Ortiz v. Howard Avenue Station, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

THOMAS ORTIZ,

Appellant,

v. Case No: 8:20-cv-2580-CEH

FRANK R. KANE and HOWARD

AVENUE STATION, LLC,

Appellees.

___________________________________/

ORDER

This matter comes before the Court upon Appellee Frank R. Kane's Motion to

Dismiss [Doc. 10], Thomas Ortiz’s Response [Doc. 14], and Frank R. Kane’s Reply

15].1 In the motion to dismiss, Appellee Kane argues that Appellant has failed to

comply with several rules of the Federal Rules of Bankruptcy Procedure as well as this

Court’s orders and his appeal should be dismissed. The Court, having considered the

motion and being fully advised in the premises, will grant Appellee Frank R. Kane's

Motion to Dismiss.

I. BACKGROUND

1 The response was untimely, but in light of Mr. Ortiz’s representation that he did not receive

the motion by mail and did not receive it until just over two weeks later by email, the Court

will consider the arguments raised therein. The Court further notes that Frank R. Kane filed

a reply [Doc. 15] without first seeking leave to do so, as required by Middle District of Florida

Local Rule 3.01(d). As no objection was filed, the Court considered the reply in ruling on the

motion to dismiss.

On November 4, 2020, Appellant Thomas Ortiz filed this appeal of an order of

the United States Bankruptcy Court.2 [Doc. 1]. In his “Amended Notice of Appeal,”

he indicates that the appeal is of the order entered August 28, 2019 at ECF 1017. Id.

at pp. 1, 5-6. In that order, the bankruptcy court denied Mr. Ortiz’s motion for

rehearing or modification of the July 12, 2019 order at ECF 1007, granting the

Debtor’s Emergency Motion to Abate the Payment of Adequate Protection to Frank

R. Kane. Id. at pp. 1, 7-8. In a footnote, Mr. Ortiz indicated that the notice of appeal

also served as an appeal of the July 2019 order, to the extent there was any issue

whatsoever with already pending appeals before this Court. Id. at p. 1.

In the July 2019 order, the bankruptcy court stated:

The payment of rent to Frank Kane . . . is governed by Fla.

Stat. § 83.201. Adequate protection payments are abated

until the required repairs have been made in accordance

with said statute, the Notices of Violation issued by the City

of Tampa have been cured, and the Orders to Vacate issued

by the City of Tampa have been lifted, at which time any

withheld payments shall be paid. However, if the premises

are abandoned, the payments withheld may be retained

pursuant to Fla. Stat. § 83.201.

Id. at p. 8. The bankruptcy court then indicated in the August 2019 order “the [July

2019] Order needs no modification.” Id. at p. 6. According to the notice of appeal, the

August 2019 order became final on September 18, 2020, upon entry of ECF 1154, an

Order Granting in Part and Denying in Part Motion for Clarification and/or for

2 The Notice of Appeal was filed in the bankruptcy court on October 26, 2020 [Doc. 1].

Comfort Order, which purportedly “clarified, modified, and/or amended” the orders

on appeal. Id. at p. 1.

On November 5, 2020, this Court ordered counsel and the pro se party to certify

whether this action was a similar or successive case. [Doc. 2]. That notice of related

actions was filed by Frank R. Kane on November 17, 2020, and indicates that the

subject matter of this action relates to three other actions pending in this District,3 and

lists several other similar or related cases. [Doc. 4]. The record on appeal was docketed

on November 24, 2020, and the following day, Appellant was advised that he “shall

comply with the filing and format requirements established by Rule 8018 of the Rules

of Bankruptcy Procedure and Rule 1.05 of the Local Rules of the United States District

Court for the Middle District of Florida.” [Docs. 6, 7].

On January 29, 2021, Appellee Frank R. Kane filed this motion to dismiss.

[Doc. 10]. There he argues that (i) the appeal is untimely as the orders were entered in

2019; (ii) that Appellant has failed to comply with the Court’s orders; (iii) that

Appellant has failed to designate the record as required by Rule 8009(a) of the Federal

Rules of Bankruptcy Procedure; and (iv) that Appellant has failed to file his initial brief

as required by Rule 8018. Id. ¶ 1.

