General Motors Corp v. Kitty Hawk Inc

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 23, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 06-10222
Summary Calendar
_______________________
In The Matter Of: KITTY HAWK, INC.,
Debtor.
________________________________
GENERAL MOTORS CORPORATION,
Appellant,
versus
KITTY HAWK, INC.,
Appellee,
On Appeal from the United States District Court
for the Northern District of Texas, Fort Worth
No. 4:05-CV-42
Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.
PER CURIAM:*
General Motors Corporation (“GM”) appeals the district
court’s dismissal of its appeal from the bankruptcy court. Because
GM’s appeal was untimely, the district court correctly determined
that it lacked appellate jurisdiction over GM’s appeal, and
properly dismissed the case. We AFFIRM.

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I. BACKGROUND
This case arises out of a post-confirmation contested
matter adjudicated in the Bankruptcy Court. GM filed a post-
confirmation third-party indemnity claim against Kitty Hawk in
Michigan state court. Kitty Hawk responded by filing a motion to
enforce the confirmation order and a motion to show cause why GM
should not be held in contempt (“Motion to Enforce Confirmation
Order”). On the court’s suggestion, Kitty Hawk and GM entered into
an Agreed Order on Kitty Hawk’s Motion to Enforce Confirmation
Order. As part of the Agreed Order (entered March 15, 2004), GM
was to dismiss the matter and instead file its late administrative
expense claim in the Bankruptcy Court. Upon confirmation of GM’s
dismissal of the state court matter, Kitty Hawk was to dismiss its
Motion to Enforce Confirmation Order.
Although GM dismissed the Michigan claims pursuant to the
agreed resolution, it did not file its expense claim in the
Bankruptcy Court. To resolve the matter, on September 1, 2004,
Kitty Hawk filed a motion to determine that GM did not have an
administrative expense claim against debtors. On November 9, 2004,
the Bankruptcy Court granted the motion and denied GM’s late claim;
the Court’s Order was entered by the clerk on November 10, 2004.
Pursuant to Bankruptcy Rule 8002(a), the deadline to
appeal the November 9 Order was November 22, 2004. On November 23,
2004, GM filed a notice of appeal of the Bankruptcy Court’s

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November 9 Order. GM did not file a motion requesting that the
deadline to file its notice of appeal be extended. Kitty Hawk
moved to dismiss GM’s appeal because it was not filed timely. On
August 25, 2005, the District Court granted Kitty Hawk’s Motion to
Dismiss and entered a Final Judgment dismissing GM’s appeal with
prejudice. GM subsequently filed a motion for reconsideration,
which the District Court denied.
GM acknowledges that it appealed the Bankruptcy Court’s
November 9 Order pursuant to the provisions applicable to final
judgments. However, due to the untimeliness of its appeal, GM now
performs an about-face. GM now contends that its appeal was not
late, but rather premature, because the November 9 Order was in
fact interlocutory. As a result, GM argues, its notice did not
ripen until the Bankruptcy Court’s January 24, 2005, final Order
closing the bankruptcy case. To decide whether GM’s argument has
merit, we must determine whether the Bankruptcy Court’s November 9
Order was final or interlocutory.
II. DISCUSSION
Unwilling to concede the untimeliness of its appeal, GM
contends that, because Kitty Hawk did not dismiss the Motion to
Enforce Confirmation Order, the November 9 Order adjudicating its
administrative expense claim remained interlocutory. As noted
supra, after GM filed a third-party claim for “indemnity” against
Kitty Hawk in Michigan, Kitty Hawk filed its Motion to Enforce

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Confirmation Order. The Bankruptcy Court then entered an Agreed
Order under which GM was to dismiss certain third-party claims
(which would purge it of contempt), and upon confirmation of the
dismissal, Kitty Hawk would in turn dismiss its Motion to Enforce
Confirmation Order (which was based on the improper pursuit of the
Michigan claims). As a separate matter, to pursue the late
indemnity claim, GM was to file a motion to allow a late filed
administrative expense claim in the Bankruptcy Court, which Kitty
Hawk would oppose. When GM failed to file its motion, in order to
resolve the viability of GM’s purportedly outstanding claim, Kitty
Hawk filed a motion to deny GM’s claim, which the Bankruptcy Court
granted in the November 9 Order.
GM now claims that the Motion to Enforce Confirmation
Order (to stop GM from improperly pursuing its purported claim in
Michigan state court, which was resolved by the Agreed Order) and
the Motion to Deny GM’s Claim (to dispose of GM’s purported late
claim, which was resolved by the November 9 Order) were two
overlapping, pending motions that comprised one judicial unit.
Therefore, GM argues that the November 9 Order was not final until
the bankruptcy case was formally closed by the Bankruptcy Court’s
January 24, 2005, Order.
This court “has long rejected adoption of a rigid rule
that a bankruptcy case can only be appealed as a ‘single judicial
unit’ at the end of the entire bankruptcy proceeding.” Bartee v.
Tara Colony Homeowners Assoc. (In re Bartee), 212 F.3d 277, 282

