J., joined. MOORE, J. (pp. 13-19), bankruptcy court’s decision for further proceedings in the
delivered a separate concurring opinion. bankruptcy court is not final, and so is not appealable to this
court, unless the further proceedings contemplated are of a
_________________ purely ministerial character.”). In the present case, the district
OPINION court affirmed much of the bankruptcy court’s decision, but
_________________ it remanded the case to the bankruptcy court so that the
bankruptcy court could make further factual findings to
HARRY W. WELLFORD, Circuit Judge. Todd M. support its conclusion that Halbert violated the disclosure
Halbert, a Michigan attorney representing himself on this requirements of § 329(a) and Bankruptcy Rule 2016(b).
appeal as he did in the district court, takes appeals from Halbert, 225 B.R. at 354-58. Because the district court’s
denials of his applications for attorney fees with respect to order remanding the case for further factual findings
two separate bankruptcy cases, one involving Sami and Sana contemplates significant further proceedings in the
Yousif and the other involving the corporation controlled by bankruptcy court, I do not believe that the district court’s
the Yousifs, Florence Tanners, Incorporated (“Tanners”). The order should properly have qualified as a final order within
Yousifs and Tanners filed Chapter 11 bankruptcy cases and the meaning of § 158(d), and thus the district court could not
were represented before and after these filings by Halbert. properly certify that it had issued a final judgment of a
Ultimately, after protracted proceedings, the bankruptcy court separate claim pursuant to Rule 54(b).
issued an opinion denying the requested fees based on what
the court perceived as a “systematic” pattern of impropriety I concur in the judgment of the majority because I believe
on Halbert’s part, involving transfers of merchandise to the that we do not have jurisdiction to review the district court’s
attorney from the debtors and allegations of preferential order denying Halbert’s fee application in the Tanners’
payments and transfers. bankruptcy case.
Debtors claim that Halbert was not qualified under
bankruptcy law and rules to serve as counsel in the Chapter
11 proceedings, and that transfers of merchandise to Halbert
had occurred during the 90-day period before the filings and
constituted preferential transfers under § 547(b) of the Code.
In one opinion of the bankruptcy court, appealed to the
18 In re Yousif No. 98-1805 No. 98-1805 In re Yousif 3
from Tanners within the ninety-day preference period, Halbert district court and essentially affirmed, at least in part, the
became ineligible to serve as its attorney, at least in the former found that some antecedent debt was satisfied by the
absence of curative measures which did not occur here.” transfer at issue, disqualifying Halbert. We have found that
Halbert v. Yousif, 225 B.R. 336, 344 (E.D. Mich. 1998). The there is a serious jurisdictional question in these cases
district court, however, also vacated the bankruptcy court’s consolidated for appeal and asked the parties to address the
determination that Halbert had violated the disclosure issue at oral argument. See Millers Cove Energy Co. v.
requirements set forth in § 329(a) and Bankruptcy Rule Moore (In re Millers Cove Energy Co.), 128 F.3d 449, 450
2016(b), remanding this issue to the bankruptcy court for (6th Cir. 1997) (“‘Subject matter jurisdiction cannot be
further factual findings. Halbert, 225 B.R. at 354-58. conferred on federal courts by consent of the parties. The
existence of subject matter jurisdiction, moreover, is an issue
If we were to decide on appeal that Halbert’s fee that may be raised at any time, by any party, or even sua
application was properly denied on grounds that he was not a sponte by the court itself.’”) (quoting Ford v. Hamilton Invs.,
disinterested person within the meaning of 11 U.S.C. Inc., 29 F.3d 255, 257 (6th Cir. 1994)).
§ 327(a), then the issue involving Halbert’s compliance with
the disclosure requirements of § 329(a) and Bankruptcy Rule We have jurisdiction to entertain orders and judgments that
2016(b), like the issue involving the fraudulent release in effectively and finally dispose of all claims presented to the
Gardner, becomes non-dispositive. See, e.g., Halbert, 225 district court. This requirement is referred to as the final
B.R. at 356-57 (“Violations of the disclosure and judgment rule, embodied principally in 28 U.S.C. § 1291:
disinterestedness rules are independent of each other, “The courts of appeals . . . shall have jurisdiction of appeals
although the remedies for each are similar.”). If, on the other from all final decisions of the district courts. . . .” In the
hand, we were to decide to reverse the bankruptcy court’s dispute before us, each bankruptcy case retained its separate
determination that Halbert was not a disinterested person, identity, although the appeals from the separate orders or
then the issue involving the disclosure requirements of judgments were consolidated for purposes of briefing and
§ 329(a) and Bankruptcy Rule 2016(b) would become a argument; the cases of the Yousifs and Tanners were treated
“central, determinative issue underlying [the] dispute.” In re separately by the bankruptcy court and subsequently by the
Gardner, 810 F.2d at 92. This example illustrates the district court.
