RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0234p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: JACKSON MASONRY, LLC,

Debtor.

___________________________________________

RITZEN GROUP, INCORPORATED,

Appellant,

v.

JACKSON MASONRY, LLC,

Appellee.

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Nos. 18-5157/5161

On Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

Nos. 3:17-cv-00806; 3:17-cv-00807—Aleta Arthur Trauger, District Judge.

United States Bankruptcy Court for the Middle District of Tennessee;

No. 3:16-bk-02065—Keith M. Lundin and Charles M. Walker, Judges.

Argued: October 4, 2018

Decided and Filed: October 16, 2018

Before: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: Shane G. Ramsey, NELSON MULLINS RILEY & SCARBOROUGH, LLP, 

Nashville, Tennessee, for Appellant. Henry E. Hildebrand, IV, DUNHAM HILDEBRAND, 

PLLC, Nashville, Tennessee, for Appellee. ON BRIEF: Shane G. Ramsey, John T. Baxter, 

NELSON MULLINS RILEY & SCARBOROUGH, LLP, Nashville, Tennessee, for Appellant. 

Henry E. Hildebrand, IV, DUNHAM HILDEBRAND, PLLC, Nashville, Tennessee, for 

Appellee.

>
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 2

_________________

OPINION

_________________

THAPAR, Circuit Judge. Deadlines matter. Ritzen Group missed two of them: the 

closing deadline in a contract and the appellate deadline for bankruptcy orders. Accordingly, the 

district court rejected both of Ritzen’s appeals. We affirm. 

I.

Over five years ago, Ritzen Group contracted to buy a piece of property from Jackson 

Masonry. But the sale never went through. Ritzen claims Jackson breached by providing errorridden documentation on the eve of the closing deadline, while Jackson claims Ritzen breached 

by failing to secure funding by that deadline.

After the deal failed, Ritzen sued Jackson for breach of contract in Tennessee state court. 

The case progressed for nearly a year-and-a-half until, about a week before trial, Jackson filed 

for bankruptcy. As a result of the bankruptcy, the litigation was automatically stayed. 11 U.S.C. 

§ 362. Ritzen filed a motion to lift the stay, which the bankruptcy court denied. Ritzen did not 

appeal. 

Instead, Ritzen sought to vindicate its rights in bankruptcy court. So Ritzen brought a 

claim against the bankruptcy estate. It lost. The bankruptcy court found that Ritzen, not 

Jackson, breached the contract. Ritzen subsequently filed two appeals to the district court. The 

first targeted the bankruptcy court’s order denying relief from the automatic stay. The second 

targeted the breach-of-contract determination. The district court found that the first appeal was 

untimely and rejected the second on the merits.

Now Ritzen appeals again. We review the bankruptcy court’s fact findings for abuse of 

discretion and its legal conclusions de novo. In re Purdy, 870 F.3d 436, 442 (6th Cir. 2017). 

II.

We start with Ritzen’s first appeal contesting the stay order. We begin, as we must, with 

the text of the bankruptcy appeals statute. Under the statute, a bankruptcy court’s order may be 
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 3

immediately appealed if it is (1) “entered in [a] . . . proceeding[]” and (2) “final”—terminating 

that proceeding. 28 U.S.C. § 158(a). An order denying stay relief terminates a proceeding, so it 

is final. In bankruptcy, parties must appeal final orders within fourteen days of the court’s 

ruling. Fed. R. Bankr. P. 8002(a). Ritzen did not appeal the stay-relief denial within fourteen 

days. Thus, Ritzen’s appeal is untimely.

A. 

In ordinary civil litigation, parties can generally only appeal “final decisions.” 28 U.S.C. 

§ 1291. A decision is “final” when the court has disposed of every claim for relief by every 

party and has nothing left to do but execute the judgment. Gelboim v. Bank of Am. Corp., 135 S. 

Ct. 897, 902 (2015). In other words, parties cannot appeal until the entire case is complete. This 

general rule prevents “piecemeal” appeals that would bog things down, “undermin[ing] efficient 

judicial administration.” Mohawk Indus., Inc v. Carpenter, 558 U.S. 100, 106 (2009) (internal 

quotation marks omitted).

But bankruptcy is different. A bankruptcy case is an aggregation of individual disputes, 

many of which could be entire cases on their own. See Bullard v. Blue Hills Bank, 135 S. Ct. 

