Clem et al v. Tomlinson et al

Filing 15

Memorandum Opinion and Order: Clem's appeal before this court is DISMISSED without prejudice to his other related appeal pending within the Northern District of Texas. (Ordered by Senior Judge A. Joe Fish on 1/15/2019) (rekc)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

STEVEN ANDREW CLEM,
Appellant,
V.
LADAINIAN AND LATORSHA
TOMLINSON,
Appellees.

§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO.
3:18-CV-1198-G

MEMORANDUM OPINION AND ORDER
Before the court is the appellant Steven Andrew Clem’s appeal from an
interlocutory order of the United States Bankruptcy Court for the Northern District of
Texas: Denying Motion to Dismiss Adversary Proceeding. Record on Appeal, Defendant’s
Notice of Appeal at 1 (docket entry 1-1).

The clerk for the bankruptcy court

transmitted the record on appeal to this court on May 10, 2018. Transmittal and
Certification of Record on Appeal at 1 (docket entry 1). In the transmission, the
bankruptcy clerk notified this court that the appeal is deficient––and thus not in
compliance with Rule 8009 of the Federal Rules of Bankruptcy Procedure––because it
was not filed timely. Id. In response, Clem filed his Notice of Timely Appeal in this
court arguing that the appeal was timely. See Notice of Timely Appeal (docket entry 4).
Upon careful review, this court concludes that Clem’s appeal is not timely and therefore

dismisses this appeal.
“Federal courts must be assured of their subject matter jurisdiction at all times
and may question it sua sponte at any stage of judicial proceedings.” Bass v. Denney (In
re Bass), 171 F.3d 1016, 1021 (5th Cir. 1999). A party must file a notice of appeal in
the bankruptcy court within fourteen days after the entry of the judgment, order, or
decree being appealed. Federal Rule of Bankruptcy Procedure 8002(a)(1). This rule
applies to both final and interlocutory orders. Stumpf v. McGee (In re O’Connor), 258
F.3d 392, 398 (5th Cir. 2001) (“Rule 8002’s time limits apply to interlocutory
appeals.”). Importantly, “when an appeal to the district court is untimely under Rule
8002(a), the district court lacks jurisdiction over the appeal.” Berman-Smith v. Gartley
(In re Berman-Smith), 737 F.3d 997, 1000 (5th Cir. 2013) (citing Stangel v. United States
(In re Stangel), 219 F.3d 498, 500 (5th Cir. 2000)).
Here, it is clear that Clem’s Notice of Appeal was untimely. On March 2, 2018,
the bankruptcy court entered a two-part order titled: “Order (1) Setting Phase II of the
Trial and (2) Denying Defendant’s Motion to Dismiss Second Amended Objection to
Discharge Pursuant to Federal Rules of Civil Procedure 12(b)(6) [DE # 83].” Record
on Appeal, Order (1) Setting Phase II of the Trial and (2) Denying Defendant’s Motion
to Dismiss Second Amended Objection to Discharge Pursuant to Federal Rules of Civil
Procedure 12(b)(6) at 1 (docket entry 1-1). On May 2, 2018, sixty-one days after the
bankruptcy court entered this order, Clem filed his Notice of Appeal of the bankruptcy
-2-

court’s March 2 “Order Denying Motion to Dismiss Adversary Proceeding.” Record on Appeal,
Defendant’s Notice of Appeal at 1-3. Due to the fact that Clem filed his Notice of
Appeal well after the expiration of the fourteen-day deadline imposed by Federal Rule
of Bankruptcy Procedure 8002(a)(1), this court does not have jurisdiction to hear
Clem’s appeal, and the appeal must be dismissed.
In Clem’s Notice of Timely Appeal, Clem maintains that “[t]he interlocutory
order became final and appealable on April 18, 2018 when a final order was entered”
by the bankruptcy court. Notice of Timely Appeal at 1. In support of this claim, Clem
cites two cases that this court finds to be inapposite to the issue of whether his appeal
is timely.* First, Clem cites In re Aucoin for the proposition that interlocutory orders can
be appealed after a final judgment. Id. at 1-2 (citing Aucoin v. Southern Insurance Facilities

The undersigned is not alone in finding Clem’s notice of appeal to be
untimely, nor is he the only judge concluding that the two cases cited by Clem in his
notice of appeal do not support his argument that his notice of appeal is timely. See
Memorandum Opinion and Order at 2-3, Clem v. Tomlinson, 3:18-CV-1199-B (2018)
(docket entry 7). When Clem filed his appeal, he appealed both parts of the bankruptcy
court’s March 2 Order Setting Phase II of the Trial and Denying Defendant’s Motion to Dismiss
Second Amended Objection to Discharge Pursuant to Federal Rules of Civil Procedure 12(b)(6)
[DE # 83]. Id. at 1. The bankruptcy clerk split Clem’s appeal, which resulted in Judge
Boyle receiving Clem’s appeal of the first part of the Order Setting Phase II of the Trial and
the undersigned receiving Clem’s appeal of the second part of the bankruptcy court’s
order. Id. In his briefing for his appeal before Judge Boyle, Clem raised the same
arguments regarding the timeliness of his appeal that he does in his Notice of Timely
Appeal before this court. Id. at 1-4. After evaluating Clem’s arguments, Judge Boyle
reached the same conclusions as the undersigned concerning the untimeliness of Clem’s
appeal and the inapplicability of the two cases he cited. Id.
*

