Hinkle Oil & Gas, Incorporated v. Bowles Rice McDavid Graff & Lo

Filing 920100105

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2275

HINKLE OIL & GAS, INCORPORATED, an Oklahoma Corporation, Plaintiff - Appellant, v. BOWLES RICE MCDAVID GRAFF & LOVE, LLP, a West Virginia Limited Liability Partnership; CHARLES B. DOLLISON; JULIA A. CHINCHECK; DOES 1 ­ 100; MARC MONTELEONE; GERARD STOWERS, Defendants - Appellees.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:07-cv-00487-sgw-mfu)

Argued:

October 29, 2009

Decided:

January 5, 2010

Before NIEMEYER and DUNCAN, Circuit Judges, and Benson E. LEGG, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Hugo Nathan Gerstl, HUGO N. GERSTL, INC., Monterey, California, for Appellant. William Delaney Bayliss, WILLIAMS MULLEN, Richmond, Virginia, for Appellees. ON BRIEF: Brendan D. O'Toole, WILLIAMS MULLEN, Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Hinkle Oil & Gas, Inc. ("Hinkle") challenges the district court's Bowles grant Rice of summary Graff Charles judgment & Love, in favor of the law firm and

McDavid partners

LLP

("Bowles

Rice"),

individual

Dollison,

Marc

Monteleone,

Julia

Chincheck, and Gerard Stowers on Hinkle's claims for intentional interference with economic advantage, breach of fiduciary duty, and legal malpractice. affirm. For the reasons set forth below, we

I. A. Appellant Hinkle, an oil and gas well development company, had a sister corporation named Minerals Management Group, Inc. ("MMGI"). In 1997, MMGI sued Buffalo Properties, LLC

("Buffalo") over the leasing rights to two oil and gas wells in Kentucky. The litigation continued into 2004, at which point

Buffalo sought Chapter 11 bankruptcy protection. On June 6, 2005, the bankruptcy matter became a Chapter 7 proceeding. Buffalo's eligible assets were transferred to its The assets included 19 wells in Kentucky A

bankruptcy estate.

("KY wells") and 274 wells in West Virginia ("WV wells").

bankruptcy trustee was appointed to liquidate Buffalo's assets and pay off creditors. 3

In early spring 2006, the trustee negotiated a plan under which Hinkle would buy the KY wells for $400,000 and would drop MMGI's lawsuit against Buffalo. On March 1, 2006, the trustee

faxed Hinkle a proposed contract for the KY wells reflecting the $400,000 price. Hinkle then hired attorney Julia Chincheck of

the Bowles Rice law firm to complete the negotiations and obtain approval from the bankruptcy court. her partners about this matter, Although Chincheck notified none reported a conflict

relating to Hinkle or Buffalo.

Hinkle paid a $5,000 retainer

and Chincheck began representation. On May 3, 2006, the trustee moved for the bankruptcy court to approve a proposed contract to sell the WV wells to Applied Mechanics Corporation ("AMC") for $400,000. On May 23, 2006,

two of Buffalo's creditors, Mervil Perry and the Estate of Bobby Gillispie ("Gillispie"), filed separate objections to the

proposed sale. That same day, the bankruptcy trustee agreed to sell the KY wells to Elk River Energy, LLC ("Elk River") for $450,000,

abandoning the tentative plan to sell to Hinkle for $400,000. On May 25, 2006, the trustee moved for the bankruptcy court to approve this sale. Elk River had been recently organized by two Bowles Rice partners, Charles Dollison and Marc Monteleone, and a friend of theirs. It is unknown whether any Bowles Rice partners knew of 4

the

potential

conflict

between

Elk

River

and

Hinkle

when

Chincheck opened the Hinkle file. 1

Bowles Rice became aware of

the conflict at least by early May when the trustee informed Dollison Hinkle. that his law partner, Chincheck, was representing

According to the district court's opinion, Dollison J.A.

assured the trustee, "Don't worry, I'll take care of it." 736.

Bowles Rice did not, however, resolve the conflict or even inform Hinkle that its partners were involved with Elk River. Hinkle only learned of the conflict through its own independent investigation. At a meeting on May 25, 2006, the trustee told

Hinkle that Buffalo had entered into a written contract to sell the Kentucky wells to Elk River. This information prompted

Hinkle to investigate Elk River, and the inquiry unearthed the involvement of the Bowles Rice partners. Bowles Rice, demanding that Elk River Hinkle then confronted mitigate the harm to

Hinkle by assigning its contract to Hinkle and paying Hinkle the $50,000 difference. Bowles Rice rejected this demand. Hinkle

never requested that Bowles Rice return its retainer fee, and the firm never did.

