United States Court of Appeals,

Fifth Circuit.

No. 92-2141.

David ASKANASE, Trustee, Plaintiff-Appellee,

v.

LIVINGWELL, INC. et al., Defendants,

Gerald M.H. Stein and Joseph J. Zilber, Movants-Appellants.

Jan. 22, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges:

DeMOSS, Circuit Judge:

Procedural Background

On November 6, 1990, David Askanase, trustee of the bankruptcy estate of LivingWell, Inc.,

debtor in Bankruptcy Case No. 89-07878-H1-7 (hereinafter "Askanase Trustee"), filed his Original

Complaint in the United States Dis t rict Court for the Southern District of Texas, naming as

defendants:

1. LivingWe ll, Inc., a Delaware corporation, together with its divisions and subsidiaries

(hereinafter "LivingWell"), who were the original debtors in possession in a Chapter 11 proceeding

filed on October 27, 1989, and which was later converted to a Chapter 7 proceeding on October 5,

1990;

2. The LivingWell, Inc. Directors and Officers Liabilit y Insurance Trust (hereinafter the

"Insurance Trust"), an insurance trust created by LivingWell under a Trust Agreement dated February

12, 1987;

3. Pittsburgh National Bank, a national banking association in Pittsburgh, Pennsylvania, in its

capacity as Trustee of the Insurance Trust; and

4. McDonough Caperton Shepherd Group, Inc., d/b/a McDonough Caperton Risk Services,

a West Virginia corporati on (hereinafter "McDonough Caperton"), in its capacity as administratorof the Insurance Trust.

In this action, Askanase Trustee asserted claims under various sections of the Bankruptcy Act

of the United States, under Section 24.01 et seq. of the Texas Business and Commerce Code (1967),

under Section 24.005(a) of the Texas Uniform Fraudulent Transfer Act (1987), and under ancillary

Texas state law regarding fraudulent transfers, constructive fraud, breaches of fiduci ary duty

,

breaches of express, resulting and/or constructive trusts, breaches of express, and/or implied

contracts, alter ego liabilit y, and civil conspiracy. The relief sought by Askanase Trustee was

declaration of the rights of the parties with respect to the Insurance Trust and the alleged beneficiaries

thereunder; recovery of all funds transferred or paid by LivingWell to the Insurance Trust; the

turnover and/or imposition of equitable liens again st and/or constructive trusts upon certain funds

now held in the name of the Insurance Trust, but which right fully belong to Askanase Trustee;

turnover of funds held by the Trust pursuant to 11 U.S.C. §§ 542 and 543, and recovery for the

benefit of the bankrupt estate of ac t ual damages, pre-judgment interest, costs, attorneys' fees, and

post-judgment interest.

In due course, defendants filed Answers and Cross-claims against Askanase Trustee and

Co unt erclaims as against certain other defendants; and certain individuals were permitted t o

intervene, (hereinafter "intervenors"), asserting that they were actual or potential beneficiaries of the

Insurance Trust seeking to protect and preserve their rights thereunder.

In October 1991, Askanase Trustee filed a "Motion For Partial Summary Judgment" in which

Askanase Trustee requested the Trial Court to

"... enter Partial Summary Judgment declaring that the revocable Trust is an asset of the

Estate, that the Trust's funds held by Pittsburgh National Bank are property of the estate, and

that all funds be turned over to the Bankruptcy Trustee by virtue of 11 U.S.C. § 542."

On January 23, 1992, the Trial Court entered its "Memorandum Opinion" which discussed

t he procedural posture of the case, the contentions of the parties, the various cases cited by the

parties as being determinative of the issues presented, and determined that since LivingWell retained

the power to amend and terminate the Insurance Trust under the Trus t Agreement , the plaintiff

Askanase Trustee has the right to terminate the trust in accordance with the Trust Agreement and thatright is the property of the estate. The Memorandum Opinion concluded with the following:

"The plaint iff's motion

fo r summary judgment is GRANTED. In this regard, the plaintiff's

notice of termination is effective a nd t he plaintiff may proceed to terminate the Trust in

accordance with its terms."

Following entry of the Memorandum Opinion, the Trial Court entered the following Orders

in response to various motions made by intervenors, defendants, and plaintiff:

1. On March 4, 1992, the Trial Court signed an Order which was entered on March 5, 1992,

in which the Trial Court denied a motion of intervenors for "stay pending appeal"; and inserted in

handwriting the following explanations: "NO FINAL JUDGMENT HAS BEEN ENTERED."

2. On March 18, 1992, the Trial Court signed an Order entered on March 19, 1962, which

denied a motion of Askanase Trus t ee "fo r severance and final judgment and request for turnover

order", but concluded its "discussion" with the following sentence:

"Given this Court's opinion that the rights to terminate the t rust is a property ri ght of the

bankrupt estate, the Court holds that this is appealable and that the motions are DENIED."

