George L. Wintz v. Charles W. Ries ( 1999 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 98-6088 MN
No. 98-6089 MN
No. 98-6090 MN
No. 98-6091 MN
No. 98-6092 MN
No. 98-6093 MN
In re: *
*
WINTZ COMPANIES, d/b/a * APPEALS FROM THE UNITED
Milbank Freightways, * STATES BANKRUPTCY COURT
* FOR THE DISTRICT OF
Debtor. * MINNESOTA
*
GEORGE WINTZ, *
Appellant, *
v. *
*
AMERICAN FREIGHTWAYS, INC., and * Case No. 98-6088MN
CHARLES W. RIES, Trustee, *
*
Appellee. *
---------------------------------------------------- *
GEORGE WINTZ, *
Appellant, *
v. *
*
STAN KOCH & SONS TRUCKING, INC. * Case No. 98-6089MN
and CHARLES W. RIES, Trustee, *
*
Appellees. *
---------------------------------------------------- *
GEORGE WINTZ, *
Appellant, *
v. *
*
SPINDRIFT, INC. and * Case No. 98-6090MN
CHARLES W. RIES, Trustee, *
*
Appellees. *
---------------------------------------------------- *
WINTZ PROPERTIES, INC., *
*
Appellant, *
v. *
*
AMERICAN FREIGHTWAYS, INC., and * Case No. 98-6091MN
CHARLES W. RIES, Trustee, *
*
Appellees. *
---------------------------------------------------- *
WINTZ PROPERTIES, INC., *
*
Appellant, *
v. *
*
STAN KOCH & SONS TRUCKING, INC. * Case No. 98-6092MN
and CHARLES W. RIES, Trustee, *
*
Appellees. *
---------------------------------------------------- *
WINTZ PROPERTIES, INC., *
*
Appellant, *
v. *
*
SPINDRIFT, INC. and * Case No. 98-6093MN
CHARLES W. RIES, Trustee, *
*
Appellees. *
2
Submitted: February 3, 1999
Filed: March 10, 1999
Before KOGER, Chief Judge, WILLIAM A. HILL, and SCHERMER, Bankruptcy
Judges
SCHERMER, Bankruptcy Judge
George Wintz and Wintz Properties, Inc., (collectively “Appellants”), appeal three
bankruptcy court1 orders approving sale by the Trustee, Charles W. Ries (“Trustee”), of the
estate’s interests in three parcels of real property pursuant to 11 U.S.C. § 363(f). We affirm
the orders approving the sale of these properties free and clear of liens and interests, and we
hold that without a stay pending appeal, the sales are not reversible under 11 U.S.C. §
363(m). In addition, because the estate already closed on the sale of its interest in one parcel
of property, we hold the appeal of that particular sale order is moot.
Facts
The Wintz Companies’ bankruptcy case commenced on August 15, 1997. At the
time of the bankruptcy filing, the estate held fee interests in at least two parcels of real estate.
One parcel was known as the “Rosemount Property,” consisting of a warehouse and nine-
hole golf course. The second was a single parcel of real estate known as the “Walnut
Property,” consisting of a warehouse. The estate also held an interest as lessee under a long
term lease on a truck terminal facility known as the “Terminal Road Property.” Between
December 1, 1995 and January 1, 1996, Wintz Companies transferred its interests in the
three properties to Wintz Properties, another company owned and controlled by George
Wintz. Wintz Properties subsequently transferred its interest in the Rosemount Property to
Spindrift, Inc., a company owned by an acquaintance of George Wintz.
The Trustee filed a complaint to set aside the transfers of these properties to Wintz
Properties, and to others, including Spindrift, Inc., on the basis of actual and constructive
1
The Honorable Gregory F. Kishel, United States Bankruptcy Judge for the District of
Minnesota.
3
fraud under Minnesota’s Uniform Fraudulent Transfer Act. The bankruptcy court granted
partial summary judgment to the Trustee on his avoidance action, setting aside the transfers
to Wintz Properties and Spindrift, Inc. and recovering those properties to the estate. The
bankruptcy court’s decision granting summary judgment in favor of the Trustee is also on
appeal before this court and is addressed in a separate opinion.
