            United States Bankruptcy Appellate Panel
                       FOR THE EIGHTH CIRCUIT
                           ________________

                                 No. 09-6073
                              ________________

In re:                                 *
                                       *
Skyline Woods Country Club, LLC,       *
                                       *
      Debtor.                          *
                                       *
Mid-City Bank, a Nebraska Banking      *
Corporation; Liberty Building Corp.,   *
a Nebraska Corporation; David          *
Broekemeier; and Robin Broekemeier, *
                                       * Appeal from the United States
      Movants - Appellants,            * Bankruptcy Court for the District of
                                       * Nebraska
            v.                         *
                                       *
Skyline Woods Homeowners Assoc.        *
and Skyline Woods Revitalization, LLC, *
                                       *
      Objectors - Appellees.           *
                                     _____

                           Submitted: May 28, 2010
                             Filed: June 17, 2010
                                     _____

Before KRESSEL, Chief Judge, FEDERMAN and VENTERS, Bankruptcy Judges.
                                 _____

VENTERS, Bankruptcy Judge.
      This is an appeal of the bankruptcy court's order denying the Appellants’
motion to reopen the Debtor’s bankruptcy case. For the reasons stated below, we
affirm the decision of the bankruptcy court.1

                           I. STANDARD OF REVIEW
       A bankruptcy court’s decision whether to reopen a bankruptcy case is reviewed
for an abuse of discretion.2 A court abuses its discretion “when its ruling is founded
on an error of law or a misapplication of law to the facts.”3 In its application, the
abuse of discretion standard is nearly indistinguishable from the clearly erroneous
standard.4

                                    II. BACKGROUND
       The Debtor, Skyline Woods Country Club, LLC, filed a Chapter 11 bankruptcy
petition on December 15, 2004. On or about February 4, 2005, the Debtor sold
substantially all of its assets, including a portion of a golf course, to Appellants David
and Robin Broekemeier, who took title to the property in the name of Liberty Building
Corp. (“Liberty”).         Appellant Mid-City Bank (“Mid-City”) financed the
Broekemeiers’ purchase of the Debtor’s assets. On February 9, 2005, the bankruptcy
court entered an order (“Sale Order”) approving the sale “free and clear of claims,
liens, and encumbrances.” The Debtor’s bankruptcy case was closed on January 31,
2006.




      1
        The Honorable Timothy J. Mahoney, United States Bankruptcy Judge for
the District of Nebraska.
      2
          In re Pennino, 299 B.R. 536, 538 (B.A.P. 8th Cir. 2003).
      3
        First Nat'l Bank of Olathe, Kansas v. Pontow (In re Pontow), 111 F.3d
604, 609 (8th Cir. 1997).
      4
          Gourley v. Usery (In re Usery), 242 B.R. 450, 457 (B.A.P. 8th Cir. 1999).
                                            2
       The Broekemeiers decided to not reopen the golf course. On April 25, 2006,
approximately one month after learning of this decision, Skyline Woods Homeowners
Association and individual homeowners (collectively, the “Homeowners”) filed suit
against Liberty and David and Robin Broekemeier in the District Court for Douglas
County, Nebraska, asking the court to enforce certain restrictive covenants requiring
that the property be used only as a golf course. Paisley, LLC, now known as Skyline
Woods Revitalization, LLC, filed a separate suit for the same purpose.

       On June 9, 2006, Liberty filed a pleading entitled, “Motion for Enforcement of
the Bankruptcy Court’s February 9, 2005 Order, Including Request for Injunctive
Relief,” in the Debtor’s closed bankruptcy case. The motion alleged that the state-
court lawsuits violated the February 9, 2005 Sale Order and sought an injunction to
prevent those lawsuits from proceeding. The bankruptcy court notified Liberty on
June 12, 2006, that its motion would not be heard unless it moved the court to reopen
the case and paid the necessary filing fee. The court struck Liberty’s motion from the
record. Neither Liberty nor the Broekemeiers took any further action in the
bankruptcy case at that time.

