ReGen Capital III v. Official Committee

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 02-6012 WM
In re: *
*
Trism, Inc., et al., *
*
Debtors. *
*
ReGen Capital III, Inc., * Appeal from the United States
* Bankruptcy Court for the
Appellant, * Western District of Missouri
*
v. *
*
Official Committee of *
Unsecured Creditors, *
*
Appellee, *
Submitted: July 25, 2002
Filed: September 13, 2002
Before KRESSEL, SCHERMER and DREHER, Bankruptcy Judges
SCHERMER, Bankruptcy Judge
ReGen Capital III, Inc. (“ReGen”) appeals the bankruptcy court order approving
a stipulation between ReGen and Trism, Inc. and its affiliated debtors (“Missouri
Debtors”) and sustaining the objection of the Official Committee of Unsecured
Creditors (“Committee”) to such stipulation. We have jurisdiction over this appeal
from the final order of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons
set forth below, we reverse and remand.
ISSUE
The issue on appeal is whether the bankruptcy court erred in approving a
compromise pursuant to Federal Rule of Bankruptcy Procedure 9019 while sustaining
an objection to such compromise. We conclude that the bankruptcy court erred in
sustaining an objection to the compromise yet approving it. We remand for approval
or disapproval of the compromise after analysis of its reasonableness under the four-
prong test set forth in In re Flight Transp. Corp. Sec. Litig., 730 F.2d 1128, 1135-36
(8th Cir. 1984), cert denied sub nom. Reavis & McGrath v. Antinore, 469 U.S. 1207,
105 S. Ct. 1169, 84 L.Ed.2d. 320 (1985).
BACKGROUND
On September 16, 1999, ten of the Missouri Debtors (the “Delaware Debtors”)
filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the
United States Bankruptcy Court for the District of Delaware (the “Delaware Bankruptcy
Court”). On November 16, 1999, AT&T filed an unsecured proof of claim in the
amount of $703,689.05. ReGen is the assignee of the AT&T claim. On December 9,
1999, the Delaware Bankruptcy Court entered its order confirming the Delaware
Debtors’ Second Amended Plan of Reorganization which provided that non-priority
unsecured claims, including the ReGen claim, were unimpaired by the Plan.
The Delaware Debtors failed to make payments on account of the ReGen claim
as required by the confirmed plan. On December 13, 2000, ReGen filed a motion to
compel such payments. The motion to compel and the Delaware Debtors’ objection
2
thereto were settled pursuant to a stipulation and order approved by the Delaware
Bankruptcy Court on March 20, 2001. Pursuant to the stipulation and order, the
Delaware Debtors were required to make payments to ReGen. In the event the
Delaware Debtors failed to make a required payment when due, the Delaware Debtors
authorized ReGen to confess judgment against the Delaware Debtors for the unpaid
amount of the debt plus interest and attorneys’ fees.
The Delaware Debtors made the first payment due under the stipulation but
failed to make any subsequent payments. On May 2, 2001, ReGen commenced
proceedings in the Superior Court of the State of Delaware in and for New Castle
County (the “Delaware State Court”) for a judgment in accordance with the stipulation
as a result of the Delaware Debtors’ failure to make the required payments. On
June 1, 2001, the Delaware State Court entered judgment (the “Judgment”) in favor of
ReGen and against the Delaware Debtors. Upon entry of the Judgment, ReGen
registered the Judgment in those jurisdictions where assets of the Delaware Debtors
were located, resulting in the creation of liens on such assets.
In addition to obtaining the Judgment, ReGen filed a motion to compel
compliance with the stipulation and order (“Motion to Compel”) with the Delaware
Bankruptcy Court. On October 4, 2001, the Delaware Bankruptcy Court entered an
order granting the motion and directing the Delaware Debtors to pay ReGen all
amounts due under the stipulation and order within three business days and to pay
ReGen’s attorneys’ fees and costs associated with the motion. The Delaware Debtors
failed to make such payment.