Bowles Rice concedes that a conflict exists for purposes of this case.

1

5

Dollison and Monteleone then met with Gerard Stowers, who oversaw risk management for Bowles Rice. Based on the group's

decision, Bowles Rice stopped representing Hinkle, and Elk River requested that the trustee withdraw his May 25, 2006, motion for court approval of the sale. The proposed contract The trustee rejected that request. of sale to Elk River allowed for

"upset bids," namely, higher bids by outside parties that would trigger an auction to the highest bidder. The sales contract

stated, "The sale . . . allows . . . upset bids in an amount of $455,000[] or more . . . provided such upset bid is accompanied by an earnest money deposit of $25,000 in immediately available funds." J.A. 430. On June 9, 2006, Hinkle submitted to the

trustee and the bankruptcy court a $455,000 upset bid with the required $25,000 earnest money. The upset bid included a

proposed purchase agreement that, by its own terms, was subject to the approval of the court. On June 12, 2006, Elk River filed

an objection to the trustee's May 25, 2006, motion for approval of its own sales contract, explaining that Hinkle had threatened litigation. On July 3, 2006, the bankruptcy court received a letter of intent from First South Investments offering to purchase all of Buffalo's assets for $2,500,000. On July 7, 2006, before taking

any action on the proposed sale of the KY wells to Elk River, the court held a hearing on the trustee's May 3, 2006, motion to 6

approve the sale of the WV wells to AMC. and Gillispie were represented at the

The trustee, Perry, Energy One

hearing.

Group, Inc. ("EOG"), who had submitted an upset bid in that sale, and James Clowser, who was a member of Buffalo, were also represented. At the hearing, the creditors and Clowser informed

the court that "at least two entities had expressed interest in acquiring all of the assets of the Debtor for substantially more than the total of the highest existing bids for the West

Virginia Oil and Gas Asset and the Kentucky Oil and Gas Asset of the Debtor." J.A. 505. In its The

On July 17, 2006, the court decided the motion.

order, the court noted the mention of the higher offers.

court sustained the creditors' objection to the WV wells sale and ordered the trustee to propose new sale procedures that

would permit credit bidding, allow prospective buyers to make one bid for the KY wells and WV wells combined, and provide for an auction to choose among multiple qualifying bids. The

trustee soon proposed new procedures, which the court approved over Hinkle's objection. The trustee eventually auctioned off Buffalo's assets under the new procedures. wells at $500,000. Hinkle made the highest bid for the KY But the overall highest bidder was Heritage

Financial Group, Inc. ("Heritage"), which offered $7,000,000 for all of Buffalo's assets. Elk River did not bid at all. 7 After

making the purchase, Heritage transferred Buffalo's assets to Mountain County Partners ("MCP") and dissolved. B. After losing the auction, Hinkle brought this action

against Appellees Bowles Rice, Dollison, Monteleone, Chincheck, and Stowers. with The amended complaint alleged 1), intentional breach of of

interference fiduciary

economic 2),

advantage conversion

(Count or

duty

(Count

misappropriation

property (Count 3), and legal malpractice (Count 7). 2 Hinkle judgment. and Appellees filed cross-motions for summary

On September 17, 2008, the district court awarded The court found that Counts 1, was unable to prove that

summary judgment to Appellees. 2, and 7 failed because

Hinkle

Appellees caused it not to obtain the KY wells.

The court also

said Count 3 failed because Hinkle never demanded the $5,000 retainer, which remained in Bowles Rice's client trust account. Hinkle was given ten days to file an amended complaint asserting claims that did not require proof of causation. On September

18, 2008, Hinkle filed a motion for reconsideration, which the court denied. On September 19, 2008, Hinkle filed another

amended complaint.

The court dismissed the amended complaint on

2

Hinkle abandoned Counts 4-6 of its original complaint.

8

October 28, 2008, finding that all the claims raised therein required proof of causation. This appeal followed.

II. Hinkle challenges the district court's grant of summary

judgment, asserting error in its conclusion that Hinkle failed to produce sufficient evidence of causation for Counts 1, 2, and 7. 3 Hinkle asserts that it presented sufficient evidence to

raise a factual question as to causation because it showed that, had Elk River not objected to its own sale contract for the KY wells, Hinkle would have been the successful upset bidder. 4 We review de novo a grant of summary judgment. Ozmint, 578 F.3d 246, 250 (4th Cir. 2009). appropriate materials, if and "the any pleadings, affidavits the show Smith v.