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(5th Cir. 2000) (citations omitted). Rather, under a flexible rule
of finality, “[a]n Order which ends a discrete judicial unit in the
larger case concludes a bankruptcy proceeding and is a final
judgment for the purposes of [28 U.S.C. § 158].” Orix Credit
Alliance, Inc. v. Heard Family Trucking, Inc. (In re Heard Family
Trucking, Inc.), 41 F.3d 1027, 1029 (5th Cir. 1995). In other
words, the bankruptcy system favors the appeal of discrete orders,
and appeal of final adjudication of issues does not await the
closing of the estate.
In the instant case, the two motions (Motion to Enforce
Confirmation Order and Motion to Deny GM’s Claim) on their faces
addressed separate matters, and each motion was fully adjudicated
by a separate order. On the one hand, Kitty Hawk’s nonpursuit of
its Motion to Enforce Confirmation Order was tied to GM’s dismissal
of its third-party claims in Michigan. That is, the Motion to
Enforce Confirmation Order was to stop the improper proceeding
outside the Bankruptcy Court. On the other hand, resolution of the
viability of GM’s late administrative claim was a separate issue
that was to be triggered by GM filing a motion to allow its late
claim.
Because GM did not file the motion, Kitty Hawk was forced
to file a motion to deny GM’s purported late claim. That GM forced
Kitty Hawk to file a motion to dispose of GM’s claim does not
transform that issue into part of the resolved matter that stopped
the improper state court proceedings. The discrete issue before

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1 Such an order that disposes of a party’s claim or exemption is a
discrete, appealable final order. See Greer v. O’Dell, 305 F.3d 1297, 1302 (11th
Cir. 2002) (“[A] Bankruptcy Court order which disallows a claim constitutes a
final order which is appealable to both the district and the Court of Appeals.”);
Canfield v. Orso (In re Orso), 283 F.3d 686, 690 (5th Cir. 2002) (a bankruptcy
court’s denial of an objection to a debtor’s claim of exemption is a final order,
subject to immediate appeal); Midland Cent. Appraisal Dist. v. Midland Indus.
Serv. Corp. (In re Midland Indus. Serv. Corp.), 35 F.3d 164, 165 (5th Cir. 1994)
(local taxing authority appealed from bankruptcy court order denying
administrative expense claim for taxes); England v. FDIC (In re England), 975
F.2d 1168, 1172 (5th Cir. 1992) (“Order which grants or denies an exemption will
be deemed a final order for the purposes of 28 U.S.C. § 158(d).”).
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the Bankruptcy Court was whether GM had a valid, late administra-
tive claim. The granting of the Motion to Deny GM’s Claim and
denial of any late administrative claim in the November 9 Order
resolved the only purported rights of GM before the Bankruptcy
Court. Additionally, “[t]he character of the bankruptcy court’s
order demonstrates that the court was aware that policy and
practicality counseled against retaining jurisdiction over the
case.” In re Bartee, 212 F.3d at 283. The bankruptcy court’s
order “conclusively determined the substantive rights at issue and
ended the dispute.” Id. Additionally, “[t]he record does not
contain any indication that the bankruptcy court intended to take
any further action on” GM’s late administrative claim. See id.
Finally, as noted supra, GM knew that the Order was final, and
appealed it as such.1 However, in its attempt to appeal, GM simply
missed the deadline.
The Bankruptcy Court’s November 9 Order concluded the
discrete judicial unit relating to GM’s late filing of an
administrative expense claim and was a final and appealable

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judgment. Thus, because GM’s appeal was untimely, the district
court correctly determined that it lacked appellate jurisdiction
over GM’s appeal, and properly dismissed the case.
III. CONCLUSION
For the reasons stated above, the district court’s
dismissal of GM’s appeal is AFFIRMED.

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