1686, 1692 (2015). Take, for example, Ritzen’s contract claim against Jackson—a fully discrete 

dispute litigated within the overall umbrella of Jackson’s bankruptcy case. Once such a dispute 

is finally decided, it is immediately appealable—the fact that the overall bankruptcy case may be 

ongoing is no reason to delay. In fact, just the opposite: a bankruptcy case is like a jigsaw 

puzzle, and the claims against the bankrupt debtor are the pieces. To complete the puzzle, one 

must “start by putting some of the pieces firmly in place.” John Hennigan, Jr., Toward 

Regularizing Appealability in Bankruptcy, 12 Bankr. Dev. J. 583, 601 (1996). “Accordingly, 

Congress has long provided that orders in bankruptcy cases may be immediately appealed if they 

finally dispose of discrete disputes within the larger case.” Bullard, 135 S. Ct. at 1692 (quoting 

Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651, 657 n.3 (2006) (internal 

quotation marks omitted)). 

Unfortunately, courts have taken the loose finality in bankruptcy as a license for judicial 

invention. The result: a series of vague tests that are impossible to apply consistently. 1 Collier 
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on Bankruptcy ¶ 5.08 (16th ed. 2014) (“In the specific context of bankruptcy cases, the courts 

have had a difficult time in determining what is a final order.”); see, e.g., In re Perl, 811 F.3d 

1120, 1126 (9th Cir. 2016) (“Our precedent has not been entirely pellucid regarding the flexible 

concept of finality in the bankruptcy context.”); In re Comdisco, Inc., 538 F.3d 647, 651 (7th Cir. 

2008) (stating that bankruptcy finality caselaw “suffers from a lack of clarity” and the list of 

orders considered final “is dismayingly long and inconsistent”); In re West Electronics, Inc., 852 

F.2d 79, 81 (3d Cir. 1988) (“In the context of bankruptcy cases, the definition of a final order is 

less than crystalline.” (quoting In re Meyertech Corp., 831 F.2d 410, 414 (3d Cir. 1987))). In 

some cases, courts do not articulate a general test at all. They simply treat the finality of the 

specific order before them as a case-by-case question and do not look to or articulate principles 

that can be applied to other types of orders. As a result, parties must constantly guess, at risk of 

either appealing too early and getting bounced back, or appealing too late and forfeiting their 

rights. Appellate deadlines cannot serve their purpose when their trigger is unclear. 

This case is a perfect example. The parties are unable to articulate a clear test for 

whether a bankruptcy order is final. For good reason—the courts have not given them one. 

Ritzen asks us to adopt the First Circuit’s approach, where “[e]verything depends on the 

circumstances, naturally: taking into account the particular order’s reasoning and effect, an 

inquiring court must determine . . . whether that edict definitively decided a discrete, fullydeveloped issue that is not reviewable somewhere else.” In re Atlas IT Export Corp., 761 F.3d 

177, 185 (1st Cir. 2014). This test is “vague” and “unpredictable,” to say the least. Ritzen Grp., 

Inc. v. Jackson Masonry, LLC, No. 3:17-cv-00806, 2018 WL 558837, at *5 (M.D. Tenn. Jan. 25, 

2018). For its part, Jackson points to other circuits, but those circuits either have similarly vague 

tests or no consistent test at all. See, e.g., In re West, 852 F.2d at 81 (applying bankruptcy 

finality when “nothing remains for the [lower] court to do” but also considering finality “in a 

more pragmatic and less technical sense”).

The problem here is easy to diagnose. None of these courts have started where they 

should: with the text of the bankruptcy appeals statute. See Ransom v. FIA Card Servs., N.A., 

562 U.S. 61, 69 (2011). That statute provides:
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 5

The district courts of the United States shall have jurisdiction to hear appeals from 

final judgments, orders, and decrees [and certain interlocutory orders] of 

bankruptcy judges entered in cases and proceedings . . . . 

28 U.S.C. § 158(a). Breaking it down, a bankruptcy court’s decision can be appealed if it is (1) a 

“final judgment[], order[], [or] decree[],” or a qualifying interlocutory order; and (2) entered in 

either a “case[]” or a “proceeding[].” Id. Instead of limiting appeals to final judgments in cases, 

Congress specifically extended the scope of appellate jurisdiction in bankruptcy matters to 

include “final judgments, orders, and decrees” entered in both “cases and proceedings.” 

