Opinion
Case No. 19-56885 (Jointly Administered)
2023-09-29
IN RE: MURRAY ENERGY HOLDINGS CO., et al., Debtors.
Brenda K. Bowers, Tiffany Strelow Cobb, Columbus, OH, Benjamin Butterfield, Todd Goren, Jennifer Marines, Lorenzo Marinuzzi, Erica Richards, Allison B. Selick, Morrison & Foerster LLP, New York, NY, Melissa S. Giberson, Thomas Loeb, Vorys, Sater, Seymour and Pease LLP, Columbus, OH, for Creditor Committee. Roma N. Desai, Bernstein Shur Sawyer & Nelson PA, Portland, ME, for Special Counsel. Jeremy Shane Flannery, Benjamin A. Sales, Office of the United States Trustee, Columbus, OH, Monica V. Kindt, Cincinnati, OH, for U.S. Trustee. Scott Alan Norcross, Kohrman Jackson & Krantz, Cleveland, OH, for Respondent.
Brenda K. Bowers, Tiffany Strelow Cobb, Columbus, OH, Benjamin Butterfield, Todd Goren, Jennifer Marines, Lorenzo Marinuzzi, Erica Richards, Allison B. Selick, Morrison & Foerster LLP, New York, NY, Melissa S. Giberson, Thomas Loeb, Vorys, Sater, Seymour and Pease LLP, Columbus, OH, for Creditor Committee. Roma N. Desai, Bernstein Shur Sawyer & Nelson PA, Portland, ME, for Special Counsel. Jeremy Shane Flannery, Benjamin A. Sales, Office of the United States Trustee, Columbus, OH, Monica V. Kindt, Cincinnati, OH, for U.S. Trustee. Scott Alan Norcross, Kohrman Jackson & Krantz, Cleveland, OH, for Respondent. MEMORANDUM OPINION AND ORDER (A) GRANTING IN PART AND DENYING IN PART PLAN ADMINISTRATOR'S MOTION FOR SUMMARY JUDGMENT SUSTAINING THE FIRST OMNIBUS OBJECTION TO CERTAIN MECHANIC'S LIEN CLAIMS OF ANDERSON EXCAVATING , LLC (Doc. 2393) and (B) GRANTING IN PART AND DENYING IN PART ANDERSON'S CROSS-MOTION FOR SUMMARY JUDGMENT (Doc. 2420) John E. Hoffman, Jr., United States Bankruptcy Judge
I. Introduction
Murray Energy Holdings Co. and its affiliated debtors and debtors in possession ("Debtors") initiated this contested matter by filing an objection ("Objection") (Doc. 1749) to the mechanic's lien claims of Anderson Excavating, LLC ("Anderson"). The plan administrator appointed under the Debtors' confirmed Chapter 11 plan ("Plan Administrator") then filed its motion for summary judgment on the claim objection ("Motion") (Doc. 2402). Anderson filed a response to the Objection ("Response") (Doc. 1836) as well as a cross-motion for summary judgment ("Cross-Motion") (Doc. 2420) and amended cross-motion ("Amended Cross-Motion") (Doc. 2486). The Plan Administrator filed responses in opposition to the Cross-Motion and Amended Cross-Motion (Docs. 2459 and 2518), and a motion to strike the Amended Cross-Motion. (Doc. 2510). For the reasons stated below, the Plan Administrator's Motion is granted in part and denied in part, and Anderson's Cross-Motion and Amended Cross-Motion are granted in part and denied in part.
II. Jurisdiction and Constitutional Authority
The Court has jurisdiction to hear and determine this matter under 28 U.S.C. § 1334(b) and the general order of reference entered in this district in accordance with 28 U.S.C. § 157(a). An action seeking the allowance or disallowance of claims against the estate is a core proceeding, see 28 U.S.C. § 157(b)(2)(B), as is the determination of the validity, extent, or priority of liens, see 28 U.S.C. § 157(b)(2)(K). "To the extent [a] matter involves a determination of the validity, extent and priority of liens on property of the estate and claims against such property, the matter 'would necessarily be resolved in the claims allowance process,' " BMO Harris Bank, N.A. v. Vista Mktg. Grp., Ltd. (In re Vista Mktg. Grp., Ltd.), 548 B.R. 502, 512 (Bankr. N.D. Ill. 2016) (quoting Stern v. Marshall, 564 U.S. 462, 499, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011)), and a bankruptcy court therefore would have the constitutional authority to finally adjudicate it. See Waldman v. Stone, 698 F.3d 910, 919 (6th Cir. 2012) ("When a debtor . . . seeks disallowance of a creditor's claim against the estate . . . the bankruptcy court's authority is at its constitutional maximum."); Black Diamond Comm. Fin. L.L.C. v. Murray Energy Corp. (In re Murray Energy Holdings Co.), 616 B.R. 84, 87 (Bankr. S.D. Ohio 2020) ("[B]ankruptcy courts have the constitutional authority to enter final orders adjudicating the validity and priority of liens on property of the estate."). The Court accordingly has the constitutional authority to finally adjudicate this contested matter.
