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applies even where a bankruptcy court orders a party to correct a violation of the automatic stay, but reserves a determination on damages. This is so because in the bankruptcy context, as in civil litigation generally, to resolve a discrete dispute, a court 'must completely resolve all of the issues pertaining to a discrete claim, including issues as to proper relief.'" (emphasis in original). The court then addressed whether, considering the interlocutory nature of the injunction order, leave to appeal should be granted. The court concluded that it should. The court, analogizing to when leave to appeal should be granted in non-bankruptcy cases pursuant to 28 U.S.C. § 1292(a) (which provides for interlocutory appeals where a district court grants, continues, modifies, refuses or dissolves an injunction), stated: "The injunction at issue!although technically not final since damages remain to be determined!does resolve the vast majority of the dispute between the parties. It is also a mandatory injunction that compelled FOA to act in a manner that may result in the current Board being unseated. For these reasons, it is appropriate to grant leave for an interlocutory appeal." Alternatively, the court found that leave to appeal was also proper pursuant to 28 U.S.C. § 1292(b), which provides that leave to file an interlocutory appeal should be granted "only where (i) the order involves a controlling question of law, (ii) as to which there is substantial ground for difference of opinion, and (iii) immediate appeal would materially advance the termination of the litigation." The association had identified two questions of law that it contended satisfied this test: "(i) whether the bankruptcy court erred in holding that it is a violation of the automatic stay to enforce the Bylaw provision that prevents Gordon Properties from voting or being elected to the Board, and (ii) whether the bankruptcy court had the authority to grant an injunction that required [the association] to hold an annual meeting according to meeting procedures that contravened its Bylaws." The court found that the first question satisfied the section 1292(b) test, stating: "First, it is controlling because a determination that the bankruptcy court erred would terminate the action....Second, there is a substantial ground for difference of opinion. While this element is typically met where there is a difference of opinion between courts, where, as here, the question is one of first impression, the district court must analyze the arguments to determine whether there is 'substantial ground' for dispute. In this respect, while the bankruptcy court's analysis has substantial force, [the association's] arguments in opposition are not without force either and rise to the level necessary to create a substantial ground for difference of opinion on this question of first impression. Finally, granting an interlocutory appeal would materially advance the ultimate termination of the litigation." The court found that the second question did not satisfy the section 1292(b) test, noting that "there is little doubt that if [the association's] conduct was a violation of the automatic stay, then the bankruptcy court had the authority to enforce the stay." The court therefore granted the association leave to appeal.
©2014 William L. Norton III