Bullard, 135 S. Ct. at 1692 (quoting 28 U.S.C. § 158(a)) (emphasis added). These extra words 

have meaning. Id.; Ransom, 562 U.S. at 70 (“[W]e must give effect to every word of a statute 

wherever possible.” (quoting Leocal v. Ashcroft, 543 U.S. 1, 12 (2004))); see also 2 Collier on 

Bankruptcy ¶ 301.03 (distinguishing between bankruptcy “cases” and discrete “proceedings” 

within the overall bankruptcy case). Indeed, courts have viewed the “proceeding” as the relevant 

“judicial unit” for bankruptcy finality for over 100 years. In re Saco Local Dev. Corp., 711 F.2d 

441, 444–45 (1st Cir. 1983); see also Hennigan, supra, at 584.1

Thus, the statutory text provides a clear test for courts to apply: a bankruptcy court’s 

order may be immediately appealed if it is (1) “entered in [a] . . . proceeding” and (2) “final”—

terminating that proceeding. We analyze the meaning of these terms and apply them below.

B.

This case concerns the finality of an order denying relief from the automatic stay. Here, 

Ritzen sought such relief, was denied, and did not appeal until months later. If that stay-relief 

denial was a final and immediately-appealable order, then the fourteen-day clock started to tick 

as soon as it was entered, and Ritzen’s appeal months later was untimely. See Fed. R. Bankr. P. 

8002(a). We conclude that it was because (1) stay-relief motions initiate a proceeding and 

(2) this proceeding is terminated by an order denying stay relief. 

 

1Congress also provided for immediate appeals of certain interlocutory bankruptcy orders. See In re 

Lindsey, 726 F.3d 857, 860 (6th Cir. 2013) (citing 28 U.S.C. §§ 158(a)(3), (d)(2)(A)). These statutes serve as an 

added layer of flexibility, permitting appeals of otherwise non-final orders in “exceptional circumstances.” In re 

A.P. Liquidating Co., 350 B.R. 752, 755 (E.D. Mich. 2006). But limited interlocutory appeals are a supplement, not 

a replacement, for the broad approach to appealability set forth in § 158(a) itself. See Bullard, 135 S. Ct. at 1692. In 

any event, since Ritzen did not rely on these statutes here, we do not address them.
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 6

Proceeding. The first step is to identify the appropriate “judicial unit” for finality 

analysis—the “proceeding[].” 28 U.S.C. § 158(a). Generally speaking, a proceeding is a process 

whereby a court follows some formal procedural steps to adjudicate a moving party’s claim for 

relief. This is true now and was true when the bankruptcy appeals statute was enacted. Compare 

Black’s Law Dictionary (10th ed. 2014), with Black’s Law Dictionary (5th ed. 1979) (defining 

“proceeding” as “[r]egular and orderly progress in form of law, including all possible steps in an 

action from its commencement to the execution of judgment”). And as explained above, in the 

context of bankruptcy the word “proceeding” has long been understood to refer to disputes 

narrower than, and distinct from, the bankruptcy case as a whole. See Black’s Law Dictionary

(10th ed. 2014); see also In re Saco, 711 F.2d at 444–45. Indeed, an older edition of the leading 

bankruptcy treatise (closer in time to the enactment date of the statute) evokes both of these 

concepts—procedural formality and discreteness—in defining “proceeding.” 2 Collier on 

Bankruptcy ¶ 301.03 (15th ed. 1996) (defining “proceeding” as “any subaction raised or 

commenced within the case, including motions or adversary proceedings, which may raise a 

disputed or litigated matter”).

Putting it all together, a “proceeding[]” under § 158(a) is a discrete dispute within the 

overall bankruptcy case, resolved through a series of procedural steps. Adversary proceedings 

are the archetypal example. They are “essentially full civil lawsuits carried out under the 

umbrella of the bankruptcy case,” generally governed by the Federal Rules of Civil Procedure or 

bankruptcy rule adaptations of them. Bullard, 135 S. Ct. at 1694; see also Fed. R. Bankr. P. 

7001 Advisory Committee Note (1983 Amendment).2 To conclude with an analogy, a 

“proceeding” is akin to a case within a case.

