Barbara Rivera-Fulton v. Sarah Kaye

Filing

UNPUBLISHED OPINION FILED. [13-31123 Dismissed for lack of jurisdiction] Judge: WED , Judge: EBC , Judge: GJC [13-31123]

Case: 13-31123

Document: 00512839034

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Date Filed: 11/17/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-31123
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 17, 2014

In the Matter of: SARAH REVA KAYE,

Lyle W. Cayce
Clerk

Debtor
-----------------------------------------------------------------------------------------------------------ORRILL, CORDELL, & BEARY, L.L.C.,
Appellant

v.
SARAH REVA KAYE,

Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CV-1674

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
Appellant Orrill, Cordell, & Beary, L.L.C. (“OCB”) appealed an order of
the bankruptcy court to the district court pursuant to 28 U.S.C. § 158(a)(1).
The district court reversed in part and affirmed in part and remanded for
further proceedings. OCB appeals to this court pursuant to § 158(d)(1). We
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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ordered additional briefing on the question of whether this court has appellate
jurisdiction to hear this appeal. Because the district court’s order was not final,
we do not have jurisdiction, and we dismiss for lack of jurisdiction.
Sarah Reva Kaye (“Debtor”) filed for bankruptcy under Chapter 7 of the
Bankruptcy Code in 2009. 1 The bankruptcy trustee (“Trustee”) moved to
employ OCB as special counsel and to compensate OCB on a contingency fee
basis. The bankruptcy court approved the Trustee’s request. After OCB
completed its work for the Trustee, OCB asked the bankruptcy court to
determine the amount of its contingency fee. The bankruptcy court determined
that OCB was entitled to $66,666.67. 2 OCB disagreed with the calculation
method used by the bankruptcy judges, and it appealed to the district court.
The district court affirmed the bankruptcy court’s legal reasoning in part, but
it reversed in part regarding the bankruptcy court’s fee calculation. The court
held that the bankruptcy court should calculate OCB’s fees with reference to
one-half of the value of Debtor’s and her ex-husband’s former community
property. Because the bankruptcy court “did not have a sufficient basis for its
determination of the value of debtor’s one-half of the former community
property,” the court remanded and ordered the bankruptcy court “to determine
the value of the debtor’s share of the former community.” OCB then appealed
to this court under § 158(d)(1).
We “must always be sure of [our] appellate jurisdiction.” In re Yazoo
Pipeline Co., 746 F.3d 211, 214 (5th Cir. 2014) (quoting Castaneda v. Falcon,

Kaye passed away after filing her bankruptcy petition. Her heirs elected to continue
her bankruptcy case.
2 The bankruptcy court first entered a short order granting fees in this amount. OCB
appealed to the district court, and the district court remanded to the bankruptcy court so that
it could explain its findings of fact and reasoning. The bankruptcy court filed additional
reasons and findings of fact, confirming its original fee determination. OCB again appealed
to the district court. The present proceeding arises from the latter appeal.
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166 F.3d 799, 801 (5th Cir. 1999)). “[I]f there is doubt, we must address it, sua
sponte if necessary.” Id. (quoting Castaneda, 166 F.3d at 801). We have
jurisdiction over “appeals from all final decisions, judgments, orders, and
decrees entered” by a district court on appeal from a bankruptcy court. 28
U.S.C. § 158(d)(1). We have held that a bankruptcy court’s order is not final if
it requires “extensive further proceedings.” Yazoo, 746 F.3d at 215 (quoting In
re Pro-Snax Distribs., Inc., 157 F.3d 414, 420 (5th Cir. 1998)). A remand order
requires extensive further proceedings when it requires the bankruptcy judge
to perform judicial functions, as opposed to ministerial ones. Id. Judicial
functions include performing additional fact-finding and exercising judicial
discretion. Id. (“A remand order is not final . . . when it requires a bankruptcy
court to perform judicial functions, such as additional fact-finding or further
factual development, or requires the exercise of judicial discretion.”).
The district court determined that the bankruptcy court did not have a
sufficient basis for determining the value of Debtor’s one-half of the former
community property. Thus, just as in Yazoo, “[t]he district court explained that
there was no factual basis in the record upon which an attorney’s fee award
could be granted.” Id. at 215. Again, just as in Yazoo, the district court’s
remand order requiring further proceedings was an “order[] . . . to perform
further factual development.” Id. at 216.
In its letter brief to the court, OCB cites In re Orr, 180 F.3d 656 (5th Cir.
1999) and argues that Orr allows a different result here than in Yazoo.
Appellant Letter Br. 1-2 (citing In re Orr, 180 F.3d 656, 659 (5th Cir. 1999)).
But Orr turned on the fact that the district court’s order order left nothing for
the bankruptcy court to do. See Orr, 180 F.3d at 659. Thus Orr does not allow
the court to reach a different result in this case than it did in Yazoo.
Because the district court’s order requires the bankruptcy court to
perform additional fact-finding, the district court’s order is not final under 28
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U.S.C. § 158(d)(1). Accordingly, this appeal is DISMISSED for lack of
jurisdiction.

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