Stevenson v. A&T Underwriting, LLP

Filing 13

ORDER denying 4 Appellant's Motion to Dismiss Cross-Appeal. Signed by Judge James S. Moody, Jr on 6/22/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRACI K. STEVENSON,
Appellant,
v.

Case No: 8:16-cv-902-T-30

A&T UNDERWRITING, LLP, et al.,
Appellees.

ORDER
THIS CAUSE comes before the Court upon Appellant’s Motion to Dismiss CrossAppeal (Dkt. #4) and Appellees’ Response in Opposition (Dkt. #8). Upon review and
consideration, the motion is denied.
DISCUSSION
This Cross-Appeal is related to two other appeals that have been filed in this Court:
the first appeal (the “First Appeal”) of Stevenson v. Corporation of Lloyd’s, et al.
(Stevenson I”) and the second appeal (the “Second Appeal”) of Stevenson v. A&T
Underwriting, LLP, et al. (Stevenson II). In each appeal, Appellant is the chapter 7 trustee
in the bankruptcy case, Case No. 8:11-bk-10035-CPM, filed by Nasser and Wendy Ayyoub
(the “Debtors”). In the First Appeal, this Court ruled that the Trustee’s breach-of-contract
claim against Lloyd’s of London was precluded under res judicata, or as a compulsory
counterclaim that should have been raised in a prior declaratory judgment action, which
this Court also heard. See Certain Underwriters at Lloyd’s, London v. Best for Less Food

Mart, Inc., No. 8:10-cv-688-T-30AEP. This Court’s opinion affirming the bankruptcy
court’s dismissal of Stevenson I is currently on appeal before the Eleventh Circuit.
Following the bankruptcy court’s dismissal of Stevenson I with prejudice, Appellant
filed Stevenson II, an identical lawsuit against new defendants (who were alleged to have
contractually assumed liability from the defendants in Stevenson I), asserting the same
claims that the bankruptcy court rejected in Stevenson I. As such, the bankruptcy court
similarly dismissed Appellant’s complaint with prejudice, based on its prior ruling in
Stevenson I; the bankruptcy court also adopted this Court’s opinion from the First Appeal.
The Second Appeal is Appellant’s appeal of the bankruptcy court’s dismissal of Stevenson
II.
In the Cross-Appeal, Appellees appeal an interlocutory order that denied their
motion for sanctions, but deferred ruling on Appellant’s request for prevailing party
attorney’s fees (the “Sanctions Order”). Appellees’ motion for sanctions was premised on
what they contend was Appellant’s frivolous filing of Stevenson II. The bankruptcy court
declined to award sanctions, reasoning, in relevant part, that Stevenson II may not be
frivolous if the Eleventh Circuit reverses Stevenson I.
Appellant now moves to dismiss the Cross-Appeal, arguing that the Sanctions Order
did not completely and finally resolve all of the issues pertaining to Appellees’ motion for
sanctions. The Court disagrees.
This Court has jurisdiction to hear appeals “from final judgments, orders, and
decrees” and, if it provides leave, “from other interlocutory orders and decrees.” 28
U.S.C. §158(a)(1),(3). The Sanctions Order underlying the Cross-Appeal would have
been an interlocutory order if the bankruptcy court had not dismissed Stevenson II with
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prejudice, giving rise to the Second Appeal. A dismissal with prejudice is final for
appellate purposes. See OFS Fitel, LLC v. Epstein, Becker, and Green, P.C., 549 F.3d
1344, 1356-57 (11th Cir. 2008). And, as Appellees point out, it is well established that an
earlier interlocutory order merges into the final judgment; an appellate court reviewing the
final judgment may also consider the prior interlocutory order. See id.
It is therefore ORDERED AND ADJUDGED that Appellant’s Motion to Dismiss
Cross-Appeal (Dkt. #4) is denied.
DONE and ORDERED in Tampa, Florida, this 22nd day of June, 2016.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2016\16-cv-720 consolidation.docx

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