Ovation Services, LLC

Filing 4

ORDER. (Case Administratively Closed on 2/5/2024. If neither party has moved to re-open by March 1, 2024, this appeal will be dismissed with prejudice.)(Signed by Judge Drew B Tipton) Parties notified.(KelliePapaioannou, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE:
ROBERT OLIVER BERRY, III and
MARCIE KINSEL BERRY,
Debtors.

OVATION SERVICES, LLC,
Appellant,
v.
ROBERT OLIVER BERRY, III and
MARCIE KINSEL BERRY,
Appellees.

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February 05, 2024
Nathan Ochsner, Clerk

Case No. 4:22-BK-32818

Civil Action No. 4:22-CV-04503

ORDER
This is an appeal brought by Ovation Services, LLC (“Ovation”) as an agent for
FGMS Holdings, LLC, challenging the Order Confirming Chapter 13 Plan and Valuing
Collateral Pursuant to 11 U.S.C. § 506. (Dkt. No. 1); (Dkt. No. 1-1 at 2). The bankruptcy
order was entered on December 13, 2022, (see Dkt. No. 1-1 at 4), Ovation filed a notice of
appeal to the district court on December 27, 2022, (see Dkt. No. 1), and the appeal was
docketed in this Court on December 29, 2022, (id.). To date, Ovation, represented by
counsel, has not filed an appellate brief or otherwise taken any action beyond filing its
notice of appeal.
Bankruptcy Rule 8009(a)(1) instructs that in a bankruptcy appeal to the district
court, “[t]he appellant must file with the bankruptcy clerk and serve on the appellee a

designation of the items to be included in the record on appeal and a statement of the
issues to be presented.” Additionally, absent a court order to the contrary, “[t]he
appellant must serve and file a brief within 30 days after the docketing of notice that the
record has been transmitted or is available electronically.” Fed. R. Bankr. P. 8018(a)(1).
Upon service of the appellant’s brief, the appellee then has 30 days to serve and file its
brief, and the appellant then has 14 days to reply. Fed. R. Bankr. P. 8018(a)(2)–(3). If an
appellant fails to timely file its brief, the appeal may be dismissed on motion by an
appellee or by the district court on its own motion. Fed. R. Bankr. P. 8018(a)(4); see also
Fed. R. Bankr. P. 8003(a)(2) (“An appellant’s failure to take any step other than the timely
filing of a notice of appeal is ground for the district court to act as it considers appropriate,
including dismissing the appeal.”) (cleaned up). Accordingly, the Fifth Circuit has
affirmed dismissals of bankruptcy appeals when the appellant failed to file a brief within
the required time. See, e.g., Matter of Braniff Airways, Inc., 774 F.2d 1303, 1304 (5th Cir.
1985); In re Nikolai, 5 F.3d 1495, at *2 (5th Cir. 1993); In Re Pequeno, 240 F.App’x. 634, 636
(5th Cir. 2007).
Ovation has not taken any action to prosecute its appeal in the more than twelve
months since filing the notice of appeal in the Bankruptcy Court. It has not filed any
appeal brief, which was due 30 days after the bankruptcy record had docketed on January
27, 2023. (Dkt. No. 2). It has not contacted the Court, requested more time to file briefs,
or sought to explain its inaction. Given this failure, the appeal will be DISMISSED
WITHOUT PREJUDICE under Rules 8003(a)(2) and 8018(a)(4). The Clerk of Court is
DIRECTED to administratively close this case, which may be re-opened upon motion by
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any party. If neither party has moved to re-open by March 1, 2024, this appeal will be
dismissed with prejudice.
It is SO ORDERED.
Signed on February 5, 2024.
___________________________________
DREW B. TIPTON
UNITED STATES DISTRICT JUDGE

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