Laguna Madre Oil & Gas II, L.L.C., et al., (“Laguna”), appeals the bankruptcy court’s denial of its motion for summary judgment. We AFFIRM.
Texas Wyoming Drilling, Inc. (“TWD”) filed a voluntary petition for bankruptcy under Chapter 11. Thereafter, TWD filed its disclosure statement and plan, both of which were approved by the bankruptcy court. Among other things, the plan eliminated all of TWD’s shareholders’ stock interests in TWD.
Central to this dispute are the terms of the plan and the disclosure statement; namely, whether the terms preserved TWD’s claims against Laguna. Under the section entitled “Retention of Causes of Action,” the plan provides that “[t]he Reorganized Debtor shall retain all rights, claims, defenses, and causes of action including, but not limited to, the Estate Actions, and shall have sole authority to prosecute and/or settle such actions.” (R. 122). “Estate Actions” is defined to include claims under Chapter 5 of the Bankruptcy Code. 1 (R. 126-27). The disclosure statement also states that “[t]he Debtor reserves all rights to pursue, at its sole discretion, any Estate Actions not limited to but including any preference to the full extent allowed under the Bankruptcy Code and applicable state laws. The Debtor may also pursue other actions including but not limited to actions under sections 542 and 549 of the Bankruptcy Code.” (R. 113). The disclosure statement again defines “Estate Actions” to include “various potential avoidable transfers that can be recovered under Chapter 5.” (R. 113). Included within the disclosure statement was a chart outlining “various claims and causes of action the Debtor or the Reorganized Debtor may pursue on behalf of the Debtor’s estate.” (R. 114-15). As one of the potential defendants, the chart listed “Various pre-petition shareholders of the Debtor” who might be sued for “fraudulent transfer and recovery of dividends paid to shareholders,” valuing the claims at approximately $4 million. (R. 115).
A few months after confirmation of the plan, TWD sued thirty-two of its former shareholders, including the appellants here, for pre-petition dividend payments that were allegedly fraudulent transfers under 11 U.S.C. §§ 544, 548, and 550, and the Texas Business and Commerce Code, alleging that the former shareholders had received dividends and other transfers equaling millions of dollars while TWD was insolvent (“Avoidance Actions”). (R. 24-29).
Laguna filed a motion for summary judgment, arguing that TWD had no standing because TWD’s plan did not adequately retain the Avoidance Actions under 11 U.S.C. § 1123. In the alternative, Laguna argued that TWD’s claims were barred by res judicata and judicial estop-pel. The day before the hearing on Lagu-na’s motion, the bankruptcy court sua sponte converted TWD’s Chapter 11 bankruptcy to a Chapter 7 bankruptcy because TWD had materially defaulted under the plan. The trustee automatically succeeded TWD as the plaintiff in the Avoidance Actions proceedings against Laguna. The bankruptcy court then denied Laguna’s motion, holding that the defenses were meritless, but that, even if any of them had merit, the court’s conversion of the case meant that the Chapter 7 trustee could pursue the claims even though the post-confirmation Chapter 11 debtor could not. At Laguna’s request, the bankruptcy court certified the order for direct appeal, see 28 U.S.C. § 158(d)(2), and this court granted Laguna’s petition for permission to appeal.
A grant of summary judgment is reviewed
de novo. Fahim v. Marriott Hotel Servs., Inc.,
DISCUSSION
I. Standing
“[A]fter confirmation of a plan, the ability of the debtor to enforce a claim once held by the estate is limited to that which has been retained in the [bankruptcy] plan.”
Dynasty Oil & Gas, L.L.C. v. Citizens Bank (In re United Operating, L.L.C.),
a. Disclosure Statement
We first address Laguna’s argument that this court may not consider the disclosure statement alongside the plan to determine whether the trustee has standing. Although no court of appeals has addressed whether the disclosure statement may be consulted for purposes of standing, courts routinely consult the disclosure statement in deciding whether res judicata and judicial estoppel apply.
See, e.g., Browning Mfg. v. Mims (In re Coastal Plains, Inc.),
We observe that the disclosure statement is the primary notice mechanism informing a creditor’s vote for or against a plan.
See
11 U.S.C. § 1125. Considering the disclosure statement to determine whether a post-confirmation debtor has standing is consistent with the purpose of
In re United Operating’s
requirement: placing creditors on notice of the claims the post-confirmation debtor intends to pursue.
