FALSE RIVER, LA (WAFB) - It was an Independence Day on the water for people over in Pointe Coupee Parish at the 31st Annual False River Boat Parade.
Boats, barges and piers were decorated in with stars and stripes---all to honor America.
"It's always fun. It's always family. It's hundreds of boats out here...the weather is just beautiful. Everybody's having a great time," said Marc Barker, the parade's admiral.
Barker and his family took over the parade about ten years ago. Barker says it's always been the community's unique and cool way to celebrate freedom.
"One of the trophies we gave away was 'Should've Got a Trophy' because there's always somebody that should've got a trophy. So we do that. We do the Admiral's Trophy. We have the Founder's Trophy...which is Lionel Kleinpeter...Best Decorated Small Craft and Best Decorated Party Barge," said Barker.
This year was the first time Zachary Perk came to the parade. He says he's enjoying the false river crowd's cooler way of celebrating our nation's independence.
"Mainly it's just about throwing water balloons and having a good time. Most of the time it's about firecrackers. I've never been where you can just come and throw water balloons on the Fourth of July," said Perk.
Perk says he looks forward to enjoying this patriotic holiday, in this family friendly False River style, in the future.
"If you can't spend time with your friends and family, especially on a special day like this, it doesn't make it worth your while," said Perk.
"People are out here enjoying our independence and freedom and just having a wonderful time celebrating the Fourth of July. It is definitely family oriented," said Barker.


From the sun, the rain and the earth; from the vines and the grapes; from the warmth of working hands and effort, our wines are born.
Soft wines, with pleasant bouquet and intense colour. From the grape to the glass, each drop denotes good aging, making it a pleasure; Pleasure of Kings.
Our winery was founded in 1999 in the town of Nájera (La Rioja), also known as the "King's Court" and, paying homage to this noble town, our winey was named Cuna de Reyes (Birth place of kings). Our tradition, love for the earth and its most precious asset – the wine- come from our ancestors. We continue the heritage of our forefathers through the quality of our wine making know-how.
The art of making great wine starts in the vineyards with the daily care of the vines. Careful selection of the fruit at harvest time, and its winemaking controlled process, followed by rest in barrels of noble wood and wine racks, deliver our well regarded wines. This is the same path our forefathers followed, now enhanced by leading edge technology.
We harvest our own grapes from La Rioja Alta, as well as those from contracted vintners in the area. We always care about the quality of the fruit. The main grape variety used for our wines is Tempranillo, however; we also use Grenache and Mazuelo for red wines and Viura for whites.
The production of our wines follows the traditional system of winemaking. We pamper and control every step of the way (de- stemming, fermentation, etc.). The reward for this hard work and dedication is the quality wine that rested in the birth place of the kings, right in the middle of the land where the grapes grew.
Our modern facilities have cutting edge wine making technology. Up-to-date technology, tradition and know-how are the perfect mix to create our wines.
In our winery we produce young wines (white, red and rose), aged wines (crianza and reserva) as well as the Author's Wines called Limited Edition.
All our wines are controlled and certified under the Denominación de Origen Calificada Rioja.
Production: the must is macere ten with the skin for hours. After slight pressing, the must is husked by refrigeration at 14° C. Then it fermented at a controlled temperature of 16° C in stainless steel tanks.
Aroma: fruity, fresh and intense.
Palate:balanced, refreshing, good acidity, soft. Pleasant and persistent aftertaste.
Observations: consume preferably in the first few years (2 years maximum).
Production: Firstly both varieties macerate together during 20 hours, afterwards the must is bled and fermented at a controlled temperature of approximately 16ºC.
Colour: Between onion's skin and salmon. Clear and shiny.
Aroma: Fresh fruit (strawberry, raspberry) with grapefruit or even peach notes.
Palate: Very fresh and smooth. Marked acidity but with pleasant and light ending taste.
Variety: 80% Tempranillo, 15% Garnacha, 5% Mazuelo.
Production: 10 days in stainless steel vats, controlled temperature of no more than 30°C.
Maceration: 14 days in contact with skins and daily pumping over.
Ageing: 12 months in American and French oak casks with racking twice.
Colour: ruby red with garnet hues and medium depth of colour.
Aroma: hints of ripe fruit, toasted oak wood and vanilla.
Palate: round, good structure, delicious, nutty with a hint of vainilla at the end.
Ideal time for drinking: within 1 to 6 years. It could be kept longes in a suitable, cool place.
Food pairing: charcuterie, cheese and meat.
Best to be consumed between: 16-18°C.
Varietal: 85% Tempranillo, 15% Garnacha.
Fermentation: 11 days in stainless steel vats, controlled temperature of no more than 26-28°C.
Maceration: 12 days in contact with skins and daily pumping over.
Colour: cherry red with medium depth of colour.
Aroma: fragrant fresh, fruits of the forest (blackberry currant).
Palate: fresh, fruidy, balanced, with a nice touch of acidity. Ideal time for drinking: 2 years. Food pairing: with all kinds of light meals.
