Petricca v. Jensen

Filing 10

OPINION AND ORDER granting 5 motion to dismiss bankruptcy appeal; and the appeal is dismissed without prejudice for lack of standing. The Clerk shall enter judgment accordingly, transmit a copy of this Opinion and Order and the Judgment to the Clerk of the Bankruptcy Court, and close the file. Signed by Judge John E. Steele on 12/19/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IN RE:
SR.

LAWRENCE N. PETRICCA,

LAWRENCE N. PETRICCA, SR.,
Appellant,
v.

Case No:
2:16-cv-653-FtM-99
Bankr. No: 9:08-bk-16204-FMD

DIANE L. JENSEN,
Appellee.
OPINION AND ORDER
This matter comes before the Court on appellee’s Motion to
Dismiss Bankruptcy Appeal (Doc. #5) filed on September 14, 2016.
Appellant filed a response in opposition (Doc. #9) on October 25,
2016.

For the reasons set forth below, the motion is granted.
I.

The

Bankruptcy

Court

record

(Doc.

#8)

reflects

that

an

involuntary Chapter 7 bankruptcy proceeding was filed against
debtor Lawrence N. Petricca, Sr. (Debtor or appellant or Petricca)
in October, 2008.

See In re Petricca, 9:08-bk-16204-FMD.

In due

course, Diane L. Jensen (Trustee or Jensen) was appointed Trustee
of the bankruptcy estate.

Debtor received a discharge on March

8, 2013 (Bank. Doc. #385) 1.

On June 15, 2016, Jensen filed a Final

Report (“Final Report”) (Doc. #8-65).

As relevant to this appeal,

at a hearing before the Bankruptcy Court, Petricca raised oral
objections

to

the

Final

Report,

which

the

Bankruptcy

Court

considered and overruled both at the hearing and by written order.
(Docs. ##8-74, 8-79.)

Thereafter, Petricca filed a Motion for

Reconsideration of the Bankruptcy Court’s Order (Doc. #8-75) that
was denied by the Bankruptcy Court on August 11, 2016 (Doc. #82).

Petricca filed a Notice of Appeal (Doc. #1) with the United

States

District

Court

appealing

the

Bankruptcy

Court’s

Order

denying his motion for reconsideration (Doc. #8-2; Bankr. Doc.
#573).

Petricca, who is proceeding pro se, also purports to be

appealing “the fact that the Trustee’s alleged asset sale has
denied the Debtor a ‘Fresh Start’ in his bankruptcy.”

(Doc. #1.)

II.
The Court addresses the two prongs of the Notice of Appeal
separately.
A. Appeal of Fact of Lack of Fresh Start

1

The Court will make reference to the documents filed in the
underlying bankruptcy case for 9:08–bk–16204–FMD throughout this
Opinion and Order, identified as “Bankr. Doc. #,” which are
otherwise judicially noticed and accessible through PACER. Copies
of relevant documents are also included in the record transmitted
by the Bankruptcy Court at Doc. #8, which will be identified in
this Opinion and Order as “Doc. #.”

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The United States District Court functions as an appellate
court in reviewing “final judgments, orders, and decrees” and
certain “interlocutory orders and decrees” of the United States
Bankruptcy Court.
1112,

1116

freestanding

28 U.S.C. § 158(a); In re JLJ, Inc., 988 F.2d

(11th

Cir.

1993).

jurisdiction

to

The

review

District

“facts”

Court

has

unconnected

no

to

a

specific final judgment, order or decree, such as the fact asserted
by appellant in his Notice of Appeal.

Therefore, to the extent

appellant is seeking to appeal the “fact” that he has been denied
a fresh start, that portion of his appeal is dismissed with
prejudice for lack of subject-matter jurisdiction.

Appellant is

not precluded from arguing that the lack of a fresh start is a
basis for challenging the only order he challenges on appeal – the
denial of his motion for reconsideration.
B. Denial of Motion for Reconsideration
Under

the

Final

Report,

Debtor

disbursement from the bankruptcy estate.

will

not

receive

any

Debtor complains only

of the Trustee’s sale of a potential cause of action which may be
brought against the Debtor.

Because this results in a potential

lawsuit against Debtor, Debtor argues that he has not really been
given a “fresh start” by his discharge in bankruptcy.

This

objection to the Bankruptcy Court was overruled, and the Bankruptcy

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Judge declined to change her mind as a result of Debtor’s Motion
for Reconsideration.

From this, Debtor appeals.

Trustee Jensen moves to dismiss this appeal, arguing that
Petricca does not have standing to challenge the Final Report
because Petricca received his discharge on March 8, 2013 (Bankr.
#385) and, since he will not be receiving any disbursements from
the bankruptcy estate, he is not directly or adversely affected
pecuniarily by the Final Report.

(Doc. #5.)

Appellant asserts

that the potential litigation against him which the Final Report
allows gives him a pecuniary interest in the Final Report.
As a “party in interest,” Debtor had standing to object to
the Trustee’s Final Report.
65 (11th Cir. 2013).

In re Smith, 522 F. App’x 760, 764-

However, due to the nature of bankruptcy

proceedings, which often involve parties and claimants who are
dissatisfied

with

any

compromise,

special

rules

have

been

developed to govern which parties may appeal a bankruptcy court
order.

In re Ernie Haire Ford, Inc., 764 F.3d 1321, 1324–25 (11th

Cir. 2014).

The Eleventh Circuit has adopted a “person aggrieved”

standard for determining whether a party can appeal a bankruptcy
court’s order.

Id.

“The person aggrieved doctrine limits the

right to appeal a bankruptcy court order to those parties having
a direct and substantial interest in the question being appealed.
We have held that this doctrine defines aggrieved persons as those

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individuals

who

are

directly,

adversely,

affect[ed] by a bankruptcy court’s order.

and

pecuniarily

An order will directly,

adversely, and pecuniarily affect a person if that order diminishes
their property, increases their burdens, or impairs their rights.”
Id. at 1325.

See also In re Westwood Cmty. Two Assoc., Inc., 293

F.3d 1332, 1335 (11th Cir. 2002).
Here, the only basis for standing which appellant asserts is
that he may be subject to further litigation, and therefore has
not received a “fresh start.”
to establish standing.

The Court finds this is insufficient

A party is not aggrieved, for the purposes

of appealing from a bankruptcy court order, when the only interest
allegedly

harmed

by

that

order

is

liability from future litigation.

the

interest

in

avoiding

“This is so because an order

subjecting a party to litigation, or the risk thereof, causes only
indirect harm to the asserted interest of avoiding liability.
Orders allowing litigation to go forward do not burden a party’s
ability to defend against liability; they simply require parties
to exercise that ability.

Such an effect does not constitute the

direct harm necessary to satisfy our person aggrieved standard.”
In re Ernie Haire Ford, Inc., 764 F.3d at 1325–26 (emphasis in
original).
Accordingly, it is hereby
ORDERED AND ADJUDGED:

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1.

Appellee’s Motion to Dismiss Bankruptcy Appeal (Doc. #5)

is GRANTED.
2.

The Notice of Appeal in this case is DISMISSED without

prejudice for lack of standing by appellant.

The Clerk shall

enter judgment accordingly, transmit a copy of this Opinion and
Order and the Judgment to the Clerk of the Bankruptcy Court,
terminate the appeal, and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2016.

Copies:
Appellant
Counsel of Record
Clerk, Bankr. Court

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19th

day