IN THE UNITED STATES COURT OF APPEALS

         FOR THE FIFTH CIRCUIT
                 _______________

                   No 02-20137
                 Summary Calendar
                 _______________



                IN THE MATTER OF:

     EQUALNET COMMUNICATIONS CORPORATION;
          ERUDITE COMMUNICATIONS, INC.,
    FORMERLY KNOWN AS EQUALNET CORPORATION;
          RIDENT COMMUNICATIONS, INC.,
      FORMERLY KNOWN AS USC TELECOM, INC.,

                                    Debtors.




           RFC CAPITAL CORPORATION,

                                    Appellee,

                    VERSUS

     EQUALNET COMMUNICATIONS CORPORATION;
          ERUDITE COMMUNICATIONS, INC.,
    FORMERLY KNOWN AS EQUALNET CORPORATION;
          RIDENT COMMUNICATIONS, INC.,
      FORMERLY KNOWN AS USC TELECOM, INC.,


                                    Appellants.
                                      _________________________

                              Appeal from the United States District Court
                                  for the Southern District of Texas
                                            No H-01-2024
                                   _________________________
                                         September 30, 2002




Before HIGGINBOTHAM, SMITH, and                            filed, the debtors could not obtain unsecured
  CLEMENT, Circuit Judges.                                 credit for their ordinary operating expenses
                                                           under 11 U.S.C. § 364(a). In four debtor-in-
JERRY E. SMITH, Circuit Judge:*                            possession financing orders (“DIP orders”),
                                                           the bankruptcy court therefore authorized
   Equalnet Communications, Erudite Com-                   additional credit from RFC to the debtors and
munications, and Rident Communications                     gave RFC administrative priority under 11
(“debtors”) appeal an order of the district                U.S.C. § 364(c)(1).
court reversing three orders of the bankruptcy
court that had required RFC Capital Corpora-                   In March 2001, the bankruptcy court en-
tion (“RFC”) to extend debtor-in-possession                tered a sale order authorizing the debtors to
financing without any security or administra-              sell their assets to CCC Globalcom Corp., Inc.
tive priority. Agreeing with the district court            (“CCCG”), for $500,000 in cash and the as-
that RFC never agreed to such an obligation,               sumption of RFC’s pre-petition secured claim.
we affirm.                                                 The sale order stated that RFC’s claims over
                                                           $7.5 million would be treated as unsecured
                       I.                                  claims. In three subsequent funding orders,
    RFC served as a primary lender to the debt-            the bankruptcy court ordered RFC to extend
ors before and after they filed a bankruptcy pe-           post-petition credit to the debtors and, more
tition in August 2000. When the debtors filed              importantly, held that the sale order overrode
the petition, RFC had a secured claim against              the DIP orders and stripped these post-petition
them for $7,655,173.1 After the petition was               loans of their administrative priority status,
                                                           thereby making them general unsecured loans.

   *
                                                              RFC appealed to the district court, which
     Pursuant to 5TH CIR. R. 47.5, the court has           reversed the funding orders. In a short opin-
determined that this opinion should not be pub-
                                                           ion, the district court concluded that the bank-
lished and is not precedent except under the limited
                                                           ruptcy court had misinterpreted the plain lang-
circumstances set forth in 5TH CIR. R. 47.5.4.
                                                           uage of the sale order. The district court held
   1
     The debtors’ unsecured creditors committees           that the section of the sale order limiting
disputed the amount of this claim and filed an ad-         RFC’s secured claims to $7.5 million referred
versary proceeding in the bankruptcy court against         only to RFC’s pre-petition loans, not its post-
RFC.