On November 13, 2001, ReGen filed a motion to hold the Delaware Debtors in
contempt (the “Contempt Motion”). While such motion was pending before the
Delaware Bankruptcy Court, the Missouri Debtors filed voluntary petitions for relief
under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for
the Western District of Missouri (the “Missouri Bankruptcy Court”) on December 18,
3
2001. The same day the Delaware Debtors filed a motion (“Rule 1014 Motion”) with
the Delaware Bankruptcy Court under Federal Rule of Bankruptcy Procedure 1014(b)
seeking a determination that the bankruptcy proceedings should proceed in the
Missouri Bankruptcy Court. ReGen objected to such motion. A hearing on the
Contempt Motion and the Rule 1014 Motion was scheduled before the Delaware
Bankruptcy Court on January 4, 2002.
Notwithstanding the motions pending in the Delaware Bankruptcy Court, the
Missouri Debtors and ReGen entered into a stipulation (the “Stipulation”) subject to
the approval of the Missouri Bankruptcy Court pursuant to which the parties
stipulated, inter alia, that ReGen holds an allowed claim in the amount of $434,954.59
plus interest and attorneys’ fees (the “Allowed Claim”); that the Missouri Debtors
acknowledge that the Allowed Claim is secured by valid liens on certain property; that
upon the Stipulation becoming final and non-appealable, ReGen shall be entitled to
payment of the full amount of the Allowed Claim from the proceeds of the anticipated
sale of the Missouri Debtors’ assets to the extent of the value of its valid liens; that the
Stipulation shall be served on all creditors and parties in interest and any creditor or
party in interest who fails to object to the Stipulation or whose objection is overruled
shall be bound by the terms of the Stipulation; that ReGen shall withdraw its objection
to the Rule 1014 Motion; that ReGen shall withdraw the Contempt Motion; that ReGen
shall support the Missouri Debtors’ efforts to seek approval of and consummate a sale
of assets as soon as possible; and that upon the approval of the Stipulation on a final
and non-appealable basis, the Missouri Debtors and their successors and assigns on the
one hand and ReGen and its successors and assigns on the other hand each fully
releases and discharges the other from and against any claim, right, or cause of action
arising in, arising out of, or related to the Delaware bankruptcy case or the Missouri
bankruptcy case that arose or accrued prior to the date of the Stipulation.
4
At the January 4, 2002, hearing before the Delaware Bankruptcy Court, counsel
for the Debtors and for ReGen announced the terms of the Stipulation on the record.
Counsel for the Committee participated in that hearing by telephone.
On January 7, 2002, the Missouri Debtors filed a motion with the Missouri
Bankruptcy Court pursuant to Federal Rule of Bankruptcy Procedure 9019 (the “Rule
9019 Motion”) seeking approval of the Stipulation. A hearing on the Rule 9019
Motion was set for January 30, 2002. The Missouri Debtors also filed a motion to sell
substantially all of their assets (the “Sale Motion”) which was set for hearing on
January 30, 2002.
On January 28, 2002, the Committee filed an objection to the Rule 9019 Motion
wherein the Committee attempted to reserve its right to object to ReGen’s claim for
interest and attorneys’ fees and to object to the validity of ReGen’s liens.
On January 30, 2002, the Missouri Bankruptcy Court held a hearing on the Rule
9019 Motion and on the Sale Motion. The Missouri Bankruptcy Court orally
approved the Stipulation and sustained the Committee’s objection to the Rule 9019
Motion. The Missouri Bankruptcy Court approved the Sale Motion later that same day.
The Missouri Bankruptcy Court subsequently entered an order approving the
Stipulation and sustaining the Committee’s objection to the extent the Stipulation
attempts to bind the Committee. The order expressly provides that “neither the [Rule
9019 Motion] nor the Stipulation are binding on the Committee. Nothing in this Order
shall restrict the Committee’s ability to object to the allowance, extent and priority of
ReGen’s alleged judgment liens (the ‘Liens’), including the avoidability of the Liens,
on certain of Debtors’ real property.” ReGen appeals this order.
