Juravin v. Kennedy

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

In Re: Don Karl Juravin

ANNA JURAVIN,

Appellant,

v. Case No: 6:21-cv-1922-GAP

DENNIS D. KENNEDY

Appellee.

MEMORANDUM OPINION AND ORDER

This matter comes before the Court without oral argument on appeal from

the United States Bankruptcy Court for the Middle District of Florida. Appellant

Anna Juravin appeals the Bankruptcy Court’s denial of her Motion to Remove the

Trustee. With the parties’ briefing complete (Docs. 18 & 25), the matter is ripe for

disposition.

I. Background1

This appeal arises from the execution of a break order in connection with

the Chapter 7 bankruptcy proceedings for Don Karl Juravin (hereinafter, the

“Debtor”). Following issues with obtaining discovery from the Debtor, the

Chapter 7 Trustee, Dennis D. Kennedy, filed an ex parte motion for a break order

to search the Debtor’s home for documents, electronic data, and certain assets that

may be part of the bankruptcy estate. The Bankruptcy Court granted that motion,

and on May 5, 2021, the Trustee executed the Break Order in the presence of the

Debtor’s wife, Appellant Anna Juravin. Doc. 22 at 198–203. The Trustee filed an

inventory with the Bankruptcy Court listing all the items obtained during the

execution of the break order. Id. at 198–99.

Five months later, on October 7, 2021, Appellant and the Debtor filed a

motion seeking the removal of the Trustee, the disqualification of his counsel, and

a protective order relating to evidence obtained during the execution of the break

order. Doc. 18-1 at 4. On October 18, 2021, Appellant and the Debtor filed an

amended motion seeking the same relief. Doc. 22 at 128. On November 9, 2021, the

Bankruptcy Court held a hearing where it heard argument and denied the Motion.

1 The Court relies on the appendix filed by Appellees for this background section and

docket entries from the Bankruptcy Court record. See Doc. 22. Appellant filed a deficient

appendix that does not include the break order that Appellant discusses at length, or the

transcript of the hearing containing the Bankruptcy Court’s basis for denying Appellant’s Motion

below. See Doc. 18-1.

In re Juravin, 6:18-bk-6821, Doc. 669-1 at 37 (Br. M.D. Fla. Dec. 29, 2021). Appellant

now appeals that ruling.

II. Legal Standard

Bankruptcy court orders removing or denying the removal of the trustee are

final, appealable orders. See In re Walker, 515 F.3d 1204, 1210–11 (11th Cir. 2008)

(“the removal of a bankruptcy trustee is a ‘final’ order appealable to this Court”);

see also In re Steffen, No. 8:09-cv-353, 2011 WL 13174777, at *2 (M.D. Fla. Oct. 12,

2011) (the Eleventh Circuit’s reasoning with respect to orders removing the trustee

“applies with equal force to orders denying the removal of a trustee”). Therefore,

district courts have jurisdiction to hear appeals of such orders. See 28 U.S.C. §

158(a)(1).

A bankruptcy court’s denial of a motion to remove a trustee is reviewed for

abuse of discretion. See In re Steffen, 2011 WL 13174777, at *3 (citing In re AFI

Holding, Inc., 530 F.3d 832, 844 (9th Cir. 2008)). And a bankruptcy court’s ruling on

employment of counsel is also reviewed for abuse of discretion. In re Cecil, 8:12-cv-

958, 2012 WL 3231321, at *2 (M.D. Fla. Aug. 3, 2012) (citing In re M&M Mktg.,

L.L.C., 426 B.R. 796, 799 (B.A.P. 8th Cir. 2010)). A court “abuses its discretion if it

applies an incorrect legal standard, applies the law in an unreasonable or incorrect

manner, follows improper procedures in making a determination, or makes

findings of fact that are clearly erroneous.” Torres v. First Transit, Inc., 979 F.3d 876,

881 (11th Cir. 2020) (quoting Brown v. Ala. Dep't of Transp., 597 F.3d 1160, 1173

(11th Cir. 2010)). “A ‘clear error in judgment’ is also an abuse of discretion.” Id.

(quoting United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005)).

III. Analysis

At the outset, the Court notes that Appellant’s brief contains several

formatting issues, is highly disorganized, and is largely identical to her initial

motion filed in the Bankruptcy Court. While this makes it difficult to discern

exactly what the Appellant seeks on appeal, the Court will deal with the issues as

Appellant presents them. Appellant seeks two forms of relief. First, she asks the

Court to remove and replace the Trustee and his counsel. Second, she asks that her

property “be fully accounted for.” The Court addresses each issue in turn.

A. Removal of the Trustee and his Counsel

Initially, the Trustee argues that Appellant lacks standing to seek his

removal. To seek relief in federal court, a litigant must have standing under

Article III of the Constitution, which requires an injury-in-fact, causation, and

redressability. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).

