United States Court of Appeals
For the First Circuit
No. 08-2498
IN RE: SIMPLY MEDIA, INC.,
Debtor.
__________
BRADLEY C. REIFLER; STEVEN M. NOTINGER, CHAPTER 7 TRUSTEE,
Plaintiffs, Appellees,
v.
CHRISTINA BROWN, Individually and as Trustee of the Fisher
Mountain Trust; David D. Brown,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Ripple,* and Boudin,
Circuit Judges.
James V. Tabner for appellants.
Todd B. Gordon with whom Stephen F. Gordon and The Gordon Law
Firm LLP were on brief for appellees.
October 8, 2009
*
Of the Seventh Circuit, sitting by designation.
Per Curiam. This appeal arises from the bankruptcy of
David Deaver Brown and Simply Media, Inc., and efforts by Bradley
Reifler (a creditor of Simply Media) and Steven Notinger (the
bankruptcy trustee for David Brown and Simply Media) to (1)
establish that two parcels of land in New Hampshire (denominated
parcels 67 and 68) were David Brown's property, and so part of the
bankruptcy estate, and (2) recover fraudulent transfers allegedly
made by Simply Media in paying expenses that related to the New
Hampshire parcels.
Because of deficient briefing, this court dismissed a
prior appeal by Christina Brown that involved the same appellees
and arose from the same two bankruptcies, In re: Simply Media,
Inc., 566 F.3d 234, 235 (1st Cir. 2009) (per curiam). The prior
case involved claims that Simply Media fraudulently transferred
assets located in Massachusetts and was tried to a jury verdict;
the jury returned a multi-million dollar verdict against Christina
Brown. Id.
The current dispute was heard by the bankruptcy court in
late 2007; its May 2008 final judgment favored the Browns on some
claims and Reifler and Notinger on others. Only the Browns appeal,
so we focus on the claims decided against them. First, the
bankruptcy court ruled that parcel 68 was being held by Christina
Brown in constructive trust for David Brown, making it part of his
bankruptcy estate (the court found that the other parcel, parcel
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67, was not part of the estate). Second, the bankruptcy court
found that Simply Media paid $56,585 in expenses related to the New
Hampshire parcels--including property taxes, utilities, and repair
costs--and that these payments constituted a fraudulent transfer by
the company to or for the benefit of David Brown and Christina
Brown. In making this fraudulent transfer finding, the bankruptcy
court relied partly on adverse inferences drawn from the Browns'
spoliation and non-production of relevant evidence.
The bankruptcy court's final judgment required Christina
Brown to turn over parcel 68 to the bankruptcy trustee by executing
a quitclaim deed and held David Brown and Christina Brown obligated
to pay $56,585 to the bankruptcy trustee. The Browns appealed, and
the district court affirmed these rulings (save that it required a
readjustment in pre-judgment interest). This appeal from the
district court's affirmance followed.
We do not reach any of the issues on the merits. The
Federal Rules of Appellate Procedure require that an appellant's
brief provide "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)(A). The Browns' briefing does not meet either requirement, and
it does not adequately present any issue for our review.
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Despite its length, the Browns' opening brief leaves
unclear what claims are being advanced and what facts bear on what
claims. Although many of its arguments turn on legal propositions,
it cites only three cases not connected to this appeal, and does
not seriously engage with any of the precedents that might bear on
any issue in this appeal. Despite numerous factual assertions, the
brief rarely provides citations to the record. The occasional
quotations from portions of the trial transcript do not provide
support for the bulk of the brief's factual assertions.
The deficiencies in the appellants' brief are
unsurprising because much has been taken verbatim from Christina
Brown's brief in the prior appeal. This borrowing might not be
surprising because the two appeals involve some similar facts and
issues; as we previously found the prior brief inadequate,
borrowing merely perpetuates that inadequacy. Strikingly, the most
prominent arguments in the present appeal are ones that this court
already found to be inadequate on the prior appeal:
--that the New Hampshire Business Corporation
Act, N.H. Rev. Stat. § 293-A:1.01 et seq.
(2009), authorized Simply Media to pay
expenses for an office and so the expenses it
paid cannot be a fraudulent transfer;
--that Simply Media was not a business sham,
as allegedly illustrated by the fact that
Notinger separately sued three of Simply
Media's former board members; and
--that spoliation sanctions were unwarranted
because no evidence of spoilation was produced
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and because the same documents could be
obtained from third-parties.
We addressed these issues in the prior appeal, In re: Simply Media,
Inc., 566 F.3d at 236, and explained why the briefing did not
develop law or facts in support of the claims and why they were
facially unpersuasive.
Given the deficiencies of the present briefing, we
dismiss this appeal, Reyes-Garcia v. Rodriguez & Del Valle, Inc.,
82 F.3d 11, 15-16 (1st Cir. 1996), and order Brown's counsel of
record 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, double costs or both for a brief that renders the appeal
frivolous. See Fed. R. App. P. 38; 1st Cir. R. 38.0.
It is so ordered.
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