UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARKEN MANAGEMENT,
INCORPORATED,
Plaintiff-Appellant,

and

LARKEN HOTELS LIMITED
PARTNERSHIP,
                                                       No. 97-2625
Plaintiff,

v.

SMWNPF HOLDINGS, INCORPORATED;
SHEET METAL WORKERS' NATIONAL
PENSION FUND,
Defendants-Appellees.

LARKEN MANAGEMENT,
INCORPORATED,
Plaintiff-Appellee,

and

LARKEN HOTELS LIMITED
PARTNERSHIP,
                                                       No. 98-1057
Plaintiff,

v.

SMWNPF HOLDINGS, INCORPORATED;
SHEET METAL WORKERS' NATIONAL
PENSION FUND,
Defendants-Appellants.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-1574-A)
Argued: October 28, 1998

Decided: November 30, 1998

Before WILKINSON, Chief Judge, and LUTTIG and
MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Luttig wrote the opinion, in
which Chief Judge Wilkinson and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: L. Richard Williams, GRANT, WILLIAMS, LAKE &
DANGERFIELD, P.C., Phoenix, Arizona, for Appellant. John
O'Brien Clarke, Jr., HIGHSAW, MAHONEY & CLARKE, P.C.,
Washington, D.C., for Appellees. ON BRIEF: Mark C. Dangerfield,
GRANT, WILLIAMS, LAKE & DANGERFIELD, P.C., Phoenix,
Arizona; Mark Fox Evans, REID & PRIEST, L.L.P., Washington,
D.C., for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Larken Management, Inc. ("LMI") appeals a district court verdict
denying its claim to a hotel that appellee SMWNPF Holdings, Inc.
("Holdings") owns. Holdings cross-appeals the district court's denial
of its counterclaim for attorney's fees and other litigation costs. For
the reasons that follow, we affirm.

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I.

Holdings owns a Doubletree hotel in Nashville, Tennessee, which
it purchased in 1991. Holdings is a wholly owned subsidiary of the
Sheet Metal Workers' National Pension Fund ("Fund"), which at the
time was a partner with LMI's predecessor (Larken Properties, Inc.)
and with Larken, Inc., in Larken Holdings Limited Partnership
("LHLP"). Ed Williams, former manager of investments at the Fund,
was then Vice-President of Holdings. Stewart DeVore and Meg Car-
rell were the chief lawyers for the Larken entities.

LHLP had originally planned to purchase the Doubletree, with the
Fund contributing financing. But in July 1991, LHLP missed an inter-
est payment on a previous loan from the Fund, raising concerns about
its financial viability. At an August 23, 1991, meeting of Williams,
DeVore, and officials of Larken Properties, the parties agreed to mod-
ify the deal so that Holdings would take title to the Doubletree.
DeVore drafted an Assignment Agreement to carry out this modifica-
tion. Williams objected to several clauses, particularly ones stating
that Holdings would hold the Doubletree in trust for LHLP and even-
tually convey it to LHLP. DeVore thus prepared a second draft omit-
ting the "in trust" and "convey" language. The sale closed in
September, with Holdings taking title to the Doubletree. Williams,
however, signed the first draft, by mistake he claims.

Years passed, and Holdings continued to hold the Doubletree with-
out protest from LHLP. Even though LHLP was managing the hotel,
it claims that it "lost track of the Doubletree" and failed to notice its
rights under the Assignment Agreement that Williams had actually
signed.

In 1994, LHLP filed for bankruptcy. In its comprehensive list of
assets, which it was required to file with the bankruptcy court, LHLP
failed to list the Doubletree. In its disclosure statement, LHLP stated
that under the Reorganization Plan "title to all of the Hotels and all
of the Cash Flow will be delivered to" various LHLP creditors, such
that "no present assets will remain with the reorganized Debtor." As
part of the Plan, the Fund's interest in LHLP ended. The Fund and
LHLP also, pursuant to the Plan and the bankruptcy judge's order,
entered into a Release of most of their claims against each other. The

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judge's final order, which took effect in September 1994, provided,
pursuant to 11 U.S.C. § 1141, that "[t]he Debtor, all holders of Claims
and Interests and all other parties in interest are hereby bound by the
Plan."

Over a year and a half later, in April 1996, after"discovering" the
signed Assignment Agreement, LHLP asked the bankruptcy court to
reopen the Plan to allow it to list its claim to the Doubletree. The
bankruptcy judge denied the motion.

In January 1997, Holdings sued DeVore and Carrell in federal
court in Texas, alleging that they had represented Holdings, not
LHLP, in the Doubletree deal, and that they had committed malprac-
tice and breached fiduciary duties in allowing Williams' "mistake."
On October 6, 1997, that court granted summary judgment against
Holdings on the malpractice claim, holding that DeVore and Carrell
were LHLP's attorneys and, in the alternative, that they acted reason-
ably. SMWNPF Holdings, Inc. v. DeVore , No. 4:97-CV-033-A (N.D.
Tex. 1997).

