Paul Harris Stores, Inc. v. Expeditors International of Washington, Inc. (In re Paul Harris Stores, Inc.)

342 B.R. 285, 2006 Bankr. LEXIS 2478
United States Bankruptcy Court, S.D. Indiana·Decided May 9, 2006·No. Bankruptcy No. 00-12467-BHL-11; Adversary No. 02-0479·Published·Cited by 1 cases

Opinion

ORDER

BASIL H. LORCH III, Bankruptcy Judge.

This matter comes before the Court on Expeditors International of Washington, Inc.’s [“Expeditors”] Motion for Partial Summary Judgment on Expeditors’ Counterclaim filed on August 29, 2005. The matter was fully briefed on November 11, 2005. Based upon the pleadings and evidence presented, the Court makes the following Findings of Fact:

1. On October 16, 2000 [the “Petition Date”], the Debtors filed voluntary Chapter 11 petitions for relief with this Court under Title 11 of the United States Code. [Complaint, ¶ 2.]

[287]*2872. Prior to the Petition Date, Paul Harris Stores, Inc. [“Paul Harris”] operated a number of retail stores, selling women’s clothing. [Deposition of Ronald W. Martin, p. 42.] Paul Harris continued to operate such stores for several months after the Petition Date, or until March 2001. [Martin Deposition, pp. 42, 62,100.]

3. Expeditors is a non-vessel operating common carrier, customs broker, freight forwarder and freight consolidator. [Affidavit of A. J. Tangeman, ¶ 2.]

4. Before the Petition Date, Paul Harris ordered merchandise [collectively, the “Post-Petition Goods”] for its retail stores from United Peak Limited, Easyknit International Trading Company Limited, and Beckey Ltd. [collectively, the “Vendors”] for an aggregate purchase price of $138,754.25. [Tangeman Affidavit, ¶¶ 4, 5 and 6; Martin Deposition, pp. 99-102, 109 and Exhibits D-12, D-13 and D-14 thereto.]

5. The terms of sale between Paul Harris and the Vendors required Paul Harris to pay for the Posb-Petition Goods by letters of credit before Paul Harris received physical possession of the Posb-Petition Goods. [Tangeman Affidavit, ¶ 8.]

6. Paul Harris hired Expeditors to transport the Post-Petition Goods from Hong Kong to Indianapolis and to clear the Posb-Petition Goods through United States Customs. [Tangeman Affidavit, ¶¶ 4-6.] Expeditors issued bills of lading for the Post-Petition Goods, naming La-Salle Bank as consignee, and transported the Post-Petition Goods from Hong Kong to Indiana. [Tangeman Affidavit, ¶ 9.]

7. Expeditors, upon clearance of the Post-Petition Goods through United States Customs, erroneously delivered physical possession of the Posb-Petition Goods directly to Paul Harris, rather than to LaSalle Bank or its designee. [Tange-man Affidavit, ¶ 10.]

8. At the time Expeditors physically delivered the Posb-Petition Goods to Paul Harris, the Vendors had not been paid the purchase price of the Post-Petition Goods. [Tangeman Affidavit, ¶ 11.]

9. Paul Harris sold substantially all of the Post-Petition Goods in the course of its operations and/or liquidation in Chapter 11. [Martin Deposition, pp. 109-111.]

10. The proceeds from the sale of the Post-Petition Goods were paid either to Paul Harris or to LaSalle Bank on account of its claims against Paul Harris. [Martin Deposition, pp. 110-111.]

11. Neither Paul Harris nor LaSalle Bank paid the Vendors any portion of the purchase price of the Post-Petition Goods. [Tangeman Affidavit, ¶ 12.]

12. The Vendors, not having received payment of the purchase price, alleged that Expeditors should not have delivered the Post-Petition Goods to Paul Harris. [Tangeman Affidavit, ¶ 13.] Therefore, the Vendors made demand on Expeditors for the full $138,754.25 purchase price. [Tangeman Affidavit, ¶ 13 and Exhibit E thereto.]

13. Expeditors settled the Vendors’ claims against it for $97,500.00 and thereafter reduced its said damages to $52,637.50. [Tangeman Affidavit, ¶¶ 14, 15.]

14. Although Paul Harris received the Posb-Petition Goods and utilized said goods for its own benefit, neither Paul Harris nor LaSalle Bank made any payments therefor. [Tangeman Affidavit, ¶ 16.]

15. On September 27, 2002, Paul Harris commenced this adversary proceeding under 11 U.S.C. § 547 in an effort to recover certain payments made to Expe[288]*288ditors within ninety days prior to the Petition Date and alleged to be preferential transfers.

16. On December 2, 2002, Expeditors timely answered Paul Harris’s Complaint and asserted a counterclaim for recovery of $52,637.50 for the Post-Petition Goods.

Discussion

Expeditors seeks partial summary judgment on its counterclaim wherein it asserts that Paul Harris is liable for $52,637.50, the net amount that Expeditors paid to the Vendors for the Post-Petition Goods. Expeditors also asserts that its claim is entitled to an administrative expense priority pursuant to 11 U.S.C. § 503(b).

Summary judgment is appropriate when there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Upon a motion for summary judgment, the Court will view the evidence in the light most favorable to the non-moving party and will draw all reasonable inferences in favor of the non-moving party. Market v. Board of Regents of Wisconsin System, 276 F.3d 906, 911 (7th Cir.2002). The moving party bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat a motion for summary judgment, the non-moving party cannot rest on the mere allegations or denials contained in his pleadings, but “must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial.” Robin v. Espo Eng’g Corp., 200 F.3d 1081,1088 (7th Cir.2000).

Paul Harris argues that Expeditors has failed to establish that the Debtors did not pay the Vendors for the Post-Petition Goods. In its Answer to the Counterclaim, Paul Harris denies all of the substantive allegations of the Counterclaim, including even the existence of any post-petition transactions between Paul Harris and the aforesaid Vendors. Certainly, Paul Harris is in possession of its books and records and is in the best position to establish the truth or falsity of the allegations. Paul Harris points to the deposition testimony of its own representative, Mr. Ronald W. Martin, Vice President of the Debtors. When Martin was asked whether the Debtors paid the Vendors for the Post-Petition Goods, he replied that he did not know.

Based upon the Debtors’ purported inability to establish payment, Expeditors then turns to another source for confirmation of payment or non-payment. In the Affidavit of A.J. Tangeman, Assistant General Counsel for Expeditors, he states that, at the time Expeditors delivered the Post-Petition Goods to the Debtors, the Vendors had not been paid for the goods and that neither the Debtors nor LaSalle Bank paid the Vendors any portion of the purchase price of the PosL-Petition Goods thereafter. Based upon that alleged failure of payment, the Vendors made demand upon Expeditors, who was held liable for the nonpayment and subsequently settled the claim against it in full satisfaction of the debt.

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

Paul Harris Stores, Inc. v. Expeditors International of Washington, Inc. (In re Paul Harris Stores, Inc.), 342 B.R. 285, 2006 Bankr. LEXIS 2478 (Ind. 2006).

342 B.R. 285 (Paul Harris Stores, Inc. v. Expeditors International of Washington, Inc. (In re Paul Harris Stores, Inc.)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Anvetta Maria Ruff
N.D. Georgia, 2022