In Re: URBAN BROADCASTING CORPORATION v. univision of Virginia Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 In Re: URBAN BROADCASTING
CORPORATION,
Debtor.
THEODORE M. WHITE,
Appellant,
v. No. 04-1262 UNIVISION OF VIRGINIA INCORPORATED,
Appellee,
STANLEY M. SALUS,
Trustee-Appellee,
and
U.S. TRUSTEE,
Party-in-interest. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-03-1174; BK-00-13760-SSM)
Argued: February 2, 2005
Decided: March 11, 2005
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Michael and Judge Duncan joined.

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COUNSEL
ARGUED: Andrew James Toland, III, William H. Murphy, Jr., WIL-
LIAM H. MURPHY, JR. & ASSOCIATES, P.A., Baltimore, Mary-
land, for Appellant. Evan McGuire Jones, O’MELVENY & MYERS,
L.L.P., Los Angeles, California, for Appellee Univision of Virginia,
Inc. ON BRIEF: Austin K. Barron, Gabriel S. Dermer,
O’MELVENY & MYERS, L.L.P., Los Angeles, California, for
Appellee Univision of Virginia, Inc.
OPINION
NIEMEYER, Circuit Judge:
In this Chapter 7 bankruptcy of Urban Broadcasting Corporation
("UBC"), Univision of Virginia, Inc. ("Univision"), a 45% owner of
UBC’s stock, filed a claim to require UBC to buy its 45% equity
interest in accordance with a put/call agreement between it and UBC.
Because the bankruptcy estate had approximately $17.5 million in it
after all creditors, except Univision, had been paid, Univision’s shares
were worth about $7.86 million. Allowing Univision’s claim as a
creditor under the put/call agreement therefore would yield Univision
the same amount that it would receive if its claim were disallowed
and it were paid as a 45% equity owner of UBC.
The bankruptcy court conducted a hearing on Univision’s claim on
July 22, 2003. Theodore White, the owner of the remaining 55% of
the shares of UBC, did not attend the hearing, nor did he submit any
objection, despite the bankruptcy court’s order that he file any objec-
tion by July 3, 2003, or "be forever barred." Following the hearing,
the court allowed Univision’s claim as a creditor under the put/call
agreement and authorized distribution of $7.86 million to Univision
and the remaining distributable amount of $8.85 million (net of
administrative expenses) to White.
White appealed the bankruptcy court’s July 22 allowance order, as
well as two procedural orders relating to the July 22 allowance order,
to the district court. With respect to the allowance order, White con-
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tended that Univision should have received the $7.86 million not as
a creditor, but rather as a shareholder of UBC. Even though there
would be no difference in the amount of distribution, White argued
that a distribution to Univision as a creditor would have a greater res
judicata effect in any subsequent court proceeding and thus would
affect him adversely. White expressly told the court that he was
intending to file a separate suit against Univision after the bankruptcy
proceedings were completed.
On Univision’s motion, the district court dismissed White’s appeal
on the ground that he had no standing to challenge the bankruptcy
court’s order because he "failed to file an objection to the claim
despite the bankruptcy court’s order to do so by July 3 ‘or be forever
barred’" and also because he "failed to appear and object at the July
22 bankruptcy court hearing regarding Univision’s claim." The court
ruled alternatively:
Even assuming arguendo that White had standing to appeal,
however, White’s failure to object despite specific direction
by the bankruptcy court to do so is a "voluntary and inten-
tional" relinquishment of his objection and hence a waiver.
As a consequence, White is barred from attacking Univi-
sion’s claim and allowance order.
Although our reasoning differs somewhat from that advanced by
the district court, we affirm the district court’s judgment on the
grounds that (1) White was not "a person aggrieved" by the bank-
ruptcy court’s order, as the term "person aggrieved" is used to justify
standing to appeal a bankruptcy order, and (2) in any event, White
waived or forfeited the right to challenge the bankruptcy court’s July
22 order by failing to comply with the bankruptcy court’s June 5,
2003 order to file such a claim or "be forever barred" from doing so.
In view of these conclusions, we also conclude that the bankruptcy
court’s procedural orders were interlocutory and therefore not appeal-
able to the district court.