concerns that I have about the approach that we articulated in
Gardner: this approach may require the court of appeals to I. THE YOUSIF APPEAL
decide the merits of the issue that has been decided by the
district court before it can determine whether the issue that The district court made the following findings pertinent to
has been remanded by the district court for further factual the Yousifs’ bankruptcy appeal:
findings by the bankruptcy court is central to the outcome of
the case. Halbert submits that this Court should enter a summary
judgment in his favor and against the Yousifs because the
If we were to follow the approach that this court articulated Bankruptcy Court did not cite any law and found no facts
in Gardner, then I believe that we would be forced to reach upon which to support its denial of his request for
the merits of the district court’s decision before we could attorney fees relating to services rendered in the Yousifs’
determine whether the district court’s order denying Halbert’s bankruptcy. This Court agrees. All of his deficiencies,
fee application in the Tanners case is a final and appealable which were the subject of the two opinions by the
order. I believe, however, that we should adopt an approach Bankruptcy Court, relate to his conduct in the Tanners
bankruptcy proceeding. In fact, there is no discussion or
4 In re Yousif No. 98-1805 No. 98-1805 In re Yousif 17
evaluation of Halbert’s compliance or noncompliance that the debtor had executed in favor of the insurance
with his disclosure and disinterestedness duties in the company was fraudulent. The bankruptcy court determined
Yousif case.39 that the insurance policy did not cover the accident, and it
held that the release that the debtor had executed in favor of
Therefore, the entry of a summary judgment by the the insurance company was not fraudulent. On appeal, the
Bankruptcy Court in favor of the Yousifs is vacated. district court affirmed the bankruptcy court’s determination
Further, the issue of whether a summary judgment should that the policy did not cover the accident, but it remanded the
be entered on Halbert’s application for fees in the issue involving the release to the bankruptcy court for further
Yousifs’ case is remanded for further consideration by factual determinations.
the Bankruptcy Court.
39
We determined that the district court’s order was a final and
Although the Bankruptcy Court did recite the Rule 2016(b) appealable order because the “legal issue concerning the
disclosures made by Halbert in the Yousif case, In re Florence interpretation of the insurance policy [was] the central,
Tanners, 209 B.R. at 442, it did not make any factual findings or
legal conclusions that are pertinent to those disclosures. determinative issue underlying [the] dispute.” Id. at 92. Even
though the district court’s “remand directed further factual
(emphasis added). This judgment by the district court determinations on a question of whether the release was
effectuating a remand to the bankruptcy court in the Yousifs’ fraudulent,” the court explained that this “question becomes
case is not a final judgment and is therefore not appealable; academic if [the insurance company] were found not liable
the case was “vacated and remanded” to the bankruptcy court under the insurance policy at issue.” Id. (emphasis in
for necessary factual findings and/or legal conclusions. See, original). Thus, after our decision in Gardner, an appeal of a
e.g., Marlow v. Rollins Cotton Co., 146 F.3d 420, 422 (6th district court order reviewing a bankruptcy court decision
Cir. 1998) (“A decision is final if it ‘ends the litigation on the would appear to qualify as a final and appealable order so
merits and leaves nothing for the court to do but execute the long as the district court does not “remand[ ] the case for a
judgment.’”) (quoting Catlin v. United States, 324 U.S. 229, factual determination on an issue central to the case.” Id. at
233 (1945)). 91 (emphasis in original).
