United Airlines Inc v. HSBC Bank USA ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1459
IN RE:
UNITED AIR LINES, INC.,
Debtor.
UNITED AIR LINES, INC.,
Plaintiff-Appellant,
v.
HSBC BANK USA as paying agent, and
CITY AND COUNTY OF DENVER,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2839—John W. Darrah, Judge.
____________
ARGUED FEBRUARY 16, 2006—DECIDED JULY 6, 2006
____________
Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
MANION, Circuit Judge. In 1992, to operate at the then-new
Denver International Airport, United Air Lines, Inc., entered
an agreement entitled the “Special Facilities and Ground
Lease” with the City and County of Denver (collectively
“Denver”). Through this agreement, United leased ground
2 No. 05-1459
space and also certain, to-be-built facilities at the airport.
Instead of building the facilities at issue itself, Denver
agreed to have United build the facilities that United would
be using. To fund this construction by United, Denver
issued tax-exempt municipal bonds, raising $261,415,000 for
the project. United services these bonds indirectly through
the payment of “facilities rentals” under the lease. After
United entered bankruptcy in 2002, the true nature of this
agreement became a point of dispute. In an adversary
proceeding before the bankruptcy court, United sought to
have the bond-related portions of the agreement severed
from the rest of the agreement and treated as a loan rather
than a lease for purposes of § 365 of the Bankruptcy Code,
11 U.S.C. § 365. The bankruptcy court ruled that the agree-
ment could not be severed, and it further concluded that,
taken as a whole, the agreement was a lease. The district
court affirmed. United appeals, and we affirm.
I.
To set the stage for the background and analysis that
follows, it is helpful to explain briefly the importance of
the lease-versus-loan distinction in this bankruptcy con-
text. When a debtor’s lease is at issue, “[a] lessee must either
assume the lease and fully perform all of its obligations, or
surrender the property. 11 U.S.C. § 365. A borrower that has
given security, by contrast, may retain the property without
paying the full agreed price. The borrower must pay enough
to give the lender the economic value of the security
interest; if this is less than the balance due on the loan, the
difference is an unsecured debt. See 11 U.S.C. § 506(a) and
§ 1129(b)(2)(A).” United Airlines, Inc. v. HSBC Bank USA,
No. 05-1459 3
N.A., 416 F.3d 609, 610 (7th Cir. 2005).1
With that, we turn to the more important details of the
Denver-United agreement, the “Special Facilities and
Ground Lease.” Signed on October 1, 1992, the agreement is
for a thirty-one-year term expiring on October 1, 2023, with
an optional nine-year extension to October 1, 2032. The
primary purpose of the agreement was to facilitate United
moving into and operating at the then-new Denver Interna-
tional Airport for the aforementioned term. To that end,
Denver, as owner of the underlying ground, leased forty-
five acres to United and also leased certain, to-be-built
facilities, including a terminal/concourse facility, an aircraft
maintenance facility, a ground equipment maintenance
facility, a flight kitchen, and an air freight facility. Through-
out, the agreement refers to the ground and facilities jointly
as the “leased property.”
United’s payments for its use of the ground are straight-
forward. United pays monthly “ground rentals,” which are
based upon a per-square-foot rate and the cost of common-
use items that Denver provides for the entire airport, e.g.,
1
We add a brief word about United’s plan of reorganization,
which the bankruptcy court confirmed on February 1, 2006,
thereby enabling United to “exit” bankruptcy. At oral argument,
United informed us that, under the plan of reorganization, the
disputed portion of the transaction here is provisionally treated
as a lease, consistent with the most recent judicial ruling on the
matter, that of the district court. Furthermore, United con-
ditionally assumed the lease. Nevertheless, according to United,
this conditional assumption will terminate if, in the end, this
transaction is judicially determined to be a loan. In which case, it
will then be treated as pre-petition debt. Accordingly, we have a
live, justiciable controversy before us.