While proceeding with his avoidance action, the Trustee also solicited offers to
purchase the estate’s interest in the three properties, and employed a real estate professional
to find purchasers for each of the three properties. Following the deadline for receipt of
written bids, the Trustee notified the three highest bidders for each property of an
opportunity to raise their offers at an auction pursuant to procedures previously outlined by
the Trustee. The three highest bidders of the Terminal Road Property advised that they did
not wish to increase their original offers. Thus, the Trustee did not conduct an auction of
that property. The Trustee did, however, conduct an auction of both the Walnut and
Rosemount Properties. As a result of these efforts, the Trustee filed separate motions on
July 24, 1998, to approve the proposed sales of the properties to the following successful
bidders:
Terminal Road Property - to American Freightways, Inc. for $2,500,010
Walnut Property - to Stan Koch & Sons Trucking, Inc. for $3,000,000
Rosemount Property - to Spindrift, Inc. for $6,025,000.
The sale procedures outlined in each motion and notice of sale contained a provision
that granted a “last-look” opportunity to the proposed purchaser under each of the Trustee’s
motions. This “last-look” opportunity provided that if there was an objection to the sale
based upon the inadequacy of the proposed purchase price, the proposed purchaser had the
right to match any objector’s higher bid. The sale procedures also required any objector to
offer a purchase price that was at least $25,000 more than the proposed sale price and
required the objector to demonstrate an ability to close.
The Trustee noticed the motions for hearing on August 18, 1998, and continued the
motions several times in conjunction with the court’s consideration of the Trustee’s
avoidance action. Ultimately, on September 3, 1998, the court announced it would approve
the sale of the Rosemount and Walnut Properties. The bankruptcy court continued the
hearing on the motion to sell the Terminal Road Property until September 17, 1998, to allow
4
the Trustee and the lessors of the Terminal Road Property time to resolve issues regarding
the cost of repairs and environmental remediation required for the Trustee to cure defaults
under the lease. An agreement quantifying these costs was necessary for the Trustee to
assume and assign the lease. In addition to repairs and remediation expenses, the term of
the Terminal Road Property lease was in dispute. Although the stated term of the lease was
40 years, the lease recited that it ran from January 1, 1964 to December 31, 2004, which
constituted a period of 41 years.
The Trustee and American Freightways, Inc., the proposed purchaser of the Terminal
Road Property, reached an agreement on these matters, resulting in a proposed sale of the
leasehold for the purchase price of $2,103,135.97. This price reflected a reduction for the
shorter lease term of 40 years and an adjustment for a new closing date. The Trustee also
reached an agreement with the lessors about what had to be done to cure defaults under the
lease. Consequently, the Trustee filed an amended motion and notice to sell the Terminal
Road Property for this lower price. The Trustee served this amended motion and notice on
all parties in interest, including the other high bidders, on September 4, 1998. The amended
motion and notice described the changes to the original purchase agreement, and advised
that a hearing would be conducted on the motion on September 17, 1998. The sale
procedures in the amended motion and notice were identical to the sale procedures in the
original motion, including the “last-look” provision that gave the proposed purchaser the
right to match any bid in excess of the proposed purchaser’s offer.
George Wintz and Wintz Properties objected to the sales. Despite those objections,
by orders dated September 21, 1998, the bankruptcy court approved all three sales. In the
orders authorizing sale of each property, the court found that each sale was in the best
interest of the debtor, its estate and all creditors; that it was a good faith transaction; and that
notice of the sale was adequate and sufficient. Each order also stated that the interests of
Wintz Properties and Spindrift (where applicable), in the properties were avoided by the
Trustee’s fraudulent transfer action. On October 2, 1998, the Trustee and American
Freightways, Inc. consummated the sale of the Terminal Road Property with delivery by the
Trustee of an executed assignment of lease in exchange for payment by American
Freightways, Inc. George Wintz and Wintz Properties filed motions for stay of the orders
5
authorizing sale pending appeal. The bankruptcy court denied the requests for stay pending
appeal. Thereafter, the Appellants filed these timely appeals.
Issues on Appeal
Appellants seek reversal of all three sale orders on the basis that the estate may not
have held an interest in the properties at the time of the orders authorizing the sales.
