In Re Simons Simons, 908 F.2d 643 (10th Cir. 1990). · Go Syfert
In Re Simons Simons, 908 F.2d 643 (10th Cir. 1990). Cases Citing This Book View Copy Cite
81 citation events (57 in the last 25 years) across 17 distinct courts.
Strongest positive: Gordon v. Bank of America, N.A. (In Re Gordon) (ca10, 2014-02-20)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 21 distinct citers.
examined Cited as authority (rule) Gordon v. Bank of America, N.A. (In Re Gordon) (4×) also: Cited "see"
10th Cir. · 2014 · confidence medium
In re Simons, 908 F.2d at 644-45.
examined Cited as authority (rule) Robert Ranta v. Thomas Gorman (3×) also: Cited "see"
4th Cir. · 2013 · confidence medium
According to the Tenth Circuit, “[tjhis approach is entirely consistent” with two general principles regarding finality: (1) that an order is not final unless it “ends the litigation on the merits, leaving nothing for the court to do but execute the judgment”; and (2) that a district court order is not final if it “contemplates significant further proceedings in the bankruptcy court.” Simons, 908 F.2d at 644-45.
cited Cited as authority (rule) Harwell v. Dalton
10th Cir. · 2008 · confidence medium
In re Simons, 908 F.2d at 645.
examined Cited as authority (rule) WCI Steel, Inc. v. Wilmington Trust Co. (4×) also: Cited "see"
N.D. Ohio · 2005 · signal: cf. · confidence medium
Cf. Simons, 908 F.2d at 645 (finding collateral order doctrine inapplicable to order denying confirmation of a reorganization plan); Rady, 2008 WL 21180694 , at *1 (same); In re MCorp Fin., Inc., 139 B.R. 820, 824 (S.D.Tex.1992) (same).
discussed Cited as authority (rule) McConnell v. NWA Credit Union (In Re McConnell)
8th Cir. BAP · 2003 · confidence medium
See, e.g., Lievsay v. Western Financial Savings Bank (In re Lievsay), 118 F.3d 661, 662 (9th Cir.1997) (Chapter 11), cert. denied 522 U.S. 1149 , 118 S.Ct. 1168 , 140 L.Ed.2d 178 (1998); Simons v. Federal Deposit Insurance Corp. (In re Simons), 908 F.2d 643, 644-45 (10th Cir.1990) (Chapter 13); Maiorino v. Branford Savings Bank, 691 F.2d 89, 91 (2nd Cir.1982) (Chapter 13); In re Massey, 21 Fed.
discussed Cited as authority (rule) Field McConnell v. NWA Credit Union
8th Cir. BAP · 2003 · confidence medium
Ed. 2d 178 (1998); Simons v. Federal Deposit Insurance Corp. (In re Simons), 908 F.2d 643, 644-45 (10th Cir. 1990) (Chapter 13); Maiorino v. Branford Savings Bank, 691 F.2d 89, 91 (2nd Cir. 1982) (Chapter 13); In re Massey, 21 Fed.
examined Cited as authority (rule) Wade v. Conner (3×)
10th Cir. · 2002 · confidence medium
S.D.Ohio 1983); and, cf. In re Chinichian, 784 F.2d 1440, 1442, 1444 (9th Cir.1986) (order only partially confirming Chapter 13 plan nonfinal and, therefore, appeal *447 therefrom did not divest bankruptcy court of jurisdiction to revoke the plan). 1 We have reasoned our approach to finality “is entirely consistent with two general principles ... well-settled in this circuit, i.e., (1) an order is not final unless it ends the litigation on the merits, leaving nothing for the court to do but execute the judgment, and, (2) a district court order is not final if it contemplates significant furt…
cited Cited as authority (rule) In Re: Massey v.
4th Cir. · 2001 · confidence medium
See 28 U.S.C.A. § 158 (d); Lewis, 992 F.2d at 773 ; Szekely, 936 F.2d at 899 ; Simons, 908 F.2d at 644-45.
discussed Cited as authority (rule) Bentley v. Boyajian (In Re Bentley)
1st Cir. BAP · 2001 · confidence medium
Corp. (In re Simons), 908 F.2d at 645 (rejection of debtors’ proposed plan may be considered on appeal from a final judgment dismissing the underlying petition or proceeding).
discussed Cited as authority (rule) In Re MCorp Financial, Inc.
S.D. Tex. · 1992 · confidence medium
“So long as the bankruptcy proceeding itself has not been terminated, the debtor, unsuccessful with one reorganization plan, may always propose another for the bankruptcy court to review for confirmation.” Simons, 908 F.2d at 645.
