United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-30602 

____________ 

In the Matter of AKD Investments, L.L.C. 

Debtor, 

AKD Investments, L.L.C., 

Appellant, 

versus

Magazine Investments I, L.L.C., 

Appellee. 

______________________________ 

Appeal from the United States District Court 

for the Eastern District of Louisiana 

USDC No. 2:22-CV-619 

______________________________ 

Before Duncan and Wilson, Circuit Judges, and Mazzant, District 

Judge.

*

Cory T. Wilson, Circuit Judge: 

In November 2014, AKD Investments, LLC (AKD), filed for 

bankruptcy. At that time, Magazine Investments I, LLC (Magazine), held 

_____________________ 

*

 District Judge in the Eastern District of Texas, sitting by designation. 

United States Court of Appeals 

Fifth Circuit 

FILED 

August 18, 2023 

Lyle W. Cayce 

Clerk 

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2 

the notes on AKD’s main asset, a building on Magazine Street in New 

Orleans, Louisiana. After Magazine resumed foreclosure proceedings, AKD 

sought permission from the bankruptcy court to obtain financing to pay off 

Magazine’s notes and thereby avoid the looming foreclosure sale of the 

building. In a February 2015 order, the bankruptcy court authorized the 

transaction, and the parties performed under the order. The bankruptcy 

court confirmed AKD’s reorganization plan in April 2017. In August 2020, 

AKD brought this action against Magazine as a core proceeding within the 

still-open bankruptcy case. AKD alleged that it had overpaid Magazine in 

2015 and sought to recoup the overpayment. But the bankruptcy court 

granted summary judgment to Magazine, concluding that AKD’s claim was 

barred by the law-of-the-case doctrine because the amount AKD paid 

Magazine had been established by the court’s 2015 order. AKD appealed, 

and the district court affirmed. AKD then timely appealed to our court. 

AKD contends that the bankruptcy court erred in applying the law-ofthe-case doctrine because the 2015 order did not actually decide the amount 

AKD owed Magazine. The order is ambiguous on that point. But deferring 

to the bankruptcy court’s reasonable interpretation of its order, we 

nonetheless affirm. 

I. 

AKD owned a building on Magazine Street in New Orleans (the 

Property). AKD obtained two mortgages on the Property, one for $1.4 

million and one for $100,000, both from a local bank.1

 AKD failed to make 

timely payments on the notes. Magazine acquired the non-performing notes 

_____________________ 

1

 AKD obtained its mortgages from Hancock Bank of Louisiana. Not long after, 

Hancock Bank of Louisiana became Whitney Bank, which then held AKD’s notes until 

they were sold to SummitBridge Credit Investments IV, LLC, in December 2012. 

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3 

and initiated foreclosure proceedings against AKD in Louisiana state court in 

July 2014. The state court scheduled a foreclosure sale for November 13, 

2014.

On the eve of the scheduled sale, AKD filed for Chapter 11 

bankruptcy. This triggered an automatic stay preventing any collection 

efforts against AKD or the Property. See 11 U.S.C. § 362(a). The foreclosure 

sale was cancelled. A few days later, Magazine sought to lift the stay so that 

foreclosure proceedings could continue. The bankruptcy court granted 

Magazine’s request in December 2014. See 11 U.S.C. § 362(d) (authorizing 

such motions). As a result, the foreclosure sale was reset for February 26, 

2015.

Bankruptcy proceedings continued simultaneously. The bankruptcy 

court ordered Magazine to file a proof of claim for AKD’s outstanding debt, 

including an estimated “payoff” amount. Magazine filed its proof of claim 

on February 2, 2015, specifying that AKD owed Magazine $2,174,844.27 as 

of January 31, 2015, with interest and expenses continuing to accrue. 

Seeking to forestall the scheduled foreclosure sale, AKD sought 

financing to satisfy its debt with Magazine. AKD found a willing lender—

James M. Huger—and reached an agreement with Huger, memorialized in a 

loan commitment letter dated February 19, 2015. The commitment letter 

specified that Huger would loan AKD $2,225,000 to pay, among other 

things, “the then outstanding amount of the loan” owed to Magazine in 

order “to pay off [the] first mortgage note[s] held by Magazine.” The deal 

was conditional upon the bankruptcy court’s approval. 

