IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-20671
Summary Calendar
_______________
IN THE MATTER OF:
J. EDGAR CLAYTON, JR.,
and
PHYLLIS KOZMA CLAYTON,
Debtors.
J. EDGAR CLAYTON, JR.,
and
PHYLLIS KOZMA CLAYTON,
Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-95-1217)
_________________________
October 15, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
J. Edgar Clayton, Jr., and Phyllis Clayton (collectively, the
“debtor”) appeal the district court’s affirmance of the bankruptcy
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
court’s final decree closing debtor’s chapter 11 case pursuant to
FED. R. BANKR. P. 3022. Finding no error, we affirm.
I.
This appeal marks another chapter in the long, tortuous
history of debtor’s attempt to extricate himself from a chapter 11
filing that originated in a home loan arranged by Shell Oil Company
(“Shell”), his former employer. After debtor defaulted on the
loan, Shell paid the bank in full and sought successfully a
declaratory judgment in state court to validate the loan and begin
nonjudicial foreclosure. That was May 1991.
After numerous state and bankruptcy court proceedings, the
bankruptcy court in January 1994 confirmed debtor’s chapter 11 plan
of reorganization, which, among other things, permitted Debtor to
continue prosecuting his state court proceedings against Shell. In
March 1995, the bankruptcy court sua sponte found that the estate
has been “fully administered” in compliance with the plan of
reorganization and thus closed the bankruptcy proceeding pursuant
to rule 3022. The district court affirmed.
A.
Debtor asserts that the bankruptcy court erred in closing his
chapter 11 case because it concluded wrongly that the estate has
been “fully administered.”1 We review factual determinations of
1
Rule 3022 provides: “After an estate is fully administered in a
(continued...)
the bankruptcy court for clear error and conclusions of law de
novo. See Haber Oil Co. v. Swinehart, 12 F.3d 426, 434 (5th Cir.
1994).
Although rule 3022 does not define “fully administered,” the
Advisory Committee Notes provide some guidance, listing various
factors a court should consider in determining whether an estate
has been fully administered.2 These factors merely serve as a
guide, however, and each need not be present before the entry of a
final decree. See In re Mold Makers, Inc., 124 B.R. 766, 768
(Bankr. W.D. Ill. 1990).
Indeed, the advisory notes also “make it quite clear that the
entry of a final decree should not be delayed because the bank-
ruptcy court’s jurisdiction might be required in the future.” In
re Jordan Mfg. Co., 138 B.R. 30, 35 (Bankr. C.D. Ill. 1992).
“[E]ntry of a final decree is merely a perfunctory, administrative
event and nothing more than a ministerial housekeeping act which
was never designed to determine with finality the substantive
rights of parties involved in a Chapter 11 case.” Greater
1
(...continued)
chapter 11 reorganization case, the court, on its own motion or on motion of a
party in interest, shall enter a final decree closing the case.”
2
The factors include whether (1) the order confirming the plan has become
final; (2) deposits required by the plan have been distributed; (3) the property
proposed by the plan to be transferred has been transferred; (4) the debtor or
the successor of the debtor under the plan has assumed the business or management
of the property dealt with by the plan; (5) payments under the plan have been
commenced; and (6) all motions, contested matters, and adversary proceedings have
been fully resolved.
3
Jacksonville Transp. Co. v. Willis, 169 B.R. 221, 224 (Bankr. M.D.
Fla. 1994).
Given the ministerial nature of the entry of a final decree
and the fact that such an entry does not deprive the bankruptcy
court of jurisdiction to enforce or interpret its own order or even
to reopen the case pursuant to 11 U.S.C. § 350, see Jordan,
138 B.R. at 35, we reject debtor’s contention that the bankruptcy
court, as a prerequisite to issuing a final decree, must find that
all of the adversary actions that may fund the plan have been
resolved. Irrespective of whether debtor’s state court claims
retain any vitality, the bankruptcy court, having confirmed the
plan of reorganization and exhausted its attendant responsibili-
ties, need not keep debtor’s case on its docket because of the mere
possibility that the court’s jurisdiction may be invoked in the
future.
B.
Debtor next asserts that the bankruptcy court erred in issuing
the final decree because such an order is prohibited by the plan of
reorganization. We disagree. Not only do we find no language in
the plan expressly prohibiting the bankruptcy court’s valid
issuance of a final decree consistent with rule 3022,3 but, even
3
In fact, the only express language in the plan that deals directly with
the issue at hand cuts against debtor. Article VI provides that “[i]f Debtors
fail to obtain a judgment against Shell within two years of the date of
(continued...)
4
assuming such language were present, the court would not be
deprived of its rights under the rule to issue the decree where
appropriate. See Jordan, 138 B.R. at 35. Furthermore, debtor’s
res judicata argument is without merit.4
II.
Finally, we decline debtor’s invitation to disqualify the
district judge because he exercised trial jurisdiction over a
collateral adversary proceeding concurrent with his review of the
bankruptcy court’s entry of the final decree, the subject matter of
the instant appeal. Rice v. McKenzie, 581 F.2d 1114 (4th Cir.
1978), upon which debtor relies, is inapposite, as it counsels
disqualification only where a judge sits in federal district court
on the appeal of the precise habeas corpus petition that he ruled
on previously when sitting on the state supreme court. Nothing in
Rice bars a district judge from hearing an appeal from the
bankruptcy court on the entry of a final decree concurrently with
his trial jurisdiction on a collateral matter.
3
(...continued)
confirmation, the Court, upon notice and hearing, shall order the case dismissed
or converted to a Chapter 7 proceeding in accordance with the best interests if
the creditors.” Because the plan was confirmed in January 1994, debtor’s two
years have expired without his having obtained any judgment against Shell.
4
Citing Miller v. Meinhard-Commercial Corp., 462 F.2d 358, 360 (5th Cir.
1972), debtor argues that the effect of the bankruptcy court’s confirmation of
the plan is res judicata to the court’s ability to issue a final decree under
rule 3022. Miller says nothing of the sort, but rather reinforces the
traditional notion that a plan’s confirmation is res judicata to claims covered
under a properly confirmed plan and raised subsequently by the debtor or
creditors to the plan. See id.
5
Thus, after more than five years, four adversary proceedings,
three federal appeals, two state court cases, two bankruptcy
filings, one plan confirmation, and one adverse award of sanctions,
we reject debtor’s appeal. “It is time for the Debtor to get on
with its business and leave the shadows of the Court.” In re Mold
Makers, 124 B.R. at 769. We counsel debtor, in his capacity as an
attorney and officer of the courtSSas we have so warned him
previouslySSthat further meritless filings, including, without
limitation, frivolous petitions for rehearing or suggestions for
rehearing en banc, will subject him to additional sanctions and/or
discipline.
AFFIRMED.
6