Claimants’ Motion to Reconsider, Alter and Amend June 25, 2021 Order Granting Chapter 7 Trustee’s Motion — In re Panthera Enterprises, LLC, Case No. 2:19-bk-00787 (Doc 377)

Summary

Claimants Renick, Betty and Robert Williams moved on 07/01/21 to alter and amend the June 25, 2021 order in the Chapter 7 case of Panthera Enterprises, LLC, 2:19-bk-00787, in the federal Bankruptcy Court for the Northern District of West Virginia. That order approved the trustee’s sale of the debtor’s real property and the novation of certain government contracts free and clear of liens under 11 U.S.C. 363. Renick and Betty Williams had sold the 689.40-acre Hardy County tract to TENX Group, LLC, the debtor’s predecessor, by a deed with ten restrictive covenants; the order found that only covenants 7 and 8 were executory contracts that did not run with the land. Citing Rule 59(e) and Bankruptcy Rule 9023, the motion asks the Court to declare that the remaining covenants on minerals, easements, spring water and land use run with the land.

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No. 2:19-bk-00787 Doc377_ Filed 07/01/21 Entered 07/01/21 18:33:07 Page 1 of
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

IN RE:
PANTHERA ENTERPRISES, LLC, BANKRUPTCY CASE NO.: 2:19-bk-00787
Debtor. CHAPTER 7

CLAIMANTS’ MOTION TO RECONSIDER, ALTER AND AMEND JUNE 25, 2021
ORDER GRANTING CHAPTER 7 TRUSTEE’S MOTION FOR AN ORDER
APPROVING THE SALE OF THE DEBTOR’S REAL PROPERTY AND NOVATING
CERTAIN GOVERNMENT CONTRACTS FREE AND CLEAR OF LIENS, CLAIMS,
INTERESTS, AND ENCUMBRANCES PURSUANT TO 11 U.S.C. 363

Comes now the Claimants, Renick C. Williams, Betty Williams and Robert R. Williams,
by and through their attorney, James E. Smith, II, and pursuant to Rule 59(e) of the Federal Rules
of Civil Procedure and Rule 9023 of the Federal Rules of Bankruptcy Procedure would move this

Honorable Court to alter and amend its Order entered the 25™ day of June, 2021 granting the

Chapter 7 Trustee’s Motion to Sell Debtor’s Real Estate, based upon the following grounds:

1) On March 29, 2021, Aaron C. Amore, Esq., Court-Appointed Chapter 7 Trustee, filed
a Motion for an Order Approving the Sale of the Debtor’s Real Property and Novating Certain

Government Contracts Free and Clear of Liens, Claims, Interests, and Encumbrances Pursuant to

11 U.S.C. Section 363.

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2) The Claimants, Renick C. Williams and Betty P. Williams, his wife, were the previous
owners and Grantors of certain real estate located in the Moorefield District of Hardy County,
West Virginia, containing 689.40 acres, +/-, of which TENX Group, LLC, the predecessor of the
Defendant/Debtor, purchased. That Deed of Conveyance was recorded among the Land Records
of Hardy County, West Virginia in Deed Book 328, Page 506. That Deed contained ten (10)

restrictive covenants.

3) On April 20, 2021, the Claimants filed their Objection to sale on the grounds that the
sale should not be free and clear of the restrictive covenants contained in the aforesaid Deed of
Conveyance. On even date therewith, the Claimants filed an adversarial proceeding styled:

Renick C. Williams, Betty P. Williams, his wife, and Robert R. Williams v. Panthera Enterprises,

LLC; Adversarial Case Number: 2:21-ap-00006, seeking an Order of Court declaring that the
restrictive covenants contained in the aforesaid Deed of Conveyance would be considered

running with the land.

4) Upon the filing of Memoranda by both the Chapter 7 Trustee and the undersigned
Counsel for the Claimants, a hearing on the Trustee’s Motion was conducted on June 22, 2021,
Judge Paul M. Black presiding, On June 25, 2021, the Court entered an Order granting the
Trustee’s Motion; rendered findings that only Restrictive Covenants previously numbered as 7
and 8 were executory contracts which were not assumed and deemed rejected and were personal
rights not running with the subject land; and overruled the Claimants’ Objection... The Court did

not make a specific ruling as to the nature of the remaining restrictive covenants, notwithstanding

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the finding in Paragraph 4 and 5 which acknowledged “The unresolved objection of the Williams
involves a “right of first refusal” contained in the original deed and conveyance to the Debtor,
along with a claimed right to compensation if the property is sold to a third party.; The issue
before the Court is whether the provisions in the deed numbered 7 and 8 are covenants running

with the land and binding on the Chapter 7 Trustee and subsequent purchaser....” (Emphasis

added).

