Resource Technology v. Chiplease Incorporat

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1879
IN RE:
RESOURCE TECHNOLOGY CORPORATION,
Debtor,
CHIPLEASE, INC. and
SCATTERED CORPORATION,
Plaintiffs-Appellants,
v.
JAY A. STEINBERG, as Chapter 7 Trustee
for RESOURCE TECHNOLOGY CORPORATION, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 5541—Matthew F. Kennelly, Judge.
____________
ARGUED DECEMBER 7, 2007—DECIDED MAY 15, 2008
____________
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Plaintiffs-appellants Chiplease,
Inc. and Scattered Corporation (collectively, “Scattered”)
wanted to step into the shoes of debtor Resource Tech-
nology Corporation (“RTC”) in a contract that RTC had
2 No. 07-1879
with American Disposal Services of Illinois, Inc. (“ADS”).
After the trustee of RTC’s estate refused to seek the bank-
ruptcy court’s permission to assume the ADS agree-
ment and assign it to Scattered, Scattered asked the bank-
ruptcy court to compel the trustee to do so. The bankruptcy
court denied Scattered’s request, concluding that the
agreement had already expired and that a motion by
the trustee to assume the agreement would conse-
quently be frivolous and subject to sanctions. Scattered
appealed to the district court, which affirmed the bank-
ruptcy court’s decision. Chiplease, Inc. v. Steinberg (In re
Resource Tech. Corp.), No. 06 C 5541, 2007 WL 898423 (N.D.
Ill. Mar. 20, 2007). Scattered again appeals, and we affirm.
I.
RTC is a Delaware corporation that installs collection
systems at landfills to capture the methane gas created
by degrading waste and then either uses it to fuel electric
generators and produce electricity or sells the gas to
others. In December 1995, RTC entered into a contract
with ADS pursuant to which RTC committed to build and
operate gas-to-energy facilities at four ADS landfills in
Pontiac, Illinois, Wheatland, Kansas, Wyandot, Ohio, and
Clarion, Pennsylvania (hereinafter, the “agreement” or
the “ADS agreement”). The agreement was for an initial
term of ten years, expiring on December 21, 2005. RTC
had a right to extend the agreement beyond this term
(provided that the parties had not already terminated
their arrangement) for up to three consecutive periods of
five years. In order to exercise its right to extend the
agreement beyond its initial term, RTC was required to
send ADS by certified or registered mail written notice
of its intent to renew at least thirty days prior to the
No. 07-1879 3
December 21, 2005 expiration date, i.e., no later than
November 21, 2005. Allied Waste Industries (“Allied”) later
succeeded to ADS’s rights under this agreement.
In 1999, RTC was placed involuntarily into Chapter 7
bankruptcy by certain of its creditors. RTC converted the
proceeding to a Chapter 11 reorganization. RTC subse-
quently assumed that portion of its agreement with Allied
relating to the landfill in Pontiac, Illinois, see 11 U.S.C.
§§ 365(a), 1107(a), but did not assume the balance of the
agreement concerning landfills in Wheatland, Wyandot,
and Clarion. In September 2005, on the motion of several
creditors, then-Chief U.S. Bankruptcy Judge Eugene
Wedoff converted the case back to a Chapter 7 proceeding
and appointed Jay A. Steinberg as the trustee of RTC’s
estate.
On November 16, 2005, the trustee’s counsel wrote to
counsel for Allied seeking to extend the deadline by
which the ADS agreement could be renewed. The letter
sought Allied’s agreement to move the renewal deadline
from November 21, 2005 to December 31, 2005. Allied’s
counsel replied on November 19, 2005, agreeing to the
extension through December 31, 2005 insofar as the
Pontiac landfill was concerned. Counsel added that it
was Allied’s view that the agreement had already termi-
nated as to the three other landfills outside of Illinois
(Wheatland, Wyandot, and Clarion). She therefore noted
that Allied was consenting to the trustee’s request for
an extension of time to renew the ADS agreement only
insofar as RTC had any remaining rights under that
agreement and without prejudice to Allied’s position that
all but the Pontiac portion of the agreement had termi-
nated. Id.Although the deadline for renewing the Pontiac portion
of the ADS agreement had thus been extended, the final
4 No. 07-1879
day of 2005 came and went without any renewal of the
agreement. Nor did the parties agree to any further ex-
tensions of the renewal date.