III. Background
Anderson, a supplier of services, materials and equipment for some of the Debtors' mining operations, filed mechanic's liens in West Virginia and Pennsylvania to secure payment of money owed by the Debtors. Resp., Doc. 1836 at 3. Mechanic's liens are "statutory lien[s] secured by real or personal property, often for goods or services supplied in connection with improving, repairing or maintaining the property." In re Murray Energy Holdings Co., 639 B.R. 463, 467 (Bankr. S.D. Ohio 2022) ("WV-Eligibility Opinion"). Anderson then filed proofs of claim based upon its mechanic's liens: Claim Nos. 1280, 1283, 1284, 1289, 1285, 1286 and 1300. Each proof of claim was accompanied by a number of invoices supporting the mechanic's lien.
Anderson's West Virginia notices of lien with attached invoices are found in Notice by Anderson Excavating, LLC Pursuant to 11 U.S.C. Section 546(b)(2) ("Lien Notice") (Doc. 768).
The proofs of claim are attached as exhibits to the Motion, see Docs. 2393-5 through 2393-11. They are also found at https://cases.ra.kroll.com/murrayenergy/Home-Claiminfo.
This is not the first time the Court has considered Anderson's claims. The Court previously issued its WV-Eligibility Opinion, which addressed the secured status of Anderson's claims and those of other creditors that asserted secured claims based on their West Virginia's mechanic's liens. See WV-Eligibility Op., 639 B.R. at 463. In the WV-Eligibility Opinion, the Court addressed whether Anderson and other mechanic's lien claimants were eligible to file mechanic's liens under West Virginia's laborer's lien statute, W.Va. Code § 38-2-31 (West 2023) ("Section 31"), or were required to file their mechanic's liens under West Virginia's contractor's lien statute, W.Va. Code § 38-2-1, which they did not do.
The Court granted partial summary judgment to Anderson and the other mechanic's lienholders on the eligibility issue, holding they had a right to file mechanic's liens under the laborer's lien statute. WV-Eligibility Op., 639 B.R. at 490. But the Court also held that Section 31 provides priority to a lienholder only "to the extent and value of one month's . . . work or labor," and another West Virginia statute, W. Va. Code § 38-2-33 ("Section 33"), requires mechanic's lienholders to show in their notices of lien the one-month amounts for which they claim priority. Id. at 485-87. The Court found that, with one exception (Claim No. 1280), Anderson's mechanic's liens had not properly shown the one-month amounts, and thus deferred a ruling as to what portion of Anderson's claim had priority status vis-à-vis later filed liens until Anderson had the opportunity to comply the Court's directives set forth in the WV-Eligibility Opinion. Id. at 489-90.
Section 33 provides that
[t]he clerk of the county court, to whom the notice of lien . . . is presented, shall record the same in the mechanic's lien record. If the amount of the claim is for more than one month's work or labor, the record shall show, separately, the full amount of the claim and in addition thereto the amount of the claim for such month for which such prior lien is claimed.W.Va. Code § 38-2-33 (emphasis added).
Ordinarily, when a bankruptcy court uses the phrase "priority status," it does so to denote that a particular unsecured claim or expense is entitled to priority in payment under § 507 of the Bankruptcy Code. See 11 U.S.C. § 507. Here, however, the Court uses the phrase priority status to refer to the priority that Section 31 grants a mechanic's lienholder over a later-filed lien to the extent of one month's work or labor. And when the Court finds that all or part of an amount on an Anderson invoice is entitled to priority status, that amount may be included in calculating the allowed amount of Anderson's related secured claims.
Under the WV-Eligibility Opinion, Claim No. 1280 was allowed in full as a secured claim with priority over any later lien because the invoices attached to the proof of claim and the related notice of lien are all for work that occurred within a one-month span. Id. at 487. As for five of Anderson's claims—Claim Nos. 1283, 1284, 1285, 1288 and 1300—the WV-Eligibility Opinion noted that each was accompanied by multiple invoices for work done over several months and directed Anderson to "determine which month's work it wishe[d] to claim as priority for each Notice of Lien within [the] claims and [ ] calculate the total of that month's work." The WV-Eligibility Opinion further directed Anderson to "provide the calculations and the resulting claimed amounts to [the Plan Administrator.]" Id. at 488. The seventh claim, Claim No. 1286, was accompanied by a single invoice that covered a period of more than one month. As to that claim, the WV-Eligibility Opinion directed Anderson to "document the amount of work performed within whichever one-month period it wishes to claim as priority . . . calculate the amount due for that work . . . and provide the documentation, calculation and priority amount claimed to [the Plan Administrator.]" Id. The WV-Eligibility Opinion provided that the Plan Administrator could object to Anderson's submissions, after which the Court would determine whether Anderson had complied with Section 33. Id.