5) The Claimants desire to protect their remaining property rights as outlined in the
original Deed of Conveyance and request an affirmative declaration from this Honorable Court
that the following remaining restrictive covenants be considered touching and concerning the

land, running with the land burdening and benefitting the parties’ successors and assigns:

A. The former Grantors, Renick C. Williams and Betty P. Williams, his wife,
have expressly reserved all minerals, including oil and gas, mineral rights and the
rights to the extractions of same, underlying and appurtenant to the subject 689.40
acre tract. The parties acknowledge that there is a current oil and gas lease with
Chesapeake Allegheny and conveyance of this real estate is made subject to same.
Surface disruption for the purpose of extracting minerals shall be made without
the agreement of the surface owner and the title holder of mineral rights.

B. In the event the former Grantors, Renick C. Williams and Betty P. Williams,
his wife should purchase adjoining real estate to the subject 689.40 acre tract, they
do hereby reserve the necessary easements across the subject 689.40 acres to
provide sewer, water, gas telephone and electric service and such additional
easements, as my be required to provide for septic, waste disposal, and storm
water drainage to meet local and State government requirements, relating to any
structures or construction upon such adjoining tract. Said rights of way shall not
exceed 20 feet in width, unless required by the service provider. Said rights of
way will be 20 feet on either side of Fish Pond Road and 20 feet along property
boundaries. The location of the reserved areas shall be made after giving
reasonable notice to the Grantee, its successors or assigns, with placement in the
least obstructive location as is possible and the Grantee, its successor and assigns
shall not unreasonable withhold access to such services by the Sellers.

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C. There is an adjoining 18 acres, more or less, parcel, lying along the bounds of
“Corridor H”, which is the subject of a pending condemnation proceeding by the
State of West Virginia, Department of Transportation, and upon completion of the
condemnation proceedings, should this 18 acre tract become available for
purchase, the Grantee herein may also purchase such additional acreage for the
price of $4,500 per acre. Should said 18 acres become available and the Grantee
herein elects not to purchase same, then the Grantors and their successors in
interest, will be given an adequate right of way by the Grantee, or its successors in
interest, which right of way area will allow for the construction of a road which

satisfies Hardy County subdivision road standards and provides access from Fish
Pond Road.

D. The former Grantors, Renick C. Williams and Betty P. Williams, his wife
have hereby expressly reserved, for themselves, their heirs, successors in interest
and assigns, one half (2) of the unobstructed water flow from the spring situate
upon said property, to supply potable water for the use of their adjoining real
estate. The Grantee agrees that it shall not restrict the natural flow, nor cause or
allow to be caused, any contamination of the tributaries to Anderson Run, by any
operations upon the subject property and shall take all proper precautions to
protest the water source in compliance with federal, state and local laws, statues,
ordinance, rules and regulations relating to liability for, or cost of other actual or
threatened danger to human health or the environment, including, without
limitations, laws relating to emissions, discharges, disposal practices, or release of
regulated materials into the environment, including, without limitation, ambient
air, indoor air, surface water, ground water, land surface of sub-surface strata, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of regulated materials.

In addition thereto, either party, that being the former Grantors, Renick C.
Williams and Betty P. Williams, his wife, Grantee, or their successors in interest,
may develop the spring to service acreage owned by the respective parties hereto.
Then, and in such event, the party or parties desiring to so develop the spring,
shall share on a pro rata basis, the cost of such development and maintenance of
the facility based upon their respective usage. In either event, the Grantee, its
successors and assigns, agrees it shall grant easements for the spring development
including land for collection, treatment and holding facilities. Easements of 20
feet in width will also be granted for utility lines necessary to operate the facilities
and utility lines used to disseminate water to Fish Pond Road along existing road
or by following the edge of the stream bed. Location of these facilities and utility
easements must be granted in such locations as to prevent incurring unreasonable
expense in developing the spring.