In March 2006, the Trustee entered into a settlement
agreement with Scattered, among other entities, resolving
certain disputes (the “settlement”). That agreement was
subsequently approved by the bankruptcy court. Pursuant
to the court’s order approving the settlement, Scattered
obtained the right to designate certain of RTC’s con-
tracts that Scattered wanted to take over. Once Scattered
designated a contract in which it was interested, the
trustee would seek the bankruptcy court’s permission to
assume the contract and, upon securing that authority,
assign the contract to Scattered pursuant to sections 365(a)
and (f) of the Bankruptcy Code. However, the order
provided further that Scattered “shall not have the right
to designate any Contract . . . if the Estate believes in
good faith that a particular designation will result in the
Estate being subject to sanctions pursuant to Fed. R. Bankr.
P. 9011 or allegations of bad faith . . . .” In the event that
the trustee refused to pursue assumption and assignment
of a contract on that basis, the settlement entitled Scattered
to ask the bankruptcy court to compel the trustee to
assume and assign the contract in question.
Prior to the execution and court approval of the settle-
ment, the trustee had sought and obtained from the
bankruptcy court a series of extensions of time in which
to assume or reject executory contracts and unexpired
leases. The first of these motions was filed on November 8,
2005. In it, the trustee sought an extension of time until
January 31, 2006, to assume or reject a number of contracts,
among them the ADS Agreement. The motion indicated
that the ADS agreement was set to expire on December 21,
No. 07-1879 5
2005, and that there was a deadline of November 21,
2005 by which date notice of an intent to extend the
contract had to be sent. The motion did not seek an exten-
sion of the life of the ADS agreement itself, only an exten-
sion of time for the trustee to assume or reject that contract
and the others listed in the motion. Indeed, at the hearing
on the motion, when Judge Wedoff inquired, “If [a] con-
tract was terminated . . . , what more can be done?”,
the trustee’s counsel responded, “If a contract was termi-
nated, then it’s terminated.” In that vein, the trustee
acknowledged Allied’s position that a number of its
agreements with RTC, including portions of the ADS
agreement concerning facilities other than the Pontiac
facility, had already been terminated. For that reason, the
Trustee’s request to assume the balance of the ADS agree-
ment was continued. Following that hearing, the bank-
ruptcy court on November 17, 2005, entered an order
granting the trustee’s motion and thereby extending
until January 31, 2006, the time in which the trustee
could assume or reject the Pontiac portion of the ADS
agreement. The attachment to that order listing the con-
tracts as to which time had been extended again indicated
that the Pontiac portion of the ADS agreement was set
to expire on December 21, 2005, and that the trustee had
until November 21, 2005, to send a notice of his intent to
extend the term of that contract. As we noted above,
on November 19, 2005, Allied’s counsel agreed to the
trustee’s request that the renewal deadline for ADS agree-
ment be extended until December 31, 2005.
Subsequently, on November 30, 2005, the bankruptcy
court entered a second order, this one expressly agreed to
by and between the trustee and Allied, extending the
trustee’s time to renew or reject all portions of the ADS
6 No. 07-1879
agreement until January 31, 2006. The text of that order
expressly acknowledged Allied’s position that all but
the Pontiac portion of the ADS agreement had already
terminated and preserved Allied’s right to so assert in
future proceedings.
Scattered points out that there were two additional
orders that granted extensions of time to the trustee
for purposes of assuming or rejecting unexpired con-
tracts and leases. On or about January 18, 2006, the
trustee sought an extension of time to assume or reject
from January 31, 2006 to February 28, 2006. The attached
list of contracts as to which the trustee sought the exten-
sion included several contracts relating to the Pontiac
facility, but not the Pontiac portion of the ADS agreement.
