Cedar Shore Resort v. Paul Mueller ( 2000 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 00-1389
    ___________
    In re Cedar Shore Resort, Inc.,       *
    *
    Debtor.                   *
    *
    Cedar Shore Resort, Inc.              *
    *
    Appellant,                * Appeal from the United States
    * District Court for the District
    v.                              * of South Dakota.
    *
    Paul Mueller and Mary Pat Mueller,    *
    *
    Appellees.                *
    ___________
    Submitted: October 20, 2000
    Filed: December 13, 2000
    ___________
    Before HANSEN, MURPHY, and BYE, Circuit Judges.
    ___________
    MURPHY, Circuit Judge.
    Cedar Shore Resort, Inc. (Cedar Shore), filed for bankruptcy protection after it
    was served with a shareholder lawsuit. Following an evidentiary hearing, the
    bankruptcy court1 found that Cedar Shore had filed in bad faith and dismissed its
    1
    The Honorable Irvin N. Hoyt, United States Bankruptcy Judge for the District
    of South Dakota.
    petition. The district court2 affirmed the decision of the bankruptcy judge, and Cedar
    Shore appeals from its judgment of dismissal. We affirm.
    I.
    Cedar Shore operates a resort facility in Oacoma, South Dakota. During its early
    years the resort suffered a series of misfortunes, including a fire, an explosion, harsh
    weather conditions, and flooding, and Cedar Shore initially had difficulty generating a
    profit and fulfilling its loan obligations to its principal lender, Norwest Bank. The bank
    did not threaten or initiate any type of foreclosure proceedings against the resort,
    however, and the parties worked together to modify the loan agreement in a mutually
    acceptable manner. In 1997 Norwest amended the loan agreement so that Cedar Shore
    would only be required to make interest payments on its debt.
    Later that year Cedar Shore hired a consultant who described it as a "bankrupt
    company" and urged that it either file for Chapter 7 bankruptcy or reorganize its debt.
    The board of directors unanimously voted not to file. Instead, Cedar Shore worked
    with Norwest to restructure the terms of its loan agreement. Under the terms of a plan
    reached in February 1998, Norwest agreed to reduce the corporate debt it was owed
    by almost $2 million in exchange for a $500,000 capital contribution by Cedar Shore
    shareholders. The Cedar Shore board scheduled a shareholder meeting for April 1998
    to vote on the proposal.
    Before the meeting could take place, shareholders Paul and Mary Pat Mueller
    brought an action in state court against Cedar Shore, its officers and directors, and its
    management company. The suit alleged minority shareholder oppression, waste, and
    mismanagement; breach of fiduciary duty; and tortious interference with prospective
    2
    The Honorable Lawrence L. Piersol, Chief United States District Judge for the
    District of South Dakota.
    -2-
    business advantage. The Cedar Shore board held a meeting on March 12, 1998 to
    discuss its response to the Mueller lawsuit. The members of the board, many of whom
    had been named as defendants in the lawsuit, did not take any action to investigate the
    Muellers' claims. Instead, the board voted to file for bankruptcy.
    Cedar Shore filed a petition under Chapter 11 on May 20, 1998, and its attorney
    decided shortly thereafter that the Muellers' claims were really derivative in nature, that
    they were actually raised on behalf of the corporation, and that they were meritless.
    The attorney later testified that he had spent approximately sixty hours doing his
    analysis. He admitted that his study had not come "anywhere close" to the type of
    investigation typically undertaken in similar cases.
    Cedar Shore entered into a settlement agreement with its officers, directors, and
    management company in which the claims were treated as derivative. See Fed. R.
    Bank. P. 9019(a). Under the agreement Cedar Shore was to release its claims against
    the other parties in exchange for their promise not to seek indemnification from it.
    Cedar Shore then moved the bankruptcy court to approve the agreement. After the
    bankruptcy court agreed that most of the claims were derivative and thus belonged to
    the estate, Cedar Shore amended the settlement agreement to provide for a $30,000
    payment to each officer and director.