       On March 28, 2007, the state court granted the Homeowners’ motion for
summary judgment, finding that the restrictive covenants requiring the operation of
a golf course run with the land and are enforceable against Liberty. The state court
specifically held that the bankruptcy court order confirming the sale did not eliminate
the restrictive covenants. On August 9, 2007, the state court issued an order clarifying
the order on summary judgment and specifying with more particularity the
requirements to maintain the golf course property in the manner required by the
covenants. Liberty appealed the trial court’s order to the Nebraska Supreme Court.
On December 5, 2008, the Nebraska Supreme Court affirmed the trial court’s order
and held that the restrictive covenants are in effect and enforceable.




                                           3
      Shortly thereafter, Liberty defaulted on its loan to Mid-City, and on December
24, 2008, Mid-City recorded with the recorder of deeds a Notice of Default and
Election to Sell the property.

        On September 25, 2009, the Broekemeiers and Liberty, joined by Mid-City,
filed a motion to reopen the Debtor’s bankruptcy case for the explicit purpose of
initiating an adversary proceeding to “enforce” the bankruptcy court’s February 9,
2005 Sale Order. The complaint attached to the motion sought, inter alia, an
injunction enjoining the homeowners from “enforcing the decisions of the Nebraska
Supreme Court or any Orders arising there from (sic) . . . [and] [d]eclaring that the
Nebraska State Court’s Orders that purport to modify or otherwise alter this Court’s
February 9, 2005 Order are void for lack of subject matter jurisdiction.”

     After notice and a hearing, the bankruptcy court denied the Broekemeiers’ and
Mid-City’s motion to reopen the Debtor’s bankruptcy case. This appeal ensued.

                                 III. DISCUSSION
       Section 350(b) of the Bankruptcy Code governs the reopening of bankruptcy
cases. It provides: “A case may be reopened in the court in which such case was
closed to administer assets, to accord relief to the debtor, or for other cause.”5 The
decision to grant or deny a request under § 350(b) to reopen a bankruptcy case is
committed to the broad discretion of the bankruptcy court.6 A motion to reopen a
bankruptcy case should be granted “only where a compelling reason for reopening the
case is demonstrated.”7 And “[t]he longer the time between the closing of the estate
and the motion to reopen the more compelling the reason for reopening the estate


      5
          11 U.S.C. § 350(b) (West 2010).
      6
          In re Apex Oil Co., Inc., 406 F.3d 538, 542 (8th Cir. 2005).
      7
          See In re Borer, 73 B.R. 29, 31 (Bankr. N.D. Ohio 1987)
                                            4
should be.”8 The availability of relief in an alternative forum is a permissible factor
on which to base a decision not to reopen a closed bankruptcy case.9 “[A] case should
not be reopened to relieve a party of its own neglect or mistake.”10

       The bankruptcy court denied the Appellants’ motion to reopen the Debtor’s
bankruptcy case based on a determination that the dispute the Appellants sought to
adjudicate if the case was reopened – i.e., whether the Sale Order eliminated the
covenants purportedly requiring the operation of a golf course on the property – had
already been decided by the Nebraska Supreme Court, which the bankruptcy court
determined had concurrent jurisdiction to interpret the Sale Order. Citing In re Apex
Oil Co., Inc., for the above-stated proposition that the availability of relief in an
alternative forum is a permissible factor on which to base a decision not to reopen a
bankruptcy case, the bankruptcy court declined to give the Appellants a “second bite
at the apple" in the bankruptcy court after they had chosen an alternative forum for
their dispute.

      We find no error in the bankruptcy court’s findings or conclusions.

