In re Murray Energy Holdings Co.

Full title: In re: MURRAY ENERGY HOLDINGS CO., et al., Debtors.

Court: United States Bankruptcy Court, Southern District of Ohio

Date published: Mar 31, 2022

639 B.R. 463 (Bankr. S.D. Ohio 2022)

Opinion

Case No19-56885 (Jointly Administered)

2022-03-31

IN RE: MURRAY ENERGY HOLDINGS CO, et al., Debtors.

Melissa S. Giberson, Thomas Loeb, Vorys, Sater, Seymour and Pease LLP, Columbus, OH, Benjamin Butterfield, Todd Goren, Jennifer Marines, Lorenzo Marinuzzi, Erica Richards, Allison B. Selick, Morrison & Foerster LLP, New York, NY, Brenda K. Bowers, Tiffany Strelow Cobb, Columbus, OH, for Creditor Committee Official Committee of Unsecured Creditors. Roma N. Desai, Bernstein Shur Sawyer & Nelson PA, Portland, ME, for Special Counsel Bernstein, Shur, Sawyer & Nelson, P.A. Benjamin A. Sales, Office of the United States Trustee, Cincinnati, OH, Monica V. Kindt, John W. Peck Federal Building, Cincinnati, OH, Jeremy Shane Flannery, Office of the United States Trustee, Columbus, OH, for U.S. Trustee Asst US Trustee (Cin).

John E. Hoffman, Jr., United States Bankruptcy Judge

Melissa S. Giberson, Thomas Loeb, Vorys, Sater, Seymour and Pease LLP, Columbus, OH, Benjamin Butterfield, Todd Goren, Jennifer Marines, Lorenzo Marinuzzi, Erica Richards, Allison B. Selick, Morrison & Foerster LLP, New York, NY, Brenda K. Bowers, Tiffany Strelow Cobb, Columbus, OH, for Creditor Committee Official Committee of Unsecured Creditors.

Roma N. Desai, Bernstein Shur Sawyer & Nelson PA, Portland, ME, for Special Counsel Bernstein, Shur, Sawyer & Nelson, P.A.

Benjamin A. Sales, Office of the United States Trustee, Cincinnati, OH, Monica V. Kindt, John W. Peck Federal Building, Cincinnati, OH, Jeremy Shane Flannery, Office of the United States Trustee, Columbus, OH, for U.S. Trustee Asst US Trustee (Cin).

MEMORANDUM OPINION AND ORDER

John E. Hoffman, Jr., United States Bankruptcy Judge

I. Introduction

A mechanic's lien is a statutory lien secured by real or personal property, often for goods or services supplied in connection with improving, repairing or maintaining the property. Under what the parties call West Virginia's "Laborer's Lien Statute," the performance of services described in the statute affords a lien to "[e]very workman, laborer or other person" who performs the services. W.Va. Code § 38-2-31 (West 2022) ("Section 31"). In one way, the statute is broad—"person" under West Virginia law includes corporations and other business organizations. But in another way the statute is limited—it provides priority to a lienholder only "to the extent and value of one month's ... work or labor." Id . And it is argued here that the Laborer's Lien Statute is restricted in yet another way. Corporate entities, the argument goes, are eligible for a lien under the statute only if they have provided services of "an individual character."

Suppliers of services to debtors in the bankruptcy cases of Murray Energy Holdings Co. and its affiliated debtors and debtors in possession ("Debtors") filed notices of liens under Section 31 and proofs of claim based on those liens. The Debtors objected to the claims and moved for summary judgment. The claimants whose liens are at issue ("Claimants")¹ filed responses, and replies have been filed either by the Debtors or by Drivetrain, LLC in its capacity as the plan administrator appointed by the Debtors’ Chapter 11 plan.²

1 The Claimants whose liens are at issue are Anderson Excavating LLC ("Anderson"); GMS Mine Repair & Maintenance, Inc. ("GMS"); Pioneer Conveyor, LLC ("Pioneer"); and Wayne's Water ‘N’ Wells, Inc. ("Wayne's").

2 Because they are voluminous, a listing of the various motions, exhibits, cross-motions, responses and replies is set forth in Appendix A to this Opinion and Order.

The Debtors and Drivetrain contend (1) that the mechanic's liens should have been filed under what they call West Virginia's "Contractor's Lien Statute" ( W.Va. Code § 38-2-1 ) rather than the Laborer's Lien Statute because the Claimants’ services altered the Debtors’ real property; (2) that the Laborer's Lien Statute applies to corporate entities only if they provided services of "an individual character"; (3) that the Claimants did not provide services of an individual character; and (4) that the value of one month's work or labor that the Laborer's Lien Statute allows is required by West Virginia Code § 38-2-33 ("Section 33") to be separately set out as part of the notice of lien. The Claimants counter (1) that any alteration they made to the Debtors’ real property does not require them to file their liens under the Contractor's Lien Statute if they also qualify to file under the Laborer's Lien Statute; (2) that the Laborer's Lien Statute imposes no requirement that the services provided be of an individual character; (3) that the most recent version of W. Va. Code § 38-2-17 ("Section 17") abrogated the one-month limitation; and (4) that, even if the limitation remains in effect, the one-month amount may be determined through invoices or account statements attached to the notice of lien without being separately set out in the notice of lien.

The Court finds that, even if their services altered the Debtors’ real property, the Claimants need not file their liens under the Contractor's Lien Statute because a lienholder need not file under that statute if it also qualifies to file under the Laborer's Lien Statute, which all the Claimants do. The argument that a corporate entity must do work of an individual character to be entitled to a lien is unpersuasive because there is no such requirement in the Laborer's Lien Statute and the case on which Drivetrain relies in support of its position does not support reading such a requirement into the statute. Applying rules of statutory construction to current and prior versions of the West Virginia Code, the Court finds that Section 17 did not abrogate the one-month limitation. And the Court rejects the argument that amounts claimed for the one-month priority under the Laborer's Lien Statute must be specifically set out as part of the notice of lien. To the contrary, the amounts may be determined through invoices or account statements attached to the notice of lien. For these reasons, the motions for summary judgment seeking to invalidate the Claimants’ liens based on ineligibility to file under the Laborer's Lien Statute are denied, as are the cross-motions for summary judgment seeking a ruling that Section 17 repealed by implication the limitation on priority set forth in the Laborer's Lien Statute. One Claimant separately set out its one-month amount, but other Claimants failed to do so. As to those Claimants, Drivetrain's motions for summary judgment are held in abeyance pending the outcome of the parties’ attempt to determine the amounts for which priority may be claimed.

II. Jurisdiction

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). The allowance or disallowance of claims against the estate is a core proceeding. 28 U.S.C. § 157(b)(2)(B). Because these disputes "stem[ ] from the bankruptcy itself," the Court also has the constitutional authority to enter a final order. Stern v. Marshall , 564 U.S. 462, 499, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). See also Waldman v. Stone , 698 F.3d 910, 920 (6th Cir. 2012) ("[D]isallowance [of] claims [is] part and parcel of the claims-allowance process in bankruptcy. Under Stern , therefore, the bankruptcy court was authorized to enter final judgment as to these claims." (citation omitted)).

III. Background

The Claimants were manufacturers of components for custom-made conveyor structures, as well as suppliers of various services including mine maintenance labor, drilling, pumping, excavation, construction, trucking, soil modification and environmental work. They were, for the most part, long-time suppliers of services to the Debtors. Each of the Claimants filed several mechanic's liens under the Laborer's Lien Statute in the weeks before or shortly after the bankruptcy filing and later filed proofs of claim based on their liens.³

3 Anderson's Proofs of Claim are Nos. 1280, 1283, 1284, 1285, 1286, 1288 and 1300. GMS's Proofs of Claim are Nos. 2502, 2507, 2547, 2558 and 2560. Pioneer's Proofs of Claim are Nos. 2329, 2496 and 2541. Wayne's Proofs of Claim are Nos. 1780 and 1801. Copies of these proofs of claim are available at https://cases.primeclerk.com/murrayenergy/Home-ClaimInfo.

While the Debtors filed a joint plan of reorganization, that plan "constitutes a separate plan for each Debtor," Debtors’ Second Am. Joint Plan Pursuant to Chapter 11 of the Bankruptcy Code ("Plan") (Doc. 2082) at 6,⁴ and "the classification of Claims and Interests set forth in the Plan will apply separately to each of the Debtors." Disclosure Statement for the Debtors’ First Am. Joint Plan Pursuant to Chapter 11 of the Bankruptcy Code ("Disclosure Statement") (Doc. 1344-1 at 15). Secured claims under the Plan were classified as "Class 2 Other Secured Claims." Plan at 29, 30. And unless they agreed to less favorable treatment, Class 2 claimants were to receive, on the Effective Date, payment of their allowed secured claims in full in cash or such other treatment as would render their claims unimpaired. Id . at 30. More than a dozen mechanic's lienholders objected to confirmation of the Plan. They argued that their liens were being released, and then possibly reinstated, which they said could allow the attachment of intervening liens. The mechanic's lienholders also argued that the Plan's injunction eliminated their in personam rights against the Debtors. The Debtors resolved these objections with most of the objectors by including a provision in the order confirming the Plan ("Confirmation Order") (Doc. 2135) stating:

4 When citing documents in the record, the Court will cite the PDF page number.

Notwithstanding anything to the contrary in this Confirmation Order, the Plan, or the Stalking Horse APA, until a Disputed Other Secured Claim is Allowed or disallowed by Final Order or an agreement of the claimant with the Debtors (prior to the Effective Date) or the Stalking Horse Bidder (after the Effective Date), the lien or liens on property securing such Disputed Other Secured Claim shall remain on such property in the same priority that such lien or liens held prior to entry of the Confirmation Order. Notwithstanding the foregoing, the holder of a Disputed Other Secured Claim may not seek, and shall not have any rights, to enforce such lien or liens unless and until the corresponding Disputed Other Secured Claim is Allowed in an amount greater than zero. To the extent that an Other Secured Claim is Allowed and the Debtors (with the consent of the Stalking Horse Bidder) or the Plan Administrator, as applicable, elect for the holder of such Allowed Other Secured Claim to receive the treatment set forth in section III.B.2(b)(ii) of the Plan, (a) the lien or liens on property securing such Allowed Other Secured Claim shall remain on such property in the same priority that such lien or liens held prior to entry of the Confirmation Order, as established by order of the Bankruptcy Court (including an agreed order by and among the Debtors (with the consent of the Stalking Horse Bidder) or the Plan Administrator, as applicable, and the holder of such Allowed Other Secured Claim), and, to the extent the property subject to such liens constitutes an Acquired Asset, such liens shall constitute Permitted Encumbrances under the Stalking Horse APA and (b) notwithstanding anything to the contrary in this Confirmation Order or the Plan, any in personam rights that such Allowed Other Secured Claim may entitle such holder to have against any applicable Debtors shall be preserved and not released, discharged, or extinguished, and the holder of any such Claim shall not be enjoined from exercising any such rights against any applicable Debtors or the Wind-Down Trust. If a Disputed Other Secured Claim is either disallowed, Allowed in an amount of zero, or reclassified as a General Unsecured Claim by a Final Order or an agreement of the claimant with the Debtors (with the consent of the Stalking Horse Bidder), the lien or liens on property securing such claim shall be deemed released and extinguished. Nothing herein shall prejudice any party's rights with respect to the Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims [Docket No. 1749] or any of the responses, replies, objections, or oppositions filed or other litigation related thereto.

Confirmation Order at 55–56.

Following negotiations with the holders of the mechanic's liens, four parties maintained their objections, including three—GMS, Pioneer and Wayne's—involved in this dispute. The Court overruled the objections, finding, based on the paragraph quoted above, that the Plan left the claims of the mechanic's lienholders unimpaired. Conf. Hr'g Tr. Aug. 31, 2020 (Doc. 2331) at 19–23.

If the claims of the holders of the mechanic's liens are unsecured, they will be reclassified as Class 9 general unsecured claims and will receive at best a minimal recovery. See Suppl. Disclosure Statement for Debtors’ Second Am. Plan (Doc. 1934-2) at 12 (estimating the recovery on general unsecured claims to be 0%–1%). But if the claims are secured, they will be treated as Class 2 Other Secured Claims and will be satisfied in full. Plan at 30.

IV. Legal Analysis

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, made applicable in this adversary proceeding by Federal Rule of Bankruptcy Procedure 7056, 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) (internal quotation marks omitted). "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 . This opinion addresses several disputed legal issues. If after ruling on these legal issues there remain genuine issues of material fact as to other aspects of a particular Claimant's mechanic's liens, the Court will address them in future proceedings.

B. Eligibility

The initial argument made by Drivetrain is that each Claimant is ineligible to be a lienholder under Section 31. According to Drivetrain, the Claimants instead should have filed under the Contractor's Lien Statute. Because they did not, Drivetrain argues, the liens they filed are invalid, and their claims should be treated as general, unsecured claims. For their part, the Claimants assert that Drivetrain's arguments have no basis under West Virginia's lien laws, that the liens were filed under the appropriate statute, and that their mechanic's lien claims are properly classified as secured claims.

West Virginia law provides for several types of mechanics’ liens, each with its own unique labor, notice and perfection requirements. There is the contractor's lien for work done under contract with the owner of property ( W.Va. Code § 38-2-1 ); a subcontractor's lien ( W.Va. Code § 38-2-2 ); a materialman's lien for supplies furnished to the owner of property ( W.Va. Code § 38-2-3 ); a materialman's lien for supplies furnished to a contractor or subcontractor ( W.Va. Code § 38-2-4 ); the lien of a workman, artisan, mechanic or laborer for work performed for the owner of property ( W.Va. Code § 38-2-5 ); the lien of a workman, artisan, mechanic or laborer for work performed for a contractor or subcontractor ( W.Va. Code § 38-2-6 ); the lien of an architect, surveyor, engineer or landscape architect for materials furnished, work done or services provided ( W.Va. Code § 38-2-6a ); and the laborer's lien for work done under contract with a corporation, its general contractor or subcontractor ( W.Va. Code § 38-2-31 ). At play here are the Contractor's Lien Statute and the Laborer's Lien Statute.

The Contractor's Lien Statute provides:

Every person, firm or corporation who erects, builds, constructs, alters, removes or repairs any building or other structure, or other improvement appurtenant to any such building or other structure, or who alters or improves the real property whereon the same stands, or to which it may have been removed, or who provides services for any of the foregoing, under and by virtue of a contract with the owner for such erection, building, construction, alteration, removal or repair, either for an agreed lump sum or upon any other basis of settlement and payment, shall have a lien upon such building or other structure or improvement appurtenant thereto, and upon the interest of the owner thereof in the real property whereon the same stands, or to which it may have been removed, to secure the payment of such contract price or other compensation therefor.

W.Va. Code § 38-2-1.

Section 31, the Laborer's Lien Statute, states:

Every workman, laborer or other person who shall do or perform any work or labor, for an incorporated company doing business in this State, by virtue of a contract either directly with such incorporated company or with its general contractor, or with any subcontractor, shall have a lien for the value of such work or labor upon all real estate and personal property of such company; and, to the extent and value of one month's such work or labor, said lien shall have priority over any lien created by deed or otherwise on such real estate or personal property subsequent to the time when such work or labor was performed: Provided, however, that there shall be no priority of lien as against conditional sales of, or reservation of title to, machinery sold to such company; nor shall there be priority of lien as between the parties claiming under the provisions of this section.

W.Va. Code § 38-2-31.

The Claimants assert that their liens were properly filed under the Laborer's Lien Statute. As corporate entities they are eligible to file mechanic's liens under this statute, Claimants argue, because the word "person" under West Virginia law "includes corporations, societies, associations and partnerships, and other similar legal business organizations authorized by the Legislature, if not restricted by the context ...." W.Va. Code § 2-2-10(i). Further, each of the Claimants points out that they performed work or labor, under contract, for an incorporated company—one of the Debtors—doing business in the state.

Drivetrain acknowledges that the term "other person" includes corporations, as the Fourth Circuit Court of Appeals held in Wetzel & T. Ry. Co. v. Tennis Bros. Co. , 145 F. 458 (4th Cir. 1906). But according to Drivetrain, the Wetzel court limited its holding to corporations employed for work "of an individual character, as distinguished from corporate service ...." Wetzel , 145 F. at 462. Because the labor performed by the Claimants was not "of an individual character," Drivetrain argues, the Claimants improperly recorded the resulting liens under the Laborer's Lien Statute. And, it argues, because the Claimants also failed to meet the requirements of the Contractor's Lien Statute, their liens are invalid and their claims must be reclassified as general, unsecured claims.

Wetzel involved a corporation, the Tennis Bros. Company ("Tennis Bros."), hired by a railway company to supervise the construction of an electric railway. The railway company canceled the contract, and Tennis Bros. sued for damages for the breach and to enforce its mechanic's lien and recover amounts due for work performed.⁵ The railway company argued, among other things, that the breach was caused because its contract with Tennis Bros. required the personal supervision and services of C.C. Tennis and certain members of his work force, which Tennis Bros. failed to supply. And it asserted that Tennis Bros. was "not entitled to a mechanic's lien, because it is a corporation; that only individuals are given such lien under the West Virginia statute. " Wetzel , 145 F. at 461.

5 The lien claimed by Tennis Bros. was filed under the Code of West Virginia of 1899, sec. 7, c. 75, Wetzel , 145 F. at 461, the predecessor to today's Section 31.

Analyzing whether Tennis Bros. was eligible to file its mechanic's lien under the statutory predecessor of the Laborer's Lien Statute, the Fourth Circuit reasoned:

Can a corporation claim the benefit of this statute and secure a lien thereunder? This depends upon the interpretation to be given to the language "or other person" in the act, and whether corporations are embraced therein for a claim otherwise entitled to the benefits of the act. The Code of West Virginia, 1899, § 17, c. 13, subd. 9, says:

"The word ‘person’ includes corporations, if not restricted by the context."

There is nothing in the context of the act under consideration, section 7, c. 75, Code, supra, that would either preclude a corporation from claiming the benefit of the act, or indicate that the words, "or other person" were used in any narrower or restricted sense. The word "person" used in the statute has not unfrequently been under review by the courts; and certainly so far as the states of Virginia and West Virginia are concerned, the use of such word "person" includes a corporation. This is undoubtedly the rule in civil proceedings. And in the courts of the states of New York, Georgia, Nebraska, and Utah, the word "person" used in the mechanic's lien acts of those states, has been specifically held to include corporations. At common law, a corporation is deemed a "person" when the circumstances in which it is placed, are identical with those of a natural person, which, irrespective of the statute, and the construction placed thereon by the court, under the circumstances of this case would include such a claim as the one sought to be enforced here. It is true that in this case, the claim is in behalf of a corporation; but it is for work of an individual character, as distinguished from corporate service; and it is quite clear that the real purpose and intent of the contract was to have the personal supervision and service of C.C. Tennis, and such of his corps of general engineering and office force, as was necessary to intelligently "supervise the construction for the party of the second part, of its electric railway line," proposed to be constructed. Indeed one of the defenses here is that the contract was broken because of the failure of said Tennis sufficiently to devote his personal service to the construction of the work; and there would seem to be no good reason why a corporation or person thus performing such "work or labor" should not be entitled to the benefit of the mechanic's lien law. To supervise the construction of a street car line, as well individually as by and through assistants, is to perform "work or labor"; and the person so rendering the same, is entitled to the benefits of the mechanic's lien law of West Virginia ....