Appellant opposes the motion. [Doc. 14]. He contends that the appeal was

timely based on an extension of time from the bankruptcy court. Id. at p. 2. He further

3 The three actions identified included: PNC Investments, LLC, The Block in Soho, LLC, and

VMOB, LLC v. Frank Kane, Case No. 8:19-cv-02490-WFJ; Howard Avenue Station, LLC v. Frank

Kane, Case No. 8:19-cv-02491-MSS; and Thomas Ortiz v. Frank Kane, Case No. 8:19-cv-

02492-MSS.

contends that the appeal should not be dismissed because of any failure to comply with

this Court’s Orders and that Mr. Kane does not allege and cannot prove the required

“bad faith, negligence or indifference” which must be present for the Court to dismiss

the action. Id. at pp. 10-12. He also argues that it is his understanding that an appeal

should not be dismissed for failing to designate the record on appeal and that he has

been working on consolidating the multiple appeals with the first-filed case before

Judge Jung and he then plans to prepare a consolidated appellate record, because it

makes sense to do so. Id. at pp. 12-13. He also contends that his failure to file the initial

brief is justified for the same reason. Id. at pp. 14-15.

In reply, Appellee argues that Appellant believes that the extension deadline

continues to toll over and over and over again with the filing of each motion relative

to the subject of the Order(s), regardless of the timeframe for filing such motion and

that the appeal deadline continues to be extended with each subsequent order and

motion, which is not accurate. [Doc. 15 at pp. 5,6]. Appellee then points out that no

consolidation of the appeal has been sought by Appellant and that this reasoning does

not excuse Appellant’s refusal to designate the record. Id. at p. 8. Lastly, Appellee

points out that the appeal is duplicative of appeals of the same order that were filed a

year earlier—as Appellant admits—and should therefore be dismissed. Id. at p. 10.

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 158(a), the United States District Court functions as an

appellate court in reviewing decisions of the United States Bankruptcy Court. See In re

Williams, 216 F.3d 1295, 1296 (11th Cir. 2000) (stating same). The district court’s

jurisdiction covers “final judgments, orders, and decrees . . . entered in cases and

proceedings referred to the bankruptcy judges.” Id. § 158(a)(1); Alderwoods Grp., Inc. v.

Garcia, 682 F.3d 958, 964 (11th Cir. 2012) (stating same). “A final decision is generally

one which ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.” In re Charter Co., 778 F.2d 617, 621 (11th Cir. 1985) (quotations

omitted). “[T]he separate dispute being assessed must have been finally resolved and

leave nothing more for the bankruptcy court to do.” Id. Additionally, “with leave of

the court,” an appeal may lie “from other interlocutory orders and decrees.” 28 U.S.C.

§ 158(a)(3).

Assuming that jurisdiction exists, the Federal Rules of Bankruptcy Procedure

impose a number of obligations on a party seeking review of the decision of a

bankruptcy court. First, “a notice of appeal must be filed with the bankruptcy clerk

within 14 days after entry of the judgment, order, or decree being appealed,” except as

provided by the Rules. Fed. R. Bankr. P. 8002. The appellant must then file with the

bankruptcy clerk and serve on the appellee a designation of the items to be included in

the record on appeal and a statement of the issues to be presented, within 14 days after

(i) the notice of appeal as of right becomes effective under Rule 8002 or (ii) an order

granting leave to appeal is entered. Fed. R. Bankr. P. 8009(a)(1). Next, “[t]he appellant

must serve and file a brief within 30 days after the docketing of notice that the record

has been transmitted or is available electronically.” Fed. R. Bankr. P. 8018(a)(1). The

Rules further provide that “[i]f an appellant fails to file a brief on time or within an

extended time authorized by the district court or BAP, an appellee may move to

dismiss the appeal.” Fed. R. Bankr. P. 8018(4).

III. DISCUSSION

In assessing the arguments raised by Appellee, the Court finds that dismissal of

this appeal is warranted because it is untimely, such that subject matter jurisdiction is

lacking. Additionally, there are other issues that would subject this appeal to dismissal

had it been timely.

a. Jurisdiction

As noted above, the Court’s jurisdiction extends to “final judgments, orders,

and decrees . . . entered in cases and proceedings referred to the bankruptcy judges,”

and the Court may hear appeals from interlocutory orders. 28 U.S.C. § 158(a)(1), (3).

Upon the Court’s own consideration, it appears that the orders on appeal do not fit

within the class of orders over which this Court has jurisdiction.

The orders identified in this appeal relate to the abatement of adequate

protection payments in relation to a rental property. In In re Alchar Hardware, 730 F.2d

1386, 1388 (11th Cir. 1984), the court found that the bankruptcy court's determination

of whether one creditor is adequately protected did not end the bankruptcy

proceedings. See also In re Regency Woods Apartments, Ltd., 686 F.2d 899, 903 (11th Cir.

1982) (dismissing appeal on the basis that order requiring cash payments to provide

adequate protection and other orders were interlocutory). As in In re Alchar Hardware,

the bankruptcy court’s decision here does not bear the indicia of finality that allows

for appellate review. Furthermore, Appellant has not sought leave to appeal this order.

