CPC Health Corp. v. Goldstein (In Re CPC Health Corp.) , 81 F. App'x 805 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: CPC HEALTH CORPORATION, 
Debtor.
CPC HEALTH CORPORATION,
Plaintiff,
and
OFFICIAL COMMITTEE OF UNSECURED  No. 03-1344
CREDITORS FOR CPC HEALTH
CORPORATION,
Creditor-Appellee,
v.
STEVEN GOLDSTEIN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-02-1754-MJG, BK-00-20843)
Argued: October 28, 2003
Decided: December 4, 2003
Before WILKINS, Chief Judge, and WIDENER and
SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 IN RE: CPC HEALTH CORP.
COUNSEL
ARGUED: Randall K. Miller, ARNOLD & PORTER, Washington,
D.C., for Appellant. Mark David Taylor, ARENT, FOX, KINTNER,
PLOTKIN & KAHN, P.L.L.C., Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dr. Steven Goldstein (Goldstein) appeals a district court order
affirming a bankruptcy court order denying his motion for rejection
damages against CPC Health Corporation (CPC). We affirm, although
not on the ground relied on by the district court.
I.
On September 27, 1997, Goldstein, who had previously served as
CPC’s executive director, entered into an agreement with CPC to
serve as its president and CEO. When this contract expired on Octo-
ber 4, 1999, the CPC board of directors ("the Board") voted to renew
Goldstein’s agreement for an additional year ("the 1999 Agreement").
On September 27, 2000, shortly before the 1999 Agreement was set
to expire, the Board convened to discuss the possibility of filing for
Chapter 11 bankruptcy. At this meeting, the Board rejected an offer
by Goldstein to resign but did not address whether to extend his
agreement. Nevertheless, after the 1999 Agreement expired on Octo-
ber 4, 2000, Goldstein continued working for CPC in the same posi-
tion and for the same compensation.
CPC filed a Chapter 11 bankruptcy petition on October 11, 2000.
On November 20, 2000, CPC filed its bankruptcy schedules, which
Goldstein signed as CPC’s president and CEO. The schedule contain-
IN RE: CPC HEALTH CORP. 3
ing listings for executory contracts did not list an employment agree-
ment between CPC and Goldstein.
On approximately December 11, 2000, the Board voted to remove
Goldstein from his position as president and CEO, but, in so doing,
agreed to provide Goldstein with a severance package of ten months
of salary. Goldstein subsequently performed two weeks of transition
services and three weeks of consulting services for CPC.
CPC’s reorganization plan provided that all executory contracts
that had not been specifically rejected would be deemed rejected
when the plan was confirmed, which occurred on September 7, 2001.
In early October 2001, Goldstein moved for rejection damages for the
bankruptcy trustee’s rejection of his alleged executory employment
contract. He maintained that under Maryland law he was entitled to
a presumption that the 1999 Agreement was renewed for an additional
year under the same terms by virtue of his continued employment
after expiration of the agreement. He did not challenge the legality of
his termination on December 11, 2000, but contended that he still had
an executory contract on September 7, 2001 that was rejected on that
date pursuant to the terms of the confirmed plan.
The bankruptcy court denied Goldstein’s motion for rejection dam-
ages, ruling that Goldstein did not have an executory contract on the
date of plan confirmation for two reasons. First, he became an at-will
employee when his 1999 contract expired. And second, even if his
contract was renewed for another full year when it expired in 2000,
no executory contract existed on September 7, 2001 because by that
time Goldstein had been terminated. The district court affirmed the
denial of Goldstein’s motion on the ground that the bankruptcy court
did not clearly err in finding that Goldstein became an at-will
employee when his contract expired in 2000.
II.
With certain exceptions not relevant here, a bankruptcy trustee,
"subject to the court’s approval, may assume or reject any executory
contract . . . of the debtor." 11 U.S.C.A. § 365(a) (West 1993). In this
context, "a contract is executory if performance is due to some extent
on both sides." Lubrizol Enters. v. Richmond Metal Finishers, Inc. (In
4 IN RE: CPC HEALTH CORP.
re Richmond Metal Finishers, Inc.), 756 F.2d 1043, 1045 (4th Cir.
1985). And, a trustee’s rejection of a contract is tantamount to a
breach and gives rise to an unsecured claim against the estate. See 11
U.S.C.A. § 365(g)(1) (West 1993 & Supp. 2003); 3 Collier on Bank-
ruptcy ¶ 365.09[1] (Alan N. Resnick & Henry J. Sommer eds., 15th
ed. 2003).
