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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
In re:
Panthera Enterprises, LLC,
Debtor.
Case No. 2:19-bk-00787
Chapter 11
Bill V. Neff, Sr.,
Plaintiff,
v.
Panthera Enterprises, LLC and
Panthera Training, LLC,
Defendants.
Adv. Proc. No.
COMPLAINT
Comes now Bill V. Neff, Sr., Plaintiff, by counsel, and for his complaint, avers
and states as follows:
THE PARTIES
1.
Plaintiff is a resident of Rockingham County, Virginia.
2.
Defendant Panthera Enterprises, LLC, Debtor herein, is a foreign
limited liability company licensed to do business in West Virginia and doing business
in Hardy County, West Virginia.
3.
Defendant Panthera Training, LLC is a foreign limited liability
company licensed to do business in West Virginia and doing business in Hardy
County, West Virginia.
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4.
Debtor Panthera Enterprises, LLC commenced the above referenced
Chapter 11 proceeding on September 13, 2019.
5.
Defendant Panthera Enterprises, LLC owns real property located at
2506 Fishpond Rd., Old Fields, Hardy County, West Virginia. Defendant Panthera
Training, LLC is currently doing business on said realty pursuant to a lease with
Debtor Defendant Panthera Enterprises, LLC.
JURISDICTION AND VENUE
6.
This adversary proceeding is brought pursuant to 11 U.S.C §541 to
establish title to personal property subject to a Contract of Sale dated July 23, 2015
between Plaintiff and Defendant Panthera Enterprises’ predecessor, TenX Group
LLC; for an order requiring Defendant Panthera Training, LLC to return such
personalty to Plaintiff; and for an award of damages against Defendant Panthera
Training, LLC for the fair rental value of Plaintiff’s personal property.
7.
The United States Bankruptcy Court for the Northern District of West
Virginia has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§157
and 1334(e)(1). This adversary proceeding is a “core” proceeding to be heard and
determined by this Court pursuant to 11 U.S.C. §157(b)(2)(A)(M) and (O). Venue is
proper pursuant to 28 U.S.C. §1409.
8.
The statutory and legal predicates for the relief sought herein are §541
of the Bankruptcy Code and Rule 7001(1), (7) and (9) of the Federal Rules of
Bankruptcy Procedure (the “Bankruptcy Rules”).
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GENERAL AVERMENTS
9.
By deed dated August 21, 2013, TenX Group, LLC, acquired a 689.40
acre parcel of realty to located in Moorefield District, Hardy County, West Virginia.
TenX Group acquired the realty for purposes of constructing and operating a facility
to provide weapons and other training to security personnel under contracts with
governmental agencies.
10.
Plaintiff owns numerous mobile, prefabricated modular office units.
Such units measure 12’ by 60’ and are transportable over public roads via wheeled
undercarriages attached to each unit. The units are designed to be assembled with
other units in various configurations to create temporary office facilities.
11.
On July 23, 2015, Plaintiff entered into a Contract of Sale with TenX
Group LLC whereby Plaintiff agreed to sell 38 of the mobile modular office units for
use at TenX’s Hardy County training facility. A copy of said Contract is attached as
Exhibit A and incorporated herein by reference.
12.
Pursuant to the Contract of Sale, the modular units were delivered to
TenX’s realty and assembled in “blocks” as defined in the Contract of Sale at three
locations on the property. The location and configuration of these units is depicted on
Exhibit B attached to the Contract of Sale.
13.
The contract provides for a purchase price of $810,000.00 payable in
$10,000.00 monthly installments commencing on August 1, 2015 and continuing until
August 1, 2017. Beginning on August 1, 2017 and continuing through July 1, 2023,
monthly payments of $9,179.81 were owed Plaintiff by TenX under the contract.
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14.
The Contract of Sale contains no language granting and conveying title
to the modular units to TenX. Rather, Paragraph 3(c) of the Contract for Sale
provided:
Partial Release. $23,709.11 will earn the release of a singular Modular
Office. Modular Offices will be released in blocks as currently configured
according to Exhibit B. The release of all Modular Offices within any
specific block must be earned prior to the assignment of title from
SELLER.
15.
Effective December 19, 2016, LLC changed its name to Panthera
Enterprises, LLC.
16.
From August 11, 2015 through August 14, 2018, TenX and Defendant
Panthera Enterprises, LLC made 13 payments totaling $127,126.33 pursuant to the
terms of the Contract of Sale.
17.