    The Muellers opposed the settlement agreement and moved to dismiss the
    bankruptcy petition as being filed in bad faith. Cedar Shore then moved for approval
    of a reorganization plan that it filed which was essentially identical to the agreement
    that it had reached with Norwest in February 1998, before the Mueller lawsuit.
    The bankruptcy court scheduled a hearing to evaluate the motions. The Muellers
    presented evidence that Cedar Shore had already solved most of its financial problems
    and that its bankruptcy filing was motivated by a desire to rid itself of their lawsuit
    rather than to effectuate a legitimate reorganization. Cedar Shore president Edward
    -3-
    Geddes admitted on cross examination that the corporate revenues in 1997 and 1998
    had significantly exceeded those from previous years and that the management team
    was "pleased with the bottom-line performance of the resort." He also acknowledged
    that Cedar Shore had anticipated operating at a loss for several years and had not
    expected a profit until 2000. He admitted that shortly before filing for bankruptcy, he
    had told a group of Cedar Shore creditors that business was going very well and had
    exceeded expectations for the year and that the resort was paying all of its bills. The
    bank had not threatened to sue Cedar Shore for delinquent loan payments, nor had it
    instituted any collection proceedings against it. Geddes acknowledged that none of
    Cedar Shore's thirty-one other creditors had threatened any sort of litigation or
    collection actions against it. He also admitted that after filing its bankruptcy petition,
    the corporation had focused most of its efforts on "attempting to settle the Mueller
    claims in the confines of the bankruptcy estate" rather than on reorganizing its finances.
    The Muellers presented evidence that Cedar Shore's bankruptcy schedules failed to list
    and value properly all personal property and to account for approximately one million
    dollars in furnishings and equipment.
    Cedar Shore presented witnesses who testified that the corporation had filed
    bankruptcy in order to protect its loan restructuring agreement with the bank, not to rid
    itself of the Mueller lawsuit. Geddes testified that the bank had indicated that it would
    not go through with the restructuring agreement unless it was confirmed by the
    bankruptcy court. According to bank officer Terry Johnson, Norwest feared that Cedar
    Shore shareholders would not make their required capital contributions if they were
    distracted by the lawsuit. Johnson testified that the bank wanted court approval of the
    restructuring agreement in order to ensure the shareholder payments, but he admitted
    that Norwest did not specifically require confirmation of the plan by the bankruptcy
    court.
    After considering the evidence, the bankruptcy court found that Cedar Shore's
    primary motivation in filing Chapter 11 was to protect itself from the shareholder action
    -4-
    and dismissed its petition for bad faith under 11 U.S.C. § 1112(b). The court found
    that although the resort had suffered numerous financial setbacks during its early years,
    its financial reports indicated that it "was doing better or at least was on the financial
    track originally projected towards making a profit in the year 2000." The court found
    that Cedar Shore had a good working relationship with its bank, that the two parties
    had negotiated a mutually acceptable loan reorganization agreement, and that all other
    creditors were "apparently satisfied." The court was not persuaded by Cedar Shore's
    claim that the bank needed court approval to protect the reorganization agreement since
    there was no evidence that the Mueller suit had jeopardized the agreement or that the
    shareholders would not have made their required capital contributions. The bankruptcy
    court also found that the petitioner's reorganization schedules did not accurately "list
    and properly value all personalty" and did not comport with either official forms or
    Bankruptcy Code requirements. "The inaccurate and cursory nature" of these
    schedules indicated that Cedar Shore had filed bankruptcy in order to settle the Mueller
    lawsuit, not to effect a legitimate reorganization. The court stated that one indicia of
    bad faith is when the petitioner's primary reason for filing bankruptcy is to avoid a
    lawsuit. It dismissed Cedar Shore's petition "in order to protect the jurisdictional
    integrity of the bankruptcy court and to prevent the misuse of the bankruptcy
    reorganization process."
    Cedar Shore appealed the dismissal to the district court pursuant to 28 U.S.C.
    § 158. The district court affirmed, after concluding that the bankruptcy court had not
    erred in finding that Cedar Shore filed its petition in bad faith and had not abused its
    discretion in dismissing the case. The district court explained that "because the
    bankruptcy court permissibly found that Cedar Shore did not need [the] protections of
    bankruptcy to reorganize, but filed bankruptcy simply to settle the shareholder lawsuit,
    it did not err." The court concluded that the fact that Cedar Shore had put forth a
    legitimate reorganization plan was not determinative.