Anderson filed its Notice by Anderson Excavating, LLC with Respect to Claims 1283, 1284, 1285, 1286, 1288 and 1300 Pursuant to the Court's Memorandum Opinion and Order Dated March 31, 2022 ("Priority Notice") (Doc. 2935), accompanied by Exhibits A (one-month calculation summaries) and B (invoices) (Docs. 2935-1 and 2935-2). The Plan Administrator responded with the Plan Administrator's Objection to Anderson Excavating's LLC's Notice ("Priority Objection") (Doc. 2955). The Priority Objection included an Exhibit A, Doc. 2955-1, that contained six tables listing all the invoices pertaining to each claim and highlighting those that are for work done outside the one-month period, or in one instance, failed to include a date range.
Although not authorized by the WV-Eligibility Opinion, Anderson filed a Response to the Priority Objection ("Priority Objection Response") (Doc. 2965) with an attached declaration of an Anderson project engineer (Doc. 2965-1) and an additional exhibit containing work logs and supplementary details that changed its one-month calculations for Claim Nos. 1283, 1285, 1286 and 1288 as well as the one-month dates for Claim No. 1286 (Doc. 2965-2). The Plan Administrator then filed a second objection ("Second Priority Objection") (Doc. 2972), arguing that the Court should disregard the unauthorized Priority Objection Response.
IV. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, made applicable here by Rule 7056 of the Federal Rules of Bankruptcy Procedure, a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts." Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (cleaned up). "A dispute is 'genuine' only if based on evidence upon which a reasonable [finder of fact] could return a [judgment] in favor of the non-moving party." Gallagher v. C. H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir. 2009). And a "factual dispute concerns a 'material' fact only if its resolution might affect the outcome of the suit under the governing substantive law." Id.
Here, there are cross-motions for summary judgment. When parties file cross motions for summary judgment, "[e]ach party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that he or she is entitled to judgment as a matter of law." Fed. Energy Regul. Comm'n v. Coaltrain Energy, L.P., 501 F. Supp. 3d 503, 522 (S. D. Ohio 2020). "The fact that one party fails to satisfy that burden on his or her own Rule 56 motion does not automatically indicate that the opposing party or parties has satisfied the burden and should be granted summary judgment on the other motion." Id.
The Court previously granted Anderson summary judgment on the issue of eligibility to file notices of lien under Section 31. Now, the Court must determine whether and to what extent either party is entitled to summary judgment on the issue of Anderson's compliance with Section 33 such that its one-month claims are accorded priority over subsequent lienholders.
V. Analysis of the Parties' Positions
A. Date Ranges and Pro-rated Claims
In its Priority Notice, Anderson sets forth the amounts within each proof of claim that it believes are entitled to priority over subsequent liens under Sections 31 and 33. Each invoice referenced in the claims contains a line that says "Work Completed" followed by a date range, or sometimes by a single date. The Plan Administrator argues that Anderson's Priority Notice fails to meet the WV-Eligibility Opinion's requirements for two reasons. First, "Anderson never actually states that the date ranges listed on the invoices show the days the work was performed, nor does it provide any evidence to that effect." Priority Obj., Doc. 2955 at 4. Second, when an invoice's date range exceeds the claimed month, "Anderson baldly asserts that it should be entitled to a pro-rated amount for the number of days within the claimed month . . . . But Anderson's methodology . . . relies on the unfounded assumption that all of the work stated in each invoice was performed in equal amounts on every day within the listed date range. Because there is no evidence that the work was so evenly distributed across the date range, Anderson's assertion that it can claim priority as to a pro-rata share of each invoice fails." Id. at 5.
The Plan Administrator's first point is not well-taken. Common sense requires acknowledging that an invoice stating "Work Completed [date to date]" means exactly that—the work for which the invoice charges was done within the dates listed. Here, all the Anderson invoices bear dates showing that they were generated within days of the final "Work Completed" date, lending credence to the presumption that the work was done when the invoice said it was done. Further, Section 33 requires only that "the record shall show, separately, the full amount of the claim and in addition thereto the amount of the claim for such month for which such prior lien is claimed." W. Va. Code § 38-2-33. In the Priority Notice, Anderson has provided the month for which it claims priority, the amount claimed for that month and invoices supporting that amount.
As for the question of whether it is appropriate for Anderson to seek a pro-rata share of the amount set forth on an invoice whose date range exceeds the one-month limitation, the Court agrees with Anderson in part, and with the Plan Administrator in part. Some invoices make it clear that the amount billed is for a flat-rate monthly fee. For example, Invoices 9911, 9994 and 9995 in Claim No. 1283 each show a charge for a monthly truck rental. For invoices based on a flat-rate monthly fee, the only equitable way to determine the amount entitled to priority is to divide the monthly fee into a daily rate and multiply that rate by the number of days within the claimed month. Therefore, for those invoices based on a flat-rate monthly fee, the Court finds the Plan Administrator's argument without merit.
