In Re: King v. Wolverine Endeavors Viii, LLC
CourtCourt of Appeals for the Ninth Circuit
Date FiledOctober 21, 2026
Docket25-1143
StatusUnpublished
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Full Opinion
UNITED STATES COURT OF APPEALS FILED
OCT 21 2026
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In Re: CAROLE D. KING, No. 25-1143
BAP No.
Debtor, 24-1008
----------------------------------------
ORDER AND
JOHN E. KING, as Administrator of the AMENDED MEMORANDUM
Estate of Carole D. King,
Appellant,
v.
WOLVERINE ENDEAVORS VIII, LLC,
Appellee.
Before: COLLINS, JOHNSTONE, and DE ALBA, Circuit Judges.
The memorandum disposition filed on September 29, 2026, is amended, and
the amended memorandum disposition is filed concurrently with this order. The
amendment does not affect the petition for rehearing en banc (Dkt. 44), which
remains pending and will be addressed by a subsequent order.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 21 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In Re: CAROLE D. KING, No. 25-1143
B.A.P. No.
Debtor, 24-1008
---------------------------------------- AMENDED MEMORANDUM*
JOHN E. KING, as Administrator of the
Estate of Carole D. King,
Appellant,
v.
WOLVERINE ENDEAVORS VIII, LLC,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
William J. Lafferty, III, Robert J. Faris, and Gary A. Spraker, Bankruptcy Judges,
Presiding
Argued and Submitted May 20, 2026
San Francisco, California
Before: COLLINS, JOHNSTONE, and DE ALBA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appellant-Debtor Carole King1 appeals the Bankruptcy Appellate Panel’s
(“BAP”) order denying her motion for appellate attorneys’ fees. Prior to this
appeal, Appellee Wolverine Endeavors VIII, LLC (“Wolverine”) appealed the
bankruptcy court’s dismissal of its petition for involuntary bankruptcy against
King to the BAP, which affirmed the decision of the bankruptcy court. In re King,
664 B.R. 162 (B.A.P. 9th Cir. 2024). King now seeks attorneys’ fees for that
appeal to the BAP. We have jurisdiction under 28 U.S.C. § 158(d)(1), and we
affirm.
1. First, we address Wolverine’s motion to dismiss this appeal. Wolverine
contends this appeal should be dismissed for King’s alleged failure to file proper
notice of appeal under Fed. R. App. P. 3(a)(1). Wolverine alleges that there was no
proper notice of appeal because it was filed without King’s counsel having
sufficient authorization to do so. The allegations lack sufficient factual and legal
support. As to the latter, Wolverine relies on two California Court of Appeal cases.
Both are inapposite. Zirbes v. Stratton, 232 Cal. Rptr. 653, 655 (Ct. App. 1986)
involved an appellant seeking relief from judgment where she argued that her
former husband’s lawyer had represented her without her knowledge and consent.
1
On October 1, 2026, Appellant filed a motion to substitute party, Dkt. 42,
and a motion for judicial notice, Dkt. 43. Both motions are GRANTED.
Accordingly, John E. King, as Administrator of the Estate of Carole D. King, is
substituted as the Appellant in this appeal. For convenience, we will nonetheless
continue to refer to the Appellant as Carole King.
2 25-1143
Likewise, Corcoran v. Arouh, 29 Cal. Rptr. 2d 326, 329 (Ct. App. 1994) involved
an appellant seeking relief from a judgment entered against him where there was
“uncontradicted evidence” that the lawyer who claimed to have represented
appellant in the underlying matter had “no express or actual authority” to represent
appellant. That is not this case. As there is no similar uncontradicted evidence that
King’s counsel was unauthorized to file, and because the authority Wolverine cites
does nothing to advance its position, the motion to dismiss is DENIED.2
2. “We review decisions of the BAP de novo and apply the same standard
of review that the BAP applied to the bankruptcy court’s ruling.” In re Boyajian,
564 F.3d 1088, 1090 (9th Cir. 2009). As we have held in Higgins v. Vortex
Fishing Systems, Inc., “the only authority for awarding discretionary appellate fees
in bankruptcy appeals is Rule 38.” 379 F.3d 701, 708 (9th Cir. 2004) (citation
omitted); see also Fed. R. App. P. 38. The Higgins Court specifically observed
that “[d]espite Congress’s clear intent to award attorney’s fees and costs to an
alleged debtor who successfully defends an involuntary bankruptcy bid, the debtor
remains exposed to appellate attorney’s fees unless it can be demonstrated that the
2
We also deny King’s request for sanctions against Wolverine’s counsel. King
failed to demonstrate that Wolverine’s counsel acted with the requisite bad faith to
warrant sanctions under either our inherent authority or 28 U.S.C. § 1927. See
Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007–08 (9th Cir.
2015); see also Pac. Harbor Cap., Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112,
1118–20 (9th Cir. 2000).
3 25-1143
appeal was frivolous under Rule 38.” Id. at 709 n.3 (emphasis added). Thus, as
Higgins explicitly stated, a debtor must demonstrate that the appeal was frivolous
under Rule 38 to be entitled to attorneys’ fees accrued on appeal. Because King’s
opening brief affirmatively states that she is “not seeking appellate-level fees on
the grounds that Wolverine’s appeal was frivolous” under Rule 38, she has waived
any claim to fees under that Rule.3
AFFIRMED.
3
Appellant’s Motion for Judicial Notice, Dkt. 15, and Motion for Leave to Address
an Issue Not Discussed in Reply Brief, Dkt. 24, are DENIED.
4 25-1143