Interestingly, the trustee did seek additional time to
assume or reject the portions of the ADS agreement
concerning the Wheatland, Wyandot, and Clarion landfills.
And when the parties appeared before the bankruptcy
court for the hearing on the motion, Allied’s counsel
objected to the request for more time on the ground that
these portions of the agreement had already been termi-
nated. Judge Wedoff made the following remarks con-
cerning Allied’s objection and a similar objection raised
by the City of Columbus:
THE COURT: [W]hat will happen, Ms. Gelman [coun-
sel for Allied], is that I can grant this motion. And if
the trustee should hereafter attempt to assume a
contract that’s already been terminated, I am sure you
will let me know. And I am also sure that Mr. Steinberg
wouldn’t waste his time trying to assume an already
terminated contract. So I think it is safe to grant this
motion.
MS. RZEPKA: Your Honor, Natalia Rzepka for the
City of Columbus. I just wanted to state our objection
No. 07-1879 7
on the record. I believe Your Honor denied the debtor’s
motion to assume our contract back in 2003.
THE COURT: Right. It’s covered by the same remarks
that I just made.
MS. RZEPKA: Yes.
THE COURT: All that is happening here is that to
the extent the trustee does have unexpired leases or
unterminated executory contracts, this preserves the
trustee’s right to assume or assign those contracts.
It would otherwise be cut off, and the contracts would
be deemed rejected. If you’ve got a contract that’s
already terminated, it’s not going to be affected by an
extension.
The bankruptcy court’s decision to grant the trustee’s
motion was memorialized in an order dated January 27,
2006; and, consistent with the trustee’s motion, the attached
list of contracts as to which the extension of time was
being granted did not include the Pontiac portion of the
ADS agreement. In accord with the court’s remarks at
the hearing on the motion, the order contained the fol-
lowing provisions qualifying the nature of the extension
that the court was granting to the trustee:
1. With respect to certain landfills identified on
Exhibit A which are owned by American Disposal
Services, Inc. and Allied Waste Industries, Inc. (collec-
tively, along with its respective subsidiaries and
affiliates, “Allied”):
(a) In regards to that portion of the December 21,
1995 contract involving the Wheatland, Clarion,
and Wyandot landfill sites (the “Disputed Contract
Sites”), and only to the extent RTC possesses any
8 No. 07-1879
contract rights to or at the Disputed Contract
Sites (which Allied disputes), the time by which
the Trustee can move to assume or reject the Dis-
puted Contract Site portion of the contract is
extended to February 28, 2006.
***
5. Nothing in this Order shall extend the right to
assume or reject any contract that has already ex-
pired or been terminated and nothing in this Order
shall be deemed to be a release or waiver of any right,
claim or cause of action of any kind that any party
(and/or its affiliates and subsidiaries) to such con-
tracts may have that such contracts have expired
and/or been terminated prior to the date of this Order.
The following month, as the February 28, 2006 deadline
for assumption or rejection of these contracts approached,
the trustee sought another extension of time to April 28,
2006. Again, although other Pontiac-related contracts
were included in the list of contracts as to which the trustee
was seeking additional time, the Pontiac portion of the
ADS agreement was not among them. The court granted
that motion on March 16, 2006. Its order contained the
same qualifying language as the January 27 order.
It was also on March 16, 2006, that the bankruptcy court
signed the order approving the settlement between Scat-
tered (among other parties) and the trustee that gave
Scattered the right to designate various contracts for
assumption and assignment by the trustee. Scattered
subsequently designated the ADS agreement as one of
the contracts that it wished to assume. But the trustee’s
counsel, in the face of objections from Allied that the
ADS agreement had by this time expired in its entirety,
wrote to Scattered’s counsel on May 12, 2006, to inform
No. 07-1879 9
Scattered that the trustee would not seek to assume the
ADS agreement (among others) unless compelled to do
so by the district court. Scattered proceeded to file a mo-
tion asking the bankruptcy court to do just that. Allied
objected, contending that because the ADS agreement
had expired by its terms on December 31, 2005, it could not
be assumed as a matter of law, and consequently the
trustee, if he sought to assume the contract, would be
exposed to sanctions under Bankruptcy Rule 9011 and
allegations of bad faith.
