Case: 16-12056   Date Filed: 12/20/2016   Page: 1 of 6




                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-12056
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 0:15-cv-60732-WJZ,

                        Bkcy No. 0:13-bkc-23165JKO



In re: OCEAN 4660, LLC.,

                                        Debtor.
__________________________________________________________________

KENNETH A. FRANK,
OCEANSIDE LAUDERDALE, INC.,
EL MAR ASSOCIATES, INC.,

                                                          Plaintiffs-Appellants,

                                    versus

MARIA YIP,

                                                           Defendant-Appellee.
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                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                    (December 20, 2016)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

       Appellants Kenneth A. Frank, Oceanside Lauderdale, Inc. (“Oceanside”),

and El Mar Associates, Inc. (“El Mar”) appeal the district court’s judgment

affirming the bankruptcy court’s order resolving a disputed Chapter 7 trustee

election pursuant to 11 U.S.C. § 702. After review, we affirm. 1

       As a threshold matter, we address Appellee Maria Yip’s contention that we

lack jurisdiction to hear this appeal because the bankruptcy court’s order is not a

final decision under 28 U.S.C. § 158(d)(1). “Although a district court, at its

discretion, may review interlocutory judgments and order of a bankruptcy court,

see 28 U.S.C. § 158(a), a court of appeals has jurisdiction over only final

judgments and orders entered by a district court or a bankruptcy appellate panel

sitting in review of a bankruptcy court, see § 158(d).” In re Celotex Corp., 700


       1
         We review our appellate jurisdiction de novo. In re Donovan, 532 F.3d 1134, 1136
(11th Cir. 2008). As “the second appellate court to review” the bankruptcy court, we “assess the
bankruptcy court’s judgment anew, employing the same standard of review the district court
itself used.” In re Failla, 838 F.3d 1170, 1174 (11th Cir. 2016). Accordingly, we review the
bankruptcy court’s conclusions of law and mixed questions of law and fact de novo and its fact
findings for clear error. In re Cox, 493 F.3d 1336, 1340 n.9 (11th Cir. 2007).
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F.3d 1262, 1265 (11th Cir. 2012) (quotation marks omitted); see also 28 U.S.C.

§ 158(d)(1) (“The courts of appeals shall have jurisdiction of appeals from all final

decisions, judgments, orders, and decrees entered” by the district court under

subsection (a)). While a final decision generally “is one which ends the litigation

on the merits and leaves nothing for the court to do but execute the judgment,” In

re Celotex Corp., 700 F.3d at 1265, this Court has concluded that “[f]inality is

given a more flexible interpretation in the bankruptcy context . . . because

bankruptcy is an aggregation of controversies and suits.” In re Donovan, 532 F.3d

1134, 1136 (11th Cir. 2008). Thus, “[i]n the bankruptcy context, this Court has

concluded that it is generally the particular adversary proceeding or controversy

that must have been finally resolved rather than the entire bankruptcy litigation.”

In re Walker, 515 F.3d 1204, 1210 (11th Cir. 2008).

      This Court has held that an order removing or appointing a Chapter 7 trustee

is a final order. See id. at 1210-11 & n.4 (reviewing a bankruptcy court’s order

removing a permanent trustee for an undisclosed conflict of interest). In so doing,

we acknowledged a split among the Circuits on this issue and concluded that we

were “persuaded by the logic” of the Third Circuit in In re Marvel Entertainment

Group, Inc., 140 F.3d 463, 470-71 (3d Cir. 1998), as follows:

      In that case, the court wrote that the purpose of the finality
      requirement is judicial economy but that judicial efficiency would be
      turned on its head if the court were to delay reviewing the trustee
      appointment until after the entire bankruptcy proceeding concluded.
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      The court [in In re Marvel] noted that liberal finality considerations in
      orders appointing bankruptcy trustees are necessary because these
      orders cannot be meaningfully postponed to the bankruptcy’s
      conclusion. The [In re Marvel] court wrote that if it did not have
      jurisdiction no meaningful review of the order appointing the trustee
      could ever take place. It would strain credulity to suggest that a
      reviewing court would jettison years of bankruptcy infighting,
      compromise, and final determinations solely for the purpose of
      reversing on the issue of the identity of the trustee.

Id. at 1210-11 & n.5 (quotation marks, alterations and citations omitted).

      Here, at an initial meeting of the debtor’s three creditors, two of the

creditors—Appellants El Mar and Oceanside—requested the election of a

permanent trustee. Over the objection of the third creditor, Comerica Bank, and

the interim trustee, Appellee Yip, Appellants El Mar and Oceanside nominated and

elected William Brandt to serve as trustee. After a hearing on the disputed

election, the bankruptcy court entered an order that: (1) concluded that no valid

election took place because Appellants El Mar and Oceanside were ineligible

under 11 U.S.C. § 702(a)(1) and Bankruptcy Rule 2003(b)(3) to request the

election because their claims were disputed; and (2) appointed Appellee Yip to

serve as the permanent Chapter 7 trustee.

      Appellants then appealed to the district court. The district court affirmed the

bankruptcy court’s order, concluding that Appellants El Mar and Oceanside “were

not entitled to participate in election of the Chapter 7 trustee,” and therefore “no

valid election took place, leaving Maria Yip as trustee for the case.”


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       Based on our binding precedent in In re Walker, we conclude that the district

court’s decision, which affirmed the bankruptcy court’s order resolving the

election dispute and appointing Appellee Yip as the Chapter 7 permanent trustee,

was a “final decision” within the meaning of 28 U.S.C. § 158(d)(1). See id. at

1210-11.

       Appellant Yip cites decisions from other Circuits, In re Klein, 940 F.2d 1075

(7th Cir. 1991), and In re St. Charles Preservation Investors, Ltd., 916 F.2d 727

(D.C. Cir. 1990), both of which fall on the other side of the Circuit split

acknowledged in In re Walker. 2 Indeed, the Third Circuit in In re Marvel, with

which In re Walker expressly agreed, explicitly rejected the position of the Seventh

and D.C. Circuits on this finality issue. See In re Marvel, 140 F.3d at 470. In

short, we are bound by our prior precedent in In re Walker. See Smith v. GTE

Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001) (“Under the well-established prior

panel precedent rule of this Circuit, the holding of the first panel to address an

issue is the law of this Circuit, thereby binding all subsequent panels unless and




       2
         As Appellants note, these two cases are also distinguishable in that the district court
orders reversed the bankruptcy courts’ rulings as to the trustee and remanded to the bankruptcy
court for further proceedings. See In re Klein, 940 F.2d at 1076-77; In re St. Charles Pres.
Inv’rs, Ltd., 916 F.2d at 728. Here, as in In re Walker, the district court affirmed the bankruptcy
court’s ruling as to the trustee. See In re Walker, 515 F.3d at 1213.
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until the first panel’s holding is overruled by the Court sitting en banc or by the

Supreme Court.”). 3

       Having concluded that we have appellate jurisdiction, we affirm the district

court’s judgment based on its well-reasoned order filed on March 30, 2016.

       AFFIRMED.




       3
         Appellee Yip also argues that Appellant Frank lacks standing to appeal because he did
not participate in the trustee election and thus is not a “person aggrieved” by the bankruptcy
court’s order. See Atkinson v. Ernie Haire Ford, Inc. (In re Ernie Haire Ford, Inc.), 764 F.3d
1321, 1325-26 (11th Cir. 2014). Because Appellee Yip does not dispute that Appellants
Oceanside and El Mar have the requisite standing, we need not resolve the issue of Appellant
Frank’s standing in order to entertain this appeal.
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