* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 22 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

In re: ROMAN G. WENINGER and MARY MADELEINE WENINGER,

Debtors,
CORAL SILVEY,

Appellant,

v. ROBERT SEVERSON, Trustee,

Appellee. No. 97-1238 (D.C. No. 96-Z-2552) (D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Appellant Coral Silvey appeals the district court’s order affirming an order of the bankruptcy court granting appellee-trustee R obert Severson’s motion for approval of sale of certain pieces of property from the bankruptcy estate of debtors Roman G. and Mary Madeleine Weninger. The district court determined that Ms. Silvey’s claims were barred by res judicat a. Ms. Silvey appeals, and we affirm. The three parcels of property in Kansas in which Ms . Silvey claims an interest have been in bankruptcy litigation since M arch 1989 when debtors filed for Chapter 11 protection. The bankruptcy court is sued orders in 1990 and 1993, determining that the debtors’ actions in quit claim ing the property to Ms. Silvey several weeks before filing the bankruptcy action w ere fraudulent pursuant to 11 U.S.C. § 548, and the transfers should be avoide d pursuant to 11 U.S.C. § 550. In both orders, the bankruptcy court declared Ms. S ilvey’s interest in the property to be null and void. Despite the bankruptcy court’s determination that M s. Silvey had no legal interest in the property, in August 1995, Ms. Silve y sold the property to Melvin M. and Colleen R. Nelson in exchange for a m ortgage in the amount of $80,000. On January 16, 1996, the bankruptcy courtentered an order granting the trustee’s motion for summary judgment, and declarin g the subject property to be part of the bankruptcy estate. The court imposed aconstructive trust upon all-3-

cash and other consideration received by Ms. Silveyas a result of her sale of the property. Ms. Silvey did not appeal this order. On October 21, 1996, the bankruptcy court entered another order declaring Ms. Silvey’s attempted sale null and void, and appr oving the sale of the property by the bankruptcy estate to the Nelsons for the pur chase price of $80,000, free and clear of all interests, liens, and encumbrances . Ms. Silvey appealed this order to the district court. On appeal, the district court held that in attempti ng to convey the property to the Nelsons, Ms. Silvey had ignored the prior or ders of the bankruptcy court declaring her interest in the property to be null a nd void. In dismissing Ms. Silvey’s appeal, the court concluded that because s he had failed to appeal from the January 1996 order, her claims were precluded a s res judicata. We review a district court’s conclusions of law as to the applicability of the doctrine of res judicata de novo. See State Bank of S. Utah v. Gledhill (In re Gledhill) , 76 F.3d 1070, 1082 (10th Cir. 1996). “Under res judicata, a final judgment on the merits of an action precludes the p arties or their privies from relitigating issues that were or could have been ra ised in that action.” Allen v. McCurry , 449 U.S. 90, 94 (1980). In Colorado, the doctrin e of res judicata absolutely bars later actions “when the later actio n involves the same parties, subject matter, and claims, as determined in a form er proceeding.” Swisher v.-4-

Phillips , 897 P.2d 914, 916 (Colo. App. Ct. 1995). “The do ctrine of res judicata applies generally to bankruptcy proceedings.” Grie go v. Padilla (In re Griego) , 64 F.3d 580, 584 (10th Cir. 1995); accordSwisher , 897 P.2d at 916. Here, the bankruptcy court considered Ms. Silvey’s claims of interest in the property numerous times since the institution of th e bankruptcy proceeding in 1989. All of the decisions on the issue involved the same parties, subject matter, and cause of action. Because she failed to appeal, these orders are now final, and under the doctrine of res judicata, Ms. Silvey’s cl aims are foreclosed from further consideration. Therefore, the district court was c orrect in refusing to consider the claims and in dismissing Ms. Silvey’s appeal. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court
Monroe G. McKay Circuit Judge