    -5-
    Cedar Shore then filed this appeal, arguing that the bankruptcy court had erred
    1) in finding that its petition was filed in bad faith, and 2) in dismissing its petition even
    though the resort was capable of proposing a confirmable reorganization plan. We
    affirm.
    II.
    This court sits as a second court of review on a bankruptcy matter, and we apply
    the same standards of review as the district court. See In re Clark, 
    223 F.3d 859
    , 862
    (8th Cir. 2000). We review the bankruptcy court's factual findings for clear error and
    its conclusions of law de novo. Id. Whether a bankruptcy case has been filed in bad
    faith is a question of fact, and a dismissal will only be reversed if the court abused its
    broad discretion. See In re Lumber Exch. Bldg. Ltd. Partnership, 
    968 F.2d 647
    , 648
    (8th Cir. 1992).
    The purpose of Chapter 11 reorganization "is to restructure a business's finances
    so that it may continue to operate, provide its employees with jobs, pay its creditors,
    and produce a return for its stockholders." H.R. Rep. No. 595 (1975), reprinted in
    1978 U.S.C.C.A.N. 6179. The Bankruptcy Code permits a court to dismiss a Chapter
    11 petition for "cause." 11 U.S.C. § 1112(b). Section 1112(b) does not explicitly
    require that cases be filed in "good faith," but we have recognized that a bad faith filing
    can be cause for dismissal. See In re Kerr, 
    908 F.2d 400
    , 404 (8th Cir. 1990)
    (affirming dismissal of petition on grounds that violation of court orders, self-dealing,
    and evasive conduct indicated bad faith and "improper motive" in debtor's Chapter 11
    filing). Other circuits have similarly held that the Code contains an implicit good faith
    requirement. See In re SGL Carbon Corp., 
    200 F.3d 154
    , 162 (3d Cir. 1999); In re
    Trident Assocs. Ltd. Partnership, 
    52 F.3d 127
    , 130-31 (6th Cir. 1995); In re Marsch,
    
    36 F.3d 825
    , 828 (9th Cir. 1994); Carolin Corp v. Miller, 
    886 F.2d 693
    , 700 (4th Cir.
    1989); In re Phoenix Piccadilly, Ltd., 
    849 F.2d 1393
    , 1394 (11th Cir. 1988); In re Little
    Creek Devel. Co., 
    779 F.2d 1068
    , 1071-72 (5th Cir. 1986). According to the Fifth
    Circuit, "[g]ood faith implies an honest intent and genuine desire on the part of the
    -6-
    petitioner to use the statutory process to effect a plan of reorganization and not merely
    as a device to serve some sinister or unworthy purpose." In re Metropolitan Realty
    Corp., 
    433 F.2d 676
    , 678 (5th Cir. 1971). The good faith requirement "is designed to
    prevent abuse of the bankruptcy process, or the rights of others, involving conduct or
    situations only peripherally related to the economic interplay between the debtor and
    the creditor community." L. King, 7 Collier on Bankruptcy, ¶ 1112.07[1] (2000)
    (citations omitted).
    Cedar Shore argues that the bankruptcy court erred in finding that its Chapter 11
    petition was filed in bad faith. There is no single test for determining when a debtor
    has filed in bad faith. Rather, courts consider the totality of the circumstances,
    including the court's evaluation of the debtor's financial condition, motives, and the
    local financial realities." Little Creek, 779 F.2d at 1072. The parties have not
    identified any case in this circuit which found bad faith by filing under Chapter 11 for
    the primary purpose of obtaining an advantage in litigation, but other courts have
    dismissed such cases on the grounds that this type of filing "is not within the legitimate
    scope of the bankruptcy laws." See In re SGL Carbon Corp., 
    200 F.3d 154
    , 165 (3d
    Cir. 1999) (citing cases).
