                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                            No.    00-50842


                        In The Matter of:

                     LEWIS MILLER SMYTH, III,

                                                           Debtor;

   W. PATRICK DODSON; BRUCE REPPERT; United States of America,
 ex rel. OFFICIAL UNSECURED CREDITORS COMMITTEE, for the Benefit
                    of the Bankruptcy Estate,

                                                        Appellants,

                                  VERSUS

           KEN HUFF, Trustee; KEN HUFF, Individually,

                                                         Appellees.


          Appeal from the United States District Court
                for the Western District of Texas
                          (SA-00-CV-507)

                          August 7, 2001

Before SMITH, DUHÉ and WIENER, Circuit Judges.

PER CURIAM:1

     Appellants in this case are creditors of the bankruptcy estate

of Lewis Miller Smyth, III. They brought this adversary proceeding

against Ken Huff (“Huff”) in his capacities as both trustee and

accountant to the estate.     The bankruptcy court granted summary


     1
      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this opinion should not be published and is not precedent except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.
judgment to Huff because it determined that all of Appellants’

claims were barred under the doctrine of res judicata, since they

had been fully adjudicated in prior proceedings.      The district

court affirmed.   Having reviewed the applicable law and the record

in this case, we believe that both the bankruptcy and district

courts were correct, and we now AFFIRM.

                            BACKGROUND

     We summarize only the facts relevant to the issues in dispute

in this appeal.    Huff was appointed to serve as trustee in the

Smyth bankruptcy, and with court approval, he appointed himself

accountant for the trustee.      In February 1997, Huff filed an

application for a final decree closing the bankruptcy, as well as

a motion for payment of trustee commission under 11 U.S.C. § 326.2

W. Patrick Dodson (“Dodson”), one of the estate’s creditors and an

Appellant in the instant appeal, filed objections to both of Huff’s

motions the following March.   Dodson asserted that Huff caused the

estate to pay taxes, penalties and interest which were not due,

     2
      Section 326 states in pertinent part: “(a) In a case under
chapter 7 or 11, the court may allow reasonable compensation under
section 330 of this title of the trustee for the trustee’s services
. . . .”

     Section 330 governs the compensation of trustees and other
professionals, and states in pertinent part: “(a)(1) After notice
to the parties in interest and the United States Trustee and a
hearing, and subject to sections 326, 328, and 329, the court may
award to a trustee [or] a professional person . . . – (A)
reasonable compensation for actual, necessary services rendered .
. . .”



                                 2
neglected   to    deduct    thousands       of    dollars   in    administrative

expenses,   and   that     therefore    the      estate   had    not    been   fully

administered and should not be closed.              In an evidentiary hearing

held in June 1997, Dodson argued that Huff was inept and negligent

in the preparation of the estate’s tax returns, and that Huff had

not “done the job any prudent CPA would have done in representing

the estate.”     The bankruptcy court then ordered that the estate be

closed, but it denied payment of compensation to Huff.                           The

district court and the Fifth Circuit affirmed.              See Dodson v. Huff

(In re Smyth), 207 F.3d 758 (5th Cir. 2000).3

     On April 23, 1999, Dodson and other creditors of the estate

filed the present adversary proceeding against Huff.                   They alleged

causes of action against Huff, as trustee, for lack of good faith

and fair dealing, gross negligence, negligence, and breach of

warranty and contract.       They also alleged causes of action against

Huff, as the trustee’s accountant, for negligence and professional

     3
      Apparently, the      basis of Dodson’s appeal of the bankruptcy
court’s actions was        that Huff should be held to personally
reimburse the estate       for damages resulting from his accounting
errors. In affirming       the district court’s rejection of Dodson’s
claims, we stated:

     The district court held that, with the exception of the
     fees incurred for late filing of tax returns [as to which
     Huff conceded error,] there was insufficient evidence in
     the record to support a finding that the Trustee was even
     negligent, much less grossly negligent. This finding was
     not clearly erroneous.

Dodson, 207 F.3d at 762. We find this description of the prior
judgment very significant in our determination that Appellants’
instant suit is barred by res judicata.

                                        3
malpractice.    The bankruptcy court granted Huff’s motion for

summary judgment on the basis that all of the claims were barred

under the res judicata doctrine by its earlier orders closing the

estate and denying compensation to Huff.     Furthermore, the court

determined that the negligence, gross negligence, and malpractice

claims were barred by the Texas two-year statute of limitations.