I
Theodore White and Silver King Broadcasting of Virginia, Inc.
("Silver King") formed UBC in 1989 to operate a Home Shopping
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Network-affiliated television station in the Washington, D.C. area. In
exchange for financing the initial construction of the station, Silver
King received a 45% equity stake in UBC, and White, who was to
serve as UBC’s CEO and general manager, received the remaining
55%. White and Silver King also entered into a "Right of First
Refusal and Put and Call Agreement." Under the terms of that agree-
ment, Silver King had a right to require UBC to purchase its shares
on the occurrence of certain triggering events (a "put"), including
UBC’s default on any loan agreements, UBC’s failure to affiliate with
the Home Shopping Network, and UBC’s failure to perform its obli-
gations under such an affiliation agreement. White had a "call" option
on Silver King’s shares, which gave him the right to purchase Silver
King’s stock in the event that Home Shopping Network defaulted on
its compensation payments to UBC under an affiliation agreement.
Shortly after signing the put/call agreement, Silver King changed
its name to HSN Broadcasting of Virginia, Inc., and the put/call
agreement was amended accordingly. Later, HSN Broadcasting of
Virginia, Inc., became, by another name change, USA Station Group
of Virginia, Inc. Yet later, USA Station Group of Virginia, Inc., was
among the entities purchased by Univision Communications, Inc., and
became Univision of Virginia, Inc. ("Univision"), the claimant in this
case.
Almost from the beginning, UBC was marred by fighting between
its equity owners and by problems with its affiliation agreement with
Home Shopping Network. Construction-related disputes between the
owners of UBC led UBC to file its first Chapter 11 bankruptcy in
1995, and shortly after UBC emerged from bankruptcy in 1996, litiga-
tion ensued in Virginia state court between UBC and Home Shopping
Network when Home Shopping Network discontinued its affiliation
payments to UBC. Both UBC and Home Shopping Network asserted
that the other was in breach of their affiliation agreement, but Home
Shopping Network ultimately prevailed, obtaining a declaratory judg-
ment that it had not breached the agreement.
Because UBC was no longer receiving affiliation payments from
Home Shopping Network, it was forced to file a second Chapter 11
bankruptcy proceeding in August 2000 — the bankruptcy that is at
issue in this appeal. USA Station Group of Virginia (formerly Silver
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King) filed a motion to appoint a Chapter 11 trustee. To avoid the
appointment of a trustee, however, UBC agreed to sell substantially
all of its assets. The bankruptcy court conducted an auction in April
2001, and Univision Communications, Inc., was the highest bidder for
the assets at $60 million. About that same time, Univision Communi-
cations, Inc., also completed its acquisition of USA Networks, Inc.’s
broadcast television subsidiaries, and USA Station Group of Virginia,
Inc., thereby became Univision of Virginia, Inc. ("Univision"). Thus,
Univision became the presumptive successor-in-interest to Silver
King’s 45% equity stake in UBC and the put/call agreement that
White and UBC originally entered into with Silver King.
During the course of UBC’s Chapter 11 proceeding, Univision, as
45% owner of UBC, filed a proof of claim based on the put/call
agreement, contending that triggering events had occurred and that
UBC was therefore required to buy its 45% interest in UBC. UBC
objected to the claim, primarily disputing Univision’s asserted status
as a successor in interest to the put/call agreement.
Concerned with White’s control of the bankruptcy estate, the bank-
ruptcy court appointed Stanley M. Salus as Chapter 11 trustee on
December 19, 2001. The court concluded that "given the debtor’s fail-
ure to propose a confirmable plan, the best way at this point of getting
creditors paid is . . . to appoint a Chapter 11 trustee in this case."
Salus thereafter proceeded to pay all claims against UBC — except
Univision’s claim based on the put/call agreement — using the $60
million in proceeds from the asset sale. On August 23, 2002, the case
was converted into a Chapter 7 proceeding.