Counsel for the defendant referred to quite an array of authority bearing upon persons entitled to claim the benefit of the mechanic's lien laws, which the court has not failed to carefully note, including

the case from West Virginia of Richardson v. Norfolk & Western Railroad Co. , 37 W. Va. 641, 17 S.E. 195 [(1893)] ; the contention being that only employe[e]s of the corporation should be entitled to the benefit of such lien, as distinguished from persons having contractual relations therewith. These, however, will not affect this case; for here, the plaintiff, in the very language of the act, is a "person," who by virtue of a contract, performs work and labor for the defendant company; the work being of a character for which a right of lien existed. Architects, engineers, and others who superintend the erection and construction of buildings, have frequently been held entitled to the benefit of the mechanic's lien law; and we think it quite clear that a person doing similar work of a personal character on the construction of a railroad, is entitled to a like lien.

Wetzel , 145 F. at 462–63 (citations omitted).

Drivetrain contends that the Wetzel court's reference to "work of an individual character" narrows the circumstances under which a corporation may properly claim a laborer's lien to those times the owner has contracted with the corporation for "personal service" work. See, e.g. , Debtors’ Mot. for Summ. J. Sustaining the First Omnibus Obj. to Certain Mechanic's Lien Claims of Anderson Excavating, LLC (Statement of Material Facts) (Doc. 2393-2) at 11. Drivetrain points out that (1) none of the Debtors specifically requested that a particular individual or individuals perform or supervise the work of the Claimants, and (2) in answering discovery the Claimants variously admitted they were "contractors" or that they were not "laborers or workmen." See, e.g ., id. (Doc. 2393–2) at 2, 6. Given this, Drivetrain argues, the Claimants do not satisfy the work-of-an-individual-character requirement imposed by the Wetzel court. Thus, the argument goes, the Claimants had no right to file under the Laborer's Lien Statute, and they instead should have filed under the Contractor's Lien Statute. See, e.g., id. (Mem. in Supp. Mot. for Summ. J.) (Doc. 2393–3) at 5.

Drivetrain's reliance on Wetzel is misplaced. First, Drivetrain asserts that Wetzel's "central holding" is that a corporation is eligible for a lien under the Laborer's Lien Statute only if it provided work of an "individual character as distinguished from corporate service." See, e.g. , Mem. in Resp. to GMS Mine Repair and Maintenance Inc.’s Cross-Mot. for Partial Summ. J. (Doc. 2466) at 10 (quoting Wetzel , 145 F. at 461–63 ). If that were true, this "central holding" would have presumably played an essential role in other West Virginia disputes involving corporations that have filed notices of mechanic's liens. But a review of the caselaw reflects that Wetzel has been cited in other cases 24 times in the 115 years since it was decided. Of those 24 cases, only seven referred to Wetzel's holding on the question of corporate eligibility under lien laws. Six of those—only one of which was a West Virginia case—cited Wetzel as establishing that a corporation is a "person" qualified to file a notice of lien,⁶ and none of those held that "work of an individual character" was an essential requirement of a valid laborer's lien.⁷ The seventh declined to extend Wetzel to a corporation employed as a logging contractor because of specific language in that state's logger's lien statute. Jack Long Logging Co. v. Pyramid Mountain Lumber, Inc. , 143 Mont. 87, 387 P.2d 712 (1963).

6 See Am. Sur. Co. of N.Y. v. United States ex rel. Barrow-Agee Labs. , 76 F.2d 67, 68 (5th Cir. 1935) ("A corporation cannot be itself a laborer, but it is a person, and it can supply labor. That the statute in the expression ‘all persons supplying ... labor’ included corporations is plain by the words which follow ...: ‘And any person, company, or corporation who has furnished labor or materials ... shall have the right to intervene.’ ") (citing Wetzel ); McDonald-Weist Logging Co. v. Cobb , 278 F. 167, 168 (9th Cir. 1921) ("It is argued that the statute does not give a lien to a contractor or a corporation. The general rule is that a corporation is included within the word ‘person.’ ‘Lewis’ Sutherland, Statutory Construction, 770; 14 C.J. 1233. In Wetzel & T. R. Co. v. Tennis , after specifying that at common law a corporation is deemed a person, when the circumstances in which it is placed are identical with those of a natural person, the court, citing many cases, held that, where a lien is given to every workman, laborer, or other person the right could be claimed by a corporation. The remedy is designed to be general in favor of the party by whom the service is rendered. Such a view appeals to us as a fair construction of the Alaska statute."); United States v. Desert Sage Contractors, Inc. , No. 05-CV-302-J, 2006 WL 8432074, at *5–7 (D. Wyo. July 23, 2006) (citing both Wetzel and American Surety in finding that company providing engineering, materials testing and surveying services had a right to sue as a party who furnished labor or materials within the scope of the Miller Act, which "provides a remedy for those who have not been paid for the work done pursuant to and as part of a construction contract on federal property"); Caird Eng'g Works v. Seven-Up Gold Mining Co. , 111 Mont. 471, 111 P.2d 267, 280 (1940) ("The general weight of authority concedes that a corporation is considered a person within the meaning of the [mechanic's lien] statute") (citing Wetzel ); Kimball v. Sundstrom & Stratton Co. , 80 W.Va. 522, 92 S.E. 737, 740 (1917) ("In Wetzel ... this statute was held to include a corporation employed to supervise the construction of an electric railroad, by means of the personal services of its officers and servants."); Gallagher v. Campodonico , 121 Cal.App.Supp. 765, 5 P.2d 486, 491 (1931) (citing Wetzel for the proposition that the West Virginia laborer's lien statute was liberally construed in favor of a corporation).

7 The closest any case came to that view was Kimball , where one of the employee lien claimants also acted as assistant treasurer of the corporation. In holding that "[t]here is nothing in the [laborer's lien] statute to cut out such an employee," the court cited Wetzel ’s finding that "this statute was held to include a corporation employed to supervise the construction of an electric railroad, by means of the personal services of its officers and servants. So we think there can be no question as to the validity of Kimball's lien." Kimball , 92 S.E. at 740. But the Kimball court merely said that the employee's status as an officer did not bar him from asserting his lien claim. It did not say that providing services of a personal character was a prerequisite to asserting a lien claim under the predecessor of the Laborer's Lien Statute. In a 1915 West Virginia bankruptcy case, In re Crawford Wollen Co. , 218 F. 951 (N.D. W. Va. 1915), the court found that the laborer's lien statute should not be extended to anyone who performs any service for a corporation, but that "its true intent and meaning is to secure only those engaged in the manual labor involved in the manufacture, mining, or construction of the product or work it is undertaking." Id. at 954. So attorneys, insurance adjusters and bookkeepers, among others, would not be covered by the laborer's lien statute. Id . Drivetrain, however, does not argue that the nature of the work performed by the Claimants disqualifies them from having valid mechanic's liens.

While there is nothing in the record addressing the point, it stands to reason that creditors of West Virginia coal mining companies have filed thousands of liens against those companies over the past 115 years. And undoubtedly corporate creditors of those mining companies made no small portion of those filings under the Laborer's Lien Statute and its predecessor. If it is in fact clear, as Drivetrain says, that these corporate entities could not file under the Laborer's Lien Statute unless they provided services of a personal character, it is reasonable to presume that litigation would have ensued and that there would be a body of caselaw on point. But the parties have not cited—and the Court's independent research has not uncovered—a single West Virginia decision holding that Wetzel imposed a work-of-an-individual-character requirement on corporations filing mechanic's liens under the Laborer's Lien Statute. This lack of caselaw support undercuts Drivetrain's position.⁸

8 Anderson makes this point, noting "[t]here have been several major coal company bankruptcy cases in the United States in the last ten years, staffed by very competent debtors’ counsel. Numerous West Virginia companies having claims in those cases have filed (i) notices of lien under W. Va. Code § 38-2-31 ; (ii) § 546(b) notices in those cases, and (iii) proofs [of] claim[ ] asserting secured status by virtue of liens under § 38-2-31. In none of these cases has the debtor ever objected to such a claim, contending that a company doing business in West Virginia is not a "person" and thus is ineligible to file a notice of lien under § 38-2-31. " Anderson's Response to Debtor's Motion for Summary Judgment, Doc. 2420 at 7 (footnote omitted).

More important, the purported limitation of the laborer's lien to those corporate services that could be considered "of a personal character," is drawn from dicta in Wetzel . The Wetzel court began its discussion by noting that

[t]here is nothing in the context of the act under consideration, section 7, c. 75, Code, supra, that would either preclude a corporation from claiming the benefit of the act, or indicate that the words, "or other person" were used in any narrower or restricted sense. The word "person" used in the statute has not unfrequently been under review by the courts; and certainly so far as the states of Virginia and West Virginia are concerned, the use of such word "person" includes a corporation.

Wetzel , 145 F. at 462.

These two sentences establish that a corporation is treated as a "person" under West Virginia ‘s mechanic's lien laws. But nothing in this language limits a corporation's right to assert a West Virginia laborer's lien to those situations in which the corporation performs work of a personal character. Nor does the Wetzel court's observation that under common law C.C. Tennis also would be entitled to a laborer's lien create a "work of a personal character" requirement applicable to corporations claiming a lien under the Laborer's Lien Statute. In fact, the Wetzel court said that

[a]t common law, a corporation is deemed a "person" when the circumstances in which it is placed, are identical with those of a natural person, which, irrespective of the statute, and the construction placed thereon by the court, under the circumstances of this case, would include such a claim as the one sought to be enforced here.

Id. at 462.

