FILED NOT FOR PUBLICATION MAR 29 2024 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT OF THE NINTH CIRCUIT

In re: BAP No. OR-22-1214-SLB THOMAS BRYON CATTELL, Debtor. Bk. No. 3:19-bk-33823-DWH

THOMAS BRYON CATTELL, Adv. No. 3:19-ap-03123-DWH Appellant, v. MEMORANDUM* VICTORIA D. DEEKS; GARRET WELCH; CONNOR DEEKS; PRICEWATERHOUSECOOPERS, LLC, Appellees.

Appeal from the United States Bankruptcy Court for the District of Oregon David W. Hercher, Bankruptcy Judge, Presiding

Before: SPRAKER, LAFFERTY, and BRAND, Bankruptcy Judges.

INTRODUCTION

Plaintiff and chapter 13 1 debtor Thomas Cattell appeals from a

* This disposition is not appropriate for publication. 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 Cir. BAP Rule 8024-1. 1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of Civil Procedure. judgment after trial in favor of defendants Victoria Deeks (“Deeks”), her

son Connor Deeks (“Connor”), and Garret Welch. Cattell unsuccessfully

asserted claims based on the alleged misappropriation of assets from his

partnership with Deeks.

Cattell primarily focuses on the bankruptcy court’s denial of his

request to continue trial and on various discovery and evidentiary rulings.

But he has not demonstrated how these rulings materially affected the

outcome of the litigation. Nor has he met his burden on appeal to establish

reversible error as to any of the other issues he has raised. Accordingly, we

AFFIRM.

FACTS2

A. The bankruptcy filing and the underlying litigation.

Cattell filed his chapter 13 bankruptcy in October 2019. Shortly

thereafter, he removed his state court litigation against Deeks to the

bankruptcy court. Around the same time, he commenced a second state

court action against Deeks’ son Connor and others. Two of the defendants

in the second action removed it to the bankruptcy court in February 2020.

The court in March 2020 consolidated the two removed actions into a single

adversary proceeding for all purposes. The operative complaint in the

consolidated adversary proceeding was the Second Amended Complaint,

2 We exercise our discretion to take judicial notice of documents readily available from the underlying bankruptcy case and adversary proceeding dockets. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),

, 233 n.9 (9th Cir. BAP 2003). 2 filed by Cattell’s counsel in March 2021. It stated claims for dissolution of a

common law partnership, equitable accounting, avoidance of preferential

transfers, breach of fiduciary duty, financial abuse of a vulnerable person,

declaratory judgment, avoidance of fraudulent transfers, and equitable

subordination. 3

Cattell alleged that in 2013 he entered into a partnership with Deeks

without the benefit of a formal written partnership agreement (the

“Partnership”). At the time of the Partnership’s formation, Cattell claimed

he contributed a 40-acre parcel of real property located on Skyliner Drive

outside of Bend, Oregon (“Skyliner Property”) to the Partnership. He and

Deeks intended to develop the Skyliner Property into a campground or

resort. At the time the parties created their Partnership, title to the Skyliner

Property was held in the name of his solely owned corporation. Cattell

later caused the corporation to transfer title to the Skyliner Property to

Deeks. The Second Amended Complaint primarily alleged that Cattell

suffered losses when Deeks in 2018 and 2019 disposed of the Partnership’s

assets including the Skyliner Property.

According to Cattell, Deeks agreed to contribute to the Partnership

her income as a nurse. In addition, both parties personally incurred

significant debts in furtherance of the Partnership. Some of the debts were

secured by the Partnership’s assets while others were unsecured.

3 Deeks filed counterclaims in response to Cattell’s Second Amended Complaint, but the counterclaims are not at issue in this appeal. 3 The loans in Deeks’ name included a $190,000 loan from Carol

Williams to purchase a fishing boat and fishing equipment. As Cattell

alleged, the Partnership borrowed these funds so that it could engage in

seasonal Alaskan salmon fishing. In addition to his experience as a builder,

Cattell had worked for years as a salmon fisherman in Alaska. The fishing

activities generated in aggregate over $100,000 in net income between 2014

and 2018. The Partnership also earned income from a cabin and a house

that Cattell designed and built on the Skyliner Property.

All income was commingled and deposited into bank accounts in

Deeks’ name only. Though Cattell was not on any of these accounts, he

maintained that he had full access and control over them between January

2013 and late December 2017. He stated that he was responsible for making

Partnership payments from these accounts. He and Deeks also paid their

personal liabilities from these same accounts.

In late July 2017, Deeks and her son Connor requested that Cattell

provide them with the Partnership’s books and records, which Cattell kept,

along with all account numbers and passcodes necessary to access the

Partnership’s bank accounts online. From his conversations with Deeks

and Connor, Cattell understood that Connor was working for

PricewaterhouseCoopers as a certified public accountant. According to

Cattell, Connor explained that he wanted to understand the Partnership’s

finances so that he could help the Partnership restructure, consolidate its

loans, and obtain additional financing.

