Henshaw et al v. Field
ORDER AFFIRMING BANKRUPTCY COURT'S ORDERS GRANTING TRUSTEE'S MOTION TO DISMISS COUNTERCLAIM AND GRANTING TRUSTEE'S MOTION FOR SUMMARY JUDGMENT re 1 . Signed by JUDGE DERRICK K. WATSON on 01/13/2014. The ban kruptcy court's March 13 and July 10, 2013 Orders are hereby AFFIRMED (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL DYLAN HENSHAW
AND KIMBERLY HENSHAW,
PHILIP DANIEL HENSHAW and )
DANE S. FIELD, TRUSTEE OF
THE BANKRUPTCY ESTATE OF )
MICHAEL DYLAN HENSHAW
AND KIMBERLY HENSHAW,
CV. NO. 13-00388 DKW-KSC
[Bankruptcy Case No. 11-00853]
Adv. Pro. No. 12-90070
TRUSTEE’S MOTION TO
AND GRANTING TRUSTEE’S
MOTION FOR SUMMARY
ORDER AFFIRMING BANKRUPTCY COURT’S ORDERS GRANTING
TRUSTEE’S MOTION TO DISMISS COUNTERCLAIM AND GRANTING
TRUSTEE’S MOTION FOR SUMMARY JUDGMENT
Appellants Philip and Barbara Henshaw (“the Henshaws”) appeal two
decisions of the bankruptcy court in Adversary Proceeding No. 12-90070: 1) a
March 13, 2013 order granting Trustee Dane S. Field’s Motion to Dismiss
Counterclaim; and 2) a July 10, 2013 order granting the Trustee’s Motion for
Summary Judgment. Because the bankruptcy court did not issue any clearly
erroneous factual findings, and did not err as a matter of law, In re JTS Corp., 617
F.3d 1102, 1109 (9th Cir. 2010), the bankruptcy court’s March and July 2013 Orders
are hereby AFFIRMED.
This is the second time in the past year that the Henshaws have
appealed adversary proceeding rulings of the bankruptcy court to the district court.
On the first occasion, in Adversary Proceeding No. 11-90105 (AP No. 1), Judge
Seabright affirmed the bankruptcy court’s decision to grant summary judgment to
the Trustee, holding that Debtors’ 2010 quitclaim deed, relating to 76-971 Hualalai
Road, Kona, Hawaii (the “Property”), in favor of Debtors’ joint tenants, the
Henshaws, constituted a fraudulent transfer.1
Subsequent to that ruling, the Trustee initiated the adversary
proceeding (Adversary Proceeding No. 12-90070 (AP No. 2)) appealed from here.
In this action, the Trustee seeks to sell both the Debtors’ and the Henshaws’ interests
in the Property, pursuant to 11 U.S.C. § 363(h). The Henshaws filed a
counterclaim, seeking “reformation” of the 2007 Property Deed (the “Deed”) to
“conform to the parties’ alleged intention that they would own the Property in
proportion to their respective contributions to the purchase price,” rather than
equally in joint tenancy, as determined by the Court in AP No. 1. Appendix, Ex. 3
at 3 (March 13, 2013 Order). The bankruptcy court granted the Trustee’s Motion to
Dismiss the counterclaim, holding that the issue of “reformation” had already been
considered and rejected as part of AP No. 1. Id. at 3-6.
The Trustee also moved for summary judgment on its Section 363(h)
claim. On July 10, 2013, the bankruptcy court granted this motion, holding, in part,
Because Judge Seabright has already set forth many of the relevant facts, the Court does not
endeavor to do so again here, except as necessary to provide clarity. See In re Henshaw, 485 B.R.
412 (D. Haw. 2013).
that the benefit to the bankruptcy estate of the sale of the Property outweighed any
detriment to the Henshaws. Id. (July 10, 2013 Order).
The Henshaws appeal from the decisions in both the March 13 and July
10, 2013 Orders.
The Bankruptcy Court Properly Determined That The Henshaws’
Reformation Claim Is Barred By The Doctrine Of Issue Preclusion.