Wetzel thus makes clear that under either statutory or common law, Tennis Bros. could file its lien under the laborer's lien statute. And "the circumstances in which it is placed" being "identical with those of a natural person" means what is commonly known—a corporation acts through its employees. Invariably it is the corporation's employees who perform services under a contract between it and another corporation (or its general contractor or a subcontractor). And when that happens the corporation is working under circumstances identical to those of a natural person: it is performing services entitling it to a lien if those services go unpaid. Indeed, Section 31 permits a corporation to file a lien for "any work or labor." In the end, the plain language of Section 31 trumps the dicta in Wetzel on which Drivetrain relies. And it would not be appropriate for the Court—based on this dicta—to engraft a work-of-an-individual-character limitation onto a statute containing no such restriction. Besides arguing that the Claimants failed to provide work of a personal character, Drivetrain also says that the type of work the claimants did and the services they performed required them to file their liens under the Contractor's Lien Statute. Under its analysis, "every person, firm or corporation" who "erects or builds any structure or who alters the real property whereon the structure stands," ( W. Va. Code § 38-2-1 ) "must seek a lien under the Contractor's Lien Statute." See Debtors’ Motions for Summ. J. Sustaining the First Omnibus Obj. to Certain Mechanic's Lien Claims of Anderson Excavating, LLC (Doc. 2393-2 at 9), GMS (Doc. 2402-2 at 9), Pioneer (Doc. 2406-2 at 9) and Wayne's (Doc. 2407-2 at 9) (collectively, "Motions for Summary Judgment") (emphasis added). And, according to Drivetrain, because all the Claimants did work that arguably "altered" the property on which the coal mines were located,⁹ their only option was to file their liens under the Contractor's Lien Statute. Drivetrain, however, cites no authority for this proposition. Nor does the express language of the statute impose any such requirement. What's more, the Court has not located—and Drivetrain has not cited—any caselaw supporting Drivetrain's position. Indeed, the only mandatory language found in the Contractor's Lien Statute provides that "[e]very person, firm or corporation who ... alters or improves the real property whereon the same stands ... or who provides services for any of the foregoing, under and by virtue of a contract with the owner ... shall have a lien upon such building or other structure or improvement appurtenant thereto[.]" W. Va. Code § 38-2-1 (emphasis added). The Contractor's Lien Statute grants a lien to one who does the work under contract with the owner if the lien is properly noticed, filed and perfected. But nothing in the West Virginia mechanic's lien statutes compels a corporation to file under the Contractor's Lien Statute if it also qualifies to assert a lien under the Laborer's Lien Statute, which all the Claimants do.

9 There is no evidence that any of the Claimants were involved in the construction or destruction of any building on any of the property on which their work was performed. And while it is possible some or all may have "altered" the property by, for example, excavating, dredging, pouring concrete or the like, there have been no stipulations of fact filed as to the scope of any of the Claimants’ work. And it is not clear from the papers whether the Claimants would qualify to file under the Contractor's Lien Statute at any rate. There are questions of fact, not fleshed out in the papers, as to whether the work was done under contract with the owner of the property, particularly where ownership has not been established for any particular parcel where work occurred.

If a Claimant is eligible to file under either the Contractor's Lien Statute or the Laborer's Lien Statute, why does it matter which one it chooses? The answer lies in the different avenues of recovery provided by those statutes. Compare W. Va. Code § 32-2-1 (providing that a contractor's lien attaches to the "building or other structure or improvement appurtenant thereto, and upon the interest of the owner thereof in the real property whereon the same stands, or to which it may have been removed") with W. Va. Code § 38-2-31 (providing that a laborer's lien attaches to "all real or personal property of the incorporated company for whom the work was done"). Thus, the Laborer's Lien Statute gives a labor lienor a broader pool of assets from which it may recover. Perhaps holders of mechanic's liens resulting from work done or services supplied to coal mines in West Virginia prefer the laborer's lien remedy partly because of the expanded recovery opportunities, but also because of the difficulty of properly identifying any particular parcel of real property where mining occurs. Consider this common scenario: (1) the property where the mechanic's lienor performs work has been divided into various subsurface strata, each of which may have a separate owner; and (2) the surface stratum is owned either by the coal company with which the lienor has contracted, a subsidiary or affiliate of the coal company, or by an unrelated third party, with the coal company holding only a possessory interest or easement in so much of the property as is necessary to operate the mine. Short of conducting an in-depth title examination every time a mechanic's lien is filed, many providers of labor or services may understandably choose the relative ease of filing under the Laborer's Lien Statute, knowing their lien attaches to both real and personal property of the company for whom the work was done. That mechanic's lienors appear to have done so for many, many years with no history of reported legal challenges supports the Claimants’ position.

For these reasons, the Court finds that the Claimants are eligible to file their liens under Section 31. So to the extent that Drivetrain's Motions for Summary Judgment seek to invalidate the Claimants’ liens based on their ineligibility to file under Section 31, they are denied.

C. One-Month Limitation on Priority of Liens

The next issue raised by the parties is the proper application of the one-month lien priority limitation in the Laborer's Lien Statute. And in grappling with this question of statutory interpretation, the Court again finds little guidance in the West Virginia caselaw. There are three statutes at issue: Section 17, Section 31, and W. Va. Code § 38-2-33 ("Section 33").

As stated above, Section 31 (the Laborer's Lien Statute) grants priority to liens filed under that provision over liens created later in time "to the extent and value of one month's ... work or labor ." W. Va. Code § 38-2-31 (emphasis added).

Section 33 states:

The clerk of the county court, to whom the notice of lien mentioned in the preceding section^{[ 10 ]} 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.

10 The reference to the "preceding section" is to W.Va. Code § 38-2-32, which sets forth a 90-day deadline—from the cessation of the work or labor—by which the notice of laborer's lien must be filed.

W. Va. Code § 38-2-33 (emphasis added).

The versions of Sections 31 and 33 set out above have been in effect in West Virginia since 1939. See Act of March 9, 1939, Ch. 77 at 386 ("1939 Act") (an act to amend and reenact sections 31 and 33, article two, chapter 38 of the Code of West Virginia, relating to laborer's liens against corporations). Section 31 grants priority for one month's work out of the entirety of a lien filed under the Laborer's Lien Statute. W. Va. Code § 38-2-31. "One month" is not defined in the Laborer's Lien Statute, but W.Va. Code § 2-2-4, found under West Virginia Code, Article 2 "Legal Holidays; Special Memorial Days; Construction of Statutes; Definitions," provides that "[i]in a statute the word ‘month’ shall mean a calendar month[.]" A calendar month "runs from a given day in one month to a day of the corresponding number in the next month, except where the last month has not so many days, in which event it expires on the last day of that month." Bank of Union v. Baird , 72 W.Va. 716, 79 S.E. 738, 739 (1913).

Section 33 requires that any notice of Laborer's Lien filed for an amount more than one-month's work must set forth both "the full amount of the claim" and the "amount of the claim for such month for which such prior lien is claimed."¹¹ W. Va. Code § 38-2-33. These temporal limitations did not exist in the statutes before 1939. Both limitations were added that year, with no legislative history. See 1939 Act at 386. An annotation in the 1961 Code following Section 31 merely stated that the 1939 amendment related to priority, and a second annotation under Section 33 stated only that the second sentence (imposing the limitation) had been added by the 1939 amendment. See West Virginia Code of 1961, §§ 3752 [31] and 3754 [33], annotations.

11 The phrase "such prior lien" presumably means the lien for which one month's priority is claimed and not a lien prior in time, since the latter construction makes no sense in the context of the statute.

That brings the Court to Section 17, which reads:

A lien authorized and created by this article shall, when perfected, attach as of the date such labor, material, machinery or other necessary equipment shall have begun to be furnished, and shall have priority over any other lien secured by a deed of trust or otherwise which is created subsequent to such date. Each lien authorized and created by this article shall be subordinate to any other lien created by a deed of trust or otherwise which is duly recorded or otherwise perfected to constitute constructive notice prior to the date labor, material, machinery or other necessary equipment giving rise to such lien shall have begun to be furnished, notwithstanding the fact that some other lien authorized and created by this article may have priority over such other lien created by deed of trust or otherwise which is so recorded or otherwise perfected.

W. Va. Code § 38-2-17.

The version of Section 17 set out above has been in effect since 1973. See Act of April 14, 1973, Ch. 73 at 331 (an act to amend and reenact sections seventeen and eighteen, article two, chapter thirty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to liens and mechanics’ liens). Section 17 contains no one-month limitation on priority of any mechanic's lien under West Virginia law, and is much like the pre-1961 version of Section 17.¹² But between 1961 and 1973, Section 17 contained the following exception:

12 Before 1961, Section 17 read:

All of the liens authorized and created by this act shall have priority over any and all other liens created by trust deed or otherwise, on such building or other structure and improvements appurtenant thereto and on the interest of the owner upon the lot of ground whereon the same stands or to which the same may have been removed, subsequently to the time when such labor shall have begun to be performed, or such material or machinery or other necessary equipment shall have begun to be furnished. Such laborers, artisans, mechanics, workmen and furnishers of material, machinery and other necessary equipment shall have first liens, and the lien of all such persons, when perfected and preserved as required by this act, shall take precedence over any lien taken or to be taken by the contractor indebted to them for labor, material, machinery or other equipment, and every assignment or transfer by any such head contractor of his contract with the owner or by any such subcontractor of his contract with the contractor or any proceeding in attachment or otherwise against such head contractor or subcontractor, with the purpose of incumbering or subjecting his interest in said contract, shall be subject and subsequent to the perfected liens of all such laborers, workmen, artisans, materialmen and furnishers of machinery and other necessary equipment. But all of the perfected liens of such laborers and workmen and of such materialmen and furnishers of machinery and of such contractors and sub-contractors shall be of equal dignity without priority among themselves, except as herein otherwise provided. (Acts 1872-3, c. 139; 1879, c. 84; 1882, c. 64; 1891, c. 111; 1903, c. 42; 1917, c. 6, § 5).

