Doctor's Associates, Inc. v. J & JB, Inc. (In re J & JB, Inc.)

177 B.R. 25, 1994 Bankr. LEXIS 2104
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedDecember 21, 1994
DocketBankruptcy No. 93-23535-BM; Motion Nos. 94-1279M, 94-1280M and 94-1281M
StatusPublished
Cited by2 cases

This text of 177 B.R. 25 (Doctor's Associates, Inc. v. J & JB, Inc. (In re J & JB, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doctor's Associates, Inc. v. J & JB, Inc. (In re J & JB, Inc.), 177 B.R. 25, 1994 Bankr. LEXIS 2104 (Pa. 1994).

Opinion

MEMORANDUM OPINION

BERNARD MARKOVITZ, Bankruptcy Judge.

Several matters are before the court at this time.

Doctor’s Associates, Inc. has brought a motion (at No. 94-1279M) seeking payment as an administrative expense of postpetition [26]*26royalties and advertising fees that accrued pursuant to certain franchise agreements.

Subway Real Estate Corporation and Subway Restaurants, Inc. have brought motions (at Nos. 94-1280M and 94-1281M, respectively) seeking payment as an administrative expense of postpetition rentals that accrued pursuant to certain subleases.

The chapter 7 trustee does not object to payment of the requested chapter 11 administrative expenses. He does, however, strenuously object to payment of the requested chapter 7 administrative expenses. According to the chapter 7 trustee, the bankruptcy estate is not liable for these expenses because debtor never had a contractual relationship with movants.

Though the trustee does not fully express his position, it appears to the court that he argues that he never indicated a willingness to run this business in chapter 7; he never requested the court grant him authority to run the business in chapter 7; and the court never authorized or directed him to run the business in chapter 7. To the contrary, the trustee took action against the principals of the debtor to assure all parties in interest that this estate would incur no further chapter 7 administrative debt.

Movants concede that debtor never had a contractual relationship with them but argue that the bankruptcy estate nonetheless is liable for the requested chapter 7 administrative expenses because debtor ratified the contracts and enjoyed the benefits thereof during the chapter 7 phase of this case.

Movants’ request for payment of postpetition expenses will be granted in part and denied in part. Their request for payment of chapter 11 administrative expenses will be granted because it is unopposed. However, them request for payment of chapter 7 administrative expenses will be denied. The trustee’s objection thereto will be sustained.

I

FACTS

On June 1, 1987, James L. Brown, James A. Brown and Doctor’s Associates, Inc. entered into a franchise agreement for operation of Subway Sandwich Shop franchise #3217 at Boulevard Plaza in Monroeville, Pennsylvania. On August 21,1987, James L. Brown and James A. Brown entered into a sublease with Subway Restaurants, Inc. for operation of the franchise at that location.

Shortly thereafter, in September of 1987, James L. Brown and James A. Brown formally incorporated J & JB, Inc.

On October 20, 1987, James L. Brown and James A. Brown entered into a second franchise agreement with Doctor’s Associates for operation of Subway Sandwich Shop franchise #3837 at McIntyre Square in Ross Township, Pennsylvania.

James L. Brown and James A. Brown entered into a third franchise agreement with Doctor’s Associates on August 23, 1988 for operation of Subway Sandwich Shop franchise # 5207 at Holiday Center, Monroeville, Pennsylvania. On August 10,1989, James L. Brown and James A. Brown entered into a written sublease with Subway Restaurants, Inc. for operation of the franchise at the Holiday Center location.

On September 15, 1990, James L. Brown, James A. Brown, and Joyce A. Brown entered into another franchise agreement with Doctor’s Associates for operation of Subway Sandwich Shop franchise # 10316 at Edge-wood Center in Edgewood, Pennsylvania. These same individuals had entered into a written sublease with Subway Real Estate Corporation on August 30, 1990, for operation of the franchise at that location.

On January 22, 1993, James L. Brown and James A. Brown entered into a written sublease with Subway Real Estate Corporation for operation of franchise #3837 at the McIntyre Square location.

Debtor J & JB, Inc. was not a party to any of the above agreements. The Browns entered into all of these agreements in their individual capacities and on their own behalves, not on behalf of J & JB, Inc. At no time did the Browns assign their rights under these agreements to J & JB, Inc.

On October 6, 1993, a joint voluntary chapter 11 petition was filed at Bankruptcy No. 93-23535-BM by J & JB, Inc., James L. [27]*27Brown, James A. Brown, and Joyce A. Brown, doing business as Subway.

All four Subway franchises continued to operate during the chapter 11 proceeding. The role of J & JB, Inc. in the operation of the franchises prior to or subsequent to October 6, 1993 is unexplained.

On January 6, 1994, the United States of America brought a motion to dismiss for want of subject-matter jurisdiction. It argued that this court lacked jurisdiction under the Bankruptcy Code over a joint case filed by a corporation and three individuals. It asked that, at a minimum, the parties depriving the court of jurisdiction be dismissed from the case.

In response to the motion by the United States, J & JB, Inc. moved on January 26, 1994, to sever the individual debtors from its case. An order was issued on February 8, 1994, granting the motion of J & JB, Inc. and, accordingly, the Browns were no longer debtors herein.

On February 10,1994, a rule to show cause was issued why the case should not be converted to a chapter 7 proceeding due to debtor’s apparent inability to reorganize.

James L. Brown and Joyce A. Brown filed a voluntary joint chapter 13 petition on March 1, 1994 at Bankruptcy No. 94-20608-JKF.

The present case was converted to a chapter 7 proceeding on March 15, 1994, when debtor conceded that conversion to chapter 7 was appropriate. The order converting the ease also directed debtor to file a list of all postpetition claimants.

A chapter 7 trustee was appointed on March 16, 1994. At no time did the chapter 7 trustee request permission pursuant to § 721 of the Bankruptcy Code to operate the business of debtor J & JB, Inc. on an interim basis during the chapter 7 proceeding.

James L. Brown and Joyce A. Brown, individual debtors at Bankruptcy No. 94-20608-JKF, continued to operate the four franchises and did business as Subway subsequent to conversion to chapter 7 in this case and during them own chapter 13 case.

During this time, James L. Brown and Joyce A. Brown sought to use the listed telephone numbers for the Subway franchises. The chapter 7 trustee in this case took the position that the listings of those numbers were assets of the estate of J & JB, Inc. and refused to authorize the transfer of those listings to the Browns or to abandon them without an order of this court authorizing him to do so.

On April 13,1994, debtor J & JB, Inc. filed a motion to direct the chapter 7 trustee to withdraw an alleged directive to the telephone company to cease providing service to the Browns under the numbers in question. According to the Browns, the phone listings were being utilized by them individually while they were operating their own business pursuant to franchises which they individually owned.

An order was entered after a hearing on April 15, 1994, which authorized the chapter 7 trustee to abandon the disputed telephone numbers. Furthermore, it stated that any obligations arising out of the use of the numbers after October 6, 1993, would be the obligation of James L. Brown and Joyce A. Brown only.

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Bluebook (online)
177 B.R. 25, 1994 Bankr. LEXIS 2104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doctors-associates-inc-v-j-jb-inc-in-re-j-jb-inc-pawb-1994.