3. On March 16, 1992, the Trial Court signed an order which was entered on March 19, 1992,

which de nied the motions of two intervenors (i) to amend Memorandum Opinion concerning

plaint iff's motion for partial summary judgment, (ii) motion for clarification of Memorandum Opinion,

and (iii) motion seeking inclusion of statement purs uant to 28 U.S.C. § 1292(b); but granted the

motion of David Askanase Trustee for a turnover Order and directed Pittsburgh National Bank as

Trustee of the Insurance Trust to,

"... turnover the assets of the Trust to David Askanase, Trustee, within twenty (20) days of

the date of this Order."

4. On May 7, 1992, the Trial Court signed an order entered on May 7, 1992, which amended

the order signed March 16, 1992, by deleting therefrom the last two paragraphs dealing with turnover

of assets; and

5. On July 9, 1992, the Trial Court signed an order entered on July 15, 1992, which granted

the motion of intervenors for "stay pending appeal".

None of these orders contain any language referencing actions taken or contemplated by the

Trial Court under Rule 54(b) of the Fed.R.Civ.P. nor any language reflecting an intention on the partof the Trial Court to make the certification contemplated by 28 U.S.C. § 1292(b). During the time

interval covered by the Orders cited above, some of the intervenors gave two Notices of Appeal to

this Circuit Court which were subsequently dismissed voluntarily. The record excerpts filed by

appellants now before the court does not cont ain a copy of the Notice of Appeal upon which

appellants rely as required by our Loc.R. 30.1.4. From a review of the docket sheets and the record

in the Trial Court, it would appear that the Notice of Appeal under which appellant is now acting was

the one dat ed June 4, 1992, and filed on June 5, 1992, which purports to appeal from the

Memorandum Opinion entered on January 23, 1992. The brief of appellant asserts that this court has

jurisdiction under 28 U.S.C. § 1291 as an appeal from a "Final Judgment". The brief of appellee

asserts that no final judgment appealable under 28 U.S.C. § 1291 has been entered and that this court

does not have jurisdiction under eithe r 28 U.S.C. § 1292(a) or 28 U.S.C. § 1292(b) because the

Memorandum Opinion does not meet the requirements of those statutes.

Opinion

Federal appellate courts have jurisdiction over appeals only from (1) a final decision under

28 U.S.C. § 1291; (2) a decision that is deemed final due to jurisprudential exception or that has been

properly certified as final pursuant to Fed.R.Civ.P. 54(b); and (3) interlocutory orders that fall into

specific classes, 28 U.S.C. § 1292(a), or that have been properly certified for appeal by the district

court, 28 U.S.C. § 1292(b). S ee Dardar v. Lafou rche Realty Cove, 849 F.2d 955, 957 (5th

Cir.1988); Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th Cir.1981).

A decision is final when it "ends the litigation on the merits and leaves nothing for the court

to do but execute the judgment". C oopers and Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct.

2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. U.S., 324 U.S. 229, 233, 65 S.Ct. 631, 633,

89 L.Ed. 911 (1945)).

When an action involves mult iple parties, any decision that adjudicates the liabilit y of fewer

than all of the parties does not terminate the action and is therefore not appealable unless certified by

the district judge under Rule 54(b). T hompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.1985). While

the recent en banc decision of this Circuit in K elly v. Lee's Old Fashioned Hamburgers, Inc., 908F.2d 1218 (5th Cir.1990) teaches that it is not necessary for the Trial Court to recite the magic words

of "no just reason for delay," that decision does require that "the order al one, or the order together

with the motion or some other porti on of the record referred to in the order, contains clear language

reflecting the court's intent to enter the judgment under Rule 54(b)."

In the present appeal, it is clear that the Memorandum Opinion was neither in fo rm nor

content a final decision. Likewise it is clear that the Trial Court expressly refused to make the

certifications necessary for appeal of the Memorandum Opinion under 28 U.S.C. § 1292(b), and it

is als o clear that the Memorandum Opinion does not constitute one of those interlocutory orders

made appealable under 28 U.S.C. § 1292(a). While the Trial Court did indicate in its Order of March

19, 1992, that the issue as to the right to terminate the Insurance Trust being a property right of the

bank rupt estate was "appealable", neither that order nor any motion requesting the entry of such

order, made reference to Rule 54(b) as the source of the Trial Court's statement about "appealability".

Furthermore, on subsequent occasions the Trial Court entered orders m o difying or amending the

Memo randum Opinion which would clearly not be consistent with an intention to enter judgment

without further delay on the basis of the Memorandum Opinion.

For the foregoing reasons we hold that this Court does not have appellate jurisdiction

of this matter

and direct the Clerk to enter an Order of Dismissal herein.

Nothing herein shall be deemed or construed as an expression of opinion on the merits of any

issue involved in this controversy.