4 From that point on, Cattell alleged that Deeks and Connor removed

his access to and control of the Partnership bank accounts, sold off most of

the Partnership’s assets, and failed to account for the sale proceeds. Cattell

further alleged that some of the assets were sold for prices well below

market value. He also claimed that he contributed his labor, his intellectual

property, and other intangible assets into the Partnership as part of his

efforts to develop the Skyliner Property and incurred significant additional

trade debt for the benefit of the Partnership. He complained that Deeks and

Connor subsequently denied the existence of the Partnership and never

accounted for his Partnership contributions.

In July 2018, Deeks entered into a contract to sell the Skyliner

Property. According to Cattell, Deeks did not tell him of the pending sale

until a couple of weeks after the sale contract was entered into and refused

to disclose the contents of the contract and the purchaser’s name until

February 2019. Deeks’ sale efforts apparently led to the commencement of

the parties’ litigation. The initial sale fell through, but Deeks subsequently

sold the Skyliner Property to defendant Garret Welch for $860,000.

B. The adversary proceeding moves forward.

In August 2020, while Cattell was represented by counsel, the court

entered its case management order based on the parties’ agreed-upon

deadlines. According to the order, discovery was to conclude on January

11, 2021, initial expert disclosures were required by March 8, 2021,

dispositive motions were to be filed by May 24, 2021, and a five-day trial

5 would commence on October 12, 2021. The trial date later was moved to

December 7, 2021, but all the other deadlines remained unchanged.

In March 2021—nearly two months after the discovery cutoff—

Cattell’s counsel moved to amend the case scheduling order. He sought to

extend the time to conduct fact discovery and to submit initial expert

disclosures until May 17, 2021, with a corresponding extension of all other

deadlines up to and including the pretrial conference. The bankruptcy

court denied this motion.

The parties then filed cross-motions for summary judgment. The

court dismissed defendant PricewaterhouseCoopers but denied the

remainder of the summary judgment motions. Cattell’s appeal does not

challenge the bankruptcy court’s summary judgment rulings, but several

other pretrial proceedings from the summer and fall of 2021 are critical to

this appeal.

C. The withdrawal of counsel and the motion to continue trial.

On July 2, 2021, Cattell’s trial counsel moved to withdraw,

representing that he had developed a nonwaivable conflict of interest

apparently related to certain errors and omissions in his representation of

Cattell. Both Cattell and his bankruptcy counsel were contemporaneously

advised of the withdrawal motion. The bankruptcy court granted the

motion on July 6, 2021.

On September 22, 2021, Cattell’s bankruptcy counsel likewise moved

to withdraw as counsel. According to bankruptcy counsel, on August 26,

6 2021, he formally advised Cattell by letter that he needed to find new

counsel, and if he did not do so, bankruptcy counsel would move to

withdraw. Bankruptcy counsel explained that, by agreement, he had been

providing overflow support to former trial counsel as needed, but it was

never his intent or Cattell’s that he serve as lead litigation counsel or trial

counsel. Bankruptcy counsel further opined that his immediate withdrawal

would not adversely affect Cattell because there was “adequate time . . . to

allow new counsel to be adequately prepared for trial in December.” The

bankruptcy court granted bankruptcy counsel’s withdrawal motion on

September 28, 2021.

On November 26, 2021, eleven days before the start of trial, Cattell’s

proposed new trial counsel Jesse London (by limited or special appearance)

moved to continue trial “to begin on March 7, 2022 or to a time, no earlier

than February 17, 2022.” London explained that the continuance was

necessary because of pre-existing commitments and his need to prepare for

trial. London also explained that Cattell had not been lax in seeking new

trial counsel. According to London, Cattell contacted at least four other

attorneys who each took the time to review the adversary proceeding but

ultimately declined to represent Cattell.

London further stated that his agreement to represent Cattell was

conditioned on the grant of the motion to continue because he could not

otherwise competently represent Cattell. London also maintained that the

prejudice to Cattell from denial of the motion to continue would greatly

7 outweigh the prejudice to the defendants if the motion to continue was

granted because absent the continuance, Cattell would be forced to

represent himself at trial. More specifically, London suggested that

significant prejudice to Cattell would occur given the amounts at stake, the

involvement of real property, and Cattell’s “special mental health

conditions including autism which make his need for counsel all the more

great.”

To support the existence of Cattell’s mental health conditions,

London referenced the declaration of Dr. Karen McKibbin and

accompanying exhibits, which Cattell’s former trial counsel had submitted

in support of a motion for protective order he had filed in the adversary

proceeding in February 2021. Dr. McKibbin diagnosed Cattell with Autism

Spectrum Disorder, Level 1, formerly known as Asperger’s Disorder.

Among other things she recommended that “Mr. Cattell needs to have an

advocate with him for any legal or financial interactions. Mr. Cattell is not

able to make accurate judgments about others or their intentions and can

easily be manipulated and taken advantage of.” Dr. McKibbin also opined

that Cattell struggles significantly with oral communication and easily

becomes confused or overwhelmed, which in turn can cause him to become

“emotionally dysregulated or shut down and be unable to proceed.”

