Interim awards of attorney fees are interlocutory orders subject to court modification and do not constitute final adjudications for purposes of appellate jurisdiction.
An appellant challenges a bankruptcy court order that granted a superpriority claim and ordered the payment of interim attorneys' fees. The court must determine if it has jurisdiction under 28 U.S.C. § 1293(b), which requires an appeal to be from a final judgment or order. Because interim compensation awards under 11 U.S.C. § 331 are subject to court re-examination, adjustment, and final scrutiny, they do not constitute final adjudications. Since the order is interlocutory rather than final, the court lacks jurisdiction to hear the appeal.
At page 307 Interlocutory nature of orders granting interim compensation13 citing cases“interim allowances are always subject to the court's re-examination and adjustment during the course of the case as all expenses of administration must receive the court's final scrutiny and approval”
- 388 Route 22 Readington Holdings, LLC, No. 18-30155 (Bankr. D.N.J. Jan. 11, 2021).unpublishedThus, a professional can be paid on a fairly timely basis, and reasonably expect to be able to retain those fees as 58 , 890 F.2d 1312 (5th Cir. 1989) (interim fee awards are not final and are subject to review at the conclusion of the cas…
- ACI Concrete Placement of Kansas, LLC, No. 17-21770 (Bankr. D. Kan. Aug. 22, 2019).Corp. (In re Callister), 673 F.2d 305, 307 (0th Cir. 1982) (quoting 2 Collier on Bankruptcy § 331.03 (15th ed. 1981)). 25 Specker Motor Sales v. Eisen, 393 F.3d 659 (6th Cir. 2004). court affirmed, and appeal was taken to the court of appe…
- Kenneth L. Spears v. United States Tr., 26 F.3d 1023 (10th Cir. 1994).published(interim orders regarding appointed counsel’s fees are not subject to immediate appeal)
- In re Global Marine, Inc., 108 B.R. 1009 (S.D. Tex. 1988).publishedDynamics, Inc., 718 F.2d 322 , 325 (9th Cir.1983); Callister v. Ingersoll-Rand Financial Corp. (In re Callister), 673 F.2d 305, 307 (10th Cir.1982); In re Den-col Cartage & Distribution, Inc., 20 B.R. 645 (D.Colo. 1982).
- Bank of Am. Nat'l Trust & Sav. Ass'n v. Weil, Gotshall & Manges (In re Global Marine, Inc.), 108 B.R. 1007 (S.D. Tex. 1988).publishedIn re Internat’l Envt’l Dynamics, Inc., 718 F.2d 322, 325 (9th Cir.1983); Callister v. Ingersoll-Rand Financial Corp. (In re Callister), 673 F.2d 305, 307 (10th Cir.1982).
- In re Lytton's, 832 F.2d 395 (7th Cir. 1987).published (Interim awards ... are refundable to the estate in cases of misconduct.)
- In re Am. Int'l Airways, Inc., 47 B.R. 716 (Bankr. E.D. Pa. 1985).published “The statute anticipates repeated application to the court for reimbursement and compensation, subjecting the award to amendment or modification at any time during the pendency of the bankruptcy proceedings.” Id. at 306.
- Dahlquist v. First Nat'l Bank, 751 F.2d 295 (8th Cir. 1985).publishedWhile orders granting interim compensation in an ongoing bankruptcy proceeding generally are considered to be interlocutory in nature, see In re Callister, 673 F.2d 305, 307 (10th Cir.1982), the question of whether a particular order grant…
- Yermakov v. Fitzsimmons, 718 F.2d 1465 (9th Cir. 1983).publishedIn re Callister, 673 F.2d 305, 307 (10th Cir.1982).
- Blake v. Doyle (In re Doyle-Lunstra Sales Corp.), 19 B.R. 1003 (D.S.D. 1982).publishedIn re William S. Callister [William S. Callister v. Ingersoll-Rand Financial Corp.], 673 F.2d 305, 307 (10th Cir. 1982), The district court would also be without appellate jurisdiction but for 28 U.S.C. section 1334 (b).
