                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 99-11107


In The Matter of: JOHN RICHARD SULLIVAN,
                                            Debtor
_________________________

JOHN RICHARD SULLIVAN,
                                            Appellant.



             Appeal from the United States District Court
                  For the Northern District of Texas
                           (3:95-CV-1587-X)

                        September 26, 2000
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

                                   I

     This appeal arises from a bankruptcy adversary proceeding in

which the Federal Deposit Insurance Corporation ("FDIC") and the

Resolution Trust Corporation ("RTC"), acting as receivers for two

failed   lending   institutions,   objected   to     debtor   Sullivan's

discharge.

     Sullivan was a Texas real estate developer who, with the

assistance of his attorneys, established offshore trusts designed

to preserve his assets when his business took a downward turn

("Regent Trusts"). Sullivan's brother was the trustee of Regent

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Trusts. Regent Trusts bought real property ("Meadows North") owned

by Sullivan Investments, Inc., with the purchase money loaned to

Regent Trusts by InterFirst Bank Dallas. When Regent Trusts was

unable to repay the loan, Sullivan loaned Regent Trusts $1.5

million to pay the debt. As his financial position worsened,

Sullivan made many substantial transfers of his assets to Regent

Trusts. These included $10 million in Pennzoil stock, a Ferrari

automobile in 1987, about $3.5 million in various stocks in 1988,

and approximately $1.7 million in stocks in 1989. In 1988, Sullivan

conveyed 3.5 acres of the 4.5 acres of land surrounding his home to

Regent Trusts, leaving him with a one-acre urban homestead, the

maximum allowable to secure oneself from creditors under Texas law.

He had a preexisting debt of $3.25 million to Country Savings bank,

secured by the 4.5 acre parcel. Sullivan opened a brokerage account

for Regent Trusts, which he managed, although his brother was

trustee of Regent Trusts.

      Sullivan     also    created    Manhattan        Beach    Enterprises,    a

corporation that owned household goods and furnishings, nearly all

of which were located in Sullivan's home. Sullivan owned all the

stock in Manhattan Beach Enterprises.

      In 1990, Sullivan and his accountant James Howard established

Korbel Trust and Sherwood Trust, with Sullivan's father Walter as

settlor and Howard as trustee. By this time, Sullivan had become

unable to obtain financing for his real estate projects.                  He used

the   Korbel     Trust    to   maintain       a   brokerage    account,   and   he

                                          2
transferred property, such as the Meadows North property, to

Sherwood Trust. He transferred stock from the Regent Trust to the

Korbel Trust, while the Regent Trust loaned the funds to Korbel

Trust to pay for the transfer.

     Sullivan transferred about $200,000 in cash and personal

property to his wife and siblings in the year prior to his

bankruptcy. Among these transfers was a transfer of a Mercedes Benz

automobile and a painting owned by Manhattan Beach Enterprises,

which owned the personal property located in Sullivan's home.

Sullivan transferred these items to his wife, although these items

were community property in which she already had an interest.

Sullivan failed to report these transfers on his Statement of

Affairs when he filed his bankruptcy petition. After filing his

bankruptcy petition on February 1, 1991, Sullivan transferred

proceeds from the sale of $365,000 of stock to two law firms that

represented him. These transfers were made without the approval of

the bankruptcy court, and he failed to disclose to the bankruptcy

court that the stock remained in his brokerage account after he

filed his petition. Sullivan failed to disclose many other things

of consequence to the bankruptcy court. For example, he failed to

disclose about $500,000 in cash dividends in 1989 and $1.1 million

in cash dividends in 1990. He failed to disclose loans in amounts

of $900,000 from Regent Trusts, and $175,000 from Manhattan Beach

Enterprises. He failed to disclose over $700,000 paid to him from

his father-in-law in a stock transaction. He failed to disclose the

                                 3
property held by Manhattan Beach Enterprises, the Ferrari he

conveyed to Regent Trusts, stock in a golf course and an auto owned

by Sullivan Development Corporation. He failed to disclose his

interest in large amounts of community property. There are many

other assets and interests that Sullivan failed to disclose to the

bankruptcy court, which are reported in detail in the bankruptcy

court's opinion.1

     The bankruptcy court denied Sullivan a discharge because it

determined that Sullivan fraudulently transferred and concealed

assets, intentionally failed to disclose assets, and that his

claimed reliance on his attorneys was not in good faith and did not

provide him with a defense to denial of discharge.