A.    The Nebraska Supreme Court had concurrent jurisdiction to interpret the
      Sale Order.

      Federal courts' jurisdiction over bankruptcy cases is governed by 28 U.S.C. §
1334. Section 1334(a) provides that the district court (and by delegation, the
bankruptcy court)11has original and exclusive jurisdiction of “all cases under title 11;”


      8
          In re Apex Oil Co., Inc., 406 F.3d at 543 (quotations omitted).
      9
          Id. at 542.
      10
           In re Borer, 73 B.R. at 31.
      11
           28 U.S.C. 157.
                                            5
Section 1334(b) confers original but not exclusive jurisdiction on all civil proceedings
“arising under title 11, or arising in or related to cases under title 11;” and Section
1334(e) confers exclusive jurisdiction over all the property of the debtor as of the
commencement of the case, and of property of the estate.12

       The Appellants argue that under § 1334(e) the bankruptcy court has exclusive
jurisdiction to interpret the Sale Order because it involves property of the estate and
the bankruptcy court had the exclusive jurisdiction to enter the order. The Appellants
are correct that the bankruptcy court had the exclusive jurisdiction to enter the Sale
Order, and if the Appellants had timely sought to appeal or modify the Sale Order, that
action would also have been within the exclusive jurisdiction of the bankruptcy court
under § 1334(e). However, the Appellants are mistaken in their argument that the
bankruptcy court has exclusive jurisdiction to interpret the Sale Order. At this
juncture, the Sale Order is final, and the property sold to the Broekemeiers/Liberty is
no longer property of the estate. Moreover, despite the Appellants’ framing of the
issue in terms of whether the Nebraska Supreme Court had the jurisdiction to
“modify” the Sale Order, there has been no modification of that order. The Nebraska
Supreme Court simply interpreted the scope of the Sale Order as it applies to implied
covenants running with the land. The fact that the Appellants disagree with the
court’s interpretation does not, in and of itself, transform the interpretation into a
modification of the Sale Order.

      In short, § 1334(e) does not limit jurisdiction to interpret the Sale Order
exclusively to the bankruptcy court.

      Perhaps the strongest basis for the bankruptcy court’s jurisdiction over this
dispute is its implicit authority and jurisdiction to interpret or enforce its own prior



      12
           Section § 1334(c) governs abstention; it is not a grant of jurisdiction.
                                             6
orders,13 but that jurisdiction is not exclusive, even with regard to the interpretation
of orders approving sales of estate property.14

      Matters not committed to the exclusive jurisdiction of the federal courts are
subject to the concurrent jurisdiction of state courts.15 Therefore, the Nebraska State
courts had jurisdiction to interpret the Sale Order, and the bankruptcy court was
therefore correct in its conclusion that alternate relief was available to the Appellants
and within its discretion to deny the Appellants’ motion to reopen the Debtor’s
bankruptcy case.

B.    Res judicata warranted a denial of the Appellants’ motion to reopen the
      case.16
      The bankruptcy court’s decision can also be affirmed on the basis that
reopening the case would have been futile and a waste of judicial resources,17 because



      13
         In re Eveleth Mines, L.L.C., 318 B.R. 682, 687 (B.A.P. 8th Cir. 2004)
(citations omitted).
      14
         Id. at 690-92 (holding that state court had jurisdiction to interpret “free
and clear” language in sale order as it applied to state taxes and directing
bankruptcy court to abstain in favor of state court). See also, In re Middlesex
Power Equip. & Marine, Inc., 292 F.2d 61, 66 (1st Cir. 2002) (finding that state
court had concurrent jurisdiction to interpret “free and clear” language in sale order
as it applied to state taxes and abstaining in favor of state court).
      15
        Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477, 101 S.Ct. 2870,
2785, 69 L.Ed.2d 784 (1981).
      16
         We may affirm the bankruptcy court's order on any basis supported by the
record, even if that ground was not considered by the trial court. Power Equip. Co.
v. Case Credit Corp. (In re Power Equip. Co.), 309 B.R. 552, 559 (B.A.P. 8th Cir.
2004).
      17
           See In re Carberry, 186 B.R. 401, 402 (Bankr. E.D. Va. 1995).
                                           7
the doctrine of res judicata precludes review of the Nebraska Supreme Court
judgment, which is exactly the relief the Appellants sought.

       The doctrine of res judicata prohibits the re-litigation of claims where: 1) a
court of competent jurisdiction rendered the prior judgment, 2) the prior judgment was
final and on the merits, 3) both suits involve the same parties (or those in privity with
them), and 4) both suits are based upon the same claims or causes of action.18 The
party against whom res judicata is asserted must also have had a full and fair
opportunity to litigate the matter in the proceeding that is to be given preclusive
effect.19 The preclusive effect of res judicata includes not only claims and defenses
that were offered and received in the first action, but matters which might have been
decided.20 The Nebraska Supreme Court judgment, as well as the trial court’s
judgment, satisfies all of these elements.