Appellants also challenge the sale orders on procedural grounds, asserting that certain
defects in the sale processes warrant vacating the sales. First, Appellants question whether
the Trustee could sell interests that the Trustee recovered in a fraudulent transfer avoidance
action when the avoidance order, itself, is on appeal. Second, Appellants challenge all three
sales on the grounds that the “last-look” provision in the sale procedures rendered the sale
process flawed by chilling potential purchase offers. Lastly, with respect to the Terminal
Road Property only, Appellants contend the order authorizing that sale was defective
because changes in the sale terms mandated that the Trustee re-market the property and
provide a new 20-day notice period prior to the hearing required by Fed. R. Bankr. P.
2002(a)(2). In opposition, the Trustee asserts that he had the right to sell the estate’s interest
in the three properties despite an appeal of the favorable judgment on his fraudulent transfer
avoidance action. He also maintains that the “last-look” provision was beneficial, not
harmful to the estate. With respect to the appeal of the sale of the Terminal Road Property,
the Trustee maintains that the sale was properly noticed and that because the sale transaction
has already occurred, appeal of that sale is moot under 11 U.S.C. § 363(m). Although the
Trustee did not raise a finality argument under 11 U.S.C. § 363(m) with respect to the sale
of the Rosemount and Walnut Properties, which had not occurred at the time of the appeal,
the court determines that the authority for those sales is not subject to reversal or
modification under 11 U.S.C. § 363(m).
Standard of Review
We consider the bankruptcy court’s findings of fact for clear error and its conclusions
of law de novo. Four B. Corporation v. Food Barn Stores, Inc. (In re Food Barn Stores
Inc.), 107 F.3d 558, 562 (8th Cir. 1997). Matters committed to the bankruptcy court’s
discretion, such as implementing bidding procedures, will be reversed only if the court
abused its discretion. See Consumer News and Bus. Channel Partnership v. Financial News
6
Network Inc. (In re Financial News Network Inc.), 980 F.2d 165, 169 (2d Cir. 1992)
(bankruptcy judge had broad discretionary power in conducting sale of debtor’s assets). An
abuse of discretion occurs if the bankruptcy court fails to apply the proper legal standard or
fails to follow proper procedures in making its determination, or if the court bases an award
upon findings of fact that are clearly erroneous. In re Kula, 213 B.R. 729, 735 (B.A.P. 8th
Cir. 1997); In re Cresota Mill Ltd. Partnership, 211 B.R. 315, 317 (B.A.P. 8th Cir. 1997).
For a finding of fact to be clearly erroneous, this court must be left with a “definite and firm
impression that a mistake has been committed.” In re Waugh, 95 F.3d 706, 711 (8th Cir.
1996).
Discussion
A. Points Relevant to All Three Sales.
1. Appeal of avoidance order does not preclude sale of assets -- The sales were
authorized under 11 U.S.C. § 363(f) and are final under 11 U.S.C. § 363(m)
Section 363(f) allows the bankruptcy court to authorize the sale of property free and
clear of any interest in such property of an entity other than the estate, only if –
1. applicable nonbankruptcy law permits sale of such property free and clear of
such interest;
2. such entity consents;
3. such interest is a lien and the price at which such property is to be sold is
greater than the aggregate value of all liens on such property;
4. such interest is in bona fide dispute; or
5. such entity could be compelled, in a legal or equitable proceeding, to accept
a money satisfaction of such interest.
11 U.S.C. § 363(f). The Trustee asserted that 11 U.S.C. § § 363(f)(3), (4) and (5) applied
with regard to all of the properties. Although the bankruptcy court orders authorizing the
sales do not recite specific findings that satisfy each of these subparagraphs, the orders do
state that each sale is authorized as requested in the Trustee’s motion; that each sale is in the
best interests of the estate; that each sale is a good faith transaction; and that the Trustee
gave adequate notice of the proposed entry of the order authorizing each sale.