The district court affirmed. Dodson and the other creditors now

appeal that ruling.

                             DISCUSSION

     We review the grant of summary judgment de novo.    Osherow v.

Ernst & Young, L.L.P. (In re Intelogic Trace, Inc.), 200 F.3d 382,

386 (5th Cir. 2000).   Summary judgment is proper where, considering

the evidence in the light most favorable to the nonmovant, there is

no genuine issue of material fact and the movant is entitled to a

judgment as a matter of law.    Id.; Fed. R. Civ. P. 56(c).

     This appeal is governed by the four-pronged res judicata test

that we stated in our opinion in Intelogic.      Under that test, a

claim is barred by a prior judgment when: (1) the parties in the

prior action and the instant proceeding are identical; (2) the

prior judgment was rendered by a court of competent jurisdiction;

(3) the prior judgment was a final judgment on the merits; and (4)

the same cause of action is involved in both cases.   Intelogic, 200

F.3d at 386.    In considering the fourth prong of the test, we

inquire “whether the two actions . . . are based on ‘the same



                                  4
nucleus of operative facts.’” Id. (citation omitted).4

       Appellants dispute the district court’s determination that the

first and fourth factors of the res judicata test have been met in

this       case.   First,   they   argue   that   the   parties   in    the   two

proceedings were not identical, because in the prior proceeding:

(1) Dodson was the only creditor who filed objections to Huff’s

motions and (2) Huff did not appear in his capacity as the

trustee’s accountant. We reject both contentions. Although Dodson

was the only creditor who chose to file objections, all the

creditors were entitled to do so.          That they did not does not mean

they were not parties to the bankruptcy proceeding.                    Moreover,

although Huff filed a motion for payment of commissions due to him

as trustee, and not for accountant’s fees, Dodson’s objections were

based on the services that Huff had rendered to the estate as its

accountant.        Specifically, Dodson objected that Huff’s improper

preparation of the estate’s tax returns had caused the estate to

unnecessarily pay taxes, penalties and interest that were not due;

that Huff had neglected to take several thousand dollars worth of

deductions that would have benefitted the estate; and that Huff

filed certain returns late. Huff appeared at the June 1997 hearing

to answer these contentions.           Therefore, we find that he was

present in the prior proceeding in his capacity as the trustee’s


       4
      This standard is based on the “transactional test” of the
Restatement (Second) of Judgments § 24 (1982). See Intelogic, 200
F.3d at 386 & n.3.

                                       5
accountant.5

     We find equally meritless Appellants’ contention that the two

proceedings under consideration in this case were not based on the

same nucleus of operative facts.         In Intelogic, the debtor made an

affirmative decision not to file objections to Ernst & Young’s

application for accounting fees under 11 U.S.C. § 330, even though

the debtor suspected that Ernst & Young’s negligent accounting had

caused   it    significant   and   irreversible    cash   flow   problems.

Intelogic, 200 F.3d at 384-86.           When the trustee in bankruptcy

later filed suit against Ernst & Young for malpractice, we held

that the malpractice action and the earlier fee proceeding were

based on the same nucleus of operative facts.        We explained that an

award of professional fees under § 330 “represents a determination

of ‘the nature, the extent, and the value of such services.’”         Id.




     5
      Moreover, given Huff’s presence in the proceeding as trustee,
our precedent does not require that he also had to be present
explicitly in his capacity as accountant.          See Russell v.
SunAmerica Securities, Inc., 962 F.2d 1169, 1173 (5th Cir. 1992)
(citations omitted):

     To satisfy the identity element, strict identity of the
     parties is not necessary.    A non-party defendant can
     assert res judicata so long as it is in “privity” with
     the named defendant. “Privity” is recognized as a broad
     concept, which requires us to look to the surrounding
     circumstances to determine whether claim preclusion is
     justified.

We find, given the facts and circumstances surrounding this case,
claim preclusion is more than amply justified.

                                     6
at 387 (citations omitted).6            “By granting Ernst & Young’s fee

application, the bankruptcy court implied a finding of quality and

value in Ernst & Young’s services. Similarly, the Trustee’s claims

in the present suit arise from Ernst & Young’s alleged omissions in

rendering the very same services considered by the bankruptcy court

in the fee application hearing.”             Id.    Therefore, the malpractice

claims were barred.

