In re Desert Village Ltd. Partnership

332 B.R. 160, 2005 Bankr. LEXIS 1912, 2005 WL 2495862
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedJuly 19, 2005
DocketNo. 03-33228
StatusPublished

This text of 332 B.R. 160 (In re Desert Village Ltd. Partnership) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Desert Village Ltd. Partnership, 332 B.R. 160, 2005 Bankr. LEXIS 1912, 2005 WL 2495862 (Ohio 2005).

Opinion

MEMORANDUM OPINION AND DECISION

RICHARD L. SPEER, Bankruptcy Judge.

This cause is before the Court after a Hearing on the Motion for Adjustment of Contract filed by Dunkirk Realty, LLC and Brint Park Holdings, LLC; and the Debtor’s objection thereto. Each of the Parties submitted briefs in support of their respective positions. The Court has now had the opportunity to review the arguments raised both at the Hearing and in these Briefs, together with the applicable law, and based upon that review, the Court, for the reasons now explained, finds that the Motion of Dunkirk Realty, LLC and Brint Park Holdings, LLC should be GRANTED.

FACTS

On April 28, 2003, Desert Village Limited Partnership (“Desert Village”) filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. Pursuant to 11 U.S.C. § 363, Desert Village subsequently filed Notice of Intent to Sell Real Property Free and Clear of Liens; this Court entered an order approving the sale on June 6, 2003. Desert Village and Dunkirk Realty, LLC (“Dunkirk”) then effectuated the sale of the property according to the terms of their Real Estate Purchase Agreement (“the Agreement”).

At the time the Agreement was made, the property at issue was undeveloped agricultural land, and part of the Current Agricultural Use Valuation (“CAUV”) program, which provides a lower tax rate to owners of land reserved for agricultural use. O.R.C. § 5713.34(A)(1). Central to [162]*162this controversy is paragraph nine of the Agreement, which states that “agricultural tax recoupment, if any, shall be paid by Seller.” (Doc. No. 204, Ex. A). As used here, recoupment is realized when CAUV property formerly used for agricultural purposes is converted to residential use. 0.R.C. § 5713.34(A)(2). Although applicable, no agricultural tax recoupment was assessed at the closing, apparently because the parcel was not listed on the county auditor’s tax screen as CAUV property. But had the agricultural recoupment tax been assessed at closing on the property in question, it is agreed that Dunkirk would have received a credit of $41,946.36.

Desert Village’s sale of the property was finalized on June 17, 2003. The same day, Dunkirk made an assignment to Brint Park Holdings, LLC (Brint Park) and to The dander Park System.1 As part of this transaction Brint Park, as Dunkirk’s assignee, consented to pay Desert Village a fee if Brint Park obtained satisfactory zoning and site plan approval for the property. Under this fee arrangement, Brint Park owes Desert Village $300,000 to be paid in six annual installments of $50,000 commencing June 17, 2005. Now, by way of their motion for adjustment of contract, Dunkirk and Brint Park ask that this obligation be reduced by the amount of the $41,946.36 credit Dunkirk would have received if tax recoupment had been realized at the time of the closing.

DISCUSSION

The motion before the Court for the adjustment of a contract is a matter directly concerning the administration of the estate, and thus is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(A). This Court, therefore, has the jurisdictional authority to enter a final order in this matter.

By way of their Motion, Dunkirk and Brint Park request that the agricultural tax recoupment that was not credited to them at the time of the closing be granted to them now in accordance with the terms of their Agreement. Desert Village objects, raising three points: (1) lack of standing; (2) misinterpretation of contractual terms; and (3) what the Court views as an equitable argument. The Court will now address each of these points in order.

Generally, standing exists when a party has alleged “such a personal stake in the outcome of the controversy, as to ensure that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” Dallman, quoting Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), citing Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (internal citation and quotations omitted). Here, Desert Village argues this requirement is lacking because Dunkirk gave an unqualified assignment, and not merely a right to purchase, to Brint Park.

On this point, “[a]n unqualified assignment transfers to the assignee all the interest of the assignor in and to the thing assigned.” Leber v. Buckeye Union Ins. Co., 125 Ohio App.3d 321, 332, 708 N.E.2d 726, 733 (1997), citing Pancoast v. Ruffin, 1 Ohio 381 (1824). Thus, as argued by Desert Village, an unqualified assignment given to Brint Park would more than likely divest Dunkirk of a sufficient stake in this controversy, as its rights regarding the property would now belong to Brint Park. However, this position has both legal and factual weaknesses. Factually, the Court does not have enough information before it to judge the nature of the [163]*163assignment. Legally, Brint Park, a co-movant, clearly has a sufficient stake in the outcome of the proceeding to satisfy the requirements of standing. Hence, given both of these points, the substantive merits of this matter — the proper application of the Parties’ Agreement — still need to be addressed. Accordingly, the Court turns its attention there at this time.

The second point raised by Desert Village concerns the contractual right of the Movants to assert their right of re-coupment. From the arguments presented by the Parties, the primary point of focus here centers on the interpretation of the phrase “if any” in paragraph nine of the Agreement. This sentence states that “Agricultural tax recoupment, if any, shall be paid by Seller.” (emphasis added) (Doc. No. 204, Ex. A). In its arguments, Desert Village asks the Court to interpret the term “if any” to mean that it must pay the actual “agricultural tax recoupment, not potential agricultural tax recoupment avoided.” (Doc. No. 204, at pg. 8). That is, since recoupment was never estimated for the parcel in question, Desert Village argues that it should owe nothing.

Dunkirk and Brint Park, however, maintain that Desert Village’s interpretation of “if any” ignores the plain meaning of the contract. In this way, Dunkirk and Brint Park put forth this reading: “if any” means that since the agricultural tax re-coupment was applicable to the parcel at the time of the transaction, then it is to be paid by the seller (Desert Village) and credited to the buyer (Dunkirk), regardless that it was not, as a result of a mistake made by the county, not known at the time of the closing. (Doc. No. 207, at pg. 3). The points made by the Parties thus differ in this fundamental respect: Dunkirk and Brint Park assert that the Agreement’s plain meaning looks to the conditions at the time of the transaction; in contrast, Desert Village’s interpretation seeks to take into consideration events which took place subsequent to when the Agreement was consummated.

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Related

Flast v. Cohen
392 U.S. 83 (Supreme Court, 1968)
Sierra Club v. Morton
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Akron Coal Co. v. Fulton, Supt.
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Leber v. Buckeye Union Insurance
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The Ohio Crane Co. v. Hicks
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Skivolocki v. East Ohio Gas Co.
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Alexander v. Buckeye Pipe Line Co.
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Hamilton Insurance Services, Inc. v. Nationwide Insurance
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Pancoast v. Ruffin
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Bluebook (online)
332 B.R. 160, 2005 Bankr. LEXIS 1912, 2005 WL 2495862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-desert-village-ltd-partnership-ohnb-2005.