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Tope v. Christianson (6/5/98), 959 P 2d 1240


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


ROBERT S. TOPE, JUDITH TOPE,  )
and TOPE EQUIPMENT COMPANY,   )    Supreme Court Nos. S-7865/7925
                              )
             Appellants,      )    Superior Court Nos.
                              )    3AN-88-3131 CI and
     v.                       )    3AN-96-2654 CI
                              )
JAMES H. CHRISTIANSON, as     )    O P I N I O N
Successor in Interest to      )
JAMES W. CHRISTIANSON,        )    [No. 4997 - June 5, 1998]
                              )
             Appellee.        )
______________________________)



          Appeal in File No. 3AN-88-3131 CI from the
Superior Court of the State of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt, Judge.  Appeal in File No. 3AN-96-2654 CI
from the Superior Court of the State of Alaska, Third Judicial
District, Anchorage, Peter A. Michalski, Judge.  
                    

          Appearances: Cabot Christianson and Gary
Spraker, Bundy & Christianson, Anchorage, for Appellants.  John R.
Beard, Anchorage, for Appellee.  


          Before: Matthews, Chief Justice, Compton,
Eastaugh, and Bryner, Justices. [Fabe, Justice, not participating.]


          EASTAUGH, Justice.


I.   INTRODUCTION
          The superior court dismissed a claim by the present
owners of real property to recover environmental remediation costs
from the prior owners who allegedly contaminated the soil.  Because
this remediation claim was not preserved in the landowners' prior
bankruptcy proceeding in which the predecessor owners were
creditors, we hold that the doctrine of res judicata bars the
landowners' claims and affirm the judgment below.  
II.  FACTS AND PROCEEDINGS
          Judith and Robert Tope purchased two lots of land from
James W. Christianson in May 1984.  The Topes signed a promissory
note for $450,000 of the purchase price, and a deed of trust to the
property to guarantee the sale.  The Topes conveyed both lots to
Tope Equipment Company (TEC), of which the Topes are the only
shareholders. [Fn. 1]
          TEC became delinquent on the note, and in March 1988
Christianson sued the Topes for the principal and interest due on
the note -- a total of $472,448.11, plus interest accruing between
the default and the date of judgment.  Christianson v. Tope, No.
3AN-88-3131 Ci. (Alaska Super., February 16, 1993) ("Christianson
I"). Christianson amended his complaint to join TEC and to request
foreclosure on the deed of trust.  In October 1988 TEC filed for
bankruptcy in the United States Bankruptcy Court for the District
of Alaska, thus staying the action as to TEC.
          Christianson continued his collection action against the
Topes individually and moved for summary judgment.  In September
1989 the Topes opposed Christianson's motion for summary judgment,
stating that they had discovered two makeshift underground fuel
storage tanks on the property during the course of the state court
litigation.  One tank had leaked, and it failed environmental tests
in March 1989.  The Topes testified that they had spent over
$77,000 to correct the environmental damage caused by the leak, and
that they believed that the total cost to dispose of the
contaminated soil may exceed $150,000.
          In October 1989 the superior court granted summary
judgment to Christianson, holding the Topes personally liable on
the deed-of-trust note for $445,210.96, plus interest.  The court
also allowed the Topes to amend their answer to assert a
counterclaim against Christianson for the costs of the
environmental remediation.  In November 1989 the Topes moved for
relief from judgment and for a stay of execution until the
adjudication of their counterclaim.  Their motions were denied. 
The Topes filed individually for bankruptcy in June 1990, staying
Christianson's state court case against them. 
          In the bankruptcy court, TEC moved under 11 U.S.C. sec.
506(c) to charge Christianson for the remediation costs. [Fn. 2] 
On November 1, 1990, the bankruptcy court denied TEC's motion,
reasoning that costs charged to the secured creditor under sec.
506(c)
must be primarily for the benefit of the secured creditor rather
than for the benefit of the debtor.  Noting that TEC planned to
