No. 11-10501
______________________________
In the
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
______________________________
Netsphere, Inc., et al., Plaintiffs,
v.
Jeffrey Baron, Defendant - Appellant
Quantec, L.L.C.; Novo Point, L.L.C., Movants - Appellants
Carrington, Coleman, Sloman & Blumenthal, L.L.P., Appellant,
v.
Peter S. Vogel; Daniel J. Sherman, Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
Honorable W. Royal Furgeson, United States District Judge
______________________________
BRIEF OF APPELLANT/NON-PARTY CREDITOR
CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, L.L.P.
______________________________
J. Michael Sutherland
Thomas F. Allen, Jr.
C
ARRINGTON
,
C
OLEMAN
,
S
LOMAN
&
B
LUMENTHAL
,
L.L.P.
901 Main Street, Suite 5500
Dallas, Texas 75202
Phone: (214) 855-3000
Fax: (214) 855-1333
Counsel for Appellant/Non-Party Creditor
Carrington, Coleman, Sloman &
Blumenthal, L.L.P.
Case: 11-10501 Document: 00511593947 Page: 1 Date Filed: 09/06/2011
i
C
ERTIFICATE OF
I
NTERESTED
P
ERSONS
No. 11-10501: Netsphere, Inc., et al v. Jeffrey Baron, et al.
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of 5
TH
C
IR
.
R. 28.2.1 have an
interest in the outcome of this case.
1
These representations are made in order that
the judges of this Court may evaluate possible disqualification or recusal.
/s/ J. Michael Sutherland
J. Michael Sutherland
Attorney of Record for Appellant/Non-Party
Creditor Carrington, Coleman, Sloman &
Blumenthal, L.L.P.
1
The party designations below are taken largely from the District Court Docket in Civil
Action No. 3-09CV0988-F.
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ii
Netsphere, Inc.
(Plaintiff, Counter-Defendant)
and
Manila Industries, Inc.
(Plaintiff, Counter-Defendant)
Douglas D. Skierski
Melissa S. Hayward
Franklin Skierski Lovall
Hayward LLP
10501 N. Central Expwy., Suite 106
Dallas, TX 75231
John W. MacPete
Locke Lord Bissell & Liddell LLP
2200 Ross Avenue, Suite 2200
Dallas, TX 75201
George M. Tompkins
Tompkins, P.C.
825 Market Street
Building M, Suite 250
Allen, TX 75013
Munish Krishan
(Plaintiff, Counter-Defendant)
John W. MacPete
Locke Lord Bissell & Liddell LLP
2200 Ross Avenue, Suite 2200
Dallas, TX 75201
George M. Tompkins
Tompkins, P.C.
825 Market Street
Building M, Suite 250
Allen, TX 75013
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iii
Jeffrey Baron
2828 Trinity Mills Road, #225
Carrollton, TX 75006
(Defendant, Counter-Claimant,
Appellant)
Stephen L. Jones
Jones, Otjen & Davis
114 E Broadway, Suite 1100
Enid, OK 73701
Gary N. Schepps
Schepps Law Offices
5400 LBJ Freeway, Suite 1200
Dallas, TX 75240
Martin K. Thomas
Thomas & Sobol LLP
4826 Kelton Drive
Dallas, TX 75209
Ondova Limited Company
2828 Trinity Mills Road, #225
Carrollton, TX 75006
(Defendant, Counter-
Claimant)
Kim M. Carpenter
E. P. Keiffer
Wright Ginsberg Brusilow P.C.
Republic Center, Suite 4150
325 N. St. Paul Street
Dallas, TX 75201
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iv
Quantec, L.L.C.
(Movant, Appellant)
and
Novo Point, L.L.C.
(Movant, Appellant)
Craig A. Capua
West & Associates, L.L.P.
320 South R.L. Thornton Freeway
Suite 300
Dallas, TX 75203
Joshua Edward Cox
P. O. Box 2072
Keller, TX 76244
Thomas P. Jackson
Law Offices of Thomas P Jackson
4835 LBJ Freeway, Suite 450
Dallas, TX 75244
Gary N. Schepps
Schepps Law Offices
5400 LBJ Freeway, Suite 1200
Dallas, TX 75240
Iguana Consulting LLC
(Movant)
Craig A. Capua
West & Associates, L.L.P.