5
STANDARD OF REVIEW
A decision to approve or disapprove a proposed settlement under Bankruptcy
Rule 9019 is within the discretion of the bankruptcy judge. In re Flight Transp. Corp.
Sec. Litig., 730 F.2d 1128, 1135-36 (8th Cir. 1984), cert denied sub nom. Reavis &
McGrath v. Antinore, 469 U.S. 1207, 105 S. Ct. 1169, 84 L.Ed.2d. 320 (1985); TCF
Banking & Sav. v. Leonard (In re Erickson), 82 B.R. 97, 99 (D. Minn. 1987).
Consequently, we review the Missouri Bankruptcy Court’s order for an abuse of
discretion. Erickson, 82 B.R. at 99. An abuse of discretion occurs if the court bases
its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence. Cooter & Gell v. Hartmarx Corp., 296 U.S. 384, 405, 110 S. Ct. 2447, 2461,
110 L. Ed. 2d 359 (1990).
DISCUSSION
In exercising its discretion to approve a proposed settlement under Bankruptcy
Rule 9019, a court must weigh four factors bearing on the reasonableness of the
settlement: (1) the likelihood of success in the litigation; (2) the difficulties, if any, in
collection matters; (3) the complexity of the litigation and the attendant expense,
inconvenience, and delay; and (4) the paramount interest of the creditors and a proper
deference to their reasonable views. Flight Transp., 730 F.2d at 1135; Erickson, 82
B.R. at 99. Once the bankruptcy court has determined and weighed such factors, it
must either approve or refuse to approve the proposed settlement. An abuse of
discretion occurs when the court does not determine and weigh these factors and either
approve or reject the proposed settlement.
A review of the transcript and order indicates that the Missouri Bankruptcy
Court failed to address the four factors. Instead, the hearing focused on an
interpretation of the Stipulation wherein the court determined that the Committee was
not bound by language which purported to bless the secured claim asserted by ReGen
6
and insulate ReGen from potential preference exposure. Such a determination may in
fact be necessary if the Stipulation is approved and its interpretation is disputed in the
future.1 However, the court’s role in evaluating a motion to approve a settlement is
limited to determining whether the proposed settlement is reasonable under the
circumstances after a review of the relevant factors.2
When considering contested motions, the court must determine the facts relevant
to the legal inquiry, consider the motion and any objections, and must rule on the
objections, either sustaining them, in which case the motion must be denied, or
overruling the objections, in which case the motion can be granted. A court cannot
sustain an objection and simultaneously grant a motion to approve a settlement. In so
doing, the court changes the essential terms of the proposed settlement and violates the
purpose and spirit of Federal Rule of Bankruptcy Procedure 9019 or decides issues not
necessary to the approval or disapproval of the settlement.
Pursuant to Federal Rule of Bankruptcy Procedure 9019, the court may approve
a settlement on motion by the trustee or debtor-in-possession after notice and a
hearing. Notice must be given to creditors, the United States Trustee, the debtor,
1
Whether the Committee may use an avoiding power under Chapter 5 of the
Bankruptcy Code with respect to the allowed claim of ReGen was not before the
Court at the hearing to approve the Stipulation and is a question for another day.
2
According to the dissent, the Missouri Bankruptcy Court was not faced with
the task of approving or rejecting the Stipulation under Federal Rule of Bankruptcy
Procedure 9019(a) because no one disputed its reasonableness under the four-prong
test set forth in Flight Transport. In the dissent’s view, the order merely
interpreted the language of the Stipulation and found that the Committee was not
bound by its terms. We disagree. We view the order as both approving the
Stipulation and separately ordering that it not bind the Committee. The language
from the transcript cited and emphasized by the dissent on page 14 supports our
conclusion. We believe the order was inappropriate to the extent it went beyond
the task at hand – the approval or disapproval of the Stipulation.
7
indenture trustees, and any other party as the court may direct. Fed. R. Bankr. P.
9019(a). When considering a proposed settlement, deference must be given to the
reasoned opinions of creditors. Flight Transp., 730 F.2d at 1135; Erickson, 82 B.R.
at 99. One of the reasons that notice and court approval are required is to prevent a
debtor from binding the estate to the terms of a compromise without court approval
after input from creditors and parties in interest.
