Unpublished Disposition, 931 F.2d 897 (9th Cir. 1988)

MEMORANDUM^* 

These two consolidated appeals¹  derive from a prior appeal, In re Kun (Hodge v. Kun) 868 F.2d 1069 (9th Cir. 1989), in which this panel, inter alia, remanded to the Bankruptcy Appellate Panel (BAP) to review the bankruptcy court's finding that certain of "Kun's ... claims and defenses also constituted harassment, were groundless, and not in good faith." Id. at 1073. We directed that "the BAP should review this finding for clear error. The BAP should then remand to the bankruptcy court. The bankruptcy court should then award whatever attorney's fees (if any) it considers appropriate in light of the BAP's and our decision in this case." Id.

The BAP, in response to the remand, held,

"Upon review of the record for clear error, we Affirm the bankruptcy court's finding that the various claims and defenses raised by Paul Kun as to the validity and enforceability of the Real Estate Agreement including the genuineness of his signature on such agreement, his whereabouts at the time his signature on such agreement was notarized, and his knowledge about the agreement and the contents thereof, constituted harassment, were groundless and not made in good faith. Accordingly, we REMAND to the bankruptcy court for final award of attorney's fees (if any) it considers appropriate in light of the 9th Circuit's decision in this case. See In re Kun, 868 F.2d 1069 (9th Cir. 1989)."

Without awaiting the result of the remand to the bankruptcy court, Kun appealed to this court, No. 89-16595, claiming that the BAP erred in its conclusion that the bankruptcy court was not clearly erroneous.

Both appellant Kun and appellee Hodge, applied to the BAP for awards of attorneys' fees. Kun sought fees for both the trial before the bankruptcy court and proceedings before the BAP. The BAP denied both appellant's and appellee's applications in an order dated January 12, 1988.

Kun appealed the denial of attorney's fees to him, No. 88-1697, claiming that as a successful litigant he is entitled to fees under Arizona statutes. A.R.S. p 12-341.01.

We find no merit in either of Kun's appeals.

The BAP, following our mandate, reviewed the bankruptcy court's findings for clear error and, finding none, remanded to the bankruptcy court for a determination of attorney's fees to Hodge. Accordingly, in No. 89-16595 we affirm the BAP.

An award of attorney's fees under the Arizona statute under the circumstances of this case is discretionary. There was no abuse of discretion in denying fees to Kun in light of the BAP's conclusion that the bankruptcy court was not clearly erroneous in finding Kun to have asserted certain defenses that were harassing, groundless and not made in good faith. Even though Kun prevailed on the appeal to the BAP and this court on the lack of enforceability of Hodge's claim against him for commission, the BAP certainly acted within its proper discretion in denying fees to Kun. Accordingly, in No. 88-1697, we affirm the BAP.

AFFIRMED as to both appeals.