4 No. 05-1459
trash removal, snow removal, law enforcement, etc. United
pays the ground rentals directly to Denver, the landlord.
This portion of the agreement, as United admits, has all the
hallmarks of a true lease for purposes of § 365.
United’s payments for the facilities are slightly more
involved, which is primarily due to the fact that, at the
inception of the lease, the facilities still had to be built. To
construct the facilities at issue, Denver conceivably could
have raised bond money, used that money to build the
facilities itself, and then charged United a traditional form
of rent for United’s use of the facilities. Denver did not do
that. Instead, it raised bond money—which, as municipal
bonds, paid tax-exempt interest—and then turned that
money, totaling $261,415,000, over to United so that
United could build the facilities that United would be using
for the term of the lease. Still, the ownership and title of the
facilities rest with Denver, and, when the lease ends,
possession of the facilities reverts to Denver.
To all this, there is an additional layer of intricacy.
Theoretically, Denver could have collected traditional rental
payments from United for the use of the facilities and then
used that source of income to service the bonds itself. That
did not happen here. Instead, Denver forwent that revenue
stream and, in lieu of traditional rental payments, had
United make payments to service the bonds, albeit indi-
rectly. The parties’ agreement refers to these bond-related
payments as “facilities rentals.” The amount and timing of
the facilities rentals correspond to the amounts and dead-
lines associated with the payment of interest and principal
on the bonds. Denver does not collect the facilities rentals.
Rather, United pays the facilities rentals to a third party,
called the “paying agent.” The current paying agent is
HSBC Bank USA, N.A. Consistent with the parties’ frame-
No. 05-1459 5
work, United’s payments to the paying agent are “for the
account of” (on behalf of) Denver as the municipality that
issued the bonds. The paying agent is then tasked with
making the necessary distributions to the underlying
bondholders.
These arrangements appear to have been working
smoothly until United entered bankruptcy in 2002. Then, to
avoid having the bond-related facilities rentals treated like
lease obligations under § 365, United instituted an adver-
sary proceeding against Denver and the paying agent,
seeking a declaratory judgment in its favor. After discovery,
each side moved for summary judgment. The bankruptcy
court first determined that the bond-related portions of the
agreement could not be severed from the agreement. That
determination required the bankruptcy court to view the
agreement as one integrated whole, and, in that light, the
bankruptcy court concluded that the agreement had to be
treated as a lease for § 365 purposes. The bankruptcy court
thus granted summary judgment to Denver and the paying
agent. The district court affirmed, and United appeals.
II.
United’s objective as debtor here is to avoid having its
bond-related, facilities obligations in the agreement treated
as lease obligations under § 365. There is no dispute that, to
reach such a result in the context of this case, United must
clear two hurdles. First, the bond-related portions of the
agreement must be severable from the rest of the agreement,
which, with its traditional ground rentals, is indisputably a
lease. Second, the substance of the agreement’s facilities
provisions must genuinely be that of a loan and not a lease.
As followers of the United bankruptcy saga will know, we
confronted an issue similar to the second point above
6 No. 05-1459
in each of our two prior published opinions concerning
United’s airport leases. The first two opinions of what is
now a trilogy pertained to the San Francisco International
Airport, United Airlines, 416 F.3d at 609, and the Los Angeles
International Airport, In re United Air Lines, Inc., 447 F.3d
504 (7th Cir. 2006).2 While the cases share similarities, a
critical distinction is the fact that the parties in the present
case cemented their deal into one document. In the San
Francisco and Los Angeles cases (in which we held two
supposed lease arrangements to be secured loans), the
underlying ground leases were addressed in separate
documents. See United Airlines, 416 F.3d at 611, 618; In re
United Air Lines, 447 F.3d at 505-06. Not so here. As re-
counted above, Denver and United tied their ground and
facilities arrangements into a single contract. Therefore, the
first order of business in this opinion is to determine if this
knot should, or even can, be untied.