A party is estopped from litigating an issue already determined by a
federal court where: 1) the issue is the same as the one involved in the prior
litigation; 2) the issue in the prior litigation was essential to a final judgment; and 3)
the party against whom collateral estoppel is sought was a party (or in privity with a
party) to the prior litigation. See United States v. Edwards, 595 F.3d 1004, 1012
(9th Cir. 2010). Here, the parties principally dispute the applicability of element 1.2
More specifically, the Henshaws claim that in AP No. 1, they attempted
to defeat the Trustee’s fraudulent transfer contentions by using extrinsic evidence to
While the Court recognizes that the Henshaws purport to contest each element of the collateral
estoppel test, their assertions related to the subsequent elements are derivative of their contention
that the issues in each litigation are different. See Open.Br. at 11. Because the Court rejects the
contention that the issues in each case are different, it is unnecessary to address the Henshaws’
arguments regarding the remaining elements.
vary the Deed interpreted on its face by the bankruptcy court to constitute evidence
of a joint tenancy. According to the Henshaws, consideration of such extrinsic
evidence would show that, together with the Debtors, they intended to take the
Property in accordance with their respective contributions to the Property’s purchase
price, rather than 50-50. The bankruptcy court did not permit the admission of such
evidence, a decision that was affirmed by the district court on appeal. See In re
Henshaw, 485 B.R. at 416, 421 (“the court finds that the parol evidence rule applies
to the June 22, 2007 Deed to prevent admission of extrinsic evidence suggesting that
the subject properties were held in anything other than a joint tenancy”).
Here, in AP No. 2, the Trustee seeks to sell the Property pursuant to 11
U.S.C. Section 363(h). Based on collateral estoppel, the bankruptcy court
dismissed the Henshaws’ counterclaim “seeking reformation of the 2007 deed to
conform to the parties’ alleged intention that they would own the property in
proportion to their respective contributions to the purchase price.” Appendix, Ex. 3
at 3 (March 13, 2013 Order); see also Open.Br. at 10 (The Henshaws have “raised in
the Counterclaim that 50/50 ownership was not the intent of the parties when the
Deed was drafted . . . there was a mistake in drafting the Deed entitling them to the
equitable remedy of reformation”). The Henshaws assert that the bankruptcy court
erred in its application of collateral estoppel because the parol evidence issue in AP
No. 1 is different than the reformation issue in AP No. 2:
. . . the First Proceeding decided the issue of the legal effect of
the Deed as to the ownership rights it conveyed. The Henshaws’
counterclaim now raises the entirely different issue of whether
this legal effect (now defined by the Court) reflects the true
intent of the parties, or if it is subject to the equitable remedy of
reformation. These issues are not the [sic] identical, and none
of the issues related to the Henshaws’ claim for reformation were
decided or even considered in the First Proceeding.
Open.Br. at 11.
The Henshaws are incorrect: The bankruptcy court did not err in its
application of collateral estoppel. Admittedly, the Henshaws attach “a different
legal label” (Appendix, Ex. 3 at 6) to their counterclaim, now styling it as based on
“reformation.” But whatever the label, the Trustee correctly and succinctly notes
that the issue in both proceedings is the same: “whether the alleged intent of the
[Henshaws] and Debtors merits an alteration of their respective interests” in the
Property, as reflected in the joint tenancy Deed. Ans.Br. at 7. Indeed, to allow the
Henshaws to maintain the reformation claim they now assert would necessarily
require admission of the same extrinsic evidence that was precluded by the
bankruptcy court’s parol evidence ruling in AP No. 1. See Appendix, Ex. 3 at 6
(March 13, 2013 Order), quoting, 1B Moore’s Federal Practice ¶ 0.443(“[A]ny
contention that is necessarily inconsistent with a prior adjudication of a material and
litigated issue . . . is subsumed in that issue and precluded by the effect of the prior
judgment as collateral estoppel”). In other words, the Henshaws rely on the same
factual circumstances underpinning their reformation claim as they did in seeking to
vary the deed with extrinsic evidence in AP No. 1 – they simply stop short of calling
their variance attempt a “reformation.”3
Accordingly, this Court will not disturb the bankruptcy court’s collateral
The Bankruptcy Court Properly Determined That The Sale Of The
Property Should Proceed, Pursuant To 11 U.S.C. Section 363(h).
Title 11, United States Code, Section 363(h) provides in relevant part:
. . . [T]he trustee may sell both the estate’s interest . . . and the
interest of any co-owner in property in which the debtor had, at
the time of the commencement of the case, an undivided interest
as a tenant in common, joint tenant, or tenant by the entirety,
only if –
(1) Partition in kind of such property among the estate and such
co-owners is impracticable;
The bankruptcy court’s application of the Ninth Circuit’s Browner factors further illustrates the
identity of the issues in both proceedings. See Appendix, Ex. 3 at 4-6 (March 13, 2013 Order).