A bankruptcy court’s stay-relief adjudication fits this description. It begins “on request 

of a party” through a motion. 11 U.S.C. § 362(d); Fed. R. Bankr. P. 9014(a). The non-moving 

party then must be given notice through service. Fed. R. Bankr. P. 9014(a)–(b). After that, on a 

set timeframe, the court must conduct a hearing where both parties are present. 11 U.S.C. 

 

2Of course, a dispute does not have to be a full-blown “adversary proceeding” to qualify as an appealable 

“proceeding[]” under § 158(a). See Bullard, 135 S. Ct. at 1694 (explaining that an order confirming a repayment 

plan is final, even though it arises out of a “contested matter” rather than an “adversary proceeding”) (citing Fed. R. 

Bankr. P. 3015(f), 7001, 9014).
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 7

§ 362(d)–(e). Afterwards, the court determines whether the relevant legal standard has been met 

and grants or denies relief accordingly. Id. So there is a discrete claim for relief, a series of 

procedural steps, and a concluding decision based on the application of a legal standard. This 

sure looks like a proceeding.

We also look to other provisions of the statute for help. Again, the bankruptcy appeals 

statute covers “cases and proceedings referred to the bankruptcy judges under section 157 of this 

title.” 28 U.S.C. § 158(a) (emphasis added). And § 157, in turn, contains a non-exhaustive list 

of “[c]ore proceedings” that includes “motions to terminate, annul, or modify the automatic 

stay.” Id. § 157(b)(2)(G) (emphasis added). Courts presume that the same words in the same 

statute mean the same thing. See Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224, 232 

(2007). Here, we presume Congress used the same word—“proceedings”—consistently across 

these statutory subsections. Stay-relief motions initiate “core proceedings” under § 157, so 

presumably they are also “proceedings” in § 158. The Supreme Court used similar logic in 

Bullard, though it was careful to warn that this “hardly clinches the matter” because § 157’s 

“purpose is not to explain appealability.” 135 S. Ct. at 1693. Rightly so, and we do not assume 

that being listed as a “core proceeding” in § 157(b)(2) is either necessary or sufficient to be an 

appealable “proceeding[]” under § 158(a). But still, the fact that stay-relief motions are referred 

to as a type of “proceeding[]” in § 157 certainly suggests that they are also “proceedings” in the 

next section over. 

In conclusion, a stay-relief motion initiates a series of formal procedural steps whereby a 

court determines whether a legal standard is met and grants or denies relief accordingly. This 

stay-relief dispute is distinct from the overall bankruptcy case. It qualifies as a “proceeding[]” 

under 28 U.S.C. § 158(a). 

Final order. The next question is whether an order denying stay relief is “final”—i.e., 

whether the order terminates the stay-relief proceeding. 28 U.S.C. § 158(a). The finality of a 

bankruptcy order is determined “first and foremost” by whether it “alters the status quo and fixes 

the rights and obligations of the parties.” Bullard, 135 S. Ct. at 1692. Additionally, courts 

should look to whether the order completely resolves all substantive litigation within the 
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 8

proceeding. See id. at 1692–93. In a nutshell, a bankruptcy order is final “if it is both 

procedurally complete and determinative of substantive rights.” Hennigan, supra, at 587.

In Bullard, the Supreme Court concluded that a bankruptcy court order denying a 

debtor’s repayment plan with leave to amend is not final. 135 S. Ct. at 1696. Instead, because 

the debtor has leave to amend, the plan confirmation process continues until either (1) the debtor 

proposes an acceptable repayment plan that is then confirmed by the court, becoming binding 

and preclusive on all parties; or (2) the court concludes that the debtor is incapable of proposing 

an acceptable plan and dismisses the bankruptcy case in its entirety. Id. at 1692–93. Either of 

these two outcomes “fixes the rights and obligations of the parties” at issue in the plan 

confirmation process, but a simple plan denial with leave to amend does not. Id. at 1692. 

In contrast, a stay-relief denial is procedurally complete—once entered there are no more 

“rights and obligations” at issue in the stay-relief proceeding. The stay-relief denial prohibits the 

moving party from pursuing its pre-bankruptcy claim against the debtor. The “judicial unit” is 

the stay-relief proceeding, and that unit is over once a stay-relief denial is issued. Id. This is 

unlike the plan confirmation denial addressed by Bullard, which was just one step in a back-andforth process. And it is also unlike, for example, a denial of a motion to dismiss or a motion for 

summary judgment in an ordinary civil case. Those motions address the same question that the 

ultimate decision-maker will—whether the plaintiff can win on the merits. Granting such a 

motion is a final answer to the ultimate question (“no”) but denying one is not (“maybe”). 