320 South R.L. Thornton Freeway
Suite 300
Dallas, TX 75203
Friedman & Feiger, LLP
(Movant)
Lawrence J. Friedman
Ryan K. Lurich
Friedman & Feiger, LLP
5301 Spring Valley Road, Suite 200
Dallas, TX 75254
Carrington, Coleman, Sloman
& Blumenthal, L.L.P.
(Creditor, Appellant)
J. Michael Sutherland
Thomas F. Allen, Jr.
Carrington, Coleman, Sloman
& Blumenthal, L.L.P.
901 Main Street, Suite 5500
Dallas, TX 75202
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v
Gary G. Lyon
(Claimant)
PRO SE
Gary G. Lyon
8951 Synergy Drive, Suite 221
McKinney, TX 75070
Simple Solutions LLC
(Interested Party)
Franklin Howard Perry
Payne & Blanchard, L.L.P.
700 N. Pearl St., Suite 500, LB 393
Dallas, TX 75201-7471
Fee, Smith, Sharp &
Vitullo, LLP
5005 Greenville Ave., #200
Dallas, TX 75206
(Interested Party)
Darrell W. Cook
Stephen W. Davis
Darrell W Cook & Associates
One Meadows Building
5005 Greenville Ave., Suite 200
Dallas, TX 75206
Sidney B. Chesnin
(Interested Party)
PRO SE
Sidney B. Chesnin
Law Office of Sidney B Chesnin
4841 Tremont, Suite 9
Dallas, TX 75246
Broome Law Firm, PLLC
(Interested Party)
Stanley D. Broome
Broome Law Firm, PLLC
1155 W. Wall Street, Suite 102
Grapevine, TX 76051
Pronske & Patel, P.C.
(Notice Only)
Gerrit M. Pronske
Rakhee Patel
Pronske & Patel, P.C.
2200 Ross Avenue, Suite 5350
Dallas, TX 75201
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vi
Dean W. Ferguson
Law Office of
Dean W. Ferguson
4715 Breezy Point Drive
Kingwood, TX 77345
(Notice Only )
Dean W. Ferguson
Locke Lord Bissell & Liddell LLP
2200 Ross Avenue, Suite 2200
Dallas, TX 75201-6776
Receiver for
Defendant Jeffrey Baron
(Receiver, Appellee)
Barry M. Golden
Peter Lawrence Loh
Peter S. Vogel
Gardere Wynne Sewell LLP
1601 Elm Street, Suite 3000
Dallas, TX 75201-4761
Gary Schepps
(Objector)
Gary N. Schepps
Schepps Law Offices
5400 LBJ Freeway, Suite 1200
Dallas, TX 75240
Daniel J. Sherman
Sherman & Yaquinto, L.L.P.
509 N. Montclair Avenue
Dallas, TX 75208
(Bankruptcy Trustee, Appellee)
Curt M. Covington
Richard M. Hunt
Lee J. Pannier
Dennis L. Roossien
Raymond J. Urbanik
Munsch Hardt Kopf & Harr, P.C.
500 N. Akard Street
3800 Lincoln Plaza
Dallas, TX 75201-6659
Aldous Law Firm
(Intervenor)
Charla G. Aldous
Aldous Law Firm
2311 Cedar Springs Road, Suite 200
Dallas, TX 75201
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vii
Rasansky Law Firm
(Intervenor)
Jeffrey H. Rasansky
Robert E. Wolf, Jr.
Rasansky Law Firm
2525 McKinnon St., Suite 625
Dallas, TX 75201
Mark L. Taylor
(Intervenor)
PRO SE
Mark L. Taylor
Powers Taylor LLP
8150 N. Central Expwy, Suite 1575
Dallas, TX 75206
Verisign, Inc.
(Intervenor)
Allen W. Yee
Vinson & Elkins LLP
Trammell Crow Center
2001 Ross Avenue, Suite 3700
Dallas, TX 75201
Amica Mutual Insurance
Company
(Objector)
Stafford Grigsby Helm Davis
The Stafford Davis Firm PC
305 S. Broadway Avenue, Suite 406
Tyler, Texas 75702
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viii
S
TATEMENT
R
EGARDING
O
RAL
A
RGUMENT
Appellant Carrington, Coleman, Sloman & Blumenthal, L.L.P. (“CCSB”)
believes that oral argument is not likely to aid the Court’s decisional process. With
regard to CCSB’s single issue on appeal, the relevant facts are few and undisputed.