The bankruptcy court heard Scattered’s motion on
June 13, 2006 and concluded that because the trustee had
no plausible basis on which to assume the ADS agreement,
which had clearly expired, he had properly refused
Scattered’s demand to seek assumption. The ADS agree-
ment was one of a number of agreements as to which the
trustee had declined to file motions to assume and that
were consequently the subject of motions to compel. The
essential inquiry, as the court acknowledged at the start
of the hearing, was whether the trustee would be making
a frivolous motion, subject to sanctions under Rule 9011,
were he to move to assume these contracts.
The underlying question with all of these is whether
the trustee is reasonably asserting that to pursue a
motion here would violate the trustee’s obligations
under Rule 9011, and so the question here is whether
the trustee has a good basis for believing that pursuing
an assumption here would violate 9011.
The court went on to agree with Allied’s counsel that the
ADS agreement had expired on December 31, 2005,
with the result that there was no longer a valid contract
for the trustee to assume and assign to Scattered. The
court rejected the suggestion of Scattered’s counsel that a
10 No. 07-1879
hearing was required in order to determine whether the
extensions of time the court had granted the trustee to
assume or reject the agreement had also extended the
time to renew the agreement.
There is . . . no need for a hearing. The question that’s
being raised now is whether an order extending the
time for assumption or rejection of an unexpired
[contract] somehow has the effect of extending the
[contract] or extending a deadline for renewal under
the [contract]. Those really are two separate questions.
And each time that there was a motion to extend the
time for assumption or rejection, I heard arguments to
the effect that this has already expired, to which my
response was if it’s already expired, extending the
time for assumption or rejection will have no impact on
the expiration.
So given that we’re dealing with two separate issues
(1) whether the contract has expired and (2) whether
the time for assumption or rejection of the contract
can be extended, I think unless you can point to some-
thing, an agreement, an order of the court that ex-
tended the time for extending the contract under
the contract terms, there is no basis for the trustee to
assume this contract.
When pressed to identify any court order or agree-
ment extending the renewal date of the ADS agreement
beyond its expiration date of December 31, 2005, Scat-
tered’s counsel could point only to the orders granting
the trustee’s requests for additional time to assume or
reject the contract. The court rejected the notion that those
orders might have extended the life of the agreement:
Okay. I don’t think so. We have always made a dis-
tinction between extending the time for the estate to
No. 07-1879 11
assume or reject and the question of whether the
underlying agreement was terminated. And given
that there is that distinction, which, again, was re-
peatedly made as I granted motions to extend the
time for the trustee to assume or reject, the distinction
was always made that granting the motion in no
way implied that the underlying agreement had not
terminated. That was always a separate considera-
tion. If there is nothing that prevents the expiration
of the underlying agreement according to its terms
other than an allegation that an order extending
the time for the estate to assume or reject is in place, the
trustee does not have a basis for going forward on it.
When Scattered’s attorney suggested that the trustee
might nonetheless have understood or have intended
for these orders to extend the renewal date, the court
pointed out that the trustee’s subjective and unilateral
understanding would not have been sufficient to over-
ride the terms of the orders and the underlying contract.
Acknowledging that a bilateral agreement between the
trustee and Allied would have been necessary to extend
the life of the agreement, Scattered’s counsel suggested
that there might be a factual question as to whether Allied
too had intended for the orders to extend the renewal date;
but the court found no basis to support such a question:
No, you’re not going to find anything, I am con-
fident, in the record where Allied’s counsel acknowl-
edges that an extension of time to assume or reject
constitutes an extension of the underlying agree-
ment that’s subject to assumption or rejection. They’ve
been here vociferously arguing for a substantial period
of time that the agreement had terminated. And
entering an order granting the trustee a right to con-
12 No. 07-1879
tinue the time for assumption or rejection has no
impact on that. . . .
