The movants refer to the individual third party defendants Dantzler, Hindery, Millman and 1

Robertson as the “New Directors,” and to the remaining company third party defendants as “Entity

Defendants.”

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

IN RE: § CASE NO. 02-30446-HDH-7

§

COOL PARTNERS, INC., §

______________________________________________________________________________

ROBERT YAQUINTO, CHAPTER 7 §

TRUSTEE FOR THE ESTATE OF §

COOL PARTNERS, INC., §

§

Plaintiff, § ADVERSARY NO. 04-3041

§

V. § CIVIL ACTION NO. 3:05-CV-0085-B

§

CHRISTIAN BRIGGS, §

§

Defendant, §

§

V. §

§

RICHARD MILLMEN, et al., §

§

Third Party Defendants. §

MEMORANDUM ORDER

Before the Court is the motion of Third Party Defendants Larry Dantzler, Leo J. Hindery,

Jr., Richard M. Millman, Timothy Robertson, Bayshore Enterprises, L.L.C., LJH Partners, L.P.,

Camber Private Investments, L.L.C., Lamont Partners, L.L.C., Data Foundation, Inc. (Delaware),

Pegasus Venture Fund FF I, L.P., Pegasus Venture Fund I, L.P., and Pegasus Venture Management,

L.L.C. (collectively “Third Party Defendants” ) for leave to appeal the Order on Motion of Third 1

 

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Party Defendants to Dismiss Third Party Complaint (doc. 125) entered in the above captioned

adversary proceeding by the bankruptcy court on December 23, 2004. Noting that there has been

no response filed, the Court nonetheless DENIES the motion for the reasons discussed, without

requiring additional briefing.

This is a motion for leave to appeal an order of the bankruptcy court denying the motion of

the Third Party Defendants to Dismiss Christian Briggs’ Third Party Complaint on December 23,

2004. The bankruptcy court previously entered orders denying the motions to dismiss of “the New

Directors” and of Christian Briggs (“Briggs”) on December 19, 2004 and December 21, 2004,

respectively. The Appellants filed the instant motion for leave to appeal and notice of appeal with

the bankruptcy court on January 3, 2005. 

I. SUBJECT MATTER JURISDICTION

Federal Bankruptcy Procedure Rules 8002(a) and 8001(b) provide that a notice of appeal or

notice for leave to appeal an order of the bankruptcy court must be filed “within 10 days of the date

of the entry of the judgment, order, or decree appealed from.” Rule 8002(a); see also Rule 8001(b).

Before the Court can consider the Third Party Defendants’ Motion, it must first determine whether

it has subject matter jurisdiction to do so. The requirement of a timely filed appeal is jurisdictional,

and may not be waived by either party. Matter of Topco, Inc., 894 F.2d 727, 733 n. 7 (5th Cir.

1990); Matter of Robinson, 640 F.2d 737, 738 (5th Cir. 1981). Although the Appellants do not

address the issue of subject matter jurisdiction, the Court has examined the issue and finds that the

motion and accompanying notice of appeal were filed with the bankruptcy court within the ten day

time period allowed by the FederalBankruptcy Rules. See id; see also Bankr. Rule 9006(a) (describing

method for calculating time under the Federal Bankruptcy Rules). See Bankr. R. 9006(a). Thus,

 

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having established jurisdiction, the Court will analyze the merits of the motion.

II. BACKGROUND

The Chapter 7 Trustee for the estate of Cool Partners, Inc. (“CPI”) in the underlying case

has brought this adversary proceeding against certain of CPI’s former directors and officers, including

Briggs, who is among those who “initially directed the affairs of CPI” or the “Old Directors.”

(Motion at 3). The Trustee alleges various tort claims committed by Briggs and other former

directors and officers during their management of CPI. (Id.). Briggs ceased his tenure as an officer

of the company in April 2000. (Id.) (citing Briggs’ Third Party Complaint Against New Directors

at ¶ 3.1).

In a second adversary proceeding filed by the Trustee, a different group of officers and

directors, the “New Directors,” have been sued for torts which allegedly took place following the

departure of the Old Directors. (Id.). Briggs has filed a Third Party Complaint against each of the

New Directors in the first lawsuit, in which he is a defendant, seeking contribution. (Id.). The Third

Party Defendants moved to dismiss Briggs’ Complaint against them on June 14, 2004. (Id.). The

bankruptcy court denied their motion on December 23, 2004. (December 23, 2004 Order). The

Third Party Defendants now seek leave to appeal that interlocutory ruling on their motion to dismiss.

