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1 This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may have

(see Fed. R. App. P. 32.1), it has no precedential value. See 9th

Cir. BAP Rule 8013-1.

-1-

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. EW-12-1659-PaJuTa

)

SPOKANE RACEWAY PARK INC., ) Bankr. No. 06-01966

)

Debtor. )

___________________________________)

)

ORVILLE MOE, )

)

Appellant, )

)

v. ) M E M O R A N D U M1

)

JOHN D. MUNDING, Chapter 11 )

Trustee, )

)

Appellee. )

___________________________________)

Argued and Submitted on July 25, 2013

at Butte, Montana

Filed - August 2, 2013

Appeal from the United States Bankruptcy Court

for the Eastern District of Washington

Honorable Patricia C. Williams, Bankruptcy Judge, Presiding 

Appearances: Orville Moe, pro se appellant, and John D. Munding,

Chapter 11 Trustee, pro se appellee, argued. 

Before: PAPPAS, JURY, and TAYLOR, Bankruptcy Judges.

FILED

AUG 02 2013

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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2 Unless otherwise indicated, all chapter, section and rule

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. 

Civil Rule references are to the Federal Rules of Civil Procedure

1-86.

3 As discussed below, we cite these unpublished decisions

under the doctrine of law of the case. For clarity and brevity,

we will cite the BAP decision as Spokane Raceway I, and the Ninth

Circuit’s decision affirming the BAP as Spokane Raceway II.

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Creditor Orville Moe (“Moe”) appeals the order of the

bankruptcy court entering a final decree and closing the

chapter 112 case of debtor Spokane Raceway Park, Inc. (“Debtor”). 

We AFFIRM.

FACTS

Debtor was formed in 1971 in the State of Washington to

manage and oversee the development of a motor racing stadium

complex in Airway Heights, Washington. Moe is president of Debtor

and, with his brothers, owns 90 percent of the shares of debtor;

10 percent is owned by Robert Kovacevich. Debtor is the general

partner of Washington Motorsports Limited (“WML”), a partnership

created to own, develop and operate the stadium. Kovacevich v.

Munding (In re Spokane Raceway Park, Inc.), 2007 Bankr. LEXIS 4856

*2 (9th Cir. BAP December 13, 2007) aff’d, 329 Fed. Appx. 86 (9th

Cir. 2009).3

In 1994, Debtor entered into an agreement with the Kalispel

Indian Tribe (the “Tribe”) creating the KNAEZ Joint Venture to

develop a business enterprise zone on twenty acres adjacent to the

motor racing stadium. There were a number of other agreements and

leases among the Debtor, WML and the Tribe. As a result of

various disputes, Debtor, WML and the Tribe have been involved in
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several legal actions in state and federal courts since 2003. 

On August 17, 2006, Debtor filed a petition for relief under

chapter 11 of the Bankruptcy Code. On motion of the stateappointed Receiver of WML and the U.S. Trustee, John D. Munding

(“Trustee”) was appointed to serve as chapter 11 trustee on

September 28, 2006.

Trustee eventually negotiated a settlement agreement (the

“Settlement Agreement”) among Debtor, WML (through its Receiver)

and the Tribe. Under its terms, the Tribe released Debtor and

WML, and WML and Debtor released the Tribe, from the claims

asserted in the litigation in the federal and state courts. In

exchange for the mutual releases, the Tribe agreed to pay

$2.45 million to Debtor and WML in consideration for Debtor and

WML’s conveyance of their interests in 2.9 acres located near the

stadium. Upon that conveyance, the Tribe agreed to convey

whatever interests it may claim in ten acres of WML’s property.

Moe and Kovacevich strenuously objected to approval of the

Settlement Agreement in the bankruptcy court because, they

alleged, the Tribe owed Debtor over $17 million as a result of an

arbitrator’s decision on June 8, 2005. Additionally, they argued

that the Tribe’s $2.4 million payment for the 2.9 acres was less

than the arbitrator’s valuation of the land at $3.1 million.

The bankruptcy court conducted an evidentiary hearing

concerning approval of the Settlement Agreement on May 10, 2007. 

After considering the evidence presented, at a continued hearing

on May 15, 2007, the court announced its oral findings of fact and

conclusions of law and its decision to approve the Settlement

Agreement. Applying the factors in Martin v. Kane (In re A&C
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Props.), 784 F.2d 1377, 1381 (9th Cir. 1986), the court concluded 

that the compromise represented by the Settlement Agreement was

fair and equitable as to Debtor.

