Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

MEMORANDUM^* 

Alexander Coblentz appeals the district court's order adopting the bankruptcy court's Additional Findings of Fact and Conclusions of Law. Coblentz argues that the bankruptcy court erred in: (1) finding that he consented to the bankruptcy court's jurisdiction to enter findings of fact, conclusions of law, and final judgment; (2) admitting parol evidence that Jennings received only $186,000 of the $200,000 loan; and (3) amending Jennings' complaint after final judgment to name Coblentz as an individual as well as trustee. We affirm in part and remand.

We review de novo the finding of consent to jurisdiction. See In re Castlerock Properties, 781 F.2d 159, 161, 162 (9th Cir. 1986). Coblentz objected in his answer that the bankruptcy court lacked jurisdiction to consider Jennings' claims. See Matter of Tvorik, 83 Bankr. 450, 454-55 (Bankr.W.D. Mich. 1988). Under the undisputed facts of this case, nothing more was required to preserve the objection. See In re Marill Alarm Systems, Inc., 81 Bankr. 119, 124 (S.D. Fla. 1987), aff'd, 861 F.2d 725 (11th Cir. 1988). Coblentz's approval as to form of the Findings of Fact and Conclusions of Law and Judgment did not constitute an unequivocal and unambiguous consent to jurisdiction. See Castlerock, 781 F.2d at 162-63; In re Nell, 71 Bankr. 305, 311 (D. Utah 1987). Since this is a noncore proceeding and consent to jurisdiction was absent, the bankruptcy court's findings of fact and conclusions of law were advisory only. 28 U.S.C. § 157(c) (1). We remand the bankruptcy court's findings of fact and conclusions of law to the district court for de novo review.

To preclude further appeals we discuss the other issues raised by Coblentz in his appeal to this court. We hold that the bankruptcy court did not abuse its discretion in admitting testimony that Jennings failed to receive $14,000. Under Nevada law, "the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proven by parol." Tore, Ltd. v. Church, 772 P.2d 1281, 1282 (Nev.1982). The escrow instructions provided:

Funds in the amount of $14,000 have been handled by the parties hereto outside of escrow, receipt of which are hereby acknowledged, and escrow agent is not to be concerned with same.

In admitting the parol evidence, the bankruptcy court held:

I'm not necessarily ruling on the parole evidence rule as an issue of decision but as an issue of evidence. The Court suggests at this time that we're talking now about what exactly occurred. As a matter of evidence, the parole evidence does not prohibit testimony to that effect. So I'll let you reserve any argument with respect to its legal effect as a matter of decision.

In affirming the ruling, the district court held:

The clause is either ambiguous or it simply does not address what was done with the money. Coblentz says he gave the money to Jennings. Jennings claims Coblentz kept the money as a commission. There is no independent evidence supporting either position. Judge Jones admitted parol evidence toward establishing exactly what happened to the money. Judge Jones obviously felt that the oral testimony of both parties did not change the meaning of the clause in the escrow instructions. This was correct. Additionally, as long as an ambiguity exists, parol evidence is admissible to determine the true intent of the parties. Trans Western Leasing Corp. v. Corrao Const., 98 Nev. 445, 652 P.2d 1181 (1982).

Our independent review supports that holding.

Coblentz's due process rights were not violated by the bankruptcy court's sua sponte post-judgment order amending the pleadings to name Coblentz as an individual as well as trustee in the action. Coblentz was not deprived of notice and an opportunity to be heard. Cf. Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84 (1988) (guarantor of hospital debt incurred by employee not personally served with notice of lawsuit) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). At trial, evidence was presented against Coblentz as an individual. The bankruptcy court's findings of fact referred to Coblentz as an individual. It is not error to conform the pleadings to the proof. Further, Coblentz makes no allegation that he would have presented different evidence at trial had the pleadings originally named him as an individual as well as trustee.

REMANDED TO DISTRICT COURT FOR DE NOVO REVIEW.