III. ANALYSIS

The Third Party Defendants’ Motion for Leave to Appeal is a motion for leave to appeal an

interlocutory order of the bankruptcy court which may only be appealed upon leave of the district

court pursuant to 28 U.S.C. § 158(a) and Bankruptcy Rule 8003(a). Such leave should only be

granted when the order involves a controlling question of law over which there is substantial basis

for disagreement and for which an appeal will advance the ultimate termination of the litigation. In

 

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re Ichinose, 946 F.2d 1169, 1177 (5th Cir.1991); Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839,

844 (6th Cir. BAP 1998). The Fifth Circuit has sanctioned the application of 28 U.S.C. § 1292(b)

in deciding whether to grant interlocutory appeal in bankruptcy cases. See In re Ichinose, 946 F.2d

at 1177; see also In re Carden, 1997 WL 361898 (E.D. La. 1997). 

Applying 28 U.S.C. § 1292(b), which defines the jurisdiction of courts of appeal to review

interlocutory orders, review should be “sparingly granted and then only in exceptional cases.”

Wicheff, 215 B.R. at 844 (citing Abel v. Shugrue (In re Ionosphere Clubs, Inc.), 179 B.R. 24, 28

(S.D.N.Y. 1995)) (“[L]eave to appeal from interlocutory orders should be granted only in

‘exceptional circumstances’ because to do otherwise would ‘contravene the well-established judicial

policy of discouraging interlocutory appeals and avoiding the delay and disruption which results from

such piecemeal litigation.’”). 

The Defendants’ arguments encompass a number of factual and legal issues regarding

contribution under Texas law. (See generally, Motion). The Court will address each argument in

turn. First, the Third Party Defendants claim that Briggs cannot seek contribution against them

because the Texas Statute which allows such claims, Texas Civil Practice and Remedies Code section

33.016(a), limits contribution to defendants “from whom the claimant seeks no relief at the time of

submission.” (TCPRC § 33.016(a); Motion at 9-10). TheCourt agrees with the bankruptcy court’s

interpretation of Texas law, however, and finds that “the separate action brought by the Trustee”

against the New Directors does not Barr Briggs’ contribution suit. (Order at 3). 

Second, the New Directors claim that they may not be held liable to Briggs under the Texas

statute because they are not “joint tortfeasors.” (Motion at 10) (citing, e.g., Bonniwell v. Beech

Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984)). This issue, however, involves a fact

 

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 The Third Party Defendants also make the circuitous argument that Briggs cannot seek 2

recovery against them because the Trustee Plaintiff has no cause of action against them. The movants

base this argument on their separate motion to dismiss the Trustee’s claims which was also denied by the

bankruptcy court, and for which they have sought a separate leave to appeal. (Motion at 13).

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determination inappropriate for interlocutory appeal. Texas law defines joint tortfeasors as those

“whose tortious conduct combines as a legal cause of a single and indivisible harm to the injured

party,” and cannot be decided without making a determination of fact as to whether the New

Directors acted jointly with Briggs to cause the injury to the CPI estate. Alabama Great Southern R.R.

Co. v. Allied Chem. Corp., 501 F.2d 94, 99 n. 4 (5th Cir. 1994). Moreover, as the bankruptcy

court noted, “there is Texas authority holding that a subsequent actor, such as the Movants, may

be a joint tortfeasor.” (December 23, 2005 Order at 3) (citing Pacesetter Pools, Inc. v. Pierce Homes,

Inc., 86 S.W.3d 827 (Tex. App.–Austin 2002). The Court agrees with the bankruptcy court’s

analysis that “the basic requirements for bringing a contribution claim against [the] Movants have

been satisfied.”

Third, the Third Party Defendants object to Briggs’ claim that they are liable pursuant to

Federal Rule of Civil Procedure 14, because the rule does not create a cause of action. However, as

the movants concede, Briggs’ “brief in response to the motion to dismiss disavowed any substantive

claim under Rule 14,” thus rendering this issue moot. (Motion at 15; Briggs’ Response to New

Directors’ Motion to Dismiss Third Party Complaint at 3). 

2

Finally, Nothing in the record before ussuggests that“an immediate appeal would materially

advance the termination of the litigation”– in this instance, the underlying bankruptcy case. Wicheff,

215 B.R. at 844. The Third Party Defendants have not demonstrated how a dismissal of Briggs’

 

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claims against them would advance the CPI liquidation. Allowing such an appeal would merely serve

to delay the underlying case. See, e.g., In re Orlean, 138 B.R. 374, 376-77 (E.D.N.Y. 1992); see also

In re X-Cel, Inc., 68 B.R. 131, 133 (N.D. Ill. 1986) (denying leave to appeal order of the bankruptcy

court allowing a potential creditor an extension of time in which to file its claim). The Court thus

likewise denies the Appellants’ motion for leave to appeal on this basis. 

III. CONCLUSION

For the reasons discussed, the motion of the Third Party Defendants for Leave to Appeal

is DENIED in its entirety.

SO ORDERED.

SIGNED August 22 , 2005 nd

_________________________________

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

 

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