Parks v. Dittmar (In Re Dittmar)

410 B.R. 71, 2009 Bankr. LEXIS 1811, 186 L.R.R.M. (BNA) 3328, 2009 WL 2008392

• Court: Bankruptcy Appellate Panel of the Tenth Circuit
• Decided: July 13, 2009
• Docket: BAP Nos. KS-08-002, KS-08-003, KS-08-004, KS-08-005, KS-08-006, KS-08-007, KS-08-008, KS-08-009. Bankruptcy Nos. 05-17094, 05-15334, 05-15333, 05-16951, 05-17430, 05-15728, 05-16484, 05-14936
• Status: Published

Opinions

OPINION

BOHANON, Bankruptcy Judge.

Appellants Linda S. Parks and Carl B. Davis (“the Trustees”) appeal the bankruptcy court’s summary judgment order holding that post-petition cash and stock distributions received by the debtors through their employment are not property of the debtors’ estates under II U.S.C. § 541.² For the following reasons, we AFFIRM.

1. Jurisdiction

This Court has jurisdiction to hear timely filed appeals from “final judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal.³ The bankruptcy court’s judgment is a final order subject to appeal under 28 U.S.C. § 158(a)(1). The Appellants timely filed their notices of appeal.⁴ No party elected to have this appeal heard by the United States District Court for the District of Kansas, thus consenting to review by this Court.

II. Standard of Review

We review de novo the bankruptcy court’s legal determination that the post-petition distributions were not property of the Debtors’ estates under 11 U.S.C. § 541.⁵

III. The Facts and the Bankruptcy Court’s Holding

The complete facts underlying this appeal are fully set out in the bankruptcy court’s detailed Findings of Fact and Conclusions of Law and will not be repeated here except as necessary to discuss the legal arguments on appeal.⁶

Debtors are former employees of The Boeing Company (“Boeing”) who became employees of Spirit Aerosystems, Inc. (“Spirit”) on June 17, 2005, the date Spirit acquired Boeing’s Wichita plant. At the time of the sale, Debtors’ Unions ratified a collective bargaining agreement (“CBA”) with Spirit.⁷ Under the CBA, Spirit agreed to establish an equity participation program (“EPP”) for union-represented employees, and contribute stock appreciation rights to the program. Upon the occurrence of certain events, certain employees were eligible to receive distributions under the anticipated, but not yet formed EPP.

While each Debtor has a different filing date, each of the Debtors filed their bankruptcy cases before October 17, 2005, after the CBA was ratified, but before the EPP was created.⁸

On October 27, 2006, Spirit created the EPP and issued stock appreciation rights (“SARS”) to vest upon an initial public offering (“IPO”) or other defined triggering event. The EPP identified which employees were eligible to participate in the EPP:

The employees who are eligible to participate in the Plan are those hourly employees of Spirit who (a) are represented by one of the Unions or were represented by one of the Unions while employed by Spirit, (b) are former employees of The Boeing Company who either (I) became employed by Spirit on the day after the Closing Date, or (ii) were on an approved leave of absence on the Closing Date and became employed by Spirit immediately upon conclusion of such leave, and (c) were employed by Spirit for at least ninety (90) consecutive days during the period commencing on the day after the Closing Date, and ending on December 31, 2005.⁹

On November 27, 2006, Spirit completed the IPO and the employees’ rights to the SARS vested. Distributions were made to the debtors in December 2006, and March 2007. Debtors received a cash distribution of $34,556 around December 6, 2006, and I,034 shares of Spirit Class A common stock around March 15, 2007.

Following Spirit’s payment of distributions to Debtors, the Trustees filed motions for turnover of all distributions received from Spirit, contending they were property of the estates under 11 U.S.C. § 541.¹⁰ The Debtors objected, and, after a hearing, the bankruptcy court entered an interim order denying turnover of the distributions.¹¹ A pretrial order followed. After discovery, various parties filed motions for summary judgment on the Trustees’ motions for turnover of the distributions.

On December 24, 2007, the bankruptcy court issued a memorandum opinion (the “Appealed Order”) granting Debtors’ motion for summary judgment and denying the trustees’ motion, finding the distributions were not property of the bankruptcy estate.¹² The bankruptcy court, relying upon Kansas state law, held that the CBA did not grant the Debtors an enforceable right in the distribution because it did not clearly define which employees would have rights under the EPP. The term “participating employees” was not defined until the post-petition creation of the EPP in October 2006. Thus, until the EPP was created, an enforceable right to the SARS did not exist. As a result, the bankruptcy court concluded the rights to the distributions were not property of the estate because there was no prepetition document or agreement establishing that these Debtors would qualify as participating or eligible employees having a contingent, future interest under the EPP.