Considering these issues, the Court questions its jurisdiction over this appeal.4

b. Timeliness of Appeal

Regardless, the Court must agree with Frank R. Kane that the appeal is

untimely. “The Supreme Court has emphasized that the timely filing of a notice of

appeal is mandatory and jurisdictional. If the notice is not timely filed, the appellate

court is without jurisdiction to hear the appeal.” In re Williams, 216 F.3d 1295, 1298

(11th Cir. 2000) (quoting Advanced Estimating System, Inc. v. Riney, 77 F.3d 1322, 1323

(11th Cir.1996)). Pursuant to Federal Rule of Bankruptcy Procedure 8002(d), “a notice

of appeal must be filed with the bankruptcy clerk within 14 days after entry of the

judgment, order, or decree being appealed.” Fed. R. Bankr. P. 8002. Additionally, the

bankruptcy court may extend the time to file a notice of appeal upon a party’s motion

that is filed: (a) within the time prescribed by this rule; or (b) within 21 days after that

time, if the party shows excusable neglect. Fed. R. Bankr. P. 8002(d)(1).

According to the bankruptcy court’s file stamp, Mr. Ortiz filed this notice of

appeal on October 26, 2020.5 [Doc. 1]. The notice of appeal identifies the order at ECF

1017 denying the motion for rehearing or modification entered on August 28, 2019, as

the order on appeal. Id. It also unequivocally indicates that it serves as an appeal of the

order granting the motion to abate the payment of adequate protection to Frank R.

4 Because dismissal is warranted on another jurisdictional ground, the Court need not decide

this jurisdictional issue.

5 Mr. Ortiz claims that the notice of appeal was actually filed October 2, 2020. [Doc. 8 ¶ 10].

This is of no consequence as it was still over a year late.

Kane entered on July 12, 2019. This appeal of the orders was filed way outside the

fourteen-day period for doing so in accordance with Rule 8002. And it is not based on

any order of the bankruptcy court extending the time to do so. In fact, Mr. Ortiz notes

that these same orders were timely appealed on October 2, 2019 and assigned Case

No. Case No: 8:19-cv-02492-MSS, and that this appeal was filed as a “belts and

suspenders” protection. [Doc. 14 ¶¶ 7, 8]. This admission further indicates the

untimeliness of this appeal.

c. Duplicate Appeal

Moreover, Mr. Ortiz’s representations also confirm that this appeal is

duplicative of another appeal before this Court. “[T]he general rule is that a suit is

duplicative of another suit if the parties, issues and available relief do not significantly

differ between the two actions.” Georgia ex. rel. Olens v. McCarthy, 833 F.3d 1317, 1321

(11th Cir. 2016) (quoting I.A. Durbin, Inc v. Jefferson Nat'l Bank, 793 F.2d 1541, 1551

(11th Cir. 1986)). An Appellant is not entitled to two appeals. United States v. Arlt, 567

F.2d 1295, 1297 (5th Cir. 1978)6; see generally Daker v. Warren, No. 17-11121-J, 2017

WL 4417827, at *1 (11th Cir. June 21, 2017) (“Mr. Daker ‘is not entitled to

two appeals’ from the same order.”); Bouey v. Orange Cty. Serv. Unit, 695 F. App'x 523

(11th Cir. 2017) (“she is not entitled to two appeals of the same order.”); Brown v.

6 “All decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1, 1981

are binding on this court.” United States v. Johnson, 713 F.2d 633, 640 n.6 (11th Cir. 1983);

Roman v. United States, 789 F. App'x 211, 212 (11th Cir. 2019) (stating same and citing Bonner

v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc)).

United States, No. 19-12028-E, 2019 WL 4071874, at *1 (11th Cir. July 9, 2019)

(dismissing appeal as duplicative and for lack of jurisdiction). “[F]ederal courts ‘are

afforded broad discretion in determining whether to stay or dismiss litigation in order

to avoid duplicating a proceeding already pending in another federal court.’ ” Georgia

ex. rel. Olens, 833 F.3d at 1321 (quoting 1.A. Durbin, Inc, 793 F.2d at 1551-52). Thus,

even if the other deficiencies did not exist, this appeal would likely be dismissed as

duplicative.

IV. CONCLUSION

The appeal of the orders identified in the notice of appeal is untimely. The Court

therefore lacks subject matter jurisdiction and the appeal must be dismissed.

Accordingly, it is hereby ORDERED AND ADJUDGED:

1. Appellee Frank R. Kane's Motion to Dismiss [Doc. 10] is granted. This

appeal is dismissed for lack of subject matter jurisdiction.

2. The Clerk is directed to terminate all pending motions and to close this

case.

DONE AND ORDERED in Tampa, Florida on August 9, 2021.

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any