In re Srko Family Ltd. P'ship, Case No. 10–13186 SBB

• Decision Date: 15 December 2014
• Docket Number: Case No. 10–13186 SBB
• Citation: 523 B.R. 224
• Court: U.S. Bankruptcy Court — District of Colorado
• Parties: In re: The SRKO Family Limited Partnership EIN: 20–033442, Debtor.

523 B.R. 224

In re: The SRKO Family Limited Partnership EIN: 20–033442, Debtor.

Case No. 10–13186 SBB

United States Bankruptcy Court, D. Colorado.

Signed December 15, 2014

Dee P. Wisor, Butler Snow LLP, Kathryn Guild Foley, Jenny M.F. Fujii, Lee M. Kutner, Harrie F. Lewis, David M. Miller, Carolin Topelson, Patrick D. Vellone, Denver, CO, for Debtor.

ORDER APPROVING MODIFIED RESERVED PROVISIONS TO THE CONFIRMED PLAN OF REORGANIZATION

Sidney B. Brooks, United States Bankruptcy Court Judge

THIS MATTER came before the Court on October 16, 2014 for an evidentiary hearing on confirmation of the Second Amended Plan of Reorganization Proposed by the Unofficial Mechanics Lienholder Committee (the “Committee”) filed on August 28, 2014 [Docket # 1158], as modified by the Modification thereto (the “First Plan Modification”) filed on October 6, 2014 [Docket # 1195] and the Second Modification thereto (the “Second Plan Modification”) filed on October 15, 2014 [Docket # 1203] (collectively, the “Plan”) and the only Objection to the Plan filed by Jannie Richardson on October 1, 2014 [Docket # 1194].

On October 20, 2014, the Court entered its Findings of Fact, Conclusions of Law, and Order Confirming the Plan (the “Confirmation Order”) [Docket No. 1209]. Paragraph XX of the Confirmation Order reserved two Plan Provisions concerning 1) the request for a permanent injunction against interference by Janie Richardson, as set forth in Section V.G of Second Plan Modification, and (2) the retention of jurisdiction post-petition, as set forth in Section VI.P.13 of the Second Plan Modification for later determination by this Court (the “Reserved Provisions”).

This Court, having considered the Plan and the Objections to the Reserved Provisions, the testimony at the evidentiary hearing, the arguments of counsel, the bankruptcy case files for the Debtor and Jannie Richardson,¹ and applicable legal authority, hereby enters the following Order approving the Reserved Provisions in modified forms, as provided herein.

A. FACTUAL BACKGROUND

The SRKO Bankruptcy Case

1. On February 19, 2010, Debtor SRKO Family Limited Partnership (“SRKO”) filed the within Chapter 11 Bankruptcy case (the “SRKO Case”).

2. At the time of the filing of the case, SRKO was the owner and developer of the project known as Colorado Crossing.

3. SRKO was owned by three separate trusts originally established by Jannie Richardson.

4. The SRKO Bankruptcy Case was authorized by Ms. Richardson in her capacity as a general partner and the authorized agent of SRKO.

The Jannie Richardson Bankruptcy Case

5. On March 25, 2010, Ms. Richardson filed her individual Chapter 11 bankruptcy case, Case No. 10–16450–SBB (the “Richardson Case”).

6. In Ms. Richardson's case, the United States Trustee filed a Motion to Dismiss the Case for her various failures to disclose information on the bankruptcy schedules and statement of financial affairs; failure to file Monthly Operating Reports; and failure to file a report pursuant to Fed. R. Bankr.P. 2015.3. [See Docket # 81, “United States Trustee's Motion to Dismiss or Convert Chapter 11 Case Pursuant to 11 U.S.C. § 1112(B) ” (the “Motion to Dismiss”) ].

7. Following an evidentiary hearing on the Motion to Dismiss, C. Randel Lewis was appointed the trustee in Ms. Richardson's bankruptcy case. [See Docket # 247 in Richardson Bankruptcy Case, “Order Regarding United States Trustee's Motion to Dismiss or Convert Chapter 11 Case and Directing United States Trustee to Appoint Chapter 11 Trustee”; see also Docket # 265, “Order Approving United States Trustee's Appointment of Chapter 11 Trustee”].

8. Accordingly, pursuant to this Court's Order, Mr. Lewis became the manager of the limited liability company that served as the general partner to SRKO. [Id. ]

Motions For Sanctions against Ms. Richardson filed in the SRKO and Richardson Cases

9. On or around February 15, 2013, Mr. Lewis and Counsel for SRKO filed in both the SRKO and Richardson Case a Combined Motion seeking, inter alia, sanctions against Ms. Richardson for Civil Contempt of Court. [See Combined Motion Docket # 901 in SRKO Case and Docket # 814 in Richardson Case].

10. The Combined Motion alleged that Ms. Richardson, her friends and family members, and other affiliated companies controlled by Ms. Richardson had committed numerous willful violations of the automatic stay by taking various actions to obtain and/or control property of the SRKO and the Richardson bankruptcy estates. [See id, pp. 10–14, ¶¶ 36–43].

11. On June 14, 2013, upon stipulation of the parties, this Court issued a Final Agreed Order on the Combined Motion (the “Agreed Order”). [See Docket # 968, SRKO Case and Docket # 923, Richardson Case,].