W. Va. Code c. 75, § 5 (1923) (available on HeinOnline).

Priority of Liens – All of the liens authorized and created by this article shall, except as provided in section thirty-one (§ 3752) of this article , have priority over any and all other liens created by trust deed or otherwise, on such building or other structure and improvements appurtenant thereto and on the interest of the owner in the lot of ground whereon the same stands or to which the same may have been removed, subsequently to the time when such labor shall have begun to be performed or such material or machinery or other necessary equipment shall have begun to be furnished. (Code 1868, c. 75, § 2; 1872-3, c. 139, § 2; 1879, c. 84, § 2; 1882, c. 64, § 2; 1891, c. 111, § 3; 1903, c.42; 1917, c. 6, § 5; Code 1923, c. 75, § 5).

W. Va. Code § 38-2-17 (1961) (emphasis added) (available on HeinOnline).¹³

13 The rest of Section 17 was placed in a new Section 18. The Revisers’ Note in the annotations to the West Virginia Code of 1961 says that "[t]he provisions of this section and the following one constituted a single section in the Code of 1923. They are separated for convenience."

According to Pioneer and GMS,¹⁴ adding the italicized phrase ("except as provided in section thirty-one (§ 3752) of this article") in 1961 demonstrated a specific intent on the part of the West Virginia legislature to except Section 31, with its one-month limitation on the amount of a lien entitled to priority, from the broad sweep of this Section 17, which at that time encompassed "all of the liens authorized and created by this article." W. Va. Code § 38-2-17 (1961) (emphasis added). And, Pioneer and GMS argue, because the revisions in the 1973 version of Section 17 removed the "except as provided" phrase, that deletion must have reflected the legislature's intent to excise the one-month limitation on priority from Section 31. Or, put another way, the one-month limitation on priority has been repealed by implication: "[T]he Legislature's deletion of the express carve-out of Section 31 from the applicability of Section 17 must be read as the Legislature's intent to eliminate the exception." Pioneer's Resp.in Opp'n to Debtors’ Mot. for Summ. J. (Doc. 2447) at 24; GMS Resp. in Opp'n to Debtor's Motion for Summ. J. (Doc. 2435) at 31.

14 Neither Anderson nor Wayne's raised this as an issue in their cross-motions for summary judgment.

As support for this argument, GMS and Pioneer cite Wiley v. Toppings, 210 W.Va. 173, 556 S.E.2d 818 (2001), in which the Supreme Court of Appeals of West Virginia held that "[w]hen faced with two conflicting enactments, this Court and courts generally follow the black-letter principle that ‘effect should always be given to the latest ... expression of the legislative will[.]’ ‘[T]he statute which is the more recent ... prevails ....’ " Id. at 820. (footnote and citation omitted). And since the 1973 version of the Laborer's Lien Statute, with its deletion of the "except as provided" language, is more recent than the 1961 version that contained the phrase, the 1973 version must control and must be read as an implied repeal of the 1961 version.

Drivetrain takes the contrary view, arguing that the Claimants’ position is "not remotely plausible, nor has it ever been recognized in caselaw for a near half-century since W. Va. Code 38-2-17 ’s amendment took effect." Debtors’ Reply in Supp. of Their Mot. for Summ. J. Sustaining the First Omnibus Obj. to Mechanics Lien Claims of Pioneer Conveyor, LLC (Doc. 2477) at 9. According to Drivetrain, "decades of West Virginia cases have acknowledged and enforced the one-month limitation on priority for laborer's liens." Id. (citing State ex rel. Davis v. Iman Mining Co. , 144 W. Va. 46, 60–61, 106 S.E.2d 97 (1958) ). Drivetrain also argues that

concluding that the 1973 amendment to W.Va. Code 38-2-17 implicitly overhauled the statutory provisions governing liens under W.Va. Code 38-2-31 (as they exist in W. Va. Code 38-2-31 and - 33 ) defies common sense. If the West Virginia Legislature wanted to eliminate the one-month limitation on priority in W.Va. 38-2-31, it would have deleted or otherwise revised the plain language in W.Va. Code 38-2-31 and the corresponding recording requirements in W.Va. Code 38-2-33. The West Virginia Legislature has maintained the one-month limitation on priority for laborer's liens for more than a century, and Pioneer does not cite to a single court decision suggesting or implying that the one-month limitation is ambiguous or improper. The plain meaning of W. Va. Code 38-2-31, and the related perfection requirements under W. Va. Code 38-2-33, must be accepted and followed by all—including Pioneer.

Debtors’ Resp. to Pioneer's Cross-Mot. for Summ. J. (Doc. 2471) at 16–17 (citation omitted).

Drivetrain is correct that Pioneer "does not cite a single court decision suggesting or implying that the one-month limitation is ambiguous or improper." Id. at 10. But it is also telling that Drivetrain cites only a single 1958 case—Iman Mining Co.— as representative of its position that "decades of West Virginia cases have acknowledged and enforced the one-month limitation on priority for laborer's liens." Debtors’ Reply in Supp. of Their Mot. for Summ. J. Sustaining the First Omnibus Obj. to Mechanics Lien Claims of Pioneer Conveyor, LLC (Doc. 2477) at 9. But the deletion of the "except as provided" language in Section 17 did not occur until 1973, fifteen years after the Iman Mining Co. case was decided. So Iman Mining Co. has no persuasive force. And the Court's independent research has failed to uncover "decades" of West Virginia cases dealing with the one-month limitation. In fact, the Court has not been able to locate a post-1973 West Virginia case in which the one-month limitation was even mentioned, much less at issue.¹⁵ But an unpublished decision from a Virginia bankruptcy court that construed West Virginia mechanic's lien law, recognized the one-month limitation:

15 The only West Virginia cases the Court found in which a one-month limitation has been discussed were the Iman Mining Co. case cited above, Farley v. Zapata Coal Corp. , 167 W.Va. 630, 281 S.E.2d 238 (1981), and Amick v. C & T Dev. Co. , 187 W.Va. 115, 416 S.E.2d 73 (1992), in which the court permitted the use of Section 31 to aid in the enforcement of a provision in the Wage Payment and Collection Act (W.Va. Code § 21-5-1 et seq. ) that allows a lien for liquidated damages equal to 30 days’ pay. There is also a pre-1973 case that recognized the one-month limitation on priority. See Sturgill v. Lovell Lumber Co. , 136 W.Va. 259, 67 S.E.2d 321, 325 (1951) ("Other provisions [of the statute] are to the effect that such lien to the value of one month's work or labor shall have priority over a lien created by deed or otherwise.").

West Virginia law provides that workman's and materialman's liens have priority over any lien created by deed or otherwise subsequent to the time the work was performed or labor, material,

machinery or equipment[ ] began to be furnished, although the priority of the workman's lien is limited to one month's labor . W.Va. Code §§ 38-2-17, - 31.

Euler Hermes ACI v. Coal River Res., Inc. (In re Coal River Res., Inc.) , No. 04-7146, at 16 (Bankr. W.D. Va. July 25, 2005) (emphasis added).

There is no legislative history that explains the addition, and later deletion, of the "except as provided" language in Section 17. The Court thus must attempt to divine the intent behind these changes by applying the general rules of statutory construction. One such rule is the axiom that, when interpreting laws relating to the same subject matter ("in pari materia") they must, even if enacted at different times, be analyzed together, and the legislative intention must be determined from the entire enactments. Boley v. Miller , 187 W.Va. 242, 418 S.E.2d 352, 353 (syllabus ¶ 3) (1992) ("Statutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments."); State ex rel. Burchett v. Taylor , 150 W.Va. 702, 149 S.E.2d 234, 238 (1966) (holding that statutes "though enacted at different times, must be considered in pari materia "). "[W]here there is a discrepancy or disagreement among them such interpretation should be given as that all may, if possible stand together." State ex rel. Graney v. Sims , 144 W.Va. 72, 105 S.E.2d 886, 892 (1958) (considering statutes relating to the payment dates of salaries of state officials).

The second rule of construction guiding the Court here is the strong presumption against implied repeals:

The principle is well established that repeal of a statute by implication is not favored in law. A statute is not repealed by implication unless the repugnancy between the new provisions and a former statute be plain and unavoidable, and a construction which repeals former statutes or laws by implication, and divests long approved remedies, is not favored by the courts. To repeal a statute by implication there must be such positive repugnancy between the provisions of the new statute and the old statute that they cannot stand together or be consistently reconciled.

State ex rel. Wheeling v. Renick , 145 W.Va. 640, 116 S.E.2d 763, 768 (1960) (citations omitted). In applying this principle, the first task is to determine whether Section 17 does, in fact, irreconcilably conflict with Sections 31 and 33 when all sections of the mechanic's lien article—Article 38—are read together. And a finding of irreconcilable conflict must precede any further analysis.

Section 17 applies broadly to a "lien authorized and created by this article." W. Va. Code § 38-2-17. And it provides that liens created under Chapter 38, Article 2 of the West Virginia Code attach as of the date the labor, material, machinery or other necessary equipment "shall have begun to be furnished." Id. Section 17 also states that such liens "shall have priority over any other lien secured by a deed of trust or otherwise which is created subsequent to such date," but [are] subordinate to any lien created before that date. Id. A lien secured by a deed of trust is a lien against real property. See Abraham M. Ashton, Yes, West Virginia, There Is a Special Priority for the Purchase Money Mortgage: The Recognition of Purchase Money Mortgage Priority in West Virginia , 107 W. Va. L. Rev. 529–530 (2005) ("Although deeds of trust, as opposed to mortgages, are utilized in West Virginia for the purpose of obtaining a lien on, or security interest in, land for such a transaction, the security device is often termed a mortgage." (footnotes omitted)). A lien secured "otherwise" is not defined, but given the breadth of the term "otherwise," it would presumably include all other consensual liens as well as statutory or judicial liens.

