Quantum Diversified Holdings, Inc. v. Wienheimer (In Re Escarent Entities, L.P.) , 423 F. App'x 462 ( 2011 )


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  •      Case: 10-50410 Document: 00511460218 Page: 1 Date Filed: 04/28/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    April 28, 2011
    No. 10-50410                         Lyle W. Cayce
    Clerk
    In the Matter of: ESCARENT ENTITIES, L.P.,
    Debtor
    _____________________________________________
    QUANTUM DIVERSIFIED HOLDINGS, INC.,
    Appellant
    v.
    EDMUND WIENHEIMER; JOHN SCHMERMUND,
    Appellees
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:09-CV-383
    Before JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.
    EDITH H. JONES, Chief Judge:*
    This appeal arises from a bankruptcy proceeding in which the bankruptcy
    court approved, pursuant to 
    11 U.S.C. § 365
    , the debtor-seller’s assumption of
    a contract for the sale of land. The purchaser under the contract opposed the
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-50410 Document: 00511460218 Page: 2 Date Filed: 04/28/2011
    No. 10-50410
    assumption and thus sought review of the bankruptcy court’s decision in the
    district court. The district court affirmed the order, which the purchaser now
    appeals. Finding the bankruptcy court erred in approving the assumption of the
    contract, we REVERSE.
    I. Background
    Escarent Entities, L.P. (“Escarent”)1 and Quantum Diversified Holdings,
    Inc. (“Quantum”) executed a contract for the sale of land on September 17, 2008.
    Pursuant to the contract, Quantum would purchase from Escarent 495.23 acres
    of undeveloped land in Hays County, Texas. The contract specified an initial 90-
    day feasibility period, during which Quantum had an unrestricted right to
    terminate the contract, provided it notified Escarent by December 17, 2008.
    Quantum did not exercise this termination right, and was thus bound to close
    on the land deal by January 12, 2009, the closing date specified in the contract.
    A week before the parties were to close, however, Escarent filed a voluntary
    petition for relief under Chapter 11 of the Bankruptcy Code. As a result, the
    closing date passed without event.
    Nearly one month later, Escarent filed in the bankruptcy court a motion
    for an order approving the conditional assumption of the contract, which the
    bankruptcy court granted on March 6, 2009. Under this conditional assumption,
    Escarent could auction the property to a third party to maximize its value; if no
    sale were consummated, it would then assume the contract with Quantum.
    Having opposed this motion, Quantum subsequently filed in the bankruptcy
    1
    While this appeal was pending, the bankruptcy court converted Escarent’s chapter
    11 case into a chapter 7 liquidation. Following this conversion, Escarent’s interests in this
    appeal and any causes of action against Quantum were sold to Edmund A. Wienheimer, Jr.,
    and John J. Schmermund, two principals of Escarent (the “Purchasers”). As a result, Escarent
    no longer has an interest in this appeal. Nevertheless, the case is not moot because Quantum
    potentially faces an action for damages by the Purchasers based on Quantum’s failure to close
    on the sale of the property. Since a decision in Quantum’s favor would impact Quantum’s
    liability in such an action, the case remains justiciable. Cf. In Re Sullivan Cent. Plaza, I, Ltd.,
    
    914 F.2d 731
    , 735 (5th Cir. 1990).
    2
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    No. 10-50410
    court a motion for reconsideration and a motion to alter or amend the court’s
    March 6 order. The court, after a hearing, partially granted Quantum’s request
    to modify its decision.   The court thus issued a new assumption order on
    March 25, 2009.
    Under the modified order, Escarent’s assumption of the contract was still
    approved, but this time the bankruptcy court provided Quantum 90 days to
    secure financing. The order also specified that closing would occur no later than
    one week after the initial 90-day period expired, unless Quantum elected to
    extend the closing date. The court authorized Quantum to extend the closing
    date for two 30-day periods, provided it paid Escarent $20,000 for each
    extension. If Quantum used both extensions, Quantum would then be required
    to close by the first Monday of September 2009. Importantly, the bankruptcy
    court rejected Quantum’s request that the initial 90-day period include a right
    to terminate the contract, as Quantum had been permitted to do under the
    feasibility period of the original agreement.
    Quantum timely appealed to the district court, which affirmed the
    bankruptcy court’s modified order. Quantum now appeals to this court.
