Opinion
Civil Action No. 3:02-CV-1897-D, (Bank. Ct. No. 00-35322-SAF-11)
January 28, 2003
APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS
This appeal returns to the court following its decision in a prior appeal affirming in part and vacating and remanding in part the bankruptcy court's order granting the debtor's motion to reject an executory contract. See In re Biesel, 2002 WL 746024, at * 13 (N.D. Tex. Apr. 24, 2002) (Fitzwater, J.) (" Biesel I"). In this second appeal, the bankruptcy court's order is affirmed.
I
In Biesel I the court affirmed the bankruptcy court's rulings in all respects except one. It held that it could not uphold the bankruptcy court's estoppel ruling because it was unable to determine whether the court had based the ruling on affirmable findings and conclusions. Id. at * 1, * 12-*13. On remand, the bankruptcy court noted that it could reach the same result as it had originally by withdrawing the alternate estoppel holdings that had prompted the remand. R. 4-5. To comply with this court's mandate, however, it addressed the estoppel issue in detail. Appellants-movants appeal anew.
The bankruptcy court states in its opinion following remand:
With the waiver decision now the law of the case, it does appear that the contract rejection motion has been resolved without the need for further findings or conclusions.
R. 4. In Biesel I appellee did not appear to argue that the bankruptcy court's estoppel holding was in the alternative, and that affirming the waiver decision was sufficient of itself to resolve the appeal.
II
Much of appellants' present appeal is devoted simply to rearguing positions the court rejected in Biesel I. These rulings are the law of the case, and the court declines to disturb them. Appellants also attempt to raise new arguments. The court rejects appellants' attempts to present in this second appeal issues or arguments that they should have, but did not, timely present in Biesel I, and it holds that they are waived. The court therefore turns to the single basis on which it remanded in Biesel I: the bankruptcy court's estoppel ruling.
By October 2, 2002 order, the court carried with the appeal appellee's September 25, 2002 motion to strike appellants' statement of issues on appeal. In view of its disposition of the appeal, the court denies the motion as moot.
In Biesel I the court held that the bankruptcy court's estoppel decision could not be affirmed, and it vacated and remanded for further proceedings. Appellant Jerry W. Biesel ("Biesel") had argued that the bankruptcy court erred by holding that he was equitably estopped from relying on ¶ 4(A) of the March 25, 1994 contract of sale ("Contract"). Biesel sought to contend under ¶ 4(A) that, because he could not have cured a lis pendens filed by the Federal Savings and Loan Insurance Corporation ("FSLIC"), appellee Karl Billings ("Billings") would have been required either to waive his objection or to terminate the Contract. Biesel maintained that the lis pendens was incurable without expense and incurable before the closing date; he was not estopped from relying on the existence of the lis pendens because it did not result from his alleged bad conduct; and the bankruptcy court improperly held him to an elevated standard of conduct because he is a lawyer. Biesel I, 2002 WL 746024, at * 10. This court held that, "[i]f Biesel is estopped from relying on the FSLIC lis pendens notice, it is immaterial that he could not have cured it without expense or before the closing date." Id. The court interpreted the bankruptcy court's decision as based on one of two analytical predicates. Under the first, and more general, one, there was no basis to reverse the bankruptcy court's estoppel ruling. Id. at * 10-*11. Under the second, however, the ruling was not sufficient to permit affirmance. Id at *12. The court stated:
If the bankruptcy court intended to find that equitable estoppel arose at the more particularized level of each title objection, it did not sufficiently address how the misrepresentation that Parque was the seller and would deliver good and marketable title caused a detriment to Billings that estops Biesel from relying upon the incurability (without cost and before the Contract expired) of the FSLIC lis pendens. If the bankruptcy court intended to decide the motion on this basis, Biesel's argument concerning no detrimental reliance must be addressed in more specific findings.Id The court could not determine from the bankruptcy court's opinion on what analytical path it had based its estoppel decision. Id. at *12-*13.
On remand, the bankruptcy court has clarified that its more specific analysis — i.e., the second analytical path — represents alternative analysis to the first. R. 6. It states that it "did not intend to hold that equitable estoppel arose at the particularized level of each title objection." Id. at 7. Instead, "this set of findings addresses performance and not equitable estoppel and had been entered for purposes of completeness." Id. Because the bankruptcy court's first basis for rejecting Biesel's estoppel argument is sufficient to affirm the court's order, it is immaterial whether the bankruptcy court erred in its alternative reasoning. Cf. In re REPH Acquisition Co., 134 B.R. 194, 201-02 (N.D. Tex. 1991) (Fitzwater, J.) ("That the bankruptcy court, in entering its dispositive holding . . ., augmented the decision with dicta, does not present a basis to reverse the bankruptcy court. . . . This court will not by way of appeal modify specific bankruptcy court holdings that are unnecessary to its decision.").
The bankruptcy court's order on debtors' motion to reject executory contract, entered August 29, 2001, is therefore
AFFIRMED.