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Barnes v. 309 Rte 100 Dover LLC

Barnes v. 309 Rte 100 Dover LLC

United States District Court for the District of Vermont

November 6, 2020, Decided; November 6, 2020, Filed

Case No. 2:20-cv-00045

Opinion

OPINION AND ORDER GRANTING APPELLEES HERMITAGE MEMBER GROUP, INC.'S, BARNSTORMER SUMMIT LIFT, LLC'S, AND TRUSTEE RAYMOND J. OBUCHOWSKI'S MOTION TO DISMISS (Docs. 5, 9, & 10)

In these consolidated appeals, James R. Barnes ("Appellant"), an unsecured creditor of and former equity holder in an 838-acre ski and golf resort located in the towns of Wilmington and Dover, Vermont (the "Club"), appeals two Orders issued by the United States Bankruptcy Court for the District of Vermont (the "Bankruptcy Court"), Case No. 19-10214: (1) a March 19, 2020 Order1 denying Appellant's emergency motion to postpone the March 20, 2020 sale hearing regarding the Club, Dkt. No. 437 (the "Delayed Relief Order"); and (2) an April 1, 2020 Order authorizing Appellee Trustee Raymond J. Obuchowski (the "Trustee") to sell the Club to Appellee Hermitage Member Group, Inc. (the "Member Group"), Dkt. No. 462 (the "Sale Order").

Appellant frames the issue on appeal as follows:

Did the Bankruptcy Court err in approving [*7]  the sale of all or substantially all of the Debtors' assets and related relief under 11 U.S.C. §§[ ]105(a) and 363 to Hermitage Club Members Group, Inc. and, as backup bidders, Rainmaker Mountain LLC and Boyce USA, Inc.?

(Doc. 5 at 7, ¶ 30.)

On June 8, 2020, the Member Group moved to dismiss both appeals for mootness because the authorized sale has now taken place, rendering this matter moot and the court without jurisdiction to consider the appeals pursuant to Section 363(m) of the United States Bankruptcy Code, 11 U.S.C. § 363(m). (Doc. 5.) Appellee Barnstormer Summit Lift, LLC ("Barnstormer") filed a memorandum in support of the motion to dismiss on June 19, 2020 (Doc. 9), and the Trustee filed a memorandum in support and joinder on June 23, 2020. (Doc. 10.)

On July 8, 2020, Appellant opposed the motion to dismiss, arguing that the sale was not made to a good faith purchaser and that the Bankruptcy Court clearly erred in finding the Member Group was not an "insider." The Member Group, Barnstormer, and the Trustee replied on July 20, 2020, at which time the court took the pending motion under advisement.

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2020 U.S. Dist. LEXIS 209188 *; 2020 WL 6565197

JAMES R. BARNES, Creditor and Equity Holder, Appellant, v. 309 RTE 100 DOVER LLC, AD HOC COMMITTEE OF UNSECURED CREDITOR/MEMBERS OF HERMITAGE INN REAL ESTATE HOLDING COMPANY LLC AND THE HERMITAGE CLUB, LLC, ANA CLADERA, AW REALTY LLC, BARNSTORMER SUMMIT LIFT, LLC, BERKSHIRE BANK, BETTINA BOSMA, BOBBI RESEK, BOUYNE USA, INC., BOXER BLAKE & MOORE PLLC, BOYNE USA, INC., BRUCE THEUERKAUF, CAROL H. BUTLER TRUST, CHAD BULLOCK, CHARLES COLLINS, COLD BROOK FIRE DISTRICT, DAN SOLAZ, DEBORAH STRAWN-PERKINS, ELLIOT COOPERSTONE, FTI CONSULTING, INC., Alan Tantleff Receiver, GARY ROTHSCHILD, HERMITAGE CLUB, LLC, HERMITAGE INN, LLC, HSM PARTNERS, LLC, JENNIFER GOODMAN, JOHN DURKEE, JOHN SANTANIELLO, ROBERT BALEWICZ, JOSEPH WILLEN, LAKELAND BANK, N.A., LOUIS CHENEVART, LPV, 15-HERMITAGE, LLC, MARK BRETT, NEC FINANCIAL SERVICES, LLC, NEUBERT, PEPE & MONTEITH, P.C., NICOLE BODOH, OBUCHOWSKI LAW OFFICE, PLIMPTON EXCAVATING LLC, QR HOSPITALITY, RAINMAKER MOUNTAIN, LLC, REINHART FOODSERVICE, L.L.C., RESTRUCTURED OPPORTUNITY INVESTORS, INC., ROB KRZANOWSKI, ROSE STEWART DICKSON, RTM CAPITAL PARTNERS, INC., SETH GOODMAN, SHAUN P. GOLDEN, SUBURBAN PROPANE, L.P., TERRY PERKINS, TFT HOLDINGS, LLC, THOMAS DOYLE, WILMINGTON, TOWN OF, TYLER DICKSON, U.S. TRUSTEE, VERMONT DEPARTMENT OF TAXES, WILLIAMS SCOTSMAN INC., MATTHEW CURTIS, HERMITAGE INN REAL ESTATE HOLDING COMPANY, LLC, and HERMITAGE MEMBER GROUP, INC., Appellees. RAYMOND J. OBUCHOWSKI, Chapter 7 Trustee.

CORE TERMS

bankruptcy court, Bidding, sale order, insider, real estate, pending appeal, good faith, good faith purchaser, bidders, purchaser, appeals, auction, Motions, quotation, Sales, marks, moot