In the event, however, that the Court grants oral argument to any other party to this
appeal, CCSB requests the opportunity to participate at that argument.
Case: 11-10501 Document: 00511593947 Page: 9 Date Filed: 09/06/2011
ix
T
ABLE OF
C
ONTENTS
Certificate of Interested Persons ................................................................................. i
Statement Regarding Oral Argument .................................................................... viii
Table of Contents ...................................................................................................... ix
Table of Authorities ................................................................................................... x
Statement Regarding Jurisdiction .............................................................................. 1
Statement of the Issues ............................................................................................... 2
Statement of the Case ................................................................................................. 3
Statement of Facts ...................................................................................................... 4
Summary of the Argument ......................................................................................... 7
Argument.................................................................................................................... 8
I.
Standard of Review.......................................................................................... 8
II.
The District Court Abused Its Discretion in Ordering That CCSB Receive
Nothing From the Receivership Proceeds. ...................................................... 8
Conclusion and Prayer ............................................................................................. 11
Certificate of Service ............................................................................................... 13
Certificate of Compliance With Rule 32(a) ............................................................. 14
Case: 11-10501 Document: 00511593947 Page: 10 Date Filed: 09/06/2011
x
T
ABLE OF
A
UTHORITIES
C
ASES
Alonso v. Trigueros,
369 Fed. App’x 178 (2d Cir. 2010) ...................................................................... 8
In re Ondova Ltd. Co.,
No. 09-34784 (Bankr. N.D. Tex.) ..................................................................... 4, 9
Liberte Capital Group, LLC v. Capwill,
148 Fed. App’x 426 (6th Cir. 2005) ..................................................................... 9
Quilling v. Trade Partners, Inc.,
572 F.3d 293 (6th Cir. 2009) ................................................................................ 8
Sec. & Exch. Comm’n v. Forex Asset Mgmt. LLC,
242 F.3d 325 (5th Cir. 2001) .......................................................................... 8, 10
Sec. & Exch. Comm’n v. Wealth Mgmt. LLC,
628 F.3d 323 (7th Cir. 2010) .......................................................................... 8, 10
Sec. & Exch. Comm’n v. Malek,
397 Fed. App’x 711 (2d Cir. 2010) ...................................................................... 9
United States v. Durham,
86 F.3d 70 (5th Cir. 1996) .................................................................................... 8
O
THER
A
UTHORITIES
F
ED
.
R.
A
PP
.
P. 32(a)(5) ........................................................................................... 14
F
ED
.
R.
A
PP
.
P. 32(a)(6) ........................................................................................... 14
F
ED
.
R.
A
PP
.
P. 32(a)(7)(B) ...................................................................................... 14
F
ED
.
R.
A
PP
.
P. 32(a)(7)(B)(iii) ................................................................................ 14
Case: 11-10501 Document: 00511593947 Page: 11 Date Filed: 09/06/2011
1
S
TATEMENT
R
EGARDING
J
URISDICTION
CCSB takes this appeal and files this Brief subject to and without waiver of
its previously-filed Motion to Dismiss in Part and to Lift Stay, or to Abate, and
Reply in support, which CCSB hereby incorporates by reference. It is CCSB’s
position that this Court does not have jurisdiction to hear an appeal from the
district court’s May 18, 2011 Order. The Court lacks jurisdiction because CCSB
timely filed a Motion to Reconsider or to Alter or Amend the district court’s Order,
which rendered the Baron Appellants’ notice of appeal from the Order ineffectual
and thus deprives this Court of jurisdiction. (Doc. 613 [Record Excerpt (“RE”)
Tab 5]) CCSB filed its own Conditional Notice of Appeal from that Order out of
an abundance of caution (Doc. 614 [RE Tab 2]), but maintains that the district
court must be given the opportunity to hear CCSB’s Motion to Reconsider before
this Court entertains any appeal of the Order itself.