continue using the property, the bankruptcy court concluded that
the remediation costs would primarily benefit TEC, not the secured
creditor.  The bankruptcy court therefore denied TEC's sec. 506(c)
motion without addressing the merits of the remediation
counterclaim.
          While the sec. 506(c) motion was pending, TEC and the
Topes
submitted their financial disclosure statements.  TEC filed its
second amended plan of reorganization on November 21, 1990, three
weeks after the bankruptcy court denied TEC's sec. 506(c) motion. 
In
the spring of 1991, the bankruptcy court confirmed that plan, which
did not disclose TEC's intention to pursue the counterclaim against
Christianson after the bankruptcy proceedings.  As part of the
confirmed plan, TEC gave Christianson two promissory notes: one for
$150,000, secured by a lien on one of the lots; and one for
$188,900, for the unsecured portion of the purchase price of the
two lots.  James W. Christianson transferred the second note to his
father, James H. Christianson, in May 1993. [Fn. 3] 
          TEC paid the $150,000 note; it is not at issue here.  On
the second note, however, TEC paid about $98,000, leaving about
$90,000 unpaid.  In April 1996 Christianson sued TEC for the
remaining $90,000.  Christianson v. Tope Equip. Co., No. 3AN-96-
2654 Ci. (Alaska Super., September 24, 1996) ("Christianson II").
          TEC answered in May 1996, denying the allegations and
asserting the affirmative defense of setoff.  In June 1996 TEC
moved to amend its answer to assert the costs of the environmental
remediation as either a counterclaim or an affirmative defense. 
TEC also asked the superior court to consolidate this case with
Christianson I. 
          In September 1996 the superior court granted Christianson
summary judgment in Christianson II (the action against TEC for the
last $90,000).  The superior court entered judgment against TEC for
$111,289.89 (principal, interest, and attorney's fees), plus
interest from the date of judgment until payment.
          In January 1993 the clerk of the superior court had
entered a notice of intent to dismiss Christianson I for failure to
prosecute.  The notice apparently reached Christianson, but it
never reached the Topes, TEC, or their attorney.  The superior
court dismissed the case without prejudice on February 16, 1993. 
In June 1996 TEC and the Topes moved to set aside the Christianson
I dismissal and to consolidate Christianson I and Christianson II;
the court denied those motions and denied the subsequent motion by
TEC and the Topes for reconsideration.
          The Topes appeal the denial of the motion to set aside
the dismissal of Christianson I, and TEC appeals the summary
judgment against it in Christianson II. [Fn. 4]   
III. DISCUSSION
          Christianson contends that the superior court correctly
granted him summary judgment in Christianson II. [Fn. 5]  He
asserts that TEC is bound by the terms of the confirmed bankruptcy
reorganization plan, which does not specifically reserve the
environmental counterclaim, and by TEC's failure to assert its
counterclaim during the bankruptcy proceeding.  He argues that res
judicata, estoppel, and the statute of limitations bar the Topes or
TEC from asserting the counterclaim. [Fn. 6]
          TEC agrees that confirmed reorganization plans are final
and binding for purposes of res judicata.  Nonetheless, it reasons
that it should be allowed to proceed with its environmental
remediation claim because it reserved the claim during the
bankruptcy proceeding, and because both parties, as well as the
bankruptcy court, understood that the claim would survive the
bankruptcy.  TEC also reasons that the statute of limitations
should not prevent it from litigating its claim because TEC seeks
only an offset or recoupment, not an affirmative recovery.
          The superior court granted summary judgment to
Christianson, but did not enter findings of fact or conclusions of
law.  We hold that res judicata bars TEC from asserting its
counterclaim now. 
          We have explained that, under the doctrine of res
judicata, 
          a judgment in a prior action operates as a bar
to a subsequent action if (1) the prior judgment was a final
judgment on the merits, (2) a court of competent jurisdiction
rendered the prior judgment, and (3) the same cause of action and
same parties or their privies were involved in both suits.