12. Paragraph 4 of the Agreed Order provides a permanent injunction against Ms. Richardson and others, as follows:

IT IS FURTHER ORDERED that Jannie Richardson, by her approval of this Order, acknowledges and agrees that she has no authority to act on behalf of the SRKO bankruptcy estate or the Jannie Richardson bankruptcy estate, or any other related entities controlled by the Trustee pursuant to this Court's stipulated order designating the Trustee to manage and control the Debtor's affiliated entities dated June 7, 2011 (Richardson Docket No. 367), and any other entities or organizations in which the Richardson bankruptcy estate or the SRKO bankruptcy estate have a legal or equitable interest or a direct or indirect economic interest, including, but not limited to, the Colorado Crossing Metropolitan Districts, and that she and her agents, servants, employees, and attorneys, and those persons in active concert or participation with her who receive actual notice of this Order by personal service or otherwise, and each of them, are permanently enjoined and restrained from directly or indirectly (a) holding themselves out or purporting to act as authorized agents of either the SRKO bankruptcy estate or the Jannie Richardson bankruptcy estate, (b) interfering with the conduct or activities of either the SRKO bankruptcy estate or the Jannie Richardson bankruptcy estate, and (c) using, dealing with or transferring any property of the SRKO bankruptcy estate or the Jannie Richardson bankruptcy estate without the express written consent of the Trustee or an order from this Court, (d) provided, however, nothing herein shall prohibit (i) the filing of pleadings with this Court or (ii) Jannie Richardson's use or dealing with property brought into Jannie Richardson's estate under § 1115, but the Trustee does not waive any rights relating to such property.

[Id., ¶ 4, emphasis added].

13. Six months after this Court issued the Agreed Order, on December 13, 2013, Mr. Lewis filed a Motion to Enforce the Agreed Order and Request for Sanctions and an Emergency Hearing in the Richardson Case (the “Motion for Enforcement”). [Docket # 973, Richardson Case].

14. The Trustee alleged in his Motion for Enforcement that Ms. Richardson had refused to comply with a different paragraph of the Agreed Order directing her to “resign from said boards when requested in writing by the Trustee or SRKO[.]” [Id. at 2, ¶ 4].

15. On December 16, 2013, Mr. Lewis withdrew his Motion for Enforcement stating that the “after the filing of [the] Motion [for Enforcement], and apparently prompted by said filing, Ms. Richardson signed the letter of resignation....” [Docket # 975, Richardson Case at 1].

Committee's Chapter 11 Plan in the SRKO Bankruptcy Case

16. On August 28, 2014, in the SRKO case, the Informal Lienholder Committee (the “Committee”) filed with the Court a proposed Second Amended Plan of Reorganization (the “Committee's Plan”). [Docket # 1158]. The same day, the Committee filed a Supplement to the Committee's Plan. [Docket # 1159, SRKO Case].

17. On October 6, 2014, the Committee filed a Modification to the Committee's Plan (the “First Plan Modification”). [Docket # 1195, SRKO Case].

18. The only objection to confirmation of the Committee's Plan was filed by Ms. Richardson on October 1, 2014 (the “Richardson Objection”). [Docket No. 1194, SRKO Case].

19. Initially, Ms. Richardson filed objections to following two provisions of the Committee's Plan: (1) the Exculpation Relief Relating to Claims and Releases set forth in Sections V.E. and F. of the Plan; and (2) the Injunctive Relief Provision set forth in Section V.G. of the Plan. [Id. ].

20. In Response to Ms. Richardson's objection, on October 15, 2014, the Committee filed a Second Modification to the Committee's Plan (the “Second Modification”), amending the provision on V.G. of the Plan to apply only to Ms. Richardson. [Docket # 1203, SRKO Case at 3, ¶ V.G.].

21. Provision V.G. under the Second Modification reads as follows:

ARTICLE V EFFECT OF CONFIRMATION OF THE PLAN

G. Injunction Against Interference by Jannie Richardson. JANNIE RICHARDSON IS PERMANENTLY ENJOINED FROM, DIRECTLY OR INDIRECTLY, HOLDING HERSELF OUT AS, OR PURPORTING TO ACT AS, AN AUTHORIZED AGENT OF REORGANIZED SRKO, AND FROM ENTERING ANY PROPERTY OWNED BY REORGANIZED SRKO WITHOUT THE PRIOR WRITTEN CONSENT OF AN AUTHORIZED AGENT OF REORGANIZED SRKO.

[Id., emphasis in original].

22. Additionally, the Second Modification added a new paragraph VI.P.13 to the Committee's Plan, which provision proposed for this Court to retain jurisdiction in certain matters arising post-confirmation. [Id. at 4].

23. New Provision VI.P.13. reads as follows:

ARTICLE VI. OTHER PLAN PROVISIONS

P. Retention of Jurisdiction

...

13. Hear any claims or causes of action asserted by the Plan Proponents or REORGANIZED SRKO against any Richardson Party arising after the Effective Date involving Colorado Crossing.

[Id., emphasis in original and supplied].

24. The Confirmed Plan defines “Richardson Party ” to include—

... any Insider or Affiliate of the Debtor, including, but not limited to, Jannie Richardson, Duk, LLC, Moon, LLC, The Allen Richardson Dynasty Trust; Allen Richardson; The Jessica Stinson Dynasty Trust; Jessica Stinson; The Jeffrey Stinson Dynasty Trust;

...