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2
S
TATEMENT OF THE
I
SSUES
1. Does the Order, as entered by the district court, constitute an abuse of
discretion by approving the Receiver’s proposed distribution of
Receivership assets, when:
a. CCSB has presented uncontroverted evidence that Baron, the
Receivership target, is jointly and severally liable with his
company, Ondova Limited Company, for CCSB’s unpaid attorney’s
fees;
b. the Order directs that the claims by certain other attorneys for their
unpaid fees be paid in full from the Receivership assets, but that
CCSB receive nothing for its attorney’s fee claim; and
c. the only rationale for doing so is an alleged hearsay statement by
the Trustee in the Ondova bankruptcy proceeding that CCSB might
someday be paid something in that proceeding?
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3
S
TATEMENT OF THE
C
ASE
This appeal arises out of a receivership action currently pending in district
court in the Northern District of Texas. The Receivership concerns multiple claims
by various attorneys for attorney’s fees incurred, yet never paid, by Jeffrey Baron.
(Doc. 575 [RE Tab 3]) One of the claimants is CCSB, which presented
uncontroverted evidence that Baron and his company, Ondova Limited Company,
are jointly and severally liable to CCSB for at least $224,233.27 in unpaid fees.
(Ex. 9 to Apr. 28, 2011 Hearing [8 Supp. USCA5 208, 292] [RE Tab 6]; 8 Supp.
USCA5 304)
The Receiver filed a proposed distribution plan that would pay some of the
attorney’s fees claims in full, but would pay nothing on other claims, including
CCSB’s claim. (Doc. 570) On May 18, 2011, CCSB objected (Doc. 572
[RE Tab 4]), but later that same day, the district entered its Findings of Fact,
Conclusions of Law, and Order on Assessment and Disbursement of Former
Attorney Claims (the “Order), essentially adopting the Receiver’s plan. (Doc. 575
[RE Tab 3]) Also on the same day, Baron, Novo Point, LLC, and Quantec, LLC
(the “Baron Parties”) filed their Notice of Appeal from the Order, as well as from
twenty-nine other interlocutory orders. (Doc. 576) CCSB filed a Motion to
Reconsider or to Alter or Amend the Order (“Motion to Reconsider”) (Doc. 613
[RE Tab 5]), and also a Conditional Notice of Appeal. (Doc. 614 [RE Tab 2])
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4
S
TATEMENT OF
F
ACTS
The subject of this Receivership action is Jeffrey Baron, along with one or
more of his companies. The Receivership action concerns Baron’s serially
engaging a large number of lawyers, accepting their services, but failing to pay the
lawyers’ fees. (Doc. 575 [RE Tab 3]) After his related company, Ondova Limited
Company (“Ondova”), sought Chapter 11 bankruptcy protection (the “Ondova
bankruptcy”),
2
the bankruptcy Trustee initiated this receivership action against
Baron and others. (Doc. 123) The district court appointed the Receiver on
November 24, 2010. (Doc. 124) The Receivership includes 26 or more claims by
various attorneys, including CCSB, for unpaid attorney’s fees (the “Former
Attorney Claims”), totaling $1,453,208.27. (Doc. 575 ¶ 25 [RE Tab 3])
On April 28, 2011, the district court conducted an evidentiary hearing
regarding, among other things, the disposition of the Former Attorney Claims.
(8 Supp. USCA5 208-307) At the hearing, CCSB presented uncontroverted
affidavit evidence that it was entitled to at least $224,233.27 in unpaid legal fees.
(Ex. 9 to Apr. 28, 2011 Hearing [8 Supp. USCA5 208, 292] [RE Tab 6]; 8 Supp.
2
In re Ondova Ltd. Co., No. 09-34784 (Bankr. N.D. Tex.).
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5
USCA5 304)
3
These fees were owed, jointly and severally, by Ondova and Baron.