cited Cited as authority (rule) Cascade Energy & Metals Corp. v. Banks (In re Cascade Energy & Metals Corp.)
10th Cir. · 1992 · confidence medium
Simons v. FDIC (In re Simons), 908 F.2d 643, 644-45 (10th Cir.1990).
discussed Cited "see" Bullard v. Hyde Park Savings Bank (In Re Bullard)
1st Cir. · 2014 · signal: see · confidence high
See Simons v. FDIC (In re Simons), 908 F.2d 643 , 644 (10th Cir.1990) (per curiam) (noting that circuit precedent interprets finality for § 158(d) purposes in accordance with traditional finality principles); see also Gordon v. Bank of Am., N.A.
cited Cited "see" Woolsey v. Citibank, N.A.
10th Cir. · 2012 · signal: see · confidence high
See Simons v. FDIC (In re Simons), 908 F.2d 643 , 645 (10th Cir.1990).
cited Cited "see" Woolsey v. Citibank, N.A.
10th Cir. · 2012 · signal: see · confidence high
See Simons v. FDIC (In re Simons), 908 F.2d 643 , 645 (10th Cir. 1990).
discussed Cited "see" Giesbrecht v. Fitzgerald (In Re Giesbrecht)
9th Cir. BAP · 2010 · signal: see · confidence high
See In re Simons, 908 F.2d at 645; Rady v. Brothers, 2003 WL 21180694 , at *1 (S.D.Ind.2003) (“To achieve a final appeal-able decision, [djebtors have the option of waiting until a plan is confirmed, then appealing that confirmation, or refusing to submit another plan and then appealing the dismissal[.]”).
cited Cited "see" Dewey v. Dewey (In Re Dewey)
10th Cir. BAP · 1998 · signal: see · confidence high
See Simons v. FDIC (In re Simons), 908 F.2d 643 (10th Cir.1990) (per curiam).
discussed Cited "see" Wade v. Hatcher (In Re Hatcher)
10th Cir. BAP · 1997 · signal: see · confidence high
See Simons, 908 F.2d at 645 (recognizing that order denying confirmation of a plan does not resolve a discrete issue).
cited Cited "see" In Re Simon
10th Cir. · 1996 · signal: see · confidence high
See Simons v. FDIC (In re Simons), 908 F.2d 643 , 645 (10th Cir.1990).
discussed Cited "see" Inalene Lewis v. United States of America, Farmers Home Administration (2×) also: Cited "see, e.g."
8th Cir. · 1993 · signal: see · confidence high
See Simons, 908 F.2d at 645 ; Maiorino, 691 F.2d at 91 ; MCorp, 139 B.R. at 822 ; cf. Gaines, 932 F.2d at 732 (holding that when additional time remained for bankruptcy court to consider objections to discharge, issue was not final).
discussed Cited "see" American Freight System, Inc. v. W.A. Walker & Associates, Inc. (In Re American Freight System, Inc.)
D. Kan. · 1993 · signal: see · confidence high
In re Magic Circle Energy Corp., 889 F.2d 950 (10th Cir.1989); see In re Simons, 908 F.2d at 644. “ ‘[Djenial of a motion to dismiss, even when the motion is made on jurisdictional grounds, is not immediately reviewable.’ ” In re Magic Circle Energy Corp., 889 F.2d at 954 (quoting Catlin v. United States, 324 U.S. 229, 236 , 65 S.Ct. 631, 635 , 89 L.Ed. 911 (1945)); see also John E.
discussed Cited "see" In Re Cascade Energy & Metals Corporation
10th Cir. · 1992 · signal: see · confidence high
See Cascade Energy & Metals Corp. v. Banks, 896 F.2d 1557 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 138 , 112 L.Ed.2d 105 (1990) 2 [T]wo general principles regarding finality [are] well-settled in this circuit, i.e., (1) an order is not final unless it ends the litigation on the merits, leaving nothing for the court to do but execute the judgment, see In re Magic Circle Energy Corp., 889 F.2d at 953, and (2) a district court order is not final if it contemplates significant further proceedings in the bankruptcy court, see In re Commercial Contractors, Inc., 771 F.2d at 1375 Simons v.…
Bankr. L. Rep. P 73,532 in Re Eugene Victor Simons and Jewell W. Simons, Also Known as Julie, Debtors. Eugene Victor Simons Jewell W. Simons, Also Known as Julie
v.
Federal Deposit Insurance Corporation
89-8027.
Court of Appeals for the Tenth Circuit.
Jul 12, 1990.
908 F.2d 643
Cited by 2 opinions  |  Published