Blake v. Gilbert, 702 P.2d 631, 634-35 (Alaska 1985), overruled on
other grounds by Bibo v. Jeffrey's Restaurant, 770 P.2d 290, 295
(Alaska 1989).  See also Holly's, Inc. v. City of Kentwood (In re
Holly's, Inc.), 172 B.R. 545, 563 (Bankr. W.D. Mich. 1994), aff'd,
178 B.R. 711 (W.D. Mich. 1995).  Res judicata precludes subsequent
litigation of any claim that was or could have been litigated in
the earlier proceeding.  See DeNardo v. State, 740 P.2d 453, 456
(Alaska 1987); Heritage Hotel Ltd. Partnership I v. Valley Bank (In
re Heritage Hotel Partnership I), 160 B.R. 374, 377 (B.A.P. 9th
Cir. 1993), aff'd, 59 F.3d 175 (9th Cir. 1995); 8 Lawrence P. King,
Collier on Bankruptcy  1141.02, at 1141-5 (15th ed. 1997).
          TEC concedes that the bankruptcy action and the state
court action involved the same parties or their privies.
Confirmation of a reorganization plan is a final judgment on the
merits in bankruptcy proceedings.  See Stoll v. Gottlieb, 305 U.S.
165, 170-71 (1938); In re Heritage Hotel Partnership I, 160 B.R. at
377.  The bankruptcy court had subject matter jurisdiction over the
state court counterclaim because bankruptcy courts have
jurisdiction over "core proceedings,"which include "counterclaims
by the estate against persons filing claims against the estate." 
28 U.S.C. sec. 157(b)(2). [Fn. 7]
          The only remaining question, then, is whether the
counterclaim arose from the same cause of action as the claim
adjudicated in the bankruptcy proceedings.  In its opening brief
TEC asserted that the environmental claim arose from a different
transaction, involving facts "wholly unrelated to the purchase of
the property which gives rise to Christianson's claim and the
promissory note that evidences that debt."  In its reply brief,
however, TEC maintained that its counterclaim is a claim in
recoupment, not a claim for affirmative recovery, and that "the
reduction for environmental damages arises from the same
transaction as the underlying liability for the purchase of the
property."[Fn. 8]
          When deciding whether two claims are part of the same
cause of action, we look to the transaction out of which the claims
arose, not to the legal theories asserted.  See State v. Smith, 720
P.2d 40, 41 (Alaska 1986).  "What factual grouping constitutes a
'transaction' is determined by 'whether the facts are related in
time, space, origin, or motivation,' and 'whether they form a
convenient trial unit.'"  Plumber v. University of Alaska
Anchorage, 936 P.2d 163, 167 (Alaska 1997) (quoting Restatement
(Second) of Judgments sec. 24 (1982)). 
          TEC apparently hoped to show that Christianson was
strictly liable for the remediation costs under AS 46.03.822.
Assuming for the sake of discussion that that statute applies or
defines the applicable standard of care, it appears that it would
have required TEC to establish that Christianson owned or had
control over the tanks at the time of the leak.  See AS
46.03.822(a)(1).  Christianson would then be strictly liable "for
damages, for the costs of response, containment, removal, or
remedial action incurred by the state, a municipality, or a
village."  AS 46.03.822(a); see also AS 46.03.822(b)(1)(B), AS
46.03.822(c)-(e).  A court reviewing such a claim might consider
the possibility that persons other than the property's current
owner were also responsible for the leak; the current owner's
possible awareness "that a hazardous substance . . . was disposed
of on, in, or at the facility"; "the relationship of the purchase
price to the value of the property if it were uncontaminated"; and
the purchaser's "ability to detect contamination by appropriate
inspection."  AS 46.03.822(a)-(d).
          We conclude that any claim TEC might have wished to make 
under AS 46.03.822 would have required it to prove the same facts
that the bankruptcy court would have considered in determining
TEC's liability to Christianson.  Both claims involve the same
property and same sale, and several of the same factual issues --
such as the date of purchase, the purchase price, the condition of
the land at the time of purchase, the existence of the tanks, the
cost of remediation, and the ability to detect the tanks or duty to
disclose their existence.  Because these facts arise from a single
transaction, we conclude that they are part of the same cause of
action.
          Policy considerations also lead us to conclude that TEC
should have raised the counterclaim in the bankruptcy court.  See
Howe v. Vaughan (In re Howe), 913 F.2d 1138, 1140, 1147 (5th Cir.
1990) (holding that debtors should have brought their lender-
liability claims against creditors during bankruptcy, and that the 
debtors could not collaterally attack the bankruptcy judgment with
the claims five years later).  The bankruptcy estate, for instance,
includes all property and "all legal or equitable interests of the