7
Other than Appellants’ objection that the “last-look” provision in the sale procedures
somehow had a chilling effect on bids for the property, (as addressed below), Appellants
have alleged no other procedural defects in the conduct of the sales that would render the
sales invalid, nor have they raised any objection to the good faith of the purchasers. Instead,
Appellants contend that because they have appealed the order avoiding transfers of the
properties, the sales should be vacated because it may later be found that the estate did not
have an interest in the properties that the Trustee sold.
The Eighth Circuit has stated that a bankruptcy court must carefully consider the
requirements of section 363(f) and has the duty to protect the property interests of third
parties. Missouri ex rel. Runyan v. United States Bankruptcy Court, 647 F.2d 768, 778 (8th
Cir. 1981). Bankruptcy courts are particularly admonished to examine their authority to
order a sale under section 363(f) if title documents indicate that the estate possesses no
substantial ownership rights or if any bona fide dispute over the property exists between
third parties. Id. In the instant case, the record reflects that the bankruptcy court considered
the elements of 11 U.S.C. § 363(f)(3), (4) and (5) in determining what liens existed against
each property that were entitled to be paid from proceeds of the sales. Further, at the time
of sale, the court made its determination that the Trustee held an interest in the subject
properties by finding that the debtor’s transfer of those properties was fraudulent and that
ownership of each property properly rested with the estate.
In Missouri ex rel Runyan, amid the larger issue of the bankruptcy court’s jurisdiction
over grain stored in debtor’s public storage bin, several farmers challenged the propriety of
a trustee’s sale of such grain on the grounds that the trustee held the grain only as a bailee,
and that ownership had not been determined at the time of sale. The bankruptcy court
authorized the sale with interests to attach to the sale proceeds, and on appeal, the district
court affirmed, finding that the bankruptcy court correctly held that the elements of 11
U.S.C. § 363(f)(4) and (5) were satisfied. On subsequent appeal, (Lindsey v. Ipock, 732
F.2d 619 (8th Cir. 1984)), the Eighth Circuit, relying on the finality principle of section 363
sales, rejected the farmer’s assertion that any dispute concerning ownership of the grain
rendered the sale invalid. The Eighth Circuit explained, “[The farmer] may not belatedly
attack the bankruptcy order of sale in these collateral proceedings; once [the farmer] was
8
apprized of the bankruptcy court’s sale order and failed to timely appeal, he was obligated
to obey these orders even if they were in error . . . ”Id. at 621 (emphasis added). “When
a [debtor] sells property with the approval of the court, the buyer acquires title clear of all
claims in the bankruptcy. The property may not be hauled back into the estate, and the terms
of the sale are inviolate in the absence of fraud or collusion.” In re Chicago, Rock Island
and Pacific R.R. Co., 794 F.2d 1182, 1186 (7th Cir. 1986) (holding that bankruptcy court’s
jurisdiction lapsed with its control of the property). The finality rule of 11 U.S.C. § 363(m)
codifies this concept, and requires a stay pending appeal from a bankruptcy sale.
In the instant case, Appellants failed in their attempt to obtain a stay pending appeal.
Without a stay pending appeal, section 363(m) applies squarely and protects the purchasers
from the effect of any reversal or modification on appeal of the orders authorizing the sales.
Section 363(m) is very explicit about the necessity of obtaining an order for stay pending
appeal and about the inability to obtain a reversal or modification of an order approving a
sale without obtaining such a stay. That section states:
The reversal or modification on appeal of an authorization under subsection
(b) or (c) of this section of a sale or lease of property does not affect the
validity of a sale or lease under such authorization to an entity that purchased
or leased such property in good faith, whether or not such entity knew of the
pendency of the appeal, unless such authorization and such sale or lease were
stayed pending appeal.