We review the decision of the district court de novo, effectively
standing in its shoes to consider directly the findings of fact and con-
clusions of law by the bankruptcy court. See Butler v. David Shaw,
Inc., 72 F.3d 437, 440 (4th Cir. 1996). As such, we review legal con-
clusions by the bankruptcy court de novo and may overturn its factual
determinations only upon a showing of clear error. See id. at 441. "A
finding is clearly erroneous when, although there is evidence to sup-
port it, on the entire evidence the reviewing court is left with the defi-
nite and firm conviction that a mistake has been committed."
Faulconer v. Comm’r, 748 F.2d 890, 895 (4th Cir. 1984).
A.
Goldstein first argues that the bankruptcy court clearly erred in
finding that the 1999 Agreement was not renewed for another year.
We agree.
Under Maryland law, which the parties agree governs this claim,
when parties enter into a one-year contract and continue their perfor-
mance after the term expires, the contract is presumed renewed for
another year absent an affirmative showing that the parties agreed to
alter the terms of the previous agreement:
[I]f the contract for a year is made, and the parties do not
disagree, and the service continues, the same contract pre-
vails for the next year during which service has continued,
without new agreement. . . . [S]uch contract is likened to the
case of a tenant holding over. . . . [T]he presumption is,
when the service continues, it is under the same contract. . . .
Being only a presumption, it is liable to rebuttal by evidence
of a change of contract.
IN RE: CPC HEALTH CORP. 5
Brandenburg v. S. F. & G. Co., 114 A.2d 604, 607 (Md. 1955) (inter-
nal quotation marks omitted); see Lerner v. Ammerman, 467 A.2d
187, 191 (Md. Ct. Spec. App. 1983) ("The presumption of continu-
ance could be overcome only by a contrary provision in the agree-
ment itself or an affirmative showing that the parties intended to
change the terms of the continuing agreement.").
The bankruptcy court found that the presumption of renewal for an
additional year was rebutted because "the parties, at the September
27, 2000, Board meeting, intended that Dr. Goldstein operate on an
at-will basis with CPC, upon expiration of the 1999 Contract." J.A.
342. In making this finding, the court reasoned that the minutes of
that meeting reflect no vote on a possible extension of the contract;
that CPC was in financial distress and thus unlikely to have wanted
to commit itself to another full year of Goldstein’s compensation; and
that Goldstein signed his name to CPC’s bankruptcy schedules as
president and CEO of CPC under penalty of perjury and did not list
his own agreement as an executory contract to which CPC was a
party. The court also discounted the fact that Goldstein was awarded
a severance package in the exact amount of the salary he would have
been owed under the one-year contract. The court concluded that the
severance package was "a means only to show CPC’s appreciation for
Dr. Goldstein’s years of service for CPC and [was] not . . . evidence
that CPC’s Board of Directors had, on September 27, 2000, extended
the 1999 Contract." Id. at 343.
Initially, we note that it appears that the bankruptcy court may have
incorrectly placed the burden on Goldstein to prove that the parties
agreed to another one-year term rather than placing the burden on the
Official Committee of Unsecured Creditors (Appellee) to prove that
the parties agreed to change the terms of the 1999 Agreement. See id.
at 342-43 (wherein the bankruptcy court concluded that the Board’s
failure to discuss extending Goldstein’s contract—as indicated by
meeting minutes containing no reference to such discussions—tended
to show that Goldstein became an at-will employee). However, we
need not decide whether the bankruptcy court applied an incorrect
standard, because even if it did not, it clearly erred in finding that the
parties agreed to change Goldstein’s status to at-will employment.
The finding of the bankruptcy court notwithstanding, there simply
was no evidence on which to base a reasonable conclusion that the
6 IN RE: CPC HEALTH CORP.
parties agreed to change Goldstein’s status to at-will employment or
that the Board even intended to do so. Appellee points to the fact that
the Board voted in 1999 to extend Goldstein’s contract for an addi-
tional year and that the Board minutes reflect that no such vote was
taken in 2000. But that evidence tends to show only that the subject
of the terms under which Goldstein would continue to work was not
addressed at the September 27, 2000 meeting, not that the parties
affirmatively agreed to change the terms. Indeed, testimony from
CPC’s Chairman of the Board, Eric Henry, confirmed that the subject
"just wasn’t addressed." Id. at 278.
