Kenneth Bruce Tishgart v. Timothy W. Hoffman

FILED
NOT FOR PUBLICATION FEB 20 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: KENNETH BRUCE TISHGART No. 12-60088
and LORI ANNE TISHGART,
BAP No. 12-1160
Debtors,

MEMORANDUM*
KENNETH BRUCE TISHGART and
LORI ANNE TISHGART,

Appellants,

v.

TIMOTHY W. HOFFMAN,

Appellee.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Hollowell, Pappas, and Markell, Bankruptcy Judges, Presiding

Submitted February 9, 2015**
San Francisco California

Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 Debtors Kenneth and Lori Tishgart (“Debtors”) appeal the judgment of the

Bankruptcy Court awarding $69,837.90 to the bankruptcy Trustee as the

bankruptcy estate’s interest in contingency fees received by Tishgart from his law

practice.

1. The bankruptcy court did not abuse its discretion in denying Debtors’

motion to withdraw their deemed admissions. Debtors have not supplied a

transcript of the hearing at which the court gave its reasons for denying the motion,

as was their duty on appeal. Fed. R. Bankr. P. 8009(a)(1),(4); 9th Cir. B.A.P. R.

8009-1. Without “transcripts necessary for adequate review,” summary affirmance

is appropriate. 9th Cir. B.A.P. R. 8009-1; In re Morrissey, 349 F.3d 1187, 1190-91

(9th Cir. 2003). Moreover, the court did not rely on the admissions in concluding

that Tishgart completed about half the work on the relevant cases post-petition, so

any error in denying relief from the admissions was harmless.

2. The bankruptcy court did not legally err or otherwise abuse its discretion

in awarding roughly half the contingency fees to the Trustee. The reasonable value

of services provided as of the time the bankruptcy petition was filed is a quantum

meruit determination. Fracasse v. Brent, 6 Cal. 3d 784, 786, 788 (1972).

Tishgart’s theory, that the value of pre-petition services is exclusively calculated

by multiplying the number of hours worked by an hourly rate, has been explicitly

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rejected in California, particularly in the context of contingency fee arrangements.

See Cazares v. Saenz, 208 Cal. App. 3d 279, 286-87 (1989). The court properly

identified the legal standard as a fair and reasonable division that accounts for both

the total fees recovered and the proportion of hours worked pre-petition. In re

Jess, 169 F.3d 1204, 1208 & n.4 (9th Cir. 1999). In the absence of documentation

to support Tishgart’s claims as to the number of hours he worked pre- and post-

petition on each case, and given the tension between much of his testimony and

other evidence in the record, the court was within its discretion to reject Tishgart’s

testimony as not credible, and instead to estimate the number of pre-petition hours

worked, and thus the estate’s interest, by reference to the date each case was

commenced. Padilla v. McClellan, 93 Cal. App. 4th 1100, 1107 (2001).

3. The bankruptcy court did not fail to make requisite findings of fact and

conclusions of law. The court adequately explained its findings and conclusions in

a memorandum issued with the judgment.

The Bankruptcy Court’s judgment is AFFIRMED.

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