Section 31, however, does not limit a lienor to a claim against real property of the owner. It explicitly grants a lien "upon all real estate and personal property" of the company, contractor or subcontractor with whom the person has contracted, and that lien has priority over "any lien created by deed or otherwise on such real estate or personal property subsequent to the time when such work or labor was performed," but only to "the extent and value of one month's such work or labor." W.Va. Code § 38-2-31. Section 33 requires that the amount of the claim for such month be set out separately if the claim is for more than one month's work or labor. W.Va. Code § 38-2-33. When these three sections are read together in light of the 1973 excision of the "except as provided" language in Section 17, there appears to be a conflict between the broad priority granted under Section 17 to "a lien authorized and created by this Article" and the one-month limitation of Sections 31 and 33, particularly if Section 17 is read to apply to all mechanic's liens provided for in Article 38.¹⁶ But when read in the context of the entire article, and taking the purpose of the Laborer's Lien Statute into account, the Court concludes that Section 17 is not at odds with Sections 31 and 33.

16 Both the pre-1961 and the 1961 version of Section 17 refer to "[a]ll of the liens authorized and created by this act [article][,]" while the 1973 version refers to "a lien authorized and created by this article."

Both the pre-1961 and post-1973 versions of Section 17 provide the same thing—priority for mechanic's liens granted by Article 38 over later created liens against the real property of the owner. Both versions grant that priority while cheek-to-jowl with both the one-month priority limitation for liens against real and personal property set forth in Section 31 and Section 33's requirement that the one-month amount be set forth separately. Notably, both Sections 31 and 33 have not changed since 1939. And from 1961 to 1973, the one-month limitation in Section 31 was specifically recognized by Section 17 when the "except as provided" language was added. Pioneer and GMS argue that the 1973 removal of the "except as provided" language impliedly repealed of the one-month limitation in Section 31. But it is more plausible that the legislature saw no compelling reason to keep the "except as provided" language in the statute because the one-month limitation was already expressly stated in Sections 31 and 33, had been since 1939, and had been co-existing with Section 17 all the while. And the one-month limitations were not removed from Sections 31 or 33 at the same time the "except as provided" language was removed from Section 17.

Plus, the statutory framework of Chapter 38, Article 2 of the West Virginia Code reflects an intent to treat laborers differently than other lienors. Sections 38-2-1 through 38-2-6a set out the lien rights of contractors, subcontractors, materialmen, workmen, artisans, mechanics, laborers, architects, surveyors, engineers and landscape architects against owners, general contractors and subcontractors. Section 38-2-1 grants a contractor "a lien upon such building or other structure or improvement appurtenant thereto, and upon the interest of the owner thereof in the real property whereon the same stands, or to which it may have been removed, to secure the payment of such contract price or other compensation therefor." In other words, the contractor has a statutory lien against the real property of the owner that received the benefit of the work performed or materials supplied. Sections 38-2-2 through 38 - 2-6a provide (with slight variations in language) that each of the other various categories of lienors "shall have such a lien for his compensation as is provided in section one of this article." That is, the other categories of lienors—subcontractors, materialmen, workmen, artisans, mechanics, laborers, architects, surveyors, engineers and landscape architects—also are granted statutory liens against the real property of the owner.

Sections 38-2-7 through 38-2-13 set forth various filing deadlines, noticing and recording requirements and forms for the liens filed under Sections 38-2-1 through 38-2-6a. Section 38-2-14 provides for the discharge of those liens for failure to comply with the noticing and recording requirements of Sections 38-2-8 through 38-2-13. Section 38-2-15 allows for the publication and posting of lien notices to nonresident owners or owners who cannot be found. Section 38-2-16 provides in relevant part that

all materials furnished, work done and services provided by any one person, firm or corporation upon any one building, improvements appurtenant thereto or on the real property on which the same stands are to be considered one contract, whether all the materials were bought or services provided at one time or ... otherwise.

W. Va. Code § 38-2-16. Section 17 then provides for the priority of mechanic's liens against "any other lien secured by a deed of trust or otherwise" created after the date the labor or materials giving rise to the mechanic's liens are provided. Section 17's placement after the sections granting contractors, subcontractors, materialmen, workmen, artisans, mechanics, laborers, architects, surveyors, engineers and landscape architects liens against the real property of the owner is telling. It suggests a legislative intent to limit the reach of Section 17 to the liens set out in §§ 38-2-1 through 38-2-6a, although, admittedly, the statute does not expressly say so. Section 38-2-18 sets out the priorities among the various types of lienholders: the liens of laborers, artisans, mechanics, workmen and furnishers of machinery and equipment have priority over the liens of contractors or subcontractors; and liens of subcontractors have priority over liens of contractors, but each category "shall be of equal dignity without priority among themselves." And Sections 38-2-19 through 38-2-30 deal with certain aspects of noticing and other lien requirements.

It is not until Section 38-2-31 that the legislature deals with lien rights of laborers against corporations, and grants them liens "upon all real estate and personal property of such company." Was the placement of this section near the end of the article and not at the beginning with the other lienors’ provisions the legislature's way of separating this particular class of lienors from the others? And did the legislature intend to create this separation by expanding the pool of assets from which a lienor may satisfy its claim ("all real estate and personal property of [the] company"), while limiting the extent of the laborer's lien secures to the amount one-month's work or labor? There is no definitive way of knowing the answers to these questions because there is no legislative history. But, as stated, the statutory structure of Chapter 38 of the West Virginia Code strongly suggests that the legislature intended to treat this class of laborers differently than workers who can claim liens against the real property of owners, contractors and subcontractors. And the West Virginia legislature achieved this aim by: (1) providing in Section 31 that a laborer's lien is secured by both real and personal property, while limiting the amount secured by the lien to one-month's work or labor; and (2) implementing Section 31's one-month limitation by enacting the itemization requirement in Section 33, which specifies how West Virginia county court clerks are to record liens filed under the Laborer's Liens Statute.

In concluding that the one-month limitation in Section 31 was not impliedly repealed, the Court is also guided by another canon of statutory construction—the rule that the specific controls the general. The Supreme Court has relied on this rule of construction in weighing competing interpretations of § 1129(b)(2)(A) of the Bankruptcy Code :

[I]t is a commonplace of statutory construction that the specific governs the general. [T]he canon has full application as well to statutes such as the one here, in which a general authorization and a more limited, specific authorization exist side by-side. There the canon avoids not contradiction but the superfluity of a specific provision that is swallowed by the general one, violat[ing] the cardinal rule that, if possible, effect shall be given to every clause and part of a statute.

RadLAX Gateway Hotel, LLC v. Amalgamated Bank , 566 U.S. 639, 645, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012) (citations and internal quotation marks omitted)). The Supreme Court of Appeals of West Virginia recognized the same principle when it held that "[u]nder accepted rules of statutory construction, where a statute contains several sections relating to the same subject, the section that is more specific with regard to the subject will control over the more general section." State ex rel. W. Va. Dept. of Motor Vehicles v. Hillyard , 172 W.Va. 605, 309 S.E.2d 105, 107 (1983) ; See also State ex rel. Myers v. Wood , 154 W.Va. 431, 175 S.E.2d 637, 641 (1970) ("It has been held that the specific section of the statute controls over a general section of the statute.").

As already explained, the Court finds no conflict between the specific one-month's-work-or-labor limitation contained in Section 31 and Section 17's more general priority provision. So the implied-repeal argument made by GMS and Pioneer fails. But even if a conflict did exist, under the specific-controls-the-general interpretative canon, the specific one-month limitation in the Laborer's Lien Statute controls over Section 17's general priority provision. Thus, Section 31's one-month limitation is valid and enforceable. GMS's and Pioneer's request for a ruling that Section 31's limitation on priority was repealed by implication is accordingly denied.

D. Whether the One-Month Amount Must Be Specifically Set Out in the Notice of Lien

The final question to be addressed is whether Section 33 requires that the amount claimed for the one-month priority under Section 31 be specifically set out as part of the notice of lien, or whether it may be determined through invoices or account statements attached to the notice of lien. Among the Claimants, only Pioneer has separately set out its one-month amounts in its lien notices. All Claimants, however, have attached invoices or accounts receivable aging reports to their lien notices that itemize the amounts owing for services rendered. Some invoices list work done on one particular day; others cover a period of days. Some show work done within one calendar month; others include work spanning several months, some show work in multiple months, while some merely note the date the work was completed.¹⁷ The accounts receivable aging reports all list invoices in chronological order, sometimes spanning several months.

17 Summaries of the details set forth in the proofs of claim of each Claimant are set forth in attached Appendix B.

Section 33 provides in its entirety that "[t]he clerk of the county court, to whom the notice of lien mentioned in the preceding section¹⁸ 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).

18 The "lien mentioned in the preceding section" is the laborer's lien, notice of which is filed with the county court clerk within 90 days from the cessation of the work or labor.

The language employed is mandatory: "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." Id. (emphasis added). The Court has found no caselaw interpreting or applying Section 33, nor have the parties supplied any authority.¹⁹ That neither the Court nor the parties could locate a single West Virginia court decision addressing Section 33's itemization requirement since its adoption in 1939 suggests that either (1) laborer's lien claimants always set out separately the one month's work of work for which they claim priority (as Pioneer did in its notices of lien), or (2) the mandate is routinely ignored. In any event, given the lack of caselaw, it seems to be a non-issue among those who regularly deal with West Virginia mechanic's lien law. And the parties here, all of whom have long experience with mechanic's liens in West Virginia, are silent on what the customary practice is.

19 Drivetrain cites Sullivan v. Madeleine Smokeless Coal Co. , 115 W.Va. 115, 175 S.E. 521 (1934) for the proposition that compliance with Section 33 is mandatory. Sullivan , however, was referring to W. Va. Code § 38-2-32, which sets the deadline for filing notices of liens claimed under Section 31. Sullivan , 175 S.E. at 522.