For other invoices that are not based on a flat-rate monthly fee, however, the Plan Administrator is correct: Anderson may not arbitrarily claim a daily rate when it is not apparent when (or if) work was performed or goods were supplied on days that fall within the claimed month. Even if the work logs provided in the Priority Objection Response are for work done on certain days, those logs are silent as to the rate charged for that work. Anderson accordingly may not pro-rate invoices that contain work not billed on a flat-rate basis.
The Court acknowledges that Intermittent Work Contracts attached as exhibits to the Motion contain rate sheets that show hourly, daily, by-the-mile and percentage rates for various jobs. See, e.g., Doc. 2393-3 at 23-27; 45-49; 70-74; 92-96; 114-118. Those rate sheets are for 2015, however, not 2019 when the work was done. Further, the work logs contained in the Priority Objection Response contain no listing of the hours worked, nor do they identify the type of work in a manner that could be matched to the rate sheets.
B. Claim-by-Claim Analysis
With these principles in mind, the Court will now examine each claim:
Claim No. 1283
The total sought by Anderson in its Claim No. 1283 is $601,724.89. Mot., Doc. 2393-6 at 3. While Anderson initially listed the entire amount as a secured claim, id., its Priority Notice asserts priority status for work performed between July 3 and August 2, 2019, for $121,179.91. Priority Not., Doc. 2935 at 2. This amount covers three categories of invoices. The first category includes Invoices 10006 ($23,282.33), 10014 ($31,000), 10016 ($1,275) and 10161 ($31,000), totaling $86,557.33. According to Anderson, those invoices are for work performed or materials supplied entirely within the claimed priority period. Priority Not., Doc. 2935 at 2; Mot., Doc. 2393-6 at 33, 34, 35, 37. The Court's review of these invoices confirms that they fall within the one-month period, and the Plan Administrator agrees. Priority Obj., Doc. 2955-1, Ex. A at 1. Thus, Invoices 10006, 10014, 10016 and 10161 are accorded priority status over subsequent lienholders in the amounts of $23,282.33, $31,000, $1,275, and $31,000, respectively.
The second category includes Invoices 9911, 9994 and 9995, each of which covers a period extending beyond Anderson's claimed one-month period. Priority Not., Doc. 2935 at 2. Each of those invoices imposes a charge for "JD Truck Rental/JD Artic Truck Monthly Rental." Mot., Doc. 2393-6 at 27, 31, 32. Anderson asks the Court to grant it priority status for the amounts stated in those three invoices by calculating the percentage of each invoice falling within the claimed month. Priority Not., Doc. 2935 at 2. For example, Invoice 9911 says "Work Completed 6/10/19-7/10/19," meaning that the amount of the invoice should be pro-rated for the eight days from July 3 through July 10, and that Invoice 9911 should therefore be accorded priority status in the amount of $3,922.58, or .25806 of the total invoice amount of $15,200. Id. Anderson treats Invoices 9994 and 9995 the same way, contending that both invoices, each of which is for $15,200, are for work performed during the period from July 2, 2019 through August 2, 2019 and thus each is entitled to priority in the amount of $14,725 (.96785 of $15,200). Id. The Plan Administrator objects to that treatment. See Priority Obj., Doc. 2955. As explained above, for invoices listing a flat monthly rate for a service, it is appropriate to pro-rate the priority amount based on the number of days within the claimed month. Thus, Invoices 9911, 9994 and 9995 shall be granted priority status over subsequent lienholders in the amounts of $3,922.58, $14,725 and $14,725, respectively.
As for the third category, Invoice 9913, Anderson initially sought priority status for $1,250, or one-third of the $3,750 invoice amount. Priority Not., Doc. 2935 at 2. The invoice is for "Pulling Inside Slopes Nolan Run Imp." Mot., Doc. 2393-6 at 29. In its Priority Objection Response, Anderson seeks to increase that amount to $1,875, asserting that its work logs demonstrate that one-half of the invoiced work took place within the claimed month, meaning one-half of the $3,750 invoice amount should be given priority status. Priority Obj. Resp., Doc. 2965 at 2. Those work records were presumably available to Anderson when it filed its Priority Notice, yet it failed to provide them until challenged by the Plan Administrator. Further, Anderson did not seek leave of Court to make additional filings after those required by the WV-Eligibility Opinion. But even if the Priority Objection Response had been authorized, Anderson's work logs are entirely unhelpful because they contain no information regarding the rates charged or the hours worked. The Court therefore finds, consistent with its reasoning above, that it will not pro-rate an amount that is not clearly for a flat-rate monthly service. As a result, Invoice 9913 will not be accorded priority status in any amount.
For these reasons, Claim No. 1283 is entitled to priority status in the total amount of $119,929.91. The remainder of Claim 1283 is reclassified as a general, unsecured claim.