Fermentation: 10 days in stainless steel deposits at a maximum temperature of 28°C.
Maceration: three first days at 14°C for a greater aroma extraction. Tire remaining period (up to 13 days) with its skins and daily over pumping.
Ageing: 10 months in new French oak barreis.
Colour: intense cherry colour Fine red rim.
Aroma: intense predominance of ochre and smoky shades of vanilla, coconut and even tobacco and chocolate.
Palate: tannic, powerful with a long and persistent aftertaste.
Ideal time for drinking: 6 years.
Food pairing: red meat, gama.
Varietal: 85% Tempranillo, 10% Mazuelo, 5% Garnacha.
Fermentation: 10 days in stainless steel vats, controlled temperature of no more than 28°C.
Maceration: 15 days in contact with skins and regular pumping over.
Ageing: Intense cherry with brick red hues. Aroma: hints of ripe fruit, toasted oak wood and vanilla.
Palate: round, velvety tannic, with a spicy background.
Ideal time for drinking: it can be kept for a certain time, with its qualities improving if stoted in a surtable cool place,fresh and ata constant temperature (20-22°C maximum).
Food pairing: red meet, charcuterie and strong chames.
Best to be consumed between: 18-19°C.
30 years ago my grandfather planted this vineyard, with tempranillo variety, in the Mount Valpierre, in the place known as Finca Las Cabras.
In our winery we have a dining room for 120 people.
Currently under the direction of the prestigious Marisol Arriaga, can make your family reunions, work and all type of events.


Amado Alarcón, member of the Social and Organizational Analysis research group, has been elected Chairman of the Committee on Language and Research Society (Research Committee 25) of the International Sociological Association among over 100 members from 40 countries. He is also Chairman of the 'Research Council Nominating Committee 2014-2018' of the International Sociological Association, with about 5,000 members worldwide.
As main coordinator of the program 'Language and Society' at the ISA International Conference held this year in Yokohama, he is involved in organizing 14 sessions with 100 papers.


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The Great Divergence: America's Growing Inequality Crisis and What We Can Do About It
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From Top to Bottom By Timothy Noah Bloomsbury Press, $25.00, 263 pages "To accept that some inequality is a fact of life in a capitalistic economy is not to accept that ever-greater inequality is either necessary or desirable." Journalist...
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Early Man and the Challenge of Conquering the Seas
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Read All About It–You Won't Be Able to Stop By Ioan Grillo Bloomsbury Press, $18.00, 327 pages With marijuana legalized in two states during the last elections, policies and debates around drug use in this country have gotten lots of...
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If you're fascinated in heading to Goal and do a "shop 'til you drop" regime then you have to be well prepared since opening hour for this year's shopping function will be in the early early morning at four am. Conceivably Jessie Bates III Hat , this could be a tiny sacrifice to give thinking of the discount you can get from every single products. Of program, do not fail to remember that every item you see are out there at a initial-occur-very first-serve foundation right until materials very last. So you greater get organize and jot down the items your genuinely require.


Bright and cheerful, the kitchen at >PROPERTY< has everything you need to make your favorite comfort food while you're on vacation.
The bedroom includes a separate seating area.
Catch up on a great book.
Stretch out on the bed and watch a little TV, or check out the ocean view.
From the balcony of Seaside Elegance you'll have a spectacular view of the velvety beach and the Gulf of Mexico. It doesn't get better than this!
If the weather is nice, take advantage and get outside to prepare a grilled meal for your group!
You've found it – the perfect St Pete Beach retreat that's also ideal for a family reunion. Seaside Cottage is located Gulfside, has its own private hot tub and can accommodate up to twelve people comfortably. cont.
You've found it – the perfect St Pete Beach retreat that's also ideal for a family reunion. Seaside Cottage is located Gulfside, has its own private hot tub and can accommodate up to twelve people comfortably. From the moment you arrive, you'll know you picked the perfect vacation!
Park the car in the garage and walk up to the sprawling covered deck. The expansive Gulf view and the white sand beach will take your breath away. The deck is the perfect place to enjoy morning coffee or to sip cocktails created at the home's wet bar as you discuss your day at the beach, fishing, or golfing. Seaside Elegance is heaven on earth. It's the ideal vacation spot. Just below the deck is the patio where the sensational in-ground hot tub is. Imagine the relaxation of soaking in the soothing warm waters while you enjoy the gentle breezes off the Gulf.
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Just beyond the living room is Seaside Elegance's dining room with seating for eight under the magnificent shell chandelier. As enjoyable as your meal may be, it will be hard to keep your gaze from the large windows on the palms and water. If additional place settings are needed, three more guests can sit at the handy breakfast bar. There's also a table for four on the lower deck where you can dine in the salty sea air.
There's also a second sitting area with TV, armchairs, couch, and a nearby dining table for four. This is another great place to enjoy breakfast.
