Mountain Glacier LLC v. Nestle Waters North America, Inc. (In re Mountain Glacier LLC)

564 B.R. 314
CourtUnited States Bankruptcy Court, M.D. Tennessee
DecidedJanuary 13, 2017
DocketCase No: 15-03817; Adv. No 3:16-ap-90113
StatusPublished
Cited by1 cases

This text of 564 B.R. 314 (Mountain Glacier LLC v. Nestle Waters North America, Inc. (In re Mountain Glacier LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mountain Glacier LLC v. Nestle Waters North America, Inc. (In re Mountain Glacier LLC), 564 B.R. 314 (Tenn. 2017).

Opinion

Memorandum Opinion

THE HONORABLE CHARLES M. WALKER, UNITED STATES BANKRUPTCY JUDGE

Before the court is the reorganized debt- or, Mountain Glacier, LLC’s (the “Debt- or”) adversary Complaint against Nestle Waters North America, Inc. (“Nestle”) seeking declaratory judgment pursuant to 28 U.S.C. § 220. The Debtor seeks a determination as to whether the Debtor’s confirmed plan of reorganization preserved its interest in and right to pursue a prepet-ition claim against Nestle. The Debtor now seeks summary judgment.

Jurisdiction

Nestle sought to withdraw the reference by motion to the District Court for the Middle District of Tennessee. In its order denying Nestle’s motion to withdraw, the district court found that this matter is a “core proceeding” as it involved the interpretation of an order from another court. The district court declined to take on that task, and denied the motion to withdraw the reference. [ECF Doc. 53, at 3] Therefore, this court may conduct appropriate proceedings and enter a final order in this matter. 28 U.S.C. § 157(b)(1). .

Background

The Debtor filed for relief under Chapter 11 of the Bankruptcy Code1 on June 3, 2015 and filed its amended and restated plan of reorganization on February 15, 2016 (the “Plan”). This court entered an order confirming that Plan on February 17, 2016 (the “Order”).

Prior to the commencement of this Chapter 11 case, the Debtor and Nestle were parties to an arbitration styled Nestle Waters North America, Inc. v. Mountain Glacier LLC, administered by Judicial Arbitration and Mediation Services in Chicago, Illinois for which the arbitrator is Hon. Nan Nolan (the “Arbitration”). The Arbitration was stayed by the filing of the Chapter 11 petition. The Arbitration had been fully disclosed on Debtor’s Schedule B, Personal Property, as a “contingent and unliquidated” claim.

Following the effective date of the Plan, the Debtor sought to further pursue its [317]*317claims against Nestle in the Arbitration. Nestle responded by requesting dismissal of the Arbitration because the Order did not contain language sufficient to preserve the claims in the Arbitration. Failure to properly preserve the claims would trigger res judicata and prohibit the Debtor from further pursuing the Arbitration claims. The Debtor disputes this position and through this adversary proceeding, seeks declaratory judgment interpreting the Plan and Order.

Joint Pretrial Statement

The pretrial statement submitted jointly by the parties asserted the following legal issues:

1. Whether this matter is a core proceeding in which this Court may issue a final order.
2. Whether the Debtor’s claims against Nestle in the Arbitration are barred, in whole or in part, for lack of jurisdiction.
3. Whether the Debtor’s claims against Nestle in the Arbitration are barred, in whole or in part, by the doctrines of waiver, estoppel, laches and/or ratification.
4. Whether the Debtor’s claims against Nestle in the Arbitration are precluded by the doctrine of res judica-ta by the entry of the Confirmation Order.

The Disclosure Statement and Plan

A determination of the above-referenced issues requires an examination and interpretation of the language and provisions subject to the Order, specifically, the relevant sections of the Disclosure Statement and the Plan. The Debtor’s Disclosure Statement Accompanying Debtor’s Amended Plan of Reorganization was filed December 9, 2015 [ECF Doc. 169], and provides in relevant part:

III. SUMMARY OF ASSETS
B. Accounts and Causes of Action.
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The Debtor also has certain claims against parties in pending litigation that were in existence prior to the commencement of this case. These matters include a counterclaim asserted by the Debtor’s principal, Jay Peterson, against State Bank of Herscher in district court litigation pending in the Central District of Illinois and a counterclaim asserted by the Debtor against Nestle Waters North America, Inc. in arbitration pending in Chicago, IL before Arbitrator Nan Nolan. Since the litigation of these actions were stayed as to the Debtor upon the commencement of this Chapter 11 case, these claims remain unliquidat-ed and have unknown value.

***

IV. SUMMARY OF LIABILITIES
***
C. Unsecured Debt.
The Debtor’s unsecured debt, as reflected on the Debtor’s Schedules, is approximately $1,620,180.32. Most of the unsecured debt is outstanding trade obligations, with the largest claims being $207,331.00 owed to a related company, Evansville Bottling, and a disputed claim asserted by Nestle Waters in the amount of $581,642.26. Additionally the Debtor has unsecured deficiency claims owing to Herscher in the approximate amount of $3 million and BFS in the principal amount of $508,315.
V. LIQUIDATION ANALYSIS
For this Plan to be approved by the Court, a determination may be necessary that the Plan will provide to each creditor or equity security holder an amount, as of the Effective Date of the Plan, that is not less than the value of the property that each such creditor [318]*318would receive or retain if all of the assets of the Debtor were sold and the proceeds thereof were distributed under Chapter 7 of the Bankruptcy Code.
Since the Debtor is a service company, there is very little value in real or personal property. As stated above in Article III, the Debtor leases its real property and vehicles, thus leaving customer lists, inventory and accounts receivable as it primary assets of value. The book value of these assets is approximately $5 million and a liquidation value would be significantly less. Further, these assets are encumbered by the secured debt described in Article IV above in an amount that is greater than the liquidation value of these assets. In a liquidation, the assets would be liquidated and applied to the secured debt, leaving no distribution to the unsecured creditors and the equity interests.
VI. SUMMARY OF PLAN
A. Payment of Claims.
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Class 5. Class 5 consists of all Allowed Unsecured Claims that are not otherwise included in another Class herein and shall include the unsecured deficiency claim of State Bank of Herscher and the Allowed Claim of Business Finance Services. Except as otherwise provided below, these Claims shall be paid in the aggregate amount equal to ten percent (10%) of the Allowed Unsecured Claim in ten (10) semi-annual installments paid without interest over a period of five years with the first installment beginning on June 30, 2016 and thereafter on December 31, 2016 and then semiannually until a final installment on December 31, 2020.
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D.

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Cite This Page — Counsel Stack

Bluebook (online)
564 B.R. 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mountain-glacier-llc-v-nestle-waters-north-america-inc-in-re-mountain-tnmb-2017.