Opinion
21-16875
11-02-2022
In re: PACIFIC THOMAS CORPORATION, DBA Pacific Thomas Capital, DBA Safe Storage, Debtor, v. PACIFIC TRADING VENTURES, DBA Safe Storage Management Company, a California corporation; et al., Defendants-Appellants. KYLE EVERETT, Chapter 11 Trustee, Plaintiff-Appellee,
NOT FOR PUBLICATION
Argued and Submitted October 19, 2022 San Francisco, California
Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding D.C. No. 3:19-cv-03348-MMC
Before: HAWKINS, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM
Appellants Pacific Trading Ventures d/b/a/ Safe Storage Management Co. (PVT), and Virginia Jill Worsley appeal the district court's order affirming the bankruptcy court's judgment in an adversary proceeding brought by Kyle Everett, Chapter 11 trustee for the bankruptcy estate of the debtor, Pacific Thomas Corp. (PTC). We have jurisdiction under 28 U.S.C. § 158(d)(1), and we affirm.
This appeal follows a remand from a previous panel of this court. The prior panel vacated and remanded the bankruptcy court's judgment, noting that the bankruptcy court did not find that PTC's and PTV's conduct established a mutual and unequivocal intent to rescind the lease agreements under California contract law. See In re Pac. Thomas Corp., 716 Fed.Appx. 698, 698-99 (9th Cir. 2018).
On remand, the bankruptcy court conducted a bifurcated trial. In the first stage, the bankruptcy court found that the parties' various lease agreements and their revisions (the 2005 lease, the 2008 lease, the 2010 lease extension, and the 2012 lease amendment) were mutually rescinded by the conduct of the parties. In the second stage, the bankruptcy court awarded a turnover judgment in favor of Everett. The district court affirmed. We address each determination in turn.
I.
On remand, the bankruptcy court found the parties' performance (or lack thereof) under the various lease agreements established a "mutual and unequivocal intent to rescind" under California contract law. See id. at 698 (citing Pennel v. Pond Union Sch. Dist., 29 Cal.App.3d 832, 837 (Cal.Ct.App. 1973)). The record evidence-as reflected in financial and corporate records, corporate minutes, and statements made to third parties-supports the bankruptcy court's factual finding that the parties' conduct was directly "inconsistent with the contract." See Pennel, 29 Cal.App.3d at 838. Moreover, Appellants point to no evidence that would support a contrary conclusion. In light of the weight and consistency of the record evidence, we find no clear error in the bankruptcy court's determination that the parties mutually rescinded the lease agreements. See id. at 837-38; In re Rains, 428 F.3d 893, 900 (9th Cir. 2005) (reviewing a bankruptcy court's factual findings for clear error).
We do not consider Everett's claim that PTC and PTV entered into the various lease agreements with intent to deceive a third party by concealing rent from their secured creditors. See FPI Dev., Inc. v. Nakashima, 231 Cal.App.3d 367, 401 n.18 (Cal.Ct.App. 1991). The untimely filing of a notice of appeal deprives this court of jurisdiction to review the bankruptcy court's order. See Fed.R.Bankr.P. 8002(a)(1); In re Mouradick, 13 F.3d 326, 327 (9th Cir. 1994) ("The provisions of Bankruptcy Rule 8002 are jurisdictional."). Thus, Everett's failure to cross-appeal the bankruptcy court's adverse determination is fatal to his claim. See Fed.R.Bankr.P. 8002(a)(1).
II.
We see no evidence that the turnover award was based on an erroneous finding that the lease agreements were mutually rescinded. Appellants raise no further arguments from which the panel could consider relief from the turnover judgment. See Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010) (arguments not specifically raised in a party's opening brief are forfeited).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.