Preparing meals at Seaside Elegance is a pleasure with its huge kitchen that's loaded with appliances, spacious granite countertops, and everything needed to cook and serve favorite recipes. You'll wish you could take this gourmet kitchen home with you to enjoy all year long! Out on the deck, there's a large gas grill if you want to serve steaks or that fish you're planning to catch on a fishing charter.
Seaside Elegance includes three spacious, beautiful bedrooms that can sleep ten. There are also two sleeper sofas that can serve as beds for additional guests.
The master retreat is a little piece of heaven with a king-sized bed, vaulted ceiling, huge windows facing the Gulf, and two armchairs positioned so you can watch the large flat-screen TV. This is a room that is spacious and outfitted with everything you could need for a great night's sleep. There are also French doors leading out onto the deck where you can enjoy a final glass of wine as you listen to the gentle waves lapping the shore. The master ensuite is the perfect complement to this luxurious master bedroom with its large walk-in shower, soaking tub, and handsome vanity with dual sinks and plenty of storage.
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It's hard to imagine a more perfect place to spend a vacation than Seaside Elegance in St. Pete Beach, Florida. Grab a beach towel and walk directly down to the shore to play in the turquoise waters. This will be the vacation to talk about for years to come. Book your preferred dates in paradise today.
*** One month minimum stay required. *** Final pricing will include fees in addition to rent; including a non refundable damage waiver, reservation fee, local and state tax. *** All fees will be provided prior to booking. Please Note: Seaside Elegance does not allow discounts.


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Our Catalog Medical Books Nursing
Veiled Warriors: Allied Nurses of the First World War
Veiled Warriors: Allied Nurses of the First World War by Audible Studios at Spring Brook Audio. Hurry! Limited time offer. Offer valid only while supplies last. Caring for the wounded of the First World War was tough and challenging work, demanding extensive knowledge, technical skill, and high levels of commitment. Although allied nurses were admired in their own time for their altruism and courage, their i
Caring for the wounded of the First World War was tough and challenging work, demanding extensive knowledge, technical skill, and high levels of commitment. Although allied nurses were admired in their own time for their altruism and courage, their image was distorted by the lens of popular mythology. They came to be seen as self-sacrificing heroines, romantic foils to the male combatant and doctors' handmaidens, rather than being appreciated as trained professionals performing significant work in their own right. Christine Hallett challenges these myths to reveal the true story of allied nursing in the First World War - one which is both more complex and more absorbing. Drawing upon evidence from archives across the world, Veiled Warriors offers a compelling account of nurses' wartime experiences and a clear appraisal of their work and its contribution to the allied cause between 1914 and 1918, on both the Western and the Eastern Fronts. Nurses believed they were involved in a multi-layered battle. Primarily, they were fighting for the lives of their patients on the "second battlefield" of casualty clearing stations, transports, and military hospitals. Beyond this, they were an integral component of the allied military machine, putting their own lives at risk in field hospitals close to the front lines, on board hospital ships vulnerable to enemy submarine attack, and in base hospitals subject to heavy bombardment. As working women in a sometimes hostile, chauvinistic world, allied nurses were also fighting to gain recognition for their profession and political rights for their sex. For them, military nursing might help to win not only the war itself, but also a more powerful voice for women in the post-war world.
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The Anatomy of Hope: How People Prevail in the Face of Illness
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Since the time of the ancient Greeks, human beings have believed that hope is essential to life. Now, in this groundbreaking book, Harvard Medical School professor and New Yorker staff writer Jerome Groopman shows us why. The search for hope is mo
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A simple yet profound shift, seeing people as people is an idea so simple you'll swear you've heard it a million times but so profound you'll never stop learning from it. Kimberly White discovered it in a chain of nursing homes whose leaders, nur
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Sarah Jane has no career aspirations; all she wants is to leave school, work as a cashier at Woolworths, and get married. Then everything changes and she finds herself wearing a fluorescent pink uniform and studying to get into nursing school. What i
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Written and reviewed by HESI A2 tutor John Fletcher, M.D.HESI A2 Essentials 2018: HESI Study Guide and Practice Questions for the HESI A2 Exam by Trellis Test Prep is the most comprehensive study guide available for the HESI A2 exam. Our HESI A2 stud
We Band of Angels: The Untold Story of the American Women Trapped on Bataan
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We Band of Angels is the story of women searching for adventure, caught up in the drama and danger of war. On the same day the Japanese Imperial Navy launched its surprise attack on Pearl Harbor in Hawaii, it also struck American bases in the Far Eas
Nursing: The Philosophy and Science of Caring, Revised Edition
By Brand: University Press of Colorado
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Jean Watson's first edition of Nursing, now considered a classic, introduced the science of human caring and quickly became one of the most widely used and respected sources of conceptual models for nursing. This completely new edition offers a cont
The Art of Caring: Holistic Healing Using Relaxation, Imagery, Music Therapy & Touch
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Aspon is the distributor of four one-hour audio cassette tapes that focus on four interventions: relaxation, imagery, music, and touch. Buyers of Holistic Nursing, by the same authors, will want to use this companion resource to implement holistic in
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eLaws | Code of Federal Regulations | United States Code |
United States Code »
All Courts
Bankruptcy Courts
Bankruptcy District Courts
United States Bankruptcy Court, Northern District of Texas
In Re Gibraltar Resources, Inc. , 197 B.R. 246 ( 1996 )
197 B.R. 246 (1996)
In re GIBRALTAR RESOURCES, INC. d/b/a et al., Debtor.
