UNITED
STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION
IN RE:
HNRC
DISSOLUTION CO. CASE NO. 02-14261
DEBTOR
MEMORANDUM OPINION AND ORDER
Sovereign Pocahontas Company (“Sovereign”) has moved
the court for an Order Determining the Status of Contracts and Leases and
Enforcing Confirmed Plans and Sale Order (Doc. #5307). In its motion, Sovereign seeks an order of
the court determining that the debtor assumed, as part of its confirmed plans
of reorganization herein, an agreement between debtor East Kentucky Energy
Company (“Debtor”) and Sovereign. An
objection has been filed by First Century Bank, NA (“First Century”) who, as
trustee for various individuals, was the successor party to a coal lease with
Sovereign which was assigned by Sovereign to Debtor. That lease involves coal
properties located in West Virginia and known as the Closterman Lease involving
approximately 11,000 acres. First Century
has also filed an adversary proceeding and moved to continue the hearing on
Sovereign’s motion contending that the issues before the court must be decided
in an adversary proceeding. Sovereign
has filed its reply to the response of First Century.
Memoranda have been filed by Lexington Coal Company
(Doc. #5405) and International Coal Group (Doc. #5397). Cotiga Development Company has filed a
response (Doc. #5408) in opposition to Sovereign’s motion. Sovereign contends that the Debtor expressed
its intent to assume and assign the contract at issue pursuant to §365 of the
Bankruptcy Code and that its contract is listed in the Amended and Restated
Asset Purchase Agreement, the debtors’ reports of sale of their assets and the
order approving those sales and that an amount to cure the default in the
Debtor’s contract with Sovereign is listed in those documents indicating a
clear intent to assume Sovereign’s contract with the Debtor. The contract between Sovereign and the
Debtor is an “override” contract wherein the Debtor undertook to mine the coal
and make payments to First Century and pay an override to Sovereign for the
coal mined. Sovereign argues that,
based upon these documents and its belief that its contract was being assumed
by the Debtor to be assigned to the purchaser, it did not object to the
proceedings which resulted in the sale of the Debtor’s assets and a final order
confirming the debtors’ plans and recognizing the sale of debtors’ assets.
In response, First Century, as successor trustee to
the lease (which was originally between Debtor and The First National Bank of
Bluefield) contends that the Closterman Lease was not assumed by the Debtor
because, after a series of orders extending the time for the debtors to assume
or reject the Marrowbone Leases, the time on the final extension expired
September 29, 2004 without assumption.
Sovereign’s Reply (Doc. #5405) points out that, prior
to the September 29, 2004 expiration of the last extension to assume Marrowbone
Leases, a sale was conducted and plans of reorganization were confirmed and are
now final and provide for the assumption of the leases in question and the
curing of defaults as required upon such assumption and assignment by the
Debtor. Sovereign contends that
confirmation of the plans gives a res judicata effect to the terms of the plans
and any matters that could have been raised.
International Coal Group (“ICG”) points out that the
Closterman Heirs’ Lease property is located primarily in the Jennies Creek area
of Mingo County, West Virginia and partially in the adjacent Marrowbone
area. ICG further argues that First
Century raised no objection to the assumption and assignment of the lease in
the confirmation and sale process and its only previous objection has been to
the cure amount. Apparently, First
Century claims a “lost coal” claim that is contested but apparently does not
contest certain other sums listed in the aforementioned documents which would
be necessary to cure the lease when assumed.
ICG, Lexington Coal Company and one other purchaser were the prevailing
bidders at the auction for the assets of all of the debtors. ICG has attached to its memorandum the
Newcoal APA Schedule B and points out that the Closterman Heirs’ Lease was
identified for the area Jennies Creek and fell within the agreement’s
definition of executory contracts which were assumed. ICG contends that its agreement and the documents show that ICG
purchased the portions of the Closterman Heirs’ Lease with respect to the Jennies
Creek area only. It contends that “Oldcoal,
LLC”, now Lexington Coal Company, LLC (“Lexington Coal”) assumed any remaining
balance of the Closterman Leases not assumed by ICG.
Lexington Coal supports the Sovereign motion and
points out that Lexington Coal, as successor to Oldcoal, in its APA, assumed
the balance of the Closterman Leases.
It points out to the court the importance of the assumption of these
leases in the Marrowbone Complex to the debtors’ confirmed plans of
reorganization.
