In re Finevest Foods, Inc.
| Decision Date | 28 March 1994 |
| Docket Number | Bankruptcy No. 91-614-BKC-3P1 to 91-619-BKC-3P1. Adv. No. 93-123. |
| Parties | In re FINEVEST FOODS, INC., et al., Debtors. LAND-O-SUN DAIRIES, INC., Plaintiff, v. WILLIAMS ENVIRONMENTAL SERVICES, INC., d/b/a Harmon Environmental Services, Inc., Defendant. |
| Court | United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Middle District of Florida |
Raymond Magley, Jacksonville, FL, for debtor.
John B. Macdonald, Jacksonville, FL, S. Gregory Joy, Atlanta, GA, for Williams Environmental.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This adversary proceeding seeking to determine the validity, priority and extent of lien came before the Court for trial on August 26, 1993. On May 13, 1993, this Court entered an order consolidating this adversary proceeding with plaintiff's objections to claim 3469, amended by claims 3778 and 3779, for all purposes. Accordingly, the adversary proceeding and objections to claims are considered jointly. Upon the stipulation of facts of the parties, pleadings and evidence, the Court enters these findings of fact and conclusions of law:
Stipulated Findings of Fact of the Parties1
Plaintiff, Land-O-Sun Dairies, Inc., and defendant, Williams Environmental Services, Inc., for the purpose of the above-styled bankruptcy cases and adversary proceeding, stipulate to the following:
1. Plaintiff owns a dairy product distribution facility in Columbia, Richland County, South Carolina (the "Property").
2. Defendant is an environmental contractor engaged in the business of performing environmental remediation services.
3. The Property is approximately five acres. There are two buildings on the Property. One building contains an office and warehouse space, and the other is used as a vehicle maintenance garage.
4. On March 9, 1990, plaintiff and defendant entered into a contract by which defendant agreed to, and did, remove from the Property six underground storage tanks contained in four separate underground tank pits designated Pits 1, 2, 3 and 4. Plaintiff has paid defendant in full for all services performed under this contract.
5. After the removal of the tanks, defendant determined that there was contamination in the surrounding soil in three of the four tank pits and possible contamination of the underground water on the Property.
6. On January 10, 1991, plaintiff and defendant entered into another contract (the "Contract") by which defendant agreed to conduct further soil testing and remediate the contaminated soil on the Property in and around Pits 1, 2, 3 and 4. A copy of the Contract is attached hereto as exhibit A2. A portion of Pit 4 is located under a corner of the office and warehouse building. Pit 3 is located adjacent to another corner of the office and administration building. Pit 2 is located adjacent to the maintenance building, and Pit 1 is located in the area of a gas pump service island. Subsequently, under the Contract, defendant installed wells for the purpose of sampling and testing ground water and sampled and tested the groundwater. (Plaintiff has paid defendant in full for the installation of these wells.) Plaintiff agreed to pay defendant for that portion of the work not paid for by the South Carolina Department of Health and Environmental Control.
7. On February 11, 1991 (the "Petition Date"), plaintiff filed its Chapter 11 petition in this Court.
8. On October 16, 1991, defendant filed in the office of the Clerk of the Court of Common Pleas of the Fifth Judicial Circuit in Richland County, South Carolina, and the Official Records of Richland County, South Carolina, a Notice and Certificate of Mechanic's Lien with a verified Statement of Account for work completed and amounts due as of July 19, 1991. This Notice and Certificate of Mechanic's Lien and the Statement of Account were served on plaintiff's registered agent in South Carolina on October 15, 1991. A certified copy of the Notice and Certificate of Mechanic's Lien and Statement of Account, and a certified copy of the Affidavit of Service for that Notice and Certificate of Mechanic's Lien and Statement of Account are attached hereto as Exhibit B.
9. On January 17, 1992, defendant filed a Petition for Foreclosure of Mechanic's Lien with the Court of Common Pleas of the Fifth Judicial Circuit in Richland County, South Carolina, for amounts due under the Contract for work performed by defendant up to and including July 19, 1991. This Petition and the Summons were served on plaintiffs registered agent in South Carolina on January 17, 1992. A certified copy of the Petition and Summons and a certified copy of the Affidavit of Service for that Petition for Foreclosure of Mechanic's Lien and Summons are attached hereto as Exhibit C.