The court therefore denied Scattered’s motion to com-
pel the trustee to assume and assign the ADS agreement.
Scattered appealed to the district court, which affirmed
the bankruptcy court’s decision. The court first rejected
Scattered’s contention that the bankruptcy court, in de-
termining whether the ADS agreement had expired,
strayed beyond the issue that was actually before it, i.e.,
whether the trustee had a good faith belief that he
would be sanctioned under Rule 9011 if he sought to
assume and assign the agreement as Scattered had de-
manded. “Though the court may not have used the magic
words that appellants seem to think were necessary, it is
clear that the court was considering the correct issue.” 2007
WL 898423, at *3. The court observed that whether the
agreement had expired was “intertwined” with the ques-
tion of whether the trustee had a good faith basis for
declining to pursue assumption of the agreement. Id. “[I]f
there was no objectively reasonable argument that the
ADS agreement had not expired, then the trustee could
not properly pursue an assumption and assignment of
that agreement.” Id. The court found no fault with the
bankruptcy court’s determination that the agreement
had, in fact, expired. Scattered’s argument to the con-
trary rested on the notion that the bankruptcy court’s
orders allowing the trustee more time to assume or
reject the agreement somehow extended the life of the
agreement, but the orders themselves offered no support
for that notion. “Everyone but the appellants, it seems,
understood the effect of the extension orders.” Id. at *4.
Finally, the court found no error in the bankruptcy
court’s denial of Scattered’s request for an evidentiary
No. 07-1879 13
hearing. “Appellants do not point to any evidence they
would have introduced at an evidentiary hearing that
would have affected the outcome of the motion to com-
pel.” Id. Although Scattered suggested that there were
disputed questions of fact as to the intent of Allied and
the trustee vis-à-vis the ADS agreement, their subjective
intent was immaterial. There was no dispute as to the
relevant provisions of the agreement or as to the orders
granting the trustee additional time to assume or reject
the agreement. Consequently, even assuming that ex-
trinsic evidence as to the parties’ subjective under-
standing of those matters would have been admissible,
it would not have had any bearing on the bankruptcy
court’s resolution of the motion to compel. Id.
II.
Our first task is to confirm that we have jurisdiction to
hear this appeal, e.g., JMS Dev. Co. v. Bulk Petroleum Corp.,
337 F.3d 822, 825 (7th Cir. 2003), and we are satisfied
that we do. 28 U.S.C. § 158(d)(1) gives us jurisdiction to
review “final” decisions of the district court resolving
bankruptcy appeals. In this case, the district court affirmed
the bankruptcy court’s order denying Scattered’s motion
to compel the trustee to assume and assign to Scattered
a contract between Allied and the debtor, RTC. At least
as of the time this appeal was briefed, there were other,
unrelated agreements between Allied and RTC that
Scattered wished the trustee to assume and assign, and
the disputes over those agreements had not yet been
resolved. Consequently, we cannot say the order at issue
here is final in the sense that it conclusively resolved all
of the claims of one creditor—Scattered—against the
estate. See Golant v. Levy (In re Golant), 239 F.3d 931, 935
14 No. 07-1879
(7th Cir. 2001); In re Morse Elec. Co., 805 F.2d 262, 264
(7th Cir. 1986); see also Fruehauf Corp. v. Jartran, Inc. (In re
Jartran, Inc.), 886 F.2d 859, 863 (7th Cir. 1989). But the
bankruptcy court’s order does definitively resolve Scat-
tered’s unsuccessful attempt to have the trustee assume
and assign one contract; and the issues raised with re-
spect to that contract appear to be distinct and severable
from the proceedings on other contracts between Allied
and RTC. We see no reason why, consistent with the
more flexible jurisdictional standard that we and other
appellate courts apply to bankruptcy appeals, this
matter cannot be resolved now, thereby advancing the
ultimate resolution of RTC’s bankruptcy. See Golant, 239
F.3d at 935. We may therefore proceed to the merits.