See
b. Language in Plan and Disclosure Statement
Laguna asserts that under this court’s precedent in In re United Operating, TWD failed to retain the Avoidance Actions in the plan and the trustee lacks standing to pursue these claims. After confirmation of the plan, the In re United Operating debtor sought to bring common-law claims against its creditors, including maladministration causes of action. Id. at 356. The plan contained only a blanket reservation of “any and all claims” arising under the Bankruptcy Code, as well as specific reservations of other types of claims also arising under the Code. Id. There was no mention of any common-law claims. We held that “[i]f [the debtor] had wanted to bring a post-confirmation action for maladministration of the estate’s property during the bankruptcy, it was required to state as much clearly in the [p]lan” and that the use of generic language reserving “any and all claims” under the Code was insufficient to retain a claim for maladministration of the estate. Id. Unlike the plan in In re United Operating, which contained only a blanket reservation of “any and all claims,” TWD’s plan and disclosure statement revealed the existence of the Avoidance Actions, the possible amount of recovery to which they would lead, the basis for the actions (namely, pre-petition dividends and transfers to equity interest holders), and that the reorganized debtor intended to pursue the claims. The terms of TWD’s plan and disclosure statement are far more specific than those in In re United Operating.
Additionally, Laguna contends that because the plan and disclosure statement did not name the individual defendants, the debtor failed to retain the Avoidance
In re United Operating’s citation to In re Ice Cream Liquidation’s holding supports the trustee’s argument that a plan need not identify the prospective defendants. However, we need not decide whether a debtor whose plan fails to identify any prospective defendants has standing to pursue post-conformation claims against subsequently-named defendants. Here, the disclosure statement did identify the prospective defendants as “[vjarious pre-petition shareholders of the Debtor” who might be sued for “fraudulent transfer and recovery of dividends paid to shareholders.” We hold that where the plan and disclosure statement reserved the right to pursue the Avoidance Actions against pre-petition shareholders of TWD, the reorganized debtor specifically and unequivocally retained these claims under In re United Operating. The trustee therefore has standing to pursue the Avoidance Actions, 2 and the district court properly denied summary judgment on this ground. 3
II. Judicial Estoppel
The defendants argue that the trustee is judicially estopped from pursuing the Avoidance Actions because TWD failed to disclose the actions on its schedules. This circuit has outlined three requirements for judicial estoppel: (1) clearly inconsistent positions; (2) the court’s acceptance of the previous position; and (3) absence of inadvertence.
Superior Crewboats, Inc. v. Primary P & I Underwriters (In re Superior Crewboats, Inc.),
The defendant’s argument founders on the first requirement because TWD did not take clearly inconsistent positions. As explained above, TWD’s plan and dis
III. Res Judicata
The defendants also argue that the Avoidance Actions are barred by res judicata based on the bankruptcy court’s order confirming the plan. For res judica-ta to apply: (1) the parties must be identical in both suits; (2) a court of competent jurisdiction must have rendered the prior judgment; (3) there must have been a final judgment on the merits in the previous decision; and (4) the plaintiff must raise the same cause of action or claim in both suits.
Howe v. Vaughan (In re Howe),
Res judicata does not apply here. The defendants have not pointed to a prior final judgment on the merits of the Avoidance Actions. “A judgment that expressly leaves open the opportunity to bring a second action on specified parts of the claim or cause of action that was advanced in the first action should be effective to forestall preclusion.”
Vines v. Univ. of La. at Monroe,
CONCLUSION
The bankruptcy court properly denied Laguna’s motion for summary judgment because the plan adequately preserved the Avoidance Actions and the claims were not barred by judicial estoppel or res judicata. We AFFIRM.
Notes
. Avoidance actions arise under Chapter 5 of the Bankruptcy Code, specifically 11 U.S.C. §§ 544-51.
. Laguna also argues that because the plan explicitly released one former shareholder from all liability, it was required to name the individual defendants against whom it would bring suit. Notwithstanding the plan's release of one former shareholder, because the plan and disclosure statement sufficiently reserved the right to bring the Avoidance Actions, the trustee has standing to pursue them.
. Because we hold that the plan and disclosure statement sufficiently preserved the Avoidance Actions, we need not address the Shareholder's appeal of the bankruptcy court's alternative finding that the conversion of the TWD's Chapter 11 bankruptcy into a Chapter 7 bankruptcy conferred standing upon the newly-appointed trustee of the estate.