      Case: 10-50764 Document: 00511381784 Page: 1 Date Filed: 02/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        February 14, 2011

                                          No. 10-50764                   Lyle W. Cayce
                                        Summary Calendar                      Clerk



IN THE MATTER OF: LOTHIAN OIL INCORPORATED,

                                                          Debtor

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FCR GUARDIAN TRUST; MYG TRUST; HERZBERG FAMILY TRUST;
YYSD TRUST; FEINBERG FAMILY TRUST; SPITZER FAMILY TRUST;
MOSES FAMILY TRUST; BRENDA CRAYK; HIRSHBERG FAMILY
TRUST; EDMOND BALAKHANE JG TRUST; ALBERT BALAKHANE; S.
POLLAK AUDIOLOGICAL P.C. PROFIT SHARING PLAN,

                                                          Appellants
v.

LOTHIAN OIL, INC., Jointly Administered Cases Lothian Oil (USA),
Incorporated, Lothian Oil Texas I, Incorporated, Lothian Oil Texas II,
Incorporated, Lothian Oil Investments I, Incorporated, Lothian Oil
Investments II, Incorporated, LeaD I JVGP, Incorporated,

                                                          Appellee




                      Appeals from the United States District Court
                            for the Western District of Texas
                                  USDC No.7:09-CV-71


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
     Case: 10-50764 Document: 00511381784 Page: 2 Date Filed: 02/14/2011



                                       No. 10-50764

PER CURIAM:*
       On this appeal, Appellants challenge the bankruptcy court’s entry of
summary judgment ordering pro rata distribution of the funds of the debtor,
Lothian Oil, Inc. (“Lothian”), to holders of Lothian’s preferred stock. Appellants
make this challenge despite the fact that they took a contrary position in the
bankruptcy court when they urged the court to make the pro rata distribution
at the summary judgment hearing. Appellants apparently hired a different
attorney to appeal the summary judgment entered by the bankruptcy court. The
district court, in a straightforward order, affirmed the bankruptcy court’s order
and rejected replacement counsel’s argument that Appellants’ other attorney
was not authorized to argue in favor of the proposed distribution. The record
contains no support for replacement counsel’s contention. We agree with the
district court that this argument is unsupported and without merit. We also
agree with the district court that Appellants are barred on appeal by the
doctrine of judicial estoppel from making arguments contrary to the position
they took during the summary judgment proceedings in the bankruptcy court.
       For these reasons and the reasons assigned by the district court, the
district court’s order is AFFIRMED.




       *
         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.

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