UNITED
STATES BANKRUPTCY COURT
EASTERN
DISTRICT OF KENTUCKY
ASHLAND
DIVISION
IN RE:
HNRC DISSOLUTION CO. CASE
NO. 02-14261
DEBTOR
MEMORANDUM
OPINION
1. Introduction and procedural
background
This matter is before the court on a
Motion to Late File a Complaint Against Lexington Coal Company, LLC;
International Coal Group, Inc. and ICG Hazard, LLC to Establish Cure Amount for
Assumption and Assignment of Executory Contract (Doc. # 7128)(the “Motion to
Establish Cure Amount”) filed by Lewis Biggerstaff et al. (“the Biggerstaffs”)
on January 3, 2006. Lexington Coal
Company, LLC (“LCC”) and International Coal Group, Inc. and ICG Hazard, LLC
(collectively “ICG”) have filed responses (Doc. #s 7157 and 7159,
respectively). The Biggerstaffs were
parties to a coal lease agreement (as lessors) with Leslie Resources, Inc., one
of the former Debtors.
The Biggerstaffs had previously
filed an Application . . . for Administrative Expenses for Postpetition Lease
Payments for Wheelage of Coal (Doc. # 3275)(the “Administrative Expense Claim”)
on June 10, 2004, to which the former Debtors filed an Objection (Doc. #
3391). LCC filed its Objection to the
Administrative Expense Application (Doc. #6037) on May 5, 2005. All these matters were heard on January 19,
2006 and taken under consideration for decision.
2. Factual background
The Biggerstaffs entered into the coal lease agreement (”the
Lease”)in January 1997. It superceded
an earlier lease. Prior to the
execution of the Lease, the Debtor or its predecessors had mined the property
under the Lease (“the Leased Property”), and was also mining coal from other
properties and using an existing haul road (“the Haul Road”) to transport the
coal to the tipple. The Biggerstaffs
represent that they were assured by representatives of the Debtor that the Haul
Road was on the Leased Property, and were given a survey plat showing the
same. They represent that this plat
became a basis for the terms of the Lease which was then negotiated under the
presumption that the Haul Road was located on the Leased Property.
The Debtor paid the Biggerstaffs
wheelage under the Lease from 1997 to June 1999. After June 1999, the Debtor made no further wheelage payments
because it claimed that the Haul Road was not on the Leased Property, and that
therefore the Biggerstaffs had never been due any wheelage payments. The Biggerstaffs filed suit against the
Debtor in the Perry Circuit Court in Civil Action No. 01-CI-537, alleging that
the wheelage payments for the balance of 1999 and all subsequent years were
due. The suit proceeded to discovery,
and then was stayed upon the filing of the within case on November 14, 2002.
The sale of the Debtors’ assets
included the assumption and assignment of the Debtors’ interests in several
hundred executory contracts and unexpired leases to proposed purchasers. Cure claim procedures were implemented in
regard to the assumptions and assignments, beginning with the entry of the June
16, 2004 Order: (A) Approving (I) Auction Procedures, (II) a Breakup Fee, and
(III) Form and Manner of Notice, and (B) Setting Sale Hearing Date (the
“Bidding Procedures Order”). The
Bidding Procedures Order required the Debtors to provide notice to parties to
executory contracts and unexpired leases, such as the Biggerstaffs, of cure
amounts for the assumption and assignment of each agreement (the “Proposed Cure
Claims”), and provided procedures for such parties to object to the Proposed
Cure Claims (the “Procedures for Cure Claim Objections”). (Bidding Procedures
Order ¶ N).
Under the Procedures for Cure Claim
Objections, claimants wishing to contest their Proposed Cure Claims had to file
their Cure Claim Objections on or before August 31, 2004, the deadline for
filing objections to the confirmation of the Debtors’ Plans. (Bidding Procedures Order ¶ P). Failure to timely file such objections
barred claimants from later objecting to the Proposed Cure Claims or from
subsequently asserting any additional Cure Claims or other claims against the
Debtors or the purchasers of the Debtors’ assets. (Bidding Procedures Order ¶ Q).
The Debtors gave notice of their
Proposed Cure Claims in their Third Amended Disclosure Statement, which
contained an exhibit listing all Cure Claims (the “Cure Claim Schedule”). The Disclosure Statement was filed and served
upon counsel for the Biggerstaffs on July 11, 2004, and a copy mailed to the
Biggerstaffs on July 21, 2004. The
Disclosure Statement provided that the cure amount for each assigned contract
or lease was $0.00, unless some other cure amount was provided for on the Cure
Claim Schedule. The Biggerstaffs’ cure
amount was not listed as other than $0.00 on the Cure Claim Schedule. The Biggerstaffs did not file a Cure Claim
Objection prior to the expiration of the August 31, 2004 deadline. In June 2004, the Biggerstaffs filed proofs
of claim for rejection of an executory contract and for administrative expenses
arising from the post-petition transportation of coal, as set out above. The former Debtors objected to the
Administrative Expense Claim, and the parties apparently began discovery. Activities involving the Debtors ceased when
their assets were sold and the agreements to which they had been parties were
assumed and assigned.
