McIntyre v. Active Energies Solar

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 2, 2024
• Docket: 23-1052
• Status: Unpublished

Opinion

Appellate Case: 23-1052 Document: 010111089221 Date Filed: 08/02/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 2, 2024 _________________________________ Christopher M. Wolpert Clerk of Court FRANK WILLIAM MCINTYRE,

Debtor.

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FRANK WILLIAM MCINTYRE,

Plaintiff - Appellant, No. 23-1052 v. (BAP No. 22-004-CO) (Bankruptcy Appellate Panel) ACTIVE ENERGIES SOLAR, LLC; JASON WEINGAST; RICHARD CLUBINE,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before MATHESON, EID, and CARSON, Circuit Judges. _________________________________

In his Chapter 13 bankruptcy case, Frank William McIntyre filed an adversary

proceeding raising several state-law claims and objecting to a proof of claim. The

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-1052 Document: 010111089221 Date Filed: 08/02/2024 Page: 2

bankruptcy court abstained from hearing the claims and the objections. The

Bankruptcy Appellate Panel affirmed. We lack jurisdiction to review the bankruptcy

court’s decisions to abstain, so we dismiss the parts of this appeal challenging those

decisions. We otherwise affirm.

I. Background

Mr. McIntyre and his company worked with another company, Active Energies

Solar, to sell and install solar-energy systems. Mr. McIntyre’s relationship with

Active Energies soured after the company came under new ownership. Mr. McIntyre

claims that Active Energies withheld his commission for a project and later reneged

on an offer to settle the commission dispute.

Based on these allegations, Mr. McIntyre sued Active Energies, its new owner,

and its former vice president in a Colorado state court. The state court dismissed

some (but not all) of the claims, and it awarded attorney’s fees to Active Energies

and its owner.

With the state lawsuit still pending, Mr. McIntyre filed this Chapter 13

bankruptcy case. He filed an adversary proceeding against Active Energies, its

owner, and its former vice president, raising the same claims he had presented in

state court. He also objected to Active Energies’ proof of claim, which was based on

the state court’s award of attorney’s fees.

The district court concluded it lacked jurisdiction to hear Mr. McIntyre’s

state-law claims. Even if it had jurisdiction over the claims, the court alternatively

held, it would exercise its discretion to abstain from hearing them, see 28 U.S.C.

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§ 1334(c)(1). And so it dismissed the state-law claims. Although it initially held the

claim objections in abeyance, it ultimately dismissed the objections too, finding that

they were “simply a re-assertion of the claims” it had “already abstained from

hearing and would be more appropriately adjudicated through state appellate

channels.” R. at 308–09.

The Bankruptcy Appellate Panel affirmed. Although it held that the

bankruptcy court erred when it decided that it lacked jurisdiction over

Mr. McIntyre’s state-law claims, it found the error to be harmless because the

bankruptcy court acted within its discretion when it alternatively opted to abstain

from hearing the claims.

II. Discussion

In an appeal from the Bankruptcy Appellate Panel, we independently review

the underlying decision from the bankruptcy court. Montoya v. Goldstein (In re

Chuza Oil Co.), 88 F.4th 849, 854 (10th Cir. 2023).

Mr. McIntyre represents himself. We typically construe a pro se party’s

filings liberally. See Mann v. Boatright, 477 F.3d 1140, 1148 n.4 (10th Cir. 2007).

That is because the typical pro se litigant lacks legal training and “is unskilled in the

law.” 5 Charles Alan Wright et al., Federal Practice and Procedure § 1286 (4th ed.

Apr. 2023 update). Given the reason behind our practice, we have withheld the

courtesy of a liberal construction from licensed attorneys appearing pro se. See, e.g.,

Mann, 477 F.3d at 1148 n.4. Mr. McIntyre used to be a licensed attorney, but he has

been disbarred. Because he has legal training, we will not afford his filings the

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liberal construction typically extended to pro se litigants. And even if we liberally

construed his filings, the outcome of this appeal would remain the same.

We lack jurisdiction to review the bankruptcy court’s permissive abstention.

See § 1334(d). We therefore dismiss Mr. McIntyre’s challenge to the bankruptcy

court’s decisions to abstain from hearing his state-law claims and his claim

objections.

We may, however, consider Mr. McIntyre’s argument that the bankruptcy

court lacked any authority to abstain because it had (through the district court)

exclusive jurisdiction over his claims. See Strong v. W. United Life Assurance Co.

