Frank McIntyre v. Active Energies Solar, LLC, et al.

Case Type:
Case Status:
22-004 (10th Circuit, Dec 30,2022) Not Published
The U.S. Bankruptcy Appellate Panel of the Tenth Circuit (BAP) affirmed the decision of the U.S. Bankruptcy Court for the District of Colorado (BC) to abstain from adjudicating the adversary proceeding commenced by Frank W. McIntyre (DR) against Active Energies Solar LLC (AES), Jason Weingast (JW), and Richard Clubine (RC) (collectively, Defs. or Appellees) based on the same causes of action raised in a suit pending before a state court prior to the DR's chapter 13 filing, the latter made shortly after the state court had found in Defs.' favor on some of the DR's claims.
Procedural context:
After receiving an adverse, if partial, ruling in the state court, the DR filed first a chapter 13 petition and then an adversary proceeding based on the same causes of action pending in the state court. Ultimately, the BC abstained from hearing the adversary proceeding. The DR timely appealed.
In 2016, Glenwood Clean Energy, LTD (GCE), whose sole owner and member was the DR, established a business relationship with AES and JW, then-vice president of AES. In general, GCE would sell, and AES would install solar energy systems. Although the parties did not sign a written agreement, "the understanding between the parties was GCE would earn a commission based on a percentage of the gross sales." RC bought AES in 2017. Shortly after, the DR learned RC and AES had installed a project without him; when GCE requested its commission, RC and AES refused. In response, GCE filed a state court lawsuit against AES and RC, later joining JW, asserting numerous tort and contract claims. After the state court dismissed the tort claims, the DR requested reconsideration, and AES filed a request for attorney's fees and costs. The state court awarded fees and costs to AES, but before it could rule on the motions for reconsideration, the DR filed his chapter 13 petition. AES thereafter submitted a proof of claim related to the state court fees and costs award. At this point, the DR filed his adversary complaint.
Sarah A. Hall; Janice D. Lloyd; and William T. Thurman

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