The Honorable Karen M. See, United States Bankruptcy Judge for the Western District 1 of Missouri, sitting by designation. 

## United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT

No. 97-6091EMSL

In re: * * Popkin & Stern, * * Debtor. * * Appeal from the Unite d States Robert J. Blackwell, Liquidating Trustee * Bankruptcy Court for the of the Popkin & Stern Liquidating Trust * Eastern District of Missour i
* Plaintiff-Appellee, * [UNPUBLISHED]
* v. * * Ronald U. Lurie, * * Defendant-Appellant. *

Submitted: January 12, 1998 Filed: March 5, 1998

Before KRESSEL, William A. HILL, a nd SCOTT, Bankruptcy Judges.

KRESSEL, Bankruptcy Judge.
Ronald U. Lurie appeals from the bankruptcy court’s order

1 reviving the plaintiff’s2

judgment against him. Because we agree with the bankruptc y court that nothing in the settlement agreement between th e partie s constituted a release or a satisfaction of tha t judgment, we affirm.

BACKGROUND
This dispute goes back t o the bankruptcy case of Popkin & Stern , a St. Louis law firm of which Lurie was a partner

. Origin allycommenced on March 26, 1992, by an involuntar y pe tition, Popkin & Stern converted the case to a case unde r chapter 11 and Blackwell was subsequently appointed th e tru stee. On August 27, 1993, the bankruptcy court confirme d a plan proposed by Popkin & Stern. That plan provided for the creation of a liquidating trust to collect Popkin & Stern’ s as sets and distribute them to creditors pursuant to the terms of the plan. The plan provided that Blackwell would be th e trustee of the liquidating trust.

As part of his duties as the liquidating trustee , Bla ckwell sued Lurie and on October 20, 1994, the bankruptc y cour t entered a judgment in favor of Blackwell and agains t Lurie in the amount of $1,121,743.00. Blackwell commence d anothe r adversary proceeding against Lurie and his two adul t ch ildren, Michael Lurie and Ryan Lurie, and a third adversary proceeding against Lurie’s wife, Nancy F. Lurie.
During 1995, Blackwell, Lurie, Nancy Lurie, Michael Luri e, an d Ryan Lurie came to a settlement of the two pendin g adv ersaryproceedings and the judgment against Lurie. It i s tha t global settlement agreement dated September 13, 1995 , which is the centerpiece of the di spute between the parties to this appeal. The global settlemen t agreement provided that on the 30th day after the date upon which the approval order o f th e bankruptcy court was entered, there would be a closing at3

whichthere would be a transfer of property and execution o f all documents. On October 19, 1995, the bankruptcy cour t approved the agreement.

Howe ver, it wasn’t long before the parties were back i n co urt and on November 21, 1995, the bankruptcy court extended the closing date so that it would occur no later than December 29 and tentatively set December 20 , 1995, as the closing date. However, onNeither the response nor the supplement memorandum have been made part of the 2 record on this appeal. In fact, the appellant has not filed any sort of designation of record or provided the court with any record other than transcripts of hearings held on December 15, 1995, and April 16, 1996. His only attempt to create a record seems to be the attachment to his reply brief of an affidavit of Richard F. Huck, III, dated February 10, 1997--obviously, post-hearing evidence which is not part of the record on appeal. In his brief, Lurie complains in passing about the fact that the bankruptcy judge 3 conducted the hearing by telephone from Kansas City. But, as part of the statement of issues recited in his memorandum, he does not make an issue out of the way that the hearing was conducted. Lurie had the opportunity to file two written responses to the motion which the bankruptcy court considered before entering its order. 4 De cember 15, 1995, a hearing was held at which the bankruptcy court took testimony, received oth er evidence and subsequently made detailed findings of fact and conclusions of law on th e record a nd in a written order dated January 18, 1996. Whil e ext remelylengthy and detailed, the thrust of the opinion i s that Lurie and his wife Nancy Luri e could not close the global settlement agreement. In fact, there never was a closing.
Under Missouri law, judg ment liens survive for only three years. Mo. Rev. Stat. § 511.360. Therefore, on September 26, 1997, Blackwell filed a motion for revival of judgment. Th e ban kruptcycourt scheduled a hearing and entered an order t o show cause setting a hearing for October 20, 1997. Lurie file d
a respon se to the motion on October 14, 1997, and a supple mental memorandum on October 20, 1997, but did no t personally appear at the hearing. 2
The court held a hearing on Blackwell’s motion on October 20, 1997, and on October 23, 1997, entered an order fo r

3 revival of judgment. It is from this order that Lurie appeals

.
DISCUSSION5

Whil e Lurie’s arguments are lengthy and sometime s convolut ed, they can be distilled to one point. In spite o f the fact that he was unable to per form and did not perform his ob ligations under the global settlement agreement, he claim s that the settlement agreement,6

re leases him from any liability on the judgment. Paragraph V of the global settlement agreement provides for mutual release s among the parties “as of the Closi ng Date.” Since the closing date is set in the agreement as being 30 days after cour t approval and that date has come and gone, Lurie argues that th e re lease is effective notwithstanding that no closing was ever held and, in fact, the bankruptcy court found that Lurie wa s unable to perform his obligations under the agreement whic h would enable a closing to be held.

How ever, the final paragraph of section V explicitl y pr ovides that “the releases, and hold harmless provisions of th is paragraph V. . .shall become automatically effective and enforceable without further action at the time of the Closing. ” And, in fact, a careful review of the global settlemen t agreem ent reveals that the parties’ obligations are all tie d to the actual closing, not a hypothetical closing date. Th e setting of the closing date is int ended to be an indication of an obligation to close on or withi n a certain time, but has no independent effect of its own. Since Lurie never performed hi s ob ligations under the global settlement agreement, he canno t claim the benefit of the bargained -for release. See , Williams v. AgriBank, FCB , 972 F.2d 962, 96 7 (8th Cir. 1992) (“When one part yto a settlement agreement refuses to comply with it s te rms, the other party can abandon the settlement and proceed
onthe original cause of action.”) Campbell v. Shaw , 947 S.W.2 d 128, 131 (Mo. Ct. App. 1997) (“When a party fails to perfor m ac cording to the terms of a contract, it must be determine d wh ether the breach is material. If the breach is material or if t he breaching party’s performance is a condition to th e ag grieved party’s performance, the aggrieved party may cancel the contract.”) McKnight v. Midwest Eye Institute of Kansa s City, Inc. , 799 S.W.2d 909, 915 (Mo. Ct. App. 1990) (“Th e ju dgment gave effect to the principle that a material failure of o ne party to give performance gives the other party th e7

right to repudiate the contract.” Quoting Boten v. Brecklein , 452 S. W.2d 86, 92 (Mo.1970). “It gives effect also to th e cognate principle that a party who is the first to violate the contract by failure to give materi al performance may not claim its benefits.”)

CONCLUSION

We simply cannot agree with Lurie that he is entitled to the benefit of the release even th ough no closing was held and he did not perform and was unable to perform his obligation s8

under the global settlement agreement. We therefore affirm th e bankru ptcycourt’s judgment and order of revival of judgmen t dated October 21, 1997, and entered October 23, 1997.
A true copy.

Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE EIGHTH CIRCUIT.