Show 3 more citing cases
- McDermott, Will & Emery v. Potter (In re MEI Diversified Inc.), 186 B.R. 455 (D. Minn. 1995).publishedSee In re Callister, 673 F.2d 305, 307 (10th Cir.1982); In re Taxman Clothing Co., 134 B.R. 286, 291 (N.D.Ill.1991).
- In the Matter of Lytton's, Henry C. Lytton & Co., an Illinois Corp., Debtor. Appeal of Cluett, Peabody & Co., Inc, 832 F.2d 395 (7th Cir. 1988).published See In re Callister, 673 F.2d 305 , 306-07 (10th Cir.1982); In re Yermakov, 718 F.2d 1465 (9th Cir.1983); 2 Collier on Bankruptcy, p 331.03, at 331-9 (15th ed. 1987) ("interim allowances are always subject to the court's re-examination and…
- In re Busy Beaver Bldg. Centers, Inc. Kirkpatrick & Lockhart, 19 F.3d 833 (3d Cir. 1994).published('[A]ll expenses of administration must receive the court’s final scrutiny and appraisal.' ” (quoting 2 Collier on Bankruptcy ¶ 331.03 (5th ed. 1981)))
At page 306 Anticipating repeated applications for reimbursement and compensation12 citing cases[Section 331] anticipates repeated application to the court for reimbursement and compensation, subjecting the award to amendment or modification at any time during the pendency of the bankruptcy proceedings.
- Szanto, No. 3:19-cv-01039 (D. Or. Jan. 23, 2020).([Section 331] anticipates repeated application to the court for reimbursement and compensation, subjecting the award to amendment or modification at any time during the pendency of the bankruptcy proceedings.)
- In re Stephen Raymond Strand Kristie Gale Strand, Debtors, Bruce Leichty v. William T. Neary, United States Tr., 375 F.3d 854 (9th Cir. 2004).published([Section 331] anticipates repeated application to the court for reimbursement and compensation, subjecting the award to amendment or modification at any time during the pendency of the bankruptcy proceedings.)
- In re Valley Forge Plaza Assocs., 119 B.R. 471 (E.D. Pa. 1990).publishedIn re Four Seas Center, Ltd, (Four Seas Center, Ltd. v. Davres, Inc.) 754 F.2d 1416, 1419 (9th Cir.1985); In re Callister, (Callister v. Ingersoll-Rand Financial Corporation), 673 F.2d 305, 306 (10th Cir.1982).
- In re Energy Coop., Inc., 55 B.R. 957 (Bankr. N.D. Ill. 1985).publishedWhether such interim allowances are awarded, and in what amounts, were questions left by Congress to the sound discretion of the bankruptcy court. 18a Callister v. Ingersoll-Rand Financial Corp. (In re Callister), 673 F.2d 305, 306 (10th C…
- In re Am. Int'l Airways, Inc., 47 B.R. 716 (Bankr. E.D. Pa. 1985).published “The statute anticipates repeated application to the court for reimbursement and compensation, subjecting the award to amendment or modification at any time during the pendency of the bankruptcy proceedings.” Id. at 306.
- Salomon v. Logan, 718 F.2d 322 (9th Cir. 1983).publishedAn order authorizing the interim award of attorneys’ fees is an interlocutory order, e.g., In re Callister, 673 F.2d 305, 306-07 (10th Cir.1982) (per curiam), which order is appealable under section 24a only if it arises in “proceedings in…
- In re Int'l Env't Dynamics, Inc., 718 F.2d 322 (9th Cir. 1983).publishedSec. 47 (a) (1976) (repealed 1978) (emphasis added). 12 An order authorizing the interim award of attorneys' fees is an interlocutory order, e.g., In re Callister, 673 F.2d 305, 306-07 (10th Cir.1982) (per curiam), which order is appealabl…
- Matter of Seven Springs Apts., Phase II, 33 B.R. 458 (Bankr. N.D. Ga. 1983).publishedSee Maiorino Branford Savings Bank, 691 F.2d 89, n. 2 (2d Cir.1982); In re Kutner, 656 F.2d 1107, 1111, 12 (5th Cir.1981), cert. denied 455 U.S. 945, 102 S.Ct. 1443 , 71 L.Ed.2d 658 (1982); Callister v. Ingersoll-Rand Financial Corp., 673…
- McKesson Drug Co. v. Marcus, 705 F.2d 1496 (9th Cir. 1983).publishedIn re Rubin, 693 F.2d 73 , 75 n. 1 (CA9 1982); In re Callister, 673 F.2d 305, 306 (CA10 1982). .