After the trustee paid the claims against UBC, approximately $17.5
million remained in the bankruptcy estate for distribution to UBC’s
equity holders — White and Univision. Accordingly, the trustee filed
a motion for interim distribution of these funds in April 2003, propos-
ing to distribute 55% to White and 45% to Univision. Univision, how-
ever, objected, contending that it had an unresolved claim as a
creditor under the terms of the put/call agreement. Even though
Univision would receive the identical amount as a creditor under the
put/call agreement in payment of its 45% equity interest as it would
receive directly as a 45% equity holder, Univision was motivated by
a desire to avoid any additional litigation with White. Univision
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apparently expected that payment to it as a creditor would have a
stronger res judicata effect in anticipated post-bankruptcy litigation
with White than would payment to it as a shareholder.
The bankruptcy court held a hearing on the trustee’s motion for
interim distribution on June 3, 2003, and concluded that Univision’s
proof of claim had to be resolved prior to any distribution to equity
holders. The bankruptcy court accordingly entered an order dated
June 5, 2003, in which it substituted the trustee for the debtor-in-
possession with respect to UBC’s objection to Univision’s claim, but
clarified that "[n]othing in this order, however, requires the trustee to
prosecute the objection if there would be no economic benefit to the
bankruptcy estate in doing so." The order also scheduled a hearing for
July 22, 2003, and explicitly warned White that "any objection by
[him] to the allowance of Univision’s claim must be filed by July 3,
2003, or be forever barred." Even though White elected not to be
present at the June 3 hearing, he was served with a copy of the June
5 order both by Univision and by the bankruptcy court clerk.
In response to the bankruptcy court’s June 5 order, White filed a
motion on June 30, 2003, to extend the deadline for objecting to
Univision’s claim; to postpone the hearing date; and to authorize the
trustee to make a partial distribution to him to retain counsel for pros-
ecuting an objection to Univision’s claim. White also requested expe-
dited hearing of his motion. The next day, July 1, the bankruptcy
court denied the motion for extension of time to file an objection and
to postpone the hearing, denied White’s motion for expedited hearing,
and stated that White’s motion seeking authority for the trustee to
make a partial distribution could be scheduled on any regularly sched-
uled motions day providing adequate notice. The court explained its
denial of White’s procedural motions as follows:
The simple fact of the matter is that this case has been
before the court for an inordinately long period of time and
that most of the delay in the administration of the case has
been the fault of Mr. White. For him to wait until the last
moment to attempt to bring new counsel on board and then
to cite his own procrastination as the basis for a continuance
is unacceptable.
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White then filed a motion on July 3, 2003, for reconsideration of
the bankruptcy court’s order, which he characterized as an order "de-
nying application to employ Bean, Kenney & Korman as counsel."
This motion focused on White’s claimed lack of funds to retain
proper counsel to represent his interests before the bankruptcy court.
(White’s appellate counsel acknowledged during oral argument that
Bean, Kenney & Korman had refused White further representation
after not having been paid.)
On July 18, 2003, four days before the scheduled July 22 hearing,
the trustee filed a memorandum informing the bankruptcy court and
the parties that he did not intend to object to Univision’s claim at the
hearing. He explained that since "Univision would be compensated
the identical amount whether as a creditor or as a shareholder" and
since "prosecution of [UBC’s] objection on any viable basis would
necessarily entail potentially lengthy discovery regarding the underly-
ing facts, as well as research, briefing and trial on the facts and related
legal issues, with the estate incurring concomitant fees and expenses,"
there would be no purpose nor any economic benefit to be gained by
prosecution of the objection.
On July 22, 2003, the hearing proceeded as scheduled, but White
elected not to attend. The court began the hearing by denying White’s
motion for reconsideration, noting that White "did not need the
approval of this court to employ counsel to represent his interest as
a shareholder" and that the motion was never noticed for a hearing.
Following the hearing, the bankruptcy court entered three orders, one
formally denying White’s motion for reconsideration; one allowing
Univision’s claim in the amount of $7,861,530; and one authorizing
an interim distribution of $8,850,000 to UBC, which was now 100%-
owned by White in view of Univision’s put of its shares to UBC.