Contract severability, as the bankruptcy and district
courts correctly pointed out, is a question of state law. See
United Airlines, 416 F.3d at 615 (citing Butner v. United States,
440 U.S. 48 (1979)); see also, e.g., In re Payless Cashways, 203
F.3d 1081, 1084-85 (8th Cir. 2000); Stewart Title Guar. Co. v.
Old Republic Nat’l Title Ins. Co., 83 F.3d 735, 739 (5th Cir.
1996); In re Qintex Entm’t, Inc., 950 F.2d 1492, 1496 (9th Cir.
1991); In re Gardinier, Inc., 831 F.2d 974, 975-76 (11th Cir.
1987). The choice-of-law clause in the Denver-United
agreement indicates that the state law to be applied here is
that of Colorado, and the parties agree that Colorado
contract law governs the severability issue at hand.
2
Separately, we disposed of a related dispute regarding the John
F. Kennedy International Airport in New York with an unpub-
lished order.
No. 05-1459 7
The next matter to address is the standard of appellate
review, a point raised at oral argument. To do so, we must
determine if we are confronting a question of law or fact
or some mixture thereof. Some Colorado appellate opinions,
as discussed at oral argument, have treated contract-
severability rulings as questions of fact, reviewing those
rulings in a manner akin to the federal clearly-erroneous
standard. See John v. United Adver., Inc., 439 P.2d 53, 54, 56
(Colo. 1968); Peterson v. Colo. Potato Flake & Mfg. Co., 435
P.2d 237, 238 (Colo. 1967); L.U. Cattle Co. v. Wilson, 714 P.2d
1344, 1346, 1349 (Colo. Ct. App. 1986). However, those
opinions were reviewing bench trials in which the
severability dispute turned on the trial court’s factual
findings. By contrast, when trial courts in Colorado have
made severability rulings without the need of factual
findings (e.g., based upon the face of the contract, at the
summary judgment stage), Colorado appellate opinions
have reviewed those determinations as questions of law,
subject to independent appellate review. See Univex Int’l,
Inc. v. Orix Credit Alliance, Inc., 914 P.2d 1355, 1356, 1357
(Colo. 1996) (reviewing a summary judgment decision,
interpreting the language of the disputed contract, and
ruling that, by its language, the contract could not be
severed as a matter of law); Stroup v. Pearce, 288 P. 627, 627
(Colo. 1930) (“Considerable oral evidence was taken on the
question of severability, but if there was no ambiguity
the contract cannot be varied by parol and we need only
examine its face.”); Bond-Connell Sheep & Wool Co. v. Snyder,
188 P. 740, 742 (Colo. 1920) (“The trial court was eminently
right in holding, as matter of law, that the purchases under
the contract were not separable . . . . ”); Homier v. Faricy
Truck & Equip. Co., 784 P.2d 798, 801 (Colo. Ct. App. 1988)
(“Whether a contract is indivisible or severable is a question
of intention to be determined from the language and subject
8 No. 05-1459
matter of the contract itself. . . . The interpretation of an
established written contract is generally a question of law
for the court. Thus, the interpretation is subject to independ-
ent reevaluation by an appellate court.”); cf. L.U. Cattle, 714
P.2d at 1349 (“The issue as to whether a contract is entire or
divisible is one of mixed law and fact, but, to the extent that
the intention of the parties is revealed in a written instru-
ment, it is a question of law.”).
In this case, the trial court is the bankruptcy court, and
it did not conduct a bench trial. Rather, the bankruptcy
court’s severability ruling was made at the summary
judgment stage. It is true that the bankruptcy court faced
cross motions for summary judgment, and it is also true
that, under certain, rare circumstances, cross summary
judgment motions can be converted into a bench-trial-like
situation. See Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126,
1131-32 (7th Cir. 1994). However, that did not happen
here. The bankruptcy court’s severability ruling was a
purely legal ruling and was not based upon any factual
findings. Thus, consistent with Colorado law, we review
that ruling as a question of law. Handling that question of
law, moreover, is a federal law concern; while state law
controls the substance of the appeal, federal law supplies
the standard of appellate review. See In re Kmart Corp., 434
F.3d 536, 541 (7th Cir. 2006) (citing Mayer v. Gary Partners &
Co., 29 F.3d 330, 332-35 (7th Cir. 1994)); In re Abbott Labs.