AKD filed an emergency motion seeking approval under 11 U.S.C. 

§ 364(e) on February 20, 2015. AKD’s motion included the payoff amount 

from Magazine’s proof of claim but emphasized that AKD “disputed the 

amount of Magazine’s claim.” Because of the dispute, AKD requested that 

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4 

Huger loan proceeds of approximately $2,175,000 “be held in escrow” 

pending resolution of the dispute.

Magazine opposed AKD’s motion, contending the amount to be 

placed in escrow was insufficient. Because it was pegged to the payoff 

amount in the proof of claim, the proposed escrow amount did not include 

funds to cover the interest and attorney’s fees that had accrued since January 

31 and that would continue to accrue while in escrow. Id. Magazine averred 

that, as of February 25, 2015, Magazine’s claim was at least $2,177,817.10.2

In response to Magazine’s opposition, AKD amended its motion for 

approval of the transaction. The amended motion dropped any reference to 

a dispute over the amount owed. And it no longer sought to have funds held 

in escrow; instead AKD proposed to use the Huger loan proceeds, as well as 

bank deposits and rental income as necessary, to pay Magazine “in full the 

amount of the claim of Magazine without prejudice immediately upon closing 

of the loan.” Magazine continued to oppose AKD’s motion, even as 

modified. 

On February 25, 2015, the day before the scheduled foreclosure sale, 

the bankruptcy court held a hearing to consider AKD’s amended motion. 

The next day, the court entered an order granting the motion (the Order). 

Specifically, the Order authorized AKD “to obtain credit and borrow from 

James M. Huger $2,225,000 . . . pursuant to the terms and conditions of the 

loan commitment letter,” and then “to pay Magazine . . . $2,181,919.72 by 

cashier’s check in immediately available funds . . . on or before 11:30 am 

central time on February 26, 2015.” Upon closing, Huger would receive a 

_____________________ 

2

 This estimate also excluded the commission Magazine would owe the sheriff, 

pursuant to Louisiana law, if the bankruptcy court ordered cancellation of the writ of 

seizure on the Property. 

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first-priority lien against the Property, and all liens held by Magazine would 

be cancelled, as would the foreclosure sale.3 The parties performed 

according to the Order’s terms. 

Two years later, in April 2017, the bankruptcy court confirmed 

AKD’s plan of reorganization. 

In August 2020, AKD filed this action as a core proceeding within its 

bankruptcy case. AKD alleged that it had paid Magazine “excessive 

attorney’s fees, interest charges, and other charges and expenses” in the 

2015 transaction and sought to recover sums allegedly overpaid. After 

discovery, Magazine filed a motion for summary judgment, which the 

bankruptcy court granted. The court concluded that AKD’s action was 

barred by the law-of-the-case doctrine because the Order set the amount 

AKD paid Magazine. The bankruptcy court entered final judgment in favor 

of Magazine and dismissed the action. 

AKD appealed to the district court, which affirmed. Then AKD 

timely appealed to this court. 

II. 

 We review a “bankruptcy court’s grant of summary judgment de novo, 

using the same standard employed by the district court.” In re Shcolnik, 670 

F.3d 624, 627 (5th Cir. 2012). In adversarial proceedings in bankruptcy, Rule 

56 of the Federal Rules of Civil Procedure governs review of summary 

judgment motions. F. R. Bankr. P. 7056. Summary judgment is 

appropriate when “the movant shows that there is no genuine dispute as to 

_____________________ 

3

 The Order also directed that Magazine would not be liable for any commission 

due the sheriff in relation to cancellation of the foreclosure sale. See supra n.2. Instead, 

“[s]hould any additional costs or commissions be owed, the Sheriff sh[ould] file a proof of 

claim in” AKD’s bankruptcy case. 

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any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). 

 While we usually review the bankruptcy court’s interpretation of its 

own orders de novo, we “defer to the bankruptcy court’s reasonable 

resolution of . . . ambiguities in those documents.” In re Nat’l Gypsum Co., 

219 F.3d 478, 484 (5th Cir. 2000). “[H]owever, the documents must truly 

be ambiguous, even in light of other documents in the record, before we will 

defer.” Id.

