Opinion
No. 14-60047 BAP No. 13-1385 No. 14-60048 BAP No. 13-1403
09-01-2016
In re: DANA C. ANDREWS, Debtor. JOHN R. ROBERTS, Chapter 7 Trustee, Appellant, v. ESTHER ANDREWS, as successor co-trustee and intended beneficiaries of the Andrews Family Revocable Trust; FRANK P. ANDREWS, JR., as successor co-trustee and intended beneficiaries of the Andrews Family Revocable Trust; BRENT H. ANDREWS, as successor co-trustee and intended beneficiaries of the Andrews Family Revocable Trust; F AND L PROPERTIES; ESTHER LOU LYTTON, as successor co-trustee and intended beneficiaries of the Andrews Family Revocable Trust, Appellees. In re: DANA C. ANDREWS, Debtor. DANA C. ANDREWS, Appellant, v. FRANK P. ANDREWS, JR., as successor co-trustee and intended beneficiaries of the Andrews Family Revocable Trust; ESTHER LOU LYTTON, as successor co-trustee and intended beneficiaries of the Andrews Family revocable trust; BRENT H. ANDREWS, as successor co-trustee and intended beneficiaries of the Andrews Family Revocable Trust; ANDREWS FAMILY REVOCABLE TRUST, AKA Andrews Family Trust; F AND L PROPERTIES, Appellees.
NOT FOR PUBLICATION
MEMORANDUM Appeals from the Ninth Circuit Bankruptcy Appellate Panel
Kurtz, Jury, and Taylor, Bankruptcy Judges, Presiding Argued and Submitted August 10, 2016, as to No. 14-60047; Submitted August 10, 2016, as to No. 14-60048 San Francisco, California Before: GRABER and McKEOWN, Circuit Judges, and PETERSON, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3
The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2).
The Honorable Rosanna Malouf Peterson, United States District Judge for the Eastern District of Washington, sitting by designation. --------
Appellants John Roberts (Trustee) and Dana Andrews (Debtor) appeal a Bankruptcy Appellate Panel decision affirming the bankruptcy court's order granting summary judgment for Appellee Andrews Family Revocable Trust, et al., pursuant to the application of California preclusion law.
On appeal, we review de novo. Grenning v. Miller-Stout, 739 F.3d 1235, 1238 (9th Cir. 2014). Because the parties are familiar with the factual and procedural history, we do not recite them here.
Appellants assert that Debtor did not discover the alleged forgery in the power of attorney or the Restated Trust Agreement until after the Trust Contest Judgment had been entered. They argue that the "newly discovered facts" exception to claim preclusion applies under Allied Fire Protection v. Diede Construction, Inc., 25 Cal. Rptr. 3d. 195 (Ct. App. 2005). In Allied, the court held that "[r]es judicata is not a bar to claims that arise after the initial complaint is filed." Id. at 199. However, "a plaintiff will be precluded from raising these facts later if, by exercising due diligence, he or she could have discovered the relevant information before filing the initial suit." Id. at 200-01 (citing Doe v. Allied-Signal, Inc., 985 F.2d 908, 914 (7th Cir. 1993)).
In this case, the exception does not apply because, "with diligence," the Debtor would have discovered the purported fraud. As the Bankruptcy Appellate Panel noted: "The POA attached to the Trust Complaint reveals the alleged fraud on its face: Pages one and two are from the general durable POA and pages three and four are from the healthcare POA."
We have carefully considered Appellants' additional arguments and conclude that no reversible error occurred.
AFFIRMED.