Kovacevich appealed the bankruptcy court’s decision to the

BAP, essentially offering the same arguments Moe and he had made

in the bankruptcy court. Moe did not appeal. The BAP rejected

Kovacevich’s appeal on alternative grounds. First, the Panel

decided that appeal was moot because the order approving the

Settlement Agreement had not been stayed and the financial terms

of the Settlement Agreement had been concluded. In this respect,

the Panel noted that, at oral argument, Kovacevich was unable to

“offer any meaningful suggestion as to how effective appellate

relief could be afforded.” Spokane Raceway I at *8.

The Panel also ruled that, even if the issues were not moot,

“we nevertheless hold that the bankruptcy court did not abuse its

discretion in granting the trustee's motion for approval of the

Settlement Agreement.” Id. at *12. The Panel examined the record

and reviewed the bankruptcy court’s application of the A&C Props.

factors. The Panel concluded that “the [bankruptcy] court made

sufficient factual findings to support its conclusion that the

Settlement Agreement was fair and equitable and should be

approved.” Id. at *13. The Panel therefore decided that the

bankruptcy court “did not abuse its discretion in approving the

settlement because the court examined all four factors adequately

in making a full and independent assessment that the compromise

was fair and equitable.” Id. at *19.

Kovacevich appealed the BAP’s decision in Spokane Raceway I

to the Ninth Circuit, which affirmed in an unpublished memorandum
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on May 19, 2009. Spokane Raceway II, 329 Fed. Appx. 86.

Trustee proposed a liquidating plan in the bankruptcy case on

November 7, 2009. Based on the funds received in the Settlement

Agreement, the plan proposed a distribution by Trustee that would

pay 100 percent of the creditors’ claims. Moe contested

confirmation of that plan, relying on substantially the same

grounds that he had opposed the Settlement Agreement. After a

hearing, the bankruptcy court confirmed the plan in an order

entered March 16, 2010. Moe appealed the bankruptcy court’s

decision to confirm the plan to the District Court for the Eastern

District of Washington. The district court dismissed the appeal

on September 10, 2010, because Moe failed “to address the

underlying procedural or substantive reasons for the appeal.” 

E.D. Wash. Case CV-10-106, dkt. no. 24.

On October 30, 2010, Trustee filed his Final Account and

Motion for Order Entering Final Decree. In it, Trustee certified

to the bankruptcy court that the chapter 11 case had been fully

administered. Moe objected to Trustee’s motion and entry of the

order for essentially the same reasons he had objected to approval

of the Settlement Agreement and to confirmation of the plan,

insisting that the case should remain open so the bankruptcy court

could reconsider the Settlement Agreement and his allegations of

improper actions by Trustee. 

The bankruptcy court held a hearing on the Trustee’s motion 

on December 12, 2012. At the close of the hearing, the bankruptcy

court announced its oral findings of fact and conclusions of law,

explaining in part that:

What we have here is a plan which was confirmed in March
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of 2010. It was a liquidation plan. It’s been

substantially consummated. The administrative claims

have been paid in full, other than the ones [for] which

there are applications currently pending. There’s funds

to pay those. General unsecured claims have been paid

in full. . . . We’ve got the final accounting. . . . 

Review of the docket reveals that the case has been

fully administered. So under [§] 350 of the Code this

case should be closed.

Hr’g Tr. 13:13–14:4, December 12, 2012. 

The bankruptcy court entered a final decree and order closing

the case on December 17, 2012. Moe filed a timely notice of

appeal on December 27, 2012. 

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334

and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158. 

ISSUE

Whether the bankruptcy abused its discretion in entering a

final decree and closing the chapter 11 case.

STANDARD OF REVIEW

A bankruptcy court’s decision to enter a final decree and

close a chapter 11 case is reviewed for abuse of discretion. 

Shotkoski v. Fokkena (In re Shotkoski), 420 B.R. 479, 483 (8th

Cir. BAP 2009); In re Union Home and Industrial, Inc., 375 B.R.

912, 917-18 (10th Cir. BAP 2007). We apply a two-part test to

determine objectively whether the bankruptcy court abused its

discretion: (1) we determine de novo whether the bankruptcy court

identified the correct legal rule to apply to the relief requested

and (2), if it did, we examine the bankruptcy court's factual

findings under the clearly erroneous standard. United States v.

Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). We

must affirm the bankruptcy court's factual findings unless those
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findings are "(1) 'illogical,' (2) 'implausible,' or (3) without

'support in inferences that may be drawn from the facts in the

record.'" Id.