     In    the    instant    case,   Appellants        claim     that    the   prior

proceeding had no bearing on the quality of Huff’s accounting

services, because Huff never applied for compensation for these

services.   According to the Appellants, Dodson’s objections to the

improper and incomplete tax returns filed by Huff, the overpayment

of taxes, and his objection that Huff should have submitted amended

returns,    did    not      encompass    allegations        of    negligence      or

malpractice.       Those    objections       were   only   lodged   in    order   to

persuade the bankruptcy court not to close the estate.                   They also

contend that the bankruptcy court did not evaluate “the nature, the

extent, and the value” of Huff’s services as trustee, because his

fee was based on a percentage of the disbursements he made, and

because the court actually denied him compensation.

     6
      Section 330 explicitly directs the bankruptcy court to
consider certain factors in determining the amount of reasonable
compensation to be awarded. These factors include the time spent
on such services, the rates charged, whether the services were
necessary or beneficial, whether they were performed in a
reasonable amount of time, and whether the compensation is
reasonable based on the customary fee of comparably skilled
practitioners. 11 U.S.C. § 330(a)(3).

                                         7
      Although Huff’s fee as trustee may have been based on a

percentage of distributions made, Appellants have not shown why the

court was not required to evaluate the reasonableness of that fee

under § 330. Moreover, although Huff did not seek compensation for

his accounting services, the bankruptcy court expressly considered

the quality of those services because they formed the basis of

Dodson’s objections to the closing of the bankruptcy and the

payment of Huff’s trustee commission.        As Huff points out, and as

we   noted   above,   Dodson’s   written   objections   urged    that   Huff

“unnecessarily paid thousands of dollars in taxes to the Internal

Revenue Service for taxes which would have never been due if the

Trustee’s fiduciary income tax returns had been properly prepared.”

Moreover, Dodson tendered an expert witness at the hearing, a

certified public accountant, who testified to the penalties and

interest that were charged against the estate as a result of Huff’s

improper filings and other negligent tax practices.             Indeed, the

court denied Huff’s motion for trustee commission under § 330

because, based on its evaluation of Huff’s services, it determined

that, while “Mr. Huff[] [had not] done anything to steal from the

estate or [had not] committed any malpractice,” “Mr. Huff could

have handled [the estate’s accounting] more meticulously.”

      Appellants’ complaint in the present adversary proceeding

alleged negligence and malpractice due to the very same accounting

practices Dodson objected to in the prior proceeding. While it may

be true that in the instant malpractice action, Appellants are

                                     8
raising new claims, those claims are based on the same operative

facts that were at issue in the bankruptcy proceeding.                        This

clearly   meets   the   fourth   prong   of    our   res    judicata    test   as

explained in Intelogic.7

     In Intelogic, we stated that even if the four factors of the

res judicata test are met, res judicata does not bar an action

unless    the   plaintiff   “could   and      should    have    brought      [the]

malpractice claims in the former proceedings.”                 Id. at 388.     In

applying this standard, we must consider whether and to what extent

Appellants had an “actual or imputed awareness prior to the fee

hearing of a real potential for claims” against Huff, such as those

asserted in the later malpractice suit.          Id.8      Second, we must ask

“whether the bankruptcy court possessed procedural mechanisms that

would have allowed” Appellants to assert those claims.                 Id.

     In Intelogic, we concluded that the debtor had a “general


     7
      We note that, even if we concluded that Appellants’ claims
against Huff as accountant were not based on the same nucleus of
operative facts at issue in the prior proceeding, most (if not all)
of their claims against him as trustee would still be barred by res
judicata.   That is because, as we explained in Intelogic, the
bankruptcy court’s consideration of a trustee’s motion for
commission under §§ 326 and 330 necessarily involves an evaluation
of the nature, extent and value of a trustee’s services. 200 F.3d
at 387.   By denying Huff’s motion, the court implied a finding
about the quality of his services as trustee, the subject that
forms the basis of Appellants’ present suit.
     8
      We also stated that in “the context of a bankruptcy court
contested matter order, . . . some level of actual or constructive
awareness on the part of the party [now asserting a malpractice
claim] properly carries a greater significance than it might in
other contexts.” Intelogic, 200 F.3d at 391 n.6.

