McIntyre v. Active Energies Solar

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 10, 2021
• Docket: 20-1211
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 10, 2021 _________________________________ Christopher M. Wolpert Clerk of Court FRANK MCINTYRE,

Debtor.

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FRANK MCINTYRE,

Plaintiff - Appellant,

v. No. 20-1211 (BAP No. 20-021-CO) ACTIVE ENERGIES SOLAR, LLC; (Bankruptcy Appellate Panel) JASON WEINGAST; RICHARD CLUBINE,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, BRISCOE, and BACHARACH, Circuit Judges. _________________________________

Frank McIntyre challenges an order of the Bankruptcy Appellate Panel (BAP)

dismissing his appeal from the bankruptcy court’s dismissal of multiple state-law

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. claims and abatement of one claim pending resolution of parallel state-court

proceedings. The BAP dismissed the appeal, ruling (1) that the bankruptcy court’s

abatement of one claim meant its dismissal of all other claims was 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. We dismiss this appeal for lack of jurisdiction because the

bankruptcy court did not render a final decision and the BAP’s order did not cure the

finality problem.

I

This case began as a business 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. Under their arrangement GCE would sell the

systems for a commission, and AES would install them. But while working on one

project, Weingast sold AES to Richard Clubine, who McIntyre says directly

contracted with the customer and then reneged on a settlement offer to pay GCE a

$5,000 commission. McIntyre insists GCE was entitled to a commission of

$5,962.56 for securing the project.

Based on these allegations, McIntyre sued AES, Clubine, and Weingast in

Colorado state court, asserting various tort and contract claims, most of which the

state court dismissed. Thereafter, the state court awarded AES and Clubine

$21,853.13 in attorney’s fees.

2 That same day, McIntyre filed the underlying Chapter 13 petition and later

initiated, as GCE’s successor, an adversary proceeding against AES, Clubine, and

Weingast to recover the $5,962.56 he claimed he was owed as a commission.

McIntyre raised various state-law tort and contract claims similar to the claims he

advanced in state court. He also objected to AES’s proof of claim, which was based

on the state court’s award of attorney fees.

The bankruptcy court dismissed McIntyre’s state-law claims for lack of

jurisdiction under 28 U.S.C. § 1334(b), which provides “original but not exclusive

jurisdiction of all civil proceedings arising under [the bankruptcy code], or arising in

or related to cases under [the bankruptcy code].” The court reasoned that McIntyre’s

claims did not “arise under” the bankruptcy code or “arise in” the bankruptcy

proceedings because they did “not directly affect the property of the bankruptcy

estate, and constitute[d] state law causes of action.” R. at 12 (internal quotation

marks omitted). It further explained that the claims were not “related to” the

bankruptcy proceedings because they were “based solely on pre-petition alleged

conduct of the defendants, and [McIntyre’s] rights, liabilities, options or freedom of

action [were] not impacted by [his] claims.” Id. at 13 (internal quotation marks

omitted).

Alternatively, the bankruptcy court determined that even if McIntyre’s

state-law claims “related to” the bankruptcy proceedings, it would exercise its

discretion to abstain from hearing them under § 1334(c)(1). The court viewed

abstention as having little effect on the administration of the estate because McIntyre

3 could seek turnover of any recovery in state court. It also observed that state-law

issues predominated over the claims, which were based on conduct that predated the

filing of his petition, and that McIntyre admitted they were the same claims he

asserted in the state-court action.

As for McIntyre’s objections to AES’s proof of claim, the bankruptcy court

noted the proof of claim was based on the state court’s fee award, which was still

contingent on the state court’s resolution of McIntyre’s motion to reconsider the

dismissal of his claims. It therefore abated McIntyre’s objections to the proof of

claim pending the state court’s resolution of his motion for reconsideration.

McIntyre filed a motion for reconsideration, which the bankruptcy court

construed as a motion to alter or amend the judgment. The court denied relief, ruling

that McIntyre simply disagreed with its determination that the state-law claims were

not “related to” the bankruptcy proceedings.

McIntyre appealed to the BAP, which dismissed for lack of jurisdiction, ruling

that the bankruptcy court did not render a final decision because it abated

consideration of McIntyre’s objections to AES’s proof of claim. The BAP also noted

that the bankruptcy court did not certify its decision for immediate appeal, see Fed.

R. Civ. P. 54(b), and that its decision was not appropriate either for review under the

collateral-order doctrine or for interlocutory review.

4 II

A. Finality & Appellate Jurisdiction under 28 U.S.C. § 158(d)(1)

This court has jurisdiction to review final decisions of the BAP. See Radiance

Cap. Receivables Nineteen LLC v. Crow (In re Crow), 987 F.3d 912, 918 (10th Cir.

2021); 8 U.S.C. § 158(d)(1). “Generally, an order is final if it ends the litigation on

the merits and leaves nothing for the court to do but execute the judgment.” Adelman

v. Fourth Nat’l Bank & Tr. Co., N.A. (In re Durability, Inc.), 893 F.2d 264, 265

(10th Cir. 1990). “Thus, an order that resolves only a part of the parties’ dispute is

not a final, appealable order.” Strong v. W. United Life Assurance Co. (In re

Tri-Valley Distrib., Inc.), 533 F.3d 1209, 1213 (10th Cir. 2008). But “[i]ssues of

finality and appealability are different in bankruptcy cases.” Crow, 987 F.3d at 918.

