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 ofthe 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 District Court for the Southern District of Texas, naming as

defendants:

1. LivingWell, 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 Liability Insurance Trust (hereinafter the

"Insurance Trust"), an insurance trust created byLivingWellunder aTrust Agreement dated February

12, 1987;

3. Pittsburgh NationalBank, 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 corporation (hereinafter "McDonough Caperton"), in its capacity as administrator
of the Insurance Trust.

In this action, Askanase Trustee asserted claims under varioussections oftheBankruptcyAct

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 fiduciary duty,

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

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

declaration ofthe rights ofthe 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 against and/or constructive trusts upon certain funds

now held in the name of the Insurance Trust, but which rightfully 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 actual damages, pre-judgment interest, costs, attorneys' fees, and

post-judgment interest.

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

Counterclaims as against certain other defendants; and certain individuals were permitted to

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'sfunds held by Pittsburgh NationalBank 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

the 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 LivingWellretained

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

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

"The plaintiff's motion for summary judgment is GRANTED. In this regard, the plaintiff's

notice of termination is effective and the 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 Trustee "for 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 trust is a property right of the

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

3. OnMarch 16, 1992, the TrialCourt signed an order which was entered on March 19, 1992,

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

plaintiff'smotionfor partialsummaryjudgment, (ii) motion for clarification ofMemorandumOpinion,

and (iii) motion seeking inclusion of statement pursuant 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 TrialCourt signed an order entered on May 7, 1992, which amended

the ordersigned March 16, 1992, bydeleting therefromthe 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

TrialCourt under Rule 54(b) of the Fed.R.Civ.P. nor any language reflecting an intention on the part
of 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 TrialCourt, 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

MemorandumOpinion 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

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

does not have jurisdiction under either 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). See Dardar v. Lafourche 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". Coopers 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 multiple parties, any decision that adjudicates the liability of fewer

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

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

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

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

with the motion or some other portion 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 form 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 also 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

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

order, made reference to Rule 54(b) asthe source ofthe TrialCourt'sstatement about "appealability".

Furthermore, on subsequent occasions the Trial Court entered orders modifying or amending the

Memorandum 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.