Claim No. 1284
Claim No. 1284 was filed as a secured claim for $1,520,285.09. Mot., Doc. 2393-7 at 3. Anderson asserts priority status for work performed from July 1, 2019 through July 31, 2019 for $284,712.84. Priority Not., Doc. 2935 at 2. This amount is drawn from eleven invoices. Of these, Anderson says that seven are for work performed entirely in the claimed priority month: Invoices 1008 ($3896.75), 10009 ($6,710.35), 10010 ($10,608), 10011 ($22,164), 10012 ($4,352.75), 10013 ($23,000), and 10041 ($157,477.71), for a total of $228,209.56. Doc. 2935 at 2. The Plan Administrator concedes that these seven invoices are for work done entirely within the claimed month. Priority Obj., Doc. 2955-1 at 2. Thus, the amounts set forth in those invoices will be accorded priority over subsequent lienholders.
Invoice 9921 is for "Rental 40 Ton Artic Truck - $15,200 and Hourly Charge Per Tuck [sic] Over 160 - $9500." Mot., Doc. 2393-7 at 28. The invoice states that the work was completed from "6/15 to 7/3/2019." Id. Anderson seeks priority status for $3,900 for this invoice, which is for a pro rata portion of both the monthly rental and the overtime hours. Priority Not., Doc. 2935 at 2. Anderson bases this calculation on 19 work days, three of which fall within the claimed priority month. Id. Because the truck rental is charged at a flat rate, three days of the charge for truck rental, or $2,400, is accorded priority status. As for the portion of the invoice seeking priority for the hourly charges, the Court has insufficient information to determine how many, if any, of the overtime hours were spent during the claimed month, and thus none of the $9,500 charge for the hourly charges will be accorded priority status.
Invoice 10005 shows a charge of $15,200 for "Rental 40 Ton Artic Truck" from 7/3/2019 to 8/3/2019. Mot., Doc. 2393-7 at 31. Anderson seeks priority status for $13,775 of this amount based on pro-rating the invoice to cover the 29 days within the claimed month. Priority Not., Doc. 2935 at 2. Because this is a flat-rate monthly rental charge, it is appropriate to pro-rate the charge, and Invoice 10005 is therefore accorded priority status in the amount of $13,775.
Invoices 10156 and 10092 must be read together. Invoice 10156 reflects a charge of $21,422.50 for "Rental 40 Ton Artic Truck - July Overage." Mot., Doc. 2393-7 at 40. The invoice states that work was completed "7/3/2019 to 8/3/2019." Id. Invoice 10092 also shows a charge of $21,422.50 for "Overage HRS on 40T Articulated Truck - August" and also states that the work was completed "7/3/2019 to 8/3/2019." Id. at 39. Anderson seeks to pro-rate both invoices and claim priority in the amount of $19,414 for each. Priority Not., Doc. 2935 at 2-3. The Plan Administrator correctly points out that "[a]s Anderson has claimed priority for the month of July 2019, the entirety of the $21,442.50 invoiced in invoice 10092 [August] is not within that claimed month." Priority Obj., Doc. 2955 at 6. Because Anderson claims July 1 to July 31 as its priority month, it may not seek priority for August overage hours. Pro-rating the invoice amount of $21,442.50 for the 29 days within the claimed month of July, the Court accords priority status to $19,414.14 for Invoice 10156 and denies priority status for the entirety of Invoice 10092.
For these reasons, Claim No. 1284 is accorded priority over any subsequent lienholder in the amount of $263,798.70. The remainder of Claim 1284 is reclassified as a general unsecured claim.
Claim No. 1285
Claim No. 1285 was filed as a secured claim for $538,116. Mot., Doc. 2393-8 at 3. Anderson seeks priority status for $183,083.02 for work done or equipment supplied from March 5, 2019 to April 4, 2019. Priority Not., Doc. 2935 at 3. The priority amount is based on six invoices. Five of those—Invoices 9487 ($22,176), 9571 ($36,960), 9572 ($22,176), 9573 ($14,784), and 9614 ($75,000)—are for work done or equipment supplied entirely within the claimed month, id. at 8, and the Plan Administrator concedes that these invoices fall within the claimed priority month. Priority Obj., Doc. 2955-1, Ex. A at 4.
The remaining invoice, Invoice 9686, is for "Transport Sediment Toe Pond to Refuse" and lists the work as "Completed 4/1/19/to 5/7/19" in an amount of $110,880. Mot., Doc. 2393-8 at 26. The Plan Administrator notes that 33 of the 37 days listed in the invoice are outside the claimed month. Priority Obj., Doc. 2955-1 at 3. Anderson asserted in the Priority Notice that it is entitled to $11,987.02 for the four remaining days, Priority Not., Doc. 2935 at 3, but then in its Priority Objection Response increased that amount to $17,058.46. Priority Obj. Resp., Doc. 2965 at 3. In support of this increased amount, it attached work logs detailing specific tasks performed by specific workers on 26 of the 37 days in the period covered by the invoice. Id. at 3-8.
