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 The Clerk of Court is directed to amend the official caption as shown above.

11-2272-bk (L)

In re Emanuel

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY

PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of

New York, on the 8th day of February, two thousand twelve.

PRESENT: BARRINGTON D. PARKER,

REENA RAGGI,

RAYMOND J. LOHIER, JR.,

Circuit Judges.

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IN RE: RUBY G. EMANUEL,

Debtor.

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KENNETH HELLER,

Appellant, 

 

 v. Nos. 11-2272-bk (L);

 11-2716-bk (Con)

RUBY G. EMANUEL,

Debtor-Appellee.

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APPEARING FOR APPELLANT: KENNETH HELLER, pro se, New York, New

York.
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APPEARING FOR APPELLEE: MICHAEL S. FELDMAN, Jacoby & Meyers,

LLP, New York, New York; Lawrence D.

Lissauer, Robert J. Camera, James W.

Shuttlesworth, III, George A. Kohl, II, Finklestein

& Partners, LLP, Newburgh, New York. 

Appeals from a judgment of the United States District Court for the Southern District

of New York (John G. Koeltl, Judge) affirming an order of the United States Bankruptcy

Court for the Southern District of New York (Stuart M. Bernstein, Chief Bankruptcy Judge),

and from the district court’s order denying reconsideration.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on March 28, 2011, and order entered on April 20,

2011, are AFFIRMED.

Pro se appellant Kenneth Heller, a former attorney who represented debtor Ruby

Emanuel in a wrongful death action in New York State court until he was disbarred in 2004,

see In re Heller, 9 A.D.3d 221, 780 N.Y.S.2d 314 (1st Dep’t 2004), appeals from a judgment

affirming the bankruptcy court’s order denying his Chapter VII claim for attorney’s fees, and

from an order denying reconsideration. “In an appeal from a district court’s review of a

bankruptcy court decision, we review the bankruptcy court decision independently, accepting

its factual findings unless clearly erroneous [and] reviewing its conclusions of law de novo.”

 In re Enron Corp., 419 F.3d 115, 124 (2d Cir. 2005) (internal quotation marks omitted).

Applying that standard here, we assume the parties’ familiarity with the facts and record of

prior proceedings, referencing them only as necessary to explain our decision to affirm.
1

 For our purposes, there appears to be no substantive difference between the two

standards. Compare 11 U.S.C. § 330(a)(3) (providing that professionals may be

compensated for services provided in bankruptcy proceedings based on, inter alia, “time

spent”; “rates charged”; whether the services were “beneficial” to the bankruptcy case when

rendered, and “performed within a reasonable amount of time”; whether the professional

demonstrated skill and experience; and whether the requested amount is “reasonable based

on the customary compensation charged by comparably skilled practitioners”), with

Rosenzweig v. Gomez, 250 A.D.2d 664, 664, 672 N.Y.S.2d 907, 908 (2d Dep’t 1998)

(stating that disciplined attorney may recover compensation in quantum meruit for services

provided depending on “evidence of the time and skill required in that case, the complexity

of the matter, the attorney’s experience, ability, and reputation, the client’s benefit from the

services, and the fee usually charged by other attorneys for similar services”).

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1. Settlement Approval

As a threshold matter, we lack jurisdiction to review Heller’s challenge to the

bankruptcy court’s November 2008 order approving Emanuel’s $3.65 million settlement of

the wrongful death action because Heller’s January 2010 notice of appeal was untimely as

to that order by over a year. See Fed. R. Bankr. P. 8002(a) (requiring notice of appeal to be

filed within 14 days of entry of bankruptcy court order or judgment); In re Siemon, 421 F.3d

167, 169 (2d Cir. 2005) (holding time limit imposed by Fed. R. Bankr. P. 8002(a) to be

jurisdictional).

2. Denial of Attorney’s Fees 

We review the bankruptcy court’s denial of attorney’s fees for abuse of discretion and

identify none here. See In re Bayshore Wire Prods. Corp., 209 F.3d 100, 103 (2d Cir. 2000).

Whether 11 U.S.C. § 330 or New York law on quantum meruit controlled the challenged

decision, the bankruptcy court properly denied Heller’s fee application.1

 
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Heller argues that he was entitled to a substantial award of fees because he was a “preeminent, superbly qualified, maritime lawyer,” “expended an incredible amount of effort and

funds,” and “laid the entire groundwork for [the] settlement.” Appellant Br. at 49-50.

Because Heller’s conclusory assertions lack any credible evidentiary support in the record,

we identify no clear error in the bankruptcy court’s finding that Heller failed to establish the

time he worked on Emanuel’s wrongful death suit. Heller refused to testify at an evidentiary

hearing held for that purpose, and the bankruptcy court found the witness who testified on

his behalf entirely unworthy of belief. Nor did the bankruptcy court clearly err in finding

that Heller failed to demonstrate that his representation was beneficial to Emanuel’s case,

where the verdict he obtained for Emanuel at trial was vacated on appeal. Further, the

bankruptcy court acted within its discretion in finding that Heller’s post-disbarment refusal

to turn over case files to Emanuel’s substitute counsel in contravention of a New York State

court order prejudiced Emanuel. Under these circumstances we identify no error in the

bankruptcy court’s refusal to award Heller any attorney’s fees.

3. Other Issues

Because we affirm the bankruptcy court’s decision to deny Heller attorney’s fees, we

need not consider his challenges to the fees awarded to substitute counsel as Heller has no

interest affected by that award. See In re DBSD N. Am., Inc., 634 F.3d 79, 88-89 (2d Cir.

2011). Further, Heller has abandoned any challenge to the district court’s denial of his

motion for reconsideration by failing to raise any such challenge in his appellate brief. See

Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 491 n.5 (2d Cir. 2011).
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4. Sanctions

Emanuel moves for sanctions, arguing that Heller has harassed her by filing frivolous

motions and applications with various courts. The district court denied a similar sanctions

application filed by Emanuel, but Emanuel did not cross-appeal. See generally Rangolan v.

Cnty. of Nassau, 370 F.3d 239, 254 (2d Cir. 2004) (noting that this court rarely disregards

party’s failure to file cross-appeal). Nor does Emanuel point to any new or distinct

harassment on appeal that would warrant our imposing sanctions on Heller in the first

instance.

5. Conclusion

We have considered Heller’s other arguments on appeal and find them to be without

merit. Accordingly, the district court’s judgment affirming the bankruptcy court order and

the district court order denying reconsideration are AFFIRMED, the motion for sanctions is

DENIED, and the motion to strike portions of the appendix is DENIED as moot.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court