    The circumstances of SGL Carbon are similar to the case before us. The debtor
    there was a financially healthy company which filed bankruptcy in order to escape
    potentially crippling effects of a pending civil antitrust judgment against it. Id. at 166-
    67. The Third Circuit reversed the district court determination that "the distractions of
    litigation" constitute a valid reason for filing bankruptcy. The appellate court ruled that
    the debtor had filed in bad faith and dismissed the petition because Chapter 11 is
    intended for valid reorganization of "financially troubled businesses," not to permit
    financially solvent companies to "rapidly conclude litigation to enable a continuation
    of their business." Id. at 169.
    -7-
    Here, the bankruptcy court examined the evidence and found that Cedar Shore's
    primary motivation for filing bankruptcy was to dispose of the Mueller lawsuit. After
    carefully reviewing the record, we are satisfied that the bankruptcy court's findings are
    not clearly erroneous. There is strong evidence to support the finding that Cedar Shore
    did not file bankruptcy to effectuate a valid reorganization, but rather to prevent the
    Muellers from pursuing their claims in state court. The court was entitled to discount
    the testimony of those witnesses who stated that Cedar Shore's purpose in filing
    bankruptcy was to protect its loan restructure agreement with Norwest. See In re Roxy
    Real Estate Co., Inc., 
    170 B.R. 571
    , 573 (Bankr. E.D.Pa. 1993) ("[i]t is unlikely that
    a debtor will ever acknowledge its own bad faith") The parties did not need
    bankruptcy court approval of the loan agreement. There was no evidence that the bank
    might have been drawn into the Mueller lawsuit, or that the shareholders would not
    make their required capital contributions In fact, the reorganization plan was
    substantially identical to the one reached by the parties in February 1998 before the
    bankruptcy filing. Cedar Shore was not in dire financial straits. The corporation had
    recently completed a favorable loan reorganization agreement with Norwest and did not
    have problems with any other creditors. Geddes had publicly declared that the
    business was doing well and that the corporation was poised to turn a profit in 2000.
    As recently as September 1997, the corporation had made the specific decision not to
    file for bankruptcy and it did not change course until it received notice of the Mueller
    lawsuit. Then the board voted to file for bankruptcy at the same meeting in which it
    discussed possible ramifications of the lawsuit. Moreover, Cedar Shore officers and
    directors were named defendants in the lawsuit and would therefore have had
    motivation to file corporate bankruptcy in order to settle the suit quickly. The Muellers'
    derivative claims were investigated in an admittedly cursory manner and were settled
    for a very low amount. Finally, the court could have found that the Cedar Shore
    attorney's unorthodox method of listing and valuing the resort property indicated that
    this was not a legitimate reorganization and that the company did not need to file
    bankruptcy in order to restructure its bank debt.
    -8-
    Cedar Shore also contends that because it had proposed a legitimate and
    confirmable reorganization plan, the bankruptcy court should not have dismissed its
    petition as a matter of law. The company asks us to adopt the test articulated by the
    Fourth Circuit in Carolin Corp. v. Miller, 
    886 F.2d 693
    , 700-01 (4th Cir. 1989).
    Carolin held that although a good faith filing requirement is implicit in the Code, a
    bankruptcy court cannot dismiss a petition for bad faith unless it also finds that no
    legitimate possibility of reorganization exists. Id. The underlying reasoning there was
    "that it is better to risk proceeding with a wrongly motivated invocation of Chapter 11
    protections . . . than to risk cutting off even a remote chance that a reorganization effort
    so motivated might nevertheless yield a successful rehabilitation." Id. at 701. Although
    many courts cite Carolin for its holding that the Code contains an implicit good faith
    requirement, few courts outside the Fourth Circuit have adopted its rule that a case
    should not be dismissed where there is a chance of reorganization. But see In re
    Boynston, 
    184 B.R. 580
    , 583 (Bankr. S.D.Cal. 1995). Instead, many courts have held
    that bad faith alone is sufficient to warrant dismissal, regardless of the possibility of
    reorganization. See, e.g., Phoenix Piccadilly, 849 F.2d at 1393-94; In re ACI Sunbow,
    LLC, 
    206 B.R. 213
    , 217-21 (Bankr. S.D. Cal. 1997). The leading commentator in this
    area has stated that the Carolin rule "embraces some significant difficulties" and
    "misperceives the purpose of the good faith standard." See L. King, 7 Collier of
    Bankruptcy, ¶ 1112.07[6][a-b] (Eleventh Circuit's reasoning in Phoenix Piccadilly that
    "a court need not suffer the continuance of a bad faith chapter 11 case even if the
    debtor has a remote chance of rehabilitation is persuasive"). Under this view, "the taint
    of a petition filed in bad faith must naturally extend to any subsequent reorganization
    proposal," and "the possibility of a successful reorganization cannot transform a bad
    faith filing into one undertaken in good faith." Phoenix Piccadilly, 849 F.2d at 1395
    (citations omitted).