Again, Anderson was not authorized to file supplemental calculations and work logs. That aside, having reviewed the invoice as well as the work logs attached to the Priority Objection Response, the Court finds that the invoice does not include a flat-rate fee capable of pro-ration, but rather an accumulated total of various jobs done by several employees over a period of time. Neither the actual hours worked nor the hourly rate of the workers is set forth in either the invoice or the work logs, meaning there is no basis upon which the Court can accord priority status to the amounts stated in Invoice 9696.
For these reasons, Claim No. 1285 is accorded priority over any subsequent lienholder in the amount of $171,096 as reflected in Invoices 9487, 9571, 9572, 9573 and 9614. The remainder of Claim 1285 is reclassified as a general unsecured claim.
Claim No. 1286
Claim No. 1286 was filed as a secured claim for $14,000. Mot., Doc. 2393-9 at 3. Anderson seeks priority status for $10,888.89 for work done from February 1 to February 28, 2019. Doc. 2935 at 3. This work is the subject of Invoice 9488, which charges for "7 North Portal Snow Removal" and states that the work was completed between February 1 and March 8, 2019. Mot., Doc. 2393-9 at 13. Anderson initially proposed to pro-rate this invoice based on 28 days falling within the claimed month. Priority Not., Doc. 2935 at 3. The Plan Administrator objected to the pro-ration because snow removal is not a flat-rate charge, but rather a task completed on an as-needed basis. Priority Obj, Doc. 2955 at 5-6. Anderson countered this argument with its Priority Objection Response, changing the claimed month to February 10, 2019 to March 8, 2019, listing twelve days worked within the newly claimed month, and increasing its priority request to $12,833.33. Priority Obj. Resp., Doc. 2965 at 3; Doc. 2965-2 at 9.
Having reviewed the invoice, the Priority Objection Response and the accompanying work logs, the Court is unpersuaded by Anderson. As the Plan Administrator points out, snow removal is not a flat-rate charge, and the work logs submitted do not shed light on the amount charged per worker per hour. In addition, as previously stated, the work logs were available to Anderson when it filed its Priority Notice. If it had a basis for claiming priority status for snow removal charges, it had the opportunity to present that evidence then.
For these reasons, Claim No. 1286 shall not be granted priority status in any amount, but is reclassified as a general unsecured claim in its entirety.
Claim No. 1288
Claim No. 1288 was filed as a secured claim for $1,287,252.52. Mot., Doc. 2393-10 at 3. Anderson asserts priority status for work done or equipment supplied from June 24, 2019 to July 23, 2019 in the amount of $444,946.87. Priority Not., Doc. 2935 at 3. The work during this period is included in three invoices: Nos. 10015 ($87,259.38), 10063 ($318,031.69), and 10097 ($39,655.80). Id. The Plan Administrator concedes that the first, Invoice 10015, falls entirely within the priority period. Priority Obj., Doc. 2955 at 7. The second, Invoice 10063, reads "Project: Cunningham Perimeter Ditch, Work Completed to 7/1/2019, 1 Pay Application #2." Mot., Doc. 2393-10 at 26. The Plan Administrator appropriately objects to this invoice because it does not include a complete date range. Priority Obj., Doc. 2955 at 7. There is no basis on which the Court can find that all the work billed was done within the claimed month when the only date designation is "Completed to 7/1/2019," and thus, no amount of Invoice 10063 will be accorded priority status.
The third invoice, No. 10097, includes a charge of $110,155 for "8 South #2 BH, Work Completed 7/15/19 to 8/8/19, 1 Site Development of 8 South #2 Power Borehole." Mot., Doc. 2393-10 at 28. Anderson initially proposed to pro-rate this invoice, with a resulting claim for nine days work within the claimed month, for a priority request of $39,655.50. Priority Not., Doc. 2935 at 3. In its Priority Objection Response, however, Anderson increased its request to $44,062 by decreasing the work days to six, but increasing the per diem rate. Priority Obj. Resp., Doc. 2965-2 at 13. Inexplicably, Anderson then attached work logs covering the period from May 28, 2019 to June 17, 2019, the entirety of which occurred prior to the claimed month. Id. at 14-16. Because the invoice does not impose a flat-rate charge, pro-ration is not appropriate, and because Anderson filed the Priority Objection Response without authorization, the Court is unable to grant priority status to any portion of Invoice 100097. Even if the filing had been authorized, it provides no information that would support granting priority status to any of the charges contained in the invoice.
For these reasons, Claim No. 1288 is accorded priority status over any subsequent lienholder in the amount of $87,259.38 as shown on Invoice 10015. The remainder of Claim 1288 is reclassified as a general unsecured claim.
