In re Climate Control Mech. Servs., Inc.

585 B.R. 192
United States Bankruptcy Court, M.D. Florida·Decided March 6, 2018·No. Case No.: 3:15–bk–2248–JAF; Jointly Administered with: Case No.: 3:15–bk–2249–JAF; Case No.: 3:15–bk–2250–JAF; Case No.: 3:15–bk–5021–JAF·Published·Cited by 2 cases

Opinion

Jerry A. Funk, United States Bankruptcy Judge

This case is before the Court upon the Motion to Appoint Chapter 11 Trustee or, alternatively, Convert to Chapter 7 (Doc. 554) filed by the United States Trustee ("U.S. Trustee") and the Emergency Motion for Appointment of a Chapter 11 Trustee or, alternatively, Convert Case to Chapter 7 (Doc. 507) filed by creditor Ciraco Electric, Inc. On January 31, 2018, the Court conducted a trial. Following the presentation of evidence, the Court directed the parties to submit written closing argument in support of their respective positions. Upon the evidence presented and the memoranda of the parties (Docs. 586, 587, 588, 589), the Court makes the following Findings of Fact and Conclusions of Law pursuant to Bankruptcy Rule 7052.

BACKGROUND

In May 2015, Climate Control Mechanical Services, Inc. ("Climate Control"), Base 3 LLC ("Base 3"), and The Alexander Group, LLC ("Alexander Group") each filed a petition for relief under Chapter 11 of the Bankruptcy Code, and the three cases were consolidated for procedural purposes. (Doc. 114). Facility Performance, LLC ("Facility Performance") filed a Chapter 11 petition in November 2015, and its case was procedurally consolidated with *194the other three cases. (Doc. 239). The Court authorized each Debtor to operate its respective business as a debtor-in-possession. (Docs. 15, 114). Each Debtor entity is wholly owned and controlled by Louie Wise ("Wise").

In November 2017, Ciraco Electric, Inc. ("Ciraco"), a creditor of Alexander Group, filed an Emergency Motion to Appoint Trustee or Convert Cases to Chapter 7 as well as an Emergency Motion to Freeze Unauthorized Bank Accounts (Docs. 507, 508) (collectively the "Emergency Motions"). In January 2018, the U.S. Trustee filed a similar motion, seeking to appoint a Chapter 11 trustee or, in the alternative, to convert to Chapter 7 (the "U.S. Trustee's Motion"). (Doc. 554). The U.S. Trustee's Motion asserted arguments for both appointment of a trustee and conversion to Chapter 7, but focuses on appointment. (Docs. 554 at 13, 586 at 7).

Prior to trial, the Debtors consented to having their unauthorized "non-debtor-in-possession" financial accounts frozen. The Court ordered the Debtors and Wise to close all unauthorized accounts, transfer any funds held in those accounts to the appropriate Debtor's authorized account/s, and to file a statement under penalty of perjury attesting to satisfaction of the order. (Doc. 540). The Debtors also consented to an order, under 11 U.S.C. § 1104(c), directing the U.S. Trustee to appoint an examiner (the "Examiner") to undertake an investigation and financial accounting of the Debtors. (Doc. 526). The Examiner was appointed by the U.S. Trustee and approved by the Court. (Doc. 536). The Examiner filed his preliminary report on December 29, 2017. (Doc. 545). Ultimately, on January 31, 2018, a trial was held on the U.S. Trustee's Motion and the outstanding portions of Ciraco's Emergency Motions. (Doc. 577).

The crux of the U.S. Trustee's argument is that "[t]he current management of the Debtors cannot be depended upon to carry out the fiduciary responsibilities of a trustee." (Doc. 586 at 9). More specifically, the U.S. Trustee contends that Wise and the current management have "deliberately concealed estate monies in undisclosed bank accounts at unauthorized depositories; disregard[ed] the Orders of this Court and the duties of a debtor-in-possession; filed incomplete and inaccurate [monthly operating reports] under penalty of perjury; failed to account for estate monies; retained professionals without seeking Court authorization; made payments to professionals and insiders; transferred monies amongst the Debtors and a related non-debtor entity without disclosure and without Court authorization; and incurred significant post-petition administrative claims owed to taxing authorities and accounts payables." (Doc. 586 at 9-10). Ciraco asserts essentially the same arguments as the U.S. Trustee.

The Debtors oppose the appointment of a trustee but support the continued appointment of the Examiner. (Doc. 588 at 2). The Debtors contend there has been "substantial change in management and an honest attempt to remedy [the] misconduct." (Doc. 588 at 5-6). They contend "[a] new and more qualified chief financial officer was hired; misplaced funds were returned; and bookkeeping and record keeping have been implemented." (Doc. 588 at 5-6). The Debtors detail the remedial steps taken by the new management as support for their argument. Creditor Community Bank & Trust of Florida ("Community Bank") supports the argument of the Debtors and opposes the appointment of a Chapter 11 trustee. Community Bank specifically contends that appointment of a Chapter 11 trustee is not in the best interests of the creditors. Community Bank is the single largest creditor in dollar-amount *195claimed, and is a creditor of all four Debtors.

FINDINGS OF FACT

As noted above, Climate Control, Base 3, Alexander Group, and Facility Performance are each wholly owned and controlled by Wise. Wise is the chief executive officer of each Debtor entity, all of which are involved in the construction business. Climate Control focuses on mechanical and HVAC subcontracting, Base 3 is an electrical subcontracting company, and Alexander Group operates as a general contractor. Facility Performance provides facility-management services to clients and sometimes employs/subcontracts the other Debtor entities.

The Debtors' two chief financial officers

Free access — add to your briefcase to read the full text and ask questions with AI

In re Climate Control Mech. Servs., Inc., 585 B.R. 192 (Fla. 2018).

585 B.R. 192 (In re Climate Control Mech. Servs., Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related