A stay-relief motion asks its own discrete question, and this question is finally answered by 

either a grant or a denial. 

As with many rules, there are exceptions. But here, the exception—a denial without 

prejudice—helps prove the rule. Courts may deny stay-relief motions without prejudice if it 

appears that changing circumstances could change the stay calculus. See, e.g., In re Palmdale 

Hills Prop., LLC, 423 B.R. 655, 660 (B.A.P. 9th Cir. 2009); In re Arizmendi, No. BR 09-19263, 

2011 WL 2182364, at *13 (Bankr. S.D. Cal. May 26, 2011). And when a court denies a motion 

without prejudice, a party may file a second motion if circumstances change. But the bankruptcy 

court here did not deny Ritzen’s motion without prejudice, meaning that its stay-relief order was 
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 9

intended to be the final word on the matter. Accordingly, we need not determine now whether a 

stay-relief denial without prejudice is “final” for purposes of § 158(a).

In addition to procedural completeness, Bullard teaches that we must also look to the 

consequences of the order at issue. 135 S. Ct. at 1692–93. The more significant and irreparable 

the consequences, the more likely a given order really is final. The consequences of a stay-relief 

denial are both significant and irreparable. Once denied, the creditor usually has no choice but to 

file a proof of claim in bankruptcy, litigating their pre-bankruptcy dispute anew in the 

bankruptcy court. They have no choice because failure to file a proof of claim could preclude 

them from collecting anything once the bankruptcy case concludes and the debtor’s debts are 

discharged. See Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship., 507 U.S. 380, 383–85 

(1993). Creditors cannot simply wait it out and pick up their pre-bankruptcy litigation where 

they left off. And if they did, their stay-relief claim could end up moot: once a bankruptcy case 

ends, the automatic stay is lifted anyway. Thus, if a stay-relief denial is not immediately 

appealable, then it is effectively never appealable. See Eddleman v. U.S. Dep’t of Labor, 

923 F.2d 782, 785 (10th Cir. 1991), overruled in part on other grounds by Temex Energy, Inc. v 

Underwood, Wilson, Berry, Stein & Johnson, 968 F.2d 1003, 1005 n.3 (10th Cir. 1992). 

Ritzen argues that the stay order was not final because it was not a ruling on the merits of 

its contract claim. Rather, it simply determined the location of the litigation. Thus, it did not 

“finally resolve all issues between the parties.” 18-5157 Appellant Br. at 28. But that is 

irrelevant. A substantive claim against the bankruptcy estate is adjudicated in a different

proceeding, separate from the stay-relief proceeding. That happened here. After the stay-relief 

denial, Ritzen filed a proof of claim, Jackson responded, and the claim was resolved through an 

adversary proceeding. Fed. R. Bankr. P. 7001. Though the stay-relief denial did not fix every 

right and obligation of the parties, it fixed the rights and obligations at issue in the stay-relief 

proceeding. That is enough in bankruptcy. Indeed, Ritzen’s argument—that an order can only 

be appealable if it “finally resolve[s] all issues between the parties”—is really just an attempt to 

import the definition of finality from ordinary civil litigation. 18-5157 Appellant Br. at 28. As 

explained above, in ordinary litigation parties generally can only appeal once the entire case is 

complete and all issues have been resolved, but in bankruptcy, parties can appeal discrete 
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 10

disputes within the overall case. Ritzen’s argument would have us ignore the longstanding and 

textually-compelled rule of looser finality in bankruptcy. We decline to do so. 

Ritzen makes a separate, last-ditch policy argument: if stay-relief denials are final, then 

debtors would be forced “to confront early, costly, and time-consuming appeals while their 

bankruptcies are just beginning.” 18-5157 Appellant Br. at 32. But “early” appeals are a 

necessary consequence of the looser concept of finality in bankruptcy. And there is good reason 

to be skeptical of Ritzen’s doomsday predictions. After all, as Ritzen concedes, stay-relief 

denials are considered final in many circuits and often have been for decades. See Collier, supra 

at ¶ 5.09 (citing the Second, Third, Fourth, Seventh, and Tenth Circuits, and noting that “the 

courts have . . . concluded, almost unanimously, that orders refusing to lift the stay, are final”). 

