In re Public Service Co. of New Hampshire
Opinion of the Court
Public Service Company of New Hampshire is in the midst of bankruptcy proceedings. In December 1988, Hudson Light and Power filed a proof of claim. It said that it “has contract claims” against Public Service (1) as a “joint owner,” and (2) as an “intended beneficiary” of certain contracts. In January 1989, Peabody Municipal Light filed a similar proof of claim, asserting similar claims, but only as an “intended beneficiary,” not as a “joint owner.” Public Service then filed a motion for “partial summary judgment,” asking the bankruptcy court to dismiss the “derivative” claims, namely, those that the two companies asserted as “intended beneficiaries” (i.e leaving in effect Hudson’s claims as “joint owner”). The bankruptcy court filed a paper on March 22, 1989 in which it “ORDERED” that the “Motion for Partial Summary Judgment is granted with respect to the claims of Hudson, ... Peabody, ...” and various other firms that had made similar “derivative” claims.
Hudson and Peabody wished to appeal this decision to the district court, but they could not decide whether the order was “final,” in which case they could appeal as of right, or “interlocutory,” in which case they needed the district court’s permission to appeal. 28 U.S.C. § 158(a). They tried to protect themselves by filing both a motion for leave to appeal on March 30 and a notice of appeal on March 30. Bankruptcy Rule 8001(a) and (b). Unfortunately, they then made a major mistake. On March 30, they also filed a motion asking the bank
The district court, recognizing that it had no choice in the matter, Griggs, 459 U.S. at 61, 103 S.Ct. at 403; In re Johnson Cover Co., 92 B.R. 712 (S.D.Tex. 1988); In re Crystal Sands Properties, 84 B.R. 665 (9th Cir. BAP 1988), dismissed the appeal. But, it went on to say (1) it might consider the motion for “leave to appeal,” (2) it felt that such a motion was appropriate because the bankruptcy order appealed from was “interlocutory,” not “final,” (3) it would deny the motion for the present, but, (4) its denial was “without prejudice” to Hudson or Peabody asking the bankruptcy court to enter what Fed.R.Civ.P. 54(b) refers to as a “final judgment as to ... fewer than all of the claims or parties,” i.e., to issue a piece of paper saying that its summary judgment about the “derivative” claims was final even though Hudson still has pending claims as a “joint owner.” See, e.g., Spiegel v. Trustees of Tufts College, 843 F.2d 38 (1st Cir. 1988). Public Service now wishes to appeal to us from the district court’s decision, even though it seems to have won before the district court (which did not hear the appeal). Public Service apparently thinks the words “without prejudice” somehow work to its disadvantage.
Hudson and Peabody argue that the bankruptcy court’s “partial summary judgment” order is “interlocutory,” and that the bankruptcy court will therefore be able to enter a later “final” judgment under Rule 54(b); and they will then be able to appeal. We note that the bankruptcy rules, particularly in “Part VII Adversary Proceedings,” draw strong analogies between an “adversary proceeding” in bankruptcy and an ordinary “case” in a district court. In re Saco Local Development Corp., 711 F.2d 441 (1st Cir. 1983) (indicating that a “final” order in an adversary proceeding is “final” for purposes of appeal); Reichman v. United States Fire Ins. Co., 811 F.2d 1112, 1116 (7th Cir. 1987) (decision in a bankruptcy case is final “when it wraps up a piece of litigation that would have been a stand-alone suit outside of bankruptcy law”); 9 Collier on Bankruptcy, § 8001.06 (1989). Were the partial summary judgment order one entered by a district court judge in a district court case, rather than one issued by a bankruptcy judge in an adversary proceeding, we should consider it not to be “final;” it would have “adjudicate[d] fewer than all the claims ... of fewer than all the parties,” for Hudson’s “joint owner” claim would remain; hence the order at issue would not “terminate the action;” Fed.R. Civ.P. 54(b); it would be “interlocutory,” not “final,” and the only way for it to become “final” (without termination of the “joint owner” claim) would be for the court to enter a special Rule 54(b) “final judgment” as to fewer than all claims. See Adelman v. Fourth National Bank and Trust Co., 893 F.2d 264 (10th Cir. 1990).
We cannot decide this matter now, however, for a party cannot appeal a judgment entered in its own favor. Bath Iron Works Corporation v. Coulombe, 888 F.2d 179, 180 (1st Cir. 1989). The district court dismissed the appeal, precisely what Public Service of New Hampshire wished. The reasons it gave in support of its dismissal will not bind Public Service of New Hampshire should that reasoning lead to a further order that Public Service opposes, when, and if, Public Service appeals such a
The appeal is
Dismissed.
Reference
- Full Case Name
- In re PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Debtor. (Two Cases) Appeal of PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE. Appeal of UNITED ILLUMINATING COMPANY
- Cited By
- 12 cases
- Status
- Published