III. 

The law-of-the-case doctrine “is based on the salutary and sound 

public policy that litigation should come to an end.” White v. Murtha, 377 

F.2d 428, 431 (5th Cir. 1967). Despite its importance, the doctrine “is an 

amorphous concept” with no “precise requirements.” Arizona v. California, 

460 U.S. 605, 618 (1983). Generally, “when a court decides” an issue, “that 

decision should continue to govern the same issues in subsequent stages of 

the same case.” Id. The doctrine has an important limitation: It “applies 

only to issues that were actually decided, rather than all questions in the case 

that might have been decided but were not.” Alpha/Omega Ins. Servs. v. 

Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001) (emphasis 

added). But “the issues need not have been explicitly decided; the doctrine 

also applies to those issues decided by ‘necessary implication.’” Id. (quoting 

In re Felt, 255 F.3d 220, 225 (5th Cir. 2001)). 

The parties dispute whether the bankruptcy court properly applied 

the law-of-the-case doctrine in this case. They spar over whether the 

bankruptcy court actually decided the payoff amount in the Order, such that 

the doctrine bars AKD’s claim to recover its alleged overpayment to 

Magazine. AKD contends that “neither the correctness of the amount AKD 

paid Magazine nor the merits of AKD’s claim[] to recover[] the amount of 

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its overpayment” were actually decided in the Order. Magazine counters 

that the Order “decided the issue.” 

AKD’s argument hangs on a single phrase in the Order: “without 

prejudice.” The Order provides “that immediately upon closing of the 

Huger [l]oan, [AKD] is authorized to pay Magazine . . . the Magazine 

[p]ayoff by the [p]ayoff [d]eadline without prejudice and without conditions 

by cashier’s check as provided above from the proceeds of the Huger 

[l]oan.”4

 According to Black’s Law Dictionary, the phrase “without 

prejudice”: 

import[s into a transaction] that the parties have agreed that, 

as between themselves, the receipt of the money by one, and 

the enjoyment by the other, shall not . . . have any legal effect 

upon the rights of the parties” and “that such rights will be as 

open to settlement by negotiation or legal controversy as if the 

money had not been turned over by the one to the other. 

Without Prejudice, Black’s Law Dictionary (11th ed. 2019). AKD 

reasons that the inclusion of “without prejudice” in the Order thus means 

that the Order did not determine “the correct amount [AKD] owed to 

Magazine.” 

By contrast, Magazine contends that the Order actually decided the 

final, correct payoff amount. Magazine points to two sections of the Order 

that emphasize the finality of its terms as evidence that the Order did not 

leave the payoff amount open to subsequent challenge. The first provides: 

_____________________ 

4

 AKD also points out that it “specifically stated in its original motion for 

authorized [sic] to refinance its debt [that] it disputed the amount of Magazine’s claim.” 

But as the district court pointed out, “this was not the motion that was granted.” Instead, 

“[a]ny language in the first motion regarding a potential dispute . . . was removed [by 

AKD] upon amendment [and] is therefore of no moment.” But AKD included in its 

amended motion a request that the payment be made “without prejudice.” 

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that the [c]ommitment [l]etter and all other documents, 

agreements and instruments necessary to effectuate and 

consummate the transaction contemplated by the 

[c]ommitment [l]etter together with the provisions and terms 

of this Order are specifically enforceable against and binding 

upon, and shall not be subject to rejection or avoidance, by 

[AKD], and any assigns, including without limitation an[y] 

trustee, responsible person, estate administrator, 

representative or similar person hereinafter appointed for or in 

connection with [AKD]’s estate or affairs in this or any 

subsequent or controverted case under the Bankruptcy Code 

involving [AKD]. 