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E. It is understanding of the parties hereto that the Grantee shall operate a facility
upon the subject real estate to provide training for security personnel from the
State Department, Department of Homeland Security, Department of Defense,
Law Enforcement and Defense contractors, and any substantial change in use of
the property following the execution of this sales agreement and thereafter, must
first be authorized by the former Grantors, Renick C. Williams and Betty P.
Williams, his wife and/or their then surviving children.

F. The Grantee shall adhere to all terms and conditions as approved by the Hardy
County Planner’s Office, as testified to and documented by the Hardy County
Board of Appeals at its May 29, 2009 meeting, regarding to operation of their
facilities upon this real estate. Any variance from the application which was
previously approved by the County authorities must be properly applied for
through the Hardy County Planner’s Office, with notice thereof to the former
Grantors, Renick C. Williams and Betty P. Williams, his wife. This condition
shall include all limitations and representations (both written and oral) made to
the Hardy County Planner’s Office regarding night driving, shooting, caliber of
guns and size of explosives.

G. The Grantee agrees that it shall comply with all applicable Federal, State and
local laws, ordinances, rule and regulations having jurisdiction over the subject
property, including applicable environmental hazardous water or substances, and
underground storage laws and for any Department of Environmental Protection
work not completed at time the sale is complete.

6) Motions to amend judgments are evaluated by Rule 59(e) of the Federal Rules of Civil

Procedure as made applicable by Rule 9023 of the Bankruptcy Rules of Procedure. Such a

motion must be brought no later than ten (10) days after the entry of the Judgment.

7) The party seeking such amendment or reconsideration must show the following:
1. There has been a intervening change in the controlling law;
2. New evidence has become available:

3. There is a need to prevent manifest injustice or correct a clear error of fact or
law. (See: In Re: Conex Holdings, LLC. 524 B. R.55 [Bankr. D. Del.2015]).

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In determining whether there was a manifest injustice or clear error, “‘a movant bears a heavy

burden” to demonstrate that relief is appropriate. (Energy Future Holdings Corp. 575 B. R.616

[Bankr. D. Del.2017]; Hutchinson v. Staton, 994 F. 2d 1076 [4" Cir. 1993]; In Re: Davis, 2020

Bankr. LEXIS 385, 2020 WL 748160]). While there is no uniform application or an agreed
upon definition of “manifest injustice” and “clear error of law or fact”, some courts have
concluded manifest injustice to mean “an error in the trial court that is direct, obvious, and
observable... the record presented must be so patently unfair and tainted that the error is

manifestly clear to all that view it”. (In Re: Titus , 479 B. R. 362 [Bankr. W. D. Pa.2012]).

7) The Trustee has previously admitted that “the covenants in Paragraph One through
Five of the Williams’ Deed are reservations that appear to run with the land and as such would
not be affected by the sale of real property. Paragraphs Nine and Ten are simply representations
of the Grantee, i.e. the Debtor, will comply with local, federal and state laws and regulations”.
(See Page 5, Memorandum of Law in Support of Chapter 7 Trustee’s Motion for an Order
Approving the Sale of the Debtor’s Property and Novating Certain Government Contracts Free
and Clear of Liens, Claims, Interest and Encumbrances Pursuant to 11 U.S. C. Section 363
Docket Entry 348, filed May 21, 2021). !

8) Notwithstanding this acknowledgment, the Trustee now resists either entering into a
stipulation that would reiterate that the above stated restrictive covenants do indeed run with the

land, or to enter into an agreed order in the Adversary Proceeding filed by the Claimants.

' The original Restrictive Covenant Number 5 dealing with the removal of stones and
structures are deemed moot by the Williams, as that Covenant required action on or before one
(1) year from the date of conveyance. The Chapter 7 Trustee initially objected to original
restrictive covenant number 6 (Covenant “E” above); however only original covenants numbered
7 and 8 were argued by the Chapter 7 Trustee during the June 25, 2021 hearing.

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9) The undersigned Counsel for the Claimants have provided a plethora of legal authority
providing that the remaining covenants are not executory nature and run with the land. But
without this Honorable Court’s specific and affirmative declaration that the remaining covenants
do indeed run with the land, manifest injustice will be inflicted upon the Claimants, since they
will be denied their use, enjoyment and value of not only their remaining and surrounding land,
but the property rights that they attempted to secure within the original Deed of Conveyance will
be stripped and devalued.