The bankruptcy court denied the motion to continue. The court

weighed four factors: (1) the movant’s diligence in preparing for trial; (2)

the purpose for and utility of the proposed continuance; (3) the

8 inconvenience to the adverse parties if the continuance was granted; and

(4) the prejudice to the movant if the continuance was denied. Without

going into specifics, the court acknowledged that the second and fourth

factors favored granting the continuance. But the court also found that

Cattell had not been diligent in seeking new counsel. As the court

explained, the fact that Cattell contacted four lawyers in the hopes of them

representing him between July 2, 2021 and November 26, 2021 did not

demonstrate diligence. The court further found that there would be

substantial inconvenience to defendant Deeks and moderate inconvenience

to another defendant. The court accepted Deeks’ declaration testimony that

she would encounter significant difficulties in attempting to reschedule

time off work for the purpose of attending trial. As for all of the

defendants, the court remarked that the task of rescheduling witnesses and

coordinating new trial dates represented some additional inconvenience.

Considering all the factors together, the court found Cattell’s lack of

diligence and the inconvenience to the defendants to be more compelling

and thus denied the motion to continue.

D. Trial and Cattell’s motion for mistrial.

The trial proceeded as scheduled. However, the court sought to

accommodate Cattell’s pro se status and his claimed impairment resulting

from his autism. The court gave Cattell an abundance of trial time to

present his case. What was estimated to be a five-day trial stretched out to

a 15-day trial over the course of four months, spanning December 7, 2021 to

9 March 28, 2022. The court also frequently gave Cattell leeway in how he

presented his case. Cattell often mixed into his evidentiary presentation a

great deal of argument, which the court often permitted.

On the ninth day of trial, Cattell made an oral motion for mistrial. He

argued that he had struggled greatly in presenting his case without an

attorney due to his autism and difficulties in speaking and understanding

what others say. Frequently, as he put it, he suffered from hearing nothing

but “white noise” in his head after attempting to meaningfully engage at

trial. This, in turn, would lead him to inaccurately state to the court that he

had nothing else to say. As he put it, “Many times during this whole

process, including just now--again, I've said it. I don't have anything else to

say. I'll just move on when there’s so much that needs to be said.” He then

complained that he was “always playing catch-up.”

The court immediately denied the oral mistrial motion and

reaffirmed its earlier decision to deny continuance of trial. The court

acknowledged that, as evidenced by trial, Cattell indeed had “difficulties in

expressing [him]self and in following direction.” However, the court found

that “given sufficient time, you have had an ability to say the things you

wanted to say.” After alluding to the accommodations that the court had

afforded to Cattell to present his case, the court reiterated: “it is my

judgment that you’ve had an opportunity to say everything that you

wanted to say in support of your case.” The court additionally observed

that Cattell was “a participant [and witness] in most, if not all, of the events

10 that this case turns on.” Thus, the court concluded that Cattell was able to

testify competently about the critical events.

E. Submission after trial and judgment.

At the conclusion of trial, the parties submitted closing briefs and the

court took the matter under submission.4

On October 11, 2022, the bankruptcy court entered a memorandum

decision and a judgment which found that Cattel had proven the

Partnership with Deeks, but denied Cattell all relief sought based on his

claims. Cattell timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction under

. We

have jurisdiction under

. 5

ISSUES

1. Whether the bankruptcy court abused its discretion when it made

multiple procedural, discovery, and evidentiary rulings, including: (a)

4 Cattell did not include his closing briefs, trial exhibits, or the vast majority of his trial testimony as part of his excerpts of record. None of these items were readily accessible on the available docket. Though plaintiff’s trial exhibits and closing briefs are listed on the adversary proceeding docket, the bankruptcy court restricted them from public access because they evidently contain “sensitive personal information.” Accordingly, we have not reviewed them, and we are entitled to presume that there is nothing in these items helpful to Cattell’s appeal. See Haynie v. Krystal (In re Haynie),

, 876 n.3 (9th Cir. BAP 2021) (citing Gionis v. Wayne (In re Gionis),

(9th Cir. BAP 1994), aff'd,

(table) (9th Cir. 1996)). 5 As part of its decision, the court specifically found that Cattell and the

remaining defendants each had consented to the bankruptcy court entering final judgment as to the subject matter of the consolidated adversary proceeding. 11 denial of Cattell’s motion to continue trial; (b) denial of Cattell's motion for

mistrial; (c) denial of Cattell’s motion for protective order; (d) denial of

Cattell’s motion to amend the case scheduling order; (e) grant of Deeks’

motion in limine; and (f) extension of the deadline for defendants to file

and serve their trial exhibits.

2. Whether the bankruptcy court erred when it denied Cattell relief on

his claim for financial abuse of a vulnerable person.

3. Whether the bankruptcy court erred when it denied Cattell relief on

his claim to avoid the conveyance of the Skyliner Property as a fraudulent

transfer to Garret Welch.

STANDARDS OF REVIEW

The procedural, discovery, and evidentiary rulings are reviewed for

an abuse of discretion. United States v. Sarkisian,

(9th Cir.

1999) (denials of motions for mistrial); Van Zandt v. Mbunda (In re Mbunda),

(9th Cir. BAP 2012), aff'd,

(9th Cir. 2015)

(evidentiary rulings); Sfadia v. Dongkuk Int’l, Inc (In re Sfadia),

, at *6 (9th Cir. BAP Sept. 5, 2007) (discovery rulings, case

management rulings, and decisions on motions for extensions and

continuances). The bankruptcy court abused its discretion if it applied the

incorrect legal rule or its factual findings were illogical, implausible, or

without support in the record. TrafficSchool.com v. Edriver Inc.,

(9th Cir. 2011).

