OPINION

On June 25, 1990, the court heard oral argument in connection with the appeal by Energrey Enterprises, Inc. of the Bankruptcy Court’s findings of fact and conclusions of law filed on July 9, 1989. Upon due consideration of the written and oral arguments of the parties and the record herein, the court affirms the Bankruptcy Court.

In the Chapter 11 bankruptcy of Oak Creek Energy Farms, Ltd., an adversary proceeding was tried by the Bankruptcy Court wherein Energrey Enterprises, Inc. sued Oak Creek Energy Systems, Inc., Dean Beckett, Steve Cummings, and Oak Creek Energy Farms, Ltd. on the issue of whether or not there exists a Mechanic’s Lien on the towers, motors, machinery, turbines and other related articles of the wind towers. The Bankruptcy Court ruled that such a Mechanic’s Lien did not exist and issued findings of fact and conclusions of law. 107 B.R. 266 . Energrey’s appeal followed.

A.Failure to Perfect Appeal.

Oak Creek argues that Energrey failed to perfect its appeal in accordance with the Notice of Procedure to Be Followed in Appeal from Bankruptcy Court issued by the District Court on August 11, 1989.

In particular, Oak Creek argues that En-ergrey failed to file its Notice re Reporter’s Transcript within ten days after receiving a copy of the Notice of Procedure, the Notice re Transcript not being filed until September 8, 1989. This delay caused a delay in the commencement of the briefing schedule and eventually in setting oral argument.

Energrey responds that it ordered a copy of the transcript immediately after filing the Notice of Appeal and the Designation of Record and Issues on Appeal. The Notice of Procedure was not received until after it had been determined that the appeal would be heard by the District Court and not the Bankruptcy Appellate Panel. Energrey asserts that it “diligently pursued the reporter regarding preparation of the transcript”.

Because Oak Creek suggests no prejudice from this delay and it appears that the interim involvement of the BAP was in part responsible, the court disregards this ar-guement on appeal, especially since it appears that Oak Creek thinks that the transcript should have been filed with the District Court before the District Court issued the Notice of Procedure.

Oak Creek further argues that there is no evidence in the record indicating that Energrey filed the reporter’s transcript with the District Court as required by Notice of Procedure. However, a copy of the transcript is attached as part of Energrey’s Excerpts of Record.

Finally, Oak Creek asserts that the Notice of Procedure require Energrey to order and pay for the original and two copies of the transcript, that Oak Creek never received a copy and had to buy its own. Energrey not responding to this assertion, the court assumes it is true. However, rather than concluding that Energrey failed to perfect its appeal, the court orders that Energrey promptly reimburse Oak Creek for its expenditure.

B. Issues on Appeal.

In Energrey’s opening brief is listed in the Statement of Issues:

Oak Creek asserts that this issue is not listed in the Statement of Issues on Appeal filed pursuant to Bankruptcy Rule 8006.

From the court’s review of the record herein, Oak Creek is correct. The issue is not listed and is not inferrable from the issues listed. Consequently, this issue is waived and is not be considered by the court in this appeal. In re Pine Mountain, Ltd, 80 B.R. 171 (9th Cir.BAP 1987).

C. Standard of Review.

The court applies the “clearly erroneous” standard to the Bankruptcy Court’s findings of fact. Rule 8013, Bankruptcy Rules. Conclusions of law are subject to de novo review. In re Mellor, 734 F.2d 1396, 1399 (9th Cir.1984). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 542 , 92 L.Ed. 746 (1948).

D. Towers and Wind Turbines Not Subject to Mechanics’ Lien.

1. Definitions and Standards Pertaining to Mechanics’ Liens.

“Mechanics’ liens are provided for in [the California Constitution] and by statute ... It is a right provided ... by the organic law, and shall not be lightly con sidered , the entire purpose of the laws providing for liens of mechanics or materialmen is to secure to them payment for the labor performed or material furnished.’ ... ‘The mechanics’ lien law is remedial in character, and should be liberally construed in its entirety with a view to effect its objects and to promote justice.’ ...” Nolle v. Smith, 189 Cal.App.2d 140,144 , 11 Cal.Rptr. 261 (1961). The statutes governing the existence and scope of mechanics’ liens in California are set forth in the Civil Code. Civil Code § 3110 provides in pertinent part that “[mjechanics [etc.] ... performing labor upon or bestowing skill or other necessary services on, or furnishing materials ... to be used or consumed in ... a work of improvement shall have a lien upon the property upon which they have bestowed labor [,etc.]”. The term “work of improvement” is defined in Civil Code § 3106:

Civil Code § 3128 provides:

“A mechanic’s lien may be acquired for furnishing and installing fixtures. While permanency of improvement is ordinarily necessary for a mechanic’s lien to attach, the mere fact that the materials are detachable or removable does not preclude a lien.” 44 Cal.Jur.3d, Mechanics’ Liens, § 37, p. 96. A fixture is defined in Civil Code § 660 as follows:

“Whether or not an article annexed to the real property is a fixture is a question of fact to be determined upon the evidence in the particular case ... The question is determined not only by the manner in which the article is annexed to the realty, but also by the relationship between the parties to the controversy.” R. Barer oft & Sons Co. v. Cullen, 217 Cal. 708, 711 , 20 P.2d 665 (1933) (citing Gosliner v. Briones, 187 Cal. 557, 559-60 , 204 P. 19 (1921); see also Abrenilla v. China Insurance Company, Ltd., 870 F.2d 548, 549 (9th Cir. 1989):

Given these standards, the court has no trouble in ruling that Judge Ford’s conclusions that the towers, motors, machinery, turbines and other related articles of the wind towers are not fixtures under the facts of this case while the foundations of the wind towers constructed by Energrey are fixtures are sustainable.

2. Improper Reference to California Law.

Energrey presents to some length in its brief arguments to the effect that the determination of whether or not the items at issue are fixtures must be made in the context of the mechanics’ lien laws and suggests that the Bankruptcy Court did not do this. To the extent the court understands this argument, it not being very clearly presented, the court does not think it is correct. First of all, the court finds no indication in the Bankruptcy Court’s ruling that it was disregarding the context or purpose of the mechanics’ lien laws. Secondly, as noted above, this determination is factual and depends upon the specific circumstances of a relationship. Consequently, no case finding or not finding a fixture is controlling as a matter of law unless the circumstances are identical.

3. Work of Improvement.

Energrey further argues that the evidence presented at the trial clearly establishes that the towers and wind turbines are part of a work of improvement to which Energrey contributed, and that for purposes of the mechanics’ lien law, they thus become a fixture to which Energrey’s lien attaches. In so arguing, Energrey asserts:

Noting that Energrey cites no case authority for this proposition, Oak Creek responds that this lapse is because Energrey’s theory has been rejected by the United States Supreme Court and other case law. In particular, Oak Creek refers the court to South Fork Canal Co. v. Gordon, 73 U.S. (6 Wall.) 561, 569-72 , 18 L.Ed. 894, 896-97 (1868), wherein the United States Supreme Court held in construing a predecessor statute to Civil Code § 3110:

Relying on this statement and the provision in Section 3110 that “[mjechanies_con-tributing to a work of improvement shall have a lien upon the property upon which they have bestowed labor or furnished materials or appliances ... for the value of such labor done or materials furnished ... ”, Oak Creek argues that Energrey is entitled to assert a mechanics’ lien against that aspect of the “work of improvement” actually contributed by Energrey. Oak Creek further notes:

Energrey aptly characterizes Oak Creek’s response as “nonsense”. Section 3110 sets forth the persons who are entitled to mechanics’ liens. Section 3128 sets forth the property that is subject to the mechanics’ lien, i.e., “the work of improvement and the land on which it is situated. ...” And, as noted above, the “work of improvement” is defined in Section 3106 to mean the “entire structure or scheme of improvement as a whole”. The overall thrust of these statutes is clear and the court does not think South Fork holds to the contrary. The court agrees with Ener-grey that the Supreme Court in South Fork was discussing two separate works of improvement.

The court’s agreement with Energrey on this point does not, however, mean that the Bankruptcy Court’s ruling is erroneous either in fact or in law. Energrey goes on to argue that the facts upon which it relies support a finding that the towers, turbines and other elements of the wind machines are fixtures for purposes of the mechanics’ lien laws. In so arguing, Energrey refers the court to cases which have found the property at issue to be fixtures. See e.g. R. Barcroft & Sons Co. v. Cullen, 217 Cal. 708 , 20 P.2d 665 (1933) (plaintiff installed piping, conduits and bolts for steel service and comfort stations which were then installed on a cement base and held in place by nuts screwed over the bolts). However, as noted above, the cases on which Energrey relies point out the factual nature of the determination of whether or not the property at issue is or is not a fixture, this regard, Oak Creek refers the court to cases which have not found the property at issue to be fixtures. See e.g. Gosliner v. Briones, 187 Cal. 557 , 204 P. 19 (1921) (buildings constructed on mudsills placed upon the surface of the ground with the understanding that they could be removed). In

4.Owners.

Energrey makes an argument concerning evidence of ownership of the wind towers that the court is finding particularly opaque. The Bankruptcy Court found in pertinent part: “Towers were owned by a mixture of people, partnerships, joint ventures, and corporations.” Energrey argues:

Oak Creek responds that this argument has no merit and was not raised below:

In its reply brief, Energrey appears to really be contending that it just does not like the Bankruptcy Court’s factual findings. Thus, asserting that “the Bankruptcy Court gave far too much weight to evidence introduced by the Trustee, and barely considered the more relevant evidence submitted by Energrey”, Energrey contends:

The court does not agree. It seems to the court that this is relevant, especially given the argument made by Energrey that the entire wind park (and not just certain towers) were a work of improvement.