                                                       2
petition loans. The district court therefore re-           Cir. 2000). “[W]e should review de novo the
instated the administrative priority for these             purely legal issues . . . but should defer to the
post-petition loans. The debtors appeal this               bankruptcy court’s reasonable resolution of
ruling.2                                                   any ambiguities in the [orders].” Id. At the
                                                           same time, we explained that textual inter-
                       II.                                 pretation of a court order is ultimately a legal
   The parties agree on the basic standard of              question, so the order “must be truly am-
review for a bankruptcy appeal. “The court                 biguous . . . before we will defer.” Id.
reviews the findings of fact by the bankruptcy
court under the clearly erroneous standard and                As we explain below, the sale order is not
decides issues of law de novo.” Haber Oil Co.              ambiguous, and “we will not defer to the bank-
v. Swinehart (In re Haber Oil Co.), 12 F.3d                ruptcy court’s interpretation of this un-
426, 434 (5th Cir. 1994).                                  ambiguous text.” Id. at 489. We therefore re-
                                                           view the sale order and related documents
   The parties disagree, though, on whether                de novo.
and to what degree we should defer to the
bankruptcy court’s interpretation of its own                                     III.
orders. RFC contends that we should review                    The sale order is a consent order that we
the bankruptcy court’s interpretation wholly               review according to ordinary principles of con-
de novo without any deference. The debtors                 tractual interpretation. United States v. ITT
think we should defer to the bankruptcy                    Cont’l Baking Co., 420 U.S. 223, 236 (1975);
court’s interpretation of its orders.                      Eaton v. Courtaulds of N. Am., Inc., 578 F.2d
                                                           87, 90 (5th Cir. 1978). “Even in bankruptcy
   We stated the “proper reconciliation of                 proceedings, the courts of appeals look to
these two positions” in New Nat’l Gypsum Co.               state law to decide contractual issues.” River
v. Nat’l Gypsum Co. Settlement Trust (In re                Prod. Co. v. Webb (In re Topco, Inc.), 894
Nat’l Gypsum Co.), 219 F.3d 478, 484 (5th                  F.2d 727, 738 (5th Cir. 1990).

                                                               Texas contract law provides the guiding in-
   2
      The debtors contend that the district court          terpretive principles for this case. Most im-
lacked jurisdiction over RFC’s appeal because              portantly, “[i]n the interpretation of contracts
RFC did not file the appeal within ten days of the         the primary concern of the courts is to ascer-
entry of judgment. See FED. R. BANKR. P. 8002.             tain and to give effect to the intentions of the
Although RFC filed a notice of appeal within ten           parties as expressed in the instrument.” R&P
days of each of the three funding orders, the debt-        Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596
ors argue that RFC really appeals the sale order,          S.W.2d 517, 518 (Tex. 1980). Moreover,
not the funding orders.
                                                           “[t]his court is bound to read all parts of the
    This argument is unpersuasive. RFC had no
                                                           contract together to ascertain the agreement of
reason to think that it would be required to lend to       the parties.
the debtors on an unsecured basis without adminis-
trative priority until the bankruptcy court entered          The contract must be considered as a
the funding orders. RFC therefore timely appealed,         whole.” Forbau v. Aetna Life Ins. Co., 876
and the district court properly exercised jurisdic-        S.W.2d 132, 133 (Tex. 1994). If the contract
tion over that appeal.

