FILED APR 13 2018
SUSAN M. SPRAUL, CLERK
1 NOT FOR PUBLICATION U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT
2 3 UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
4 5 In re: ) BAP No. AZ-17-1141-BLKu )
6 EDWARD D. FITZHUGH, ) Bk. No. 2:13-bk-09235-PS )
7 Debtor. ) Adv. No. 2:15-ap-00101-PS )
8 )
EDWARD D. FITZHUGH, )
9 )
Appellant, )
10 )
v. ) M E M O R A N D U M1 11 )
DAVID A. BIRDSELL, Chapter 7 )
12 Trustee, )
)
13 Appellee. )
______________________________)
14 Argued and Submitted on February 23, 2018, 15 at Phoenix, Arizona 16 Filed - April 13, 2018 17 Appeal from the United States Bankruptcy Court for the District of Arizona 18 Honorable Paul Sala, Bankruptcy Judge, Presiding 19 20 Appearances: Appellant Edward D. Fitzhugh argued pro se; Terry A. Dake of Terry A. Dake, Ltd. argued for appellee 21 David A. Birdsell, Chapter 7 Trustee. 22 Before: BRAND, LAFFERTY and KURTZ, Bankruptcy Judges.
23 24 25 26
1
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th 28 Cir. BAP Rule 8024-1.
1 Appellant Edward D. Fitzhugh appeals an order revoking his 2 chapter 72 discharge under § 727(d)(1) and (d)(2). Because the 3 bankruptcy court applied an incorrect standard of law, we VACATE 4 and REMAND the order revoking discharge. However, we AFFIRM the 5 court's order denying Fitzhugh's motion to continue trial and to 6 extend discovery deadlines. 7 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY3 8 A. Events leading to the discharge revocation complaint 9 Fitzhugh, a personal injury lawyer, filed his chapter 7 10 bankruptcy case on May 30, 2013. David A. Birdsell was appointed 11 as chapter 7 trustee. Fitzhugh utilized a document preparer to 12 assist him in preparing his bankruptcy petition. He maintains 13 that the preparer made numerous mistakes in his petition. 14 Fitzhugh did not disclose in his initial schedules or 15 statement of financial affairs that he was owed any money by his 16 clients, or that he had any pending cases in which he might 17 receive or be entitled to receive a contingency fee. He also did 18 not disclose any ownership interest in any corporations or LLCs. 19 20
2
Unless specified otherwise, all chapter, code and rule 21 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The 22 Federal Rules of Civil Procedure are referred to as "Civil Rules." 23 3 Fitzhugh failed to file any record other than the relevant transcripts. We could summarily affirm on that basis. Ehrenberg 24 v. Cal. St. Univ. (In re Beachport Entm’t), 396 F.3d 1083, 1086 (9th Cir. 2005). However, considering the gravity of the matter 25 and that the bankruptcy court applied an incorrect standard of law to revoke Fitzhugh's discharge, we will review the merits of this 26 appeal. To do that, we had to review documents on the bankruptcy court's electronic docket, of which we take judicial notice. See 27 Franklin High Yield Tax–Free Income Fund v. City of Stockton, Cal.
(In re City of Stockton, Cal.), 542 B.R. 261, 265 n.2 (9th Cir.