Claim No. 1300
Claim No. 1300 was filed as a secured claim for $3,942,534.88. Mot., Doc. 2393-11 at 3. The amount for which Anderson seeks priority status has been a moving target. Anderson initially sought priority for $575,803.75 in its Amended Cross-Motion. Am. Cross-Mot., Doc. 2486-3 at 6. Anderson's Priority Notice, however, increased the request and seeks priority status for $641,610.73, with the one-month priority period claimed as May 3, 2019 to June 2, 2019. Priority Not., Doc. 2935 at 3. Anderson's Priority Objection Response then reduced its request to $634,282.25. Priority Obj. Resp., Doc. 2965 at 4. There are 30 invoices supporting this claim. Priority Not., Doc. 2935 at 3-4. There is no dispute that 22 of those invoices, totaling $580,893.75, fall entirely within the claimed priority period. Priority Obj., Doc. 2955 at 7. The amounts stated in Invoice Nos. 9671, 9735, 9748, 9751, 9736, 9672, 9737, 9749, 9752, 9683, 9840, 9841, 9842, 9697, 9835, 9836, 9837, 9673, 9738, 9750, 9753 and 9839, are accorded priority status over subsequent liens.
As to the remaining eight invoices, the Court finds as follows:
Invoice 9693: This invoice shows a charge of $10,800 for "Kammer Coal Haul, Work Completed 4/18/19 to 5/6/19, 1 Truck Coal from Kammer to MSHCC." Mot., Doc. 2393-11 at 55. Anderson initially proposed to pro-rate this amount to provide priority status for four days, or $2,273.68. Priority Not., Doc. 2935 at 4. But in its Priority Objection Response, Anderson claimed only one day of priority, at a higher per diem rate, for a total of $2,160. Priority Obj. Resp., Doc. 2965-2 at 17. Nothing in the invoice shows that coal hauling was billed at a flat-rate monthly charge, making it inappropriate to pro-rate the invoice. And the Priority Objection Response was, again, unauthorized. Even if it had been authorized, it supplied no information on which the Court could determine the actual amount of work done or the hourly rate billed for the day in question. Thus, none of the charges listed in Invoice 9693 is entitled to priority status.
Invoice 9834: This invoice reflects a charge of $9,360 for "Kammer Coal Haul, Work Completed 5/15/19 to 6/6/19, 1 Truck Coal from Kammer to MSHCC." Mot., Doc. 2393-11 at 71. Anderson initially proposed to pro-rate this invoice to provide priority status for 19 days, or $7,732.17. Priority Not., Doc. 2935 at 4. Anderson's Priority Objection Response, however, reduced the days claimed to three and the requested priority amount to $4,680. Priority Obj. Resp., Doc. 2965-2 at 18. As with Invoice 9693, nothing in Invoice 9834 demonstrates that coal hauling was billed at a flat-rate monthly charge, making it inappropriate to pro-rate the invoice. And again, the Priority Objection Response contains no information that would enable the Court to determine the actual amount of work done or the hourly rate billed for the days in question—even if the Court had authorized its filing (which it did not). Thus, no amount listed in Invoice 9834 is accorded priority status.
Invoice 9696: This invoice is in the amount of $14,400 and reads "Volvo 40 Ton Rental, Work Completed 4/29/19 to 5/4/19, 1 Rent Volvo 40 Ton Artic Refuse." Mot., Doc. 2393-11 at 58. Anderson proposes to pro-rate this amount to provide priority status for two days, or $4,800. Priority Not., Doc. 2935 at 4. Because this invoice is for a flat-rate monthly charge, it is appropriate to pro-rate the amount, and the amount of $4,800 is thus accorded priority status.
Invoice 9785: This invoice includes a charge of $25,560 for "FGD Slopes & Benches, Work Completed 5/31/19 - 6/6/19, 1 Establishing Cut Slopes and Benches, 3:1 Slope at FGD Site 5/31/19 - 6/6/19." Mot., Doc. 2393-11 at 66. Anderson initially proposed to pro-rate this amount to provide priority status for three days, or $10,954.28, Priority Not., Doc. 2935 at 4, but its Priority Objection Response reduced that to one day, or $5,112. Priority Obj. Resp., Doc. 2965-2 at 19. Again, nothing in Invoice 9785 shows that establishing cut slopes and benches was billed at a flat-rate monthly charge, making it inappropriate to pro-rate the invoice. Nor does the Priority Objection Response contain information that would allow the Court to determine the actual amount of work done or the hourly rate billed for the days in question (even if the Court had authorized the filing—which it did not). Anderson supplied no other information that would provide a basis to determine the actual amount of work done or the hourly rate billed for the day in question. Therefore, no amount stated in Invoice 9785 is accorded priority status.
Invoice 9786: This invoice imposes a charge of $7,480 for "Unit #3 Labor, Work Completed 5/31/19 - 6/6/19, 1 Labor Unit #3 Rock Wheel 5/31/19 - 6/6/19." Priority Not., Doc. 2935-2, Ex. B at 8. Anderson initially proposed to pro-rate this amount to provide priority status for three days, or $3,205.71. Priority Not., Doc. 2935 at 4. In its Priority Objection Response, however, it decreased the number of days to two, but increased the per diem rate, claiming $7,480 as a new priority claim amount. Priority Obj. Resp., Doc. 2965-2 at 20. Nothing in Invoice 9786 indicates that labor is billed at a flat-rate monthly charge, making it inappropriate to pro-rate the invoice. Further, the information included in the Priority Objection Response would not assist the Court in determining the actual amount of work done or the hourly rate billed for the days in question even if the filing had been authorized. Therefore, no amount stated in Invoice 9786 is accorded priority status.
