Cabuya Cherokee, SA et al v. Vogt et al

Filing 7

ORDER: Appellants' Motion for Leave to Appeal (Dkt. #1-1) is GRANTED. The Clerk shall docket the record on appeal. The Appellants shall file their Brief within fourteen (14) days of the record on appeal being docketed. Signed by Judge James S. Moody, Jr on 5/1/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CABUYA CHEROKEE, SA, CABUYA
DELAWARE, SA, CABUYA FLORIDA,
SA, CABUYA SOLUE, SA, CABUYA
SPRUCE, SA, CABUYA SUWANEE, SA,
CIRCUITO INICIAL CUATRO HAS, SA,
DULCE VERDE TROPICAL DEL
PACIFICO, SA, EL AREA FINAL, SA,
FRENTE VERDE, SA, INMOBILIARIA
CEROS Y UNOS, SA, INVERSIONES
FONDO AZUL DEL PACIFICO, SA,
PLAYA COCOS DE MONTEZUMA, SA,
PLAZA ARENA SOL, SA, TERRENO
JOTA ZETA, SA, VISTA CABUYA JG,
SA, VO Y ZETA TERRENOS, SA,
VESPER BELL, LIMITADA, JERRY
SARBO, AMERICAN TRANSWORLD
CORPORATION and BETH BASHAM,
Appellants,
v.

Case No: 8:13-cv-2942-T-30

JEFFREY DAVID VOGT, JEANETTE
MELANIE VOGT, CHED EDWARD
VOGT and SUSAN K. WOODARD,
Appellees.

ORDER
THIS CAUSE comes before the Court upon the Appellants’ Motion for Leave to
Appeal (Dkt. #1-1) and Appellees’ Answer (Dkt. #1-2). Appellants seek leave to appeal
the judgments of the Bankruptcy Court titled Order Granting Amended Motion for Partial
Summary Judgment and Denying Cross-Motion for Summary Judgment dated January 25,

2013, and Memorandum Opinion and Order Denying Motion for Reconsideration of
Summary Judgment dated August 28, 2013. Appellees argue that these Orders are not
appropriate for interlocutory appeal.
A district court may grant leave to appeal an interlocutory order if the subject issue
“(1) involves a controlling question of law, (2) as to which there is a substantial ground for
difference of opinion, and (3) is such that an immediate appeal would advance the ultimate
termination of litigation.” Figueroa v. Wells Fargo Bank N.A., 382 B.R. 814, 823-24
(S.D. Fla. 2007). Here, Appellants have satisfied all three grounds on at least one issue –
whether the Order in the previous bankruptcy case, case number 8:09-bk-03513-MGW,
entitled Order Determining Debtor in Default Under Settlement Agreement And That
American Transworld Corporation Is Entitled To Immediate Turnover Of Entrusted
Assets, Requiring Debtor To File Supplemental Documentation Regarding Compliance
With Supplemental Order Enforcing Settlement Agreement (Dkt. #316), entered on April
2, 2010, is entitled to res judicata effect. That issue involves a controlling question of law
for which there is a substantial ground for difference of opinion and for which an immediate
appeal will advance the ultimate termination of this litigation.
The parties may address whatever issues they wish in this appeal, but are directed
to focus on the issue identified. Further, the parties should address whether this issue was
properly addressed in the Bankruptcy Court prior to the entry of the Orders appealed and
whether it may now be addressed for the first time in this appeal.
It is therefore ORDERED AND ADJUDGED that:
1.

Appellants’ Motion for Leave to Appeal (Dkt. #1-1) is GRANTED.

2

2.

The Clerk shall docket the record on appeal.

3.

The Appellants shall file their Brief within fourteen (14) days of the record

on appeal being docketed.
DONE and ORDERED in Tampa, Florida, this 1st day of May, 2014.

Copies furnished to:
Bankruptcy Judge Michael Williamson
Bankruptcy Clerk of Court
Counsel/Parties of Record
F:\Docs\2013\13-cv-2942 bk appeal.docx

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