Henry and Esther Misle - Page 27




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            the EOA and the covenant not to compete clause therein.  Indeed,                           
            in its modified judgment the State court did not even address                              
            whether Henry was an accommodation party as to the FirsTier                                
            note-–the only reference to Henry’s status as an accommodation                             
            party was in the postjudgment journal entry.  In this case, the                            
            issue we must decide is whether Henry and Esther are the primary                           
            obligors on the FirsTier note.  The issues are not identical;                              
            thus, the first requirement is not met.                                                    
                  The remaining two requirements for collateral estoppel to                            
            apply also are not met in this case.  In United States v.                                  
            International Bldg. Co., supra at 506, the Supreme Court held                              
            that                                                                                       
                  A judgment entered with the consent of the parties may                               
                  involve a determination of questions of fact and law by                              
                  the court.  But unless a showing is made that that was                               
                  the case, the judgment has no greater dignity, so far                                
                  as collateral estoppel is concerned, than any judgment                               
                  entered only as a compromise of the parties.                                         
                                                                                                      
            In this case, the State court did not enter a judgment regarding                           
            whether Henry and Esther were primary obligors or accommodation                            
            parties with respect to the FirsTier note.  Rather, it simply                              
            made a journal entry that referred to Henry as an “accommodating                           
            Party” in connection with a settlement of “certain conflicts                               
            which have arisen in regards to the amount payable pursuant to                             
            * * * the Modified Judgment”.  Henry and Esther made no showing                            
            whatsoever as to the nature of the journal entry or that it                                
            embodied determinations of fact and law by the State court.                                





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