The Debtors’ Plans were confirmed on
September 16, 2004. In addition, the sale of their assets and assumption and
assignment of certain agreements were approved by an order entered on the same
date (the “Sale Order”). The Sale Order
protects the purchasers of the Debtors’ assets such as LCC or ICG from claims
that arise from or relate to those former assets, including litigation relating
to cure claim disputes that did not comply with the Procedures for Cure Claim
Objections. (Sale Order ¶¶ 6, 11, 14
and 24).
3. Discussion
a.
The Motion to Establish Cure Amount
The Biggerstaffs’ journey through
this case has been long and complicated.
Their actions early on were apparently dictated by their belief, whether
justified or not, that the Lease had been rejected. The Biggerstaffs’ Motion to Establish Cure Amount is based on
their contention that they did not know until it was too late that the Lease
had been assumed, and that they had, in fact, been misled by assurances made by
representatives of LCC that the Lease had been rejected.[1] They state that but for these
representations, they would have filed an exception to the $0.00 cure amount
relating to the assumption of the Lease.
They further make the unsupported statement that their failure to object
to the cure claim amount was due to “excusable neglect.”
Even if the Biggerstaffs had made an
argument of excusable neglect under Federal Rule of Civil Procedure 60(b),
which they have not, it would be unavailing.
It is clear from the record in this case that the Biggerstaffs had ample
and timely notice of the treatment of the Lease and the cure amount allotted to
it in the Debtors’ Disclosure Statements and Plans and of the applicable
deadlines. Their reliance on any
representations to the contrary was at their own risk. The deadline for filing Cure Claim
Objections passed more than a year ago.
There is simply nothing in the record before the court that would
justify allowing the Biggerstaffs to file a complaint to establish cure amount
now.
b. The Administrative Expense Claim
The Administrative Expense Claim
made pursuant to Bankruptcy Code section 503(b)(1)(A) alleges that the Debtor
owed the Biggerstaffs post-petition wheelage payments under the Lease. As set out above, wheelage payments had been
made over a period of time and then stopped when a controversy arose over
whether the Haul Road was located on the Biggerstaffs’ property. The Biggerstaffs state that the estate has
benefitted from “extensive coal hauling by the debtor . . .” They have set out the wheelage rate per ton
of coal hauled under the Lease, but have not stated an amount due. Section 503(b)(1)(A) provides, in pertinent
part, “[A]fter notice and a hearing, there shall be allowed administrative
expenses, . . .including . . . the actual, necessary costs and expenses of
preserving the estate.” 11 U.S.C.
§ 503(b)(1)(A). The administrative
claimant has the burden of proving that costs and expenses are “actual” and
”necessary” by a preponderance of the evidence. Solow v. American Airlines, Inc. (In re Midway Airlines, Inc.),
221 B.R. 411, 446 (Bankr. N.D. Ill. 1998).
Further, the evidentiary burden never shifts from the party seeking
allowance of an administrative claim. Id.
at 447.
In this instance, however, it is
unnecessary for the court to engage in a section 503(b)(1)(A) analysis. Cure claims and administrative expense
claims are not the same, and an administrative expense claim may be asserted in
addition to a cure claim where a debtor is liable to a provider for use of its
property during the administration of the case. A purported administrative expense claim may be subsumed in a
cure claim, however, where, as here, the administrative expense claim is for
amounts due under the contract at issue, i.e., the Lease. Since the court has already determined that
the Biggerstaffs failed to object timely to the $0.00 cure claim amount
allotted to them upon the assumption of the Lease, and that such failure to
object is fatal to their attempt to establish a cure amount, their
administrative expense claim must fail as well.
Based upon all of the foregoing, it
is the opinion of this court that the Biggerstaffs’ Motion to Late File a
Complaint Against Lexington Coal Company, LLC; International Coal Group, Inc.
and ICG Hazard, LLC to Establish Cure Amount for Assumption and Assignment of
Executory Contract and their Application for Administrative Expenses for
Postpetition Lease Payments for Wheelage of Coal should be overruled. An order in conformity with this opinion
will be entered separately.
Copies to:
Joe F.
Childers, Esq.
Richard
Boydston, Esq.
Patricia K.
Burgess, Esq.
[1] At the hearing on
this matter, counsel for the Biggerstaffs stated that it was representatives of
the Debtor, and not LCC, that had assured the Biggerstaffs that the Lease had
been rejected.