908 F.2d 643

Bankr. L. Rep. P 73,532
In re Eugene Victor SIMONS and Jewell W. Simons, also known
as Julie, Debtors.
Eugene Victor SIMONS; Jewell W. Simons, also known as
Julie, Appellants,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, Appellee.

No. 89-8027.

United States Court of Appeals,
Tenth Circuit.

July 12, 1990.

Stephen R. Winship, Donald R. Winship & Associates, P.C., Casper, Wyo., for appellants.

Jeanne R. Lee, Federal Deposit Ins. Corp., Denver, Colo., for appellee.

Before ANDERSON, BARRETT, and BALDOCK, Circuit Judges.

PER CURIAM.

[*~643]1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Debtors appeal from an order of the district court affirming the bankruptcy court's denial of confirmation of their proposed Chapter 13 reorganization plan. We do not reach the arguments advanced by the parties on the merits, however, because we hold we lack jurisdiction over this appeal. See generally In re Durability, Inc., 893 F.2d 264, 265 (10th Cir.1990) (bankruptcy decision recognizing and following general principle that appellate court must determine matter of its own jurisdiction whenever it becomes apparent that jurisdiction may be lacking).

3

In a bankruptcy case, the provisions of 28 U.S.C. Sec. 158(d) "limit the jurisdiction of the courts of appeals to reviewing final orders from the district court." Id. at 265 (quoting In re Commercial Contractors, Inc., 771 F.2d 1373, 1374 (10th Cir.1985)); see also In re Magic Circle Energy Corp., 889 F.2d 950, 953 (10th Cir.1989) (Tenth Circuit has interpreted "final order" requirement of section 158(d) in traditional finality terms). Since the district court order appealed herein simply affirmed the bankruptcy court's decision, we have jurisdiction only if the latter may be deemed final for purposes of section 158(d). See In re International Horizons, Inc., 689 F.2d 996, 1000 (11th Cir.1982); see, e.g., In re Cash Currency Exch., Inc., 762 F.2d 542, 545-46 (7th Cir.1985); see also In re Durability, 893 F.2d at 266 (while nonfinal bankruptcy court order may properly be subject of interlocutory appeal to district court pursuant to section 158(a), where district court's subsequent appellate ruling does not alter nonfinal character of disposition, court of appeals lacks jurisdiction to review matter under section 158(d)).