debtor in property as of the commencement of the case."  11 U.S.C.
sec. 541(a)(1); see Bohna v. Hughes, Thorsness, Gantz, Powell &
Brundin, 828 P.2d 745, 754 (Alaska 1992) (reasoning that debtor's
malpractice claim against attorney would be an asset of debtor's
bankruptcy estate).  Adequate information regarding the assets of
the estate in the plan of reorganization and disclosure statement
is important to creditors who vote on the plan.  See 11 U.S.C. sec.
1125 (stating that "'adequate information' means information of a
kind, and in sufficient detail . . . that would enable a
hypothetical reasonable investor typical of holders of claims or
interests . . . to make an informed judgment about the plan"). 
Such information also aids the bankruptcy court in valuing
creditors' claims: "[f]undamental to the bankruptcy court's finding
of how much [the debtor] owed, was a finding of how much [the
debtor] had -- what vestigial worth its business had retained." 
Sure-Snap Corp. v. State St. Bank & Trust Co., 948 F.2d 869, 875-76
(2d Cir. 1991) (stating that the debtors "ought to have litigated
all related facets [of their loan transaction] if they could have
done so"in the bankruptcy case, and holding that res judicata
prevented the debtors from pursuing their lender-liability claim
after confirmation).  
          We note that there were other creditors who voted and who
might have been benefitted by inclusion of the remediation claim in
TEC's reorganization plan.  The order confirming TEC's plan of
reorganization precludes TEC's creditors from attempting to collect
on the debts that the order discharges.  It would be inequitable to
give TEC the benefit of the order's preclusive effect without also
requiring TEC to accept the detriment.  That is, it would be
inequitable to discharge TEC's debts and enjoin future suits by
creditors arising from those obligations, without also enjoining
future suits by TEC arising from the same obligations.  
          TEC should have given the bankruptcy court the chance to
determine whether TEC was entitled to setoff or recoupment against
Christianson, and exactly how much TEC owed Christianson.  That
determination would have involved the same facts as those
surrounding the sale and liability for the leak, and the two claims
would have formed a "convenient trial unit"in valuing
Christianson's claim.  See Restatement (Second) of Judgments sec.
24
(1982).  We therefore hold that the remediation claim arose out of
the same cause of action as TEC's liability on the note and should
have been raised in the bankruptcy case.
          TEC argues that it reserved its right to proceed with its
claim after confirmation, thereby shielding it from the otherwise
ineluctable effect of res judicata.  TEC claims that a debtor can
pursue a claim after confirmation if it provided notice to the
other party regarding the nature of the claim and the debtor's
intention to pursue it.  In response, Christianson maintains that
TEC did not reserve its remediation claim for later adjudication. 
          Res judicata does not prevent a debtor from suing on a
cause of action that the debtor expressly reserved for later
adjudication.  See D & K Properties Crystal Lake v. Mutual Life
Ins. Co., 112 F.3d 257, 259-60 (7th Cir. 1997); Kelley v. South Bay
Bank (In re Kelley), 199 B.R. 698, 704 (B.A.P. 9th Cir. 1996).  The
Court of Appeals for the Seventh Circuit has explained: "To avoid
res judicata the reservation of a cause of action must be both
express, as in writing, and express, as in specifically
identified."  D & K, 112 F.3d at 261.  That court reasoned that the
language purporting to reserve a claim must be explicit, so that
"the parties not only ha[ve] an opportunity to dicker over the
language, but [are] thereafter on notice about which claims were
reserved and which were not."  Id.  Blanket reservations of rights
will not suffice.   See id. 
          Courts have occasionally allowed debtors to proceed with
a claim after confirmation, especially after finding that the
parties were aware of the claim and that the defendant was not
harmed by the delay.  One court, for instance, reasoned that the
failure to reserve a claim was "not fatal,"because the plan and
disclosure statement made the defendants aware of the possibility
of later litigation, and "any damage to the Defendants caused by
[the debtor's] lack of disclosure was minimal."  Envirodyne Indus.,
Inc. v. Connecticut Mut. Life Co. (In re Envirodyne Indus., Inc.),
174 B.R. 986, 991 (Bankr. N.D. Ill. 1994). [Fn. 9]  
          TEC's second amended plan of reorganization, which the
bankruptcy court confirmed, did not mention TEC's intention to
pursue the counterclaim.  TEC's amended disclosure statement,
however, did describe TEC's claim under 11 U.S.C. sec. 506(c), and
Robert Tope brought one of the storage tanks to court during the