10) This Honorable Court’s overruling of the Claimants’ Objection without
acknowledging the remaining restrictive covenants amounts to the Court’s misapprehending the
facts as presented by the undersigned Counsel for the Claimants and previously agreed to by the
Chapter 7 Trustee.

11) This Honorable Court in amending its June 25, 2021 Order will result in effecting
judicial economy, inasmuch as the Claimants would then be in a position to dismiss the
Adversarial Proceeding seeking a declaratory judgement from this Honorable Court as to the

validity and the existence of the remaining covenants running with the land.

WHEREFORE, the Claimants pray for the following:

1. That this Honorable Court would accept this Motion as being timely filed;

2.That this Honorable Court would amend its June 25, 2021, Order to reflect that the

heretofore referenced Restrictive Covenants do indeed run with the land, touching and

concerning the land, burdening and benefitting the parties’ successors and assigned; and

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3. As for such other relief as this Honorable Court deems equitable and just.

RENICK C. WILLIAM and BETTY P.
WILLIAMS, husband and wife ROBERT R.
WILLIAMS, CLAIMANTS, BY COUNSEL

James E. Smith I, Esquire '
West Virginia Supreme Court I. D. No.: 5447
122 East Street; P.O. Box 127

_-Keyser, WV 26726

304.788.3478; 301.786.7201
attjes2esq@gmail.com

Counsel for the Claimants

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CERTIFICATE OF SERVICE

I, James E. Smith, I, Esquire, a practicing attorney, do hereby certify that on the 1“ day of
July, 2021, I served the foregoing Motion to Alter and Amend Order Granting Chapter 7
Trustee’s Motion to Sell Real Property and Novating Certain Government Contracts Free and
Clear of Claims, Interests, and Encumbrances Pursuant to 11 U.S. C. Section 363 by electronic
filing via CM/ECF with the Clerk of Court, which will send notification of such filing to all
interested parties and creditors having entered their appearance herein, as well as by Electronic
Mail transmission to the following:

Via Email:
Kelly T. Smith, ksmith@sek.com

Jack Lantzy, jlantzy@sek.com

Mark A. Lindsay, mlindsay@bernsteinlaw.com

Rob Duncan, tarpon777@yahoo.com

Rob Duncan as manager of TR&L, tkelsey@woodsrogers.com

Bruce and Stacie Hardy, bsrhardy@comeast.neyt

Debra Lee Allen, dallen@splimanlaw.com

Aaron C. Amore, aaron@amorelaw.com,

jackie@Mamorelaw.com:c.ar7027(@notify.bestcase.com:alaina@amorelaw.com Aaron C. Amore,

amorewvt(@gmail.com

Robert S. Bernstein, rbernstein@bernsteinlaw.com,

Elizabeth B. Carroll, elizabeth carroll@vawb.uscourts.gov

Julia A. Chincheck, jchincheck@bowlesrice.com

Spencer D. Elliott, selliott@lger.com

Douglas Kahle, dkahle@basnightkinser.com

Gary O. Kinder, gary.o.kinder@usdoj.gov

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Travis Alan Knobbe, tknobbe@spilmanlaw.com, dambrose/@spilmanlaw.com

Sabrina B. Lee, sabrina_lee@vawb.uscourts.gov

William J. Leon, jayleon@comcast.net

Salene Rae Mazur Kraemer, skraemer@bernsteinlaw.com, salen@ecf.courtdrive.com

John J. Richardson, jrichardson@bernsteinlaw.com

Zachary James Rosencrance, arosencrane@bowlesrice.com, ajones@bowlesrice.com

Anita M. Swaton, Anita Swaton@wvnb.uscourts.gov

United States Trustee, ustpregion04.ct.ecf(@usdoj.gov

Eric Michael Wilson, eric.m.wilson@wv.gov. lora.l.rutledge@wv.gov

Manual Notice List

Notice was not mailed to be parties below as no addresses were provided. To the extend

the Trustee has email addresses the below notice parties, they were emailed.

Rob Duncan

Manager/Duncan Development Group, LLC

Rob Duncan

Manager/TR&L, LLC,

a Virginia Limited Liability Company

Successor to SMI, LLC,

A Virginia Limited Liability Company

Bruce Hardy; Stacie Hardy; Anthony McLntyre; Timothy Miller

~ Counsel for the Claimants

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