II. THE TANNERS APPEAL The court’s decision in Gardner is directly analogous to the
present case. Here, the bankruptcy court denied Halbert’s fee
We have similar reservations concerning jurisdiction over application in the Tanners’ bankruptcy case because it
the appeal in the Tanners case. The district court summarized determined that he had received undisclosed merchandise
the decision of the bankruptcy court and indicated its general transfers during the ninety-day preference period and
approval of its actions. The district court concluded that the therefore did not qualify as a disinterested person within the
bankruptcy court correctly determined that Halbert unlawfully meaning of 11 U.S.C. § 327(a). The bankruptcy court also
withdrew funds from a $26,600 retainer fee on several determined that Halbert had violated the disclosure
occasions “until it was fully depleted without filing requirements set forth in 11 U.S.C. § 329(a) and Bankruptcy
supplemental disclosures or seeking Court approval” and Rule 2016(b). The district court affirmed the bankruptcy
thereby violated Bankruptcy Rule 2016(b) and 11 U.S.C. court’s denial of Halbert’s fee application on grounds that
§ 330. The district court held that the bankruptcy court Halbert did not qualify as a disinterested person pursuant to
correctly determined that Halbert violated these and other § 327(a), explaining that “[t]he Bankruptcy Court correctly
fiduciary obligations imposed on him by bankruptcy law and determined that, as a result of receiving transfers of value
16 In re Yousif No. 98-1805 No. 98-1805 In re Yousif 5
– the Bankruptcy Rule that incorporates Federal Rule of Civil that it properly denied his fee applications as sanctions. The
Procedure 54(b) – applies to contested matters “unless the district court also found sufficient evidence supporting the
court otherwise directs”). Thus, I concur in the judgment of bankruptcy court’s finding that Halbert violated Bankruptcy
the majority and conclude that we do not have jurisdiction to Rule 2014(a) by failing to disclose that he had received
hear Halbert’s appeal in the Tanners’ bankruptcy case because merchandise transfers from Tanners within ninety days of the
the district court did not issue a certification pursuant to Rule Yousifs’ and Tanners’ bankruptcy filings, thus disqualifying
54(b) as required by our precedents. himself under 11 U.S.C. § 327(a) to serve as Tanners’
counsel.
This circuit’s current approach, which asks whether a
district court has complied with the Rule 54(b) certification After approval of the bankruptcy court’s decision to deny
requirements when a district court has affirmed part of the Halbert’s fees on a number of bases, the district court added
bankruptcy court’s decision and has remanded other parts of this observation calling for the vacating of at least a part of
the case to the bankruptcy court for further proceedings, is the bankruptcy court’s determination:
simply a way of letting the district court initially decide
whether the partial judgment is final. See Brotherton v. The Court, after noting that “[c]learly, there was an
Cleveland, 173 F.3d 552, 559 (6th Cir. 1999) (“By its terms, agreement that Tanners would pay for those services, but
Rule 54(b) applies only to final judgments.”); General Halbert did not disclose such an agreement,” concluded
Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026-27 that Halbert’s failure to disclose this agreement violated
(6th Cir. 1994) (“The first step in certification, entry of partial his disclosure duties under § 329(a) and Rule 2016(b).
final judgment, is satisfied where some decision made by the Id.
district court ultimately disposes of one or more but fewer
than all of the claims or parties in a multi-claim/multi-party Although it is undoubtedly plausible to deduce that a
action.”). Indeed, Rule 54(b) certification is only appropriate fee agreement existed between Halbert and Tanners for
if the district court’s order affirming the bankruptcy court’s these services in contemplation of bankruptcy, there is no
determination of a claim but remanding certain issues to the direct information relating to any such agreement in any
bankruptcy court for further factual findings qualifies as a of the material upon which the Bankruptcy Court relied.
final and appealable order. Thus, there is no extrinsic evidence from which the
Bankruptcy Court could have found that this agreement
This circuit has addressed the underlying question of existed, the method of payment, or the date on which it
finality on one occasion. See Breyfogle v. Grange Mut. Cas. was mutually accepted by, and binding upon, the parties.