bankruptcy hearing.  TEC did not conceal the existence of the
counterclaim.  
          Nonetheless, we do not believe that TEC adequately
disclosed its intention to pursue the counterclaim after
confirmation.  Indeed, Christianson objected in August 1990 to
TEC's amended disclosure statement of July 1990 because it did not
reveal TEC's intent to pursue or abandon the counterclaim.  TEC
then informed Christianson that it was "prepared to amend the
disclosure statement to the effect that the counterclaim against
Christianson will survive confirmation, and that pursuit of that
counterclaim will depend on the outcome of TEC's pending Section
506 motion . . . ."  It then amended the disclosure statement,
stating that it assumed that it would prevail in its effort to
charge Christianson with the costs under 11 U.S.C. sec. 506(c), and
that it might modify the plan's treatment of Christianson if the
sec.
506(c) motion failed.  TEC asserts that its response to
Christianson's objection (stating, "the counterclaim against
Christianson will survive confirmation") clearly revealed TEC's
intent to pursue the claim. 
          TEC, however, never amended its disclosure statement or
its plan of reorganization to include its plans to pursue the
counterclaim after the bankruptcy court denied TEC's sec. 506(c)
motion in November 1990.  TEC communicated no express reservation
of the counterclaim prior to the bankruptcy court's confirmation of
TEC's reorganization plan in May 1991.  Because there was no
evidence establishing an express reservation of the remediation
counterclaim communicated to Christianson and the bankruptcy court
before entry of the order confirming the reorganization plan, we
feel constrained by the doctrine of res judicata. [Fn. 10]
          TEC's actions after confirmation also support a finding
of no express reservation.  TEC's attorney prepared and signed a
stipulation for dismissal of Christianson I (including the
environmental counterclaim) with prejudice in October 1991, because
the claims had been resolved by the bankruptcy proceedings, and
sent the stipulation to Christianson's attorney.  TEC's attorney
then apparently realized that the counterclaim might be affected
and asked Christianson's attorney not to file the Christianson I
dismissal papers.  The record reveals no further action in
Christianson I by TEC on the counterclaim.  Confirmation of a
reorganization plan results in termination of the automatic stay on
state court proceedings; TEC could have resumed litigation of the
counterclaim in the spring of 1991.  See 11 U.S.C. sec.
362(c)(2)(C); In re Space Bldg. Corp., 206 B.R. 269, 273 (D. Mass.
1996).  In
February 1993, nearly two years after entry of the order confirming
the reorganization plan, the superior court dismissed Christianson
I, including the counterclaim, for failure to prosecute.  TEC's
failure to take any action on its remediation counterclaim between
the May 1991 confirmation and its June 1996 motion supports the
conclusion that it did not reserve the counterclaim.
          Assuming that the fact that TEC asked Christianson's
attorney in October 1991 not to file the dismissal papers
reasonably permits an inference that TEC remained interested in
pursuing the remediation counterclaim, that inference would be
balanced by TEC's subsequent failure to take affirmative action to
prosecute the counterclaim.  It also falls short of the sort of
express reservation required to preserve the counterclaim from the
preclusive effect of the May 1991 order confirming the
reorganization plan.  Even if we assume that Christianson's failure
to object to the request to refrain from filing the dismissal
papers in Christianson I could imply that TEC had reserved the
remediation counterclaim, we do not feel comfortable relying on
such slender inferences to undermine the preclusive effect of the
bankruptcy court's order. 
          We conclude that TEC did not expressly reserve its
counterclaim.  TEC's reorganization plan and disclosure statement
did not reveal its intent to reserve the counterclaim.  Because the
elements of res judicata are satisfied, and because TEC did not
reserve the counterclaim, res judicata bars TEC from asserting it
now.  Because we hold that res judicata bars TEC from asserting the
remediation counterclaim now, we need not address Christianson's
arguments based on estoppel or the statute of limitations.  We also
need not consider the Topes' and TEC's motion under Alaska Civil
Rule 60(b) to set aside the dismissal of Christianson I for lack of
prosecution, because TEC would not be able to pursue the
counterclaim even if the case were reinstated.
IV.  CONCLUSION
          We AFFIRM the superior court's grant of summary judgment
to Christianson in Christianson II and AFFIRM the superior court's
denial of the Topes' and TEC's motion to set aside the dismissal of
Christianson I.


