Frank v. Frithiof (In re James)

• Decision Date: 04 March 2011
• Docket Number: Adversary No. 1–05–ap–00183MDF.,Bankruptcy No. 1–05–bk–05108MDF.
• Citation: 463 B.R. 719
• Parties: In re Barry JAMES and April James, d/b/a Prehistoric Journeys, Debtors.Lawrence G. Frank, Trustee, Plaintiff v. Ron Frithiof, Kim Hollrah, Melody Harrell and Fred Debrovner, Defendants.
• Court: U.S. Bankruptcy Court — Middle District of Pennsylvania

463 B.R. 719

In re Barry JAMES and April James, d/b/a Prehistoric Journeys, Debtors.Lawrence G. Frank, Trustee, Plaintiff
v.
Ron Frithiof, Kim Hollrah, Melody Harrell and Fred Debrovner, Defendants.

Bankruptcy No. 1–05–bk–05108MDF.

Adversary No. 1–05–ap–00183MDF.

United States Bankruptcy Court, M.D. Pennsylvania.

March 4, 2011.

[463 B.R. 722]

Lawrence G. Frank, Thomas, Long, Niesen and Kennard, Harrisburg, PA, for Plaintiff.

Jeffrey R. Boswell, Boswell, Tintner, Piccola and Alford, Harrisburg, PA, Kathleen V. Yurchak, Goodall and Yurchak PC, State College, PA, for Defendants.

Casey Olson, Belle Fourche, SD, pro se.OPINION MARY D. FRANCE, Chief Judge.I. Background

Barry and April James (“Debtors”) operate a business ¹ known as “Prehistoric Journeys” in which they prepare and mount the skeletal remains of dinosaurs and other prehistoric animals for public or private display. Barry James (“Barry”) is a vertebrate paleontologist and April James (“April”) has a master's degree in anthropology. Since 1986, they have prepared and mounted over 150 specimens, which are displayed in various museums and private collections.

On August 4, 2005, Debtors filed a Chapter 7 bankruptcy petition. Lawrence G. Frank (the “Trustee”) was appointed to administer the estate. One of the estate assets reported on Debtors' schedules was an account receivable due from Ron Frithiof (“Frithiof”) in the amount of $75,000. This purported receivable arose from services Debtors had provided preparing the fossilized remains of a juvenile Tyrannosaurus rex (nicknamed “Tinker”). On October 26, 2005, the Trustee filed the within Complaint to recover this receivable, asserting that Tinker was subject to an artisan's lien to secure the estate's interest in the value of professional services rendered by Debtors pre-petition.² The Trustee also argued that he was entitled to a recovery

[463 B.R. 723]

in quantum meruit from the Defendants. For the reasons set forth below, judgment will be granted in favor of the Trustee and against Defendants Frithiof and Hollrah on the artisan's lien claim and against the Trustee and in favor of Defendants on the quantum meruit claim.³

II. Factual Findings⁴

The Trustee's claim arises from a contract (the “Tinker Contract”) Debtors entered into on January 31, 2003 with Frithiof and Kim Hollrah (“Hollrah”) jointly as “The Tinker Group” and Fred Debrovner (“Debrovner”) and Cynthia Norrgran (“Norrgran”) for Colorado Dinosaur Co., Inc. (“Colorado Dinosaur”). ⁵ In the Tinker Contract, Debtors and Colorado Dinosaur were to prepare and mount the fossil and to help market it for sale on behalf of Frithiof and Hollrah, who owned the remains under the terms of the lease for the site where the bones were discovered.⁶

Not all of the parties to the Tinker Contract knew each other before deciding to pursue this business venture. Debtors met Debrovner through his wife, Norrgran, who previously had been a client of Prehistoric Journeys. In late 2002 or early 2003, Debtors, Debrovner, and Norrgran discussed a separate project in which the parties would fabricate and sell dinosaur skeleton replicas incorporating dinosaur bones or bone fragments. In order to pursue this venture, Debtors moved from Sunbury, Pennsylvania to Norrgran's and Frithiof's home in Colorado, nicknamed “Jurassic Pines.” At Jurassic Pines, Debtors were provided with living quarters and a workshop.⁷

Debrovner and Frithiof became acquainted after Debrovner saw specimens from Frithiof's personal dinosaur bone collection at a Denver fossil show. Debrovner then contacted Frithiof to discuss the possibility of a business arrangement through which Frithiof would supply bones or bone fragments to be incorporated into the replicas that Colorado Dinosaur and Prehistoric Journeys would manufacture. Sometime in late 2002 or early 2003, Debrovner, Frithiof, and Barry met at Frithiof's Texas ranch to discuss the business proposal in more detail. These negotiations culminated in the Tinker Contract under which Debtors would prepare and mount the Tinker skeleton in exchange for a percentage of the price ultimately obtained from a buyer after the project was completed. Within several weeks following the execution of this contract, Barry and Debrovner

[463 B.R. 724]

traveled to a facility in Iowa where approximately sixty bones belonging to the Tinker fossil were being stored, packed them into a truck, and drove them to Jurassic Pines. After a return trip to Pennsylvania, Debtors relocated to Colorado and began work on the Tinker project.