In appeals from a bankruptcy court’s judgment after trial, “we review

12 the bankruptcy court's findings of fact for clear error, and its conclusions of

law de novo.” Thiara v. Spycher Bros. (In re Thiara),

(9th Cir.

BAP 2002) (citing Carrillo v. Su (In re Su),

(9th Cir.

2002)).

DISCUSSION

Cattell’s principal arguments on appeal concern his self-

representation at trial. Cattell contends that the bankruptcy court abused

its discretion when it denied his motion to continue trial for the purpose of

allowing his proposed replacement trial counsel time to get up to speed

and prepare for trial. He similarly argues that the bankruptcy court abused

its discretion when it denied his motion for mistrial. We address each of

these arguments in turn.

A. Denial of motion to continue trial.

On appeal, Cattell accepts that the bankruptcy court considered the

correct factors for determining whether a trial continuance should be

granted. Cattell cites to the same authority as the bankruptcy court cited,

United States v. 2.61 Acres of Land,

(9th Cir. 1985)

(identifying diligence, usefulness, inconvenience, and prejudice as the

relevant factors). Cattell argues that the court unreasonably found that he

had not been diligent in looking for new counsel. He also complains that

contrary to the bankruptcy court’s weighing of these factors, the prejudice

he obviously was going to suffer from denial of the continuance greatly

outweighed any inconvenience the defendants would have suffered if the

13 continuance had been granted.

Importantly, we review the record as it existed at the time the court

denied the continuance motion. Based on the record presented to the

bankruptcy court, we cannot conclude that the bankruptcy court’s findings

in support of its denial were illogical, implausible, or without support in

the record. TrafficSchool.com,

. And based on this record we

conclude that its weighing of the factors was neither “arbitrary or

unreasonable.” 2.61 Acres of Land,

.

Cattell’s appeal also suffers from another critical defect. As he

acknowledges, to demonstrate reversible error he was required to show

that the denial of the continuance actually resulted in prejudice to his

prosecution of his claims. Aplt. Opn. Br. at 59 (citing United States v.

Mitchell,

(9th Cir. 1984); See also 2.61 Acres of Land,

(“Absent a showing of prejudice suffered by the appellant . . . this

Court will not disturb the ruling below.”). He has not done so.

Mitchell is quite instructive. There, the criminal defendant appealed

his conviction for mail fraud and for filing a false income tax return.

. On appeal the defendant argued that the district court abused

its discretion by denying a request to continue the start of his trial for two

weeks.

. Concluding that the defendant had failed to demonstrate

reversible error, Mitchell explained:

Mitchell claims the 43-day pretrial period was inadequate because the case was complex and his counsel’s own schedule prevented her

14 from thoroughly preparing the defense. He does not specify what defense theories his counsel might have explored, what aspects of the case she was unable to investigate, or what witnesses might have been interviewed.

.

Similar to Mitchell, Cattell’s appeal brief is bereft of any discussion

indicating what counsel would have done differently that might have

resulted in a different outcome. There is absolutely no reference to

excluded evidence that counsel would have succeeded in presenting, trial

examination that would have been conducted, or what such evidence

might have shown on Cattell’s behalf to suggest a different result.

Furthermore, as a result of counsel’s failure to present us with a more

complete record, we only can speculate regarding how effective or

ineffective Cattell was overall in representing himself.

It is apparent from Cattell’s appeal briefs—and the limited trial

transcript excerpts provided—that Cattell encountered multiple

frustrating, stressful, and repeated difficulties in representing himself.

During trial Cattell sometimes had emotional outbursts or temporarily shut

down. But the bankruptcy court sought to address and accommodate these

situations, often by affording Cattell additional time. The difficulties and

outbursts are not by themselves prejudicial—especially in a trial to the

bench. Indeed, the bankruptcy court found that despite these difficulties

Cattell had been successful over the course of his trial in saying what he

really wanted to say. And Cattell effectively has done nothing on appeal to 15 challenge this finding. Additionally, the trial transcript excerpts provided

indicate that Cattell was successful in obtaining admission of a sizable

portion of his trial exhibits.

When asked at oral argument on appeal to specifically identify the

prejudice, Cattell’s counsel suggested that the exclusion of his expert

testimony regarding the value of the Skyliner Property demonstrated

prejudice caused by his self-representation at trial. We disagree. As we

explain below, Cattell’s valuation expert testimony was excluded from trial

because of his former litigation counsel’s actions, or more appropriately his

delay in acting, while he still represented Cattell. While represented,

Cattell’s counsel failed to comply with the deadline for expert disclosures

and failed to obtain an extension of those deadlines. Exclusion of Cattell’s

valuation expert was not a result of Cattell’s self-representation.

Cattell has not demonstrated that any specific evidence or argument

was curtailed or excluded over the extended trial period as a result of his

self-representation. The bankruptcy court gave Cattell considerable

additional time and leeway. He was also afforded the opportunity to

present his closing argument in writing after the close of evidence. In short,

on the record presented and in the absence of any meaningful discussion of

prejudice, he has not established that the bankruptcy court committed

reversible error when it denied the motion to continue the trial.

