In re City Metals Co.

181 B.R. 398, 1995 Bankr. LEXIS 630, 1995 WL 276888
CourtUnited States Bankruptcy Court, W.D. Missouri
DecidedMarch 30, 1995
DocketBankruptcy No. 93-30037
StatusPublished
Cited by1 cases

This text of 181 B.R. 398 (In re City Metals Co.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re City Metals Co., 181 B.R. 398, 1995 Bankr. LEXIS 630, 1995 WL 276888 (Mo. 1995).

Opinion

MEMORANDUM OPINION

ARTHUR B. FEDERMAN, Bankruptcy Judge.

Lawrence R. Whyte filed a claim in the amount of $1,200,000 in this Chapter 11 bankruptcy case. Pursuant to Rule 3007 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), debtor filed a written objection to the claim. Debtor did not request that Mr. Whyte’s claim be equitably subordinated, pursuant to Rule 7001 of the Bankruptcy Rules, and section 510(e) of the Bankruptcy Code (the “Code”). A hearing was conducted on February 23,1995. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth below, I find that the claim of Lawrence Whyte is allowed in the sum of $487,-499.97.

FACTUAL BACKGROUND

Ferromet Resources, Inc. (“Ferromet”) was the parent of debtor City Metals Company, Inc. (“City Metals”). Lawrence Whyte was the president and principal shareholder of Ferromet on May 19, 1989, when he sold the company to Clogau Gold Mines, pic (“Clogau”). Subsequently, on June 7, 1989, Mr. Whyte entered into a Service Agreement (the “Agreement”) with Ferromet for a term of five years. The Agreement provided that Mr. Whyte would serve as chairman of the board of directors, president, and chief executive officer of Ferromet and its subsidiaries for an annual compensation package of $450,-000 per year. Pursuant to the Agreement, Ferromet, its existing subsidiaries, and any future subsidiaries in which Ferromet had voting control were jointly and severally liable for Mr. Whyte’s compensation. Additionally, the Agreement provided that Clogau would pay Mr. Whyte $50,000 per year. In the event Clogau failed to compensate Mr. Whyte, Ferromet and its subsidiaries, present and future, were responsible for the $50,-000 as well.

Mr. Whyte testified that City Metals was incorporated in the State of Texas on Janu[400]*400ary 15, 1990, as a subsidiary of Ferromet. He stated it was formed to acquire a foundry, and after two failed attempts debtor was able to acquire the assets of Missouri Precision Castings on June 5, 19911. Ferromet acquired an eighty-percent share and George Fauverque acquired a twenty-percent share of City Metals. Mr. Whyte was involved in the negotiations to acquire City Metals, and became its president, chief executive officer, and chairman of its board of directors pursuant to the Agreement.

Ferromet was forced into bankruptcy on March 17,1992. Mr. Whyte testified that he received no compensation after February of 1992, though he continued to provide services to Ferromet and its subsidiaries until his dismissal by the bankruptcy trustee on June 28, 1992. Mr. Whyte sent a letter to City Metals on August 17, 1992, demanding the sum of $1,200,000 pursuant to the terms of the Agreement. City Metals did not respond to this demand.

City Metals was itself forced into bankruptcy on February 12, 1993. The debtor was unable to propose a confirmable plan and on April 22, 1994, this Court approved a liquidating plan to sell City Metals’ assets to St. Louis Steel Casting, Inc. Pursuant to the terms of the liquidating plan, the sum of $200,000 is set aside to pay all unsecured claims pro rata.

City Metals objects to Mr. Whyte’s proof of claim for the following reasons: (1) it was not a party to the contract, therefore, it has no liability under the Agreement; (2) there was no consideration for the contract; (3) City Metals never ratified the contract; (4) any liability is limited by section 502(b)(7) of the Code.

DISCUSSION

The Agreement provides that issues relating to its validity are to be governed by the laws of the State of Texas. Id., ¶ 12 at pg. 10. In construing a contract and the liabilities of the parties thereunder, the Court must begin with the language of the document itself. When the terms of a document are clear and unambiguous, the parol evidence rule bars any extrinsic evidence to vary, contradict, add to, or explain the unambiguous terms of a written agreement. Gold Kist, Inc. v. Carr, 886 S.W.2d 425, 429 (Tex.Ct.App.1994) (citing Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 952 (I960)). See also Grundy Nat’l Bank v. Frank (In re Frank), 103 B.R. 771, 773 (W.D.Va.1989). The general rule in Texas is that absent fraud, accident, or mistake the parol evidence rule prohibits consideration of extrinsic evidence to contradict the terms of an unambiguous, final, and complete writing. Gold Kist at 429. See also Jake C. Byers, Inc. v. J.B.C. Investments, 834 S.W.2d 806, 811 (Mo.Ct.App.1992). The purpose of the rule is to preserve the sanctity of written contracts. Jake C. Byers at 812. The Agreement is a written contract. It initially provides that it is between Lawrence Robert Whyte and Fer-romet Resources Inc. (the “Company”) together with its wholly and partially owned subsidiaries and joint ventures (the “Group”). Claimant’s (“Cl.”) Exh. # 2. The Agreement commences on the date of execution and continues for a period of five years. Id., ¶ 7 at pg. 6. The Agreement, executed on June 7, 1989, would have expired on June 6, 1994, without breach. There is no dispute that the term of the contract, as executed, is for a period of five years. There is also no dispute that the Agreement is an employment agreement. The terms of the Agreement, which are unambiguous, cannot be contradicted or varied by extrinsic evidence. See In re The Charter Company, 82 B.R. 144, 146 (Bankr.M.D.Fla.1988). City Metals, however, argues that it was not a party to the Agreement, and, thus, cannot be bound by its terms because City Metals had not been incorporated on the date the Agreement was executed.

The Agreement provides that:

Should the Company or the Group acquire in whole or in part by any manner, including joint venture, additional subsidiaries, directly or indirectly ... to the extent the Company or the Group or any combination thereof shall have voting control, directly [401]*401or indirectly to elect at least one director and voting control, directly or indirectly, to control the election of officers, the Executive shall immediately be appointed as the Chairman of the Board of directors and the Chief Executive Officer of each such company with full responsibility of and authority for managing all of their operations, current and future, for the remainder of the term of this Agreement and each such additional company shall be included within the definition of “Group.”

Id., 11 at pg. 1. It is undisputed that Mr. Whyte was the chief executive officer of Fer-romet at the time City Metals was formed.

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Cite This Page — Counsel Stack

Bluebook (online)
181 B.R. 398, 1995 Bankr. LEXIS 630, 1995 WL 276888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-city-metals-co-mowb-1995.