[Not for Publication - Not to be Cited as Precedent]

United States Court of Appeals For the First Circuit

No. 00-1502

IN RE 110 BEAVER STREET PARTNERSHIP,

Debtor,

____________

110 BEAVER STREET PARTNERSHIP; JEFF BUSTER; PAUL MCGINTY; MARTHA JEAN EAKIN,

Appellants,

v.

HAROLD B. MURPHY; GOFFE, INC; UNITED STATES TRUSTEE; WALTHAM, CITY OF; SIDNEY J. CRONSBERG; BALLET SHOP OF NE; ACTIVE VIDEO,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Senior Circuit Judge.

David J. Fine, with whom Dangel & Fine, LLP, was on brief, for appellants. Andrew G. Lizotte, with whom Harold B. Murphy and Hanify & King, P.C., were on brief, for appellee Murphy. John J. Monaghan, with whom Paul Killeen, Lynne B. Nowak Xerras, Daniel K. Hampton, and Holland & Knight LLP, were on brief, for appellee Goffe. A. Hugh Scott, with whom Robert M. Buchanan, Jr., Douglas R. Gooding, and Choate, Hall & Stewart, were on brief, for intervenor Choate, Hall & Stewart.

June 26, 2001 Per curiam. In this appeal, the 110 Beaver Street

Partnership and the Partnership's partners, individually and in

their capacity as partners, take issue with the district court's

rejection of their challenges to certain orders issued by the

bankruptcy court during the Partnership's attempt to reorganize

under Chapter 11 of the Bankruptcy Code.1 Specifically, insofar

as is relevant, appellants contend that the district court erred

in reaching the following four conclusions: (1) appellants'

appeal of the appointment of a Chapter 11 trustee was untimely,

(2) appellants effectively waived their right to appeal the

bankruptcy court's allowance of certain professional fee

applications by failing to lodge timely objections to the

applications in the bankruptcy court, (3) the bankruptcy court

did not clearly err in denying the Partnership's motion to

employ as its counsel David J. Fine, Esq., and (4) the

bankruptcy court acted lawfully in declining on several

occasions to hear argument on behalf of the Partnership from Mr.

Fine.2

1 The attempt at reorganization was unsuccessful and the bankruptcy court eventually converted the case to a Chapter 7 proceeding. 2In their brief, appellants also challenged the district court's affirmation of the bankruptcy court's denial of their Bankruptcy Rule 9024 and Fed. R. Civ. P. 60(b)(3) motion for relief from the October 8, 1997 order permitting foreclosure on the Partnership's principal asset. At oral argument, however,

-4- We have given careful consideration to appellants'

arguments and are of the opinion that they fail to undermine the

reasoning which led to these four conclusions, which is cogently

set forth in the district court's February 11, 2000 memorandum

of decision. That being the case, we will not reinvent the

wheel. We affirm the district court's judgment largely on the

basis of the district court's memorandum of decision, e.g.,

Mullin v. Raytheon Co.,

(1st Cir.), cert.

denied,

(1999), adding only the following

qualifications and elaborations:

1. We reject appellants' suggestion that it is an open

question in this circuit whether the appointment of a Chapter 11

trustee is a final and immediately appealable order.

Notwithstanding its idiosyncratic facts, we think that In re

Plaza de Diego Shopping Center, Inc.,

(1st Cir.

1990), clearly establishes, as a general rule, that the

appointment of a Chapter 11 trustee is "a final decision of a

significant and discrete dispute . . . [which] is appealable,"

. The district court was duty-bound to apply this

precedent, as is this newly-constituted panel. E.g. United

States v. Owens,

, 754 n.7 (1st Cir.), cert. denied,

appellants explicitly dropped their challenges to this ruling.

-5-

(1999). Appellants remain free, of course, to

petition the en banc court to revisit the matter. See id.

2. Appellants do not contend that they are entitled

to ask for appellate review even if they failed to lodge an

objection to the fee applications they now seek to challenge.

Rather, they make two arguments: (a) the Partnership's December

12, 1997 motion to postpone the adjudication of the pending fee

applications, filed by Attorney Fine as "Proposed Counsel for

Debtor" on the day objections were due,3 was a de facto objection

to the fee applications, and (b) the bankruptcy court

effectively deprived them of the opportunity to object to the

fee applications by failing to rule either on the aforesaid

motion to postpone or the Partnership's December 8, 1997 motion

to employ Attorney Fine as counsel prior to issuing its order

allowing the fee applications. Both arguments lack merit.

As appellants appear to recognize, see Appellants'

Brief at 45, an efficacious opposition requires the presentation

of "evidence and legal authorities which will be of aid to the

court in making its decision." In re Malmart Mortg. Co., Inc.,

(D. Mass. 1994). The Partnership's motion to

3The original due date for objections was December 5, 1997, but the bankruptcy court extended the deadline to December 12, 1997 when it allowed the Partnership's untimely December 8, 1997 motion for a one-week extension.

-6- postpone contained no such presentation. Indeed, the motion

implicitly acknowledged that it was not an objection when it

stated: "It is beyond the scope of this motion to describe the

Debtor's view [as to why one of the fee applications should be

denied] and the grounds for that view in any detail." Given

this statement, appellants' first argument is difficult to

comprehend.

Appellants' second argument fares no better. We think

it obvious that a party cannot unilaterally push back a case

management due date by filing a motion to extend the deadline

(which was, in effect, the relief sought by the motion to

postpone) on the due date itself. Similarly, if the Partnership

saw the retention of counsel as a prerequisite to filing a

timely objection to the fee application, it should have so

advised the bankruptcy court explicitly. The Partnership's

generic motion to employ counsel, filed three days after the

expiration of the original deadline and four days before the

extended deadline, fell well short of doing so.

3. To the district court's convincing explanation for

rejecting appellants' assignment of error with respect to the

motion to employ Attorney Fine, we add only that appellants do

not contradict the Trustee's assertion, see Trustee's Brief at

22-23, that Attorney Fine represents Paul McGinty, who has

-7- asserted claims against the Partnership. Attorney Fine

obviously cannot simultaneously represent the Partnership and

one of its creditors. See Rome v. Braunstein,

(1st Cir. 1994).

4. Finally, we have scrutinized the portions of the

record cited by appellants in support of their argument that the

bankruptcy court improperly prevented Mr. Fine from speaking on

behalf of the Partnership but see no factual basis for the

argument. And even if there were such a basis, it does not

appear that appellants brought the alleged error to the

attention of the bankruptcy court. The argument therefore is

waived. E.g., In re Rauh,

(1st Cir. 1997).

Affirmed. Costs are awarded to appellees.

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