While listed in Anderson's Notice of Lien filed with Claim 1300, there is no Invoice 9786 attached to the proof of claim. The invoice is, however, supplied as part of Anderson's Priority Notice (Doc. 2935-2, Ex. B at 8).
Invoice 9787: This invoice includes a charge of $28,756 for "Unit #3 Equipment, Work Completed 5/31/19 - 6/6/19, 1 Equipment for Grinding & Loading Unit #3." Priority Not., Doc. 2935-2 at 27. Anderson proposes to pro-rate this amount to provide priority status for three days, or $12,324. Priority Not., Doc. 2935 at 4. Nothing in Invoice 9787 shows that Anderson billed on a flat-rate monthly basis for providing equipment, making it inappropriate to pro-rate the invoice. Anderson supplied no other information that would allow the Court to determine the actual amount of work done or the hourly rate billed for the days in question. Therefore, no part of Invoice 9787 is entitled to priority status.
Invoice 9788: This invoice reflects a charge of $32,130 for "FGD Delivery, Work Completed 5/3/19 - 6/6/19, 1 FGD Delivery Bellaire Harbor to FGD Site." Mot., Doc. 2393-11 at 67. Anderson initially proposed to pro-rate this amount to provide priority status for three days, or $13,770. Priority Not., Doc. 2935 at 4. In its Priority Objection Response, however, it decreased the number of days to one, but increased the per diem rate, claiming $8,032.50 as a new priority claim amount. Priority Obj. Resp., Doc. 2965-2 at 21. Nothing in Invoice 9788 shows that Anderson billed on a flat-rate monthly basis for deliveries, making it inappropriate to pro-rate the invoice. Anderson provided no other information that would enable the Court to determine the actual amount of work done or the hourly rate billed for the day in question. Therefore, no amount stated in Invoice 9788 is accorded priority status.
Invoice 9849: This invoice imposes a charge of $19,800 for "Phase 1 Freshwater Line, Work Completed 5/28/19 - 6/17/19, 1 Fuse, Test, and Begin Installation of 2,200 FT 16" DR 11." Mot., Doc. 2393-11 at 81. Anderson initially proposed to pro-rate this amount to provide priority status for six days, or $5,657.14. Priority Not., Doc. 2935 at 4. In its Priority Objection Response, however, it decreased the number of days to four, but increased the per diem rate, claiming $8,800 as a new priority claim amount. Priority Obj. Resp., Doc, 2965-2, at 22. Nothing in Invoice 9849 demonstrates that Anderson billed on a flat-rate monthly basis for this job, making it inappropriate to pro-rate the invoice. Anderson offered no other information that would provide a basis for the Court to determine the actual amount of work done or the hourly rate billed for the days in question. Therefore, no amount stated in Invoice 9849 is entitled to priority status.
For the above reasons, Claim 1300 is accorded priority status over any subsequent lienholder in the amount of $585,693.75, reflecting the totals allowed for Invoices 9671, 9735, 9748, 9751, 9736, 9672, 9737, 9749, 9752, 9683, 9840, 9841, 9842, 9697, 9835, 9836, 9837, 9673, 9738, 9750, 9753, 9839, and 9696. The remainder of Claim 1300 is reclassified as a general unsecured claim.
VI. Conclusion
For the reasons set forth above, the Plan Administrator has established that there is no genuine issue of material fact and it is entitled to judgment as a matter of law with respect to the portion of each claim for which the Court has denied priority status. The Plan Administrator's Motion is therefore GRANTED IN PART and DENIED IN PART.
Likewise, Anderson has established that there is no genuine issue of material fact and it is entitled to judgment as a matter of law as to the portion of each claim for which the Court has granted priority status. Anderson's Cross-Motion and Amended Cross-Motion are therefore GRANTED IN PART and DENIED IN PART.
Claim No. 1283 is allowed as a secured claim in the amount of $119,929.91. The remainder of Claim 1283 is reclassified as a general, unsecured claim. Claim No. 1284 is allowed as a secured claim in the amount of $263,798.70. The remainder of Claim 1284 is reclassified as a general unsecured claim. Claim No. 1285 is allowed as a secured claim in the amount of $171,096. The remainder of Claim 1285 is reclassified as a general unsecured claim. Claim No. 1286 shall not be granted secured status in any amount, but is reclassified as a general unsecured claim in its entirety. Claim No. 1288 is allowed as a secured claim in the amount of $87,259.38. The remainder of Claim 1288 is reclassified as a general unsecured claim. Claim No. 1300 is allowed as a secured claim in the amount of $585,693.75. The remainder of Claim 1300 is reclassified as a general unsecured claim.
IT IS SO ORDERED.