Fiduciary Trust International of California et al v. Tower Park Properties LLC
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|Date Filed||#||Document Text|
|July 18, 2013
ORDER RE MOTION TO DISMISS APPEAL 13 by Judge George H. King remanding case to the U. S. Bankruptcy Court. Because we decline to impose judicial estoppel, factual issues prevent us from deciding whether this appeal is moot. In particular, TPP arg ues that the Conditional Provisions are not void because the parties to the Settlement did not intend the February 15 deadline to have any material importance. FTIC disputes this account and argues that the Conditional Provisions are void. Accordingl y, we REMAND the issue to the bankruptcy court to create a fuller record and consider in the first instance whether the Settlement Agreement is void. See Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1183-84 (9th Cir. 2002) (remanding to district court factual issues dispositive of mootness); see also Wright, et al., Federal Practice and Procedure, § 3533.10.3, Other Mootness on Appeal (April 2013) (explaining that [i]f the appellate court is unsure of the facts, it is common to remand for con sideration of mootness by the lower court). This appeal is STAYED pending further proceedings in the bankruptcy court that we direct here. If the bankruptcy court determines that the Settlement Agreement is void, this appeal shall be dismissed as moot. If the bankruptcy court determines otherwise, the Parties may seek to vacate the stay and proceed with this appeal, if appropriate. Case number: 2:08-bk-20298-BR, Adversary number: N/A. (shb)
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