DISCUSSION

Section 350(a) governs the closing of bankruptcy cases; it

provides: “After an estate is fully administered and the court

has discharged the trustee, the court shall close the case.” This

Code provision is implemented in chapter 11 cases via Rule 3022,

which provides that, “[a]fter an estate is fully administered in a

chapter 11 reorganization case, the court, on its own motion or on

motion of a party in interest, shall enter a final decree closing

the case.”). The Advisory Committee Note in connection with

Rule 3022 observes, in relevant part:

Entry of a final decree closing a chapter 11 case should

not be delayed solely because the payments required by

the plan have not been completed. Factors that the

[bankruptcy] court should consider in determining

whether the estate has been fully administered include

(1) whether the order confirming the plan has become

final, (2) whether deposits required by the plan have

been distributed, (3) whether the property proposed by

the plan to be transferred has been transferred,

(4) whether the debtor or the successor of the debtor

under the plan has assumed the business or the

management of the property dealt with by the plan,

(5) whether payments under the plan have commenced, and

(6) whether all motions, contested matters, and

adversary proceedings have been finally resolved.

Advisory Committee Note to Rule 3022 (1991). The Sixth Circuit

BAP, in Shotkoski, noted: 

The Advisory Committee Note is the only guidance

available to the courts for determining whether an

estate has been fully administered. A definition for

‘fully administered' does not appear anywhere in the

Code or the Rules. 

In re Shotkoski, 420 B.R. at 482; see also In re Omega Optical,

Inc., 476 B.R. 157, 167 (Bankr. E.D. Pa. 2012) (same); Graves v.
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Rebel Rents, Inc. (In re Rebel Rents, Inc.), 326 B.R. 791, 804

(Bankr. C.D. Cal. 2005) (same). Although the Advisory Committee

Note provides guidance on when a bankruptcy court may enter a

final decree, not all the factors set forth in the Advisory

Committee Note need to be present to establish that a case is

fully administered for final decree purposes. In re Rebel Rents,

Inc., 326 B.R. at 804 (citing In re Mold Makers, Inc., 124 B.R.

766, 768-69 (Bankr. N.D. Ill. 1990)).

In this case, it appears that five of the factors are

relevant; factor four relating to assumption of the debtor’s

business is not applicable in a case involving a liquidating plan. 

Stated simply, here Trustee adequately demonstrated that

confirmation of the plan was final, and the terms of that plan had

been substantially consummated; all deposits and transfers of

property envisioned in the plan had been made; and payments to

creditors had not only been commenced, but apparently were

complete, except for some administrative expenses for which funds

were available and committed. There were apparently no other

remaining motions or matters pending before the bankruptcy court

in the chapter 11 case. The bankruptcy court made findings of

fact to support these factors, and we perceive no error in these

findings.

Of course, Moe does not challenge the bankruptcy court’s

findings. Rather, in addition to his allegations of improper

actions by Trustee (for which Moe provides no evidence), he

continues to assert the same arguments made repeatedly years ago

in the bankruptcy court in opposition to approval of the

Settlement Agreement and plan confirmation. Vaguely, in his
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appellate brief, he suggests that some financial benefit might

result “if this settlement is voided.” Moe Op. Br. at 3. He

requests “the Court to keep the Chapter 11 open to Void the

settlements and or disgorge [Trustee’s] fees in the proceeding.” 

Id.

We decline to consider Moe’s arguments again in this appeal. 

As the Panel determined in Spokane Raceway I, any suggestion that

the Settlement Agreement should be overturned is moot because, to

do so, would involve “circumstances too complex to be unraveled.” 

If that was true in 2007, it is obviously no less so in 2013.

Even if that were not so, in Spokane Raceway I the Panel

examined the merits of Moe’s arguments, and ruled that the

bankruptcy court "did not abuse its discretion in approving the

settlement because the court examined all four [A&C Props.]

factors adequately in making a full and independent assessment

that the compromise was fair and equitable." Spokane Raceway I at

*19. Under the doctrine of law of the case, a court is precluded

from reconsidering an issue already decided in the same case. 

Lucas Auto Eng’g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d

762, 766 (9th Cir. 2001). The Ninth Circuit instructs us that we

should only depart from law of the case doctrine under limited

circumstances:

The law of the case doctrine provides that a panel of

this court has discretion to depart from the law of the

case established by the same panel, or another, where:

(1) the decision is clearly erroneous and its

enforcement would work a manifest injustice,

(2) intervening controlling authority makes

reconsideration appropriate, or (3) substantially

different evidence was adduced at a subsequent trial.

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning
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Agency, 216 F.3d 764, 787 (9th Cir. 2000), aff’d, 122 S.Ct. 1465

(2002). None of these three exceptions to the doctrine applies in

this appeal. On the other hand, it would likely “work a manifest

injustice” if we were to attempt to unwind the rights and duties

established in a six-year-old settlement agreement and in a

confirmed plan under which millions of dollars have changed hands

and been distributed among Debtors’ creditors.

In short, Moe’s arguments have all been previously advanced

and rejected, and no reason exists to revisit his complaints. The

bankruptcy court did not abuse its discretion in entering the

final decree and closing the chapter 11 case.

CONCLUSION

We AFFIRM the order of the bankruptcy court.