* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40452

Summary Calendar

IN THE MATTER OF: UNITED STATES BRASS CORP.

Debtor

- - - - - - - - - -

HG-CV-TA-ERD LLP; ROCKDALE MOTEL CORP.

Appellants

v.

THE BRASS TRUST

Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:07-CV-243

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

The instant adversary proceeding from the Chapter 11 bankruptcy of the

Debtor, United States Brass Corp., was dismissed by the bankruptcy court on

United States Court of Appeals

Fifth Circuit

F I L E D

October 7, 2008

Charles R. Fulbruge III

Clerk
No. 08-40452

2

summary judgment, which dismissal was affirmed by the district court on

appeal. Like the district court, we affirm the judgment of the bankruptcy court

that dismissed with prejudice the claims advanced by Appellants in their

adversary proceeding.

Reduced to its essentials, Appellants voluntarily elected to pursue their

claims against the Debtor under the Alternative Dispute Resolution (ADR)

provisions of the plan of reorganization. The ADR provisions that Appellants

elected to pursue provide for binding arbitration. The provision that lies at the

heart ofthis matter specifies that claims against the Debtor related to plumbing

issues are recoverable in arbitration only to the extent that they are supported

by competent evidence of actual, out-of-pocket costs and expenses incurred by

claimants in repair or replacement of defective materials manufactured and

supplied by the Debtor. In the face of that clear and unambiguous provision,

Appellants inexplicably sought recovery not on the basis of invoices, bills,

payments, or the like actually expended, but on the basis of old expert estimates

of costs and expenses that would be incurred if Appellants had proceeded to

cause such work to be done.

The arbitrator correctly focused on this anomaly in the Appellants’ case,

i.e., electing binding arbitration that could only be successful if the Appellants

had submitted evidence of actual payments for repair and replacement, knowing

all the while that there had been no such expenditures incurred for which

evidence was available. In a ruling that impresses us as obvious, the arbitrator

dismissed the claims of Appellants, but bent over backwards to accommodate

Appellants by making the dismissal without prejudice and allowing them an

opportunity (despite its obvious impossibility) to come back with evidence of

actual payments made to repair or replace the defective materials and

installations.
No. 08-40452

3

That the arbitrator happened to use the term “jurisdictional” in loose

reference to the limitations to which Appellants voluntarily submitted in electing

binding arbitration under the ADR provision referred to above, does not make

the ruling ofthe arbitrator turn on lack of subject matter jurisdiction, as counsel

for Appellants erroneously and unprofessionally insists. On the contrary, the

ruling of the arbitrator is, in all respects, a ruling on the merits, and one with

which we agree.

Moreover, when the Appellants attempted to obtain a second bite at the

apple by filing the adversary proceeding that is the subject of this appeal, the

bankruptcy court properly dismissed that untoward effort and favored

Appellants with a lengthy, complete, and absolutely correct Memorandum

Opinion. On appeal to the district court of the ruling of the bankruptcy court

confirming the Arbitration Order and dismissing with prejudice the claims

asserted by Appellants in the adversary proceeding, the district court needed few

words to affirm the bankruptcy court. We too affirm the rulings and judgment

of the bankruptcy court in its entirety and caution counsel for Appellants not to

repeat their misrepresentations by referring to the basis of the award of the

arbitrator as dismissal for lack of subject matter jurisdiction, which it clearly

was not. Like the district court before us, we AFFIRM the Bankruptcy Court’s

March 30, 2007 Order Granting Partial Summary Judgment and Confirming the

Arbitration Award.