Carey D. EBERT, Trustee for Gibraltar Resources, Inc., d/b/a et al., Plaintiff,
BLACKMAX DOWNHOLE TOOLS, INC., Dailey Directional Services, Denmon's H2S Safety Service, Inc., The Dia-Log Company, Gammaloy, Ltd., Specialty Drilling Fluids, Inc., Marie and Kenneth Pfullman, d/b/a T & S Bits and Rental Service, and Varel Manufacturing Company, Defendants.
Bankruptcy No. 393-37028 RCM-7. Adv. No. 396-3066.
United States Bankruptcy Court, N.D. Texas, Dallas Division.
*247 *248 David R. Snodgrass, Gardere & Wynne, Dallas, Texas, for Varel.
Beverly E. Landis, Arlington, Texas, for Trustee.
J. Max Tucker, Winstead Sechrest & Minick, Dallas, Texas, for Trustee Special Counsel.
Thomas G. Gruenert, Houston, Texas, for Dailey.
AMENDED MEMORANDUM OPINION
ROBERT McGUIRE, Chief Judge.
On November 15, 1995, Carey D. Ebert, Chapter 7 Trustee for the bankruptcy estate of Gibraltar Resources, Inc. ("Debtor") (the "Trustee"), filed a Complaint to Determine, Avoid and Recover Preferences against Dailey Directional Services ("Dailey"), Varel Manufacturing Company ("Varel"), and various other defendants. Dailey and Varel each filed Motions for Summary Judgment. In order to prove a preference, the Trustee must prove each element of § 547(b). Based upon the summary judgment evidence, the Trustee is unable to demonstrate that the pre-petition transfers were made "within 90 days before the date of the filing of the petition" as required under § 547(b)(4)(A). Accordingly, Varel and Dailey's motions for summary judgment are granted and the Trustee is not entitled to recovery under § 550.
From a preference standpoint, the following dates were critical:
1. interpleader commenced on May 27, 1993;
2. the original Agreed Final Judgment determining ownership of the interplead funds was entered on July 9, 1993;
3. ninetieth day before bankruptcy was July 14, 1993;
4. the Amended Final Judgment was entered on July 21, 1993; and
5. the involuntary petition was filed against Gibraltar Resources, Inc., on October 12, 1993.
This Court has jurisdiction to consider this complaint pursuant to 28 U.S.C. § 1334. This matter concerns the proceedings to determine, avoid, and recover preferences and is a core proceeding as defined in 28 U.S.C. § 157(b)(2)(F). Venue in this adversary proceeding was proper in this Court pursuant to 28 U.S.C. § 1409. The motions were heard on February 20, 1996, and were taken under advisement. Pursuant to Bankruptcy Rules 7052 and 7056, the Court makes the following findings of undisputed facts and conclusions of law.
FINDINGS OF FACT
The material facts are undisputed. Various underwriters at Lloyd's, London, and London Companies ("Underwriters") issued an insurance policy to the Debtor to cover loss incurred at a Gonzales County well during the period from February 12, 1992 to February 12, 1993. On November 6, 1992, *249 Underwriters received notice that the Gonzales well experienced a loss. On April 7, 1993, Underwriters adjusted Debtor's claim in the amount of $1,918,817.63.
Prior to paying the claim, Underwriters received correspondence alleging that Debtor had assigned the insurance proceeds to various creditors. Underwriters also received demands that payment be made to the assignees. In substantiation of these allegations, Underwriters obtained a memorandum, written by a Debtor representative and dated April 7, 1993, which listed various creditors that had received assignments of insurance proceeds totaling $2,601,448.44. Dailey was listed as having received an assignment of $131,950.48 and Varel was listed as having received an assignment of $43,333.34.
Upon notification by Underwriters, Debtor disputed the assignment to Dailey and Varel. On May 27, 1993, Underwriters filed an interpleader action in the United States District Court for the Southern District of Texas on the basis of multiple and duplicative claims for the insurance policy proceeds. Underwriter then paid the insurance proceeds of $1,918,817.63 into the Registry of the court to be distributed according to the judgment of the court.
On July 9, 1993, the court entered an Agreed Final Judgment distributing the insurance proceeds to various creditors. The judgment granted Dailey $131,950.48 and Varel $31,033.00. On July 19, 1993, the court amended the judgment. The only substantive change in the Amended Final Judgment was the .265% increase in the amount (from $147,258.57 to $147,649.02) awarded to one of the twenty-nine creditors. On July 21, 1993, the clerk of the court issued Dailey and Varel checks for their respective judgment awards.