Summary judgment is and is disclosure no genuine

discovery that there

issue as to any material fact and that the movant is entitled to

Hinkle does not challenge and thus waives objection to the district court's grant of summary judgment on Count 3. Hinkle concedes that its intentional interference with economic advantage, breach of fiduciary duty, and legal malpractice claims all require proof that Appellees' conduct was the proximate cause of Hinkle's failure to obtain the KY wells. West Virginia law defines proximate cause to mean "that cause which in actual sequence, unbroken by any independent cause, produced the wrong complained of, without which the wrong would not have occurred." Spencer v. McClure, 618 S.E.2d 451, 455 (W. Va. 2005) (citation and internal quotations omitted).
4

3

9

judgment as a matter of law."

Fed. R. Civ. P. 56(c)(2).

We

construe the evidence in the light most favorable to Hinkle and draw all reasonable inferences in its favor. F.3d at 250. Although Hinkle does not have See Smith, 578 to show that

Appellees' conduct "was the sole proximate cause of the injury," Spencer, 618 S.E.2d at 455-56 (emphasis omitted), "a mere

possibility of causation is not sufficient" to defeat summary judgment, id. at 456 (citation and quotations omitted). Hinkle argues that Elk River's objection caused it to lose in the bidding process. Its position hinges on an assertion of

inevitability: had Elk River not objected, the process would have proceeded quickly to a resolution in its favor. The

record, however, does not bear this out. In this case, the bankruptcy court restructured the bidding process in a way that caused Hinkle to be unsuccessful in its bid. It is clear from the court's July 17, 2006, order that

this restructuring occurred as a result of the July 7, 2006, hearing during which Buffalo's creditors for the WV wells

brought to the court's attention the fact that "at least two entities had expressed interest in acquiring all of [Buffalo's] assets . . . for substantially J.A. 505. more than the total of the

highest existing bids."

Therefore, to show that Elk

River's objection caused Hinkle to lose the bid, Hinkle would have to present evidence that, absent Elk River's objection, the 10

bankruptcy court would have authorized the trustee's sale of the KY wells to Hinkle as the upset bidder prior to July 7, 2006, and would therefore not have had occasion to place the KY sales back into play. that would However, Hinkle has not presented any evidence it to assert with any certainty that the

permit

bankruptcy court would have approved the sale before that date. Hinkle's proposed sales upset bid documents between clearly the indicate and that the was

agreement

trustee

Hinkle

subject to the bankruptcy court's approval. 5

Hinkle argues,

however, that the court would have approved the sale "pro forma" shortly after Hinkle's upset bid. This assumption contradicts

the trustee's testimony that "there is always a chance" that the court might reject the sale. J.A. 266. In fact, in his

deposition, the trustee agreed that "it would be speculation to guess whether [the sale] would [have] be[en] approved" by the bankruptcy court. J.A. 262. Hinkle's assumption also ignores

Although Hinkle argues that the bankruptcy court's approval was not legally required, the evidence in the record strongly supports the inference that the trustee would not have acted without the court's approval. The trustee filed a motion with the court requesting its approval to complete the Elk River sale. Also, both Elk River's sale contract and Hinkle's upset bid expressly provided that any sale of the property was "subject to [the] approval of the Bankruptcy Court." J.A. 413, 454. Therefore, whether or not the approval was legally required, there is absolutely no support for the assumption that the trustee would have reversed course and attempted to finalize the Hinkle sale without the court's approval.

5

11

the fact that, on July 3, 2006, the court received a letter of intent from First South Investments offering $2,500,000 for all of Buffalo's assets. It would be mere speculation to assume

that the court would have ignored that offer and approved the Hinkle sale. Furthermore, Hinkle's assumption that the court

would have taken a purely passive role in approving the sale is contradicted by the court's proactive involvement in directing the trustee to restructure the bidding process in order to

create the potential for higher returns for Buffalo's creditors. Even assuming that the bankruptcy court would have approved the sale, Hinkle has presented no evidence to support the

inference that the approval would have occurred before the July 7, 2006, hearing that led to the bidding restructuring. Hinkle

merely speculates that the "pro forma" approval of the court would have occurred in approximately one day. "create a genuine or the issue building of of material one fact Hinkle cannot through upon mere

speculation

inference

another."

Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985); see also Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006) ("Mere unsupported speculation is not sufficient to defeat a summary judgment motion if the undisputed evidence

indicates that the other party should win as a matter of law.") Hinkle's unsupported assertion that, but for Elk River's objection, the bankruptcy court would have approved the upset 12

bid

before

having

an

opportunity

to

restructure

the

bidding

process is not sufficient to defeat Appellees' summary judgment motion.

III. Accordingly, for the reasons stated above, we AFFIRM.

13