Co. (In re Gardner), 810 F.2d 87 (6th Cir. 1986). In Gardner, Consequently, the applicable standards of review for the
this court determined that it had jurisdiction to hear a Appellees’ dispositive motion preclude the Bankruptcy
bankruptcy appeal even though a district court had reversed court from having found sufficient material facts from
and remanded part of the bankruptcy court’s decision. The which the existence and terms of the parties’ agreement
plaintiffs in Gardner sued a debtor and his insurance could be determined.
company for the personal injuries that they sustained in an
automobile accident involving the debtor. The plaintiffs Strict compliance with the directive to draw all
sought damages from the debtor’s insurance company on reasonable inferences in favor of Halbert should have
grounds that the insurance policy at issue covered the resulted in the Bankruptcy Court making no finding
automobile accident. The plaintiffs also alleged that a release about such an agreement. Apart from whether this
directive required the assumption that Halbert agreed to
6 In re Yousif No. 98-1805 No. 98-1805 In re Yousif 15
work on the bankruptcy pro bono, about which this Court described as “full blown federal lawsuits within the larger
expresses no opinion, the Bankruptcy Court improperly bankruptcy case,” and are initiated when a party files a
assumed that any such agreement fell within the bounds complaint with the bankruptcy court. Section 1120(A)(1)
of § 329(a) and Rule 2016(b). This conclusion was Comm. of Unsecured Creditors v. Interfirst Bank Dallas,
reached even though Halbert presented uncontested N.A.(In re Wood and Locker, Inc.), 868 F.2d 139, 142 (5th
extrinsic evidence which indicated that his only fee Cir. 1989) (quotation omitted). Rule 54(b) applies to
agreement with Tanners was achieved on September 1, adversary proceedings that are brought within the context of
1993, more than one year before its petition was filed. a larger bankruptcy proceeding through Bankruptcy Rule
Indeed, Halbert contends on appeal that this fee 7054, which incorporates Rule 54(b). In re Millers Cove
agreement, which provided for an hourly fee of $165, is Energy Co., 128 F.3d at 451.
the only one relating to the bankruptcy, a claim which is
undisputed by the Appellees. In the Tanners’ bankruptcy case, Halbert filed an
application with the bankruptcy court for the payment of
While the Court expresses no opinion as to whether attorney fees, and Tanners responded by filing an objection to
Halbert was under a duty to disclose this fee agreement, his fee application. I do not believe that these proceedings
it is apparent that the Bankruptcy Court drew inferences qualify as adversary proceedings pursuant to Bankruptcy Rule
against him based on an incomplete understanding of the 7001,3 see, e.g., In re Chambers, 140 B.R. 233, 239 (N.D. Ill.
facts and the parties’ positions on this issue. The 1992) (“The court agrees with the bankruptcy court’s finding
Bankruptcy Court also failed to set forth on the record that the Rule 7001 does not govern requests for attorneys
the basis for this alleged violation while at the same time fees.”); 10 LAWRENCE P. KING, COLLIER ON BANKRUPTCY
being unable to establish the date on which the alleged ¶ 9014.01 (15th ed. 1998) (explaining that “contested
agreement was entered. Cf. In the Matter of Prudhomme, applications for the payment of professional fees” are
43 F.3d 1000, 1002-03 (5th Cir. 1995) (court can order “contested matters,” which “do not qualify as adversary
disgorgement of fee paid more than one year before filing proceedings because they are not defined as such by Rule
of petition because one year limitation period in § 329(a) 7001”); instead, I believe that this case is more properly
is rebuttable presumption that any compensation paid characterized as a contested matter. See FED. R. BANKR. P.
before pre-petition year period is not in contemplation of 9014.
bankruptcy and consequently § 329(a) does “not provide
a limitations period beyond which the court cannot Nevertheless, I believe that consistent with our precedents
reach.”). Therefore, the findings and conclusions of the the district court must issue a certification pursuant to Rule
Bankruptcy Court on this issue must be vacated. 54(b) before Halbert may appeal the district court’s order
affirming the bankruptcy court’s denial of his fee application
.... because the Bankruptcy Rules state that the Rule 54(b)
certification requirements apply to contested matters. See
[T]he Bankruptcy Court gives no indication of having FED. R. BANKR. P. 9014 (stating that Bankruptcy Rule 7054
evaluated his argument that the November 19, 1994
merchandise transfer, as well as other merchandise
deliveries, could be applied exclusively to non- 3
I do not agree with the majority’s decision to “view this appeal as
bankruptcy related services that were provided before the an adversary proceeding to determine Halbert’s eligibility for attorney’s
petitions were filed. Moreover, the Bankruptcy Court fees and liability for sanctions and apply Federal Rules of Bankruptcy
Procedure 7054 and 7001(1).”