11 U.S.C. § 363(m). The rule is well stated that the finality of 11 U.S.C. § 363(m) renders
un-reviewable a sale of estate assets under section 363(b) unless one obtains a stay pending
appeal. Veltman v. Whetzal, 93 F.3d 517, 521 (8th Cir. 1996) (citing In re CGI Indus., Inc.,
27 F.3d 296, 299 (7th Cir. 1994)). This finality rule is premised upon the two
complementary policies of (1) encouraging finality in bankruptcy sales; and (2) respecting
the jurisdictional prohibition against allowing the court to decide cases in which it cannot
provide a remedy. Id. Courts in the Eighth Circuit have repeatedly stated this principle. See
Prasil v. Dietz (In re Prasil), 215 B.R. 582, 584 (B.A.P. 8th Cir. 1998); Forbes v. Forbes (In
re Forbes), 215 B.R. 183, 192-193 (B.A.P. 8th Cir. 1998). Because Appellants’ motion for
stay pending appeal was denied, this court is without authority to reverse or modify the
9
of these properly conducted sales. Moreover, even if Appellants prevail on their
appeal
that, at the time of the sales, the Trustee did not hold an interest in, or own, the properties
to the sale, those sales (of whatever the estate’s interest), are nevertheless final and
not
appeal.
2.
While
§ 363(m) subsumes the procedural points Appellants raise, we address those points briefly.
proposed purchaser the right to match any competing bid, tainted the sales by creating a
for competitive bidding. The facts of the present case support the bankruptcy
court’s
the “last-look” provision created an incentive, rather than a disincentive, for bidding. First,
the
conducted an arm’s length auction under terms that encouraged competing bids from the
highest bidders for each property. The Trustee then provided notice of each motion
to approve sale to all parties in interest with an opportunity for any party to object to the
of the sale price. In the event of an objection to the proposed sale, the Trustee’s
procedures provided for further competitive bidding at hearing on approval of the sale. The
$25,000, and that the proposed purchaser was allowed a “last-look” or right to match the
Courts have routinely approved such sale procedures, including the “last-look”
provision
highest bids at the outset. In Four (In re Food Barn
, 107 F.3d 558 (8th Cir. 1997), a Chapter 11 debtor reached an agreement with
B Corporation for assignment of a real property lease. The assignment and purchase
agreement
purchaser, the right to match any rival offers and required competing bidders to reimburse
10
Four B no less than $10,000 for its actual legal and accounting expenses in formulating its
initial bid. In Food Barn, the estate originally proposed to assign its interest in a grocery
store lease for $1.5 million to Four B, but at the hearing on approval of the sale, a competing
bidder offered $1.6 million. Four B agreed to match that offer, but the competitor bid again
and offered $2.1 million. Four B ultimately agreed to match the higher bid, but appealed
the court’s extension of a second bid opportunity to the competitor, asserting that Four B
should have been permitted to purchase the lease rights for $1.6 million on the theory that
it had an exclusive right of first refusal. Although the propriety of the matching terms was
not directly challenged on appeal, in affirming the bankruptcy court’s requirement that Four
B had to match the second bid, the Eighth Circuit approved the use of matching, or “last-
look” provisions in sale contracts. Specifically, the Eighth Circuit stated:
Some amount of bid protection is, of course, permissible under the Code, and
the trustee is not normally required to seek court approval before in good faith
entering into an agreement which includes a right of first refusal. See In re
Table Talk, Inc., 53 B.R. 937, 942 (Bankr. D. Mass. 1985). “A contrary
position might discourage potential buyers from negot[i]ating with trustees,
thereby forcing down the market value of the bankruptcy estate[’s] property
in general.” Id. Still, it would be unwise to allow the parties to hamstring the
court’s discretion to implement bidding procedures it deems to be fit under the
circumstances. The bankruptcy judge must retain the capability to conduct
sales in a manner that most benefits the bankruptcy estate, and we would be
loath to accept any contractual provisions that purport to limit this authority.
Food Barn Stores, Inc., 107 F.3d at 567-68.
Similarly, “break up” fees or termination fees payable to a lead bidder involve
analogous concepts, and courts permit such fees provided the fees create an incentive for
increased bidding in sales from bankruptcy assets. See In re APP Plus, Inc., 223 B.R. 870,
875 (Bankr. E.D.N.Y. 1998) (authorizing break-up fee and analyzing whether addition of
a “topping fee” would similarly “encourage rather than discourage the bidding, and whether
it would enhance rather than detract from the ultimate maximum recovery to the estate.”);
see also In re S.N.A. Nut Company, 186 B.R. 98, 104 (Bankr. N.D. Ill. 1995) (denying
break-up fee, but holding “[t]he test is whether the payment of a breakup fee is in the best
interest of the estate.”). As with matching rights, or “last-look” procedures, the test is
11
whether the bankruptcy court, in its discretion, properly determines that the proposed fee,
the transaction as a whole, make economic sense and are in the best interest of the
bankruptcy In re America West Airlines, Inc.