5. Movement.

Energrey further argues that the evidence presented to the Bankruptcy Court concerning the repair and relocation of the turbines was by the Trustee and was only within the wind park itself. Energrey contends that actions by the Trustee are not relevant to the intention of the Debtor at the time it installed the property at the wind park. However, Energrey did not object to the introduction of this evidence during the trial. Furthermore, as Oak Creek points out, Mr. Holman, Energrey’s witness during the trial, testified that turbines were moved by third parties during the period 1980-1984. Consequently, the court does not find this argument by Ener-grey persuasive.

6. Unconsidered Evidence.

Energrey contends that the Bankruptcy Court failed to consider relevant and substantial evidence that the towers, turbines and related property were intended to be permanently affixed as improvements to the realty:

However, the court has reviewed Oak Creek’s responses to these contentions and finds them persuasive.

E. Burden of Proof.

In Bankruptcy Court’s ruling, it is held in pertinent part as follows:

Energrey argues that the above-quoted portion of the Bankruptcy Court’s ruling establishes that the Bankruptcy Court improperly allocated the burden of proof:

In the court’s opinion, Energrey is improperly blending two different arguments. The question of which party has the burden to prove what is completely distinct from' the question of whether that party has carried that burden of proof. Quite frankly, it appears to the court that Energrey is arguing the latter. Thus, Energrey is making the same arguments it makes in other sections of its appeal, i.e., that the findings of fact are clearly erroneous. To the extent that Energrey really means to argue that the Bankruptcy Court erred in indicating that it had the burden of proof on whether the items at issue were fixtures or the work of improvement, it must be noted that Energrey cites no case authority in support. From the court’s research, it appears that Energrey’s contention is wrong. Thus, in 44 Cal.Jur.3d, Mechanics’ Liens, § 143 (In general; burden of proof), pp. 254-255, it is stated:

While not exactly on point, the above-quoted general statement persuades the court that the Bankruptcy Court’s statement is a correct statement of the law. Therefore, this argument on appeal is without merit.

F. Evidentiary Rulings.

Energrey further argues that the Bankruptcy Court improperly excluded testimony of Dwayne Holman. Holman was employed by Oak Creek from 1980 to 1984 as the project manager. During the course of Holman’s testimony, the following evi-dentiary rulings were made by the Bankruptcy Court:

Energrey argues that both questions should have been permitted to be answered: “The testimony of the individual who was responsible for installing the property should be relevant and admissible in connection with the intention with which it was installed. Moreover, any statements by the owners and principle officers of the Debtors were not excludable as hearsay, since the Debtors were named parties to the proceedings.”

However, Energrey’s arguments really are nonresponsive to the reasons articulated by the Bankruptcy Court for its rulings. The court does not find the rulings to be erroneous. Moreover, as pointed out by Oak Creek, creditors are not bound by statements made by agents of the debt- or and those statements are not considered to be admissions against interest. Calhoun v. Baylor, 646 F.2d 1158, 1162 (6th Cir.1981).

In its ruling, the Bankruptcy Court stated in pertinent part: “The evidence indicates that the towers were taxed as personal property from the beginning.” Ener-grey argues that the Bankruptcy Court should not have considered the evidence of taxation in this form. The court does not agree. This is exactly what the evidence showed and exactly how the Bankruptcy Court stated it would consider the evidence when it was admitted.

G. Remand.

With respect to the issue discussed which has been waived by the failure to assert it in the Statement of Issues on Appeal, Ener-grey argues that this court should order this matter remanded to the Bankruptcy Court for further proceedings on two issues even if the Bankruptcy Court is otherwise affirmed.

The first issue on which Energrey argues that remand is necessary is in order to determine the amount of interest and attorneys’ fees. Apparently, however, this matter since has been resolved by stipulation of the parties.

The second issue on which Ener-grey seeks remand is whether Energrey has a valid mechanics’ lien on foundations other than those covered by the foreclosure as well as determination of the value of those foundations. The court is not clear why these issues were not tried below or why they cannot be the subject of a separate proceeding or why a remand for this court is necessary.

In any event, Oak Creek refers the court to a statement made by Energrey during the trial: “[Energrey is] not secured by— we can’t establish a secured claim in bankruptcy based on a lien on a non-debtor’s property, so its not even before the Court, nor would I think it appropriate to bind somebody who’s not a party to a proceeding.” Oak Creek comments that it would be inappropriate under due process principles to remand any issue which could potentially impact upon the rights of unrepresented, non-party owners.

However, none of this answers the question why this court should order a remand in connection with an issue that apparently was never raised or tried below.