By entering into the Stipulation for the allowance of its claim, ReGen
undoubtedly believed that such Stipulation would be binding on creditors in the same
manner as a court order allowing a claim. Consequently, notice to creditors was
necessary before the Stipulation could have such an effect. This Stipulation may be
meaningless to ReGen if the creditors are not bound by its terms and can essentially
step into the Missouri Debtors’ shoes to challenge the very concessions made by the
Missouri Debtors to induce ReGen to settle.3
Compromise is a normal part of the reorganization process. In re Apex Oil Co.,
92 B.R. 847, 866 (Bankr. E.D. Mo. 1988). Compromise is favored by the law.
Erickson, 82 B.R. at 100; Apex, 92 B.R. at 867. A major purpose of compromise is to
avoid the expense, burdens, and uncertainty associated with litigation. Apex, 92 B.R.
at 866. If creditors are not bound by the Stipulation, the estate may still incur the
expense of the Committee pursuing litigation with ReGen, the Missouri Debtors may
still be burdened with discovery and other time-consuming tasks associated with
3
What debtor would not promise an adversary the sun and the moon and the
stars (or at least the allowance of its claim) in the form of a settlement in order to
obtain a strategic advantage if it knew that its creditors would not be bound and that
they can, and undoubtedly will, pursue the very remedy being abandoned by the
debtor? Of course, any proposed settlement must still be reasonable to obtain court
approval; yet how unreasonable for the estate as a whole is a settlement which
provides the debtor with an advantage while allowing the estate, through the
creditors, to avoid the price promised by the debtor to obtain the advantage?
Adversaries have no incentive to compromise under such a scenario.
8
litigation which detract from the Missouri Debtors’ ability to focus on reorganizing
their businesses, and the outcome of the dispute is uncertain. In this instance, certain
benefits to the estate of settlement may be lost if creditors are not bound. That issue
is for another day, however. The Stipulation must be approved or disapproved as
presented, and the Missouri Bankruptcy Court must evaluate all factors, including
whether the settlement eliminates costs of litigation, in making its determination.
A court’s role in evaluating a proposed settlement under Rule 9019 is to
determine if the settlement is in the best interest of the estate. The Missouri
Bankruptcy Court must accept or reject the settlement as presented. It cannot bind
ReGen to the obligations of its bargain by approving the Stipulation while eviscerating
the benefits negotiated by ReGen by sustaining an objection thereto.
The Committee argues that this appeal is moot because ReGen has already
performed its end of the bargain – it withdrew the Contempt Motion, withdrew its
objection to the Rule 1014 Motion which was thereafter granted by the Delaware
Bankruptcy Court, and it supported the Missouri Debtors’ Sale Motion which was
approved by the Missouri Bankruptcy Court. We disagree. ReGen seeks an order
overruling the Committee’s objection and granting the Rule 9019 Motion. We are
remanding this matter for a ruling either sustaining the Committee’s objection and
denying the Rule 9019 Motion or overruling the objection and granting the Rule 9019
Motion. The very relief sought by ReGen is possible. Therefore, the appeal is not
moot. Nonetheless, the Committee is free to argue on remand that the Rule 9019
Motion is moot.
The Committee also argues that the Stipulation was entered into by the Missouri
Debtors in their capacity as “debtors” and not as “debtors-in-possession”
notwithstanding the fact that the Stipulation was signed by “Attorneys for Debtors and
Debtors in Possession.” We reject this argument. Where no trustee has been
appointed in a Chapter 11 case, the debtor acts as a debtor-in-possession when
9
exercising the rights and powers and performing the duties which would otherwise fall
within the province of a trustee. 11 U.S.C. § 1107(a).4 The debtor-in-possession’s
powers and duties include the obligation to review and object to claims and to
prosecute avoidance actions if a purpose would be served thereby. The Missouri
Debtors’ authority to enter into the Stipulation was derived from their capacity as
debtors-in-possession.