The sky has not fallen in these circuits. If anything, efficiency concerns undermine Ritzen’s 

argument. Ritzen’s proposal would force creditors who lose stay-relief motions to fully litigate 

their claims in bankruptcy court and then, after the bankruptcy case is over, appeal and seek to 

redo the litigation all over again in the original court. That would be a tremendous waste of time 

and money. And of course, creditors would only appeal if they lost in bankruptcy court. So 

Ritzen’s proposal would also guarantee creditors—but not debtors—a second bite at the apple. 

That is neither fair nor efficient. Finally, even if Ritzen is right about policy, it does not matter 

for our analysis here. No policy argument can overcome the plain text of a statute. As shown 

above, the text is plain. 

In conclusion, a stay-relief denial ends a proceeding, fixes the rights of the parties, and 

has significant consequences for them. Under Bullard, it qualifies as a final order.

C.

Anticipating our conclusion that stay-relief denials are immediately appealable, Ritzen 

tries to recast its motion as seeking both stay relief and dismissal of Jackson’s bankruptcy case in 

entirety. See 11 U.S.C. § 1112(b) (permitting a bankruptcy court to dismiss a case “for cause” 

“on request of a party in interest”). If the bankruptcy court also denied a motion to dismiss, and 

such denials are not immediately appealable, then Ritzen’s appeal was timely. 
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 11

But Ritzen did not file a motion to dismiss. From title to conclusion, Ritzen’s motion 

sought relief from the automatic stay, not dismissal of Jackson’s bankruptcy case. Ritzen titled 

its motion “Ritzen Group, Inc.’s Motion to Modify or Lift the Automatic Stay.” BR. 57 at 1.3In 

the first sentence of the introduction, Ritzen “respectfully moves the Court to modify or lift the 

automatic stay.” Id. The argument section’s sub-headings are, “The Court Should Grant Relief 

From Stay for Judicial Economy” and “The Court Should Grant Relief From Stay ‘For Cause’ 

Under Section 362(d)(1).” Id. at 15, 18. In each of these argument sub-sections, Ritzen 

describes and applies the legal test for stay relief and concludes by requesting it. Though Ritzen 

cites some dismissal cases in the second sub-section, Ritzen clearly explains that they are only 

persuasive authority, cited because the legal standards for stay relief and dismissals are similar. 

Id. at 18. Finally, in the conclusion, Ritzen “requests that the Court enter an order granting relief 

from the automatic stay provisions of 11 U.S.C. § 362”—again with no mention of dismissal. Id.

at 23. Indeed, Ritzen only requests dismissal a single time in the entire motion. Buried at the 

end of the facts section, after requesting that the court lift the stay, Ritzen says “[i]n addition, the 

Court should dismiss the bankruptcy as a bad faith filing.” Id. at 12. But this single passing 

request for dismissal in the facts section does not override its glaring omission from every other 

part of the brief. Cf. McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“It is not 

sufficient for a party to mention a possible argument in the most skeletal way, leaving the court 

to put flesh on its bones.” (internal quotation marks and alteration omitted)). 

Ritzen says this conclusion would “elevate[] form over substance.” 18-5157 Appellant 

Br. at 19–20. Not so. Ritzen relies entirely on cases where pleadings clearly sought one form of 

relief but were incorrectly labelled as seeking another. In these cases, courts construed pleadings 

based on their substance rather than their titles. See, e.g., Andrews v. United States, 373 U.S. 

334, 337–38 (1963) (construing a criminal defendant’s motion for correcting his sentence under 

Fed. R. Crim. P. 35 as a habeas motion under 28 U.S.C. § 2255 because “in this area of the 

law . . . adjudication upon the underlying merits of claims is not hampered by reliance upon the 

titles petitioners put upon their documents” (internal quotation marks omitted)); Lam Research 

 

3The prefix “BR” refers to the bankruptcy court docket, Case No. 16-bk-02065. The prefix “DR” refers to 

the district court docket, Case No. 17-cv-00806.
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 12