B. Denial of motion to declare a mistrial.

Though Cattell asked at trial for the bankruptcy court to declare a

16 “mistrial,” he argues on appeal that his oral motion for mistrial actually

was a motion for new trial under Civil Rule 59, made applicable in

bankruptcy cases and adversary proceedings by Rule 9023. Appellees have

not challenged this characterization, so we will analyze the mistrial motion

as if it had been presented as a motion for new trial under Civil Rule 59(a).6

Civil Rule 59(a) provides in relevant part that:

[t]he court may, on motion, grant a new trial on all or some of the issues--and to any party--as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

The Ninth Circuit applies different factors for motions for new trial in

jury trials as opposed to bench trials. Compare Passantino v. Johnson &

6 On its face, Civil Rule 59(a) gives the court authority to grant a new trial only “after” trial has occurred. Here, Cattell requested a mistrial while trial was pending. Nonetheless, Civil Rule 59(a) is what Cattell has argued. We are only obliged to consider arguments that Cattell has specifically and distinctly made on appeal. Brownfield v. City of Yakima,

, 1149 n.4 (9th Cir. 2010). Furthermore, Cattell would have fared no better even if his appeal brief had treated the subject motion as a motion for mistrial as originally styled. Motions for mistrial typically are effective only in jury trials and also typically require a demonstration of prejudice. See, e.g., B.K.B. v. Maui Police Dep't,

, 1105–06 (9th Cir. 2002); see also Rutter Grp. Prac. Guide: Fed. Civ. Trials and Evidence (2024) (“A motion for mistrial is usually a realistic option only in a jury trial. Judges in nonjury trials rarely feel that attorney misconduct affects their ability to decide impartially.”). 17 Johnson Consumer Prods., Inc.,

, 510 n.15 (9th Cir. 2000) (“The

trial court may grant a new trial only if the verdict is contrary to the clear

weight of the evidence, is based upon false or perjurious evidence, or to

prevent a miscarriage of justice.”) with Brown v. Wright,

(9th Cir. 1978) (“There are three grounds for granting new trials in court-

tried actions under Rule 59(a)(2): (1) manifest error of law; (2) manifest

error of fact; and (3) newly discovered evidence.”); see also Molski v. M.J.

Cable, Inc.,

, 729 n.4 (9th Cir. 2007) (acknowledging and

reaffirming distinct standards).

The bankruptcy court here held a bench trial. But Cattell cites to and

attempts to apply the Passantino standard rather than the Brown standard.

As a result, his appellate argument on this point is not particularly helpful

or persuasive. He contends that trial was fundamentally unfair to him or

constituted a miscarriage of justice, citing factors he borrows from

Passantino and its predecessors. Under the applicable legal standard from

Brown, Cattell was required to show either manifest error of law or fact or

newly discovered evidence as the basis for a new trial. Nothing in his

briefing on appeal suggests an error of law–manifest or otherwise.

Factually, Cattell relies on the same myriad excerpts from the trial

transcripts discussed above in our review of the denial of the motion to

continue. And, as further discussed above, Cattell’s struggles at trial, by

themselves, do not justify reversal. As with the denial of the continuance

motion, a trial court does not commit reversible error in denying a motion

18 for new trial in the absence of demonstrated prejudice.

Civil Rule 61—governing harmless error—dictates this result. As one

leading treatise explained:

The importance of Rule 61 in its application to motions for a new trial cannot be overlooked. It provides specifically that “unless justice requires otherwise,” no error “is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order.” It further admonishes the courts to “disregard all errors and defects that do not affect any party's substantial rights.” Thus it is only those errors that have caused substantial harm to the losing party that justify a new trial. Those errors that are not prejudicial do not call for relief under Rule 59.

11 Charles A. Wright, Arthur Miller, & Mary Kay Kane, Fed. Prac. and

Proc. § 2805 (3d ed. 2024) (emphasis added and citations and footnotes

omitted). Decisions of district courts in the Ninth Circuit are consistent

with Wright & Miller’s observations. See, e.g., Morris v. Aetna Life Ins. Co.,

, at *2 (C.D. Cal. Oct. 14, 2021) (“A new trial may be

ordered to correct manifest errors of law or fact, but the burden of showing

harmful error rests on the party seeking the new trial” (cleaned up));

Zuniga-Hurtado v. Holder,

, at *1 (D. Ariz. July 24, 2013)

(“[h]armless errors encountered during the course of a proceeding are not

proper grounds for new trial or amendment of a judgment.” (quoting Rygg

v. Cnty. of Maui,

(D. Haw. 2000))); SK hynix Inc. v.

Rambus Inc.,

, at *13 (N.D. Cal. May 8, 2013) (stating that a

party seeking new trial based on newly discovered evidence must

19 demonstrate, among other things, that “the newly discovered evidence is

of such magnitude that production of it earlier would likely have changed

the outcome of the case.” (citation omitted)).

As we stated above, Cattell has failed either to explain or

demonstrate what additional or different evidence he was unable to

present or how it might have changed the outcome of the underlying

adversary proceeding. This failure is fatal to Cattell’s challenge of the

bankruptcy court’s denial of his motion for new trial.

