KIERAN BUCKLEY V. DAVID BARTENWERFER, No. 20-60021 (9th Cir. 2021)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 12 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT In re: DAVID WILLIAM BARTENWERFER; KATE MARIE BARTENWERFER, Debtors, No. U.S. COURT OF APPEALS 20-60021 BAP No. 16-1277 MEMORANDUM* -----------------------------KIERAN BUCKLEY, Appellant, v. DAVID WILLIAM BARTENWERFER; KATE MARIE BARTENWERFER, Appellees. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Brand, Jury, and Faris, Bankruptcy Judges, Presiding In re: DAVID WILLIAM BARTENWERFER; KATE MARIE BARTENWERFER, No. 20-60023 BAP No. 19-1016 Debtors, ______________________________ * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. KIERAN BUCKLEY, Appellant, v. DAVID WILLIAM BARTENWERFER; KATE MARIE BARTENWERFER, Appellees. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Taylor, Faris, and Brand, Bankruptcy Judges, Presiding In re: DAVID WILLIAM BARTENWERFER; KATE MARIE BARTENWERFER, No. 20-60024 BAP No. 16-1277 Debtors, -----------------------------DAVID WILLIAM BARTENWERFER; KATE MARIE BARTENWERFER, Appellants, v. KIERAN BUCKLEY, Appellee. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Brand, Jury, and Faris, Bankruptcy Judges, Presiding 2 Argued and Submitted July 29, 2021 San Francisco, California Before: McKEOWN and NGUYEN, Circuit Judges, and HUCK,** District Judge. As partners, David and Kate Bartenwerfer renovated a house in San Francisco, California and sold it to Kieran Buckley. Shortly after the sale, Buckley alleged defects in the house and sued the Bartenwerfers in California state court for (1) breach of contract, (2) negligence, (3) nondisclosure of material facts, (4) negligent misrepresentation, and (5) intentional misrepresentation. The jury found in Buckley’s favor on his breach of contract, negligence, and nondisclosure of material facts claims and against him on his remaining claims and awarded him damages. The Bartenwerfers filed for bankruptcy. In the bankruptcy court, Buckley initiated an adversary proceeding against the Bartenwerfers, arguing that the state court judgment against the Bartenwerfers could not be discharged in bankruptcy under 11 U.S.C. § 523(a)(2)(A), which provides that a debtor cannot discharge debt that was obtained through fraud. The bankruptcy court agreed and held that the portion of the state court judgment that was traceable to Buckley’s nondisclosure claim was nondischargable. The bankruptcy court found that the Bartenwerfers intended to deceive Buckley and held that Mr. Bartenwerfer ** The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation. 3 had actual knowledge of the false representations made to Buckley and that Mr. Bartenwerfer’s fraudulent conduct could be imputed onto Mrs. Bartenwerfer because of their partnership relationship. Additionally, the bankruptcy court declined to apply collateral estoppel in favor of the Bartenwerfers based on the jury’s findings of no intentional fraud. On appeal, the Ninth Circuit Bankruptcy Appellate Panel (“BAP”) affirmed the bankruptcy court’s collateral estoppel ruling, but, adopting the Eight Circuit’s “knew or should have known” standard from Walker v. Citizens State Bank, 726 F.2d 452 (8th Cir. 1984), remanded the imputed liability finding and instructed the bankruptcy court to determine whether Mrs. Bartenwerfer “knew or should have known” of Mr. Bartenwerfer’s fraud. On remand, after an evidentiary hearing, the bankruptcy court held that Mr. Bartenwerfer’s fraud could not be imputed onto Mrs. Bartenwerfer because she did not know of the fraud. The BAP affirmed. Buckley appeals the BAP’s decision affirming the bankruptcy court’s nondischargeability judgment in favor of Mrs. Bartenwerfer. On cross-appeal, the Bartenwerfers argue that collateral estoppel should apply to bar Buckley’s § 523(a)(2)(A) claim. We have jurisdiction under 28 U.S.C. § 158(d), and we affirm in part and reverse in part. We begin with the Bartenwerfers’ cross-appeal. The Bartenwerfers argue that collateral estoppel applies because the state court jury found in their favor on 4 Buckley’s intentional misrepresentation claim. The jury found in favor of Buckley on his nondisclosure of material facts claim against the Bartenwerfers, but not on his intentional misrepresentation claim. These two findings are conflicting, or at least ambiguous, which weigh against applying collateral estoppel. See In re Kelly, 182 B.R. 255, 258 (B.A.P. 9th Cir. 1995) (“Any reasonable doubt as to what was decided by a prior judgment should be resolved against allowing the collateral estoppel effect.”), aff’d, 100 F.3d 110 (9th Cir. 1996). We affirm on this issue. In his appeal, Buckley argues that the bankruptcy court erred by failing to apply binding Supreme Court and Ninth Circuit precedent to the question of whether to impute Mr. Bartenwerfer’s fraud onto his partner, Mrs. Bartenwerfer, and by holding that the fraud was not imputed. Buckley is correct. Applying basic partnership principles, if, in the conduct of partnership business, . . . one partner makes false or fraudulent misrepresentations of fact to the injury of innocent persons, . . . his partners cannot escape pecuniary responsibility therefor upon the ground that such misrepresentations were made without their knowledge. This is especially so when . . . the partners, who were not themselves guilty of wrong, received and appropriated the fruits of the fraudulent conduct of their associate in business. Strang v. Bradner, 114 U.S. 555, 561 (1885); see also In re Cecchini, 780 F.2d 1440, 1444 (9th Cir. 1986) (holding a partner responsible for a tortfeasor/partner’s fraud when the fraud was performed “on behalf of the partnership and in the ordinary course of the business of the partnership”), overruled in other part by Kawaauhau 5 v. Geiger, 523 U.S. 57 (1998). Mrs. Bartenwerfer’s debt is nondischargeable regardless of her knowledge of the fraud. By rejecting Strang and Cecchini, in favor of the “knew or should have known” standard, the bankruptcy court applied the incorrect legal standard for imputed liability in a partnership relationship. We reverse the bankruptcy court’s judgment regarding imputed liability against Mrs. Bartenwerfer under § 523(a)(2)(A), and we remand to the bankruptcy court with instructions to enter judgment in favor of Buckley and against Mrs. Bartenwerfer. We need not address the remaining issues raised on Buckley’s direct appeal. AFFIRMED IN PART; REVERSED IN PART AND REMANDED. 6

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