Flippin v. Wilson State Bank

ON MOTION FOR REHEARING

The Flippins initially argue that our holding that Wilson presented sufficient summary judgment evidence to support the judgment of the lower court was incorrect when viewed in the light of the two-step analysis suggested in Johnson v. Levy, 725 S.W.2d 473 (Tex.App.-Houston [1st Dist.] 1987, no writ). That analysis would require a showing that (1) a full hearing was actually afforded on issues other than the primary issue of protection of a debtor’s equity, and (2) there was an affirmative intent on the part of the bankruptcy court to entertain and dispose of collateral issues before the benefit of res judicata might be invoked. They assert no such showing is existent in this record.

However, as we noted in our original opinion, all parties to this case agreed that the federal law of res judicata is applicable in this case. For these reasons, and under the authorities cited in our original opinion, we remain convinced that our original interpretation and application of that federal law of res judicata is, under this record, correct.

The Flippins also argue that the reorganization plan and confirmation order here in question are, in effect, a consent decree and evidence of the parties’ intent is necessary in order to determine its res judicata *463effect. Since there was no summary judgment evidence as to intent, they conclude, the judgment was incorrect. Again, we disagree and remain convinced that, under this record, the res judicata effect of the bankruptcy court’s order could be determined from the evidence before the trial court without collateral evidence of the parties’ intent.

Correctly asserting that a question of lien validity may be reserved for post confirmation determination, the Flippins next argue that a proper interpretation of the plan would show that the question of their lien validity was reserved for such post confirmation decision and, by its failure to challenge that provision, Wilson is barred by res judicata from now asserting otherwise. We disagree. In our original opinion we discussed in some detail pertinent provisions of the plan and our reasons for concluding that the bankruptcy court only retained jurisdiction over disputes of creditors not described and recognized in the plan. Wilson was, of course, one of the secured creditors described in the plan. After careful consideration of the Flippins’ additional arguments in their motion for rehearing, we continue to believe that the plan was unambiguous and our original interpretation of the plan and effect of the order approving it is correct.

Remaining convinced that our original disposition of this cause is correct, we overrule the Flippins’ motion for rehearing.