IV. Discussion

The Trustees claim that the bankruptcy court erred in concluding that the Debtors’ rights to the SARS are not property of the estate under § 541. The gist of the Trustees’ appeal is that the bankruptcy court erroneously applied state contract law in construing the CBA, and disregarded federal collective bargaining law that recognizes and enforces oral agreements at the bargaining table. The Trustees claim that the parties to the CBA had orally agreed at the bargaining table which employees were eligible to receive the distributions in June 2005.

The bankruptcy court’s analysis was based on its belief that Kansas law requires the Debtors to be expressly identified as third-party beneficiaries in order to enforce a provision of the CBA. Because the Debtors’ interest in the property must exist as of the commencement of the case, the bankruptcy court focused its attention on which agreement clearly expressed these Debtors would qualify as participating employees. The bankruptcy court’s analysis is flawed for two reasons. First, the bankruptcy court’s reliance on the Kansas Stovall case is misplaced.¹³ Stovall is distinguishable because it does not involve a CBA. Second, focusing on the issue of who is eligible to receive the distributions presumes that the rights/interests granted under the CBA/EPP are of the kind that may be included in “property of the estate.”

We begin our analysis by reviewing the interest granted by the CBA/EPP. Section 541(a)(1) defines property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the case.” The purpose of § 541(a) is to bring anything of value that the debtors have into the estate. Courts have construed the term “property” broadly and “an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed.”¹⁴

State law defines and creates property interests.¹⁵ Once property rights are determined under state law, federal bankruptcy law establishes the extent to which the property interest is property of the bankruptcy estate.¹⁶ A “legal interest” is an interest recognized by law.¹⁷ An “equitable interest” is an interest held by virtue of an equitable title or claimed on equitable grounds, such as the interest held by a trust beneficiary.¹⁸

The rights at issue are contractually-based, rather than state-created; thus resolution of this case requires interpretation of the CBA and EPP. The determinative issue is whether the Debtors had an enforceable right to the distribution when they filed their respective petitions. A leading treatise provides:

While federal labor law governs the enforcement of collective bargaining agreements, traditional principles of contract law frequently apply. Consequently, the enforcement of collective bargaining agreements is governed by traditional rules governing the enforceability and interpretation of contracts, so long as their application does not conflict with federal labor policy. However, since a “collective bargaining agreement is not an ordinary contract for the purchase of goods and services, nor is it governed by the same old common-law concepts, which control such private contracts,” not all common-law concepts are applied to determine if a contract exists; thus, for example, a stipulation under which an employer agreed to abide by any collective bargaining agreement between a union and an employers’ association was not invalid for lack of consideration.¹⁹

The basic canons of interpretation of collective bargaining agreements are (1) the writing will be read as a whole, and every part will be interpreted with reference to the whole, (2) the court will if possible give effect to all parts of the instrument, and an interpretation which gives a reasonable meaning to all its provisions will be preferred to one which leaves a portion of the writing useless or inexplicable, (3) the court must try to put into concrete form what the intentions of the parties were, not by slavishly following the words but to say what the underlying purpose was as expressed by the language used, and (4) the court should seek to ascertain the meaning of a collective bargaining agreement not only by viewing the language used by the parties to the collective bargaining agreement, but also by considering the parties’ past interpretations and practices. In other words, in interpreting a collective bargaining agreement, the fundamental canons of contract interpretation require that a court not only examine the plain language of the contract in the abstract, but that it seek to ascertain and effectuate the parties’ intent, as evidenced by the contract’s purpose and the surrounding circumstances.²⁰

The SARS were first referenced in the CBA. Under both the IAM and IBEW versions of the CBA, Spirit agreed to establish an EPP that would provide for represented employees to participate in profit earned by Spirit on ten percent of its initial common stock upon one of three events: (1) a substantial sale by its investors; (2) a change of control merger; or (3) an initial public offering (“IPO”) of the stock. The bankruptcy court interpreted this provision as simply giving these Debtors the hope, anticipation, or expectation that in the event of a triggering event, they would receive a share of the profits, stating:

First, these cases do not appear to involve stock options. Indeed, eligible employees did not receive an option to be exercised by them; rather, upon the effective date of the EPP appreciation rights were issued. The appreciation rights did not confer upon the eligible employees any ownership of any stock or the right to purchase stock. If and when the IPO yielded a stock price in excess of the threshold price, the appreciation rights would be converted into the right to receive a distribution payable to eligible employees in cash and stock. They had no “option” per se and did not have to take any steps to “exercise” the option.

