                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JUN 06 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


In re: WILLIAM ROGER UTNEHMER                    No. 13-60113
and MARIE CLAIRE UTNEHMER,
                                                 BAP No. 12-1362
              Debtors,

                                                 MEMORANDUM*
PATRICK CRULL and MARY CRULL,

              Appellants,

 v.

WILLIAM ROGER UTNEHMER and
MARIE CLAIRE UTNEHMER,

              Appellees.


                          Appeal from the Ninth Circuit
                           Bankruptcy Appellate Panel
               Pappas, Dunn, and Jury, Bankruptcy Judges, Presiding

                       Argued and Submitted January 6, 2016
                            San Francisco, California

Before: KOZINSKI, NOONAN, and O’SCANNLAIN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review the BAP de novo and apply the same standard as the BAP when

reviewing the bankruptcy court’s decision. In re Thorpe Insulation Co., 677 F.3d

869, 879 (9th Cir. 2012) (as amended). We review the bankruptcy court’s findings

of fact for clear error and its decisions on questions of law de novo. Murray v.

Bammer (In re Bammer), 131 F.3d 788, 791–92 (9th Cir. 1997) (en banc).

      1. The bankruptcy court clearly erred by finding that the Loan Agreement,

on its own, creates a partnership because the parties did not satisfy the contingency

in the Loan Agreement that would have provided the Crulls a share in the venture’s

profits—a special operating agreement never superceded the Loan Agreement, an

LLC was never formed, and, as a consequence, the loan was never re-characterized

as an equity interest. See Solomont v. Polk Dev. Co., 54 Cal. Rptr. 22, 27 (Cal. Ct.

App. 1966); Owen v. United States, 713 F.2d 1461, 1466 (9th Cir. 1983).

      Because the bankruptcy court based its holding strictly on the terms of the

Loan Agreement, it did not address the other evidence presented by the parties.

Rather than engage in fact-finding, we remand to the bankruptcy court so that it

can determine whether, looking at all the evidence, a partnership under California

law exists. See Weiner v. Fleischman, 816 P.2d 892, 895 (Cal. 1991); Nelson v.

Abraham, 177 P.2d 931, 933 (Cal. 1947); Moulin v. Der Zakarian, 12 Cal. Rptr.

572, 575–76 (Cal. Ct. App. 1961). The bankruptcy court should also consider


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whether Utnehmer had the necessary state of mind to commit a defalcation under

Bullock v. BankChampaign, N.A., 133 S. Ct. 1754 (2013), an intervening Supreme

Court decision.

      2. The Crulls have forfeited the claim that promissory estoppel establishes a

fiduciary duty because they did not make it before the bankruptcy court. In re

Cybernetic Servs., Inc., 252 F.3d 1039, 1045 n.3 (9th Cir. 2001).

      3. To the extent the Crulls validly argue in their opening brief that

Utnehmer waived or conceded the position that he was not a fiduciary at trial, this

argument has been forfeited because it was not raised before the BAP. In re

Burnett, 435 F.3d 971, 975–76 (9th Cir. 2006).

      The BAP’s decision is REVERSED and the bankruptcy court’s decision is

VACATED and REMANDED for further factual findings.




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