Around the same time Debtors signed the Tinker Contract, they entered into a second agreement (the “Jurassic Pines Agreement”) with Debrovner and Norrgran whereby Debtors would be permitted to use Jurassic Pines for preparing and mounting Tinker, as well as for other projects. Under the terms of the Jurassic Pines Agreement, Colorado Dinosaur would advance Prehistoric Journeys $50,000 “as deposit for the preparation and articulated mounting of Tinker,” which would be repaid when Tinker was sold.

In early May 2003, Frithiof twice visited Jurassic Pines. On his second trip, about May 12, 2003, Frithiof delivered the bones of two other specimens, a duckbill dinosaur, referred to as “TC,” ⁸ and a “tenaspondelosis” or dimetrodon.⁹ In a letter dated May 24, 2003 that April sent to friends describing Debtors' activities at Jurassic Pines, she states that “[t]his past Friday marked our eighth week in Colorado.” She further reports that in addition to Tinker, most of the bones for TC were at their workshop. She also remarks that during the week prior to her letter, Barry “focused” on a “unique little reptilian dinosaur,” which seems to be a reference to the dimetrodon. The dimetrodon had been prepared and mounted incorrectly, so Frithiof asked Barry to reassemble the specimen. When Frithiof visited Jurassic Pines in June, the dimetrodon was substantially completed.

After Debtors began working on Tinker and other dinosaur projects at Jurassic Pines, issues arose regarding title to the bones being excavated from a site in Harding County, South Dakota. Frithiof had first obtained Tinker bone fragments around 1998 after they were discovered on or near a South Dakota ranch. Frithiof, Hollrah, and Mike Harrell executed a ground lease with the ranch owner to allow them to hunt for more fossils on the site. At some point thereafter, Frithiof became aware that the location of the excavation site was adjacent to land owned by Harding County. In November 2000, Frithiof and Harding County executed a five-year ground lease granting Frithiof legal title to all fossils found on the county-owned property. However, on May 23, 2003, Harding County issued a notice rescinding the lease and, shortly thereafter, filed an action in the United States District Court for the District of South Dakota against Frithiof, Hollrah, Melody Harrell, and others. The notice asserted that the lease was invalid because Frithiof had negotiated it without disclosing that he previously had found valuable fossils on the property. Harding County alleged that the lease was invalid, accordingly any fossils in The Tinker Group's possession or control had been improperly removed and must be returned.

After receiving notice that Harding County had rescinded the lease, Frithiof drove to South Dakota to retrieve the remaining fossils extracted from the site.

[463 B.R. 725]

En route back to Texas, he stopped at Jurassic Pines on June 7, 2003 to inform Debrovner and Barry of the county's action. Because of the pending litigation, Frithiof directed the parties to stop working on Tinker. Debtors continued to work on other projects, including the duckbill dinosaur and the dimetrodon. After Debrovner requested Debtors to pay $2500 per month in rent for the use of the residence and workshop, Debtors decided to move back to Pennsylvania. The parties agreed that Debtors would take the Tinker fossil with them and recommence work in the event that the Harding County litigation was resolved in favor of The Tinker Group. Debtors continued to work on other projects once they returned to Pennsylvania, but no further work was performed on Tinker.

In early 2005, Barry contacted Frithiof requesting that he either advance funds for them to continue their work on preparing and mounting the duckbill skeleton or compensate them for their previous work and expenses on the Tinker project. When the parties were unable to come to an agreement, Debtors' filed their bankruptcy case.

When Debtors filed their petition, the South Dakota case against Frithiof and others was still pending. On June 2, 2006, the District Court issued an opinion and order in which it found that the lease was invalid and granted summary judgment in favor of Harding County. See Harding County, South Dakota v. Frithiof, 2006 WL 1541017 (D.S.D.). This Order was appealed to the Court of Appeals for the Eighth Circuit, and a decision reversing and remanding the case to the district court was issued on April 4, 2007. See Harding County, South Dakota v. Frithiof, 483 F.3d 541, 2007 WL 1012979 (8th Cir.). On February 5, 2008, the District Court issued a ruling granting summary judgment in favor of Frithiof. Harding County appealed this ruling to the Court of Appeals, which affirmed summary judgment for Frithiof on August 10, 2009. This decision effectively validated the Harding County lease and allowed Frithiof to resume excavation of the remaining bones at the site.¹⁰

During the time he worked at Jurassic Pines, Barry extracted bone fragments from the larger blocks of native rock and soil in which the Tinker fossil was encased. There were twenty-eight of these encasements, referred to as “plaster jackets” because of the layer of protective plaster that had been applied to them in the field at the time of extraction. The sizes of the jackets varied and relate to the amount of time and effort necessary to remove the fossils, but the parties' descriptions of the...