Richard E. Oney v. Steven Marc Weinberg , 407 F. App'x 176 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: STEVEN MARC WEINBERG and No. 09-60033
DANA GRETTY WEINBERG,
BAP No. AZ-08-1281-PaDMo
Debtors.
__________________________________
MEMORANDUM *
RICHARD EUGENE ONEY and ERIN K.
COX-ONEY,
Plaintiffs - Appellants,
v.
STEVEN MARC WEINBERG and
DANA GRETTY WEINBERG,
Defendants - Appellees.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel
Jim D. Pappas, Randall L. Dunn, and Dennis Montali, Bankruptcy Judges,
Presiding
Submitted December 10, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: HAWKINS and N.R. SMITH, Circuit Judges, and PRO,** District Judge.
Appellants Richard Oney and his wife Erin Cox-Oney (“Oneys”) appeal the
Bankruptcy Appellate Panel’s decision affirming the bankruptcy court. The Oneys
contended the bankruptcy court erred by finding that certain post-insolvency
payments did not violate the trust fund doctrine under Arizona law, by allowing
Appellants Steven and Dana Weinberg (“Weinbergs”) to retain more than their
pro-rata portion of trust assets, and by granting prejudgment interest from the date
of the bankruptcy court’s order.
We review the bankruptcy court’s conclusions of law de novo, and review its
findings of fact for clear error. In re Reynoso, 477 F.3d 1117, 1120 (9th Cir.
2007). We review the grant or denial of prejudgment interest under state law for
an abuse of discretion. Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342
F.3d 1016, 1020 (9th Cir. 2003). We affirm.
The bankruptcy court made factual findings that the transfers challenged on
appeal constituted reasonable compensation for the Weinbergs’ efforts in winding
down Weinberg Cummerford Legal Group, P.C. (“WLG”). Those findings are not
clearly erroneous. Further, the Oneys are not entitled to recover more than their
**
The Honorable Philip M. Pro, United States District Judge for the
District of Nevada, sitting by designation.
2
pro rata share under Arizona’s trust fund doctrine. Dawson v. Withycombe, 163
P.3d 1034, 1057-58 (Ariz. App. 2007); A.R. Teeters & Assocs., Inc. v. Eastman
Kodak Co., 836 P.2d 1034, 1043 & n.1 (Ariz. App. 1992).
Finally, the bankruptcy court did not abuse its discretion in awarding
prejudgment interest from the date of its August 27, 2008 order because the
amount of damages was not liquidated until the bankruptcy court determined the
date of WLG’s insolvency and determined the value of the Weinbergs’ work at
WLG after WLG became insolvent. Until the bankruptcy court made these factual
determinations, the Weinbergs could not have computed the precise amount they
owed the Oneys under the trust fund doctrine. Gemstar Ltd. v. Ernst & Young, 917
P.2d 222, 237-38 (Ariz. 1996); Pueblo Santa Fe Townhomes Owners’ Ass’n, Inc.
v. Transcon. Ins. Co., 178 P.3d 485, 496 (Ariz. App. 2008).
AFFIRMED.
3