    This court has not yet had to address the issue of whether the possibility of a
    successful reorganization precludes dismissal even if a debtor has filed in bad faith.
    See Kerr, 908 F.2d at 404, fn. 10. After considering the purposes and policies
    -9-
    underlying the Bankruptcy Code, we decline to adopt the Carolin test and hold that a
    Chapter 11 petition may be dismissed for bad faith alone where the circumstances
    warrant. We believe that such a rule protects the integrity of the bankruptcy courts by
    limiting the availability of their "powerful equitable weapons" to parties filing in good
    faith. In re Little Creek Devel. Co., 
    779 F.2d 1068
    , 1072 (5th Cir. 1986). Debtors
    seeking the protection of the Code should act in conformity with the Code's underlying
    principles of equity and fairness, and any debtor who files bankruptcy in bad faith
    should not be permitted to enjoy the protections of Chapter 11, even though the debtor
    might be capable of effectuating a reorganization. Moreover, as the district court
    noted, § 1112(b) already permits "dismissal based on the lack of any realistic
    possibility of confirming a plan of reorganization, without any additional finding of bad
    faith." Requiring objective futility in addition to bad faith would render "the good faith
    doctrine a useless appendage to the statutory grounds listed in § 1112(b)."
    Consequently, we hold that the bankruptcy court did not err in its legal conclusion that
    it had authority to dismiss a petition filed in bad faith.
    Nor did the bankruptcy court abuse its discretion in dismissing Cedar Shore's
    petition. Congress designed Chapter 11 to give those businesses "teetering on the
    verge of a fatal financial plummet an opportunity to reorganize on solid ground and try
    again, not to give profitable enterprises an opportunity to evade contractual or other
    liability." Furness v. Lilienfield, 
    35 B.R. 1006
    , 1009 (D.Md. 1983). The record
    supports a finding that Cedar Shore's purpose in filing bankruptcy was to thwart the
    Mueller lawsuit, not to attempt "to reorganize on solid ground and try again." Because
    the "powerful equitable weapons" of the bankruptcy court should be "available only to
    those debtors . . . with 'clean hands'" and not to those debtors "whose overriding motive
    is to delay creditors without benefitting them in any way or to achieve reprehensible
    purposes," the bankruptcy court did not abuse its discretion in dismissing the case. In
    re Little Creek, 779 F.2d at 1072.
    -10-
    Finally, Cedar Shore argues that "a case which is a two party dispute may only
    be dismissed as lacking good faith if it is incapable of prompt resolution." It cites In
    re Hatcher, 
    218 B.R. 448
     (8th Cir. B.A.P. 1998), for this proposition, and claims that
    the bankruptcy court erred in dismissing the case "even though it made no finding that
    the litigation was capable of prompt resolution." This argument is unpersuasive. First,
    the bankruptcy court did not base its dismissal upon a finding that the parties were
    involved in a two party dispute, but indicated that this circumstance existed in addition
    to others indicating bad faith. Second, Cedar Shore misstates the effect of Hatcher,
    which merely noted that a finding that a dispute is not capable of prompt resolution
    might indicate bad faith. It did not require such a finding before dismissal for bad faith
    is warranted. The bankruptcy court did not abuse its discretion by dismissing this
    case.
    III.
    Since the bankruptcy court did not clearly err in finding that Cedar Shore filed
    bankruptcy in bad faith and the court did not abuse its discretion in dismissing the
    debtor's petition for that reason, we affirm the judgment.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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