(Bankr. D. Ariz. 1994).
In
highest bidders were allowed to attend an initial auction to challenge the bid of the proposed
Because the sale terms disclosed that the successful bidder would have the right
to
to the sale, each interested bidder had an incentive initially to bid the highest amount in
to acquire the “last-look” right. Thus, the sale procedures created a mechanism at the
outset
Thereafter, the procedure provided further competitive bidding by specifying reasonable
for conducting an auction in the event of an objection to the purchase price. The
procedures
estate rather than chilled bidding. Accordingly, we determine that the bankruptcy court did
B. Points Relevant to the Terminal Road Property Sale.
Propriety of amended notice.
ellants next challenge the propriety of the notice given for the sale of the
Terminal
notice of sale required the property to be re-marketed, or that, at a minimum, the Trustee
have solicited new bids. In addition, Appellants contend the amended notice mailed
on
requisite 20-day notice mandated by Fed. R. Bankr. P. 2002(a)(2).
For In re Kendall Foods Corp. 122 B.R. 792 (Bankr.
S.D.
subsequent bid is persuasive evidence that the lower initial bid was grossly inadequate.
re Kendall Foods Corp. Kendall
Foods, the debtor received several offers after the bidding closed which exceeded the
successful bid by 11.8% to 35%. The bankruptcy court ruled that the difference of 35%
established that the successful bid was grossly inadequate and, therefore, held that it would
be appropriate to accept the later offers. Id. at 793. In the instant case, however, the record
on appeal contains no evidence of competing bids that would support a claim that the market
value of the leasehold interest is substantially greater than the proposed amended and
reduced sale price. Moreover, the amended motion states that the reduction in price was the
result of a variety of factors, including a shorter lease term, the loss of time on the front end
of the lease, and the risk of an ability to negotiate with the lessors. These facts were not
considered in the first offer, therefore, any difference between the first and second offers
cannot be said to reflect an inherent inadequacy in the second, lower offer.
Furthermore, because the sale procedures remained unchanged, the provision of 13-
day notice rather than 20-day notice of the amended sale terms is immaterial and does not
constitute reversible error. Other parties, including the original two of the three highest
bidders, were apprized of the new offer and afforded an opportunity to appear at the
continued hearing scheduled for September 17, 1998, in order to object to the sale or tender
a higher bid. No parties other than George Wintz and Wintz Properties objected to the sale
and no higher offers were tendered. Because the amended notice was sufficient, and
because the reduced sale price--although less than the initial offer-- nevertheless constituted
the highest bid tendered, the bankruptcy court did not err in approving this sale.
Accordingly, we deny this point of Appellants’ appeal.
2. Appeal of the Terminal Road Property sale is moot
Finally, the court also determines that with respect to the Terminal Road Property,
this appeal is moot. The Trustee has sold the Terminal Road Property, and, therefore, any
relief granted by this court would be ineffective. See Ross v. Strauss (In re Ross), 223 B.R.
702, 703 (B.A.P. 8th Cir. 1998). See also United States v. Fitzgerald, 109 F.3d 1339, 1341
(8th Cir. 1997); Van Iperen v. Production Credit Assoc., 819 F.2d 189, 190 (8th Cir. 1987)
(holding “[o]nce collateral is taken and converted into cash, no court is able to formulate
adequate relief to the debtor.”). This court has already stated that because Appellants did
not obtain a stay pending appeal of the orders authorizing sale of these properties, reversal
13
of the orders authorizing sale would not affect sale of any of the properties (Rosemount,
Walnut or Terminal Road) pursuant to 11 U.S.C. § 363(m). However, because the sale of
the Terminal Road Property has taken place, that sale is not only unaffected by the appeal,
but appeal of that sale is, itself, moot. Ross, at 703.
For the foregoing reasons, the orders of the bankruptcy court approving the sales of
the Terminal Road Property, Rosemount Property and Walnut Property are affirmed.
A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE
EIGHTH CIRCUIT
14