28 BAP 2015).
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1 In Item 4 of his SOFA, Fitzhugh did not disclose any lawsuits in 2 which he was the plaintiff. 3 The bar date for objecting to Fitzhugh's discharge was 4 September 3, 2013. No timely objections being filed, Fitzhugh 5 received a chapter 7 discharge on May 27, 2014. One apparent 6 reason for the delay in entering discharge was Fitzhugh's delay in 7 filing his Financial Management Course Certificate. 8 The following items were at issue in the discharge revocation 9 action: 10 Venezia Claim 11 In February 2009, Fitzhugh entered into a 40% contingency fee 12 agreement for the prosecution of a personal injury claim for 13 Richard Venezia. A lawsuit was filed in March 2009 in state 14 court. When Fitzhugh was suspended from the practice of law in 15 March 2013, another attorney took over the litigation on a pro 16 bono basis. 17 Shortly after Fitzhugh's bankruptcy filing, the Venezia 18 matter was settled. Based on the settlement amount, Fitzhugh 19 asserted the right to a $360,000 fee and a right to recover costs 20 of $180,000 (Venezia Claim). In a letter from Venezia's current 21 attorney to Fitzhugh seeking to resolve Fitzhugh's claim for fees 22 and costs, the attorney specifically addressed Fitzhugh's 23 bankruptcy filing and the need to resolve any issues regarding the 24 interests of the bankruptcy estate before he would authorize the 25 release of any settlement funds. In response, Fitzhugh advised 26 the attorney that his bankruptcy "was a personal bankruptcy," and 27 that the fees and costs he was seeking to collect belonged to his 28 firm, "a P.C." Actually, at that time, and when Fitzhugh entered
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1 into the contingency fee agreement with Venezia, Fitzhugh was 2 operating his law practice as a sole proprietorship. He did, 3 however, create an LLC on October 21, 2013, which was five months 4 after the petition date. 5 Trustee learned of Fitzhugh's pursuit of the Venezia Claim on 6 October 26, 2013. Thereafter, counsel for Trustee requested that 7 Fitzhugh provide him with information about the Venezia Claim, 8 which was not disclosed in the initial schedules. Fitzhugh 9 advised Trustee's counsel that it was his LLC that was the 10 claimant for the fees, not him individually, and that his opposing 11 counsel had incorrectly claimed that the funds had to be turned 12 over to the bankruptcy court. 13 Three months before Fitzhugh's discharge, Trustee filed a 14 motion to approve compromise of the Venezia Claim for $300,000 15 payable to the estate. Fitzhugh objected to the settlement, and 16 at the same time sought to dismiss his chapter 7 case, maintaining 17 that he was the best person to pursue the Venezia Claim and that 18 he would deal with his creditors outside of bankruptcy. The 19 bankruptcy court denied the dismissal motion; it approved 20 Trustee's settlement of the Venezia Claim on March 21, 2014. 21 Fitzhugh later amended his schedules to identify the Venezia 22 Claim, which he then sought to exempt as wages. 23 Gilcrease/Whipp Claim 24 About one month prior to his bankruptcy filing, Fitzhugh 25 filed a fee arbitration claim with the State Bar of Arizona, 26 asserting that attorney Glynn Gilcrease, Jr. owed him money for 27 work performed and for expenses he incurred working with Gilcrease 28 on a case for a party named Whipp. Trustee learned of the
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1 Gilcrease/Whipp Claim in a telephone conversation with Fitzhugh's 2 friend, attorney Thomas Ryan, on April 28, 2014, one month before 3 Fitzhugh's discharge in May 2014. Trustee later settled the 4 Gilcrease/Whipp Claim for $10,000. Fitzhugh then amended his 5 schedules to disclose the claim. Fitzhugh never disclosed the 6 Gilcrease fee arbitration, which was pending at the time of the 7 bankruptcy filing, in his initial SOFA or any amendments thereto. 8 Carranza Claim 9 Prior to his bankruptcy filing, Fitzhugh was pursuing a claim 10 for legal fees from his former clients, the Madrigals. Fitzhugh 11 was the initial attorney for the Madrigals but later withdrew. 12 Another attorney settled the Madrigal matter for $3 million. 13 Fitzhugh claimed he was entitled to fees from the settlement. 14 Instead of suing the Madrigals himself for the disputed attorney's 15 fees, Fitzhugh assigned his fee claim to Al Carranza, who asserted 16 the claim (Carranza Claim). 17 Before and after his bankruptcy filing, Fitzhugh filed 18 pleadings in the Madrigal matter asserting that he was entitled to 19 collect the Carranza Claim. Just six days after his bankruptcy 20 filing, Fitzhugh filed a pleading in the Madrigal matter advising 21 the state court that "the law of this still pending case . . . is 22 that Edward D. Fitzhugh is Plaintiff." 23 The Madrigal matter was still being litigated as late as 24 February 2015. Fitzhugh never disclosed his interest in the 25 Carranza Claim or in the Madrigal matter, either in his initial 26 schedules and SOFA or any amendments thereto, even though these 27 matters were pending at the time of the bankruptcy filing. 28 Trustee failed to state in his complaint or establish at