                                     9
awareness” of the potential for claims against Ernst & Young

because it knew at the time of the fee hearing that some of the

accountants’ figures were inaccurate, yet it made a deliberate

decision not to raise any objections in the fee proceeding in

return for Ernst & Young’s agreement to reduce its fee.                      We

rejected the debtor’s contention that, while it had knowledge of

certain   facts,   it   had   not    yet   drawn   conclusions      about   the

significance of those facts, so it could not have had a sufficient

awareness at the time of the fee proceeding.            Id. at 388-89.

     Appellants in the instant case assert that at the time of the

prior proceeding, they “did not yet comprehend” that Huff may have

been negligent or guilty of malpractice.           Appellants’ Brief at 22.

Although Appellants devote a considerable portion of their briefs

to explaining what they did not know, we must focus on what they

did know at the time of the bankruptcy proceeding.                  Appellants

complain that certain tax returns were not attached to Huff’s

motions for a final decree and payment, yet Dodson’s objections

specifically     complained    of    IRS   penalties    and   interest      and

overpayment of taxes by Huff.          Obviously, Dodson must have had

sufficient     information    to    support   these    objections    and    his

contention at the evidentiary hearing that the estate had suffered

from Huff’s “negligence and ineptitude.”              Moreover, Appellants’

expert testified that Huff did not act as a prudent CPA.              Although

it is true that Appellants did not assert any malpractice claims in

the prior proceeding, the key consideration is that they had a

                                      10
“general awareness” of facts that could have supported such claims.

In   other    words,    even   if   Appellants   had    not    drawn       any   legal

conclusions      that    Huff’s     conduct   amounted     to       negligence      or

malpractice (a possibility which is belied by Dodson’s statements

at   the    hearing),   Intelogic     emphasizes   that       we    must    focus   on

Appellants’ knowledge of the relevant facts.                   See also Howe v.

Vaughan (In re Howe), 913 F.2d 1138, 1147 (5th Cir. 1990).

      Appellants next contend that they did not have a reasonable

opportunity to litigate their malpractice claims in the prior

proceeding.      This is because the bankruptcy court did not convert

the proceeding into an adversary proceeding under Rule 3007 of the

Federal Rules of Bankruptcy Procedure. Moreover, they contend that

the court did not permit them to conduct an adequate investigation

of the full extent of their possible causes of action before the

evidentiary hearing.

      Appellants’ arguments lack merit.            In Intelogic, we pointed

out that the trustee could have objected to the fee application by

Ernst & Young, and could have included a claim for affirmative

relief for malpractice.           Id. at 389-90.       This action would have

converted the proceeding into an adversary proceeding under Rule

3007.      Id. at 390 & n. 4.     The bankruptcy court in the instant case

did not invoke Rule 3007 because Dodson and the other creditors did

not assert such claims, even though they had a general awareness of

facts that would have supported those claims.                      With respect to

Appellants’ discovery argument, it appears the bankruptcy court

                                        11
actually postponed the evidentiary hearing on two occasions to

allow additional   discovery.     See   Appellants’   Brief   at   5-7;

Appellees’ Brief at 11 n.4.       Moreover, none of the Appellants

requested additional time at the June hearing to conduct further

discovery or to assert affirmative claims for relief.9

     In short, there is no genuine issue of material fact and

Appellants’ claims are barred as a matter of law.      The bankruptcy

court did not err in granting summary judgment to Huff.       Because we

have disposed of Appellants’ claims on the basis of res judicata,

we find it unnecessary to review the bankruptcy and district

courts’   determinations   that    Appellants’    negligence,      gross

negligence, and malpractice claims were barred by the Texas two-

year statute of limitations.

     AFFIRMED.




     9
      At times in their briefs, Appellants seem to admit that they
had knowledge of certain problems by April 23, 1997, well before
the evidentiary hearing. At other points they claim “the problems
. . . first appeared only shortly before the hearing,” Appellants’
Brief at 16, which still gave them an opportunity to ask the court
for leave to assert affirmative claims for relief and commence
further discovery.

     We also note that it does not appear that Appellants ever
objected in the bankruptcy court that the first prong of our res
judicata test had not been satisfied. Nor did Appellants object to
the lack of available procedures in the bankruptcy court for the
adjudication of their malpractice claims. Instead, their written
response to Huff’s motion for summary judgment focused on the
fourth factor of the test, as well as their lack of awareness of
the potential for legal claims. Therefore, Appellants may well
have waived their other arguments.

                                  12