(Ex. 9 to Apr. 28, 2011 Hearing [8 Supp. USCA5 208, 292] [RE Tab 6])
On May 13, 2011, the Receiver filed his proposed Findings of Fact,
Conclusions of Law, and Order on Assessment and Disbursement of Former
Attorney Claims [Corrected Version] (the “Proposed Findings”). (Doc. 570) In
this document, the Receiver proposed that certain of the unpaid lawyers be paid in
full from the Receivership proceeds for their attorney’s fee claims. (Id. Ex. A
¶ 25) But the Receiver also proposed that CCSB receive nothing from the
Receivership proceeds for its claim because the Trustee in the Ondova bankruptcy
proceeding “ha[d] advised the Receiver that [CCSB’s] claim will be paid through
the Ondova bankruptcy estate.” (Id. Ex. A ¶ 25, line 9 of table)
On May 18, 2011, CCSB filed its Objection to the Receiver’s Proposed
Findings of Fact, Conclusions of Law, and Order on Assessment and Disbursement
of Former Attorney Claims (“Objection”). (Doc. 572 [RE Tab 4]) But on the
same day – and apparently before it could consider CCSB’s Objection – the district
court entered the Order, which in large part adopted the Receiver’s Proposed
Findings. (Doc. 575 [RE Tab 3]) Like the Proposed Findings, the Order provided
3
In the affidavit, CCSB pointed out that under the terms of its engagement agreement
with Ondova and Baron, it was entitled to seek as much as $608,480.73 in fees. (Ex. 9 to
Apr. 28, 2011 Hearing [8 Supp. USCA5 208, 292] [RE Tab 6])
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6
that certain of the former attorneys would be paid in full, others would receive
partial payment, but that CCSB would receive nothing. (Id. ¶ 25) While the Order
purported to allocate Receivership assets among the Former Attorney Claims, it
did not identify where the money would come from. (Id. ¶ 35) Indeed, at the time
of the April 28 hearing, the Receiver was still attempting to locate these funds.
(8 Supp. USCA5 301-14)
4
Shortly thereafter – also on May 18, 2011 – the Baron Parties prematurely
filed their Notice of Appeal, in which they purported to appeal from 30 separate
interlocutory orders, including the Order. (Doc. 576) On May 24, 2011, the
district court entered an order staying “further action in the various matters
involved in the instant appeal.” (Doc. 586) On June 15, 2011, CCSB filed its
Motion to Reconsider, in which it re-urged the issues in its Objection. (Doc. 613
[RE Tab 5]) To preserve its right to test the merits of the Order on appeal in the
event its Motion is denied, and out of an abundance of caution, CCSB also filed on
June 15 its own Conditional Notice of Appeal from the Order. (Doc. 614
[RE Tab 2])
4
CCSB does not seek to become involved in the larger issues between the Receiver and
Baron relating to the propriety or conduct of the Receivership. Rather, CCSB’s objective
is simply to preserve its rights – as holder of an obligation owed jointly and severally by
both the Ondova bankruptcy estate and Baron – to receive its ratable share of any
Receivership distributions, if and when made, leaving any reimbursement, contribution,
or other reconciliation issues between the Trustee and the Receiver.
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7
On June 20, 2011, the district court informed the parties that, based on its
conversation with this Court’s clerk’s office, it was “stayed from taking further
action in the various matters involved in Mr. Baron’s appeal.” (Doc. 616) On
July 1, 2011, the district court advised the parties how it would proceed, once the
case is “back at the district court level,” as to various motions currently pending
before the court. (Doc. 630) Regarding CCSB’s Motion, the court stated that
when it was able, it would “evaluate the merits” of the Motion. (Id.) In a
supplemental advisory, the district court stated that it would also stay “orders
concerning fees to be paid to the Baron attorneys pending appeal.” (Doc. 631)
S
UMMARY OF THE
A
RGUMENT
The May 18, 2011 Order represents an abuse of discretion because it
allocates Receivership assets in a fundamentally inequitable way. The Order states
that certain of the Former Attorney Claims will be paid in full, while others,
including CCSB’s claim, will not be paid at all. The alleged statement by the
Ondova bankruptcy Trustee that CCSB would be paid from the bankruptcy estate
provides no guarantee of any payment actually being made. Nor does it provide
any reasonable basis for the court below to deny CCSB payment from
Receivership assets. Baron and Ondova are jointly and severally liable for CCSB’s
fees, yet the district court’s order essentially relieves Baron of his liability.
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8
A
RGUMENT
I. Standard of Review
This Court reviews the approval by a district court of a receiver’s
distribution plan for an abuse of discretion. See Sec. & Exch. Comm’n v. Forex
Asset Mgmt. LLC, 242 F.3d 325, 331 (5th Cir. 2001). The distribution of
receivership assets is an equitable remedy. Id.
II. The District Court Abused Its Discretion in Ordering That CCSB
Receive Nothing From the Receivership Proceeds.