4

A number of courts have indicated that where the bankruptcy court denies or withholds confirmation of a proposed Chapter 13 plan without also dismissing the underlying petition or proceeding, its decision is not final for purposes of appeal. See, e.g., Maiorino v. Branford Sav. Bank, 691 F.2d 89, 90-91 (2d Cir.1982); In re Madill, 65 B.R. 729, 731 (D.Mont.1986); In re Hardy, 30 B.R. 109, 111 (Bkrtcy.S.D.Ohio 1983); cf. In re Chinichian, 784 F.2d 1440, 1442, 1444 (9th Cir.1986) (order only partially confirming Chapter 13 plan nonfinal and, therefore, appeal therefrom did not divest bankruptcy court of jurisdiction to revoke same). But see In re Blankemeyer, 861 F.2d 192, 193 (8th Cir.1988) (district court order affirming bankruptcy court's rejection of Chapter 11 plan characterized as a "final judgment," without further discussion of jurisdictional issue); In re Hardy, 755 F.2d 75, 76 (6th Cir.1985) (appeal from rejection of Chapter 13 plan heard by court of appeals with no acknowledgment of jurisdictional problem recognized in related opinion issued by bankruptcy court in same case, In re Hardy, 30 B.R. 109). This approach is entirely consistent with two general principles regarding finality well-settled in this circuit, i.e., (1) an order is not final unless it ends the litigation on the merits, leaving nothing for the court to do but execute the judgment, see In re Magic Circle Energy Corp., 889 F.2d at 953, and (2) a district court order is not final if it contemplates significant further proceedings in the bankruptcy court, see In re Commercial Contractors, Inc., 771 F.2d at 1375. As the Maiorino court recognized, so long as the bankruptcy proceeding itself has not been terminated, the debtor, unsuccessful with one reorganization plan, may always propose another plan for the bankruptcy court to review for confirmation, id. at 91, a prospect which negates any determination of finality under both principles cited above. See also In re Delta Serv. Indus., 782 F.2d 1267, 1270-71 (5th Cir.1986) (citing Maiorino as example of general principle that "bankruptcy court orders that constitute only a preliminary step in some phase of the bankruptcy proceeding and that do not directly affect the disposition of the estate's assets [are] interlocutory and not appealable"); In re Leibinger-Roberts, Inc., 92 B.R. 570, 572-73 (E.D.N.Y.1988) (same).

5

Accordingly, we hold that the lower courts' denial of confirmation of debtors' proposed reorganization plan is not final for purposes of appeal under section 158(d). Nor is such a disposition appealable under the collateral order exception to the final judgment rule, established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). "To qualify for this limited exception, the order appealed from must conclusively determine the disputed question ..., resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." In re Magic Circle Energy Corp., 889 F.2d at 954 (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)). Moreover, "[b]ecause a party seeking to appeal on this basis must show that all three requirements of the doctrine are satisfied, we need not address each if one is not met." In re Magic Circle Energy Corp., 889 F.2d at 954. Here, the matter under review is not "completely separate" from the substance of the action, but clearly integral to it. See generally 11 U.S.C. Secs. 1321-1330. Furthermore, the rejection of debtors' proposed plan may yet be considered on appeal from a final judgment either confirming an alternative plan, see, e.g., Hanson v. First Bank of South Dakota, N.A., 828 F.2d 1310, 1311-12 (8th Cir.1987); In re Greseth, 78 B.R. 936, 938-39 (D.Minn.1987); cf. KCC-Leawood Corp. Mann I v. The Travelers Ins. Co., No. 89-0335-CV-W-1, 1989 U.S. Dist. LEXIS 10336 at 2, 7-8 (W.D.Mo. Aug. 29, 1989), or dismissing the underlying petition or proceeding, see, e.g., Hazel v. I.R.S., 95 B.R. 481, 482 (E.D.Mich.1988); In re McKinney, 84 B.R. 751, 752 (D.Kan.1988).

[*~644]6

This appeal is DISMISSED.