                                                       3
incorporates other documents by reference, we           of facts states that “[t]he claim of RFC is
must examine those documents, as well, to as-           fixed, for the purposes of this Sale Order, at
certain the parties’ intent. Owen v. Hendricks,         $7,500,000” (emphasis added), without pre-
433 S.W.2d 164, 166 (Tex. 1968). Finally, a             judicing in any way the adversary proceeding.3
contract contains an ambiguity only when its            Likewise, section 2.2(c) of the Asset Purchase
terms are objectively ambiguous, not simply             Agreement (“APA”), which the sale order
because the parties offer differing interpreta-         incorporates by reference, limits RFC’s claim
tions. Forbau, 876 S.W.2d at 134.                       to the lesser of $7.5 million or the amount
                                                        determined in the adversary proceeding.
    With these principles in mind, we conclude          Section 2.2(c) initially required the debtors to
that the sale order is unambiguous and does             request a final order from the bankruptcy court
not strip RFC’s post-petition loans of admin-           approving a compromise amount between the
istrative priority status. The bankruptcy court         unsecured creditors committees and RFC.
relied on paragraph 25 of the sale order to             Yet, once it appeared that the committees and
conclude that the sale order overrode the DIP           RFC would not settle the adversary proceed-
orders and reduced RFC’s post-petition loans            ing, the debtors and CCCG amended section
to general unsecured status. Paragraph 25               2.2(c) expressly to disclaim any prejudice to
states in pertinent part that “[t]o the extent          the adversary proceeding.
that RFC asserts that its claim against the
Debtors is in excess of $7.5 million, RFC shall            These contractual provisions demonstrate
be permitted to assert a deficiency claim               that paragraph 25 refers only to RFC’s pre-
against the Debtors equal to the amount of its          petition secured claim, not its post-petition ad-
alleged claim less $7.5 million (‘the RFC               ministrative priority claim. Paragraph 25
Deficiency Claim’). The RFC Deficiency                  merely carried out the deal-making compro-
Claim, if allowed, shall only be allowed as a           mise between the debtors and CCCG by allow-
general unsecured claim.”                               ing CCCG to purchase debtors’ assets without
                                                        the risk of an unexpectedly large claim by
    Paragraph 25 admittedly seems to limit              RFC.
RFC to a secured claim of $7.5 million, but the
bankruptcy court failed to interpret paragraph             A supplemental order concerning the pro-
25 in the context of the contract as a whole.           cedures for the asset sale entered in April 2001
In this context, paragraph 25 limits only RFC’s         also evidences that paragraph 25 did not strip
pre-petition secured claim, not its post-petition       RFC’s post-petition loans of administrative
administrative priority claim.                          priority status. The order stated that CCCG’s
                                                        assumption of RFC’s pre-petition loans “in the
   Uncertainty over the amount of RFC’s pre-            approximate amount of $7.5 million . . . shall
petition claim threatened the sale of the debt-
ors’ assets to CCCG. The unsecured creditors
committees had filed an adversary proceeding               3
                                                              The sale order contains two sets of sequen-
to challenge the amount of RFC’s pre-petition           tially numbered paragraphs. The first set express-
secured claim. The parties set aside the dis-           es the bankruptcy court’s findings of facts, the sec-
pute for the sake of consummating the sale.             ond set its order. We cite the latter by paragraph
Thus, paragraph 33 of the sale order’s finding          number alone and the former by paragraph number
                                                        and the phrase “findings of fact.”

                                                    4
be treated as consideration to the Debtors’                RFC surely would not have agreed to sur-
estates in the amount of $7.5 million solely for       render its administrative priority claim for a
the purposes of the sale of the Debtors’               general unsecured claim without some very
assets” (emphasis added). The order also               good reason, yet the debtors have singularly
stated that “RFC shall comply with the various         failed to adduce any such reason. This failure
debtor-in-possession orders entered in this            strongly suggests that RFC did not, in fact,
case.” Although not a part of the sale order,          ever surrender its administrative priority claim,
this language from the supplemental order              but rather lost the claim because of the
demonstrates that the parties and the bank-            mistaken interpretation of the bankruptcy
ruptcy court believed that the DIP orders, i.e.,       court. As the district court explained, how-
RFC’s obligation to loan to the debtors and its        ever, “[t]he bankruptcy court cannot transform
right to administrative priority, remained in          the loans from an administrative expense into
effect after the sale order.                           an unsecured interest without the lender’s con-
                                                       sent.” The district court properly held that the
   The debtors also argue that paragraph 27 of         loans made by RFC under the DIP orders have
the sale order amends or vacates the DIP or-           administrative priority.
ders. Paragraph 27 states, in pertinent part,
that “all orders of this court . . . shall be             The judgment of the district court, re-
deemed amended and/or vacated to the extent            versing the orders of the bankruptcy court, is
required to permit consummation of the Ac-             AFFIRMED.
quisition. To the extent such other . . . orders
are inconsistent with this Order or the [APA],
this Order and the [APA] shall in such cases
govern.” As we have explained, however, par-
agraph 25 unambiguously covers only RFC’s
pre-petition claims, not its post-petition
administrative priority claims. Thus, the sale
order and the DIP orders do not conflict, and
paragraph 27 does not amend or vacate the
DIP orders.

   Finally, we note the improbable nature of
the debtors’ theory. A claim with administra-
tive priority under § 364(c)(1) is one of the
most valuable claims under the Bankruptcy
Code; it takes priority over almost every other
kind of claim, including administrative claims
under § 503(b) and § 507(b). A general unse-
cured claim, on the other hand, is one of the
most worthless claims under the Code; un-
secured creditors o ften receive mere pennies
on the dollar, if that.



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