That pursuant to a Commercial Lease Agreement with Defendant
Panthera Enterprises, LLC dated June 1, 2018, Defendant Panthera Training, LLC
took possession of Defendant Panthera Enterprises’ Hardy County realty. Pursuant
to a contract between Defendants Panthera Training and Panthera Enterprises dated
June 1, 2018, Defendant Panthera Training assumed the operation of the training
facility located on said realty. As a result, Defendant Panthera Training has, since
June 1, 2018, had possession, custody, control and use of Plaintiff’s personal property.
COUNT I
(DECLARATORY RELIEF)
18.
Plaintiff restates the averments contained in Paragraphs 9 through 17
of this Complaint.
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19.
In Schedule A/B filed in this bankruptcy proceeding on September 27,
2019 (Doc 23), Defendant Debtor Panthera Enterprises, LLC claims that the modular
office buildings at issue are its personal property.
20.
That the terms of the Contract of Sale between Plaintiff and Defendant
Debtor Panthera Enterprises did not convey title to the modular units upon the
execution of said contract on July 23, 2015. Rather, said contract plainly and
unambiguously provided title to the units would only be transferred in blocks as such
units were assembled on Defendants’ realty and then only after Defendant Panthera
Enterprises had paid $23,709.11 for each unit within such blocks.
21.
That given the amount paid Plaintiff pursuant to the Contract of Sale,
Defendant Panthera Enterprises has to date earned the right to request transfer of
title to no more than five of the 38 units that are the subject of the Contract of Sale.
22.
That Defendant Panthera Enterprises has not identified any block of
modular units for which it believes it has earned the right to acquire title as provided
for in Paragraph 3(c) of the Contract the Sale.
23.
That despite the unambiguous language contained in the Contract of
Sale, Defendants refuse to acknowledge that Plaintiff has title to the modular units.
Wherefore, Plaintiff prays that this Court declare the rights of the parties
regarding title to the modular units that are the subject of the July 23, 2015 contract
between Plaintiff and Defendant Debtor Panthera Enterprises, LLC; that the Court
declare that Plaintiff has title to said units; and for such other and further relief as
the Court deems appropriate.
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COUNT II
(COMMON LAW DETINUE AND RECOVERY OF PROPERTY PURSUANT TO
WEST VIRGINIA CODE §55-6-1, ET SEQ.)
24.
Plaintiff restates the averments contained in Paragraphs 9 through 17
of the Complaint.
25.
Plaintiff has requested that Defendant Panthera Training, LLC
acknowledge Plaintiff’s ownership of the modular office units in Defendant Panthera
Training’s possession. Defendant Panthera Training has refused to do so and further
has advised that it will not allow Plaintiff to take possession of the units. Moreover,
despite using the units to operate its business, Defendant Panthera Training has
refused to pay Plaintiff the fair rental value of such units.
26.
That Defendant Panthera Training has no ownership interest in or
other right that permits it to retain possession of the modular office units at issue.
27.
That Plaintiff is the owner of the modular office units presently located
on realty leased by Defendant Panthera Training from Defendant Panthera
Enterprises and Plaintiff is entitled to immediate possession of the property.
Wherefore, Plaintiff prays that judgment be entered in its favor and against
Defendant Panthera Training, LLC; that the Court find that Defendant Panthera
Training, LLC is in wrongful possession of said modular office units; that Plaintiff
has the right to immediate possession of the same; and for such other and further
relief as the Court deems appropriate
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COUNT III
(UNJUST ENRICHMENT)
28.
Plaintiff restates the averments contained in Paragraphs 9 through 17
and 24 through 27 of the Complaint.
29.
That since June 1, 2018, Defendant Panthera Training, LLC has had
the exclusive possession, use and benefit of Plaintiff’s modular office units.
30.
That from June 1, 2018 to the present, Defendant Panthera Training,
LLC has paid Plaintiff nothing for the use of such units, thereby receiving and
retaining benefits in the form of the use of Plaintiff’s personal property in furtherance
of Defendant Panthera Trainings’ business operations, which benefit in justice and
equity belong to Plaintiff, all of which unjustly enriches Defendant Panthera
Training.
31.
That the fair rental value of Plaintiff’s property is at least $10,000.00
per month.
Wherefore, Plaintiff prays that judgment be entered in its favor and against
Defendant Panthera Training, LLC; that Plaintiff be awarded damages in an amount
equal to the value of the benefit received by Defendant Panthera Training for its use
of Plaintiff’s property from June 1, 2018 to the present; and for such other and further
relief as the Court deems appropriate.
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Bill V. Neff, Sr.,
Plaintiff, by Counsel.
Dated: February 12, 2020
William J. Leon (WV Bar# 2182)
William J. Leon, LC
1200 Dorsey Ave., Suite III
Morgantown, WV 26501
304.554.3880
jay@jayleonlaw.com
/s/ William J. Leon
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