Scattered’s threshold contention is that the bankruptcy
court prematurely and improperly determined that the
ADS agreement had expired. Under the terms of the
settlement between Scattered and RTC, the essential
question before the bankruptcy court was whether the
trustee had a good faith belief that he would be subject
to sanctions if he moved to assume the ADS agreement
as Scattered wished him to do. In Scattered’s view, it
was neither necessary nor appropriate for the court to
resolve whether the ADS agreement had expired; all that
the court needed to determine was whether a motion by the
trustee to assume the agreement would be frivolous, and
therefore subject to sanctions under Bankruptcy Rule 9011.
Cf. Orion Pictures Corp. v. Showtime Networks, Inc. (In re
Orion Pictures Corp.), 4 F.3d 1095, 1098-99 (2d Cir. 1993)
(error for bankruptcy court to resolve factual disputes
regarding alleged breach of contract, where only question
properly before the court was whether debtor or trustee
should be permitted to assume the contract); but see In re
No. 07-1879 15
White Glove, Inc., Nos. 98-12493DWS & 98-12494DWS, 1998
WL 731611, at *4 n.12 (Bankr. E.D. Pa. Oct. 14, 1998) (coll.
cases questioning holding of Orion Pictures).
However, the record leaves no doubt that the bankruptcy
court understood what the relevant inquiry was and
properly answered it. The court not once but twice re-
marked that the underlying question posed by the mo-
tions to compel the trustee to assume various contracts
was whether the trustee would be violating his obliga-
tions under Rule 9011 by moving for assumption. With
respect to the ADS agreement, the trustee’s concern about
Rule 9011 sanctions arose from the apparent expiration
of the agreement. Scattered itself agrees that “[i]f the
ADS Agreement expired, there would be nothing for the
Trustee to assume or reject.” Scattered Br. 13. See R.
Ginsberg & R. Martin, GINSBERG & MARTIN ON BANK-
RUPTCY § 7.01[C], at 7-8 n.37 (4th ed. 1995) (updated &
current through 2007) (“Of course, if the executory con-
tract (or lease) expires by its own terms during the
postpetition, pre-assumption/rejection period, the trustee
will have nothing to assume or reject.”). Scattered is
certainly correct in contending that the susceptibility of a
claim (or argument) to sanctions under Bankruptcy Rule
9011 or Federal Rule of Civil Procedure 11 does not neces-
sarily require resolution of the merits of the underlying
claim. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
396, 110 S. Ct. 2447, 2456 (1990) (order imposing Rule 11
sanctions “does not signify a district court’s assessment
of the legal merits of the complaint”); see also Willy v.
Coastal Corp., 503 U.S. 131, 112 S. Ct. 1076 (1992) (court
can impose Rule 11 sanctions even if, in retrospect, it
lacked subject matter jurisdiction over merits of the case).
But that does not mean that the question of sanctions
16 No. 07-1879
can be divorced from the merits of the claim deemed
sanctionable. Obviously, a court cannot determine whether
a claim has a reasonable basis in law or fact, see Rule
9011(b)(2) and (3), without examining the legal and factual
foundations of the claim; to that extent, the charge that a
claim is sanctionable necessarily overlaps with the merits
of the claim. See Cleveland Hair Clinic, Inc. v. Puig, 104 F.3d
123, 125 (7th Cir. 1997); City of E. St. Louis v. Circuit Court
for Twentieth Judicial Circuit, St. Clair County, Ill., 986 F.2d
1142, 1143 (7th Cir. 1993). Thus, in assessing whether
the trustee had a good faith concern about sanctions,
the court necessarily had to consider whether there was
a plausible basis to argue that the ADS agreement had
not, in fact, expired. That is precisely what the court did:
it considered the parties’ respective positions as to the
expiration of the ADS agreement and concluded that
there was no reasonable factual or legal basis for the
contention that the agreement had not expired, such that
the trustee could move to assume the contract without
fear of being exposed to sanctions. Scattered was not
deprived of any right by the manner in which the court
proceeded. The settlement between Scattered and the
estate, and Scattered’s motion to compel, put the propriety
of a motion to assume the ADS agreement squarely in
the bankruptcy court’s hands. The court gave Scattered a
full opportunity to identify a basis on which the ADS
agreement could be thought not to have expired; the
court simply found that none of the bases that Scattered
identified was plausible.