    II. Standard of Review
    This court reviews the decision of a district court, sitting as an appellate
    court, by applying the same standards of review to the bankruptcy court's
    findings of fact and conclusions of law as applied by the district court. In re
    Scopac, 
    624 F.3d 274
    , 279-80 (5th Cir. 2010). Accordingly, the bankruptcy
    court's findings of fact are reviewed for clear error and conclusions of law are
    reviewed de novo. 
    Id. at 280
    .
    3
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    No. 10-50410
    III. Discussion
    Quantum raises two challenges to the bankruptcy court’s order approving
    Escarent’s assumption of the land contract.2 First, Quantum contends that
    Escarent’s failure to close on January 12, 2009, constituted an incurable default,
    such that Escarent was precluded from assuming the contract under § 365.3
    Second, Quantum argues that the bankruptcy court impermissibly rewrote the
    terms of the contract in its assumption order, which violates the well-settled rule
    that a debtor must assume the entire contract, with all of its benefits and
    burdens. We address each issue in turn.
    A.
    Escarent’s assumption of the contract is governed by Section 365 of the
    Bankruptcy Code. Section 365 provides that a chapter 11 debtor-in-possession
    may, with some exceptions, assume an executory contract of the debtor with
    court approval.      
    11 U.S.C. § 365
    (a); see 
    11 U.S.C. § 1107
    (a).               By pursuing
    assumption under this section, a debtor may effectively “force another party to
    an executory contract to continue to perform under the contract.” Richmond
    Leasing Co. v. Capital Bank, N.A., 
    762 F.2d 1303
    , 1310 (5th Cir. 1985). If the
    debtor has defaulted under the contract, however, the debtor may not assume
    the contract unless the debtor, inter alia, cures the default or provides adequate
    assurance that it will do so. 
    11 U.S.C. § 365
    (b); Richmond Leasing Co., 
    762 F.2d at 1310
    .       One purpose served by this requirement is “to insure that the
    2
    Quantum also raises what amounts to a bad faith claim against Escarent, which we
    do not reach given Quantum’s failure to raise it before the bankruptcy court. See VRC LLC
    v. City of Dallas, 
    460 F.3d 607
    , 612 (5th Cir. 2006) (finding argument waived where raised first
    time on appeal).
    3
    Quantum also argues that the assumption was improper since the contract was no
    longer executory at the time Escarent assumed it. See In re Texscan Corp., 
    107 B.R. 227
    , 230
    (B.A.P. 9th Cir. 1989) (“It is axiomatic that before 11 U.S.C § 365 can apply a contract must
    exist.”). We need not, however, reach this issue, since reversal is appropriate based on the
    other grounds raised by Quantum. See infra.
    4
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    No. 10-50410
    contracting parties receive the full benefit of their bargain if they are forced to
    continue performance.” In re Ionosphere Clubs, Inc., 
    85 F.3d 992
    , 999 (2d Cir.
    1996) (quoting In re Superior Toy & Mfg. Co., 
    78 F.3d 1169
    , 1174 (7th Cir.
    1996)).    It follows that if a default is incurable, assumption is necessarily
    precluded by the plain meaning of § 365. In this case, Escarent’s non-monetary
    default4 is incurable.      Closing the sale by the specified date constituted a
    material term of the contract, the breach of which could not be cured given the
    nature of financing arrangements and the operation of interrelated provisions
    of the parties’ contract.
    Under Texas law,5 failure to perform in a timely manner constitutes a
    material breach where time is of the essence in the contract. See TrueStar
    Petroleum Corp. v. Eagle Oil & Gas Co., 
    323 S.W.3d 316
    , 319-20 (Tex. App.
    2010). Texas courts have clarified that timely performance is a material term
    “if the contract expressly makes time of the essence or if something in the nature
    and purpose of the contract and the surrounding circumstances make it
    apparent that parties intended that time be of the essence.” 
    Id.
     (citing Deep
    Nines, Inc. v. McAfee, Inc., 
    246 S.W.3d 842
    , 846 (Tex. App. 2008)). In Deep
    Nines, Inc., the court held that timely performance was a material term of the
    contract where the agreement stated specific dates and times for performance,
    provided a cure period if payment was not received when due, and stated that
    if payment was not received within the cure period, the payor would be in
    default. Deep Nines, Inc., 
    246 S.W.3d at 846
    .