On October 12, 1993, an involuntary petition was filed against the Debtor. On November 16, 1993, an order for relief was entered.
CONCLUSIONS OF LAW
In order to demonstrate that Dailey or Varel received a preference payment, the Trustee must prove all the elements of 11 U.S.C. § 547(b). There is one element at issue in the present summary judgment motions. The issue is whether the transfer was within the 90 day preference period before the Debtor's bankruptcy petition.
The Trustee Cannot Establish a Voidable Transfer Within the Ninety-Day Preference Period
It is contended that the assignment of the insurance proceeds occurred outside the ninety-day preference period. The Agreed Final Judgment was signed by Underwriters and the Debtor, and entered on July 9, 1993. The judgment states "that it resolves all controversies regarding rights to recovery of the funds which have been deposited in the Registry." The judgment goes on to state that "all claims by and among all the defendants regarding the Fund are resolved, and each defendant shall receive the following amounts." The judgment then instructs the Registrar of the court "to immediately prepare individual checks for each of the above defendants, with the exception of [the Debtor]." Gibraltar Resources, Inc., d/b/a Ploeger-Hamon No. 1 Joint Venture was awarded $10 under the judgment and amended judgment, but, per paragraph (3) of both judgments, the court registrar was not to prepare such check for Gibraltar. Further, the following parties received the following amounts under the judgement:
Name                          Amount
Atlantis Horizontal Services, Inc.     $ 56,642.93
Resources International Group, Inc.    $147,649.02
(This was changed
to $147,258.57 under
the amended
judgment)
The Court previously entered summary judgment for Defendants herein. The Trustee contends, on motion for rehearing, that these two names were listed d/b/a's of the Debtor, but the summary judgment record does not establish when they became d/b/a's of the Debtor. It is true that the Debtor's style in this bankruptcy included such names, or modifications thereof. However, for purposes of the summary judgment motions at issue, it is meaningless as against the assigned rights of these two defendants whether the Debtor did or did not receive any of the interpled funds under the agreed final judgment.
*250 The Debtor was a defendant in the interplead action. The Debtor signed the Agreed Final Judgment; therefore, the Debtor consented to its form and substance. The execution of the Agreed Final Judgment constituted an assignment of whatever rights the Debtor had in the interplead funds of the other defendants. Debtor's bankruptcy case was commenced on October 12, 1993, which is more than ninety days after the assignment under the Agreed Final Judgment entered on July 9, 1993.
The Trustee argues that, for purposes of a preference action, the transfers occurred on July 21, 1993, which is when the District Court Clerk issued the checks to Dailey and Varel. Given this transfer date, the Trustee claims the ninety-day preference period element of § 547(b)(4) is clearly met. In response, it is contended that the Debtor no longer had any rights to the interplead funds at the time of the disbursement because all of the Debtor's rights in the funds were terminated when the Agreed Final Judgment was entered.
The court disagrees with the Trustee. In the present case, whatever claims the Debtor had to the insurance proceeds were extinguished, at the latest, on the entry date of the Agreed Final Judgment. This is the latest date the transfer was perfected. (§ 547(e)(1)(B)). Section 101(54) defines "transfer" as follows:
"transfer" means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor's equity of redemption.
The July 9, 1993 entry date of the Agreed Final Judgment is outside the preference period. There is significant case law that might well hold that, for purposes of § 547(e)(1)(B), the transfer occurred when the money was placed in the registry of the Court on May 27, 1993. See cases discussing custodia legis hereafter.
In addition, for purposes of applying the preference period, "a transfer occurs on the date the contractual right to payment is assigned, not on the date payment is actually made or collected." In re Adventist Living Centers, Inc., 174 B.R. 505, 512 (Bankr. N.D.Ill.1994). Under the facts of the present case, an assignment of rights is effective when the assignment by judgment was made. As a result, the Debtor did not make a transfer of an interest in property within the preference period even though the District Court Clerk did not issue the check until July 21, 1993.
The Trustee also contends that the date of the Amended Final Judgment of July 19, 1993 is within the preference period and is controlling for determining the date of any transfer in the Debtor's rights in the insurance proceeds. The movants, citing 49 C.J.S. Judgments § 263, argue that the Court should follow the general rules that an Amended Final Judgment: 1) relates back to the original judgment and becomes part of it; 2) leaves the original judgment effective and unimpaired except as amended; and 3) does not create or amount to a new judgment.
Whether the effect of an amended judgment was to vacate or merely amend is not determined by whether the judgment is rewritten as a whole instead of rewriting only the amended portion of the judgment. Webster v. Smith, 226 S.W.2d 250, 252 (Tex. App. — Eastland 1950, no writ). The manner used to effect an amendment to a judgment is immaterial. Id. "The determining factor is the nature of the change made." Id.; Horlock v. Horlock, 593 S.W.2d 743, 745 (Tex.App. — Houston [1st Dist.] 1979, writ ref'd n.r.e.); Home Indemnity Co. v. Muncy, 449 S.W.2d 312, 315 (Tex.App. — Tyler 1969, writ ref'd n.r.e.). If the amendment is to correct a judicial error, then "the prior judgment is at least in part set aside and superseded and there is a new and substituted judgment." Id. at 253; Horlock, 593 S.W.2d at 745; Muncy, 449 S.W.2d at 315. If the amendment is merely to correct a clerical error, then there is no new judgment. Id. A clerical error includes adding or changing something which was omitted by inadvertence so as to accurately portray the judgment which was rendered. Id.