Corp. v. Schunk Semiconductor, 65 F. Supp. 3d 863, 869 (N.D. Cal. 2014) (rejecting a party’s 

attempt to avoid a local rule against raising repetitive arguments in motions for reconsideration 

by giving his motion a different title; despite the title change, the motion “raise[d] identical 

arguments as those raised in the original motion for reconsideration”); Russ v. Safeco Ins. Co. of 

Am., No 2:11-cv-195-KS-MTP, 2013 WL 1310501, at *28 (S.D. Miss. Mar. 26, 2013) 

(“Notwithstanding the title of the [Rule 12(f)] motion, the relief requested by the Plaintiff falls 

within the confines of Federal Rule of Civil Procedure 37.”). Ritzen’s situation is different. Yes, 

Ritzen’s motion sought stay relief in its title. But it also sought stay relief practically everywhere 

else. Construing its motion accordingly does not “elevate form over substance”—it is pure 

substance. Though Ritzen may be right that the tests for dismissal and stay relief are similar (or 

even the same), courts do not construe motions as seeking every conceivable form of relief that 

could be granted based on the arguments contained therein. Courts are not mind readers. Parties 

are responsible for being clear in what they seek with their motions. Here, Ritzen was clear; it 

sought stay relief. Its belated attempt to recast its motion fails. 

Since Ritzen only sought stay relief, it naturally follows that the bankruptcy court only 

denied stay relief. But if there was any doubt, the court here removed it by clearly and 

repeatedly explaining exactly what it was denying. For example, at one point the court reiterated 

three times in four sentences of the transcript that Ritzen had not filed a motion to dismiss:

I haven’t been asked to dismiss the case. I don’t have a motion to dismiss. I 

haven’t tried a motion to dismiss but the very first thing I said to you is your case 

here today has been more like a motion to dismiss the case than like a relief 

statement. But, trust me, I don’t have a motion to dismiss and I’m not going to 

dismiss the Bankruptcy case today.

DR. 12-2 at A289. The court’s analysis also made clear that it did not consider the possibility of 

dismissal. The main reason it denied Ritzen’s motion was judicial economy: if it granted stay 

relief and Ritzen won against Jackson in state court, then Ritzen would still have to file a claim 

in Jackson’s bankruptcy case to actually recover on that state court judgment. Obviously, this 

assumes that Jackson’s bankruptcy case would continue and not be dismissed. If dismissal was a 

possibility, then this analysis would make no sense. Finally, the court’s ultimate ruling from the 

bench was crystal clear: “[f]or the following reasons I’m going to deny the request to modify or 
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 13

lift the automatic stay.” Id. at A313. This ruling was memorialized by a written order the next 

day which likewise made no reference to dismissal. 

Ritzen argues that the bankruptcy court implicitly rejected dismissal because it noted 

several times that the legal standards for stay relief and dismissal are similar. Thus, Ritzen 

argues, it was “faced with a Hobson’s Choice: file a second, identical motion styled as a 

‘Motion to Dismiss’ and subject itself to potential sanctions” or accept that dismissal had already 

been effectively denied. 18-5157 Appellant Br. at 25–26. Of course, Ritzen neglects to mention 

that this was a problem entirely of its own making—if it had clearly sought dismissal, then the 

court would have clearly considered it. In any event, a court’s offhand remarks about the legal 

standard for a motion do not mean that it has pre-judged the outcome of that motion. And even 

if it had, that did not excuse Ritzen from actually attempting to test it. In fact, at the stay-relief 

hearing the judge specifically contemplated a potential future motion to dismiss by Ritzen. 

Ritzen was not faced with a “Hobson’s Choice” at all—it was free to file a motion to dismiss 

after its request for stay relief was denied. It chose not to. 

Ritzen clearly sought, and the bankruptcy court clearly denied, stay relief. Stay-relief 

denials are final orders. Thus, Ritzen’s first appeal is untimely, and we do not address its merits.

III.

Ritzen’s second appeal concerns its underlying contract claim against Jackson. But 

Ritzen cannot show that the bankruptcy court clearly erred when it found that Ritzen breached by 

failing to secure funding in a timely fashion. Under governing law, Ritzen’s breach means it is 

unable to recover against Jackson, even if Jackson also breached. Therefore, we affirm without 

addressing Ritzen’s claim against Jackson. 

