                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 08 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


In re: BATAA/KIERLAND, LLC,                      No. 14-16419

              Debtor,                            D.C. No. 2:13-cv-00179-JWS


JPMCC 2007-CIBC 19 EAST
GREENWAY, LLC,                                   MEMORANDUM*

              Plaintiff - Appellee,

 v.

MAUREEN GAUGHAN, CHAPTER 11
TRUSTEE OF BATAA/KIERLAND LLC,

              Debtor - Appellant,

BATAA/KIERLAND II, LLC;
BANKERS TRUST COMPANY,

              Defendants - Appellants.


                    Appeal from the United States District Court
                            for the District of Arizona
                    John W. Sedwick, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted March 18, 2016
                           San Francisco, California

Before: BYBEE and N.R. SMITH, Circuit Judges, and KORMAN,** District Judge.

      JPMCC 2007-CIBC 19 East Greenway, LLC (“JPMCC”) brought an adversary

proceeding in the United States Bankruptcy Court against the bankruptcy debtor,

Bataa/Kierland, LLC (“Kierland I”), as well as Kierland I’s related entity,

Bataa/Kierland II, LLC (“Kierland II”), and Bankers Trust Company, a secured

creditor of Kierland II (collectively, the “Appellants”). The adversary proceeding

involved a dispute over a parking easement affecting the property of Kierland I and

Kierland II, which owns the lot adjacent to Kierland I’s. Kierland I and Kierland II

are both owed by the same corporate entity, Bataa Oil, a closed corporation whose

sole shareholders at the relevant time were David and Anne Calvin.

      JPMCC, a secured creditor of Kierland I possessing a lien against Kierland I’s

property, sought a declaratory judgment that the easement between Kierland I and

Kierland II extended to a parking garage on Kierland II’s property, thus giving

Kierland I access to the garage and consequently protecting the value of JPMCC’s

security interest in Kierland I’s property. Rather than resolve the issue in the

adversary proceeding, the bankruptcy court addressed it in its consideration of

       **
             The Honorable Edward R. Korman, District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

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Kierland I’s proposed reorganization plan in the related Chapter 11 case. In that case,

the bankruptcy court confirmed Kierland I’s proposed plan and held that the easement

did not extend to the garage on Kierland II’s property without payment of additional

compensation to Kierland II.        Based on this holding, the bankruptcy court

subsequently granted summary judgment for Appellants in the adversary proceeding.

Alleging that they were the successful parties in the adversary proceeding in which

JPMCC sought a declaratory judgment, Appellants then successfully applied for

attorneys’ fees under the Arizona fee-shifting statute, Ariz. Rev. Stat. Ann.

§ 12-341.01, which awards fees to the “successful party” in an action arising out of

a contract.

      In the first of two appeals from the bankruptcy court’s confirmation of Kierland

I’s reorganization plan, the district court vacated the confirmation order and remanded

for further proceedings. Ultimately, in the second appeal following that initial

remand, the district court ruled in JPMCC’s favor and held that, “as a matter of law,

the parking easement . . . granted [Kierland I] an easement in the continued use of the

parking spaces physically located on the Kierland II property without reimbursement

for the cost of constructing the parking garage.”

      After the first appeal of the plan confirmation and before the second, the district

court—acting on the appeal of JPMCC—reversed the bankruptcy court’s grant of


                                           3
attorneys’ fees to Appellants. The present appeal is from that order. Appellants argue

that, because the bankruptcy court granted them summary judgment in the adversary

proceeding—a      decision   from which       JPMCC      voluntarily   dismissed    its

appeal—Appellants remain the “successful” parties as to that proceeding

notwithstanding the fact that the grant of summary judgment was meaningless because

the subsequent reversal of the plan confirmation rendered Appellants the losing parties

in the contractual dispute over the easement on which they had prevailed in the

adversary proceeding. We have jurisdiction under 28 U.S.C. § 158(d)(1), and we

affirm.

      Appellants’ position overlooks the fact that JPMCC had appealed the

bankruptcy court’s grant of summary judgment, and that that appeal was dismissed

pursuant to an agreement in which the parties stipulated, as relevant here, that the

dismissal would “not prejudice [JPMCC’s] rights in any manner” in JPMCC’s appeal

of the attorneys’ fees the bankruptcy court awarded in the adversary proceeding.

Thus, the parties agreed that Appellants’ claim to attorneys’ fees would rise or fall

with the plan confirmation appeal. This is analogous to a situation where a losing

party prevails on appeal, which would result in a fees award being vacated. See, e.g.,

Tritschler v. Allstate Ins. Co., 213 Ariz. 505, 521 (Ct. App. 2006); Fry’s Food Stores

of Ariz., Inc. v. Mather & Assocs., Inc., 183 Ariz. 89, 92 (Ct. App. 1995). Because


                                          4
the related plan confirmation appeals to our court have been dismissed pursuant to a

joint stipulation, the last word on the disputed easement issue remains the district

court’s ruling in favor of JPMCC, and thus, Appellants are not the successful parties

and are not entitled to attorneys’ fees.

AFFIRMED.




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