CONCLUSION
The Missouri Bankruptcy Court erred in approving the settlement under Federal
Rule of Bankruptcy Procedure 9019 while sustaining the Committee’s objection
thereto. The Court must evaluate the reasonableness of the proposed settlement, taking
into consideration the reasonable views of the creditors, and either approve or
disapprove the presented settlement. Accordingly we remand this matter to the
Missouri Bankruptcy Court to apply the four-prong test and either overrule the
objection and approve the Stipulation or sustain the objection and deny the motion
seeking approval.
DREHER, Bankruptcy Judge, Dissenting.
I respectfully disagree and would affirm. The record establishes that the
bankruptcy court enforced, precisely, the agreement ReGen reached with the Missouri
Debtors. To me, it is plain that ReGen knew from the start that its agreement with the
Missouri Debtors did not, and was not intended to, foreclose the Committee, a
4
Indeed, the Supreme Court has stated that “it is sensible to view the debtor-
in-possession as the same ‘entity’ which existed before the filing of the bankruptcy
petition, but empowered by virtue of the Bankruptcy Code to deal with its contracts
and property in a manner it could not have done absent the bankruptcy filing.”
NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528, 104 S. Ct. 1188, 1197, 79 L. Ed. 2d
482 (1984).
10
nonparty to the Stipulation, from asserting whatever claims it might have, or claim to
have, against ReGen.
This is not an appeal that turns on whether the bankruptcy court properly
applied the Flight Transportation factors in deciding to approve the Stipulation.
Neither the Committee nor any other party objected to the Stipulation between ReGen
and the Missouri Debtors on that ground. Rather, the Committee objected to being
bound by the terms of a Stipulation to which it had not agreed and which it had a duty,
under the Bankruptcy Code, to investigate and challenge if appropriate. See 11 U.S.C.
§ 1103(c)(2). The Committee and the Missouri Debtors are distinct entities. Each
possesses an independent right to raise any issue in the case. See 11 U.S.C. § 1109(b).
To the extent these rights or duties were affected by the Stipulation, it was the
Committee's intent, as expressed by its limited objection, to preserve its rights and
carry on its duties.
The bankruptcy court did not specifically address the Flight Transportation
factors as they relate to the objections of the Committee. There was no need to do so,
and there is certainly no need to remand to require it to do so, because ReGen, the
Committee, the Missouri Debtors and the bankruptcy court all agreed that the
agreement between ReGen and the Missouri Debtors was within the realm of
reasonable compromise under Rule 9019. See Continental Airlines, Inc. v. Air Line
Pilots Ass'n (In re Continental Airlines, Corp.), 907 F.2d 1500, 1508 (5th Cir. 1990);
Pineo v. Turner (In re Turner), 274 B.R. 675, 681 (Bankr. W.D. Pa. 2002).
The issue before the bankruptcy court was how to properly interpret the
Stipulation in light of ReGen's apparent after-the-fact recognition that the deal it had
made with the Missouri Debtors did not conclude the matter. The issue we should be
focusing on in this appeal is whether the bankruptcy court accurately read the
Stipulation. The bankruptcy court interpreted the Stipulation to be unambiguous and
to not bind any party that objected and whose objection was not overruled. We review
11
de novo the bankruptcy court's determination that the Stipulation was unambiguous.
See John Morrell & Co. v. Local Union 304A, United Food & Commercial Workers,
913 F.2d 544, 550 (8th Cir. 1990); Porous Media Corp. v. Midland Brake, Inc., 220
F.3d 954, 959-60 (8th Cir. 2000). If the bankruptcy court's review of the Stipulation
did not go beyond the “four corners” of the unambiguous, written Stipulation, we also
review its interpretation of that Stipulation de novo. Stevenson v. Stevenson Assocs.
(In re Stevenson Assocs., Inc.), 777 F.2d 415, 418 (8th Cir. 1985). Only if we agree
with the bankruptcy court's interpretation of the terms of the Stipulation do we set
aside the bankruptcy court's approval of the Stipulation if there was plain error or
abuse of discretion. See New Concept Hous., Inc. v. Arl W. Poindexter (In re New
Concept Hous., Inc.), 951 F.2d 932, 939 (8th Cir. 1991).