The bankruptcy court relied in part on its view that the Board
would not likely have committed itself to pay Goldstein’s salary for
another full year considering its dire financial circumstances. This
inference is completely speculative, however. And, even assuming
arguendo that CPC’s financial situation tended to show that the Board
would not have taken affirmative action to extend Goldstein’s con-
tract for another year, it certainly does not show that the Board actu-
ally asked Goldstein to change his status to at-will and that Goldstein
agreed to do so.
The final fact relied upon by the bankruptcy court was that Gold-
stein did not include his employment contract on CPC’s bankruptcy
schedule listing executory contracts. It is clear, and the bankruptcy
court recognized, that Goldstein is not now legally bound by the dis-
closures. First of all, his submission of the schedule as CPC’s presi-
dent was simply a corporate act, not a personal act of his as an
individual. See Turner v. Turner, 809 A.2d 18, 61 (Md. Ct. Spec.
App. 2002). Moreover, he subsequently corrected the schedule when
he filed his proof of claim. See Fed. Bankr. R. 3003(c)(4) (stating that
a properly executed and filed claim supersedes a scheduling of that
claim); cf. Sovran Bank v. Anderson, 743 F.2d 223, 225 n.1 (4th Cir.
1984) (stating that bankruptcy schedules give rise to admissions
against the debtor "unless corrected" (internal quotation marks omit-
ted)).
Appellee argues, however, that the bankruptcy court could properly
have viewed Goldstein’s signature as circumstantial evidence that he
did not believe he had an executory employment contract with CPC.
This argument is unsatisfactory for several reasons. First, Goldstein
IN RE: CPC HEALTH CORP. 7
testified that it simply never occurred to him that the schedules he
filed were inconsistent with the notion that his contract had been
renewed again in 2000 for one year. He testified that he did not even
know what an executory contract was. And, even discounting this tes-
timony, it would be sheer speculation to conclude that Goldstein, who
is neither a lawyer nor a financial officer and who signed the sched-
ules based on the advice of his CFO, appreciated the legal subtleties
of the situation. Furthermore, even assuming that Goldstein actually
believed that he was no longer under contract, that still does not dem-
onstrate that the Board shared this view or that the parties actually
entered into an agreement to change Goldstein’s status to at-will
employment. In sum, any inference from the schedules filed by Gold-
stein would have to rest on layer upon layer of speculation. For all of
these reasons, the evidence here was insufficient to support a finding
that CPC rebutted the presumption that Goldstein’s contract was
renewed in 2000 for an additional year.
B.
We now turn to the second ground offered by the bankruptcy court
for the denial of Goldstein’s motion for rejection damages. As we
explained earlier, the bankruptcy court concluded that regardless of
whether the 1999 Agreement was renewed, there could be no execu-
tory contract after Goldstein was terminated in December 2000
because the termination eliminated any further obligation on his part
to perform. Goldstein challenges this analysis only by asserting that
CPC could not dispose of its own obligation to pay Goldstein the
remainder of his salary for the year simply by unilaterally terminating
the contract.* But, this assertion in no way contravenes the conclusion
*Goldstein contended at oral argument that the bankruptcy court did
not actually decide that there could be no post-termination executory
contract. In so arguing, Goldstein relied on a statement in the bankruptcy
court order that the finding that the 1999 Agreement was not renewed for
an additional year "dispose[d] of the court’s need to address whether the
contract at issue was or was not executory when CPC’s chapter 11 Plan
was confirmed." J.A. 341. We conclude that, despite its recognition that
the at-will finding would have been sufficient to dispose of the case, the
court offered its alternative basis for the denial in unmistakable terms.
See id. at 345 (ruling that Goldstein’s termination prior to the confirma-
8 IN RE: CPC HEALTH CORP.
of the bankruptcy court that CPC’s termination of Goldstein ended his
obligation to continue to perform. See Lubrizol Enters., 756 F.2d at
1045 (explaining that a contract is executory when performance is due
from both parties). Because the analysis of the bankruptcy court relat-
ing to the December 2000 termination is essentially unchallenged, we
affirm the order of the district court affirming the denial of Gold-
stein’s motion for rejection damages.
AFFIRMED
tion of the plan was "the most telling reason" for the denial of rejection
damages).
Goldstein also suggested at oral argument that were we to affirm on
the ground that there was no executory contract after he was terminated,
he might pursue a breach of contract claim based on his firing. We take
no position regarding the merits of such a claim.