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1 trial on what date he learned about the Carranza Claim and the 2 related Madrigal matter. 3 Leonard Claim 4 In November 2012, Fitzhugh entered into an agreement to 5 represent the Leonards. Fitzhugh would receive a 40% contingency 6 fee if the matter settled more than 60 days before trial and a 50% 7 contingency fee thereafter (Leonard Claim). In April 2013, 8 Fitzhugh's co-counsel, a member of the Colorado bar, filed a 9 lawsuit in Colorado on behalf of the Leonards. The Leonard matter 10 was pending at the time of Fitzhugh's bankruptcy filing, and on 11 the petition date he held rights to the Leonard Claim. Fitzhugh 12 did not disclose his interest in the Leonard Claim in his initial 13 or any amended schedules. Trustee learned of the Leonard Claim in 14 September 2015. Ultimately, the Leonards sued Fitzhugh for his 15 alleged mishandling of their case; the estate received no money 16 for the Leonard Claim. 17 B. Trustee's discharge revocation complaint and trial 18 Trustee filed a complaint seeking to revoke Fitzhugh's 19 discharge under § 727(d)(1) and (d)(2) for intentionally failing 20 to disclose or making false representations about the Venezia 21 Claim, the Gilcrease/Whipp Claim, and the Carranza Claim,4 and 22 intentionally failing to disclose his involvement in the Gilcrease 23 fee arbitration and the Madrigal matter related to the Carranza 24 25 4 Trustee did not yet know about the Leonard Claim, so it was not part of the complaint. However, the documents referenced 26 above were presented at trial. Fitzhugh testified about the Leonard Claim without objection, but then later objected to 27 Trustee's admission of the documents supporting the Leonard Claim on the basis of relevance, which the court overruled and Fitzhugh 28 does not contest on appeal.
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1 Claim. In Fitzhugh's answer filed by his then-attorney, Lyndon 2 Steimel, Fitzhugh denied Trustee's allegation that he was entitled 3 to contingency fees in any of the matters at the time of his 4 bankruptcy filing. 5 At a pretrial conference in May 2015, the court adopted the 6 parties' discovery plan that discovery would be completed by 7 July 31, 2015. Steimel represented Fitzhugh at that hearing. 8 Steimel also represented Fitzhugh at the final pretrial conference 9 on September 2, 2015. 10 The parties filed a joint pretrial statement in October 2015. 11 Fitzhugh's position essentially was that, since he had not earned 12 any fees as of the petition date, none of the contingency fees in 13 any of the matters were property of the estate. Trustee raised 14 the Leonard Claim for the first time in the joint pretrial 15 statement. 16 Trial was initially set for October 21, 2015. For personal 17 reasons, Steimel had to withdraw from the case just prior to 18 trial. On Fitzhugh's motion, the court agreed to continue trial 19 to March 3, 2016, to give Fitzhugh sufficient time to prepare and 20 to retain new counsel. In January 2016, Fitzhugh, still pro se, 21 again sought to continue trial. The court continued trial to 22 June 8, 2016, and later, sua sponte, rescheduled trial for 23 June 22, 2016. 24 On May 26, 2016, Fitzhugh, still pro se, again moved to 25 continue trial and to extend discovery deadlines. Fitzhugh 26 maintained that an extension was necessary because his bankruptcy 27 consultant had become seriously ill and was unable, until 28 recently, to assist him in preparing for trial. Trustee opposed