The Stipulation was reached by ReGen and the Missouri Debtors on the eve of
the January 4 hearing in the Delaware bankruptcy court. At the commencement of that
hearing, counsel for the Missouri Debtors and ReGen advised the Delaware bankruptcy
court that they had reached an agreement. In return for the Missouri Debtors'
agreement that ReGen be allowed a secured claim in the Missouri bankruptcy case of
$434,954.59 and to payment out of the proceeds of a pending sale of the Missouri
Debtors' assets, ReGen would withdraw its motion for contempt and agree to the
Missouri Debtors' motion to proceed in the Missouri bankruptcy court. In explaining
the agreement to the court, ReGen's counsel repeatedly referred to it being one between
the Missouri Debtors and ReGen only. Counsel for the Committee made clear that,
while the Committee had no objection to the case proceeding in Missouri, the
Committee was not a party to the Stipulation and wished to preserve its rights to object
in the Missouri court proceedings: ". . . the Committee has no objection to the
stipulation as long as it's clear . . . that the Committee will have a full opportunity
to review and comment on the Stipulation in this Missouri case."(emphasis added)
The language of the Stipulation which recorded this understanding and which
came on for approval in the Missouri bankruptcy court on January 30 preserved these
12
two features: first that the agreement was one between the Missouri Debtors and
ReGen only; and second, that nonparties were bound only if they did not object or
their objections were overruled. Throughout, the Stipulation recites that the agreement
is one between ReGen and the Missouri Debtors only. Most importantly, Paragraph
5 of the Stipulation specifically provides: "This Stipulation and Order shall be served
upon all creditors and parties in interest in the Missouri cases and any creditor or party
in interest who fails to object or whose objection is overruled by the Court shall be
bound by the terms of this Stipulation and Order." Further, in paragraph 9, the
Missouri Debtors "and their successors and assigns" gave a general release to ReGen,
but that release was qualified as being subject to and "excluding the rights and
obligations arising out of the Stipulation," thus specifically excluding from its scope
any release by nonparties to the Stipulation.
When the Stipulation was noticed for settlement, the Committee objected on a
limited basis. Noting that it had not been a party to the Stipulation, the Committee
agreed that ReGen had an unsecured claim in the agreed-upon amount, but "preserved
its right" to object to any award of interest and attorneys' fees and to challenge the
validity of ReGen's claim.
At the hearing on the approval of the settlement, Debtors' counsel acknowledged
that ReGen's judgment lien might be subject to avoidance but urged that the Debtors
had satisfied themselves that it was in their best interests, given the cost of litigation,
to make the settlement. Placing Debtors' understanding of the Stipulation squarely on
the record, counsel acknowledged, however, that "debtor can only bind itself and
stipulate from its perspective," that the agreement said "nothing about preference
exposure," and that "we always took the position that we would have to notice this out
to all parties." He made clear that the Debtors had complied, in his view, with Debtors'
obligations under this agreement. Committee counsel then urged that, while the
Committee felt that agreement was clear on its face, it would like language to the effect
that the Committee's rights to proceed with claims against ReGen were unaffected. The
13
court, over the objection of ReGen's counsel who proclaimed surprise that the
Committee was taking this stance,5 agreed;
"Well, I think that's--those are issues that I would have in a
preference action if you chose to bring one. Let me look at your
objection. Well, I could approve the Stipulation and order with the
caveat that, as set out in Paragraph 5 that the Stipulation and order is
not binding on the committee insofar as it purports to restrict the
committee's ability to contest the intent of --the validity, extent and
priority of the liens that are claimed by ReGen. And that, in my view,
comports with Paragraph 5, does not violate Paragraph 5 in the
Stipulation because it instructs it is only binding on those parties who
fail to object. The Committee has objected and I will sustain the
Committee's objection to the extent the stipulation purports to bind them
or--purports to--in the event it does not purport to restrict with that
caveat." (emphasis added)
The Order from which this appeal is taken conformed to these recorded
comments. The court approved the Stipulation, ordering that "Neither the Amended
Motion nor the Stipulation are binding on the Committee. Nothing in the Order shall
restrict the committee's ability to object to the allowance, extent or priority of ReGen's
alleged judgment liens ("The Liens"), including the avoidability of the Liens, as to
certain of the Debtor's real property." To provide the comfort that the Committee
sought, it further "sustained the objection 'to the extent the Stipulation attempts to bind
the Committee.'"