       First, the litigation between the Broekemeiers and the Homeowners resulted in
a final judgment on the merits. The trial court entered a summary judgment against
the Broekemeiers on March 26, 2007, holding that the restrictive covenants on the
property are enforceable and run with the land, and that the bankruptcy Sale Order did
not eliminate restrictive covenants. The Nebraska Supreme Court affirmed the trial
court’s decision on December 5, 2008. Both of those decisions are final and not
appealable.

       Second, as discussed above, the Nebraska State courts had jurisdiction to
interpret whether the bankruptcy court’s Sale Order eliminated the restrictive
covenants.

      18
           See Rutherford v. Kessel, 560 F.3d 874, 877 (8th Cir. 2009).
      19
           Id.
      20
        See Nevada v. United States, 463 U.S. 110, 129-30, 103 S.Ct. 2906, 77
L.Ed.2d 509 (1983)
                                           8
       Third, the state court litigation involved the same parties because Mid-City is
in privity with Liberty. In the Eighth Circuit,“[p]rivity denotes mutual or successive
relationship to the same right of property.”21 A privy is “a person so identified in
interest with another that he represents the same legal right.”22 Mid-City’s interest in
this lawsuit derives from its security interest in Liberty’s property. If Mid-City
forecloses that interest, which it has announced it intends to do, it would be a direct
successor to Liberty’s interests in the property. Thus, Mid-City is in privity with
Liberty for the purpose of applying the doctrine of res judicata to the state court
judgments at issue in this case.23


      21
           In re Marlar, 267 F.3d 749 (8th Cir. 2001)
      22
           Id.
      23
         At the Court’s request, the parties briefed the issue of whether the Rooker-
Feldman doctrine should be applied in this case. Quite clearly, that doctrine
applies to the Broekemeiers and Liberty. However, in contrast to the doctrine of
res judicata, the Rooker-Feldman doctrine does not apply to those in privity with
the original litigants.

      Whatever the impact of privity principles on preclusion rules,
      Rooker-Feldman is not simply preclusion by another name. The doctrine
      applies only in “limited circumstances,” Exxon Mobil, supra, at 291, 125
      S.Ct. 1517, where a party in effect seeks to take an appeal of an
      unfavorable state-court decision to a lower federal court. The
      Rooker-Feldman doctrine does not bar actions by nonparties to the
      earlier state-court judgment simply because, for purposes of preclusion
      law, they could be considered in privity with a party to the judgment.

Lance v. Dennis, 546 U.S. 459, 466, 126 S.Ct. 1198, 1202, 163 L.Ed.2d 1059 (2006).

       Mid-City’s participation in the lawsuit contemplated in the Appellants’ motion
to reopen thus precludes the application of the Rooker-Feldman doctrine. We decline
to address the issue of laches for the same reason. Evidence of collusion might dictate
a different conclusion, but we have no evidence of collusion here.
                                           9
      Fourth, the central issue the Appellants sought to litigate in the bankruptcy
court was the same as they litigated in the state court action – i.e., whether the Sale
Order eliminated the implied restrictive covenants requiring the operation of a golf
course on part of Liberty’s land.

      Fifth, the Appellants – directly or through privity – had a full and fair
opportunity to litigate those issues before the state courts. At least, no allegation to
the contrary has been made.

       Therefore, the judgments entered by the Nebraska trial court and the Nebraska
Supreme Court are entitled to preclusive effect under the doctrine of res judicata.
Reopening the bankruptcy case to re-litigate the issues decided in those judgments
would have been futile. Thus, the bankruptcy court properly exercised its discretion
in refusing to reopen the Debtor’s bankruptcy case.

                               IV. CONCLUSION
     For the reasons stated above, the bankruptcy court’s order denying the
Appellants’ motion to reopen the case is affirmed.




                                          10