In examining the reach of Section 31, the Supreme Court of Appeals of West Virginia has stated that "[t]he purpose of our mechanics’ lien statutes is to protect the workman who, by the fruits of his labor, benefits another." Farley , 281 S.E.2d at 241. "The statutes act as an aid in the prompt collection of all compensation due the worker. They are remedial in nature and are to be liberally construed in order that they serve the purpose for which they were enacted." Id. ; See also Carolina Lumber Co. v. Cunningham , 156 W.Va. 272, 192 S.E.2d 722, 726 (1972) (same). And decisions construing W.Va. Code § 38-2-19 —which provides that an owner of property may request in writing that a lienor file with the owner an itemized account of the work done or the materials or machinery or other equipment furnished—have held that a detailed itemization is not required. See, e.g. , Sauer, Inc. v. Am. Bituminous Power Partners, L.P. , 192 W.Va. 150, 451 S.E.2d 451, 454 (1994) ("[C]ourts generally have concluded that the purpose behind accounting requirements in mechanics’ lien statutes is to enable a landowner to determine if work has actually been done. They have further recognized that minute itemization is not necessary to satisfy the accounting requirements.").

Indeed, in a suit to enforce a mechanic's lien involving a lienor that failed to itemize the credits given, the West Virginia Supreme Court of Appeals held that "if the bill and exhibits read together, show all the facts necessary to be alleged, the bill is sufficient in law, and the [trial court's] demurrer should be overruled." W. Bateson & Co. v. Baldwin Forging & Tool Co. , 75 W.Va. 574, 84 S.E. 887, 888–89 (1915). And in 1905, the West Virginia Supreme Court of Appeals, in addressing the level of specificity needed in a notice of laborer's lien, stated:

The intention was that the mere inspection of a record to be found at a particular place should disclose all the information necessary in order to enable those interested therein to determine as to the existence of liens on the property. Such being the purpose, it obviously follows that a substantial, though not technical, compliance with the statute is sufficient[.]

Grant v. Cumberland Valley Cement Co. , 58 W.Va. 162, 52 S.E. 36, 38 (1905) (citations and internal quotation marks omitted). So too in Pittsburgh Steel Prods. Co. v. Huntington Masonic Temple Ass'n. , 81 W.Va. 222, 94 S.E. 127 (1917), where a notice of lien was found to substantially comply with the statute even though not containing detailed itemization.

In Sturgill v. Lovell Lumber Co. , 136 W.Va. 259, 67 S.E.2d 321 (1951) the West Virginia high court was asked to determine priorities between laborers’ liens and United States tax liens. Without detailing—or even identifying—the deficiencies that existed in the laborer's liens, the court determined that they were not specific enough to obtain priority over the liens of the United States. Looking to the Supreme Court decision in Illinois ex rel. Gordon v. Campbell , 329 U.S. 362, 375, 67 S.Ct. 340, 91 L.Ed. 348 (1946) for guidance, the Sturgill court found that

[t]he long established rule requires that the lien must be definite, and not merely ascertainable in the future by taking further steps, in at least three respects as of the crucial time. These are: (1) the identity of the lienor, (2) the amount of the lien, and (3) the property to which it attaches. It is not enough that the lienor has power to bring these elements, or any of them, down from broad generality to the earth of specific identity.

Sturgill , 67 S.E.2d at 325.

All the notices of lien at issue contain sufficient information to pass muster under Gordon and Sturgill . All identify the lienor; all set forth the amount of the lien; all state the property to which the lien attaches. Each contains an itemization of one kind or another. There are invoices attached, or there are accounts receivable aging reports that list invoices by date or both. That said, while many notices of lien appear to substantially comply with the statute and may properly claim priority for one-month's work, many others fail to present information in a format that makes it apparent what claimed amount should be given priority, especially given W.Va. Code § 2-2-4 ’s instruction that one-month means a calendar month.

Having reviewed the proofs of claim, their accompanying documentation, and the notices of liens of attached to each, the Court makes these findings:

Anderson

Claim 1280 : This claim contains two invoices and one Notice of Lien. While the Notice of Lien lists a single date (September 10, 2019), the two invoices attached in support each span the period from August 15, 2019 to September 9, 2019. Because the work reflected by these invoices occurred within a one-calendar-month span, See Baird , 79 S.E. at 739, the amount set forth in Claim 1280 will be allowed as a secured claim with priority over any later lien. Claims 1283, 1284, 1285, 1288 and 1300 : Each of these claims contains one Notice of Lien and multiple invoices reflecting work done over several months. Many, but not all, of the invoices itemize work within a single calendar month within those time spans. Anderson shall determine which month's work it wishes to claim as priority for each Notice of Lien within these claims and shall calculate the total of that month's work. It shall provide the calculations and the resulting claimed amounts to Drivetrain within 30 days of the date of the entry of the order accompanying this opinion. Drivetrain shall then have 30 days within which to file any objection to the calculations and the claimed amounts. If no objection is filed, that one-month amount calculated by Anderson for each Notice of Lien will be allowed as a secured claim with priority over any subsequent lien. The remaining amount of each claim will be reclassified and allowed as a general, unsecured claim.

Claim 1286 : This claim contains one invoice and one Notice of Lien. While the Notice of Lien lists a single date (March 19, 2019), the invoice attached in support of the Notice of Lien spans the period from February 1, 2019 to March 8, 2019. Anderson shall document the amount of work performed within whichever one-month period it wishes to claim as priority and shall calculate the amount due for that work. It shall provide the documentation, calculation and priority amount claimed to Drivetrain within 30 days of the date of the entry of the order accompanying this opinion. Drivetrain will then have 30 days within which to file any objection to the documentation, calculation and the claimed amount. If no objection is filed, that one-month amount calculated by Anderson will be allowed as a secured claim with priority over any subsequent lien. The remaining amount of the claim will be reclassified and allowed as a general, unsecured claim.

GMS

Claims 2502, 2507, 2547, 2558 and 2560 : Claims 2502, 2547, and 2558 each contain one Notice of Lien. Claim 2507 contains two Notices of Lien, which are identical but are filed in different counties. Claim 2560 also contains two identical Notices of Lien filed in different counties. All claims include an accounts receivable aging report containing a chronological listing of invoices covering work performed over several months. While the reports show multiple invoices listed within each month, there are no actual invoices attached to the Notices of Lien and thus it is impossible to determine whether any particular invoice covered a span of more than one month. GMS shall determine which one-month's work it wishes to claim as priority for each Notice of Lien within these claims, locate the invoices or other documentation evidencing that work, and calculate the total of that month's work. GMS shall provide the documentation, calculations and priority amount claimed to Drivetrain within 30 days of the date of the entry of the order accompanying this opinion. Drivetrain shall then have 30 days within which to file any objection to the documentation, calculations and the claimed amounts. If no objection is filed, that one-month amount calculated by GMS for each Notice of Lien will be allowed as a secured claim with priority over any subsequent lien. But GMS will have a priority claim for only one of the two identical liens filed in separate counties in Claim Nos. 2507 and 2560. The remaining amount of each claim will be reclassified and allowed as a general, unsecured claim.

Pioneer

Claims 2329, 2496 and 2541 : Claims 2329 and 2541 each contains a Notice of Lien, an accounts receivable aging statement, and multiple invoices covering work performed over several months. Claim 2496 contains a Notice of Lien, an accounts receivable aging statement and invoices covering only one month's work. The Notices of Lien attached to each claim specifically set forth the amount of one-month's work for which Pioneer claims priority and the month in which work was performed. These one-month amounts will be allowed as a secured claim with priority over any subsequent lien The remaining amount of each claim will be reclassified and allowed as a general, unsecured claim.

Wayne's

Claim 1780 : Claim 1780 consists of two Notices of Lien, each supported by an invoice, and an explanatory attachment. The first invoice (Inv. No. 3179) is for $47,252.70 and is dated August 8, 2019. The explanatory statement says work was last performed under this invoice on August 5, 2019, but it does not state when work started. A purchase order accompanying the invoice is dated July 3, 2019 and specifies a "delivery date" of July 4, 2019. The second invoice (Inv. No. 3180) is for $49,783.60 and is dated August 8, 2019. The explanatory statement says work was last performed under this invoice on August 8, 2019, but it does not state when work started. A purchase order accompanying the invoice is dated July 15, and specifies a "delivery date" of July 4, 2019.

Claim 1801 : Claim 1801 consists of two invoices, one Notice of Lien and an explanatory attachment. The first invoice (Inv. No. 3181) is for $84,638 and is dated August 8, 2019. The explanatory statement says work was last performed under this invoice on August 20, 2019, but it does not state when work started. The second invoice (Inv. No. 3197) is for $126,030.11 and is dated August 16, 2019. The explanatory statement says work was last performed under this invoice on August 20, 2019, but it does not state when work started. The invoices include a single purchase order dated April 12, 2019 containing a "delivery date" of April 13, 2019.

Because there is insufficient information to determine whether the total amounts claimed on the Notices of Lien reflect the amount of one-month's work or amounts that include work performed over a longer period, the Court cannot determine the amount that is entitled to priority. Wayne's shall have 30 days from the date of the entry of the order accompanying this opinion to document the dates the work was performed, calculate the amount of one-month's work for which it wishes to claim priority, and provide that documentation, calculation and amount claimed as priority to Drivetrain. Drivetrain shall then have 30 days within which to file any objection to the documentation, calculations and claimed amounts. If no objection is filed, that one- month amount calculated by Wayne's for each claim will be allowed as a secured claim with priority over any subsequent lien. The remaining amount of each claim will be reclassified and allowed as a general, unsecured claim.

The Court does not condone the laxity shown by the Claimants (other than Pioneer), in preparing their Notices of Lien. But the Court also recognizes that the spirit and intent of the Laborer's Lien Statute—i.e. , to protect those who have provided labor to benefit another—would not be served by an overly strict application of the statute. With a good-faith effort by the parties to document the amounts for which priority can be claimed, the purpose behind the mechanic's lien law will be served while its one-month limitation is honored.