In the bankruptcy context, “the appropriate ‘judicial unit’ for application of [the]

finality requirement[] . . . is not the overall case, but rather the particular adversary

proceeding or discrete controversy pursued within the broader framework cast by the

petition.” Durability, 893 F.2d at 266. We evaluate the finality of the BAP’s order

“by considering the effect that the order will have in the context of the particular

appeal,” Tri-Valley, 533 F.3d at 1214, which in turn “requires considering whether

the bankruptcy court order is final,” HealthTrio, Inc. v. Centennial River Corp. (In re

HealthTrio, Inc.), 653 F.3d 1154, 1159 (10th Cir. 2011). Ultimately, “[i]f the BAP’s

order results in significant further proceedings in the bankruptcy court, the BAP’s

order is not final, and we do not have jurisdiction to consider an appeal therefrom.”

Tri-Valley, 533 F.3d at 1214.

5 Here, the BAP’s dismissal results in significant further proceedings because

the bankruptcy court abated McIntyre’s objections, which are still pending, and the

BAP did not “‘cure’ [the] finality problem by effecting its own final disposition of

the underlying adversary proceeding,” Durability, 893 F.2d at 266; instead, the

BAP’s order left intact the bankruptcy court’s interlocutory order adjudicating only

part of the dispute. Thus, we lack jurisdiction under § 158(d)(1).

McIntyre disputes this conclusion. He contends (1) that the $5,962.56

commission he seeks is property of the estate over which the bankruptcy court had

exclusive jurisdiction under 28 U.S.C. § 1334(e)(1), and (2) that his efforts to recover

that money through bankruptcy constitute a “core proceeding” under 28 U.S.C.

§ 157(b)(2)(A), so the bankruptcy court lacked discretion to dismiss those claims.

But these arguments go to the merits of his arguments against dismissal of his claims,

not the finality of the decisions by the bankruptcy court and the BAP. They do not

explain how the bankruptcy court rendered a final decision despite adjudicating fewer

than all the claims. Neither do these arguments address the BAP’s dismissal for lack

of a final decision from the bankruptcy court.

B. Collateral-Order Doctrine

McIntyre also invokes the collateral-order doctrine. That doctrine recognizes

“a narrow class of collateral orders which do not meet th[e] definition of finality, but

which are . . . immediately appealable . . . because they [1] conclusively determine a

disputed question that is [2] completely separate from the merits of the action [and 3]

effectively unreviewable on appeal from a final judgment.” Quackenbush v. Allstate

6 Ins. Co., 517 U.S. 706, 712 (1996) (original brackets and internal quotation marks

omitted). It is McIntyre’s burden to show his appeal satisfies all three elements.

See Magic Circle Energy 1981-A Drilling Program v. Lindsey (In re Magic Circle

Energy Corp.), 889 F.2d 950, 954 (10th Cir. 1989).

McIntyre fails to satisfy the third element—namely, that the bankruptcy

court’s ruling is unreviewable on appeal from final disposition of his adversary

proceeding. The dismissal of his state-law claims will be subsumed in the final

disposition of his adversary proceeding once the bankruptcy court resolves his

objections. Cf. Quackenbush, 517 U.S. at 714 (order remanding case to state court

was unreviewable on appeal because the federal court disassociate[d] itself from the

case entirely, retaining nothing of the matter on [its] docket,” and the remand order

would “not be subsumed in any other appealable order”). McIntyre insists we should

review the dismissal of his state-law claims now because the bankruptcy court may

be bound by the state court’s findings, and thus its role in adjudicating his objections

is “illusory.” Aplt. Opening Br. at 22; see also Reply Br. at 3 (arguing the

bankruptcy court will be bound by state court’s findings, “leav[ing] nothing of

substance or significance for the bankruptcy court to rule on”). But the preclusive

effect, if any, of the state court’s actions has not yet been resolved and should be left

for the bankruptcy court in the first instance when it takes up his objections. Our

inquiry is whether dismissal of the state-law claims is reviewable upon final

disposition of the adversary proceeding. Because it is, the collateral-order doctrine is

inapplicable.

7 C. Interlocutory Review

Alternatively, McIntyre contends the BAP should have granted interlocutory

review of his appeal under 28 U.S.C. § 158(a)(3). See id. § 158(b)(1) (authorizing

the BAP to hear appeals from interlocutory orders under § 158(a)(3) “with leave of

the court”). The BAP’s refusal to grant interlocutory review, however, is itself

contained in a nonfinal order, so § 158(d)(1) provides no basis for our jurisdiction.

We note that “[a] party may pursue an interlocutory appeal of an order under

§ 158(d)(2) if the . . . BAP certifies the order as one involving a matter of public

importance or on which there is no controlling decision of the court of appeals,”

Crow, 987 F.3d at 918. But the BAP rendered no such certification. And McIntyre

fails to cite any other jurisdictional basis for our review of the BAP decision denying

interlocutory review. Thus, we lack jurisdiction to consider that denial.

III

We dismiss this appeal for want of jurisdiction.

Entered for the Court

Harris L Hartz Circuit Judge