Fifteen days later, following a bench trial, the district court issued
its decision in the suit before us, which LMI had filed in November
1996 on behalf of LHLP. The court found numerous grounds for
rejecting LMI's claim to the Doubletree: res judicata, based on the
bankruptcy Plan; the Release; judicial estoppel; equitable estoppel;
and ERISA. The court also rejected LMI's state-law fraud claim as
barred by the statute of limitations and failing on the merits. Finally,
the court rejected Holdings' counterclaim for attorney's fees and
other litigation costs as "damages" for breach of the Release, and
refused as "moot" LMI's motion to file DeVore as supplemental
authority.

II.

With regard to the res judicata effect of the bankruptcy Plan, we
affirm on the reasoning of the district court. LHLP could have raised
its claim to the Doubletree during the bankruptcy proceeding; it did
not; and LMI has offered no good reason for this failure. See gener-
ally In re Varat Enterprises, 81 F.3d 1310 (4th Cir. 1996); Sure-Snap
Corp. v. State Street Bank & Trust Co., 948 F.2d 869 (2d Cir. 1991).

                     4
Res judicata is no less appropriate as a consequence of the bank-
ruptcy court's denial of the motion to reopen the Plan. The bank-
ruptcy court held that its denial of the motion barred "reopening the
Chapter 11 case to pursue the potential Doubletree Hotel claim in this
Court." Because of the "limited scope" of the hearing on the motion
to reopen, which "prevented the parties from fully litigating" res judi-
cata and related issues, the court stated that its order "should not be
interpreted to preclude Debtor from pursuing any cause of action for
recovery of the Doubletree Hotel in any other jurisdiction." This rul-
ing merely states that the denial of the motion to reopen should not
be treated as preclusive, because the hearing on that motion had been
limited. It says nothing about the res judicata effect of the Plan itself.
On the contrary, and as the district court found, in order to deny the
motion to reopen, the bankruptcy court necessarily had to find that
LHLP could have raised its claim to the Doubletree during the bank-
ruptcy proceeding.

With regard to the meaning of the Release, which the district court
held bars LMI's suit for the Doubletree, we also affirm on the reason-
ing of the district court. As to Holdings' counterclaim for breach of
the Release, we agree with the district court that the American Rule
bars an award of attorney's fees and other litigation costs as "dam-
ages" for such a breach, unless the release provides for them. See
Bunnett v. Smallwood, 793 P.2d 157, 162 (Colo. 1990). It is simple
for parties to include such a clause in a release, and the American
Rule prevents haggling over whether a breach is"obvious," as the
alternative rule requires. See Artvale, Inc. v. Rugby Fabrics Corp.,
363 F.2d 1002, 1008 (2d Cir. 1966) (holding that where release is
silent regarding attorney's fees for a breach, court will allow them
"only for suits brought in obvious breach or otherwise in bad faith").
Other rules already provide remedies for bad faith suits. See Fed. R.
Civ. P. 11. Because the Release is silent on attorney's fees, the district
court properly ruled against Holdings.

We see no reason to reach the issues of judicial estoppel, equitable
estoppel, and ERISA, since both res judicata and the Release suffice
to defeat LMI's claim. With regard to LMI's state-law fraud claim,
to the extent that res judicata and the Release do not bar it, we affirm
on the reasoning of the district court.

                     5
Finally, we reject LMI's assertion that DeVore , issued two weeks
before the district court's decision, bolsters its claim via collateral
estoppel. Although the district court should have considered the possi-
ble preclusive effect of DeVore, its failure to do so does not under-
mine its judgment.

LHLP argues that the court in DeVore held (1) that DeVore and
Carrell had no reason to know of Williams' alleged mistake and (2)
that Williams did not make a mistake. We agree that the court made
the first holding, but that does not alter the res judicata effect of the
bankruptcy Plan or the force of the Release.

We disagree with LMI's claim that the Texas court made the sec-
ond holding. On the contrary, it did not reach the issue of whether
Williams made a mistake, nor did it need to. The court stated that
DeVore and Carrell

          knew that Williams had in his possession both versions of
          the agreement. They knew [Holdings] anticipated reconvey-
          ing the Doubletree to LHLP in the near future. They knew
          that . . . the document he signed was short, to the point, and
          needed no explanation. The [ ] language that Williams has
          recently testified that he specifically reviewed was sur-
          rounded by the trust and conveyance language . . . .[DeVore
          and Carrell] could reasonably have believed that Williams's
          execution of the [first] assignment agreement was consistent
          with the way the transaction was supposed to occur.

This passage considers only the perspective of DeVore and Carrell,
not that of Williams. The only issue before the court was the reason-
ableness of DeVore and Carrell's behavior, and that was all that it
decided. Because issue preclusion requires that an issue "have been
actually determined in the prior proceeding," Ramsay v. INS, 14 F.3d
206, 210 (4th Cir. 1994), we cannot find preclusion on this issue, even
assuming that such would be relevant.

CONCLUSION

For the reasons stated herein, we affirm the judgment of the district
court.

AFFIRMED

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