When the amended judgment does not provide language to assist in the determination *251 of the nature of the error, "it will not be presumed that the facts which occasioned such a change were such as to render invalid the judgment under attack. The burden of showing a judgment invalid rests upon the party attacking it." Webster v. Smith, 226 S.W.2d at 252.
The Amended Final Judgment is almost identical to the Final Judgment. The first paragraph of the Amended Final Judgment states, "[i]t has come to the attention of this Court that the Agreed Final Judgment . . . must be amended; therefore, it is ordered vacated and amended as follows." (Emphasis added). The only substantive change is a .265% change (from $147,258.57 to $147,649.02) in an award to Resources International Group, Inc. (see above, "Debtor d/b/a" discussion), one of the twenty-nine listed creditors. The language of the Amended Final Judgment is somewhat troublesome because the Court uses both the words "vacate" and "amended." Considering the language of the first paragraph and the single-minor substantial change in the Amended Final Judgment in the present case, it appears that the District Court was correcting a clerical error and not a judicial error. Therefore, the amended judgment relates back to the original judgment. It should be noted that even if the amendment was to correct a judicial error, the prior judgment would only be set aside to the extent the judgment was revised. The amended judgment still provided that the Defendants received the same amount of the interpled funds. As a result, the judgment date which has the same effect as an assignment date, remains July 9, 1993, which is before the preference period began.[1]
The Trustee cites In re Durant's Rental Center, Inc., 116 B.R. 362, 367 (Bankr.Conn. 1990) and In re Mason, 69 B.R. 876, 884-85 (Bankr.E.D.Pa.1987), for the proposition that the transfer under (§ 547(e)(1)(B)) does not occur until a physical transfer of the funds. Section 547(e)(1)(B) provides:
a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee.
Section 101(36) states:
"judicial lien" means lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.
Prejudgment, the Debtor never had possession or control of the insurance proceeds interpled into the registry. All property that is placed into the registry of the Court is regarded as in custodia legis, and, as such, is not subject to levy and sale by execution or garnishment. Matter of Braen, 72 B.R. 56, 60 (Bankr.D.N.J.1987); First Southern Properties, Inc. v. Vallone, 533 S.W.2d 339, 343 (Tex.1976); Daniels v. Pecan Valley Ranch, Inc., 831 S.W.2d 372, 382 (Tex.App. — San Antonio 1992, writ denied).
In Braen, the court went on to hold that, since the property at issue was in custodia legis and not subject to execution, the trustee's status as a hypothetical lien creditor would not defeat the creditor's interest. 72 B.R. at 60. However, when the court enters a decree of distribution, the property is subject to levy, as to the distributee, under Texas law because the purpose of the in custodia legis doctrine is satisfied. Gonzales v. Daniel, 854 S.W.2d 253, 256 (Tex.App. — Corpus Christi 1993, no writ).
In the case of In re Aspen Data Graphics, Inc., 109 B.R. 677 (Bankr.E.D.Pa.1990), the court held that the transfer was perfected, *252 for transfer purposes (§ 547(e)(1)(B)), when the debtor placed funds in custodia legis pre-bankruptcy. The court stated:
Thus, it appears that the transfer occurred, and was perfected in favor of the defendants, for purposes of § 547(b), when the funds were placed in escrow with the state court. Accord In re Coco, 67 B.R. 365, 369 (Bankr.S.N.D.Y.1986) ("cases are uniform in holding that it is the debtor's deposit of funds into escrow and not the award of judgment or subsequent release of the funds that is the controlling transfer for preference purposes") (emphasis in original). See also In re Newcomb, 744 F.2d 621, 627 (8th Cir.1984); In re O.P.M. Leasing Services, Inc., 46 B.R. 661, 667 (Bankr.S.D.N.Y.1985).
Id. at 682-683 (footnote omitted).
Post-judgment, a simple contract creditor could not have acquired a judicial lien in the interpled funds superior to that of Defendants. § 547(e)(1)(B). Even if a simple contract creditor could have intervened, there is no showing that he could have achieved a judicial lien interest superior to any interest of the other parties in the case because, at the very least, those parties had the same opportunity to achieve a judicial lien of the same rank as the simple contract creditor.