In addition, a litigant in bankruptcy court must satisfy the “person

aggrieved doctrine,” which “restricts standing more than Article III standing, as it

allows a person to appeal only when they are directly and adversely affected

pecuniarily by the order.” See In re Westwood Cmty. Two Ass’n, Inc., 293 F.3d 1332,

1335 (11th Cir. 2002) (citations and internal quotations omitted). “[T]he person

aggrieved doctrine limits standing to appeal a bankruptcy court order to those

individuals who have a financial stake in the order being appealed.” Id. (citations

omitted) “A person has a financial stake in the order when that order diminishes

their property, increases their burdens or impairs their rights.” Id. (citations and

internal quotations omitted). Further, to qualify as a person aggrieved, “a party

must both show a direct harm and hold an interest within the scope of the

Bankruptcy Code.” In re Bay Circle Props., LLC, 955 F.3d 874, 880 (11th Cir. 2020).

Appellant does not satisfy any of the criteria under the person aggrieved

doctrine with respect to the order denying the removal of the Trustee and

counsel.2 She is not a debtor, nor is she a creditor or any other party with a

financial interest in the handling of the bankruptcy and disposition of the

bankruptcy estate. Appellant fails to demonstrate how the continued retention of

the trustee “diminishes her property” or otherwise impairs her rights. While she

provides a litany of state and federal rights she believes were violated, those do

2 While standing was not addressed by the Bankruptcy Court below, “[s]tanding is the

threshold issue in every federal case.” Fisher Island Ltd. v. Fisher Island Invs., Inc., 518 F. App’x 663,

665 (11th Cir. 2013) (citing Maverick Media Grp., Inc. v. Hillsborough Cnty., 528 F.3d 817, 819 (11th

Cir. 2008)). Accordingly, the Court is required to analyze standing, regardless of when or

whether the parties raise the issue. See Maverick Media, 528 F.3d at 819. Although the Trustee

raised this argument in a responsive brief, Appellant had a statutory right and the opportunity to

file a reply brief to address those arguments. See Fed. R. Bankr. P. 8018(a)(3). Appellant declined

to file a reply brief, so the Court considers the arguments based on the available record.

not fall within the scope of the Bankruptcy Code.3 Thus, Appellant lacks standing

to appeal the Bankruptcy Court’s order denying the removal of the Trustee and

this aspect of her appeal is due to be denied.

B. Request to Account for Certain Items

Appellant also vaguely asks the Court to order that her property “be fully

accounted for.” Doc. 18 at 35. Although Appellant identifies the property taken in

the break order, she does not specify exactly what she wants returned to her. Nor

does she identify any error committed by the Bankruptcy Court with respect to

this issue.

At the November 9, 2021, hearing, the Bankruptcy Court was prepared to

grant the motion with respect to Appellant’s request to return her documents and

items. See In re Juravin, 6:18-bk-6821, Doc. 669-1 at 34:19–23 (Bankr. M.D. Fla. Dec.

29, 2021) (“So the Motions will be denied except for the limited ability of the

Debtor or Mrs. Juravin to come to the Trustee’s location as designated if they

believe there are any personal family records or other items that would not be

properly in his possession . . . .”). However, counsel for the Trustee advised that

“all of the items retrieved from the Debtor’s home were previously returned to

3 Even were the Court to address the harms that Appellant outlines, removing the Trustee

would not provide any meaningful remedy. Any past harm suffered because of the break order is

not exacerbated by the Trustee’s continued involvement in the bankruptcy, nor would it be

remedied by his removal.

counsel, to Mr. Bartolone.” Id. at 37:9–12. Bartolone, the Debtor’s counsel in the

bankruptcy proceeding, confirmed that he received the items from the Trustee and

the Bankruptcy Court subsequently denied the motion in all parts. Id. at 38:2–

38:12. When the Bankruptcy Court asked the parties if they had any questions

regarding the ruling, Henry Portner, Appellant’s counsel who filed the motion

below and now brings this appeal, advised that he had no further questions. See

id. at 38:13–18. He did not raise any dispute as to whether the property had been

returned or seek any further clarification. Id.

Appellant’s request to have her property accounted for was mooted by the

Trustee’s return of that property. Appellant instead raises a new issue on appeal:

whether the Trustee returned all the property that Appellant seeks. But that issue

was not presented to the Bankruptcy Court. “[I]f the record reflects an issue was

presented in a cursory manner and never properly presented to the Bankruptcy

Court, the issue is not preserved for appeal.” In re Monetary Grp., 91 B.R. 138, 140

(M.D. Fla. 1988) (citing In re Espino, 806 F.2d 1001, 1002 (11th Cir. 1986)). The

Bankruptcy Court was fully prepared to grant Appellant’s requested relief until

the parties agreed that such an order was not necessary. Based on the parties’

representations, the Bankruptcy Court correctly denied Appellant’s request. If

Appellant was later concerned about missing property, she should have raised

that issue with the Bankruptcy Court and specified exactly what was missing.

Accordingly, Appellant’s argument in this regard is without merit.

IV. Conclusion

Accordingly, it is hereby ORDERED and ADJUDGED that the Bankruptcy

Court’s Order is AFFIRMED. The Clerk is hereby ORDERED to enter judgment

for Appellee and thereafter close the case.

DONE and ORDERED in Chambers, Orlando, Florida on March 22, 2022.

paws / | GREGORY A. PRESNELL

ig UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Party