United States Court of Appeals
For the First Circuit
No. 08-2275
IN RE: SIMPLY MEDIA, INC.,
Debtor.
__________
BRADLEY C. REIFLER,
Plaintiff,
STEVEN M. NOTINGER, CHAPTER 7 TRUSTEE,
Plaintiff, Appellee,
v.
CHRISTINA BROWN, a/k/a CHRISTINA RAGO, Individually and
in her capacity as Trustee of First Marcus Trust,
Defendant, Appellant.
__________
ELIZABETH BROWN; MARIA SCHULMAN; DUDLEY C. GOAR;
MIDDLESEX SAVINGS BANK; ANGELIKA THUMM; KATHERINE SAN FILIPPO,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin and Lipez, Circuit Judges,
and Singal,* District Judge.
*
Of the District of Maine, sitting by designation.
James V. Tabner for appellant.
Todd B. Gordon with whom Stephen F. Gordon and Gordon Haley
LLP were on brief for appellee.
May 15, 2009
Per Curiam. In the district court, Steven Notinger, the
trustee in bankruptcy of David Deaver Brown and an affiliated
corporate debtor called Simply Media, Inc., sought to recover for
the estate allegedly fraudulent payments made by Simply Media to or
for Christina Brown--David Brown's wife--individually and in her
role as trustee of the First Marcus Trust. In addition, Notinger
sought damages for Christina Brown's participation in a civil
conspiracy.
At trial, there was evidence from Notinger and his
witnesses that David and Christina Brown had formed Simply Media,
a company making (or purporting to make) CDs, and had gotten
friends to invest in it based on fictitious financial statements
and a compelling sales pitch; that the Browns used the invested
funds to pay for their personal expenses over several years
including the mortgage on their home, personal dry cleaning bills,
credit card bills, rent on their daughters' apartments, medical
bills, vacation and school tuition; and that when the funds were
exhausted, Simply Media and David Brown filed for bankruptcy.
Based on evidence received at a pre-trial hearing and
Christina Brown's trial testimony when called by Notinger, the
district judge sanctioned Christina Brown for deliberately
destroying records by precluding her from testifying as to why the
diverted corporate funds constituted legitimate business expenses.
A jury returned a verdict against Christina Brown of $1,103,508.60
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on the fraudulent transfer claim and $2,968,071 (later reduced to
$1,648,000) on the civil conspiracy claim. Christina Brown now
appeals, raising a variety of arguments of which three are
prominent and will serve as samples:
•that positions taken by Notinger in
other litigation against former board members
of Simply Media, after the jury returned a
verdict in this case, were inconsistent with
his positions in this litigation;
•that the New Hampshire Business
Corporation Act, N.H. Rev. Stat. Ann. § 293-
A:1.01 et seq. (2009), authorized the
payments, which could be regarded as serving
business ends; and
•that the spoliation sanction for
deliberate destruction of evidence imposed by
the district court was error.
We do not pass definitively on these or other arguments,
because Brown's brief does not properly present them. The
governing rule requires that an appellant's brief contain "a
statement of facts relevant to the issues submitted for review with
appropriate references to the record" and an argument "with
citations to the authorities and parts of the record on which the
appellant relies." Fed. R. App. P. 28(a)(7), (9). Brown's brief
fails to do either.
Although claiming that there are "18 issues of material
facts" that warrant revisiting the judgment, Brown's opening brief
does not once cite the trial transcript; and the separate statement
of facts in the brief is one paragraph long, with other factual
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assertions merely scattered throughout the argument section. The
brief is lengthy but much of the argument is very hard to follow.
Although many of the arguments inherently depend on legal
propositions, the brief cites only two cases.
Brown initially indicated on her transcript order form
that no transcript was necessary to our resolution of this case.
After the briefing schedule was set--well after the ten day limit
set by Fed. R. App. P. 10(b)--Brown's counsel ordered a transcript
while continuing to claim that none was necessary. Because of the
delay in ordering the transcript, Brown's brief was due before the
transcript was filed but seemingly Brown made no effort to obtain
an extension so as to supply a brief with proper citations.
Neither does Brown's brief supply the information that
would be necessary to evaluate the claims. Thus, while Notinger's
position in this case is alleged to be inconsistent with his
position in other litigation, the specific statements in each forum
are neither quoted nor documented in Brown's opening brief, and in
the reply brief it becomes clear that the supposed inconsistency is
imaginary.1 Nor is there any case law offered to show that
1
The belated documentation in the reply brief reveals that the
claim amounts to this: that Notinger's position at trial here was
that Simply Media was virtually a sham company, while in subsequent
litigation against the directors of Simply Media, Notinger claimed
damages against them for breach of fiduciary duty, alleging that
Simply Media had claimed large assets, which "had disappeared
without a trace by the time Simply Media filed its bankruptcy
petition."
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supposed inconsistencies are automatically a basis for setting
aside a judgment on appeal in the absence of any post-judgment
effort to do so in the district court.
Brown's argument under the New Hampshire Business
Corporation Act seems to be that the types of expenses that Simply
Media paid on her behalf were permitted as valid expenses necessary
to locate an office, maintain the health of officers, and so on.
No authority is offered to suggest that the statute allows a
corporation to pay personal expenses of the type and on the scale
that the evidence indicated in this case. In Brown's reply brief,
it is argued that Delaware law applied--an argument waived by
failing to make it in the opening brief. VanHaaren v. State Farm
Mut. Auto. Ins. Co., 989 F.2d 1, 7 n.6 (1st Cir. 1993).
As to the spoliation sanction, Brown says that it was
unjustified because there was "no evidence introduced of any single
document destroyed or any required document not available
elsewhere." The brief does not address or explain the extensive
evidence, presented at the pre-trial hearing and through Brown's
own testimony, supporting the district court finding that "the
Browns had deliberately and systematically destroyed nearly every
relevant corporate document they ever received or generated."
Given the deficiencies of the brief and violations of
applicable rules, we dismiss this appeal, as precedent permits,
Reyes-Garcia v. Rodriguez & Del Valle, Inc., 82 F.3d 11, 15-16 (1st
-6-
Cir. 1996), and the inadequacies of the brief require. In
addition, we direct Brown's counsel to show cause by written
response within 14 days as to why the court should not order
payment by him personally of attorney's fees and double costs for
needlessly consuming the time of the court and opposing counsel
with a brief that renders the appeal frivolous. See Fed. R. App.
P. 38; 1st Cir. R. 38.
It is so ordered.
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