However, to ever get to the judicial lien status, the simple contract creditor would have had to intervene in this case post-agreed judgment. This means obtaining the right to intervene under FRCP 24 and obtaining an order setting aside the agreed judgment. "Absent extraordinary and unusual circumstances, intervention by a party who did not participate in the litigation giving rise to the judgment should not be permitted." Meredith v. Schreiner Transport, Inc., 814 F. Supp. 1001, 1003 (D.Kan.1993), citing, NLRB v. Shurtenda Steaks, Inc., 424 F.2d 192, 194 (10th Cir.1970).
A simple contract creditor has only the rights arising from breach of a simple contract, i.e., a damage claim. There would be insufficient basis for a court to conclude that a simple contract creditor could assert a direct interest relating to the interpled registry funds.
The Claim that the Doctrine of Res Judicata Bars the Trustee's Recovery
It is also contended that the District Court's judgment effectively terminates the Debtor's interest in the insurance proceeds and has the same effect as an assignment to Varel and Dailey. As such, it is argued that the Doctrine of Res Judicata bars relitigation of the claim.[2] Defendants' pleadings are broad enough to include consideration of the doctrine of collateral estoppel.
Collateral estoppel refers to issue preclusion which is narrower than res judicata. Bonniwell, 663 S.W.2d at 818. Collateral estoppel "bars the relitigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit, regardless of whether the second suit is based upon the same cause of action." Bonniwell, 663 S.W.2d at 818. Texas law requires that "[a] party seeking to invoke the doctrine of collateral estoppel must establish (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action." Id.
Requirements (1) and (2) are altered somewhat when the previous action resulted in a consent decree. Kaspar Wire Works, Inc. v. Leco Engineering & Mach., 575 F.2d 530, 539 (5th Cir.1978); Barber v. International Brotherhood of Boilermakers. 778 F.2d 750, 757 (11th Cir.1985). Consent decrees are treated differently because their very purpose is typically to avoid litigation, therefore, requirements (1) and (2) will generally be missing. Id. Courts should "give preclusive effect to issues parties agree to decide by consent decree." In re Graham, 973 F.2d 1089, 1097 (3rd Cir.1992). The central inquiry in determining the preclusive effect of a consent judgment is the intention *253 of the parties as manifested in the judgment or other evidence. Balbirer v. Austin, 790 F.2d 1524, 1527 (11th Cir.1986). "The intent can be inferred from the words of the agreement or from the record." Kaspar, 575 F.2d at 540; Barber, 778 F.2d at 757.
As previously discussed, the Agreed Final Judgment in the present case states that it "resolves all controversies regarding rights to recovery of the funds deposited in the Registry." In addition, the judgment states "all claims by and among all the Defendants regarding the Fund are resolved." The court then goes on to instruct the Registrar of the court to immediately issue checks to each Defendant, with the exception of the Debtor. The language of the judgment clearly indicates that, except as stated therein, the parties to the action intended whatever rights, if any, the Debtor had in the insurance proceeds to be terminated and the judgment to be final. As a result, requirements (1) and (2) are met by the intent of the parties as expressed in the Agreed Final Judgment.
In considering requirement (3), the court looks to applicable case law applying the Doctrine of Res Judicata.[3] As the Trustee concedes, the general rule is that a trustee has no greater rights than the debtor and stands in the shoes of the debtor. Under the general rule, the Trustee would stand in the shoes of the Debtor and would have no rights in the insurance proceeds. A bankruptcy trustee is bound under res judicata by a prior judicial determination of a debtor's rights in property. Kendall Grove Joint Venture v. Martinez-Esteve, 59 B.R. 407, 410 (S.D.Fla.1986) citing Coleman v. Alcock, 272 F.2d 618, 622 (5th Cir.1959). In Coleman, the Fifth Circuit stated that in order for an earlier court judicial determination to have res judicata effect on a trustee, the property's ownership must be put into issue and the action must have been in rem or quasi in rem, not in personam. 272 F.2d at 622.
The Trustee, however, claims that there is an applicable exception to the general rule that the trustee stands in the shoes of the debtor. The exception, according to the Trustee, gives the Trustee "strong-arm" powers to intervene and assert the rights of a "hypothetical lien creditor." In Coleman, the Fifth Circuit stated, "[t]he fact that the Trustee did not intervene is of no real moment. If it is a suit involving title to real property, the Trustee is bound whether he intervenes or not." Id. It appears that collateral estoppel requirement (3) is met because the court had control of a res.
Property in custodia legis is held in possession of a court on behalf of the court. Gonzales v. Daniel, 854 S.W.2d at 256. The court retains control over the held property until it issues orders administering the property. Id. at 256-57; In re Technical Land, Inc., 175 B.R. 792, 794 (D.D.C.1994) citing Hitz v. Jenks, 185 U.S. 155, 22 S. Ct. 598, 46 L. Ed. 851 (1902).
All the requirements of collateral estoppel have been met in the present case. As a result, the District Court's July 9, 1993 judgment terminated the Debtor's interest in the insurance proceeds. Since the Debtor's interest was terminated prior to the ninety-day preference period, the Trustee is unable to meet § 547(b)(4); therefore, the Trustee is not entitled to recovery under § 550.