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1 the motion, arguing that this same motion had been filed, briefed, 2 argued and denied. The bankruptcy court entered an order denying 3 the motion for lack of cause on June 7, 2016. 4 Fitzhugh represented himself at trial. Fitzhugh, Trustee and 5 Ryan testified. Fitzhugh denied any wrongful intent in not 6 disclosing the Venezia Claim, the Gilcrease/Whipp Claim, the 7 Carranza Claim and the Leonard Claim, even though he was made 8 aware during the bankruptcy case that they were property of the 9 estate. Fitzhugh stated that he did not consider these claims 10 assets of his bankruptcy estate but, rather, assets of his LLC. 11 He based this belief on the fact that General Motors had emerged 12 from its bankruptcy by changing its name and continuing on with 13 its business, so he believed that he could do the same by creating 14 his LLC five months postpetition. Fitzhugh testified that, to his 15 credit, he also failed to schedule things that would have 16 benefitted him, such as wage claims and the homestead exemption. 17 After post-trial briefing, the bankruptcy court issued its 18 Memorandum Decision and order revoking Fitzhugh's discharge under 19 § 727(d)(1) and (d)(2). Fitzhugh timely appealed. 20 II. JURISDICTION 21 The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 22 and 157(b)(2)(J). We have jurisdiction under 28 U.S.C. § 158. 23 III. ISSUES 24 1. Did the bankruptcy court err in revoking Fitzhugh's discharge 25 under § 727(d)(1) and (d)(2)? 26 2. Did the bankruptcy court abuse its discretion by not granting 27 the motion to continue trial and to extend discovery deadlines? 28 ////
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1 IV. STANDARDS OF REVIEW 2 For § 727 decisions, we review the bankruptcy court's 3 conclusions of law de novo, its findings of fact for clear error, 4 and mixed questions of law and fact de novo. Searles v. Riley 5 (In re Searles), 317 B.R. 368, 373 (9th Cir. BAP 2004), aff'd, 6 212 Fed. App'x 589 (9th Cir. 2006) (citing Murray v. Bammer (In re 7 Bammer), 131 F.3d 788, 792 (9th Cir. 1997) (en banc), overruling, 8 e.g., Finalco, Inc. v. Roosevelt (In re Roosevelt), 87 F.3d 311, 9 314, as amended, 98 F.3d 1169 (9th Cir. 1996) (applying "gross 10 abuse of discretion" standard), and Friedkin v. Sternberg (In re 11 Sternberg), 85 F.3d 1400, 1404 (9th Cir. 1996) (applying "sound 12 discretion of the bankruptcy court" standard). An erroneous view 13 of the law may induce the bankruptcy court to make a clearly 14 erroneous finding of fact. Ozenne v. Bendon (In re Ozenne), 15 337 B.R. 214, 218 (9th Cir. BAP 2006) (citing Power v. Union Pac. 16 R.R. Co., 655 F.2d 1380, 1382-83 (9th Cir. 1981)). 17 The bankruptcy court's denial of a motion to reopen discovery 18 is reviewed for an abuse of discretion. Cornwell v. Electra Cent. 19 Credit Union, 439 F.3d 1018, 1026 (9th Cir. 2006). 20 V. DISCUSSION 21 A. The bankruptcy court applied an incorrect standard of law to revoke Fitzhugh's discharge under § 727(d)(1) and (d)(2).
22 23 Revocation of discharge is an extraordinary remedy and is 24 construed liberally in favor of the debtor and strictly against 25 those seeking to revoke the discharge. Bowman v. Belt Valley Bank 26 (In re Bowman), 173 B.R. 922, 924 (9th Cir. BAP 1994) (citing 27 First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1342 28 (9th Cir. 1986)). Section 727(e)(1) establishes the statutory
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1 deadline for filing an adversary proceeding under § 727(d)(1) and 2 (d)(2) to revoke a debtor's discharge: under subsection (d)(1) 3 within one year after the discharge is granted; and under 4 subsection (d)(2) before the later of one year after the discharge 5 was granted and the date the case is closed. Fitzhugh's case has 6 not closed, and Trustee filed his complaint within one year of 7 Fitzhugh's discharge. Thus, Trustee's complaint was timely. 8 1. Governing law 9 To obtain relief under § 727(d)(1), the plaintiff must prove 10 that the debtor committed fraud in fact. Jones v. U.S. Tr., 11 736 F.3d 897, 900 (9th Cir. 2013); In re Bowman, 173 B.R. at 925. 12 The fraud must be proven in the procurement of the discharge and 13 requires evidence of some conduct that under § 727(a) would have 14 been sufficient grounds for denying a discharge in the first 15 instance, such as the debtor knowingly and fraudulently making a 16 false oath in connection with the bankruptcy case. Jones, 17 736 F.3d at 900; Miller v. Gilliam (In re Gilliam), 2012 WL 18 1191854, at *10 (9th Cir. BAP Apr. 6, 2012); see also In re 19 Bowman, 173 B.R. at 925 ("The fraud must be proven in the 20 procurement of the discharge and sufficient grounds must have 21 existed which would have prevented the discharge"). 22 For a claim under § 727(d)(2), the plaintiff must prove that 23 the debtor acquired or became entitled to acquire property of the 24 estate and knowingly and fraudulently failed to report or deliver 25 the property to the trustee. Both elements must be met and the 26 plaintiff must prove that the debtor acted with the knowing intent 27 to defraud. In re Bowman, 173 B.R. at 925. 28 ////