10. On January 9, 1992, defendant filed in the United States Bankruptcy Court for the Middle District of Florida a Notice, a copy of which is attached hereto as Exhibit D, pursuant to 11 U.S.C. § 546(b) of the filing of defendant's Notice and Certificate of Mechanic's Lien filed in Richland County, South Carolina, on October 16, 1991. This Notice pursuant to 11 U.S.C. § 546(b) was served on plaintiff's counsel by defendant's counsel on January 9, 1992.
11. Defendant filed Notices of Lis Pendens in the Court of Common Pleas of the Fifth Judicial Circuit in Richland County, South Carolina, and the Official Records of Richland County, South Carolina, on January 13, 1992. These Notices of Lis Pendens were filed and served on plaintiffs registered agent in South Carolina on January 13, 1992. Certified copies of these Notices of Lis Pendens and certified copies of the Affidavits of Service for those Notices of Lis Pendens are attached hereto as Exhibits E and F.
12. On May 27, 1992, this Court entered an Order confirming plaintiff's plan of reorganization subject to defendant being permitted to maintain its claims for a secured interest and an administrative priority concerning the work performed by defendant on the Property.
13. On June 24, 1992, defendant filed in the Office of the Clerk of the Court of Common Pleas of the Fifth Judicial Circuit in Richland County, South Carolina, a second Notice and Certificate of Mechanic's Lien with a verified Statement of Account for the amounts due defendant under the Contract as of March 27, 1992, the date defendant completed its obligations on the Property under the Contract. This Notice and the Statement of Account were served on plaintiffs registered agent in South Carolina on June 24, 1992. A certified copy of the Notice and Certificate and Mechanic's Lien and Statement of Account and a certified copy of the Affidavit of Service for that Notice and Certificate of Mechanic's Lien and Statement of Account are attached hereto as Exhibit G.
14. On September 22, 1992, defendant filed a Petition for Foreclosure of Mechanic's Lien with the Court of Common Pleas of the Fifth Judicial Circuit in Richland County, South Carolina, for amounts due under the Contract as of March 27, 1992, the date defendant completed its work on the Property under the Contract. This Petition and the Summons were served on plaintiffs registered agent in South Carolina on September 22, 1992. A certified copy of the Petition and Summons and a certified copy of the Affidavit of Service for that Petition and Summons are attached hereto as Exhibit H.
15. On September 22, 1992, defendant filed in the United States District Court for the Middle District of Florida, Jacksonville Division, a Notice, a copy of which is attached hereto as Exhibit I, pursuant to 11 U.S.C. § 546(b) of the filing of defendant's Notice and Certificate of Mechanic's Lien filed in Richland County, South Carolina, on June 24, 1992. This Notice pursuant to 11 U.S.C. § 546(b) was served on plaintiff's counsel by defendant's counsel on September 22, 1992.
16. Defendant filed another Notice of Lis Pendens in the Court of Common Pleas of the Fifth Judicial Circuit in Richland County, South Carolina, and the Official Records of Richland County, South Carolina, on September 22, 1992. This Notice of Lis Pendens was served on plaintiff's registered agent in South Carolina on September 22, 1992. A certified copy of the Notice of Lis Pendens is attached hereto as Exhibit J. The Affidavit of Service for that Notice of Lis Pendens is found at the page of Exhibit H attached hereto.
17. Defendant has filed a second amended proof of claim in plaintiff's Chapter 11 case asserting a (i) secured claim in the amount of $247,552.78 based upon an alleged mechanic's lien on the Property for the services rendered pursuant to the Contract, (ii) an administrative expense claim in the amount of $49,201.05 for services rendered under the Contract after the Petition Date, and (iii) an unsecured claim in the amount of $115,809.93 for services unrelated to the Contract. Plaintiff has filed an objection to this claim.
18. Defendant has filed a third amended proof of claim in plaintiff's Chapter 11 case asserting a (i) secured claim in the amount of $225,775.13 based upon an alleged mechanic's lien on Property for the services rendered pursuant to the Contract, (ii) an administrative expense claim in the amount of $60,574.34 for services rendered under the Contract after the Petition Date and (iii) an unsecured claim in the amount of $116,509.96 for services unrelated to the Contract. Plaintiff objects to this claim to the extent not stipulated to in Paragraph 19 below of these stipulations.
19. Plaintiff agrees that it owes defendant a total of $225,775.13 for defendant's work on the Property under the Contract. Defendant remains unpaid for excavation of soil for the four pits on the Property, the testing of soil in the pits on the Property, the burning of soil removed from the four pits to remove petroleum constituents, the testing of soil removed from the four pits, and the replacement and backfilling into the four pits of successfully cleaned soil originally removed from the four...
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