United States District Court, W.D. Texas
C. LAMBERTH UNITED STATES DISTRICT JUDGE.
case comes before the Court on appeal from three separate
orders of the Bankruptcy Court regarding the bankruptcy case
of Howard Kerry Garner ("appellant" or
"debtor"). The debtor appeals the following Orders
of the Bankruptcy Court: (1) Order denying Debtor's
Emergency Motion for Entry of an Order Authorizing Debtor to
Execute Addendum to Contribution Agreement ("Addendum
Motion"); (2) Order denying Debtor's Motion to
Reconsider Order Denying Debtor's Emergency Motion for
Entry of an Order Authorizing Debtor to Execute Addendum to
Contribution Agreement ("Motion to Reconsider");
and (3) Order denying Debtor's Emergency Motion for Entry
of an Order Authorizing Correction Agreement
("Correction Motion"). Because each motion is an
attempt to seek collateral review of the Bankruptcy
Court's Remand Order, this Court finds that it lacks
subject matter jurisdiction under 28 U.S.C. 1447(d).
Consequently, this Court finds it is unnecessary to address
whether the Bankruptcy Court erred in denying each of the
orders on appeal.
September 27, 2012 Howard Kerry Grant ("appellant"
or "debtor") brought a suit against Mike Weeks,
Linda Weeks, and Weeks Environmental LLC, the appellees in
the current case, ("the Weeks") in state court
regarding the ownership of Weeks Environmental, LLC. The
Weeks filed a separate proceeding in March 2013 seeking a
declaratory judgment to determine ownership of the company.
The state court subsequently joined the cases ("Weeks
Litigation") and "[d]ebtor filed counter-claims
against the Weeks for breach of contract, breach of fiduciary
duty, declaratory judgment declaring a partnership or joint
venture, a demand for accounting, and quantum meruit."
Order Den. Debtor's Emergency Mot. for Entry of an Order
Authorizing Correction Agreement, or, in the Alternative, to
Accept Reassignment of Claims. 2. ECF. No. 84.
31, 2016, debtor filed for Chapter 11 bankruptcy and
concurrently removed the pending state court lawsuit in which
he was both suing and being sued by appellees. However,
almost two years earlier debtor assigned "all right,
title, and interest" in the counter-claims of the Weeks
Litigation to Garner Resources, LLC ("Garner
Resources") in a pre-bankruptcy contribution agreement
("Contribution Agreement"). Appellant's Br. 11.
ECF. No. 8. Appellees, the opposing parties in the Weeks
Litigation, moved to dismiss the counter-claims only or,
alternatively, to remand the entire Weeks Litigation to state
court on the grounds that Garner lacked standing. Appellees
claimed that Garner no longer owned the lawsuit claims, and
the bankruptcy court lacked subject matter jurisdiction over
to the hearing on appellees' Motion to Dismiss, appellant
moved to execute an Addendum to the Contribution Agreement,
which was denied by the Bankruptcy Court. Appellant then
sought reconsideration of the motion, which was again denied
by the Bankruptcy Court. The Bankruptcy Court subsequently
announced in open court its decision to remand the Weeks
Litigation given that subject matter jurisdiction did not
exist under 28 U.S.C. § 1447(c). As a result, appellant
sought permission to correct the Contribution Agreement due
to mutual mistake or, alternatively, to accept an assignment
of his legal rights back to him and supplemented his motion
to approve the Addendum. The Bankruptcy Court denied all
motions and this appeal followed.
JURISDICTION AND STANDARD OF REVIEW
28 U.S.C.S. § 158(a), district courts have jurisdiction
to hear appeals from final judgments, orders, and decrees of
the bankruptcy court[.]" In re Asarco, L.L.C.,
650 F.3d 593, 597, (5th Cir. 2011). When a district court
reviews the decision of a bankruptcy court it "functions
as an appellate court, applying the standards of review
generally applied in federal appeals courts." Harvey
Gulf Int'l Marine, Inc. v. Bennu Oil & Gas, LLC,
559 B.R. 152, 154 (S.D. Tex. 2016).
Standard of Review
appeal, a district court "reviews the bankruptcy
court's findings of fact under the clearly erroneous
standard and its conclusions of law de novo." In re
Morrison, 555 F.3d 473, 480 (5th Cir. 2009). Mixed
questions of law and fact are reviewed de novo. See In re
Positive Health Mgmt., 769 F.3d 899, 903 (5th Cir.
2014). "Matters within a bankruptcy judge's
discretion are reviewed for an abuse of discretion."
Mud King Prods., Inc. v. Nat'l Oilwell Varco,
L.P., 2015 WL 862319 (S.D. Tex. 2015). The standard of
review appropriate for each issue raised on appeal------is
abuse of discretion. "[D]eference ... is the hallmark of
abuse-of-discretion review." Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 143 (1997). A Bankruptcy Court
abuses its discretion if "its ruling is based on an
erroneous review of the law or on a clearly erroneous
assessment of the evidence." Chaves v. M/V Medina
Star, 47 F.3d 153, 156 (5th Cir. 1995) (citations
BANKRUPTCY COURT'S DECISIONS
on November 9, 2016-in an oral ruling on the record-the
Bankruptcy Court found that Debtor could not execute a
contract Addendum in order to cure a lack of subject-matter
jurisdiction when none existed at the time the case was
removed. See Order Denying Debtor's Emergency
Motion for Entry ...