And the second details: 

that the terms and conditions of the [c]ommitment [l]etter are 

an integral part of the refinancing and that, in view of: (i) the 

good faith of the lender and of Magazine Investments I, LLC, 

(ii) the reasonableness of the terms of the [c]ommitment 

[l]etter, and (iii) the fact that the terms and conditions of the 

[c]ommitment [l]etter are integral part of the refinancing, the 

reversal or modification on appeal or otherwise of this Order 

shall not affect the validity or enforceability of the payoff of the 

debt of Magazine Investments I, LLC or the validity or 

enforceability of the Huger [l]oan or the validity, 

enforceability, or priority of the lien or mortgage against the 

Property granted to James M. Huger or his assign(s) pursuant 

to this Order or any of the terms or conditions of the 

[c]ommitment [l]etter . . . . 

 Read in isolation, the sections of the Order cited by each side 

somewhat support their proposed interpretations of the Order. AKD 

correctly points out that the Order says that AKD’s payment to Magazine 

was made “without prejudice,” seemingly meaning that the terms of 

payment remained open for legal controversy. Yet the two sections cited by 

Magazine clearly state that the Order and its terms—presumably including 

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the payoff amount to Magazine—are “specifically enforceable against and 

binding upon, and shall not be subject to rejection or avoidance by,” AKD. 

Read as a whole, the Order appears internally inconsistent about whether the 

payoff amount was “without prejudice” (as AKD contends) or “specifically 

enforceable against and binding upon” AKD (as Magazine contends). 

Neither party offers a compelling way to harmonize the Order in toto, making 

sense of the apparent contradiction. 

AKD suggests that we could resolve the contradiction by reading the 

two sections cited by Magazine as limited only to securing the liens granted 

under the Order. Specifically, according to AKD, those two sections 

“addressed only the effectiveness, enforceability, and perfection of the 

security interests granted to Huger to secure the Huger loan” and therefore 

do not render unreviewable the amount AKD paid Magazine. But this 

suggested reading conflicts with the text of the relevant sections of the Order, 

which are plainly not limited to Huger’s lien. Instead, the first section 

extends broadly to “the [c]ommitment [l]etter and all other documents, 

agreements, and instruments necessary to effectuate and consummate the 

transaction contemplated by the [c]ommitment [l]etter together with the 

provisions and terms of this Order.” And the second section specifically 

emphasizes “the validity [and] enforceability of the payoff of the debt of 

Magazine” in addition to the validity of Huger’s lien. Accordingly, AKD’s 

proposed reading is untenable.5

_____________________ 

5

 AKD relies on out-of-circuit cases regarding 11 U.S.C. § 364(e) to support its 

preferred reading. See Shapiro v. Saybrook Mfg. Co., 963 F.2d 1490, 1493 (11th Cir. 1992); 

see also Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1355 (7th 

Cir. 1990). But we have never read § 364(e) to focus myopically on liens. Instead, we have 

read it as a stay requirement. See In re TMT Procurement Corp., 764 F.3d 512, 519 (5th Cir. 

2014) (“A failure to obtain a stay of an authorization under [§ 364(e)] moots an appeal of 

that authorization[.]”); see also In re Pacific Lumber Co., 584 F.3d 229, 240 (5th Cir. 2009) 

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Magazine suggests that “without prejudice” is of no moment here 

because it is insufficiently specific to reserve any rights. As support, 

Magazine cites two Louisiana intermediate appellate court opinions. See 

Barnett v. La. Med. Mut. Ins. Co., 51908 (La. App. 2 Cir. 5/23/18), 248 So. 3d 

594; Advanced Com. Contracting v. Powell Ins. Agency, 09-758 (La. App. 5 Cir. 

12/29/09), 30 So. 3d 851. We fail to see the relevance of these cases, which 

pertain to the interpretation of reservation-of-rights clauses in private 

settlement agreements under state law, to our immediate task of interpreting 

an order entered by the bankruptcy court. Regardless, we hesitate to agree 

with Magazine that the phrase “without prejudice” is without meaning. 

Rather, we “lean in favor of a construction which will render every word 

operative, rather than one which may make some idle and nugatory.” 

Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 174 (2012) (citations omitted). So 

we endeavor to give meaning to all the words written into the Order by the 

bankruptcy court. But Magazine is right insofar as the scope of “without 

prejudice” is the source of ambiguity in the Order. 