Cotiga Development Company Limited Partnership and
Twelvepole Limited Partnership (“Cotiga”) have filed their response in support
of the position of First Century.
Although Cotiga is not involved in the Closterman Lease in question
here, Cotiga points out that its situation is similar and its concern about the
effect that the ruling of the court in the Closterman Lease matters may have
upon its contracts. It urges the court
not to rule upon the matter and challenges the procedure used in bringing the
question before the court and requests a continuance of the matter. Cotiga argues that the Marrowbone leases
were rejected as of September 29, 2004 at the expiration of the time provided
in the Sixth Extension Order (Doc. #4025).
First, with respect to the motions to continue the
proceeding, the court has heard argument on the matter and believes the issues
have been fully briefed and the court is prepared to decide the matter at this
time. The motions to continue will,
therefore, be overruled.
With respect to the challenge to the jurisdiction and
the procedure in deciding these matters, it appears that the court is being
requested to interpret its own orders in the form of, inter alia, the
orders extending time to assume or reject leases, the orders approving asset
purchase agreements, and the orders confirming plans of reorganization. As such, this court is in a better position
than any other court to interpret and give effect to its own orders.
The Newcoal APA (Doc. #3172) lists the contract with
Sovereign as a non-executory contract in Schedule 2.1(a)(vii) attached
thereto. Schedule 2.1(b) to that Asset
Purchase Agreement identifies the Closterman Heirs’ Lease as a lease being
assumed and assigned to Newcoal and refers to the area as Jennies Creek. The Oldcoal APA appears to entitle Oldcoal
to any and all other portions of the Closterman Lease and require the
assumption thereof by the Debtor.
Schedules 2.1(a)(vii) and 2.1(b) to the Newcoal APA identify an override
agreement and assignment between the Debtor and Sovereign which is clearly the
contract at issue herein. As reflected
by the debtors’ report of sale (Doc. #3824) and the order approving the sale
(Doc. #4085), cure amounts are listed for Sovereign and for First Century.
This set of facts, in which the Debtors listed
Sovereign as a contract that was not executory but provided for the cure
amounts which Sovereign did not object to, were all adopted by and assumed in
the plans of reorganization confirmed by the court in this matter. Those plans of reorganization are final
orders of this court and res judicata applies to prevent relitigating the terms
thereof. No contract between the Debtor
and First Century (or its predecessor trustee) has been offered in
evidence. The only agreement by which
the Debtor claimed an interest in the Closterman Lease was by virtue of its
contract with Sovereign. Any assumption
of the Debtor’s contract relating to the Closterman Lease property necessarily
involves the Sovereign assignment since that is the source of the Debtor’s
interest in the Closterman Lease property.
The Debtor clearly expressed its intention to assume the First Century
lease as part of the confirmation of the plans of reorganization in these cases
and assumption, in these circumstances, means assumption of the Sovereign
agreement and that assumption is, in absence of agreement to modify between the
parties, cum onere. City of Covington v. Covington Landing Ltd.
Partnership, 71 F. 3d 1221 (6th Cir. 1995). The court holds that the unequivocal intent
of the debtor to assume the coal lease in issue, the listing of cure amounts
for the Sovereign Pocahontas agreement and the approval of the payment of those
amounts by the Debtor to cure defaults in the agreement indicate Debtor’s
intention to assume the Sovereign Agreement and Closterman Lease and assign
that lease to Newcoal and Oldcoal. As
such, the parties should be directed to proceed to carry out the terms of the
confirmed plans of reorganization. It
is therefore ORDERED AS FOLLOWS:
1) The motions to continue the hearing on the motion of Sovereign
Pocahontas Company are hereby OVERRULED;
2) The request for relief by First Century Bank, NA, trustee, be,
and the same hereby is, OVERRULED; and
3) The motion of Sovereign Pocahontas Company is SUSTAINED to the
extent set forth in the within Memorandum Opinion and the parties are ordered
to proceed forthwith to comply with the terms of the confirmed plans of reorganization
specifically with respect to assumption of the agreement with Sovereign
Pocahontas Company and the Closterman Lease property.
COPIES
TO:
Taft McKinstry, Esq.
Elizabeth Thompson, Esq.
Gregory Schaaf, Esq.
Patrick McLaughlin, Esq.
Joshua Taylor, Esq.
Michael Wiles, Esq.
Amy Purcell, Esq.