NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-2791

__________

In re: RICHARD ANNUNZIATA, Debtor

Richard Annunziata,

 Appellant

v.

Putnam At Tinton Falls, LLC; Abilheira & Associates, 

as holder of Escrow; YFM Tinton LLC

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3-17-cv-05733)

District Judge: Honorable Michael A. Shipp

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 17, 2019

Before: CHAGARES, BIBAS and GREENBERG, Circuit Judges

(Opinion filed July 18, 2019)

___________

OPINION*

___________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PER CURIAM

Richard Annunziata appeals from the order of the District Court, which affirmed 

an order of the Bankruptcy Court granting summary judgment to one of Annunziata’s 

creditors as to liability but not damages. We will dismiss this appeal in part and will 

otherwise vacate and remand for the District Court to dismiss Annunziata’s appeal to that 

court for lack of appellate jurisdiction.

I.

In 2015, Annunziata filed a bankruptcy petition that ultimately was converted into 

one under Chapter 11. Annunziata later filed an adversary proceeding (D.N.J. Bankr. No. 

15-02272) against several entities, including Putnam at Tinton Falls, LLC (“Putnam”). 

Putnam in turn filed counterclaims against Annunziata. All of the parties’ claims and 

counterclaims ultimately were resolved save Putnam’s first counterclaim. That 

counterclaim sought the entry of a monetary judgment against Annunziata and a ruling 

that the judgment is not dischargeable in bankruptcy.

On the parties’ cross-motions for summary judgment, the Bankruptcy Court

agreed with Putnam and entered judgment as to liability in its favor. The Bankruptcy 

Court, however, did not enter judgment as to the amount of the claim. Instead, the 

Bankruptcy Court wrote that “[t]his Court will schedule a proof hearing to determine the 

amount of the judgment.” (D.N.J. Bankr. No. 15-02272, ECF No. 303 at 14.) As of this 

writing, the Bankruptcy Court has neither scheduled nor conducted that hearing.
3

Annunziata filed a timely motion for reconsideration with the Bankruptcy Court, 

which denied it. Annunziata then appealed to the District Court. The District Court 

asserted appellate jurisdiction and affirmed the Bankruptcy Court’s entry of summary 

judgment as to liability on the merits. Annunziata now appeals to us. Annunziata was 

represented by counsel in the Bankruptcy Court, including when he filed his District 

Court appeal, but he filed that appeal and his appeal to this Court pro se.

II.

The District Court asserted jurisdiction under 28 U.S.C. § 158(a)(1), which gives it 

jurisdiction to review “final judgments, orders, and decrees” in bankruptcy proceedings. 

We likewise have jurisdiction to review the District Court’s “final decisions, judgments, 

orders, and decrees” in bankruptcy under 28 U.S.C. § 158(d)(1). 

Putnam did not contest the District Court’s jurisdiction in that court and initially 

did not contest our jurisdiction in this one. We, however, have an independent obligation 

to assure ourselves of both our jurisdiction and that of the District Court. See Steel Co. v. 

Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (citation omitted); United States v. 

Higgs, 504 F.3d 456, 457 (3d Cir. 2007). Thus, we directed the parties to address 

whether the Bankruptcy Court’s order is final for purposes of § 158. Putnam argues that 

it is not, and we agree.

The order appealed from is the Bankruptcy Court’s order denying Annunziata’s 

motion to reconsider its entry of summary judgment for Putnam as to liability but not 
4

damages. Annunziata’s motion for reconsideration was timely under Fed. R. Bankr. P. 

9023, so his appeal brought up the Bankruptcy Court’s underlying entry of summary 

judgment for review. See Fed. R. Bankr. P. 9023 (incorporating Fed. R. Civ. P. 59); 

Long v. Atl. City Police Dep’t, 670 F.3d 436, 446 n.20 (3d Cir. 2012) (addressing 

Rule 59(e)).

The Bankruptcy Court’s underlying entry of summary judgment, however, is not 

final for purposes of § 158. In ordinary civil litigation, an order granting summary 

judgment as to liability but not damages is not a final decision appealable under 28 

U.S.C. § 1291. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976).1 

Although we interpret finality under § 158 somewhat more flexibly, the same principle 

applies to summary judgment orders, like this one, that do not finally resolve a discrete 

bankruptcy adversary proceeding. See Natale v. French & Pickering Creeks 

Conservation Tr., Inc. (In re Natale), 295 F.3d 375, 379 (3d Cir. 2002) (citing, inter alia, 

Clark v. First State Bank (In re White Beauty View, Inc.), 841 F.2d 524, 526 (3d Cir. 

1988)).

 

1 There is an exception when the calculation of damages is merely ministerial. See Vitale 

v. Latrobe Area Hosp., 420 F.3d 278, 281 (3d Cir. 2005). Neither party argues that this 

exception applies here, and it does not. Putnam seeks $1.5 million in compensatory 

damages, and it has filed a trial brief with the Bankruptcy Court responding to an 

apparent suggestion by that court that Putnam might be entitled only to $1.3 million 

instead. (D.N.J. Bankr. No. 15-02272, ECF No. 339 at 4.) Putnam also seeks, inter alia, 

punitive damages and attorneys’ fees. We, of course, express no opinion on any of these 

issues.
5

Thus, the Bankruptcy Court’s order entering summary judgment as to liability but 

not damages was not immediately appealable to the District Court and is not immediately 

appealable to this one. It follows that the Bankruptcy Court’s order denying 

reconsideration of that ruling is not immediately appealable either. See Aerosource, Inc. 

v. Slater, 142 F.3d 572, 579 (3d Cir. 1998). For these reasons, we lack jurisdiction under 

§ 158(d)(1) to review the Bankruptcy Court’s rulings or the District Court’s affirmance of 

those rulings on the merits, and we will dismiss this appeal to that extent. 