 Reviewing the Order, the Huger commitment letter, and the 

bankruptcy court record, we find nothing that clarifies the scope and import 

of “without prejudice” as used in the Order. Thus, the Order is 

“truly . . . ambiguous, even in light of other documents in the record.” In re 

Nat’l Gypsum Co., 219 F.3d at 484. In these circumstances, we apply a 

deference rule: As long as the bankruptcy court reasonably resolved the 

ambiguity as it construed the Order in weighing Magazine’s motion for 

summary judgment in this case, we defer to that court’s interpretation. Id. 

_____________________ 

(Section 364(e) “prevent[s] the appellate reversal of an order to sell property or obtain 

post-petition financing unless such orders were stayed pending appeal.”). 

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The bankruptcy court resolved the ambiguity by concluding that the 

Order specifically decided that AKD owed Magazine $2,181,919.72. This 

was reasonable. When the bankruptcy court issued the Order in 2015, it had 

before it Magazine’s proof of claim, including its suggested payoff amount as 

of January 31, 2015, and a breakdown of how Magazine calculated that 

amount; Magazine’s updated estimate as of February 25; the relevant 

mortgage documents; and the parties’ stipulations and discussion during the 

hearing on the motion. Based on this information, the resulting Order set the 

payoff amount at $2,181,919.72, a very specific number. To be sure, the full 

scope of “without prejudice” remains unclear, but in granting Magazine 

summary judgment in this case, the bankruptcy court reasonably determined 

that the phrase—whatever its scope—did not apply to the payoff amount to 

Magazine. The court’s interpretation of its prior Order is entitled to 

deference. 

AKD disagrees, contending that the bankruptcy court’s interpretation 

conflicts with Alpha-Omega Insurance Services, Inc. v. Prudential Insurance Co. 

of America, where our court stated: 

[E]ven when issues have not been expressly addressed in a 

prior decision, if those matters were “fully briefed to the 

appellate court and . . . necessary predicates to the [court’s] 

ability to address the issue or issues specifically discussed, 

[those issues] are deemed to have been decided tacitly or 

implicitly, and their disposition is law of the case.” 

272 F.3d 276, 279 (5th Cir. 2001) (all alterations except first in original) 

(quoting In re Felt, 255 F.3d 220, 225 (5th Cir. 2001)). Based on AlphaOmega, AKD asserts that the Order could not have decided the payoff 

amount because “neither party briefed” “the correct [payoff] amount” 

“either in connection with the refinancing motion or elsewhere” “in the 

main bankruptcy case.” But AKD’s contention miscasts the record. 

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Magazine briefed the correct payoff amount in the main bankruptcy case, 

both in its proof of claim and in its opposition to AKD’s motion. Moreover, 

AKD misconstrues Alpha-Omega. That case specifically does not limit a 

court’s ability to decide issues presented but not fully briefed. See AlphaOmega, 272 F.3d at 281 (recognizing that the court “could have gone beyond 

the scope of the . . . parties’ briefs to independently assess the . . . issue”). 

Rather, Alpha-Omega reiterates our rule from In re Felt that an issue briefed 

on appeal that is a “necessary prerequisite[]” to an issue actually decided in 

the appellate opinion is the law of the case, even if the appellate court’s 

opinion does not explicitly decide the prerequisite issue or grapple with the 

arguments in the briefs. In re Felt, 255 F.3d at 225–26. Here, though, we 

defer to the bankruptcy court’s reasonable determination that the Order in 

fact determined the correct value for the payoff amount, whatever the scope 

of the parties’ briefs, and whatever the scope of “without prejudice” as used 

in the Order.6

IV. 

The bankruptcy court’s 2015 Order is internally contradictory. Its 

meaning is therefore ambiguous as to the question at hand: Whether the 

Order actually decided the correct amount that AKD owed to Magazine. 

Accordingly, we defer to the bankruptcy court’s reasonable interpretation of 

its Order—that it did—and affirm its invocation of the law-of-the-case 

doctrine to grant Magazine summary judgment as to AKD’s claim here. 

AFFIRMED. 

_____________________ 

6

 Because we affirm on law-of-the-case grounds, we need not reach whether AKD’s 

instant claim is also barred by res judicata or prior settlement. 

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