14 In re Yousif No. 98-1805 No. 98-1805 In re Yousif 7
appealable to this court, unless the further proceedings does not appear to have addressed Tanners’ argument
contemplated are of a purely ministerial character.”), cert. that all of the merchandise transfers to Halbert were in
denied, 522 U.S. 1014 (1997), with Official Comm. of payment of pre-1994 fee obligations.
Unsecured Creditors of Life Serv. Sys., Inc. v. Westmoreland
County MH/MR, 183 F.3d 273 (3rd Cir. 1999) (holding that As a consequence, it appears that the Bankruptcy Court
an appeal involving a district court order remanding part of a did not evaluate this issue in a light most favorable to
case to the bankruptcy court for further proceedings is final Halbert. Hence, its findings and conclusions with regard
and appealable if the policy considerations underlying the to this matter must be vacated.
bankruptcy proceedings would be furthered by an immediate
appeal). ....
This circuit has adopted a unique approach for determining The Bankruptcy Court held that Halbert violated his
whether an appeal from a judgment by a district court disclosure duties under Rule 2016(b) by not revealing the
remanding a case to the bankruptcy court for further receipt of six post-confirmation fees from Tanners,
proceedings is a final and appealable order. See In re Millers totaling $51,868.92.
Cove Energy Co., 128 F.3d at 450-52; Seor, Inc. v. Textron
Oil Corp. (In re Frederick Petroleum Corp.), 912 F.2d at 853- ....
54. In an attempt to “establish[ ] a much-needed, bright-line
test for determining finality [and] providing certainty for . . . [T]he record on this issue is insufficient and, thus,
litigants,” we have held that a bankruptcy appeal is not final it precludes any meaningful judicial review of the
unless the district court complies with the certification contested issue.
requirement of Federal Rule of Civil Procedure 54(b). In re ....
Frederick Petroleum Corp., 912 F.2d 850, 853-54 (6th Cir.
1990); see also In re Millers Cove Energy Co., 128 F.3d at For these reasons, the findings and conclusions of the
451-52. As the court in Millers Cove explained, “In the Bankruptcy Court on this issue are vacated.
absence of certification under Rule 54(b) as to the finality of
a partial disposition by the district court in a bankruptcy (footnotes omitted). Despite vacating the bankruptcy court’s
proceeding, any partial disposition is deemed non-final for opinion and judgment in several particulars as above-related,
purposes of appeal.” Id. at 452. the district court proceeded to find that “the Bankruptcy
Court’s denial of Halbert’s fee application in the Tanners’
The court in Millers Cove, however, was careful to point case was fully warranted.”
out that the bankruptcy dispute at issue in the case was
brought as 2an adversary proceeding pursuant to Bankruptcy The judgment, however, concluded:
Rule 7001. Id. at 451-52. Adversary proceedings have been
The denial by the Bankruptcy Court of Halbert’s fee
application in the Tanners’ bankruptcy case is affirmed,
2
Bankruptcy Rule 7001 sets forth those proceedings that qualify as although certain findings of fact and conclusions of law
adversary proceedings: An adversary proceeding includes “a proceeding upon which the holding by the Bankruptcy Court was
to recover money or property, other than a proceeding to compel the based are vacated and remanded to the Bankruptcy
debtor to deliver property to the trustee, or a proceeding under § 554(b) Court.
or § 725 of the Code, Rule 2017, or Rule 6002.”
8 In re Yousif No. 98-1805 No. 98-1805 In re Yousif 13
(emphasis added). Under the circumstances, although the _____________________
district court has noted affirmance of the bankruptcy court in
the Tanners case in a number of aspects, we confess that we CONCURRENCE
cannot determine, due to what we perceive are, at best, _____________________
ambiguities in the lengthy decision of the district court,
whether there has been rendered a final judgment within the KAREN NELSON MOORE, Circuit Judge, concurring. I
meaning of § 1291 in the Tanners case. “Certain findings . . . join Part I of the majority’s opinion because I agree that the
upon which the holding by the Bankruptcy Court was based” district court’s order remanding Halbert’s fee application in
were “vacated and remanded,” and are relevant to the issues the Yousifs’ bankruptcy case is not a final and appealable
presented in this appeal. “If . . . the district court order order. I concur in the judgment of the majority with respect
remands the case for a factual determination on an issue to Part II of its opinion, but I write separately to clarify this
central to the case, the district court order is determined not circuit’s approach for determining “the finality of district
to be appealable because the case cannot be resolved properly court orders remanding a case for further proceedings in
until the appropriate fact-finder, the bankruptcy court, makes bankruptcy court.” Millers Cove Energy Co. v. Moore (In re
necessary factual findings.” Breyfogle v. Grange Mutual Millers1 Cove Energy Co.), 128 F.3d 449, 451 (6th Cir.