                                 II

     Sullivan argues that, because the plan had been confirmed, the

bankruptcy court was not authorized to refuse him a complete

discharge. Under 11 U.S.C. 1141(d)(1), a debtor is generally

entitled to a discharge when his bankruptcy plan is confirmed.2

     1
         See In re Sullivan, 204 B.R. 919, 929-38 (Bankr. N.D. Tex.
1997).
     2
         The statute provides as follows:

  (d)(1)      Except as otherwise provided in this subsection, in
              the plan, or in the order confirming the plan, the
              confirmation of a plan--

  (A)    discharges the debtor from any debt that arose before the
         date of such confirmation, and any debt of a kind
         specified in section 502(g), 502(h), or 502(i) of this
         title, whether or not--


                                  4
The bankruptcy court applied 11 U.S.C. § 727(a), which, among other

things, authorizes the court to deny discharge if the debtor makes

a false oath or account to the court or transfers assets to defraud

creditors. Sullivan argues that section 727(a) does not apply to

his case. He argues that section 727 applies only to chapter 7

bankruptcies or to bankruptcies in chapter 11 to which 11 U.S.C. §

1141(d)(3) applies.3 Sullivan also contends that section 1141(d)(3)

does not apply to this case, since he continued in business after

the bankruptcy and all or substantially all of his assets were not

liquidated in the bankruptcy.


         (i)    a proof of the claim based on such debt is filed or
                deemed filed under section 501 of this title;

         (ii)   such claim is allowed under section 502 of this
                title; or

     (iii)      the holder of such claim has accepted the plan; and

  (B)    terminates all rights and interests of equity security
         holders and general partners provided for by the plan.

11 U.S.C. § 1141(d)(1).
     3
         11 U.S.C. § 1141(d)(3) provides that:

     (3)    The confirmation of a plan does not discharge a debtor if
            --

            (A)   the plan provides for the liquidation of all or
                  substantially all of the property of the estate;

            (B)   the debtor does not engage      in   business   after
                  consummation of the plan; and

            (C)   the debtor would be denied a discharge under
                  section 727(a) of this title if the case were a
                  case under chapter 7 of this title.


                                   5
      Section 1141(d)(3) does not apply unless all three statutory

requirements are met.4 It bars discharge only where the debtor has

liquidated his assets in the proceeding, has not continued in

business, and would be denied a discharge under section 727(a) if

he were not in a chapter 7 liquidation. Since Sullivan continued in

business after     the    bankruptcy    and    since     his   assets   were    not

completely liquidated, § 1141(d)(3) would not bar his discharge.

However, the bankruptcy court did not apply § 1141(d)(3) to deny

Sullivan a discharge.       Instead, the court applied § 727(a) because

the language of the confirmation plan permitted the court to do

so.5 Section 1141(d)(1) expressly provides that an exception to

discharge may be founded upon "the plan, or in the order confirming

the plan."6

      Section 9.1 of Sullivan's plan provides that "[t]he Debtor

shall not receive a discharge unless the Debtor prevails under all

Section 727 proceedings." Sullivan did not prevail in the section

727   proceeding       brought   against   him    by     the     FDIC   and    RTC.

Accordingly,     the     bankruptcy    court     found    that     Sullivan    had

fraudulently conveyed (or concealed from the bankruptcy court)

millions of dollars in assets and transfers.


      4
      See In re T-H New Orleans Limited Partnership, 116 F.3d 790,
803 (5th Cir. 1997).
      5
          See In re Sullivan, 153 B.R. 746, 750 (Bankr. N.D. Tex.
1993).
      6
          11 U.S.C. § 1141(d)(1).