After White appealed the bankruptcy court’s orders to the district
court, Univision filed a motion to dismiss, which the district court
granted. See White v. Univision of Va. (In re Urban Broadcasting
Corp.), 304 B.R. 263 (E.D. Va. 2004). Noting that White was appeal-
ing three orders — the July 1 order denying his motion to extend the
objection deadline, postpone the hearing, and authorize partial distri-
bution; the July 22 order denying his motion for reconsideration; and
the July 22 order allowing Univision’s claim — the district court held
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that the July 1 order and the first July 22 order were interlocutory. Id.
at 269. Only if White had standing to appeal the July 22 order allow-
ing Univision’s claim, the final order into which the two interlocutory
orders merged, could the interlocutory orders properly be considered
on appeal. Id. at 270. The district court then concluded that White was
not a "person aggrieved" and therefore had no standing to appeal the
bankruptcy court’s July 22 order allowing Univision’s claim because
(1) White failed to file an objection after being warned that failure to
do so would result in any objections being "forever barred," and (2)
White failed to appear and object to the claim at the July 22, 2003
hearing. Id. at 270-71. The court held alternatively that White’s "fail-
ure to object despite specific direction by the bankruptcy court to do
so is a ‘voluntary and intentional’ relinquishment of his objection and
hence a waiver. As a consequence, White is barred from attacking
Univision’s claim and the Allowance Order." Id. at 273.
From the district court’s order, dated January 28, 2004, White
appealed, making two arguments. First, he contends that he does have
standing to appeal from the order allowing Univision’s claim and
authorizing an interim distribution because he is a "person aggrieved,"
a status that does not require him to have appeared and objected at the
July 22 hearing. Second, he contends that, in any event, he has stand-
ing to appeal the bankruptcy court’s interlocutory orders — the July
1 order and the first July 22 order — because he has "timely appealed
from [these] ‘final’ orders."
II
White’s principal argument on appeal is that the district court erred
in concluding that he was not a "person aggrieved" by the bankruptcy
court’s order allowing Univision’s claim on the ground that he did not
file an objection to or attend the hearing on the claim. He argues that
his standing to appeal is not related to whether he objected to the
claim or attended the hearing, but rather on whether the bankruptcy
court’s order "directly and adversely affected [his] pecuniary inter-
ests." And to fulfill this requirement for standing, he asserts in his
brief on appeal:
If Univision’s claim were denied in its entirety, then White
would have been entitled to 100% of the surplus proceeds
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in the Chapter 7 estate. Similarly, if the bankruptcy court
determined that White had exercised "call" and acquired all
of Silver King/Univision’s stock in UBC, then Univision’s
"put" claim would have been rendered a nullity and White
would have held 100% of UBC’s stock; even if all the sur-
plus proceeds were returned to UBC, White would have
been the beneficial recipient of all of the $15 million being
disbursed because he would then be the sole shareholder of
the company.
Thus, while White and the district court both recognize that White’s
right to appeal depends on whether he was a "person aggrieved" by
the bankruptcy court’s order, they disagree on the relevance of
whether White filed an objection to the claim or attended the hearing.
The district court concluded that White was not a "person
aggrieved" on two distinct bases. First, it stated that given White’s
failure to object to Univision’s claim and "the clarity of the bank-
ruptcy court’s June 5 order, White’s objection has been ‘forever
barred,’ and thus he is not a ‘person aggrieved’ . . . with regard to the
July 22 Allowance Order and does not meet the standard governing
standing to appeal." White, 304 B.R. at 270-71 (footnote omitted). "A
contrary conclusion," the district court continued, "would render
bankruptcy court orders meaningless and imperil the integrity of the
bankruptcy process." Id. at 271. Second, the district court relied on
cases from other circuits and concluded that the Fourth Circuit would
likely conclude, "consistent with the Seventh, Ninth, and Tenth Cir-
cuits, . . . that attendance and objection at the bankruptcy court hear-
ing are pre-requisites to appellate standing" under the "person
aggrieved" test. Id. at 272. See, e.g., Weston v. Mann (In re Weston),
18 F.3d 860, 864 (10th Cir. 1994); In re Schultz Mfg. Fabricating Co.,
956 F.2d 686, 690 (7th Cir. 1992); Brady v. Andrew (In re Comm. W.
Fin. Corp.), 761 F.2d 1329, 1335 (9th Cir. 1985). But see, e.g., Int’l
Trade Administration v. Rennsselaer Polytechnic Inst., 936 F.2d 744,
748 (2d Cir. 1991) (holding that a "person aggrieved" has standing to
appeal whether or not that person sought intervention); Maryland Sav.