Despite the district court’s broad discretion in ordering the distribution of the
Receivership’s proceeds, it abused that discretion here when it ordered that CCSB
receive nothing from the proceeds for its attorney’s fee claim, while also ordering
other Former Attorney Claims be paid in full. (Doc. 575 ¶¶ 25, 35 [RE Tab 3]) It
is well-established that receivership assets should be distributed such that
“investors with substantially similar claims to repayment receive proportionately
equal distributions.” Sec. & Exch. Comm’n v. Wealth Mgmt. LLC, 628 F.3d 323,
333 (7th Cir. 2010). To that end, this Court and other courts have “routinely
endorsed pro rata distribution plans” among receivership creditors. Id.; see also
Quilling v. Trade Partners, Inc., 572 F.3d 293, 298-301 (6th Cir. 2009); Forex,
242 F.3d at 331; United States v. Durham, 86 F.3d 70, 72-73 (5th Cir. 1996);
Alonso v. Trigueros, 369 Fed. App’x 178, 179 (2d Cir. 2010); Sec. & Exch.
Case: 11-10501 Document: 00511593947 Page: 19 Date Filed: 09/06/2011
9
Comm’n v. Malek, 397 Fed. App’x 711, 715-16 (2d Cir. 2010); Liberte Capital
Group, LLC v. Capwill, 148 Fed. App’x 426, 434-37 (6th Cir. 2005).
Here, the district court’s Order fails to effectuate an equitable distribution
among the Former Attorney Claims. Instead of a pro rata distribution of the
Receivership assets, the Court picked and chose among the various claimants,
paying some in full, while leaving others, like CCSB, without any payment
whatsoever. (Doc. 575 [RE Tab 3])
The Receiver’s stated rationale – adopted by the district court – for doing so
is entirely defective. In his Proposed Findings, the Receiver explained that he had
been “advised” that CCSB’s claim will be paid through the Ondova bankruptcy
estate. (Doc. 570 Ex. A ¶ 25; Doc. 633) Notably, the bankruptcy Trustee himself
did not make this representation to the district court; it was merely repeated as
unsubstantiated hearsay by the Receiver. (Id.) Of course, the fact that the
Receiver has been “advised” of some action that might take place in the Ondova
bankruptcy is not a guarantee that this event will actually occur.
5
Moreover,
neither the Receiver nor the Trustee has ever stated when or by what means (e.g.,
5
This Court may take judicial notice of the fact that in the Ondova bankruptcy, no plan of
reorganization seeking to pay CCSB’s claim has been filed and no other motion to permit
any pre-plan payment is pending. See In re Ondova Ltd. Co., No. 09-34784 (Bankr. N.D.
Tex.). And even if such a plan or motion were filed, any award to CCSB is subject to the
bankruptcy court’s approval. The Receiver’s undoubtedly sincere belief that these events
might come to pass does not make them any less speculative, nor does it justify the
arbitrary distribution plan contained in the Order.
Case: 11-10501 Document: 00511593947 Page: 20 Date Filed: 09/06/2011
10
by order following a motion, by order confirming a plan of reorganization, or
otherwise) CCSB can expect payment from the bankruptcy estate. A distribution
on this basis is not an exercise in equity, but rather an affirmatively inequitable
penalizing of CCSB based on the speculation of the bankruptcy Trustee. Cf.
Wealth Mgmt., 628 F.3d at 333-34 (affirming district court’s efforts to “avoid
inequity” by refusing to give certain investors preference over others); Forex, 242
F.3d at 331-32 (pro rata distribution would provide a “fair and equitable remedy”).
The district court’s elimination of CCSB’s claim was particularly troubling
in light of the fact that CCSB served as attorneys for both Jeffrey Baron and
Ondova Limited Company. Baron and Ondova are therefore jointly and severally
liable for CCSB’s attorney’s fees. (Ex. 9 to Apr. 28, 2011 Hearing [8 Supp.
USCA5 208, 292] [RE Tab 6]) The Receiver does not dispute this fact. But the
Receiver and the district court’s Order treat CCSB’s claim as if Baron were not
liable for the fees, even though he plainly is. The fact that CCSB is also permitted
to assert a claim for its fees in the Ondova bankruptcy proceeding should not
constitute a basis for eliminating Baron’s obligation and essentially wiping his
slate clean.