That conclusion does not end our discussion. In bankruptcy cases, we potentially 

have jurisdiction over the District Court’s order under both § 158(d)(1) and § 1291. See

Cinicola v. Scharffenberger, 248 F.3d 110, 115 n.1 (3d Cir. 2001). The District Court’s 

order is final for purposes of § 1291 because it finally resolved Annunziata’s appeal, and 

we have jurisdiction under § 1291 to review the District Court’s exercise of jurisdiction. 

See Steel Co., 523 U.S. at 95 (citation omitted). 

The District Court lacked jurisdiction under § 158(a)(1) as explained above. 

Unlike this Court, however, District Courts may grant leave under 28 U.S.C. § 158(a)(3) 

and Fed. R. Bankr. P. 8004 to appeal interlocutory orders of the Bankruptcy Courts. See

Prof’l Ins. Mgmt. v. Ohio Sec. Ins. Co. (In re Prof’l Ins. Mgmt.), 285 F.3d 268, 279 (3d 

Cir. 2002); White Beauty View, 841 F.2d at 525. Thus, the District Court’s ruling raises 

the question whether we should construe it as having exercised jurisdiction under § 

158(a)(3). We decline to do so. 
6

We addressed a nearly identical situation in White Beauty View. In that case, as 

in this one, the District Court exercised jurisdiction over an order granting partial 

summary judgment that was not final under § 158(a). See White Beauty View, 841 F.2d 

at 525-26. We concluded that the District Court lacked jurisdiction under § 158(a) for 

that reason. See id. We also considered the possibility of construing the District Court’s 

ruling as having impliedly granted leave to appeal under § 158(a)(3). See id. at 527. We 

declined to “approve such a practice” because “[t]he statute specifically demands leave” 

and the appellant’s failure to follow the procedure for seeking leave now codified at Rule 

8004 did not “alert the district court to the need for an informed exercise of discretion in 

deciding whether to grant leave to appeal.” Id.; see also Kingdom Fresh Produce, Inc. v. 

Stokes Law Office, L.L.P. (In re Delta Produce, L.P.), 845 F.3d 609, 618 (5th Cir. 2016) 

(following White Beauty View in declining to construe a District Court ruling on the 

merits as having granted leave to file an interlocutory appeal). The same is true here.2

Thus, like this Court, the District Court lacked jurisdiction to review the 

Bankruptcy Court’s orders. For that reason, we will vacate the District Court’s order to 

 

2 Even if the District Court’s ruling could be construed as having granted leave to file an 

interlocutory appeal, we still would lack jurisdiction over the merits because the 

Bankruptcy Court’s order would remain non-final for purposes of § 158(d)(1). See White 

Beauty View, 841 F.2d at 527.
7

the extent that the District Court exercised jurisdiction and will remand for the District 

Court to dismiss Annunziata’s appeal. See In re Delta Produce, 845 F.3d at 618.3 

III.

For these reasons, we will dismiss this appeal to the extent that Annunziata seeks 

review of the Bankruptcy Court’s orders and the District Court’s affirmance of those 

orders on the merits. We also will vacate the District Court’s order to the extent that the 

District Court exercised appellate jurisdiction and will remand for the District Court to 

dismiss Annunziata’s appeal.4

 

3 We similarly concluded that the District Court lacked jurisdiction in White Beauty 

View but, rather than vacate and remand, we simply dismissed the appeal to this Court. 

In that case, however, we addressed our jurisdiction only under § 158(d)(1) and did not 

address our jurisdiction under § 1291 or even mention that statute. Thus, White Beauty 

View does not preclude our exercise of jurisdiction under § 1291, and we believe it most 

appropriate to vacate and remand under the circumstances presented here. As explained 

above, the Bankruptcy Court’s order entering summary judgment as to liability is not 

final because the Bankruptcy Court has not yet determined the amount of Putnam’s 

claim. Once the Bankruptcy Court does so, one or both parties can consider filing a new 

appeal to the District Court to raise such challenges to the Bankruptcy Court’s rulings on 

liability and damages as they wish to raise. We express no opinion on whether an appeal 

would be jurisdictionally proper at that time. If the issue of liability properly comes 

before the District Court in the future, nothing in our opinion prevents the District Court 

from relying on the analysis of liability that it already has performed. Because we lack 

jurisdiction over the merits, however, we express no opinion on the merits of that 

analysis.

4 Annunziata did not file a timely response to our Clerk’s order directing the parties to 

address the issue of jurisdiction. We nevertheless have considered the arguments raised 

in his untimely response and we reject them. Annunziata argues, for example, that the 

Bankruptcy Court and District Court have personal jurisdiction over him. At issue here is 

the District Court’s and this Court’s appellate jurisdiction, not personal jurisdiction. 

Annunziata also argues that denying him an appeal would deprive him of due process. 
8

 

The issue of finality discussed herein, however, goes to when Annunziata can appeal, not 

whether he can appeal. As noted above, Annunziata can appeal the Bankruptcy Court’s 

entry of summary judgment to the District Court, and then to this Court, once it is final 

for purposes of § 158(a)(1) and (d)(1).