This opinion amends and supersedes the prior opinion herein.
ORDER OVERRULING TRUSTEE'S MOTION FOR RECONSIDERATION AND AMENDMENT OF MEMORANDUM OPINION AND ORDER
After due hearing and consideration, it is
*254 ORDERED that the motion for reconsideration and amendment of memorandum opinion and order of the Chapter 7 Trustee Carey D. Ebert is, in all things, overruled, except to the extent the opinion is amended by opinion signed this date.
[1] Two Fifth Circuit cases are instructive. The cases addressed the issue of the effect of an amended judgment on the determination of when a judgment is final from which an appeal could be taken. In Offshore Production Contractors v. Republic Underwriters, the court stated that the mere fact that a court "revises a judgment in an immaterial way does not affect the time within which litigants must pursue an appeal." 910 F.2d 224, 229 (5th Cir.1990) citing Federal Trade Commission v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12, 73 S. Ct. 245, 248-49, 97 L. Ed. 245 (1952). The court stated the test was whether the amendment "has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality." Id. In First Nationwide Bank v. Summer House Joint Venture, the court held that a revised order reflecting a minor spelling change in a party's name, but not materially altering the original order, did not enlarge the time for filing an appeal. 902 F.2d 1197, 1200 (5th Cir.1990). By analogy to these cases, the result in the present case would be the same.
[2] In McDaniel v. Camp (In re Camp), 59 F.3d 548, 550 (5th Cir.1995), the court set out the four elements of res judicata in Texas. The fourth element is not present in this case, i.e., that the same cause of action is involved in both suits.
[3] Res judicata refers to "claim preclusion because it bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in the prior suit." Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984). Collateral estoppel refers to issue preclusion which is narrower than res judicata. Bonniwell, 663 S.W.2d at 818. Collateral estoppel "bars the relitigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit, regardless of whether the second suit is based upon the same cause of action." Bonniwell, 663 S.W.2d at 818. One requirement of collateral estoppel is that the parties were cast as adversaries in the first action. Id. One requirement of res judicata is that the parties, or those in privity with them, are identical in both suits. Id. Since the two requirements are so similar, and since collateral estoppel is narrower and encompassed in res judicata, the court finds applicable res judicata case law instructive in the present case.
DocketNumber: Bankruptcy No. 393-37028 RCM-7. Adv. No. 396-3066
Citation Numbers: 197 B.R. 246
Judges: Robert McGuire
Filed Date: 4/17/1996
Precedential Status: Precedential
Modified Date: 3/3/2016
Authorities (28)
Matter of Camp , 59 F.3d 548 ( 1995 )
Hitz v. Jenks , 185 U.S. 155 ( 1902 )
FTC v. Minneapolis-Honeywell Regulator Co. , 344 U.S. 206 ( 1952 )
d-c-coleman-sr-as-trustee-of-florida-carolina-lumber-company-bankrupt , 272 F.2d 618 ( 1960 )
National Labor Relations Board v. Shurtenda Steaks, Inc. , 424 F.2d 192 ( 1970 )
Kaspar Wire Works, Inc. v. Leco Engineering and MacHine Inc. , 575 F.2d 530 ( 1978 )
In the Matter of Arthur D. And Patricia Newcomb, Debtors. ... , 744 F.2d 621 ( 1984 )
39-fair-emplpraccas-1092-39-empl-prac-dec-p-35825-charles-r-barber , 778 F.2d 750 ( 1985 )
Gerald Balbirer, Norman Brainin v. Jack Austin, B.J. ... , 790 F.2d 1524 ( 1986 )
First Nationwide Bank, a Federal Savings Bank v. Summer ... , 902 F.2d 1197 ( 1990 )
offshore-production-contractors-inc-paul-n-dabaillon-trustee-in , 910 F.2d 224 ( 1990 )
in-re-thomas-a-graham-elizabeth-m-graham-debtors-thomas-a-graham , 973 F.2d 1089 ( 1992 )
Home Indemnity Company v. Muncy , 449 S.W.2d 312 ( 1969 )
Matter of Braen , 72 B.R. 56 ( 1987 )
Daniels v. Pecan Valley Ranch, Inc. , 831 S.W.2d 372 ( 1992 )
In Re Mason , 69 B.R. 876 ( 1987 )
In Re Coco , 67 B.R. 365 ( 1986 )
Gonzales v. Daniel , 854 S.W.2d 253 ( 1993 )
Horlock v. Horlock , 593 S.W.2d 743 ( 1979 )
Webster v. Smith , 226 S.W.2d 250 ( 1950 )
View All Authorities »
INTERMARQUE AUTO. PRODUCTS v. Feldman , 21 S.W.3d 544 ( 2000 )
Kipperman v. Onex Corp. , 411 B.R. 805 ( 2009 )
Murray v. ROYAL ALLIANCE ASSOCIATES , 375 B.R. 208 ( 2007 )
In Re Professional Coatings (NA), Inc. , 210 B.R. 66 ( 1997 )
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