(2) Sale of the estate’s undivided interest in such property would
realize significantly less for the estate than sale of such
property free of the interests of such co-owners;
(3) The benefit to the estate of a sale of such property free of the
interests of co-owners outweighs the detriment, if any, to
such co-owners; and
(4) Such property is not used in the production, transmission, or
distribution, for sale, of electric energy or of natural or
synthetic gas for heat, light, or power.
The Henshaws challenge the Trustee’s satisfaction of Section 363(h)(1) and (h)(3).
Open.Br. at 13.
With regard to (h)(1), the Henshaws assert that the bankruptcy court
made no finding and “essentially put off a determination as to whether or not both
parcels making up the Property must be sold, or if the estate’s interests could be
satisfied by the sale of just one parcel, until such time as a motion to approve a sale is
made.” Id. at 14. The bankruptcy court, however, is guilty of no such omission.
Having considered the Henshaws’ and Debtors’ contentions with regard to partition,
the bankruptcy court stated: “Strict partition in kind . . . is impracticable in this
situation because the units are not equal in value. Although each unit is
approximately the same size, one of the units contains a residence, increasing its
value, while the other unit is unimproved land with a lower value. Examining the
evidence in the record, it does not appear practicable to physically divide the
property in a way which would result in equal values.” Appendix, Ex. 3 at 4 (July
10, 2013 Order); see also Appendix, Ex. 5 at 17-18. The bankruptcy court, in other
words, not only did not “essentially put off” a determination on Section 363(h)(1),
but made a determination whose rationale is eminently sound. See e.g. In re
Vassilowitch, 72 B.R. 803, 807 (D.Mass. 1987) (sale of only a partial interest in a
co-owned property ”would realize virtually nothing” because of the “co-owner’s
With regard to Section 363(h)(3), the Henshaws argue that the
bankruptcy court did not fully appreciate, or therefore properly weigh, the detriment
that a sale of the whole Property would cause them. The Henshaws contend that not
only would they suffer a significant economic loss, but the stress created by a sale
would have a particularly acute effect on Barbara Henshaw, who apparently suffers
from multiple sclerosis. Open.Br. at 15-16. Once again, the Henshaws appear to
understate the breadth and propriety of the bankruptcy court’s considerations and
analysis. First, no one, including the bankruptcy court, is suggesting that the
Henshaws will be made whole as a result of the Property’s sale. As the bankruptcy
court readily acknowledged, “[I]t’s true that they paid money for this property, and
it’s probably true they’re not going to get all that money back.” Appendix, Ex. 5 at
18. But as the bankruptcy court further commented, the Henshaws’ prospective
loss is principally a consequence of the avoided fraudulent transfer, not the sale of
the Property (Appendix, Ex. 5 at 30), and their economic loss argument therefore
does not represent the correct measure of detriment for purposes of Section
363(h)(3) analysis. The Henshaws’ detriment is also not as significant as they
contend because the Property is not their principal residence and was purchased for
investment and estate planning reasons. In re Hatfield, 2009 WL 7751435 at *8
(B.A.P. 9th Cir. Mar. 17, 2009)(sale of property pursuant to Section 363(h)
approved, in part, because sale would not result in co-owner’s displacement]. In
other words, a sale will not cause the Henshaws to be uprooted from their home, and
any stress they experience would be expected to be relatively modest. Moreover, as
suggested by the bankruptcy court, one could reasonably expect a sale of less than
the whole Property to be more, not less, stressful to the Henshaws because they
would then be “co-owners of the property with a stranger.” Appendix, Ex. 3 at 5
(July 10, 2013 Order).
In short, the bankruptcy court fully evaluated the Section 363(h)
considerations upon ruling on the Trustee’s Motion for Summary Judgment, and this
Court finds no error evident in that evaluation.
For the foregoing reasons, the bankruptcy court’s March 13 and July
10, 2013 Orders are hereby AFFIRMED.
IT IS SO ORDERED.
Dated: January 13, 2014, at Honolulu, Hawaii.
/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge
In Re: Michael Dylan Henshaw, Debtors /Philip Henshaw, et al. v. Dane S. Field;
CV 13-00388 DKW-KSC; ORDER AFFIRMING BANKRUPTCY COURT’S
ORDERS GRANTING TRUSTEE’S MOTION TO DISMISS
COUNTERCLAIM AND GRANTING TRUSTEE’S MOTION FOR
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