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1 2. Analysis 2 The bankruptcy court revoked Fitzhugh's discharge under 3 § 727(d)(1) for his intentional failure to disclose assets and 4 pending litigation, which could support a denial of discharge 5 claim under § 727(a)(4) if the elements are met, and is a proper 6 basis to revoke discharge under § 727(d)(1). The court revoked 7 Fitzhugh's discharge under § 727(d)(2) for his knowing and 8 fraudulent failure to report the Venezia Claim to Trustee, which 9 could support a claim under § 727(d)(2). 10 However, the court erred in applying the elements of 11 § 727(d)(1) and (d)(2). Trustee had to also prove, under both 12 statutes, that he was unaware of the alleged fraud at the time the 13 discharge was entered. Ross v. Mitchell (In re Dietz), 914 F.2d 14 161, 163 (9th Cir. 1990) (applying same knowledge requirement for 15 a plaintiff in § 727(d)(1) to (d)(2)) (citing Werner v. Puente 16 (In re Puente), 49 B.R. 966, 969 (Bankr. W.D.N.Y. 1985) and 17 Canfield v. Lyons (In re Lyons), 23 B.R. 123, 126 (Bankr. E.D. Va. 18 1982) ("The fact that subparagraphs 727(d)(2) and 727(d)(3) 19 contain no language requiring the knowledge of any fraudulent 20 conduct to be received after the discharge is granted, does not 21 give a party in interest, who has the knowledge of the probable 22 wrongdoing the privilege to wait until after a discharge is 23 granted to ask the court to revoke the discharge")); Banayan v. 24 Mesbahi (In re Mesbahi), 2006 WL 6810975, at *6 (9th Cir. BAP 25 Oct. 10, 2006) (citing Dietz and holding that plaintiffs did not 26 establish a claim to revoke discharge under § 727(d)(2) because 27 they failed to prove they did not know of any fraud prior to 28 debtor's discharge); In re Bowman, 173 B.R. at 924-25 (citing
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1 Dietz and holding that "to effectuate revocation under § 727(d), 2 such fraud must be discovered after discharge") (emphasis in 3 original). Fitzhugh tried to raise this issue at trial, albeit 4 imprecisely, when Trustee repeatedly stated that the relevant date 5 for his knowledge of Fitzhugh's alleged fraud was the objection to 6 discharge bar date. 7 The bankruptcy court applied the objection to discharge bar 8 date — September 3, 2013 — as the relevant date for revoking 9 Fitzhugh's discharge under § 727(d)(1) and (d)(2), not the entry 10 of discharge date — May 27, 2014. The record shows that Trustee 11 knew about the Venezia Claim and the Gilcrease/Whipp Claim prior 12 to Fitzhugh's discharge, on October 26, 2013, and April 28, 2014, 13 respectively. At oral argument before the Panel, Trustee seemed 14 unaware that he could have sought an extension of time to object 15 to Fitzhugh's discharge under Rule 4004 due to the Venezia Claim 16 and the Gilcrease/Whipp Claim, even though the time for filing a 17 complaint had expired on September 3, 2013. See Rule 4004(b)(2). 18 In 2011, Rule 4004(b) was amended to allow a party to request 19 an extension of time to object to discharge after the time for 20 objection has expired and before discharge is granted, if (A) the 21 objection is based on facts that, if learned after the discharge, 22 would provide a basis for revocation under § 727(d), and (B) the 23 movant did not have knowledge of those facts in time to permit an 24 objection. Rule 4004(b)(2). The motion is to be filed promptly 25 after the movant discovers the facts on which the objection is 26 based. Id. 27 The 2011 amendment eliminated what was known as the "gap 28 period" — the time between the expiration of the time to object to
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1 discharge and the actual entry of discharge. Under former Rule 2 4004, any requests for extensions of time to object to discharge 3 had to be made before the bar date. Thus, if a party did not 4 learn of the debtor's fraudulent conduct until after the bar date, 5 but before the discharge was entered, the party was precluded from 6 bringing a § 727(d) complaint. 7 Courts struggled with the issue of whether a party that 8 obtains knowledge of fraudulent activity within the gap period 9 obtained that knowledge "after the granting" of the discharge. 10 Some courts found that the gap period frustrated a party's rights 11 and held that, in such cases, the court had discretion to deem the 12 objection to discharge bar date as the effective discharge date. 13 See In re Dietz, 914 F.2d at 164 (where no discharge was entered 14 discharge is deemed entered for purposes of § 727(d) upon the 15 expiration of the deadline to object to discharge); England v. 16 Stevens (In re Stevens), 107 B.R. 702, 706 (9th Cir. BAP 1989) 17 ("the rights of parties . . . would be unreasonably frustrated, if 18 Rule 4004 were read to create a temporary period where no . . . 