                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 3, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 In re: REBECCA KREUTZER;
 M ICHAEL KREUTZER,

               Debtors,

 JIM M Y GID DENS, M .D.,

               Appellant,
                                                         No. 06-5127
          v.                                  (D.C. No. 05-CV-0725-CVE-FHM )
                                                         (N .D. Okla.)
 REBECCA K REU TZER; M ICH AEL
 KREUTZER; FELICIA S. TURNER,
 as U.S. Trustee,

               Appellees,

 KATHERINE M . VANCE, Bankruptcy
 Trustee; STEVEN W . SOULE,

               Trustees.



                            OR D ER AND JUDGM ENT *


Before M cCO NNELL, M cKA Y, and TYM KOVICH, Circuit Judges.




      Rebecca and M ichael Kreutzer petitioned for Chapter 7 bankruptcy relief


      *
        This order and judgment is not binding precedent, except under the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.
after post-surgical complications allegedly caused M rs. Kreutzer to lose her

employment and incur extensive medical bills. At the time they filed their

bankruptcy petition, the Kreutzers failed to list their accrued but not-yet-filed

medical malpractice claim against Appellant, Dr. Jimmy Giddens, as a potential

estate asset. Even after later filing a malpractice action against Dr. Giddens, the

Kreutzers neglected to supplement their bankruptcy petition to include the

malpractice claim. They thereafter received a no-asset discharge, and their

bankruptcy case was closed.

      In defending the state court malpractice action, Dr. Giddens filed a motion

to dismiss arguing, inter alia, that the Kreutzers should be judicially estopped

from pursuing the malpractice claim. According to Dr. Giddens, by not listing the

malpractice claim as an asset in the bankruptcy case, the Kreutzers manipulated

the courts by taking inconsistent positions and prejudiced Dr. G iddens.

      In an apparent attempt to undercut the force of Dr. Giddens’ motion to

dismiss, the Kreutzers returned to the bankruptcy court and filed a motion to

reopen their bankruptcy case in order to add the malpractice claim as an

unadministered asset of their estate w hile simultaneously arguing for its

exemption. Dr. G iddens objected to that motion, but his objection was overruled.

He appealed the bankruptcy court’s decision to reopen the Kreutzers’ bankruptcy

case to the district court. The district court, following the magistrate judge’s

detailed report and recommendation, concluded that Dr. Giddens lacked standing

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to appeal and, in the alternative, that judicial estoppel did not apply to the

bankruptcy proceedings. Dr. Giddens now appeals to this court.


                                     ANALYSIS

      W e review issues of standing de novo. Vermejo Park Corp. v. Kaiser Coal

Corp. (In re Kaiser Steel Corp.), 998 F.2d 783, 788 (10th Cir. 1993). W hile the

Bankruptcy Code does not articulate a standard for appellate standing, the Tenth

Circuit consistently has adopted the “person aggrieved” standard, under which

appellate review is available only to “those persons whose rights or interests are

directly and adversely affected pecuniarily by the decree or order of the

bankruptcy court.” Holmes v. Silver Wings Aviation, Inc., 881 F.2d 939, 940

(10th Cir. 1989) (internal quotation marks omitted). This narrow standing

requirement “is more stringent . . . than the ‘case or controversy’ standing

requirement of Article III,” Nintendo Co. v. Patten ( In re Alpex Computer Corp.),

71 F.3d 353, 357 n.6 (10th Cir. 1995) (internal quotation marks omitted), because

it is designed to limit appellate standing “in order to avoid endless appeals

brought by a myriad of parties who are indirectly affected by every bankruptcy

court order,” Lopez v. Behles (In re Am. Ready M ix, Inc.), 14 F.3d 1497, 1500

(10th Cir. 1994) (internal quotation marks omitted).

      Accordingly, to qualify as a person aggrieved, Dr. Giddens w ould have to

show that the bankruptcy order at issue “diminish[ed his] property, increas[ed his]



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burdens, or impair[ed his] rights.” Id. (internal quotation marks omitted). Dr.

Giddens argues that he qualifies as a “person aggrieved” because “the bankruptcy

court’s order directly ‘impaired’ [his] substantive right to present a judicial

estoppel defense in the underlying [medical malpractice] litigation.” (A plt.’s

Opening Br. at 18.) However, “[t]he mere act of reopening a closed

bankruptcy . . . is a purely ministerial act with no legal significance for the

underlying bankruptcy,” Quarles v. M alloy (In re Quarles), 2007 W L 171913, at

*5 (N.D. Okla. Jan. 18, 2007), let alone for an independent tort action. M oreover,

while “[t]he bankruptcy court’s decision to reopen the case has an indirect effect

on [Appellant’s] defense in a separate lawsuit, . . . this does not mean that [he

has] a ‘particular and direct stake’ in the underlying bankruptcy proceedings.”

Id.; see Riazuddin v. Schindler Elevator Corp. (In re Riazuddin), 363 B.R. 177,

183 (B.A.P. 10th Cir. 2007) (“Under the analysis of [In re Alpex, 71 F.3d 353],

Appellee’s claim that its defense in the personal injury case may be affected by

the reopening is insufficient to give it a direct interest in the Debtors’ bankruptcy

case, and therefore, it lacked standing to oppose the motions to reopen.”); see

also Lopez v. Specialty Rests. Corp. (In re Lopez), 283 B.R. 22, 27 n.9 (B.A.P.

9th Cir. 2002) (expressing doubt that defendant in sexual harassment claim that

was not listed in bankruptcy filing would have standing to intervene on motion to

reopen).

      Rather, Dr. Giddens’ judicial estoppel defense was properly presented to

                                          -4-
the state court, which must resolve the matter after the bankruptcy court decides

whether the claim is an asset of the estate and after the Chapter 7 trustee decides

whether or not to pursue the claim. And while the trustee’s decision may affect

the viability of that defense, 1 Dr. Giddens has failed to show that reopening the

Kreutzers’ bankruptcy case “will disrupt any defense to the merits” of the medical

malpractice claim. In re Quarles, 2007 W L 171913, at *5. Indeed, at this time

Dr. Giddens’ liability is undetermined, rendering him “at most, a potential ‘debtor

of a debtor.’” In re Riazuddin, 363 B.R. at 183 (emphasis added). W e conclude

that the bankruptcy court order will have no direct effect on Dr. Giddens and that

he therefore fails to qualify as a “person aggrieved.” W e accordingly do not

decide whether the Kreutzers should be judicially estopped in either the

bankruptcy court or state court proceedings. W e note that the bankruptcy court

order merely reopened the case; the bankruptcy court maintains the authority to

assess any penalties it deems appropriate for the Kreutzers’ failure to inform the

court of the medical malpractice claim.

      Lastly, we find no merit to Dr. Giddens’ contention that the Kreutzers lack




      1
        Depending on the trustee’s decision, Dr. Giddens’ supplemental citation
to Eastman v. Union Pac. R.R. Co., --- F.3d ----, 2007 W L 1954031 (10th Cir.
July 6, 2007), may impact the state court tort litigation.

                                          -5-
standing to reopen their own bankruptcy case. See Fed. R. Bankr. P. 5010; In re

Alpex, 71 F.3d at 356. The order of the district court is affirmed.


                                               Entered for the Court


                                               M onroe G. M cKay
                                               Circuit Judge




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