In re Orleans Homebuilders, Inc.

561 B.R. 46, 2016 Bankr. LEXIS 4099, 2016 WL 6882831
United States Bankruptcy Court, D. Delaware·Decided November 21, 2016·No. Case No. 10-10684 (KJC)·Published

Opinion

OPINIÓN2

KEVIN J. CAREY, UNITED STATES BRANKRUPTCY JUDGE

Orleans Homebuilders, Inc. and related entities (the “Debtors” or “Orleans”) filed chapter 11 petitions on March 1, 2010. This Court entered an order confirming the Debtors’ Modified Second Amended Joint Plan of Reorganization (the “Plan”) on December 1, 2010, which became effective on February 14,2011.3

Cooks Bridge Condominium is a 332-unit residential condominium community [48]*48developed pre-petition by the Debtors and located in Jackson, New Jersey. In February 2013, Cooks Bridge Condominium Association (the “Association”) filed an action in New Jersey state court against the reorganized debtors and related individuals, among other parties, for alleged construction defects in certain common elements of ■ the condominium that were completed pre-petition.

Before the Court is the Reorganized Debtors’ Motion to Enforce Plan Injunction and Related Provisions and Requesting Award of Sanctions Against Cooks Bridge Condominium Association, Inc. (D.I. 4580) (the “Injunction Motion”), seeking an order from this Court that (i) requires the Association to discontinue prosecution of the state court litigation, and (ii) finding the Association in civil contempt and requiring it to pay sanctions, including, but not limited to, the Reorganized Debtors’ costs and attorneys’ fees incurred in defending against the state court litigation and pursuing the Injunction Motion. The Association filed an objection to the Injunction Motion (the “Association Objection”) (D.I. 4595), and the Reorganized Debtors responded with a reply in further support of the Injunction Motion (the “Reply”) (D.I. 4596). A hearing was held and the Court took the matter under advisement.

For the reasons set forth below, the Injunction Motion will be granted, in part, to enjoin the state court litigation, and deferred as to the request for sanctions.

FACTS

1. The Joint Pre-Trial Memorandum

The parties submitted a Joint Pre-Trial memorandum (D.I. 4611) which includes the following Statement of Uncontested Facts:

a. Orleans at Cooks Bridge, LLC, one the Debtors (the “Debtors” or “Orleans”), was the sponsor and developer of the Cooks Bridge Condominium development, a three hundred and thirty-two (332) unit condominium community located in Jackson, New Jersey. Construction of the fifty-one (51) buildings making up the Cooks Bridge development took place primarily between 2004 and 2008.
b. The development consists of twenty-five (25) “A” style buildings, containing two-story residential units arranged with both common side and rear walls, and twenty-six (26) “B” style buildings, containing two story town house style units. The community also has a pool, pool house, and tennis courts.
c. The buildings are constructed with wood framing on concrete foundation walls with asphalt shingle roofs. Type “A” buildings are clad with vinyl siding and aluminum “break metal” trim; type “B” buildings are clad with a cpm-bination of vinyl siding, manufactured stone veneer (SMV), stucco, and Azek trim.
d. In April 2005, Orleans incorporated the Cooks Bridge Condominium Association, Inc. (the “Association”).4
e. Orleans submitted an application for registration of Cooks Bridge, which included copies of a proposed Public Offering Statement.
f. Orleans began selling units in 2005 and sold the last unit at Cooks Bridge in May 2009.
[49]*49g. As part of the sales process, Orleans provided purchasers with a copy of the Public Offering Statement.5
h. After selling 75% of the total units in or around August 2008, Orleans transitioned control of the Association’s governing board to the unit owners and continued to market the remaining 25% (the “Transition”).
i. The last unit was sold on or about May 29, 2009. The last certificate of occupancy was issued in August 2009.6
j. The Debtors commenced these chapter 11 cases on March 1, 2010 (the “Petition Date”).
k. The Court entered an order (the “Confirmation Order”) confirming the Debtors’ Second Amended Joint Plan of Reorganization (the “Plan”), which was attached as Exhibit 1 thereto, on December 1, 2010 (the “Confirmation Date”).
l. The Plan became effective on February 14, 2011 (the “Effective Date”).
m. On February 25, 2013, the Association filed a complaint against certain of the Reorganized Debtors and certain former employees of the Reorganized Debtors in the Superior Court of New Jersey, Law' Division, Ocean County (the “State Court Action”) alleging, inter alia, negligence and breach of express, implied, and Planned Real Estate Development Full Disclosure Act (“PREDFDA” [or the “Development Act”]) warranties.7
n. On May 9, 2013, Orleans filed an Answer to the Association’s Complaint in the State Court Action, which included an affirmative defense based on the Reorganized Debtors’ bankruptcy discharge.8
o. Orleans defended the Association’s claims in the State Court Action. Counsel for Orleans appeared, on one occasion, at Cooks Bridge to attempt to observe a third-party contractor conduct repair work.9
p. On January 6, 2014, the Association served Orleans with its First Set of Interrogatories and Demand for Production of Documents. Orleans answered the Association’s discovery and produced documents in or around September 2014.10
q. The Association’s operative pleading in the State Court Action was most recently amended on September 5, 2014 (the “Third Amended Complaint”), which asserts five causes of action, all of which are based on various alleged defects to certain common elements at Cooks Bridge, including alleged defects with respect to vinyl siding, stucco, stone veneer, windows and doors, flashings, foundation walls and slabs, decks, and roof and roof structures.11
r. The five causes of action asserted in the Third Amended Complaint are: [50]*50negligence, breach of express warranties, breach of implied warranties, breach of fiduciary duty, and breach of PREDFDA.
s. In March 2015, Orleans produced an expert report prepared by Jonathan P. Dixon & Associates, P.C. (the “Dixon Report”).12

The Pre-Trial Statement also includes a Statement of Facts in Dispute. The crux of the parties’ dispute, however, is based upon certain language in the Plan.

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In re Orleans Homebuilders, Inc., 561 B.R. 46, 2016 Bankr. LEXIS 4099, 2016 WL 6882831 (Del. 2016).

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