Bank v. Michels (In re Michels), 286 B.R. 684, 690 (B.A.P. 8th Cir.
2002) (concluding that a creditor had standing to appeal a confirma-
tion order even though it failed to file a timely proof of claim); John-
son v. E. C. Ernst, Inc. (In re Ernst, Inc.), 2 B.R. 757, 761 (S.D.N.Y.
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1980) (recognizing that the now-repealed Bankruptcy Act provision
that originated the "person aggrieved" standard did not include any
appearance requirement). The district court in this case reasoned in
light of these cases that, because White failed to appear at the July 22,
2003 bankruptcy court hearing and to object to Univision’s claim, he
lacked standing to appeal.
The test for standing to appeal a bankruptcy court’s order to the
district court is well-established: the appellant must be a person
aggrieved by the bankruptcy order. See U.S. Trustee v. Clark (In re
Clark), 927 F.2d 793, 795 (4th Cir. 1991). Likewise, it is well-
established that a person aggrieved is "a party ‘directly and adversely
affected pecuniarily.’" Id. (quoting Fondiller v. Robertson (In re
Fondiller), 707 F.2d 441, 442 (9th Cir. 1983)).
We conclude that defining standing by whether a party waives or
forfeits rights to object to claims, as did the district court, miscon-
strues the standing requirement as we have defined it, i.e., that the
appellant show that he has been directly and adversely affected pecu-
niarily by the bankruptcy order. Moreover, defining standing by
whether an appellant has objected to an order or attended a hearing
conflates basic notions of standing with notions of waiver and forfei-
ture. Accordingly, we adhere to the formulation of standing articu-
lated in Clark and, in this case, ask only whether White was directly
and adversely affected pecuniarily by the bankruptcy court’s order.
Up to this point in the analysis, therefore, we agree with White’s
position. The difficulty for White hereafter, however, is that he has
failed to demonstrate that the bankruptcy court’s order allowing
Univision’s claim directly and adversely affected his pecuniary inter-
ests.
Under the bankruptcy court’s order, White would receive 55% of
the $17.5 million in the bankruptcy estate, regardless of whether
Univision is paid its 45% as a creditor under the put/call agreement
or whether Univision is paid its 45% directly as a shareholder. The
trustee chose not to oppose Univision’s claim under the put/call
agreement precisely because there was no economic difference
between the two scenarios. Moreover, White himself took the same
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position before the district court, as manifested in this exchange
between his counsel and the court:
THE COURT: Would your client object to the
distribution to Univision of 45
percent of the assets as an
owner of UBC?
COUNSEL FOR WHITE: He did not.
THE COURT: And wouldn’t today?
COUNSEL FOR WHITE: No. He would say that that dis-
tribution is subject to litigation,
and a recoupment in another
matter.
THE COURT: Well, then he would object to
it.
COUNSEL FOR WHITE: No.
White’s claim — made for the first time on appeal — that he could
own 100% of the shares of UBC if he were successful is not only
inconsistent with his concession before the district court, but also
unsupported by anything in the record. Univision’s claim under the
put/call agreement requiring UBC to buy back its 45% interest in the
stock of UBC was based on UBC’s breach of its affiliation agreement
with Home Shopping Network, and a Virginia state court has already
determined that issue against UBC. Likewise, White’s "call" to buy
Univision’s shares was dependent on Home Shopping Network’s
default under the affiliation agreement. And again, this issue was
resolved against White in state court. On the record before us, there
is nothing to support the assertion that White could cut Univision out
of any share in UBC.
Without providing a satisfactory response to this economic reality,
White advances a second argument to support his claim that he is a
"person aggrieved." He claims that the potential res judicata effect of
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the bankruptcy court’s July 22, 2003 allowance order is greater than
if Univision’s claim had not been allowed. According to White, he
"faces the very real prospect that Univision will argue in the future
that [the bankruptcy court’s] orders bar [his] claims against Univi-
sion." White, however, never substantiates this argument. Indeed, the
record would reveal that regardless of whether the bankruptcy court
ordered distribution to Univision under the put/call agreement or to
Univision directly as a shareholder, White would be left with a bank-
ruptcy court adjudication. More precisely, he would be bound by the
bankruptcy court’s adjudication either that Univision was entitled to
have its shares purchased by UBC (now the estate) under the put/call
agreement for $7.86 million or that Univision was entitled to have the
estate pay it $7.86 million directly due to the fact that it owned 45%
of the shares in UBC. In either case, the bankruptcy court’s determi-
nation presumably would be binding in later adjudication under prin-
ciples of res judicata.
