Evans Plaza Partners, LLC v. Webster (In re Sci. Fitness, LLC)

598 B.R. 51
CourtUnited States Bankruptcy Court, S.D. Georgia
DecidedFebruary 1, 2019
DocketCase Number 14-12297; Adversary Proceeding Number 16-01035
StatusPublished

This text of 598 B.R. 51 (Evans Plaza Partners, LLC v. Webster (In re Sci. Fitness, LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans Plaza Partners, LLC v. Webster (In re Sci. Fitness, LLC), 598 B.R. 51 (Ga. 2019).

Opinion

SUSAN D. BARRETT, UNITED STATES BANKRUPTCY JUDGE

Before the Court is the complaint filed by Evans Plaza Partners, LLC ("Landlord") against Evans Fitness Club Express, LLC ("Express") alleging Express improperly removed property belonging to Landlord. Trial was held to determine ownership of the property.1 This adversary proceeding is a core proceeding under 28 U.S.C. § 157(b) (2)(A), (N), and (0) and the Court has jurisdiction pursuant to 28 U.S.C. § 1334. For the following reasons, the Court finds the lockers, the mirrors in the New Addition (defined below), and the nonmovable sink belong to the Landlord; and the Remaining Mirrors (defined below), freestanding sink, and T.V. stands belong to Express.

FINDINGS OF FACT

In order to fully address the issues before the Court, an understanding of the chain of title prior to Science Fitness, LLC ("Debtor") becoming a tenant of Landlord is helpful:

*54Prior to this bankruptcy case, Pro Fit Management, Inc. ("Pro Fit") operated a health and fitness club as a tenant under a master lease. In 2003, Pro Fit executed an asset purchase agreement with GH Evans, LLC ("GH Evans") with GH Evans assuming the lease of Pro Fit. Def. Ex. 1. In connection with this sale, GH Evans purchased all of Pro Fit's:

right, title and interest in, to and under the assets, properties, improvements and business owned, held or used in the conduct of the Business by [Pro Fit] as same are constituted on the Closing Date including ... all other personal property and interests therein, including gym equipment, machinery, equipment, computers, furniture, fixtures, vehicles and other tangible property owned or leased by [Pro Fit] and utilized in the operation of the Business ....

Def. Ex. 1.

Thereafter in 2004, Landlord purchased the shopping center where GH Evans was already a tenant. Tr. 33:15-18. In 2005, Landlord entered into a new lease with GH Evans. Pl. Ex. 1. Then, in 2011, Debtor purchased the assets of GH Evans and assumed the lease with Landlord (the "Lease"). Def. Ex. 2; Pl. Exs. 2 and 3. Thereafter, Debtor experienced financial difficulties and filed its chapter 11 bankruptcy petition in 2014, which was subsequently converted to a chapter 7 in 2016. The Chapter 7 Trustee ("Trustee") sought to sell "substantially all of [Debtor's] assets" to Express for $ 405,900.00 and Landlord planned to rent the space to another entity. Pl. Ex. 5.

In connection with the sale, the Trustee and Express executed the Asset Purchase Agreement ("APA") which defines "Acquired Assets" as Debtor's right, title, and interest in the following:

all accounts, contract rights, membership agreements, personal training contracts, contracts and all accounts receivable through ABC Financial and Clubready, furniture, furnishings, equipment, inventory, intellectual property required for the operation of the Debtor's business, goods held for sale, supplies and other materials used or consumed in the Debtor's business. A copy of the equipment list is attached and incorporated into this Agreement.

Pl.'s Ex. 5. The equipment list attachment to the APA entitled "Equipment List 2016" lists various exercise equipment such as treadmills, ellipticals, weights, bikes, and segregates some items by their location within the gym using the subheadings "office," "conference room," "kids klub," and "lobby area." Id. These items include desks, tables, chairs, cabinets, printers, a refrigerator, and microwaves. Id."Excluded Assets" are defined as "[a]ny asset of the Debtor not defined in Acquired Assets" and are not included in the sale. Id. In connection with the sale, the Trustee executed a Bill of Sale conveying to Express:

all accounts, contract rights, membership agreements, personal training contracts, contracts and all accounts receivable through ABC Financial and Clubready, furniture, furnishings, equipment, inventory, intellectual property required for the operation of the Debtor's business, goods held for sale, supplies and other materials used or consumed in the Debtor's business. A copy of the equipment list is attached as Exhibit "A" and incorporated into this Final Closing Statement.

Pl. Ex. 6. This Exhibit A is identical to the APA "Equipment List 2016."

After the sale was consummated, Express began removing assets from the premises. Landlord promptly informed the Trustee that Express was improperly removing fixtures from the premises-mirrors *55glued to the walls and lockers affixed to the walls. In response, the Trustee notified Express the mirrors and lockers were not included in the sale and their removal was not authorized by the APA. The Trustee also filed an adversary proceeding against Express seeking: a declaratory judgment that certain items be declared excluded from the sale; and such items be returned or replaced to the Landlord's satisfaction; and for the Court to enjoin Express from removing such items. Webster v. Express, Ch. 7 Case No. 14-12297, Adv. Proceeding No. 16-01034, Dckt. No. 1 (Bankr. S.D. Ga. Sept. 29, 2016).

The Court granted the Trustee's motion for a temporary restraining order stopping Express from removing any additional items from the premises. Webster v. Express, Ch. 7 Case No. 14-12297, Adv. Proceeding No. 16-01034, Dckt. No. 6 (Bankr. S.D. Ga. Sept. 29, 2016). Also, on the same day, Landlord filed this adversary proceeding against the Trustee2 and Express. In these two proceedings, the Court has previously entered orders: enjoining Express from removing additional items; requiring the parties to identify the specific items in dispute; and requiring the storage of the disputed items pending resolution of the adversary proceeding. Dckt. Nos. 10 and 15. At trial, the parties stipulated that the only remaining disputed items are the lockers, mirrors, T.V. stands, and two sinks ("Disputed Items").3 Tr. 17:16-25:8.

Express contends the Disputed Items are assets it acquired under the APA because they are trade fixtures. Conversely, Landlord contends the Disputed Items were not included in the assets Express acquired because Debtor never had an ownership interest in these items.

Landlord cites provisions from the Lease concerning fixtures, improvements and removal. The Lease states:

Except for signs, merchandise counters or other easily removable similar trade fixtures installed by Tenant at Tenant's expense, all alterations. decorations, additions and improvements made by Tenant to the Leased Premises and including all heating and air-conditioning units, equipment and apparatus at the Leased Premises and other fixtures

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Bluebook (online)
598 B.R. 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-plaza-partners-llc-v-webster-in-re-sci-fitness-llc-gasb-2019.