    4
    Because Escarent was the seller of the property, it was required to deliver to
    Quantum possession of and title to the property. Failure to do so constitutes a non-monetary
    default.
    5
    To determine whether a default is material, we look to the state law governing the
    contract. Cf. In re Shangra-La, Inc., 
    167 F.3d 843
    , 848 (4th Cir. 1999). Here, Texas law
    governs the contract, since both the land and the parties are located in Texas.
    5
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    Here, the contract specified a closing date–30 days after the feasibility
    period terminated–and provided remedies for the non-defaulting party in the
    event of the other party’s failure to close. If Quantum defaulted, Escarent could
    elect either to seek specific performance or to terminate the contract and receive
    liquidated damages. If Escarent defaulted, Quantum had the option either to
    extend the time for performance or terminate the contract. To construe the
    contract so that timely performance is not a material term would render these
    provisions meaningless. See 
    id.
     Under Texas law, time was of the essence in the
    contract.   Accordingly, Escarent’s failure to close by the original closing
    date–January 12, 2009–was a material default.
    In addition, this default was not curable given the nature of the closing
    date and its relationship to other provisions of the contract. As noted above, the
    contract specified a closing date defined as 30 days beyond the expiration of the
    90-day feasability period. Construing the contract as a whole, it becomes clear
    that the closing date and the feasibility period worked in tandem. During the
    90-day feasability period, Quantum had a right to terminate the contract for any
    reason. This allowed Quantum to, for example, inspect the property and secure
    financing before legally obligating itself to purchase the land. As it turned out,
    Quantum initially declined to terminate the contract during the feasibility
    period, thus binding itself to perform under the contract.     Quantum testified
    that it had secured funding for the property that would have enabled it to
    complete the transaction by January 12. Because funding arrangements are
    often time-limited, Quantum’s ability to close changed after the closing date
    passed. Economic conditions deteriorated and, as a result, Quantum was no
    longer able to secure alternative financing after Escarent’s default. Escarent’s
    failure to close was thus not only a material default, but effectively an incurable
    one, as the parties are unable to return to January 12, 2009, when Escarent’s
    6
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    No. 10-50410
    performance was originally due. The bankruptcy court thus erred in approving
    Escarent’s assumption of an incurably defaulted contract.
    B.
    Even if the contract was subject to assumption, however, the court also
    erred in approving Escarent’s assumption of the contract without including a
    feasibility period.     It is well-settled that an executory contract cannot be
    assumed in part and rejected in part. Stewart Title Guar. Co. v. Old Republic
    Nat’l Title Ins. Co., 
    83 F.3d 735
    , 741 (5th Cir. 1996). Rather, a debtor “must
    assume the entire contract, cum onere”–the debtor must accept “both the
    obligations and the benefits of the executory contract.” In re Nat’l Gypsum Co.,
    
    208 F.3d 498
    , 506 (5th Cir. 2000). Escarent argues that since the original
    feasibility period had expired by the time it filed bankruptcy, Quantum already
    received the benefit of this term of the contract and thus the bankruptcy court
    did not err in refusing to include a new one in the assumption order. We find
    this argument unpersuasive, given the interrelation of the feasibility period and
    the specified closing date. As noted above, a principal benefit of the feasibility
    period was that it allowed Quantum to secure financing before committing itself
    to purchase Escarent’s land. When the original closing date lapsed as a result
    of Escarent’s failure to close, so did the benefit that Quantum derived from the
    feasibility period.     Consequently, by imposing a new closing date without
    affording Quantum the protection of a feasibility period, the bankruptcy court
    denied Quantum a considerable protection under the contract and allowed
    Escarent to escape the corresponding burden. The court, moreover, effectively
    rewrote the parties’ contract by adding subsequent thirty-day extensions of the
    closing period if purchased by Quantum.           This un-agreed-to modification
    betokened more than a mere assumption of the parties’ contract.               The
    bankruptcy court thus violated its obligation to ensure that Escarent assumed
    the contract in toto.
    7
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    No. 10-50410
    IV. Conclusion
    For these reasons, we REVERSE the judgments of the district and
    bankruptcy courts.
    8