Second, and far more important for today’s purposes, the record shows that neither the IPO nor the EPP existed at the time these debtors filed their cases. All the debtors had before the EPP was executed on October 27, 2006 was the hope, anticipation, or expectation that in the event of an IPO, they would receive a share of the profits. That is the only “future” or [“] contingent” interest the Court can glean from the CBA terms.

... Here, these debtors’ expectations, if any, were based on the possibility or hope that a sale, merger, or IPO might occur during the term of the CBA. The employees had no control whatever over when or if that might occur because the decision to sell, merge, or publicly offer stock remained entirely within Spirit’s discretion.²¹

Because the Debtors’ interests were entirely dependent upon the economic decisions of Spirit, the bankruptcy court concluded that such an expectancy did not rise to the level of a legal or equitable interest in property. We agree.²²

The dispositive characteristic in Palmer, Sharp, and Chappo is that under the terms of the bonus plan, payment of the bonus was solely at the employer’s discretion. The Palmer court concluded that the debtor had no enforceable claim because the employer, as of the date the debtor filed for bankruptcy, could have decided not to pay any bonus at all under the terms of the plan itself. Here, the distribution is conditioned on a sale, merger, or IPO, all of which are occurrences entirely within Spirit’s discretion.

Interpreting the CBA as merely granting an expectancy is further supported by the provisions of the EPP. Section 3.01 states:

Notwithstanding anything herein, no individual Eligible Employee shall have any rights with respect to or interest in the Appreciation Rights, or any right to be allocated any portion of any Net Proceeds and no Eligible Employee is assured that he or she will receive an allocation of any Net Proceeds.²³

Section 3.01 makes clear that eligible employees have no interest in or rights with respect to the benefits even as of the effective date of the EPP, October 27, 2006. In other words, eligible employees were not assured of receiving any distribution, even after the EPP was established and the Appreciation Rights were issued.

Section 4.01 of the EPP provides:

“Effective as of the Effective Date, the Company shall issue Appreciation Rights ... for the benefit of the Eligible Employees. When vested, each Appreciation Right shall be converted into the right to receive a distribution from the Company of an amount equal to the ‘Net Proceeds,’ if any, attributable to such Right, as determined on the Measurement Date.... The Appreciation Rights shall not confer upon any Eligible Employee (or his or her Beneficiary) any legal or beneficial ownership of any [stock in the company.]”²⁴

The Effective Date is defined in the EPP as the date of its execution, October 27, 2006. Thus, Spirit had to issue the Appreciation Rights on that day.

Section 4.07 states the appreciation rights are non-transferable and nonassignable.²⁵ Section 4.02 states that the Appreciation Rights vest on the Measurement Date.²⁶ The Measurement Date is defined as the closing date of the IPO, which was November 27, 2006.²⁷ Pursuant to § 4.01, only when the Appreciation Rights became vested would they be converted into a right to receive a distribution of the net proceeds of the IPO. Thus, an eligible employee, whether under the CBA or the EPP, had no right to receive a distribution until the IPO was completed.

In summary, even if the bankruptcy court erred in (1) relying upon Kansas contract law to interpret the CBA, (2) finding the CBA unambiguous, and (3) limiting its analysis to the plain language of the CBA, we would affirm the bankruptcy court’s conclusion that the Debtors’ rights to the SARS are not property of the estate. At the time of the Debtors’ filing for bankruptcy, their right to the SARS was merely an expectancy that did not rise to the level of a legal or equitable interest. Until Spirit consummated the IPO, the Debtors had no legal or equitable interest in the SARS distributions. The Debtors were not entitled to receive the distribution until the IPO was completed. When their bankruptcy petitions were filed, they could not have sued to recover the distribution. Accordingly, we AFFIRM on this alternative ground.²⁸

V. Conclusion

Having carefully reviewed the parties’ briefs, the record, and applicable law, we AFFIRM for the reasons stated above.