19 complaint under § 727 could be brought”); In re Staub, 208 B.R. 20 602, 606–07 (Bankr. S.D. Ga. 1997) ("rational sense" requires that 21 there be no "safe haven gap period"). 22 With the 2011 amendment to Rule 4004, reliance on these cases 23 is no longer necessary. Rather, in such circumstances, the party 24 must now utilize Rule 4004(b)(2) and obtain an extension of time 25 to object to discharge or risk losing the ability to bring a 26 complaint under § 727(d)(1) or (d)(2). 27 As for the Carranza Claim or the Madrigal matter, Trustee 28 failed to establish on what date he learned about them, and it was
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1 his burden to do so. In re Bowman, 173 B.R. at 924-25; U.S. Tr. 2 v. Franz (In re Franz), 540 B.R. 765, 778 (Bankr. D. Mont. 2015) 3 (to obtain discharge revocation under § 727(d)(2) the plaintiff 4 bears the burden of proof and must establish all elements by a 5 preponderance of the evidence). 6 Accordingly, the bankruptcy court could not consider the 7 Venezia Claim, the Gilcrease/Whipp Claim, or the Carranza Claim 8 and Madrigal matter for revoking Fitzhugh's discharge under 9 § 727(d)(1) or (d)(2). 10 The only potential estate asset Trustee was unaware of prior 11 to Fitzhugh's discharge was the Leonard Claim. Hence, the Leonard 12 Claim, assuming the discharge revocation complaint can be amended 13 to conform to the evidence at trial,5 is the only matter the court 14 could consider for Trustee's claim under § 727(d)(1) or (d)(2). 15 For its decision to revoke Fitzhugh's discharge under § 727(d)(2), 16 the court relied only on the Venezia Claim for support. However, 17 as we discussed above, the court could not consider that claim 18 because Trustee was aware of it, and even settled it, several 19 months before entry of Fitzhugh's discharge. 20 The bankruptcy court will have to determine on remand if the 21 Leonard Claim (if applicable) provides a sufficient basis to 22 revoke Fitzhugh's discharge under either § 727(d)(1) or (d)(2). 23
5
Civil Rule 15(b)(2), applicable here by Rule 7015, 24 provides: 25 When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in 26 all respects as if raised in the pleadings. A party may move — at any time, even after judgment — to amend the 27 pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the 28 result of the trial of that issue.
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1 B. Fitzhugh has waived any argument respecting the bankruptcy court's decision to deny his motion to continue trial and to 2 extend discovery deadlines.6 3 Fitzhugh contends that the bankruptcy court abused its 4 discretion by not granting his motion to continue trial and to 5 extend discovery deadlines. Other than stating that "the courts 6 [sic] refused [sic] to grant Appellant's request for a continuance 7 of the trial substantially prejudiced Appellant . . . .", 8 Fitzhugh's opening brief fails to present any argument or 9 authority in support of his position that the court abused its 10 discretion. He also failed to present the matter as an issue on 11 appeal or provide a proper standard of review in violation of Rule 12 8014(a). As a result, he has waived this issue. Wake v. Sedona 13 Inst. (In re Sedona Inst.), 220 B.R. 74, 76 (9th Cir. BAP 1998) 14 (matters on appeal not specifically and distinctly argued in 15 appellant's opening brief are waived). 16 VI. CONCLUSION 17 Based on the foregoing reasons, we VACATE and REMAND the 18 bankruptcy court's order revoking Fitzhugh's discharge under 19 § 727(d)(1) and (d)(2) with instructions that the court consider 20 only those items which Trustee did not learn of until after entry 21 of the discharge. We AFFIRM the court's order denying Fitzhugh's 22 motion to continue trial and to extend discovery deadlines. 23 24 6 Although not addressed by the parties, the order denying Fitzhugh's motion to continue trial and to extend discovery 25 deadlines was an interlocutory order that "merged" into the final order determining revocation of the discharge and dismissing the 26 adversary proceeding. See United States v. Real Prop. Located at 475 Martin Lane, Beverly Hills, Cal., 545 F.3d 1134, 1141 (9th 27 Cir. 2008) (under merger rule interlocutory orders entered prior to the judgment merge into the judgment and may be challenged on 28 appeal). Accordingly, we are able to review the order.