Here as below, Scattered points to the orders extending
the time for the trustee to assume or reject the ADS con-
tract as a basis for contending that the agreement had not
expired; but we are no more persuaded than the lower
No. 07-1879 17
courts were. These were the bankruptcy court’s own
orders, and we must defer to its understanding of what
those orders accomplished unless its interpretation was
unreasonable. See Enodis Corp. v. Employers Ins. of Wausau
(In re Consol. Indus.), 360 F.3d 712, 716 (7th Cir. 2004). The
language of these orders was limited to the time in
which the trustee could assume or reject the agreement;
nothing in any of the orders spoke of extending the time
to renew the ADS agreement. Nor did the trustee, in
moving for the entry of these orders, say anything about
extending his time to renew the ADS agreement. There is
a plain paper trail to the one instance in which the trustee
did obtain an extension of time in which to renew the
ADS agreement: in that instance, in accord with the
provisions of the agreement, the trustee wrote to Allied’s
counsel and requested an extension from November 25,
2005 to December 31, 2005 to send notice of his intent
to renew the Pontiac portion of the agreement. Allied
agreed, and the renewal date was extended for that portion
of the agreement. That exchange demonstrates that the
trustee was well aware of the process by which he could
obtain additional time to renew the ADS agreement.
Notably, the two orders granting the trustee additional
time to assume or reject the Pontiac portion of the agree-
ment—the first, entered on November 17, 2005, being
a general order dealing with multiple agreements including
the Pontiac portion of the ADS agreement, and the second,
entered on November 30, 2005 dealing specifically with the
Pontiac portion of the agreement—were entered prior to
the extended deadline of December 31, 2005 for renewal of
the Pontiac portion of the agreement. After December 31,
2005 came and went without renewal, the motions seeking
additional time for the trustee to assume or reject the
estate’s contracts and leases made no further mention of
18 No. 07-1879
the Pontiac portion of the agreement, nor did the orders
granting those motions mention it. Additional extensions
of time to assume or reject were sought as to other portions
of the ADS agreement. But as to those portions of the
agreement, Allied consistently took the position that the
agreement had already been terminated. And for his part,
the trustee from the beginning acknowledged that granting
him an extension of time to assume or reject the agreement
would not somehow revive a contract that had already
been terminated. The court itself acknowledged the same,
and its later orders memorialized that acknowledgment.
Scattered suggests that there are unexplored questions
as to what the trustee’s intent was in moving to extend
the time to assume or reject—questions that Scattered
thinks raise doubts as to whether the ADS agreement
actually expired—but we disagree. Scattered offers no
explanation as to why the trustee’s (unexpressed) intent
could have any impact on the expiration of the agreement.
See, e.g., Sethness-Greenleaf, Inc. v. Green River Corp., 65
F.3d 64, 67 (7th Cir. 1995) (applying Illinois law) (“Contrac-
tual obligations are created and defined by objective signals
the parties exchange. Private expectations are of
no consequence.”) (citations omitted); Midland Hotel
Corp. v. Reuben H. Donnelley Corp., 515 N.E.2d 61, 65 (Ill.
1987) (“defendant’s subjective understanding of the terms
of the contract is immaterial”); Carey v. Richards Bldg.
Supply Co., 856 N.E.2d 24, 27 (Ill. App. Ct. 2006) (“it is
commonly stated that undisclosed intentions are not
relevant” in contract interpretation). Contrary to Scat-
tered’s contention, this is not a case like M.K. Labs., Inc. v.