Casualty (In re Gardner), 810 F.2d 87, 91-92 (6th Cir. 1987). 1997).
Because the bankruptcy court serves as an “adjunct” to the
district court, “we view all the proceedings in this action, We have jurisdiction to review only the “final decisions,
whether in the Bankruptcy Court or the District Court as one judgments, orders, and decrees” of a district court when a
proceeding in bankruptcy.” Seon, Inc. v. Textron Oil Corp. district court has acted in an appellate capacity and has
(In re Frederick Petroleum Corp.), 912 F.2d 850, 853 (6th reviewed a bankruptcy court decision. 28 U.S.C. § 158(d);
Cir. 1990). Thus, we view this appeal as an adversary see also In re Millers Cove Energy Co., 128 F.3d at 451.
proceeding to determine Halbert’s eligibility for attorney’s Courts of appeals, however, have had a difficult time agreeing
fees and liability for sanctions and apply Federal Rules of on exactly what constitutes a final decision when reviewing
Bankruptcy Procedure 7054 and 7001(1) and Fed. R. Civ. P. an appeal of a district court order reviewing a bankruptcy
54(6). See, id. at 853-54; Millers Cove Energy Co. v. Moore court decision – particularly when a district court has affirmed
(In re Millers Cove Energy Co.), 128 F.3d 449 (6th Cir. part of the bankruptcy court’s decision and has remanded
1997). Rule 54(b) provides that: other parts of the case to the bankruptcy court for further
proceedings. Compare In re Lopez, 116 F.3d 1191, 1192 (7th
(b) Judgment Upon Multiple Claims or Involving Cir.) (holding that “a decision by the district court on appeal
Multiple Parties. When more than one claim for relief remanding the bankruptcy court’s decision for further
is presented in an action, whether as a claim, proceedings in the bankruptcy court is not final, and so is not
counterclaim, cross-claim, or third-party claim, or when
multiple parties are involved, the court may direct the
entry of a final judgment as to one or more but fewer 1
than all of the claims or parties only upon an express I write separately only with respect to Part II of the majority’s
determination that there is no just reason for delay and opinion, which addresses the part of the district court’s order that affirms
the bankruptcy court’s denial of “Halbert’s fee application in the Tanners’
upon an express direction for the entry of judgment. In bankruptcy case,” and vacates and remands to the bankruptcy court
the absence of such determination and direction, any “certain findings of fact and conclusions of law upon which the holding
order or other form of decision, however designated, by the Bankruptcy Court was based.” Halbert v. Yousif, 225 B.R. 336,
360 (E.D. Mich. 1998).
12 In re Yousif No. 98-1805 No. 98-1805 In re Yousif 9
been met; first, the district court must “clearly which adjudicates fewer than all the claims or other
evidence[] its intent that the opinion . . . represent[ed] rights and liabilities of fewer than all the parties shall not
the final decision in the case;” second, the judgment terminate the action as to any of the claims or parties, and
must have been “properly recorded on the clerk’s the order or other form of decision is subject to revision
docket;” and third, “the appellee from the district court at any time before the entry of judgment adjudicating all
[must not have] objected to perfecting the appeal from the claims and the rights and liabilities of all the parties.
that order.”
See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438
Whittington v. Milby, 928 F.2d 188, 192 (6th Cir.), cert. (1956) (“[Rule 54(b)] does not supersede any statute
denied, 512 U.S. 883 (1991) (quoting Bankers Trust v. Mallis, controlling appellate jurisdiction. It scrupulously recognizes
435 U.S. 381, 387 (1978)). the statutory requirement of a ‘final decision’ under § 1291 as
a basic requirement for an appeal to the court of appeals.”).