Under Tennessee law, a plaintiff cannot recover for breach of contract unless they 

themselves were able to perform.4 Margrave v. Channabassappa, No. 87-159-II, 1987 WL 

19444, at *5 (Tenn. Ct. App. Nov. 6, 1987) (citing Ching-Ming Chen v. Advantage Co., 713 

S.W.2d 79, 81 (Tenn. Ct. App. 1986)); see also 10 Corbin on Contracts § 54.20 (2017). Ritzen 

 

4The parties agree that their contractual dispute is governed by Tennessee law.
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 14

asserts that this rule only applies to plaintiffs seeking monetary damages. But Ritzen is 

incorrect; it also applies to plaintiffs seeking specific performance. Indeed, the Tennessee Court 

of Appeals has applied this rule to a plaintiff similarly situated to Ritzen here. Gibson v. Jones, 

No. W2008-00042-COA-R3-CV, 2009 WL 482376, at *2–3 (Tenn. Ct. App. Feb. 25, 2009) 

(rejecting a real estate buyer’s action for specific performance because he was unable to pay for 

the property by the deadline). 

At issue here is Ritzen’s core performance as a buyer—whether it was able to pay for the 

property by the closing deadline as required by the contract. Ritzen does not dispute that failure 

to secure funding by the closing deadline would have been a material breach. Instead, Ritzen 

claims that it actually had secured funding. The bankruptcy court conducted a three-day trial to 

address this very question (among others). After hearing testimony from ten witnesses and 

reviewing hundreds of documents, the court ruled against Ritzen and set forth detailed factual 

findings in a thirteen-page order, concluding that Ritzen was unable to perform the contract at 

closing. On appeal, the district court conducted a thorough review of the record and upheld this 

conclusion. We directly (but deferentially) review the bankruptcy court’s factual finding. 

Thompson v. Greenwood, 507 F.3d 416, 419 (6th Cir. 2007). We can only reverse if that finding 

is “clearly erroneous.” In re Purdy, 870 F.3d at 442.

Plenty of evidence supports the bankruptcy court’s conclusion that Ritzen breached. In 

the months leading up to closing, Ritzen struggled to find financing. At least two banks rejected 

it. Ritzen finally found a potential financer two weeks before the closing deadline—Amber 

Lane. But Amber Lane would only provide funding if Ritzen assigned them its rights under the 

contract (i.e., the right to the property). Ritzen and Amber Lane exchanged several drafts but 

were unable to finalize the assignment agreement by the closing deadline. In fact, the agreement 

was not finalized until eight days after the deadline. Instead, on closing day, Ritzen presented 

Jackson with a two-sentence letter from the bank stating that the funds were “available on 

deposit . . . for delivery to Amber Lane . . . upon confirmation of the satisfaction of several 

conditions related to the closing . . . .” DR 12-5 at Pg. ID #5890. Even at face value, this letter 

offered no confirmation that Amber Lane would deliver the funds to Jackson—the actual 

seller—and did not explain what the vague “several conditions” were. And, to add another layer 
Nos. 18-5157/5161 Ritzen Group, Inc. v. Jackson Masonry, LLC Page 15

of uncertainty, it turns out Amber Lane did not even have the money in its account. Instead, the 

money was to come from Byrd Cain, step-father of Amber Lane’s owner. But Mr. Cain 

provided no written authorization to transfer the funds from his account. Nor did he testify at 

trial.

In response, Ritzen argues that, although it did not have an actual agreement or firm 

written commitment from anyone, various witnesses testified after-the-fact that the funds would 

have been available. But the bankruptcy court did not find these witnesses persuasive. For 

instance, it found that Amber Lane’s owner “presented little more than a hypothetical description 

of what might have been or could have been under circumstances that did not actually exist,” 

since the assignment agreement had not been finalized. BR. 423 at 7. It concluded that, 

although Ritzen had tried, it had not “secured funding to close the deal” by the deadline. Id. at 

13. Neither Ritzen nor its witnesses offer a satisfactory explanation for how the money would 

have been transferred to Jackson without any agreement in place governing how it would be 

spent. Thus, Ritzen’s arguments do not show that the bankruptcy court’s conclusion was clearly 

erroneous.

It is not our role to second-guess the bankruptcy court based on a cold record. Ritzen had 

its day in court and lost. All we can do is correct clear errors, and we do not find any here.

* * *

We therefore affirm the judgments of the district court and bankruptcy court.