                                       6
     Sullivan argues that he was led to believe that he would be

denied discharge only under section 1141(d)(3) and that any section

727 proceedings would be brought to attempt to deny him discharge

under § 1141(d)(3) only.7 He claims that the language "all Section

727 proceedings" in his bankruptcy plan is ambiguous. Since the

plan provided that he could be denied discharge if he lost a

section 727 proceeding - and he lost a section 727 proceeding - the

bankruptcy court was empowered to deny him a discharge. There is no

ambiguity   in   the   phrase,   "all   Section   727   proceedings."

     Contrary to Sullivan's assertions, section 9.1 of the plan

also does not contravene other statutory provisions. To condition

discharge on a debtor's prevailing under all section 727 claims

merely supplements the scenario depicted in section 1141(d)(3).

Although there may be some limits to the scope of the plan

exception under section 1141(a),8 the instant plan provision fails

to exceed these boundaries.

     Sullivan's second principal argument - i.e., that he should

receive a discharge under section 1141(d)(3) - similarly proves

unavailing. Section 1141(d)(3) does not bar discharge, as Sullivan

did not liquidate his assets, because he bought much of those

     7
       Mancuso, the bankruptcy trustee, sought to have Sullivan
denied discharge under section 1141(d)(3) in a section 727
proceeding.
     8
      See, e.g., In re Artisan Woodworkers, 225 B.R. 185, 190 (9th
Cir. BAP 1998) (holding that a confirmed plan may not override
section 1141(d)(2) to extinguish or discharge an otherwise
nondischargeable debt).

                                  7
assets from the trustee and used them to continue in his real

estate business. However, as the preceding discussion reveals, this

argument is irrelevant; the court properly denied Sullivan a

discharge under section 1141(d)(1), pursuant to the provisions of

his confirmed bankruptcy plan.




                                  III

     Sullivan further argues that, under his bankruptcy plan, the

FDIC and RTC - along with other Class 5 creditors - were required

to dismiss their claims against him with prejudice. Section 5.1 of

Sullivan's bankruptcy plan provides that litigation by Class 5

creditors listed in Exhibit B attached to the plan would be

dismissed with prejudice. Exhibit B encompasses litigation brought

by the FDIC and RTC against Sullivan and his trusts. However,

Section 4.5 of the plan provides that the creditors whose claims

are listed on Exhibit A would be paid pro rata pursuant to the

plan, but that they could seek repayment in full "against John

Sullivan in the event of a denial of discharge or dischargeability

as to a particular claim." The creditors listed on Exhibit A of the

plan included the FDIC and RTC.

     The district court interpreted the two provisions of the plan

to mean that Sullivan would be able to obtain dismissals with

prejudice unless he were denied discharge - in which case the Class

5 creditors could pursue their claims against him. Sullivan argues

                                   8
that the plan is ambiguous and that the ambiguity should be read

against the trustee, who drafted the agreement and in Sullivan's

favor. Sullivan's preferred reading of the plan references only

Section 5.1, which calls for dismissals with prejudice and release

of claims. His reading completely ignores Section 4.5, which allows

Class 5 creditors to pursue their claims against him if he is

denied discharge.

     Chapter 11 plans are construed as contracts.9 A court should

examine an entire contract to harmonize its provisions and avoid

rendering some of them meaningless.10 Reading the provisions of the

plan together, there is no ambiguity. Class 5 creditors are to be

paid pro rata out of the bankruptcy estate, but they may pursue

their     claims   against   Sullivan      if        he   is   denied     discharge.

Sullivan's    argument   that    he   must      be    categorically       discharged

pursuant to the plan ignores its terms and is without merit.

                                      IV

     In an effort to avoid paying his debts, Sullivan fraudulently

transferred    and   concealed    millions       of       dollars   and   failed   to

disclose many of these transactions and assets to the bankruptcy

court. Sullivan's bankruptcy plan provided that he could be denied

discharge if he did not prevail in all section 727 proceedings. As


     9
       See In re Stratford of Texas, Inc., 635 F.2d 365, 368 (5th
Cir. 1981).
     10
       See Chapman v. Orange Rice Milling Co., 747 F.2d 981, 983
(5th Cir. 1984).

                                       9
Sullivan did not prevail in the section 727 proceeding brought by

the FDIC and RTC, we find that the court correctly denied him a

discharge. The unambiguous language in the plan compels no other

conclusion.

     AFFIRMED.




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