Without demonstrating how the two determinations would have a
different res judicata effect that would directly and adversely affect
White’s pecuniary interests, his res judicata argument must fail. Cer-
tainly, it is not the responsibility of the district court, nor this court,
to predict the res judicata effect of its orders on a hypothetical future
case. Moreover, even if a court attempted to do so, any such predic-
tion could only be based on rank speculation.
Because White failed to demonstrate that he suffered a direct and
adverse pecuniary harm as the result of the bankruptcy court’s July
22, 2003 allowance order, he was not a "person aggrieved" and there-
fore did not have standing to appeal the order to the district court.
III
In addition to dismissing White’s appeal on standing grounds, the
district court held that White waived his right to appeal the bank-
ruptcy court’s July 22, 2003 allowance order by failing to file an
objection to Univision’s claim despite the bankruptcy court’s clear
and unambiguous order to do so by July 3, 2003, or "be forever
barred." White, 304 B.R. at 270, 273. In its discussion of standing, the
district court explained the importance of enforcing such an order:
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Because White failed to object, the bankruptcy court, when
it allowed Univision’s claim, was not aware of any objection
by White to the claim or of any evidence White might offer
in support of an objection. Given this and given the clarity
of the bankruptcy court’s June 5 order, White’s objection
has been "forever barred" . . . .
Id. at 270.
In his brief on appeal, White does not address this ground advanced
by the district court, nor does he challenge the legality of the bank-
ruptcy court’s June 5, 2003 order. Accordingly, we are not provided
with any reason why White’s right to challenge the bankruptcy
court’s July 22, 2003 allowance order was not waived or forfeited by
his failure to comply with the bankruptcy court’s June 5 order.
The bankruptcy court’s June 5 order was a comprehensive schedul-
ing order entered to administer the disposition of Univision’s claim.
In the order, the court (1) directed Univision to file an amended proof
of claim by June 13, 2003, setting forth the final liquidated amount
of its claim; (2) substituted the trustee for UBC on UBC’s objection
to the claim; (3) directed that White file any objection to the allow-
ance of Univision’s claim by July 3, 2003, "or be forever barred"; (4)
scheduled a hearing on Univision’s claim for July 22, 2003; (5)
directed Univision to give notice to the trustee and to White of "the
claim objection bar date" and the hearing date; (6) continued the trust-
ee’s motion for an interim distribution; and (7) directed the clerk to
mail the order to the parties, including White. We cannot conceive of
any reason why this order was not an appropriate one for the bank-
ruptcy court to have entered, and White has not suggested any reason
why it was not a legal order.
Provision (3) of the order, directing White to file any objection he
might have to the allowance of Univision’s claim by July 3 "or be for-
ever barred," was clear and functioned much like any writ of sum-
mons that commences an action or proceeding. As was the case with
the bankruptcy court’s June 5 order, a summons issues from the court;
is served on the defendant; states the date by which the defendant
must appear and respond; and notifies the defendant that his failure
to do so will result in a judgment by default against him. See, e.g.,
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Fed. R. Civ. P. 4(a); see also Fed. R. Bankr. P. 7004(a). In this case,
rather than promising a default judgment, the bankruptcy court’s
order stated similarly that White’s failure to file his objection would
forever preclude his making an objection. Because we have been
given no reason why this order should not be enforced and can dis-
cern no reason ourselves, we conclude that it was properly enforced
according to its terms.
Whether such enforcement amounted to a nullification of any pecu-
niary interest for purposes of standing is not something that we need
to decide, because enforcement of the order according to its terms
amounted to a waiver or forfeiture of White’s right to challenge the
order on appeal. See First Union Commercial Corp. v. Nelsons, Mul-
lins, Riley & Scarborough (In re Varat Enterprises, Inc.), 81 F.3d
1310, 1317 (4th Cir. 1996); AMF Bowling Worldwide, Inc. v. Her-
ricks Fore Plan, Inc. (In re AMF Bowling Worldwide, Inc.), 278 B.R.
