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In re Vista Foods U.S.A., Inc.

United States Bankruptcy Appellate Panel, Tenth Circuit
Nov 19, 1996
202 B.R. 499 (B.A.P. 10th Cir. 1996)

Summary

holding that order converting case from Chapter 11 to Chapter 7 is final and appealable

Summary of this case from In re Rosson

Opinion

BAP No. WO-96-37. Bankruptcy No. 96-12890.

November 19, 1996.

Jack Leebron, Clemens, Holshouser Pate, Oklahoma City, OK, for debtor.

L. Win Holbrook, Oklahoma City, OK, for trustee.

Before PUSATERI, ROSE, and BOULDEN, Bankruptcy Judges.


ORDER


Vista Foods U.S.A., Inc., the debtor in the above-captioned case (Debtor), has filed a Motion for Leave to Appeal Under 28 U.S.C. § 158(a) from an Order of the United States Bankruptcy Court for the Western District of Oklahoma converting the Debtor's chapter 11 case to a case under chapter 7 of the Bankruptcy Code. No response to the Motion has been filed with the Court. The Debtor also filed a Notice of Appeal on the same day.

The Court is vested with jurisdiction to hear appeals from "final judgments, orders, and decrees" of bankruptcy courts pursuant to 28 U.S.C. § 158(a)(1) and (b). See Fed.R.Bankr.P. 8001(a). Leave to appeal is necessary only when an appeal is from an interlocutory order or decree of a bankruptcy court. 28 U.S.C. § 158(a)(3); Fed.R.Bankr.P. 8001(b) and 8003.

The United States Court of Appeals for the Tenth Circuit has held that "an order is final if it ends the litigation on the merits and leaves nothing for the court to but execute the judgment." Adelman v. Fourth Nat'l Bank Trust Co. (In re Durability, Inc.), 893 F.2d 264, 265 (10th Cir. 1990). "[T]he appropriate `judicial unit' for application of these finality requirements in bankruptcy is not the overall case, but rather the particular adversary proceeding or discrete controversy pursued within the broader framework cast by the petition." 893 F.2d at 266.

The Bankruptcy Court's Order converting the Debtor's chapter 11 case to a case under chapter 7 of the Bankruptcy Code is final and, therefore, leave of Court to appeal is not necessary and the Notice of Appeal is sufficient. Conversion ends the litigation regarding the discrete controversy of whether the case should proceed under chapter 11 or chapter 7. The Bankruptcy Court's Order resolving this controversy cannot be reconsidered later in the case or upon the dismissal or closure of the case. Once the Debtor has been liquidated, there is no possibility of it being reorganized as a going concern. See, e.g., 11 U.S.C. § 363(m) (absent stay pending appeal, reversal or modification of an order authorizing the sale of assets in a bankruptcy case does not affect the validity of the sale to a good faith purchaser).

Accordingly, it is HEREBY ORDERED that the Debtor's Motion for Leave to Appeal Under 28 U.S.C. § 158(a) is DENIED.


Summaries of

In re Vista Foods U.S.A., Inc.

United States Bankruptcy Appellate Panel, Tenth Circuit
Nov 19, 1996
202 B.R. 499 (B.A.P. 10th Cir. 1996)

holding that order converting case from Chapter 11 to Chapter 7 is final and appealable

Summary of this case from In re Rosson

holding that a court order converting a debtor's Chapter 11 case to a Chapter 7 case was a final order for purposes of appeal

Summary of this case from In re Young

holding that, because order converting bankruptcy from Chapter 11 to Chapter 7 was final, leave of court to file notice of appeal was unnecessary

Summary of this case from Wilkins v. State Farm

concluding that order “converting the [d]ebtor's chapter 11 case to a case under chapter 7 of the Bankruptcy Code [was] final.”

Summary of this case from Ritchie, Dillard, Davies & Johnson, P.C. v. Peters (In re Johnson)
Case details for

In re Vista Foods U.S.A., Inc.

Case Details

Full title:In re VISTA FOODS U.S.A., INC., Debtor. VISTA FOODS U.S.A., INC.…

Court:United States Bankruptcy Appellate Panel, Tenth Circuit

Date published: Nov 19, 1996

Citations

202 B.R. 499 (B.A.P. 10th Cir. 1996)

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