In this case, a remand for entry of a separate judgment
while retaining jurisdiction over the appeal would serve no The district court has made no determination that “there is
purpose if the judgment was not a final appealable order. no just reason for delay” on a final judgment entered as “to
Likewise, even if the district court had entered a separate one or more but fewer than all the claims or parties.” No
document, we still would need to inquire into its finality. See Rule 54(b) certification was issued or requested. “In the
Bankers Trust, 435 U.S. at 385-86 n.6 (“Even if a separate absence of certification under Rule 54(b) as to the finality of
judgment is filed, the courts of appeals must still determine a partial disposition by the district court in a bankruptcy
whether the district court intended the judgment to represent proceeding, any partial disposition is deemed non-final for
the final decision in the case.”); see also Green v. Nevers, No. purposes of appeal.” In re Millers Cove Energy Co., 128 F.3d
98-1695, 1999 WL 1044239 *n.2 (6th Cir. Nov. 19, 1999). at 452.
Accordingly, we find that we clearly have no jurisdiction in We therefore lack subject matter jurisdiction under 28
the Yousifs’ appeal. We must also decline jurisdiction in the U.S.C. § 158(d) and must dismiss the appeal. See id.
attempted Tanners’ appeal for the reasons indicated because
it is premature. We pass to another matter of concern on the issue of
jurisdiction--Halbert’s notice of appeal, which is set out
below:
10 In re Yousif No. 98-1805 No. 98-1805 In re Yousif 11
UNITED STATES DISTRICT COURT The notice of appeal may be insufficient because, among
EASTERN DISTRICT OF MICHIGAN other things, it does not name the court to which appeal is
SOUTHERN DIVISION taken. See, however, Dillon v. United States, 184 F.3d 556
(6th Cir. 1999) (en banc) (holding that “where only one
TODD M. HALBERT, CONSOLIDATED avenue of appeal exists, [Fed. R. App. P.] 3(c)(1)(C) is
APPEALS satisfied even if the notice of appeal does not name the
appellate court”). The notice makes no reference to a separate
Appellant, Case Nos. 97-CV-75047 judgment entry that appears in the joint appendix in the
97-CV-75048 Tanners case. The only reference is to the lengthy “Order”
from which we have cited a number of excerpts. The “Order”
v. Hon. Julian Abele Cook, Jr. is really an opinion dealing with two separate cases, one of
which we have found to be clearly not appealable.
SAMI YOUSIF, SANA YOUSIF, and
FLORENCE TANNERS, INC., Furthermore, the record does not reflect that there was a
separate judgment entry, pursuant to Fed. R. Civ. P. 58, which
Appellees. mandates entry of a separate document. This requirement
may be waived, however, under certain circumstances. See
____________________________________/ Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978). In the
present case, the district court entered its order on the docket
NOTICE OF APPEAL sheet, and the defendants did not object to perfecting the
appeal from that order. However, because it remanded the
Todd M. Halbert (“Appellant”) appeals as a matter of Yousifs case in its entirety and the Tanners case in part for
right from that certain Order entered by the District Court further findings, it is certainly arguable that the district court
on July 2, 1998. did not evidence clear intent that the opinion be a final
The parties to the Order appealed from and the names decision in the case and thus did not meet the requirements
of their respective attorneys are as follows: for waiver.
Sami Yousif and Sana Yousif: C. William Garratt, In certain cases “although the absence of a separate
Esq. document does not foreclose appellate review, . . . ‘the
question raised by [the] appeal can be more fully considered
Florence Tanners, Inc.: C. William Garratt, Esq. if the decision below is made explicit in a judgment.’”
Beukema’s Petroleum Co. v. Admiral Petroleum Co., 613
___________________________ F.2d 626, 628-29 (6th Cir. 1979) (holding that Bankers Trust
TODD M. HALBERT (P33488) applied to appeals from preliminary injunctions) (quoting
Counsel for Appellant Turner v. Air Transport Lodge 1894, 585 F.2d 1180 (2d Cir.),
24359 Northwestern Hwy., #250 cert. denied, 442 U.S. 919 (1978)).
Southfield, MI 48075
(243) 356-6204 Following Bankers Trust, this court held that
DATED: July 10, 1998 [T]he parties to an appeal may waive the separate
judgment requirement where three conditions have