The bankruptcy court correctly interpreted the Stipulation and it certainly did not
err by providing more than it needed to in the way of the comfort language. As is clear
from the detailed review of the record, the court's true analysis is that such language
was totally unnecessary.
5
In light of the record made in Delaware, this position is difficult to
understand.
14
ReGen argued, and the majority agreed, that by determining it could both
approve the Stipulation and sustain the objection, the bankruptcy court modified the
terms of the agreement. To the contrary. The bankruptcy court interpreted the
unambiguous Stipulation to allow it to do both. State contract law governs the
interpretation of agreements in bankruptcy. Stevenson Assocs., 777 F.2d at 419; In re
Frye, 216 B.R. 166, 170 (Bankr. E.D. Va. 1997). The intention of the parties to an
unambiguous contract must be determined from the contract alone.6 Morgan v. City
of Rolla, 947 S.W.2d 837, 841 (Mo. Ct. App. 1997). “Of course it is true that the
words used, even in their literal sense, are the primary, and ordinarily the most reliable,
source of interpreting the meaning of any writing: be it a statute, a contract, or anything
else.” Cabell v. Markham, 148 F.2d 737 (2nd Cir. 1945)(Hand, J.), aff’d, 326 U.S. 404
(1945). The bankruptcy court interpreted paragraph 5 according to its express
language and the plain meaning of the words. See Sonoma Management Co. v.
Boessen, 70 S.W.3d 475, 477 (Mo. Ct. App. 2002)(holding that words should be given
their natural and ordinary meaning). The terms of paragraph 5 are unambiguous and
mean exactly what they say. The Stipulation bound any party that did not object or
whose objection was overruled. The Committee objected, its objection was not
overruled, and by its plain meaning the Stipulation did not bind the Committee. See
Farm Credit Servs. v. Heine Feedlot Co. (In re Heine Feedlot Co.), 107 F.3d 622, 624-
25 (8th Cir. 1997) (holding that, where the language of a stipulated order is clear and
unambiguous, the plain language of the stipulation controls and the contract should be
enforced according to its terms).
6
If the contract was deemed ambiguous, ReGen would still not prevail as the
ambiguity was of its own making. ReGen drafted the Stipulation and “[i]t is a
longstanding principle of contract law that, absent parol evidence as to the meaning
of an ambiguous term, ambiguous terms of a contract are construed against the
drafter of the contract.” Hennessy v. Daniels Law Office, 270 F.3d 551, 553-54 (8th
Cir. 2001)(citing Webb v. James, 147 F.3d 617, 623 (7th Cir. 1998)).
15
In its appellate brief and at argument, counsel for ReGen urged that it simply
never occurred to ReGen that it needed to draft for the circumstances where an
objection was sustained, but the Stipulation still approved. Despite this lack of
foresight, “a court is not free to save parties from what it believes are contractual
mistakes or oversights.” Towers Hotel Corp. v. Rimmel, 871 F.2d 766, 773 (8th Cir.
1989). The record makes clear that Debtors' counsel had no such misunderstanding
of the Stipulation. Debtor's could “only bind itself and stipulate from its perspective.”
The Debtors knew the Stipulation did not bind the Committee, but apparently ReGen
did not. In essence, ReGen's argument boils down to one of unilateral mistake.
Absent fraud of some other exceptional circumstance, courts are not free to relieve
parties of a unilateral mistake of fact. See Gaines v. Jones, 486 F.2d 39, 43 (8th Cir.