- Belo Broad. v. Rubin (In re Rubin), 693 F.2d 73 (9th Cir. 1982).publishedIn re Regency Woods Apartments, Ltd., 686 F.2d 899 (11th Cir. 1982); In re Callister, 673 F.2d 305, 306 (10th Cir. 1982); Matter of Kutner, 656 F.2d 1107, 1110-11 (5th Cir. 1981), cert. denied, 455 U.S. 945 , 102 S.Ct. 1443 , 71 L.Ed.2d 65…
Show 2 more citing cases
- In the Matter of Lytton's, Henry C. Lytton & Co., an Illinois Corp., Debtor. Appeal of Cluett, Peabody & Co., Inc, 832 F.2d 395 (7th Cir. 1988).published See In re Callister, 673 F.2d 305 , 306-07 (10th Cir.1982); In re Yermakov, 718 F.2d 1465 (9th Cir.1983); 2 Collier on Bankruptcy, p 331.03, at 331-9 (15th ed. 1987) ("interim allowances are always subject to the court's re-examination and…
- In re Child World, Inc., 185 B.R. 14 (Bankr. S.D.N.Y. 1995).publishedSee e.g., Callister v. Ingersoll-Rand Financial Corporation (In re Callister), 673 F.2d 305, 306 (10th Cir.1982); In re First Hartford Corp., 23 B.R. 729, 732 (Bankr.S.D.N.Y.1982). *18 In exercising the discretion to grant interim compensa…
At page 305 “section 331 anticipates repeated application to the court for reimbursement and compensation, subjecting the award to amendment or modification at any time during the pendency of the bankruptcy proceedings.”0 citing cases
Other citing cases
- In re Roblin Indus., Inc., 52 B.R. 241 (Bankr. W.D.N.Y. 1985).published
- In re Flagstaff Foodservice Corp., 739 F.2d 73 (2d Cir. 1984).published
- Gen. Elec. Credit Corp. v. Weintraub, 739 F.2d 73 (2d Cir. 1984).published
- Spencer, Spencer, Depper & Guthrie v. Paskay (In re Hillsborough Holdings Corp.), 164 B.R. 673 (M.D. Fla. 1994).published
- Berliner Handles-Und Frankfurter Bank v. Immenhausen Corp. (In re Immenhausen Corp.), 164 B.R. 1004 (M.D. Fla. 1994).published
- In re Cascade Oil Co., Inc., 126 B.R. 99 (D. Kan. 1991).published
- In re Tri-Cnty. Water Ass'n, Inc., 91 B.R. 547 (Bankr. D.S.D. 1988).published
- In re EES Lambert Assocs., 62 B.R. 328 (Bankr. N.D. Ill. 1986).published
- In re Frank Meador Buick, Inc., 31 B.R. 28 (Bankr. W.D. Va. 1983).published
- Nicholas & Virginia Maiorino v. Branford Sav. Bank, 691 F.2d 89 (2d Cir. 1982).published
Show 2 more citing cases
- In re Kendavis Indus. Int'l, Inc., 91 B.R. 742 (Bankr. N.D. Tex. 1988).published
- In re Mobile Air Drilling Co., Inc., 53 B.R. 605 (Bankr. N.D. Ohio 1985).published
v.
INGERSOLL-RAND FINANCIAL CORPORATION, Creditor-Appellant
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
In January, this court notified the parties that it was considering summary dismissal of this appeal for lack of jurisdiction. Both sides have responded. After due consideration, we have determined that we are without jurisdiction over the instant appeal, and so order it dismissed.