Derivative S’holders Litig., 325 F.3d 795, 803 (7th Cir. 2003);
Myers v. County of Lake, 30 F.3d 847, 851 (7th Cir. 1994).
Accordingly, our review of the bankruptcy court’s deci-
sion here is the customary federal summary judgment
standard: de novo review. See In re United Air Lines, Inc., 438
F.3d 720, 727 (7th Cir. 2006).
With cross summary judgment motions, we construe all
facts and inferences therefrom “in favor of the party against
No. 05-1459 9
whom the motion under consideration is made.” Kort v.
Diversified Collection Servs., Inc., 394 F.3d 530, 536 (7th Cir.
2004) (internal quotation omitted); see also In re United Air
Lines, 438 F.3d at 727. Further, summary judgment is
appropriate if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also In
re United Air Lines, 438 F.3d at 727; Kort, 394 F.3d at 536.
Settled on the standard of review, our next step is to apply
Colorado’s severability rule to the contract before us.
Colorado law places a heavy burden on the party seeking to
sever a contract. The rule is: “A contract cannot be severed
unless the language of the contract manifests each party’s
intent to treat the contract as divisible.” Univex, 914 P.2d at
1357 (citing Homier, 784 P.2d at 801). Even if the parties
entered a multi-part contract, that contract cannot be
severed after the fact if the parties entered it “as a
single whole, so that there would have been no bargain
whatever, if any promise or set of promises were struck
out.” John, 439 P.2d at 56 (internal quotation omitted); see
also Homier, 784 P.2d at 801 (“[F]or for a contract to be
severable, the language of the contract must evince the
parties’ intention to have assented separately to successive
divisions of the contract, upon performance of which the
other party would be bound. Thus, it is not the number of
items in the contract which is determinative of whether
it is severable, but the nature of the object or objects in the
contract.” (citing L.U. Cattle, 714 P.2d at 1349; Gomer v.
McPhee, 31 P. 119, 120 (Colo. Ct. App. 1892))); cf. Tilbury v.
Osmundson, 352 P.2d 102, 105 (Colo. 1960) (“The contract
between the parties was not divisible. It was one single
transaction.”).
10 No. 05-1459
To see how Colorado’s rule works in practice, we briefly
review two helpful examples. The first example is from the
Supreme Court of Colorado’s opinion in Campbell Printing
Press & Manufacturing Company v. Marsh, 36 P. 799, 802
(Colo. 1894). In that case, the plaintiffs entered a contract
to purchase a printing press and a paper folder from the
defendant. The defendant delivered the press without
incident but could not come through with the contracted-for
folder in a timely fashion. Without the folder, the plaintiffs
could not use the press as they had intended. The plaintiffs
thus sought to rescind the entire contract and return the
press. The defendant wanted to sever the contract into two
parts so as to preserve its sale of the press. The Supreme
Court of Colorado would have none of it. The court, observ-
ing that the press was “practically valueless” to the plain-
tiffs without the folder, stated that “had [the defendant’s]
failure been anticipated, [the plaintiffs] would not have
made the contract of purchase.” Id. at 802. The court thus
held that the contract was “entire and indivisible” and that
the plaintiffs had the right to rescind the whole contract. Id.Bottom line, because the plaintiffs would not have entered
the contract if they could not obtain the press and the folder
jointly, the contract could not be severed into a press-only
deal and a folder-only deal.
The second and more recent example is from the Colorado
Court of Appeals’ opinion in Homier v. Faricy Truck &
Equipment Company, 784 P.2d 798, 799-801 (Colo. Ct. App.