(In re Tri-Valley Distrib., Inc.), 533 F.3d 1209, 1217 (10th Cir. 2008). “Jurisdiction

is a question of law we review de novo.” Jones v. Bank of Santa Fe (In re Courtesy

Inns, Ltd.), 40 F.3d 1084, 1085 (10th Cir. 1994).

Mr. McIntyre’s argument lacks merit. The bankruptcy courts derive their

jurisdiction from the district courts. See 28 U.S.C. § 157. The district courts have

“original and exclusive jurisdiction of all cases under title 11,” and they have

“original but not exclusive jurisdiction of all civil proceedings arising under title 11,

or arising in or related to cases under title 11.” § 1334(a), (b). We agree with the

Bankruptcy Appellate Panel that Mr. McIntyre’s claims were related to his

bankruptcy case. See Gardner v. United States (In re Gardner), 913 F.2d 1515, 1518

(10th Cir. 1990) (per curiam) (recognizing that a proceeding is related to a

bankruptcy case if its outcome could conceivably have any effect on the bankruptcy

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estate). For that reason, the bankruptcy court had “original but not exclusive

jurisdiction” over them. § 1334(b).

Yet Mr. McIntyre contends that the bankruptcy court had exclusive

jurisdiction over his claims because the district court had exclusive jurisdiction over

all of his property and the property of the estate (including the claims themselves).

See § 1334(e)(1). This argument treats “two conceptually distinct jurisdictional

grants” as if they were the same. Valley Hist. Ltd. P’ship v. Bank of New York,

486 F.3d 831, 837 (4th Cir. 2007). Section 1334(b) “invests district courts with

original but not exclusive jurisdiction over civil proceedings. In contrast, § 1334(e)

is a broad grant of exclusive jurisdiction over a debtor’s property; it does not invest

district courts with jurisdiction to conduct civil proceedings.” Id. (internal quotation

marks omitted). In other words, § 1334(b) governs the bankruptcy court’s

jurisdiction to hear Mr. McIntyre’s claims. And that section is clear: The bankruptcy

court’s jurisdiction was not exclusive.

Hafen v. Adams (In re Hafen) does not suggest otherwise. Mr. McIntyre

highlights language in Hafen saying, for example, that “jurisdiction to determine

what is property of the bankruptcy estate lies exclusively with the bankruptcy court.”

616 B.R. 570, 578 (B.A.P. 10th Cir. 2020). But Hafen did not address a bankruptcy

court’s jurisdiction to hear civil proceedings. Hafen held that the bankruptcy court

had exclusive jurisdiction to decide who had standing to pursue causes of action that

had been filed in state court because the standing question turned on whether the

causes of action belonged to the estate. Id. at 578–80. Hafen says nothing about

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whether the bankruptcy court had exclusive jurisdiction to adjudicate those causes of

action.

To the extent Mr. McIntyre argues that the bankruptcy court could not abstain

from hearing his claims or his claim objections because they were core proceedings,

he is mistaken. Section 1334(c)(1), the provision authorizing permissive abstention,

“applies to core matters as well as to related matters.” 1 Collier on Bankruptcy

¶ 3.05[1] (16th ed. 2023).

Before concluding, we note two arguments that Mr. McIntyre alludes to but

has waived. In his statement of the issues, he asserts that the bankruptcy court

abused its discretion by lifting the automatic stay, see 11 U.S.C. § 362. But his

opening brief never develops an argument addressing the automatic stay, so he has

waived any such argument. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679

(10th Cir. 1998). In his reply brief, he asserts that the bankruptcy court did not

abstain from hearing his claim objections but instead entered “a sua sponte 12(b)(5)

dismissal of the objections.” Aplt. Reply Br. at 3. But he “waived this contention by

waiting to present it for the first time in his reply brief.” White v. Chafin, 862 F.3d

1065, 1067 (10th Cir. 2017). And even if it had appeared in his opening brief, the

stray sentence disputing that the bankruptcy court abstained from hearing the

objections would not have adequately presented the issue for our review. See

Eizember v. Trammell, 803 F.3d 1129, 1141 (10th Cir. 2015).

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III. Disposition

We dismiss Mr. McIntyre’s challenges to the bankruptcy court’s permissive

abstention. We otherwise affirm.

Entered for the Court

Allison H. Eid Circuit Judge