This is an appeal from an order of the bankruptcy court, 15 B.R. 521, made in the course of ongoing litigation, granting appellant Ingersoll-Rand Financial Corporation (IRFC) a “superpriority” of $29,868, pursuant to 11 U.S.C. § 507(b), and ordering payment of interim attorneys fees awarded to counsel for the debtor and the unsecured creditors committee. On appeal, IRFC alleges that the court erred by awarding interim fees that will be paid in advance of its superpriority.
The parties maintain that jurisdiction is conferred on this court by 28 U.S.C. § 1293(b), a provision of the Bankruptcy Reform Act of 1978, P.L. 95-598, 92 Stat. 2549 (1978). We agree. While there is some confusion regarding applicability of certain sections of the Code during the “transition period” (October 1,1979 to April 1, 1984), we have recently concluded that “[t]he obvious thrust of the Act’s transition provisions is to make currently effective the same jurisdiction and procedures that will apply to the bankruptcy court system when the Act becomes fully effective.” In re Shannon, 670 F.2d 904 (10th Cir. 1982); accord, In re Kutner, 656 F.2d 1107 (5th Cir. 1981); 1 Collier on Bankruptcy ¶ 3.03 (15th ed. 1981).
Section 1293(b) provides in relevant part: ... a court of appeals shall have jurisdiction of an appeal from a final judgment, order, or decree ... of a bankruptcy court of the United States if the parties to such appeal agree to a direct appeal to the court of appeals. (Emphasis added.)
By the plain language of the statute, then, only final orders of the bankruptcy court are subject to direct appeal in the court of appeals. In re Kutner, supra. Our jurisdiction in this case thus depends on whether the order appealed is final or interlocutory.
Interim awards of compensation are authorized pursuant to 11 U.S.C. § 331:
A trustee, an examiner, a debtor’s attorney, or any professional person ... may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application of reimbursement for expenses incurred before such date .... After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement.
The statute anticipates repeated application to the court for reimbursement and compensation, subjecting the award to amendment or modification at any time during the pendency of the bankruptcy proceedings. Interim awards of compensation, which are within the court’s discretion, In re Solar Manufacturing Corp., 190 F.2d 273 (3d Cir.), cert. denied sub nom. McGirl v. Mintz, 342 U.S. 893, 72 S.Ct. 200, 96 L.Ed. 669 (1951), are to be considered by the court in making a final award. Massachusetts Mutual Life Insurance Co. v. Brock, 405 F.2d 429 (5th Cir. 1968), cert. denied, 395 U.S. 906, 89 S.Ct. 1748, 23 L.Ed.2d 220[*307] (1969). “Interim allowances are always subject to the court’s re-examination and adjustment during the course of the case, and all expenses of administration must receive the court’s final scrutiny and approval.” 2 Collier on Bankruptcy ¶ 331.03 (15th ed. 1981). Interim awards, too, are refundable to the estate in cases of misconduct. In re Arlan's Department Stores, Inc., 462 F.Supp. 1255 (S.D.N.Y.1978), aff’d, 615 F.2d 925 (2d Cir. 1979). Interim awards, then, are in no respect final adjudications on the question of compensation. Such awards are therefore interlocutory.
We find unpersuasive appellant’s argument that Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) permits appeal. As mentioned previously, the order does not conclusively determine any disputed question, nor is it effectively unreviewable on appeal from final judgment. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). The order may be more correctly described as “tentative, informal or incomplete.” Cohen, 337 U.S. at 546, 69 S.Ct. at 1225.
As we conclude the order in question is interlocutory, we are without jurisdiction to hear this matter.[1]
DISMISSED.
The parties filed a notice of appeal to the district court on November 30, 1981, prior to their stipulation for a direct appeal to this court. According to the record, this notice was dismissed under the authority of Bankruptcy Interim Rule 8007, which provides for automatic dismissal in the event of a direct appeal to the court of appeals. However, “[b]ecause the appeal to this court was jurisdictionally defective when the notice of appeal was filed, appellate jurisdiction never transferred from the district court,” In re Shannon, supra, at 907. Therefore, jurisdiction, if any, of an appeal in this matter remains in the district court. Id