Now Updating
In re: DIANN MARIE CATES

Summarizing by Lars Fuller

Frank McIntyre v. Active Energies Solar LLC

Case Type:
Business
Case Status:
Dismissed
Citation:
20-1211 (10th Circuit, Jun 10,2021) Not Published
Tag(s):
Ruling:
In line with the decision of its Bankruptcy Appellate Panel (BAP), which had dismissed the appeal of Frank McIntyre (DR), due to a lack of jurisdiction, the U.S. Court of Appeals for the Tenth Circuit (Panel) did the same because not only had the bankruptcy court not rendered a final decision but also the BAP’s order had not cured this preexisting finality problem.
Procedural context:
Presented with an adversary complaint, filed by the DR, based on state-law tort and contract claims substantially similar to those pled prepetition in (and dismissed by) a Colorado state court (SC), and his challenge to the proof of claim filed by the winning SC defendant, the U.S. Bankruptcy Court for the District of Colorado (BC) issued a three-part ruling. First, dismissal pursuant to section 1334(b) of the U.S. Code’s twenty-eighth title (Title 28), it reasoned, was merited for one reason: the DR’s claims simply did not arise under the Code or arise in the instant bankruptcy proceedings because they did not “directly affect” property of the estate, and they were not “related to” the instant bankruptcy proceedings because they were “based solely on pre-petition alleged conduct of the defendant.” Second, even if it had jurisdiction, the BC made clear that it would have exercised its discretionary power to abstain under section 1334(c)(1) of Title 28. And third, and perhaps most crucially, as to the DR’s objections to the defendant’s proof of claim, the BC pointedly observed that this proof was based on a fee award that was still contingent on the SC’s resolution of the DR’s motion to reconsider the dismissal of his claims. In light of this single verity, the BC abated the DR’s objections to this proof pending the SC’s resolution of his motion for reconsideration. When the DR implored for reconsideration, the BC construed his request as a motion to alter or amend the judgment, and denied it in full. After all, it explained, the entire basis of this latest paper was the DR’s disagreement with its jurisdictional determination. Certainly, he raised no argument sufficient to trigger reconsideration based on the relevant federal jurisprudence. The DR then appealed to the BAP. Dismissing this appeal, the BAP ruled (1) that the BC’s abatement of one claim rendered its dismissal of all other claims as a nonfinal, interlocutory decision; (2) that the order was not reviewable under the collateral-order doctrine; and (3) that granting leave for interlocutory review would not be appropriate. Undaunted, the DR timely raced to the next highest appellate court.
Facts:
This appeal originated in a dispute between McIntyre and his company, Glenwood Clean Energy, Ltd. (GCE), and a business associate, Jason Weingast, who was vice-president of Active Energies Solar (AES). GCE and AES collaborated to sell and install solar-energy systems, with GCE being responsible for the sale of the systems for a commission and AES for its installation. A hitch in these interrelated operations came when, while working on one project, Weingast sold AES to Richard Clubine (Clubine). According to the DR, Clubine directly contracted with the customer and then reneged on a settlement offer to pay GCE a $5,000 commission. GCE was entitled, the DR insisted, to a commission of $5,962.56 for securing the project. So convinced, the DR sued AES, Clubine, and Weingast in the SC. The SC dismissed most of the DR’s claims. Afterward, it awarded $21,853.13 in attorney’s fees to AES and Clubine On the same day that the SC issued this award, the DR turned to the BC. He first filed the underlying Chapter 13 petition; later, he initiated, as GCE's successor, an adversary proceeding against AES, Clubine, and Weingast to recover his purported $5,962.56 commission. In the latter suit, the DR raised state-law tort and contract claims unerringly redolent of the claims he had advanced in the SC. In the main bankruptcy, he challenged AES’s proof of claim, which was based on the SC’s award of attorney fees.
Judge(s):
Harris L. Hartz; Mary B. Briscoe; and Robert E. Bacharach

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