1988). In Homier, the plaintiffs entered a contract with
the defendant to purchase a truck with a “dump body,”
which is a device attached to truck’s cab and chassis that
enables a truck to shed its payload. The purchase price for
this dump truck was $47,863, of which $7,500 was explicitly
allocated for the dump body. After delivery, the truck was
constantly out of service for repairs due to repeated prob-
No. 05-1459 11
lems with the dump body. In the first seven months after
delivery, the truck was operational for a mere thirty days.
The plaintiffs thus sought to revoke their acceptance of the
entire truck. Much like the defendant in Campbell Printing,
the defendant in Homier wanted to sever the contract into
two parts, one for the truck and one for the dump body. The
Colorado Court of Appeals rejected the defendant’s ap-
proach. Notwithstanding the allocation of $7,500 for the
dump body, the court determined that, based upon the
contract, the purchase of the truck with a dump body was
one integrated deal. The court, in no uncertain terms, stated:
“The contract calls for the purchase . . . of a truck, consisting
of a cab and chassis with a 15-foot dump body. Nowhere
does it indicate any intention of the parties that the cab and
chassis be considered separate and apart from the dump
body.” Id. at 801. Consequently, as with the contract in
Campbell Printing, the contract in Homier could not be
severed after the fact because the plaintiffs would not have
entered the contract if they could not jointly obtain a truck
with a dump body.
These examples put meat on the language quoted above
from the Supreme Court of Colorado’s opinion in John v.
United Advertising, Inc., 439 P.2d 53, 56 (Colo. 1968)—“a
single whole, so that there would have been no bargain
whatever, if any promise or set of promises were
struck out.” In Campbell Printing, the printer-folder contract
was not severable because there would have been no
bargain at all if the folder provisions of the contract were
struck out. 36 P. at 802. Likewise, the dump truck contract
in Homier was not severable because there would have
been no bargain to begin with if the dump-body portion
of the contract were struck out. 784 P.2d at 801.
The same is true here with the Denver-United agreement.
On its face, this contract is an inherently integrated bargain:
12 No. 05-1459
an agreement for a leasehold coupled with a bond arrange-
ment to improve that leasehold. Importantly, given the
context of this case, the parties’ bond arrangement—as with
the press in Campbell Printing and the truck in Homier—is
not and could not have been a lone-standing bargain. In
other words, the parties would not have entered the bond-
related portion in the complete absence of the leasing
portion. Under no conceivable circumstances would Denver
have given the proceeds of its bonds to United in this
manner to develop airport facilities if United did not also
have a leasehold at the new airport upon which to build and
then operate those facilities. By the same token, United is in
the business of flying airplanes, not constructing airport
facilities, and United would never have undertaken the
bond-related obligations in this deal if it did not also have
a leasehold upon which to operate at the new airport.
Simply stated, without a ground lease, there was no need
for this particular bond arrangement. Even though, similar
to situations in Campbell Printing and Homier, Denver and
United could have separated this deal into two contracts,
they did not, and their decision to unite their interdepen-
dent ground and facilities objectives into a single contract at
the outset cannot now be undone after the fact under
Colorado law. See Campbell Printing, 36 P. at 802; Homier, 784
P.2d at 801; see also Univex, 914 P.2d at 1357 (applying
Homier to a joint sales and financing agreement);
Bond-Connell, 188 P. at 742 (“It is an entire contract as by its
terms it contemplates that each and all of its parts, material
provisions and considerations, are interdependent and
common each to the other.”). Therefore, we view this joint
lease-and-bond agreement “as a single whole” because
“there would have been no bargain whatever, if [the lease-
related] promises were struck out.” John, 439 P.2d at 56. It
cannot be severed.