Int’l Developers (In re M.K. Labs., Inc.), 86 B. R. 12 (Bankr. D.
Conn. 1988), where the parties on two occasions, in stipu-
lating to an extension of the debtor’s time to assume or
No. 07-1879 19
reject an unexpired lease, recited that the lease still had
eleven more years to run when in fact the lease had only
months left to run and the first option to extend the
original term had already expired. Under that circum-
stance, the bankruptcy court concluded that the land-
lord either actually or impliedly had agreed not only to
extend the debtor’s time to assume or reject the lease, but
to extend the option to renew the lease as well. Id. at 14.
Here, there is no such manifestation of a shared belief as
to the continued life of the ADS agreement. Allied from
the beginning maintained that the ADS agreement had
expired except as to the Pontiac facility; it agreed only
to one extension of time to renew the Pontiac portion of
the agreement; and once the extended renewal date as to
the Pontiac facility passed without the trustee renewing
that portion of the agreement, Allied contended that the
entire agreement had expired. The trustee plainly knew
what was required to extend the life of the agreement
but made no effort to do so beyond December 31, 2005.
Any unexpressed belief on his part that the agreement
survived beyond that date could not have trumped the
unambiguous terms of the agreement or the unambiguous
terms of the orders granting him additional time to
assume or reject the ADS agreement.
Scattered also suggests that Allied may have some-
how waived or become estopped from asserting the
expiration of the ADS agreement, but the record bespeaks
the contrary. As we have just said, Allied consistently
took the position that all but the Pontiac portion of the
ADS agreement had already been terminated before the
trustee began seeking additional time to assume or
reject the agreement, and once the extended renewal
date of December 31, 2005, passed without the trustee
renewing the Pontiac portion of the agreement, contended
20 No. 07-1879
that that portion of the agreement had expired as well.
Allied’s counsel always maintained that the extensions
of time to assume or reject could have no impact on the
expiration of the agreement. Judge Wedoff expressly
acknowledged that this had always been Allied’s position,
and his own remarks and orders in granting the trustee’s
motions for additional time to assume or reject recog-
nized that these extensions would not revive an other-
wise expired agreement. The notion that Allied some-
how sat on its rights and could be precluded from arguing
that the ADS agreement expired is untenable.
Finally, we, like the district court, reject Scattered’s
contention that the bankruptcy court was obliged to
conduct an evidentiary hearing before denying its motion
to compel the trustee to assume and assign the ADS
agreement. The notion that an evidentiary hearing
was required assumes that the existing record as to the
expiration of the ADS agreement was somehow am-
biguous or incomplete and that additional evidence
was necessary to fill in the gaps. But as we have dis-
cussed, nothing in the record before the bankruptcy
court raised any doubt as to the expiration of the ADS
agreement. Moreover, Scattered has never articulated
what evidence it might present at such a hearing that
would be relevant to the expiration of that agreement and
to the trustee’s good faith in refusing to seek the assump-
tion of that agreement. Even when asked at oral argument,
Scattered’s counsel was unable to identify any evidence
that it might have produced at such a hearing. See, e.g.,
Laserage Tech. Corp. v. Laserage Labs., Inc., 972 F.2d 799,
804 (7th Cir. 1992) (appellate argument as to district
court’s failure to conduct hearing waived where, inter
alia, appellant did not identify what evidence court
would have heard at hearing other than evidence
No. 07-1879 21
already before the court). As the bankruptcy court itself
concluded, no such hearing was necessary.
III.
As the district court held, the bankruptcy court com-
mitted no error in denying Scattered’s motion to compel
the trustee to assume and assign the ADS agreement.
Because the agreement had expired and there was no
plausible argument to the contrary, the trustee would
have been violating his obligations under Bankruptcy
Rule 9011 had he sought to assume the agreement. For
these and the other reasons we have discussed, we AFFIRM
the district court’s judgment.
USCA-02-C-0072—5-15-08