C. Cattell’s other arguments.

Cattell has made several other arguments. As described below, most

of the arguments challenge the bankruptcy court’s procedural, discovery,

and evidentiary rulings. However, according to Cattell, the court also erred

when it denied him any relief on his claims for financial abuse of a

vulnerable person and for avoidance of fraudulent transfers. We first

dispose of the challenges to the procedural, discovery, and evidentiary

rulings. We then address the two denied claims for relief that Cattell

challenges.7

7 Cattell also seeks to challenge the denial of his motion for a stay pending appeal, which he sought immediately after the court denied his motion to continue trial. Cattell filed an interlocutory appeal from that ruling. But we denied leave to appeal that interlocutory order and dismissed that appeal on finality grounds. Cattell v. Deeks (In re Cattell), BAP No. OR-21-1273 (Feb. 10, 2022). Trial concluded long ago, so Cattell’s challenge to the denial of his motion for a stay pending appeal has been rendered moot. See Ctr. For Biological Diversity v. Lohn,

(9th Cir. 2007). 20 1. Procedural, discovery, and evidentiary rulings.

Cattell contends that the bankruptcy court abused its discretion by

granting the defendants an additional day to file and serve their trial

exhibits. The court orally granted this request immediately after it denied

Cattell’s motion to continue trial. Cattell opposed the request for the

additional time, claiming that this request should be denied because the

court denied his motion to continue the trial. Cattell reiterates this same

argument on appeal.

Cattell also claims that the court abused its discretion when it denied

his motion for a protective order to limit his required deposition testimony

to providing written answers to written questions. This motion was based

on the declaration and exhibits submitted by Dr. Karen McKibbin

regarding Cattell’s Autism Spectrum Disorder. According to Dr. McKibbin,

requiring Cattell to testify at an oral deposition would be extremely

stressful for him because of his disorder, and conducting the deposition by

written questions and answers was more likely to lead to accurate

responses.

The court also denied Cattell’s motion to amend the case scheduling

order to extend the discovery and expert witness disclosure deadlines.

Cattell’s former trial counsel made the motion several weeks after

discovery had closed and on the same day initial expert witness disclosures

were due. The bankruptcy court found that the proffered justification for

the extension was “essentially nonexistent” and that there was no good

21 reason for the delay in seeking amendment of the scheduling order.

Cattell further asserts that the court abused its discretion in granting

the defendants’ motion in limine to exclude trial testimony from Cattell’s

real property valuation expert because that expert was not disclosed before

the initial expert disclosure deadline. The court found that the same

considerations that led the court to deny the motion to amend the case

scheduling order similarly justified granting the motion in limine. The

court further found that defendants would be prejudiced by permitting

Cattell to present his valuation expert testimony, when the defendants

presumably relied on the absence of earlier expert witness disclosures in

not arranging for rebuttal expert testimony and in deciding how to prepare

for trial.

There is a fundamental problem with all of Cattell’s procedural,

discovery, and evidentiary issues. His arguments fail to show either an

application of incorrect legal standards or clearly erroneous factual

findings. See TrafficSchool.com,

. Cattell merely states his

disagreement with the bankruptcy court’s rulings and reiterates the same

factual arguments he made in the bankruptcy court. These arguments

cannot and do not demonstrate an abuse of discretion. Additionally, as to

most of these arguments, Cattell has again failed to establish any prejudice.

Like case management decisions, evidentiary and discovery rulings are

only subject to reversal when they result in prejudice that likely affected

the outcome of the litigation. See Hallett v. Morgan,

(9th

22 Cir. 2002); Defs. of Wildlife v. Bernal,

, 927–28 (9th Cir. 2000).

Substantively, it is difficult to understand how a one-day extension to

file and serve exhibits prejudiced Cattell and no such argument has been

presented. The same applies to the denial of the motion for protective

order. The oral deposition of Cattell occurred a long time ago and Cattell

fails to show how it affected trial. In short, none of Cattell’s procedural,

discovery, or evidentiary issues support reversal.

2. Financial abuse of a vulnerable person.

Cattell claims that the bankruptcy court should have granted him

relief on his claim for financial abuse of a vulnerable person. Pursuant to

Oregon Revised Statutes (“ORS”) § 124.100(2), “[a] vulnerable person who

suffers . . . damage by reason of . . . financial abuse may bring an action [to

recover damages] against any person who has caused the . . . financial

abuse.” (Emphasis added.) The statute defines a vulnerable person as: “(A)

An elderly person; (B) A financially incapable person; (C) An incapacitated

person; or (D) A person with a disability who is susceptible to force, threat,

duress, coercion, persuasion or physical or emotional injury because of the

person's physical or mental impairment.” ORS § 124.100(1)(e).

The bankruptcy court found that Cattell did not qualify as a

vulnerable person based on paragraphs (A), (B), or (D) of ORS

§ 124.100(1)(e). On appeal, Cattell claims that the bankruptcy court should

have found that he qualified as a financially incapable person under

paragraph (B) or as a person with a disability under paragraph (D). Cattell

23 has not asserted that the bankruptcy court misinterpreted the Oregon

statutes or otherwise misapplied Oregon law. Instead, he contends that the

court’s findings were clearly erroneous.

a. Financially incapable.