96, 101 (Bankr. E.D. Va. 2002); see also Freytag v. Comm’r, 501
U.S. 868, 894 (1991) (Scalia, J., concurring) (noting that "[n]o proce-
dural principle is more familiar to this Court than that a constitutional
right may be forfeited in a criminal as well as civil cases by the failure
to make timely assertion of the right before a tribunal having jurisdic-
tion to determine it" (quoting Yakus v. United States, 321 U.S. 414,
444 (1944))(internal quotation marks omitted)); id. at 894 n.2 (Scalia,
J., concurring) (noting that "waiver" is probably a subset of "forfei-
ture" and concluding that "[s]ome rights may be forfeited by means
short of waiver").
Accordingly, we agree with the district court’s alternative ruling
that because the bankruptcy court’s June 5, 2003 order clearly and
unambiguously directed White to file an objection to Univision’s
claim by July 3, 2003 or be forever barred and because the order was
concededly served on White, his failure to comply with the order
amounted to a waiver or forfeiture of his right to challenge the July
22, 2003 order on appeal.
IV
Finally, White contends that, independently of his standing to
appeal the allowance order, he should be permitted to appeal the
bankruptcy court’s July 1, 2003 order denying his motion to extend
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the objection deadline, to postpone the hearing, and to authorize par-
tial distribution, and the July 22, 2003 order denying his motion to
reconsider the July 1 order. The district court concluded that these
orders were interlocutory in nature and therefore not appealable
absent White’s standing to appeal the final July 22 allowance order.
See 28 U.S.C. § 158(a)(1); White, 304 B.R. at 270. We agree.
While "the concept of finality . . . has traditionally been applied ‘in
a more pragmatic and less technical way in bankruptcy cases than in
other situations,’" A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1009
(4th Cir. 1986) (quoting In Re Amatex Corp., 755 F.2d 1034, 1039
(3d Cir. 1985)), to be final, an order must "conclusively determine[ ]
a separable dispute over a creditor’s claim or priority," In re Saco
Local Dev. Corp., 711 F.2d 441, 445-46 (1st Cir. 1983); see also A.H.
Robins Co., 788 F.2d at 1009 (approvingly citing then-Judge Breyer’s
characterization of "finality" in Saco). White does not even argue that
the procedural orders at issue qualified under this test. There was no
"separable dispute," nor were any of White’s rights "conclusively
determined." See Saco, 711 F.2d at 445-46.
Similarly, the interlocutory orders do not constitute "collateral
orders" that would be immediately appealable. Under the collateral
order doctrine, interlocutory orders of the bankruptcy court are
appealable if they "conclusively determine [a] disputed question,
resolve an important issue completely separate from the merits of [an]
action, and [are] effectively unreviewable on appeal from a final judg-
ment." Grundy Nat’l Bank v. Looney (In re Looney), 823 F.2d 788,
791 (4th Cir. 1987) (quoting Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978)) (internal quotation marks omitted). Again, White
does not even contend that these interlocutory orders meet this test,
and they surely do not. The interlocutory orders determined nothing
conclusively, and were White to have standing to appeal the bank-
ruptcy court’s final allowance order, such an appeal would effectively
review the interlocutory orders as well.
In this regard, we should add that the bankruptcy court did not
deny partial distribution to White; it merely denied expedited hearing
of the motion and noted that the motion could be set on any regularly
scheduled motions day providing adequate notice.
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Thus, we agree with the district court that the interlocutory orders
challenged by White would only be appealable as part of an appeal
of the July 22 allowance order — the final order of the bankruptcy
court into which the interlocutory orders merged. But since we have
found that White was not entitled to appeal the July 22 allowance
order, so too do we conclude that he was not entitled to appeal the
interlocutory orders that merged into it.
Accordingly, we affirm the district court’s order dismissing
White’s appeal of the bankruptcy court’s orders dated July 1 and July
22, 2003.
AFFIRMED
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