In re Texas Wyoming Drilling, Inc.

486 B.R. 746, 2013 WL 458269
CourtUnited States Bankruptcy Court, N.D. Texas
DecidedFebruary 4, 2013
DocketNo. 07-41650-DML7
StatusPublished
Cited by5 cases

This text of 486 B.R. 746 (In re Texas Wyoming Drilling, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Texas Wyoming Drilling, Inc., 486 B.R. 746, 2013 WL 458269 (Tex. 2013).

Opinion

MEMORANDUM OPINION

D. MICHAEL LYNN, Bankruptcy Judge.

Before the court is the Trustee’s Objection to Claim No. 82 (Charlie Lawrence )(the “Objection,” docket no. 9611)2 [750]*750filed in the Case on September 24, 2012 by John Dee Spicer, chapter 7 trustee (the “Trustee”) for Texas Wyoming Drilling, Inc. (“Debtor”) pursuant to Bankruptcy Code3 section 704(a)(5)4 and Federal Rule of Bankruptcy Procedure 3007. By the Objection, the Trustee objects to Claim No. 82 (the “Claim”) filed by Charles C. Lawrence (“Lawrence”), the former consulting director, president, and chief operating officer for Debtor. Lawrence claims that the court’s conversion of the Case from a case under chapter 11 of the Code to one under chapter 7 constitutes an involuntary termination of his employment agreement with Debtor. As a result, Lawrence seeks a total of $232,750.00 in compensation, benefits, and other expenses to be paid immediately as an administrative expense in the Case. The court held a hearing on the Objection on December 11, 2012 (the “Hearing”),5 at which the court admitted into evidence documentary exhibits6 and heard testimony from (1) Lawrence, (2) Nathan Villanueva, a revenue officer advisor for the IRS Advisory Unit (‘Villanueva”), and (3) Julie Lawrence, wife of Lawrence and financial controller and a stockholder of Debtor (“Julie”).7 At the conclusion of the Hearing, the court took the matter under advisement.

The court exercises core jurisdiction over this contested matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(B). This memorandum opinion constitutes the court’s findings of fact and conclusions of law. Fed. R. BankrP. 9014, 7052.

I. BACKGROUND

A. Debtor’s Chapter 11 Petition

Prior to its bankruptcy, Debtor’s business operations consisted of three primary areas: (1) oil drilling operations, (2) a working ownership in several dozen oil wells, and (3) “snubbing” operations, defined as relieving pressure on oil wellheads to prevent pipes from coming out of the ground. TR (Lawrence) at 5-8.

Debtor filed a voluntary bankruptcy petition under chapter 11 of the Code on April 16, 2007. See docket no. 1. Debtor’s goal in bankruptcy was to continue its business operations and restructure its debt, particularly debt owed to the IRS. TR (Lawrence) at 6-7; id. (Julie) at 73-74. Debtor believed that it could maximize return to creditors by operating the business as a going concern through chapter 11 rather than liquidating its assets through chapter 7. Id. (Lawrence) at 8.

On November 12, 2008, Debtor filed Debtor’s First Amended Plan of Reorganization (the “Plan,” at docket no. 577). The court confirmed the Plan on November 13, 2008. See Order Confirming Debtor’s First Amended Plan of Reorganization (the “Confirmation Order,” at docket no. 578). The Plan became effective on December 15, 2008. Id. The Plan was to be funded by Debtor’s business operations. TR (Lawrence) at 5-6. Neither the Plan nor the First Amended Disclosure Statement Under [Code] § 1125 In Support Of Debtor’s Plan of Reorganization (the “Dis[751]*751closure Statement,” at docket no. 476) contemplated the possibility that the Plan would fail and Debtor would be required to liquidate. TR (Lawrence) at 13.

B. The Executive Employment Agreement With Lawrence

Lawrence and Debtor entered into an Executive Employment Agreement (the “Agreement,” at Ex. D), pursuant to which Lawrence agreed to serve as Debtor’s president and chief operating officer from December 15, 2008 until December 15, 2014 (the “Term”)8 in exchange for (1) a base salary of $130,000.00 annually; (2) a bonus “[a]s determined from time to time by the Board of Directors;” and (3) “Twenty-five percent (25.00%) of all of the outstanding shares of the reorganized [Debtor] [issued] pursuant to the” Plan. Agreement, Ex. A.9 The Agreement also permitted Lawrence to “participate, on the same basis generally as other employees of [Debtor], in all general employee benefit plans and programs,” including but not limited to health insurance. Agreement § 2.2. Lawrence and Debtor “enter[ed] into th[e] Agreement pursuant to and in conjunction with the [Plan].” Id. at p. 1; see also Confirmation Order ¶ 33. The Agreement was not, and did not have to be, presented to the court prior to its execution and implementation by Debtor following the effectiveness of the Plan. See Confirmation Order ¶ 33.

Under the terms of the Agreement, Lawrence can either be terminated voluntarily, involuntarily, or for cause. See Agreement §§ 3.1-3.5. Each type of termination has different preconditions and consequences.10 Id.

C. Conversion to Chapter 7

In early 2009, Debtor encountered economic difficulties and failed to make a required payment to the IRS under the Plan. TR (Lawrence) at 10-13; id. (Villa-nueva) at 61-65; id. (Julie) at 80-81, 83, 91-93. In light of its business difficulties, Debtor entered into an auction agreement with Kruse Energy & Equipment, LLC (“Kruse”) on June 5, 2009, pursuant to which seven drilling rigs that Debtor customarily leased to customers would be auctioned off (the “Auction”). Id. (Lawrence) at 14-16; see also Ex. G-3. Lawrence, as a member of Debtor’s board of directors, was one of several representatives of Debtor who approved Debtor’s decision to auction the rigs. TR (Lawrence) at 14-15; id. (Julie) at 81. Debtor’s debtor-in-possession lender held a security interest in the seven rigs. Id. (Lawrence) at 26-27. As Lawrence admitted at the Hearing, the consummation of the Auction, which was set to occur on or around July 16, 2009,11 would cause “one category of [Debtor’s] business operation income,” namely “the leasing of drilling rigs,” to “go away.” Id. at 14. Lawrence further admitted that as a result of Debtor losing this stream of income, “[Debtor’s] ability to perform under [the Plan]” would be “shot by the auction.” Id. at 26-29.

According to Lawrence, Debtor was advised by the Curtis Law Firm (“Curtis”), Debtor’s chapter 11 counsel, that the IRS had notice of and approved the Auction, and Debtor was therefore permitted by its board to proceed with the Auction. TR (Lawrence) at 32-34. Lawrence later learned that the IRS had not in fact ap[752]*752proved the Auction. Id. at 33. In actuality, the IRS had no notice of the Auction until a few days before the Auction was set to occur. Id. (Villanueva) at 65. Lawrence never personally discussed the Auction with any representative for the IRS. Id. (Lawrence) at 40.

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Bluebook (online)
486 B.R. 746, 2013 WL 458269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-texas-wyoming-drilling-inc-txnb-2013.