2 . Carl B. Davis is the trustee in BAP Case No. KS-08-009. Linda S. Parks is the trustee in the remaining cases. For ease of reference in this opinion, any position jointly shared by trustee Linda Parks and trustee Carl Davis shall be referred to as "the Trustees." The debtors in all the appeals are referred to as "the Debtors.” References to "Unions” are to the International Association of Machinists and Aerospace Workers ("IAM”) or the International Brotherhood of Electrical Workers ("IBEW”); one or the other represented the debtors during negotiations with their employer. The Appendix submitted in BAP No. KS-08-009 will be referred as "Davis Appx.” The Appendices submitted in BAP No. KS-002 through -008 will be referred as "Parks Appx.”

3 . 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr.P. 8002.

4 . Fed. R. Bankr.P. 8002(a).

5 . In re Wise, 346 F.3d 1239, 1241 (10th Cir. BAP 2003).

6 . In re Lowe, 380 B.R. 251 (Bankr.D.Kan. 2007).

7 . Two CBAs were ratified, one by the IAM and the other by the IBEW. Since they are substantively identical, for ease of reference, they will be referred in the singular as the "CBA.”

8 . October 17, 2005 is the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

9 . EPP at 3, § 3.01, in Davis Appx. at 57.

10 . Unless otherwise noted, all future statutory references are to Title 11 of the Federal Bankruptcy Reform Act of 1978.

11 . Interim Order on Chapter 7 Trustees’ Motions for Turnover of Spirit Aerosystems’ Distributions to Debtors Made Under Equity Participation Program ("Interim Order”), in Davis Appx. at 63-78.

¹²

13 . Lowe, 380 B.R. at 257 (citing State ex. rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 107 P.3d 1219, 1230-31 (2005)).

14 . Segal v. Rochelle, 382 U.S. 375, 379, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966).

15 . Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979).

16 . In re Wise, 346 F.3d 1239, 1241-42 (10th Cir.2003).

17 . Black's Law Dictionary 816 (7th Ed.2001). For example, contracts or agreements are enforceable at law.

18 . Id.

19 . 20 Richard A. Lord, Williston on Contracts, § 55:54 (4th ed. updated May 2009) (footnotes omitted).

20 . Id. § 55:20.

21 . Interim Order at 13-14, in Davis Appx. at 75-76 (footnotes omitted).

22 . See Vogel v. Palmer (In re Palmer), SI B.R. 332 (Bankr.W.D.Va.1986) (Postpetition year-end bonus paid by debtor’s employer was not property of the estate under § 541, where debtor’s receipt of bonus was conditioned in part on his employment on date almost six months after filing of petition, debtor had to perform his job satisfactorily to be eligible to receive a bonus at all, and debtor was not entitled to receive bonus until chief executive officer of employer made such a determination.); Sharp v. Dery, 253 B.R. 204 (E.D.Mich. 2000) (No portion of employee bonus that Chapter 7 debtor’s employer, in exercise of its sole discretion, declared and paid postpetition was included in "property of the estate,” where eligibility for bonus was conditioned upon debtor’s continued postpetition employment, and debtor had no enforceable claim to bonus on petition date.); In re Chappo, 257 B.R. 852 (E.D.Mich.2001) (Employee bonus which Chapter 7 debtor received postpetition was not one in which he had interest on petition date, so that bonus was not included in "property of the estate,” given that employer had reserved right to terminate, modify, or suspend its bonus program at any time and that bonus plan specifically provided that "a Participant will not have any interest in any Award until it is distributed.”). See also Elizabeth T. Tsai, Annotation, Effect of Employer’s Discretionary Determination, Generally, 43 A.L.R.3d 503, § 12 (1972 Supp.2009) (collection of cases holding employer’s promise to pay a bonus was held not enforceable in view of the employer’s reservation of the right to control the rate or amount, or to withhold payment, at his discretion).

23 .EPP at 3, § 3.01, in Davis Appx. at 57.

24 . Id. at 3, § 4.01, in Davis Appx. at 57.

25 . See Interim Order at 6, in Davis Appx. at 68. The appellate record contains only limited excerpts of the CBA and EPP. Sections 4.02 and 4.07 were not provided to us, but they were mentioned in the Interim Order.

²⁶

²⁷

28 .An appellate court is “ 'free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.' ” Griess v. Colo., 841 F.2d 1042, 1047 (10th Cir.1988) (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987)); United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994).