ORS § 125.005(3) defines “financially incapable” as applied in ORS

§ 124.100(1)(e)(B) to mean:

a condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental retardation, physical illness or disability, chronic use of drugs or controlled substances, chronic intoxication, confinement, detention by a foreign power or disappearance. “Manage financial resources” means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income.

(Emphasis added); see also ORS § 124.100(1)(b) incorporating the statutory

definition).

The bankruptcy court stated that it had no doubt that Cattell was able

to “manage financial resources” within the meaning of the statute. The

court explained that, as reflected in the record, Cattell owned and operated

contracting and commercial fishing businesses, sold property, generated

numerous bookkeeping documents, demonstrated familiarity with double

entry bookkeeping, and created for trial numerous documents evidencing

his business and personal finances. According to the court, these facts

established that Cattell was not financially incapable.

24 Cattell has not disputed any of these findings. Instead, he claims that

it is equally obvious that Cattell overly trusted Deeks as a result of his

autism disorder and that he should have but failed to segregate

Partnership finances from personal finances. According to Cattell, his

willingness to part with legal title to the Skyliner Property by conveying it

to Deeks without appropriate documentation as to why he was conveying

the property to her is the best evidence of his autism-induced financial

incapability. Cattell thus concludes that the court’s finding that Cattell was

not financially incapable was clearly erroneous.

At best, Cattell’s transfer of the Skyliner Property to Deeks was some

evidence from which the court arguably could have inferred that Cattell

was financially incapable.8 But the court instead chose to give greater

weight to other circumstances, from which it determined that Cattell was

not financially incapable. We cannot say that on the evidence presented

8 We have some doubt whether Cattell’s alleged over-trusting of Deeks should factor into the equation of whether or not he is financially capable within the meaning of the Oregon statute. The parties did not develop this legal argument. Further complicating matters, Oregon’s abuse of vulnerable persons laws are relatively new and are relatively unique among states with similar types of protective statutes. See Julie Sirrs, Protecting the Elderly: Should Montana Provide Civil Cause of Action for Elder Abuse?, 40 Mont. Law. 15, 16-18 (Nov. 2014) (comparing and contrasting similar state statutes). Nor have the parties provided us with any legislative history to consider or case law interpreting the statute. See State v. Gaines,

(Or. Ct. 2009) (citing ORS § 174.020 and stating that Oregon courts may limit their consideration of legislative history to the extent such history is provided by the parties); see also Planned Parenthood of Idaho, Inc. v. Wasden,

(9th Cir. 2004) (stating that federal courts must interpret state statutes in the same manner as that state’s highest court would). 25 that this finding was illogical, implausible, or without support in the

record. When there are two permissible views of the evidence, the

factfinder’s choice between them is not clearly erroneous. Anderson v. City

of Bessemer City,

(1985).

b. Person with a disability.

Both the bankruptcy court and Cattell recognized that

ORS § 124.100(1)(d) defines who qualifies as a “person with a disability.”

As the statute states:

“Person with a disability” means a person with a physical or mental impairment that:

(A) Is likely to continue without substantial improvement for no fewer than 12 months or to result in death; and

(B) Prevents performance of substantially all the ordinary duties of occupations in which an individual not having the physical or mental impairment is capable of engaging, having due regard to the training, experience and circumstances of the person with the physical or mental impairment.

Thus, paragraph (A) concerns the duration of the impairment and

paragraph (B) concerns the effect of the impairment. The bankruptcy court

did not express any doubt that Cattell had some form of mental

impairment and that the duration of Cattell’s impairment satisfied

paragraph (A) of ORS § 124.100(1)(d).

The court instead focused on paragraph (B) and determined that

there was “no evidence that Cattell’s impairment fits that definition.”

26 Cattell disagrees with this finding. According to Cattell, the evidence at

trial showed that he “could not work in occupations, that most others can,

involving interaction with co-workers . . . .” We have found no such

evidence in the record provided. Nothing in Dr. McKibbin’s trial testimony

indicated that as result of his Autism Spectrum Disorder, Cattell was

incapable of engaging in certain occupations or in substantially all of the

ordinary duties of any such occupations. We have not been provided with

her expert report submitted at trial. Nor is it readily available to us via the

bankruptcy court’s adversary proceeding docket.

Alternatively, Cattell claims that the court did not give “due regard

to [Cattell’s] training, experience and circumstances.” But this statutory

language plainly applies to qualify how the court should compare the

impaired individual with individuals without his impairment. For

instance, Cattell was incapable of practicing law because he lacked legal

training—not because of his autism. But the lack of evidence that Cattell’s

impairment—his autism—left him incapable of engaging in specific

occupations largely rendered Cattell’s “training, experience and

circumstances [other than autism]” irrelevant.

In short, Cattell has not demonstrated that the bankruptcy court

clearly erred when it found that he did not qualify as a “person with a

disability,” and therefore was not a vulnerable person for purposes of ORS

27 § 124.100.9

3. Fraudulent transfer claim for relief.

Finally, Cattell contends that the bankruptcy court misinterpreted

Cattell’s eighth claim for relief to avoid as a fraudulent transfer the

conveyance of the Skyliner Property to defendant Welch. The court read

the claim to be premised on § 548(a)(1) and properly denied relief under

that statute as the Skyliner Property was not “an interest of the debtor in

property.” Rather, the property was titled in Deeks’ name and owned by

the Partnership.

