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Balke v. Carmichael

United States District Court, S.D. Texas, Houston Division

May 11, 2018

THOMAS E. BALKE, TEBJES INC. d/b/a BASIC EQUIPMENT and ULTRAWAVE TECHNOLOGY FOR EMULSION CONTROL, LLC d/b/a ULTRATEC, LLC, Appellants,
v.
DON B. CARMICHAEL, KK & PK FAMILY, L.P., BARRY D. WINSTON, and GARY EMMOTT, Appellees.

          ORDER

          Lee H. Rosenthal Chief United States District Judge.

         The appellants, Thomas Balke, TEBJES Inc. d/b/a Basic Equipment, and Ultrawave Technology for Emulsion Control LLC d/b/a Ultratec LLC, appeal from the bankruptcy court's judgment in Adversary No. 14-03375, Don B. Carmichael, KK & PK Family LP, Barry D. Winston and Gary Emmett v. Tommy Balke, in his individual capacity, TEBJEC, Inc., d/b/a Basic Equipment, and Ultrawave Technology for Emulsion Control LLC d/b/a Ultratec LLC, filed in Bankruptcy No. 13-30466, In re Imperial Petroleum Recovery Corp.

         The appellants move this court to determine its appellate jurisdiction. (Docket Entry No. 2). The appellees, Don B. Carmichael, KK & PK Family LP, Barry D. Winston, and Gary Emmett, oppose the motion. (Docket Entry No. 8). Based on the record, the parties' briefing, and the applicable law, the court denies the appellants' motion as moot, without prejudice subject to either party's reurging based on supplemental briefing. The reasons for this decision are explained below.

         I. Background

         A timeline is helpful:

• January 31, 2018. The bankruptcy court entered final judgment in the adversary proceeding. (Adversary No. 14-03375, Docket Entry No. 275).
• February 14, 2018. The appellants moved to alter, amend, or vacate the judgment or, alternatively, for a new trial. (Adversary No. 14-03375, Docket Entry No. 282).
• February 21, 2018. The bankruptcy court dismissed the motion because it was not signed by appellants' bankruptcy counsel and because a proposed order was not filed with the motion. (Adversary No. 14-03375, Docket Entry No. 286).
• February 23, 2018. The appellants filed an emergency motion to reconsider the dismissal order. (Adversary No. 14-03375, Docket Entry No. 289).
• March 2, 2018. Oral argument was held before the bankruptcy court on the reconsideration motion, which was taken under advisement.
• March 7, 2018. The appellants filed a notice of appeal from the February 21 order dismissing the motion to alter, amend, or vacate, or for a new trial. (Adversary No. 14-03375, Docket Entry No. 305).
• March 7, 2018. The bankruptcy court orally vacated the dismissal order after the appellants' notice of appeal filing. (Adversary No. 14-03375, Docket Entry No. 309).
• March 9, 2018. The bankruptcy court issued a written order vacating the dismissal order and setting a hearing on the merits of the appellants' motion to alter, amend, or vacate the judgment and alternative motion for a new trial. (Adversary No. 14-03375, Docket Entry No. 310).
• March 29, 2018. The bankruptcy court abated the hearing on the merits of the appellants' motion until further order. (Adversary No. ...

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