No. 05-1459 13
Before concluding, we briefly address United’s arguments
in favor of severability. United puts forth several reasons
why the ground lease and the facilities arrangement could
have been forged separately. For instance, United claims
that, but for a simple matter of administrative convenience,
the two portions of this agreement would not have been
shuffled together. United also cites to the existence of
differing payment and default provisions for the leasing
portion and the bond-related portion of the agreement as
well as the differing purposes behind each of these two
portions. While it is true that there is one set of payments for
the ground lease and another set for the bond-oriented
facilities rentals, Homier’s handling of the $7,500 allocation
for the dump body demonstrates that the existence of
apportionable sums alone is not dispositive. 784 P.2d at 799,
801; cf. John, 439 P.2d at 56 (apportionability a factor, not the
only factor). What is more, United’s arguments here do not
meet Colorado’s rule for severing a contract; just because
the parties could have entered two contracts at the outset is
not the test. Denver and United entered one contract, and
that contract cannot be divided after the fact simply because
one party later finds that it would have been more advanta-
geous to have entered two contracts instead of one.
Additionally, United cites to a local Denver ordinance,
Ordinance 626, which predated the Denver-United agree-
ment by some eight years. United contends that Ordinance
626 shaped the parties’ intent (or at least Denver’s) to enter
two separate contracts here, not one. The theory goes that,
since Ordinance 626 implicitly calls for Denver to enter lease
and bond agreements separately, Denver could not form,
and thus never did form, an intent to enter a unitary lease-
and-bond contract with United in this case. Even taking
United’s interpretation and application of Ordinance 626 as
correct, United’s argument is nonetheless undermined by
14 No. 05-1459
Ordinance 712, which Denver adopted contemporaneously
with the Denver-United agreement at issue. As Denver and
the district court point out, Ordinance 712 contemplates a
single document with a leasing portion and bond-oriented
portion. United counters that Ordinance 626 provided the
foundation for Ordinance 712 and should thus control.
Nevertheless, to the extent there is an inconsistency between
the two ordinances, the later-enacted Ordinance 712 pro-
vides for the repeal of any inconsistent language in prior
ordinances. As a result, United’s reliance on Ordinance 626
is misplaced.
United also relies on the severability clause in the Denver-
United agreement for support. This standard form saving
clause states: “In the event any provision of this Lease shall
be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.” This clause,
however, does not manifest an intent to single out any
particular division of the agreement, let alone a division of
the agreement into a defined ground leasing portion and a
defined bond-related facilities portion. Rather, this clause
simply shows that the parties had the general and custom-
ary intent to have as much of their agreement survive
adverse judicial intervention as possible. Without more, this
clause does not support United’s position.
In sum, for all the reasons articulated above, the Denver-
United agreement cannot be severed under Colorado law.
Having reached that conclusion, our resolution of the rest of
the case becomes elementary. Since the agreement must be
treated as one indivisible whole, the issue then becomes
whether that whole should be treated as a lease under § 365.
In that regard, United concedes that the agreement’s ground
lease provisions constitute a true lease. Furthermore, under
No. 05-1459 15
no circumstances could those ground lease provisions
(which dominate the agreement’s subordinate facilities
provisions) be considered a financing arrangement and
thereby allowed to escape the rigors of § 365. United offers
no argument to the contrary on this point. Accordingly, as
the bankruptcy court correctly concluded, the Denver-
United agreement as a whole must be treated as a true lease
for purposes of § 365. Finally, to be thorough, we note that
our resolution of matters above obviates any need for us to
reach the second issue outlined at the beginning of this
analysis section, namely, whether the agreement’s facilities
provisions are a stealth financing arrangement. They very
well may be, but that point is now moot in light of our
severability determination.
III.
Under Colorado law, Denver and United’s Special
Facilities and Ground Lease, with its interdependent ground
and facilities provisions, is a single, inseverable whole in
that there would have been no bargain whatsoever had the
ground provisions been absent from the deal. While the
parties could have separated this complex arrangement into
two contracts, they did not, and their decision to join their
entire agreement into one contract at the outset cannot now
be undone after the fact under Colorado law. Furthermore,
as a whole, this agreement must be treated as a true lease for
purposes of § 365.
AFFIRMED
16 No. 05-1459
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-6-06