                            FOOTNOTES


Footnote 1:

     TEC now owns the property and does business on it.


Footnote 2:

     11 U.S.C. sec. 506(c) "permits the bankruptcy trustee to
recover
administrative expenses from a secured creditor's collateral"under
certain circumstances to prevent the creditor from "reap[ing] the
benefit of actions taken to preserve the secured creditor's
collateral without paying the cost."  5 Lawrence P. King, Collier
on Bankruptcy  506.05, at 506-125 (15th ed. 1997).  


Footnote 3:

     We refer to both James H. Christianson (the father) and James
W. Christianson (the son) as "Christianson"throughout this
opinion, as the Christiansons did in their brief, denoting the son
until 1993 and the father thereafter.


Footnote 4:

     Christianson I and Christianson II were consolidated on
appeal. 


Footnote 5:

     We review a superior court's grant of summary judgment de
novo.  Public Safety Employees Ass'n v. State, 895 P.2d 980, 984
(Alaska 1995).  Summary judgment is appropriate if "'the evidence
in the record fails to disclose a genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.'" 
Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1369 (Alaska
1993) (quoting Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085,
1086 (Alaska 1989)).


Footnote 6:

     Christianson also suggests that the Topes cannot assert the
counterclaim now because it belonged not to the Topes but to TEC or
TEC's bankruptcy estate.  Christianson did not elaborate on this
point in his brief, and TEC did not respond to it in its reply
brief.  Because the parties have given this argument cursory
treatment on appeal, we decline to address it.  See Adamson v.
University of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991). 
Throughout this opinion we treat the counterclaim as if it belongs
to TEC, and as if TEC is attempting to assert it.


Footnote 7:

     We note that some courts have "held that permissive
counterclaims not related to the claim itself cannot be asserted
under the core authority of the bankruptcy court."  3 David G.
Epstein et al., Bankruptcy sec. 12-2, at 201-02 (1992) (citations
omitted).  Even if TEC's remediation counterclaim is viewed as such
a claim, the bankruptcy court still would have had jurisdiction
over it as a matter "related to"a core proceeding.  See 28 U.S.C.
sec. 157(c)(1) ("A bankruptcy judge may hear a proceeding that is
not
a core proceeding but that is otherwise related to a case under
title 11."); see also Sanders Confectionery Prods. v. Heller Fin.,
Inc., 973 F.2d 474, 482 (6th Cir. 1992) (explaining that bankruptcy
courts can exercise jurisdiction over a matter related to a case
under the bankruptcy code, that is, any matter whose outcome "could
conceivably have any effect on the estate being administered in
bankruptcy,"as long as the connection is not "extremely tenuous"). 
Whether the remediation counterclaim was a core proceeding or not,
the bankruptcy court was a court of competent jurisdiction.


Footnote 8:

     In their motion to set aside the order of dismissal of
Christianson I and to consolidate the two cases, TEC and the Topes
also argued that the payments due under the unsecured promissory
note "arise from the same sale of the property, the same
transaction at issue in the present litigation, and are subject to
the same setoff asserted in defendants' counterclaim."


Footnote 9:

     The Envirodyne court discussed but did not decide the res
judicata issue; it decided the case on other grounds.  See
Envirodyne Indus., Inc. v. Connecticut Mut. Life Co. (In re
Envirodyne Indus., Inc.), 174 B.R. 986, 991-92 (Bankr. N.D. Ill.
1994).  TEC also relies on a case in which a plan expressly
reserved certain causes of action, the court and parties were aware
of the claim before confirmation, and the bankruptcy court declined
to exercise jurisdiction over the claim.  Terrebonne Fuel & Lube,
Inc. v. Placid Refining Co., 666 So. 2d 624 (La. 1996) (allowing
debtor to proceed with claim after confirmation).  Terrebonne,
however, is distinguishable from the instant case because the
debtor in Terrebonne sought to have its claim heard in the
bankruptcy proceeding and TEC did not.  See Terrebonne, 666 So. 2d
at 635.  The Terrebonne court emphasized two findings: first, that
before confirmation, the debtor notified the parties and bankruptcy
court that it intended to assert the claim; and second, that the
defendant was not harmed by allowing the claim to proceed.  See id.


Footnote 10:

     We note that other courts have emphasized the importance of
reserving such claims in documents filed in the bankruptcy court
prior to confirmation.  See, e.g., Kelley v. South Bay Bank (In re
Kelley), 199 B.R. 698, 704 (B.A.P. 9th Cir. 1996) (stating, "if the
debtor fails to mention the cause of action in either his
schedules, disclosure statement, or plan, then he will be precluded
from asserting it postconfirmation"); Harstad v. First Am. Bank, 39
F.3d 898, 902-03 (8th Cir. 1994) (concluding that debtors should
have specifically reserved claims in reorganization plan to warn
creditors and bankruptcy court of the possibility of bringing such
claims after confirmation); Heritage Hotel Ltd. Partnership I v.
Valley Bank (In re Heritage Hotel Partnership I), 160 B.R. 374, 375
(B.A.P. 9th Cir. 1993) (holding that res judicata bars the
assertion of a claim not reserved in the plan of reorganization or
the disclosure statement).