-3-

Liquidating Corporation (In re Aucoin), 35 F.3d 167, 169-70 (5th Cir. 1994)). This case
does not support Clem’s argument, however. In In re Aucoin, the Fifth Circuit ruled on
its own jurisdiction as a court of appeals to review an appeal from an interlocutory
bankruptcy court order––not the jurisdiction of a district court to do the same. In re
Aucoin, 35 F.3d at 169. Second, Clem cites In re Tullius for the same proposition. Notice
of Timely Appeal at 2 (citing La Tierra Interiors, Inc. v. Washington Federal Savings (In re
Tullius), 500 F. App’x 286, 290 (5th Cir. 2012)). Again, this case dealt solely with the
issue of the courts of appeals’ jurisdiction over bankruptcy appeals. In re Tullius, 500 F.
App’x at 288-293. Ultimately, neither of these cases demonstrates that Clem’s appeal
to this court was timely filed in the bankruptcy court.
Furthermore, even if Clem’s notice of appeal was timely, he did not seek leave
from this court. A party may appeal an interlocutory order from a bankruptcy court only
if she obtains leave of court. 28 U.S.C. § 158(a)(3). The decision to grant an appeal
from an interlocutory order “is firmly within the district court’s discretion.” Panda
Energy International, Inc. v. Factory Mutual Insurance, 2011 WL 610016, at *3 (N.D. Tex.
Feb. 14, 2011) (citing Ryan v. Flowserve Corporation, 444 F. Supp. 2d 718, 722 (N.D. Tex.
2006)). Here, it is clear that Clem did not seek leave from this court to take this
interlocutory appeal. Furthermore, this court can see no apparent reason why this
appeal is necessary. Accordingly, this court concludes that it would not have granted
Clem leave even if it had jurisdiction over this case.
-4-

Finally, Clem argues that his appeal is timely and that this court has subject
matter jurisdiction over his appeal due to the final judgment appealability rule. See
Appellant’s Reply Brief at 1-3 (docket entry 13).

“Under the final judgment

appealability rule, a party may obtain review of prejudicial adverse interlocutory rulings
under his appeal from adverse final judgment, at which time the interlocutory rulings
(nonreviewable until then) are regarded as merged into the final judgment terminating
the action.” Dickinson v. Auto Center Manufacturing Company, 733 F.2d 1092, 1102 (5th
Cir. 1983). Clem argues that the final judgment appealability rule applies to this
appeal––making his appeal timely pursuant to Federal Rule of Bankruptcy Procedure
8002(a)(1)––since Clem filed his notice of appeal on May 2, 2018, which was “within
14 days of the order being appealed merging with the [bankruptcy court’s] Final Judgment
as a result of the order of final disposition.” Appellant’s Reply Brief at 2-3. This court
acknowledges the existence of the final judgment appealability rule but concludes that
it does not apply to this appeal. For a district court to review a bankruptcy court’s
otherwise nonreviewable interlocutory order under the final judgment appealability rule,
the district court must have before it the appeal of the bankruptcy court’s final
judgment. See Dickinson, 733 F.2d at 1102 (“The defendant-appellant [] is therefore
entitled to raise on this appeal from final judgment his contention that the district court
erred in its interlocutory order. . . .”) (emphasis added). This is because under the final
judgement appealability rule, the otherwise nonreviewable interlocutory orders merge
-5-

into the final judgment. See Mahogany v. Rogers, 293 Fed. App’x 259, 260 (5th Cir.
2008) (applying the final judgement appealability rule to an interlocutory order and
determining that the “interlocutory order merged into the district court’s final judgment
and became reviewable in [the] appeal of the final judgment.”). As Clem admits in his
briefing, his appeal of the bankruptcy court’s final judgment is before another district
judge within this district. Brief of Appellant (docket entry 9) at iii; see also Record on
Appeal, Defendant’s Notice of Appeal at 1 (showing that only Clem’s appeal of the
bankruptcy court’s Order Denying Motion to Dismiss Adversary Proceeding is before the
undersigned). Accordingly, the final judgment appealability rule does not apply to this
appeal. Nevertheless, the rule may be used by Clem to seek review of the bankruptcy
court’s interlocutory orders in his appeal of the bankruptcy court’s final judgment
pending before another district judge of this court.
For the reasons discussed above, Clem’s appeal before this court is DISMISSED
without prejudice to his other related appeal pending within the Northern District of
Texas.
SO ORDERED.
January 15, 2019.

___________________________________
A. JOE FISH
Senior United States District Judge

-6-