According to Cattell, the transfer also was avoidable under ORS

§§ 67.09010 and 67.095. 11 He contends that the eighth claim for relief was

9 Cattell additionally argues that the court erred in finding that Deeks (and Connor) did not financially abuse Cattell within the meaning of ORS § 124.100. Because the bankruptcy court did not err in finding that Cattell was not a vulnerable person, it is unnecessary for us to address this issue. We note, however, that this argument specifically focuses on the sufficiency of the evidence, the evidence adduced at trial, and the extent to which that evidence tended to support the parties’ respective positions. Given the massive gaps in the record provided to us, the record before us does not permit meaningful review of this issue. 10 ORS § 67.090 provides in relevant part:

(2) An act of a partner that is not for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership, binds the partnership only if the act was authorized by the other partners. 11 ORS § 67.095 provides in relevant part:

(2) A partnership may recover partnership property from a transferee only if it proves that execution of the instrument of initial transfer did not bind the partnership under ORS 67.090 and:

* * * 28 meant to invoke these Oregon statutes. Cattell further states that the

elements for his avoidance claim under Oregon partnership law were:

(1) the property was held in the name of a person other than the partnership and transferred by instrument without an indication of the partnership; (2) such partner did not authorize the transfer of property outside the ordinary course of business; and (3) the transferee, Welch, had notice that the property was partnership property and that Deeks lacked authority to bind the partnership without Mr. Cattell’s consent to the sale.

Unfortunately, the eighth claim for relief, drafted by Cattell’s trial

counsel, failed to refer to any of these elements or to the Oregon statutes on

which Cattell now relies. Instead, the claim for fraudulent transfer cites

§ 548 of the Bankruptcy Code and alleges a lack of reasonably equivalent

value and Cattell’s insolvency. These allegations mirror the elements for a

constructive fraudulent transfer claim under § 548(a)(1)(B) and have

nothing to do with Cattell’s so-called partnership avoidance claim under

Oregon law.

Cattell contends that he is entitled to a liberal and broad

interpretation of his Second Amended Complaint, citing Balistreri v. Pacifica

Police Dep't,

(9th Cir. 1988). But Balistreri is inapposite.

Balistreri stands for the general proposition that pro se pleadings should be

(b) As to a transferee who gave value for property transferred under subsection (1)(c) of this section, proves that prior to the transfer to the transferee, the transferee knew or had received a notification that the property was partnership property and that the person who executed the instrument of initial transfer lacked authority to bind the partnership. 29 liberally construed.

. But the Second Amended Complaint was

filed by Cattell’s former trial counsel. Consequently, Balistreri does not

apply.

Alternatively, Cattell argues that the bankruptcy court erred in

failing to amend the eighth claim for relief to conform to the evidence

adduced at trial. According to Cattell, the fact that he did not ask the court

to do so is of no importance because Cattell was incapable of requesting

such relief. Rather, he maintains that the court should have sua sponte

conformed the pleading to the evidence presented at trial.

Cattell has not established that amendment to conform to proof was

appropriate under the circumstances.12 Civil Rule 15, governing

amendment of pleadings, applies in adversary proceedings pursuant to

Rule 7015. Though Civil Rule 15(b) provides for amendments to conform to

proof during or after trial, “[Civil] Rule 15(b) does not permit amendments

to include issues which may be inferentially suggested by incidental

evidence in the record.” Prieto v. Paul Revere Life Ins. Co.,

(9th Cir. 2004) (cleaned up). In other words, pleadings should not be

amended to conform to proof under Civil Rule 15(b) in the absence of

express or implied consent from the adverse party. See

.

When, as here, the evidence the proponent relies on to support

12As a factual matter, Cattell has wholly failed to cite the portions of the record showing that he established an avoidance claim under Oregon partnership law. And the record available to us is so incomplete that it would be impossible for us to find such evidence even if we were inclined to search for it. 30 amendment to conform to proof directly addresses a pleaded issue, such

evidence “does not put the opposing party on notice that an unpleaded

issue is being raised” and hence cannot establish the requisite implied

consent. Patelco Credit Union v. Sahni,

(9th Cir. 2001). This

has been the law of this circuit for decades. See Galindo v. Stoody Co.,

(9th Cir. 1986) (“It is not enough that an issue may be

inferentially suggested by incidental evidence in the record; the record

must indicate that the parties understood that the evidence was aimed at

an unpleaded issue.” (cleaned up)).

Cattell has not pointed to anything in the record suggesting that the

defendants were aware before or during trial that Cattell was affirmatively

seeking the avoidance of the sale of the Skyliner Property under Oregon

partnership law. Consequently, we reject Cattell’s amendment to conform

to proof argument.

CONCLUSION

For the reasons set forth above, we AFFIRM. 13

13 As part of his appeal, Cattell filed a motion requesting that we listen to excerpts of audio recordings from trial. According to Cattell, the audio recordings accurately depict how confused, frustrated, distressed, and nonfunctional he became during trial. This motion is hereby ORDERED DENIED. The identified audio recording excerpts are irrelevant to our resolution of the appeal. 31