1973), cert. denied, 415 U.S. 919 (1974) (applying Missouri law). If the agreement of
the Committee was necessary to provide ReGen the benefits of its agreement, it should
have negotiated with the Committee and made it a party to the Stipulation. Since the
Stipulation was unambiguous, the bankruptcy court's interpretation of the Stipulation
is subject to de novo review, and upon review I interpret the Stipulation exactly as
interpreted by the bankruptcy court. See Porous Media Corp., 220 F.3d at 959.
In the alternative, ReGen argues that the Committee was bound to the agreement
prior to its approval by the bankruptcy court. The Committee's comments at that
hearing and Debtor's counsel's comments at the hearing before the bankruptcy court,
however, make clear that its consent in Delaware was subject to its review of the
agreement prior to bankruptcy court approval in Missouri. The Committee was a non-
party not bound by the Stipulation unless it failed to object. See Byrd v. Sprint
Communications Co., 931 S.W.2d 810, 814 (Mo. Ct. App. 1996)(rejecting contention
that non-party can be bound by agreement). The Missouri Debtors and ReGen simply
had no power to contract away the Committee’s role in this case. See 11
U.S.C.§1103(c)(2),(5); In re Eastern Maine Elec. Coop., 121 B.R. 917, 932 (Bankr. D.
Me. 1990)(discussing committee’s role in the “initiation of various proceedings”).
16
Where I believe the majority especially errs is in its conclusion that the
bankruptcy court's order expands the rights of the Committee and alters the terms of
the Stipulation. I do not believe this was the intent of the bankruptcy court or a correct
interpretation of its order. The order simply states that “[n]othing in this Order shall
restrict the Committee's ability to object to the allowance, extent and priority of
ReGen's alleged judgment liens (the 'Liens'), including the avoidability of the Liens, on
certain of Debtors' real property.” I again interpret this to mean exactly what it says:
the order shall not “restrict” the rights of the Committee. If the Committee has the
right or the duty to object to the allowance, extent and priority of liens, those rights and
obligations are not restricted by the order. I do not interpret the order to expand the
rights of the Committee or to confer standing to theCommittee where it does not
otherwise exist. 7 These are issues best left for another day.
Having properly interpreted the language of the agreement, the bankruptcy
court's approval can only be reversed on appeal if the bankruptcy court clearly abused
its discretion by authorizing it. Martin v. Cox (In re Martin), 212 B.R. 316, 319 (B.A.P.
7
Whereas a debtor-in-possession "has explicit statutory authority to institute
suit on behalf of the estate with which it is entrusted, see 11 U.S.C. §§ 323, 704,
1106 and 1107, there is no such explicit authority for creditors' committees to
initiate adversary proceedings." Official Comm. of Unsecured Creditors v. Hudson
United Bank (In re America's Hobby Center, Inc.), 223 B.R. 275, 280 (Bankr.
S.D.N.Y. 1998)(citing Unsecured Creditors Comm. v. Noyes (In re STN Enters.
Inc.), 779 F.2d 901, 904 (2d Cir. 1985)). On the other hand,
[a] creditors' committee may acquire standing to pursue the
debtor's claims if (1) the committee has the consent of the
debtor in possession or trustee, and (2) the court finds that suit
by the committee is (a) in the best interest of the bankruptcy
estate, and (b) is 'necessary and beneficial' to the fair and
efficient resolution of the bankruptcy proceedings.
Commodore Int'l Ltd. v. Gould (In re Commodore Int'l Ltd.), 262 F.3d 96, 99-100
(2d Cir. 2001)(citing Liberty Mut. Ins. Co. v. Official Unsecured Creditors' Comm.
(In re Spaulding Composites Co.), 207 B.R. 899, 904 (B.A.P. 9th Cir. 1997).
17
8th Cir. 1997). The bankruptcy court did exactly what ReGen requested; it approved
the stipulation as drafted and did not abuse its discretion in doing so. The bankruptcy
court's decision should be affirmed.8
A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE
EIGHTH CIRCUIT
8
I agree with the majority opinion that the Stipulation was entered into by the
debtor-in-possession and that this appeal was not moot.
18