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11
C
ONCLUSION AND
P
RAYER
Appellant/Non-Party Creditor Carrington, Coleman, Sloman & Blumenthal,
L.L.P. respectfully prays that the Court reverse and vacate the district court’s Order
as it relates to the payment of CCSB’s attorney’s fee claim, lift any stay that is
currently in place, and remand to the district court for further proceedings.
Alternatively, and in accordance with its previously-filed Motion to Dismiss in
Part, CCSB prays that the Court dismiss the Baron Appellants’ appeal of the Order,
lift any district court stay, and remand to the district court for further proceedings,
or at least abate this appeal and lift any district court stay to allow the district court
to rule on CCSB’s Motion to Reconsider. CCSB further requests any other relief,
both legal and equitable, to which it may be entitled.
Case: 11-10501 Document: 00511593947 Page: 22 Date Filed: 09/06/2011
12
Respectfully submitted,
/s/ J. Michael Sutherland
J. Michael Sutherland
State Bar No. 19524200
Thomas F. Allen, Jr.
State Bar No. 24012208
C
ARRINGTON
,
C
OLEMAN
,
S
LOMAN
&
B
LUMENTHAL
,
L.L.P.
901 Main Street, Suite 5500
Dallas, Texas 75202
Telephone: 214-855-3000
Telecopier: 214-855-1333
Counsel for Appellant/Non-Party Creditor
Carrington, Coleman, Sloman & Blumenthal,
L.L.P.
Case: 11-10501 Document: 00511593947 Page: 23 Date Filed: 09/06/2011
13
C
ERTIFICATE OF
S
ERVICE
The undersigned hereby certifies that on September 6, 2011, the foregoing
Brief of Appellant/Non-Party Creditor Carrington, Coleman, Sloman &
Blumenthal, L.L.P. was served by the Court’s ECF System on all counsel of
record, except for the following, who was served by certified mail:
Mr. Raymond James Urbanik
Munsch, Hardt, Kopf & Harr, P.C.
Suite 3800
500 N. Akard Street
Lincoln Plaza Tower
Dallas, TX 75201-6659
/s/ J. Michael Sutherland
J. Michael Sutherland
Case: 11-10501 Document: 00511593947 Page: 24 Date Filed: 09/06/2011
14
C
ERTIFICATE OF
C
OMPLIANCE
W
ITH
R
ULE
32(
A
)
Certificate of Compliance With Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of F
ED
.
R.
A
PP
.
P.
32(a)(7)(B), as enlarged under Local Rule 32.4, because:
this brief contains 2,105 words, excluding the parts of the brief
exempted by F
ED
.
R.
A
PP
.
P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of F
ED
.
R.
A
PP
.
P.
32(a)(5) and the type style requirements of F
ED
.
R.
A
PP
.
P. 32(a)(6) because:
this brief has been prepared in a proportionally spaced typeface using
MicroSoft Word XP in 14 pt. Times New Roman (and 13 pt. for
footnotes).
/s/ J. Michael Sutherland
J. Michael Sutherland
September 6, 2011
Case: 11-10501 Document: 00511593947 Page: 25 Date Filed: 09/06/2011
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
September 08, 2011
Mr. Jeffrey Michael Sutherland
Carrington, Coleman, Sloman & Blumenthal, L.L.P.
901 Main Street
Suite 5500
Dallas, TX 75202-0000
No. 11-10501, Netsphere Incorporated, et al v. Jeffrey
Baron, et al
USDC No. 3:09-CV-988
The following pertains to your brief electronically filed on
9/6/11.
You must submit the seven paper copies of your brief required by
5 CIR. R. 31.1 within 5 days of the date of this notice pursuant
TH
to 5th Cir. ECF Filing Standard E.1.
Failure to timely provide the appropriate number of copies will
result in the dismissal of your appeal pursuant to 5th Cir. R.
42.3.
Sincerely,
LYLE W. CAYCE, Clerk
By:_________________________
Steve A. Totora, Deputy Clerk
504-310-7667
cc: Mr. Thomas Fenton Allen Jr.
Mr. Barry M. Golden
Mr. Gary N. Schepps
Mr. Raymond James Urbanik
Mr. Peter S. Vogel
Case: 11-10501 Document: 00511595811 Page: 1 Date Filed: 09/06/2011
