Jay Clark v. Tom Devries

Jun 15, 2016
14-35242
Versions:652 F. App'x 543

Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.

MEMORANDUM**

Jay Clark, d/b/a Crystal Springs Ranch (Debtor), appeals an order of the district court affirming the bankruptcy court‘s conversion of his Chapter 12 case into one under Chapter 7. We have jurisdiction under 28 U.S.C. § 158(a),(d). Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764, 770 (9th Cir.2008) ([A] bankruptcy court order converting a case from one under another chapter of the Bankruptcy Code to one under Chapter 7 is a final and appealable order.). We affirm.

1. Although Debtor moved voluntarily to dismiss his Chapter 12 petition, the district court had the power to instead convert the case to one under Chapter 7 upon a showing that the debtor has committed fraud in connection with the case. 11 U.S.C. § 1208(d); see also In re Rosson, 545 F.3d at 774 (holding that a Chapter 13 debtor‘s right to voluntary dismissal under 11 U.S.C. § 1307 is not absolute, but is qualified by the authority of a bankruptcy court to deny dismissal on grounds of bad-faith conduct).

2. The bankruptcy judge‘s decision to convert Debtor‘s case to Chapter 7 was not an abuse of discretion. See Levesque v. Shapiro (In re Levesque), 473 B.R. 331, 335 (B.A.P. 9th Cir.2012) (We review an order regarding conversion of a case for abuse of discretion.). After a state court declared that Debtor had no right to possess or enter Crystal Springs Farm, and while his Chapter 12 case was pending, Debtor entered a contract with DeVries for the sale of 1500 tons of alfalfa hay to be grown on that land. Debtor did not disclose the state court‘s ruling to DeVries, received $135,000 as a down payment on the hay, and failed to deliver the hay to DeVries. Debtor‘s purported belief that he had a legal right to the hay does not render immaterial the information he omitted telling DeVries—that a state court had determined he had no right to possess or even enter the land on which the hay grew. Debtor clearly understood the state court‘s determination, and nevertheless failed to disclose it. The bankruptcy judge thus reasonably rejected Debtor‘s claim that he operated in good faith.

AFFIRMED.

Brent Taylor Robinson, I, Esquire, Bankruptcy Counsel, Robinson & Tribe, Rupert, ID, for Appellant.

Kelly Greene McConnell, Alex P. McLaughlin, Attorney, Givens Pursley LLP, Boise, ID, for Appellees Tom DeVries, DeVries Family Farm, LLC.

Steven F. Schossberger, Esquire, Hawley Troxell Ennis & Hawley LLP, Boise, ID, for Appellee Murphy Land Company, LLC.

Craig W. Christensen, Attorney, Craig W. Christensen, Chartered, Pocatello, ID, for Appellee Simplot Grower Solutions.

Robert Rosenthal, Esquire, Attorney, Howard & Howard, Las Vegas, NV, for Plaintiff-Appellant.

Pamela Allen, California Nurses Association, National Nurses Organizing Committee, Nicole Daro, Legal Counsel, California Nurses Association, Oakland, CA, for Defendant-Appellee.

Before: GOULD and HURWITZ, Circuit Judges and RESTANI,** Judge.

MEMORANDUM***

Fallbrook Hospital Corporation (Fallbrook) appeals the district court‘s dismissal of its Third Amended Complaint (TAC) against the California Nurses Association/National Nurses Organizing Committee (CNA). The TAC alleged that CNA breached an implied agreement to arbitrate all disputes with Fallbrook and to bargain in good faith. We have jurisdiction under 28 U.S.C. § 1291 and we affirm the district court judgment.

1. Fallbrook‘s allegations in support of its contention that the parties entered into an implied agreement to arbitrate all disputes are either conclusory, implausible, or inconsistent with an implied arbitration agreement. See Lance Camper Mfg. Corp. v. Republic Indem. Co., 44 Cal.App.4th 194, 51 Cal.Rptr.2d 622, 628 (Cal.Ct.App. 1996) ([I]t is well settled that an action based on an implied-in-fact or quasi-contract cannot lie where there exists between the parties a valid express contract covering the same subject matter.).

Notes

**
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.
***
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.