For these reasons, Drivetrain's request for a ruling invalidating Claimants’ liens based on their noncompliance with Section 33 will be held in abeyance pending the outcome of the parties’ attempts to determine the amounts for which priority may be claimed. The Court will schedule a hearing on any objections that may be filed by Drivetrain. Because Pioneer fully complied with Section 33, the one-month amounts set forth in its Notices of Lien will be allowed as a secured claim with priority over later liens, and to that extent, Drivetrain's Motion for Summary Judgment seeking to invalidate Pioneer's claims based on noncompliance with Section 33 is denied.

V. Conclusion

For the reasons set forth above, the Court hereby ORDERS that:

(1) Partial summary judgment is GRANTED in favor of Claimants as to Drivetrain's request for a ruling invalidating the Claimants’ liens based on their purported ineligibility to file under W.Va. § 38-2-31. The Claimants are eligible to file liens under W.Va. Code § 38-2-31.

(2) Partial summary judgment is GRANTED in favor of Drivetrain on GMS's and Pioneer's request for a ruling that W.Va. Code § 38-2-17 repealed by implication the limitation on priority set forth in W.Va. Code § 38-2-31. The one-month limitation set forth in Section 31 is valid and enforceable.

(3) Except for the Motion for Summary Judgment relating to Pioneer's claims, Drivetrain's request to invalidate the Claimants’ liens based on their purported noncompliance with Section 33 will be HELD IN ABEYANCE pending the outcome of the parties’ attempt to determine the amounts for which priority may be claimed. Partial summary judgment is GRANTED in favor of Pioneer on Drivetrain's request for a ruling invalidating Pioneer's claims for noncompliance with Section 33. The one-month amounts set forth in Pioneer's Notices of Lien are ALLOWED as secured claims with priority over later liens.

IT IS SO ORDERED.

Murray Energy Holdings Co. Case No. 19-56885 - Jointly Administered Chapter 11 Motion for Summary Judgment on Debtors’ Omnibus Objection to Mechanic's Lien Claims and Responses

Appendix A

The documents filed by the parties are as follows:

Anderson Excavating, LLC

• Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims (Doc. 1749)

• Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Certain Mechanic's Lien Claims of Anderson Excavating, LLC (Doc. 2393)

• Statement of Material Facts in Support of Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Certain Mechanic's Lien Claims of Anderson Excavating, LLC (Doc. 2393-1)

• Memorandum in Support of Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Certain Mechanic's Lien Claims of Anderson Excavating, LLC (Doc. 2393-2)

• Exhibit A to Debtors’ Motion for Summary Judgment (Doc. 2393-3)

• Exhibit B to Debtors’ Motion for Summary Judgment (Doc. 2393-4)

• (I) Response of Anderson Excavating, LLC to Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Certain

Mechanic's Lien Claims of Anderson Excavating, LLC; (II) Cross Motion of Anderson Excavating, LLC for Summary Judgment Overruling Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims of Anderson Excavating, LLC; and (III) Motion of Anderson Excavating LLC for Relief from DIP Order [Doc. 431] for Denial of Due Process (Doc. 2420)

• Debtors’ Response in Opposition to Anderson Excavating, LLC's Motion for Relief from the DIP Order for Denial of Due Process (Doc. 2457)

• Debtors’ Reply to Anderson Excavating, LLC's Response in Opposition to Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Certain Mechanic's Lien Claims of Anderson Excavating, LLC (Doc. 2458)

• Debtor's Response to Cross Motion of Anderson Excavating, LLC for Summary Judgment Overruling Debtors’ First Omnibus Objection to Anderson's Mechanic's Lien Claims (Doc. 2459)

• Amended Cross Motion of Anderson Excavating, LLC for Summary Judgment Overruling Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims of Anderson Excavating, LLC (Doc. 2486)

• Debtors’ Motion to Strike Amended Cross Motion of Anderson Excavating, LLC for Summary Judgment Overruling Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims of Anderson Excavating, LLC (Doc. 2510)

• Plan Administrator's Response to Amended Cross Motion of Anderson Excavating, LLC for Summary Judgment Overruling Debtors’ First Omnibus Objection to Anderson's Mechanic's Lien Claims (Doc. 2518).

GMS Mine Repair & Maintenance, Inc.

• Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims (Doc. 1749)

• Debtors’ First Motion for Summary Judgment Sustaining the First Omnibus Objection to Certain Mechanic's Lien Claims of GMS Mine Repair & Maintenance, Inc. (Doc. 2402)

• GMS Mine Repair & Maintenance, Inc.’s Response in Opposition to Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Certain Mechanic's Lien Claims of GMS Mine Repair & Maintenance, Inc. and Cross-Motion for Partial Summary Judgment on Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims as Such Objection Relates to Certain Claims of GMS Mine Repair & Maintenance, Inc. (Doc. 2435)

• Debtors’ Response to GMS Mine Repair & Maintenance, Inc.’s Cross-Motion for Partial Summary Judgment (Doc. 2466)

• Debtors’ Reply in Support of Their Motion for Summary Judgment Sustaining the First Omnibus Objection to Certain Mechanic's Lien Claims of

GMS Mine Repair & Maintenance, Inc. (Doc. 2476).

Pioneer Conveyor, LLC

• Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims (Doc. 1749)

• Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Mechanic's Lien Claims of Pioneer Conveyor, LLC (Doc. 2406)

• Pioneer Conveyor, LLC's Response in Opposition to Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Mechanic's Lien Claims of Pioneer Conveyor, LLC and Cross-Motion for Partial Summary Judgment on Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims as Such Objection Relates to the Claims of Pioneer Conveyor, LLC (Doc. 2447)

• Debtors’ Response to Pioneer, LLC's Cross-Motion for Partial Summary Judgment (Doc. 2471)

• Debtors’ Reply in Support of Their Motion for Summary Judgment Sustaining the First Omnibus Objection to Mechanic's Lien Claims of Pioneer Conveyor, LLC (Doc. 2477)

• Pioneer Conveyor, LLC's Reply in Support of Its Cross-Motion for Partial Summary Judgment (Doc. 2512).

Wayne's Water ‘N’ Wells

• Debtors’ First Omnibus Objection to Certain Mechanic's Lien Claims (Doc. 1749)

• Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Mechanic's Lien Claims of Wayne's Water ‘N’ Wells, Inc. (Doc. 2407)

• Wayne's Water ‘N’ Wells, Inc.’s Response to Statement of Material Facts, Counterstatements of Material Facts, and List of Additional Material Facts in Opposition to Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Mechanic's Lien Claims (Doc. 2439)

• Wayne's Water ‘N’ Wells, Inc.’s Motion for Summary Judgment Overruling the First Omnibus Objection to Workman's Lien Claims (Doc. 2525)

• Wayne's Water ‘N’ Wells, Inc.’s Motion for Leave to Amend (1) Response to Statement of Material Facts, Counterstatements of Material Facts, and List of Additional Material Facts in Opposition to Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Mechanic's Lien Claims, and (2) Memorandum in Opposition to Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Mechanic's Lien Claims (Doc. 2548)

• Plan Administrator's Response in Opposition to Wayne's Water ‘N’ Wells, Inc.’s Motion for Summary Judgment (Doc. 2594)

• Plan Administrator's Response in Opposition to Wayne's Water ‘N’ Wells, Inc.’s Motion for Leave to Amend (1) Response to Statement of

Material Facts, Counterstatements of Material Facts, and List of Additional Material Facts in Opposition to Debtors’ First Omnibus Objection to Wayne's Mechanic's Lien Claims and (2) Memorandum in Opposition to Debtors’ Motion for Summary Judgment Sustaining the First Omnibus Objection to Mechanic's Lien Claims (Doc. 2598)

• Memorandum in Support of Wayne's Water ‘N’ Wells, Inc.’s Motion for Summary Judgment Overruling the First Omnibus Objection to Workman's Lien Claims (Doc. 2614).

Murray Energy Holdings Co. Case No. 19-56885 - Jointly Administered Chapter 11 Motion for Summary Judgment on Debtors’ Omnibus Objection to Mechanic's Lien Claims and Responses

APPENDIX B

Claimants’ Proofs of Claim and Notices of Lien

Anderson Excavating, LLC

Anderson filed seven proofs of claim at issue: Claim Nos. 1280, 1283, 1284, 1285, 1286, 1288 and 1300.

Claim No. 1280 is for $55,635. It consists of two invoices and a Notice of Lien filed against The Harrison County Coal Company. Both invoices reference "work completed 8/15/19 to 9/9/19." The text of the Notice of Lien states in its entirety: "Notice is hereby given, in accordance with the laws of the State of West Virginia, including without limitation W. Va. Code § 38-2-31, that the undersigned, after allowing all credits, claims a lien to secure the payment of the sum of Fifty Five Thousand Six Hundred Thirty Five dollars and 00/100 dollars ($55,635.00) upon work performed for Murray Energy Corporation - The Harrison County Coal Company in Marion County, West Virginia, upon all real estate and personal property of such company. Such work was performed on the following date at the following cost[.]" The Notice of Lien then lists the two invoice numbers, the date 9/10/19 and the total amounts of the invoice. The Notice of Lien does not separately set out the amount of one-month's work.

Claim No. 1283 is for $601,724.89. It consists of 33 invoices dating from April 19, 2019 to October 7, 2019 reflecting work performed between March 25, 2019 and September 12, 2019. It also contains a Notice of Lien against The Harrison County Coal Company. Sixteen of the invoices reflect work done within one calendar month; seventeen invoices reflect work that spanned two or more months. The Notice of Lien lists all invoices by number and date and contains the same text as in Claim No. 1280 above except that the total claimed is $601,724.89 and it is for work performed in Harrison County, West Virginia. The Notice of Lien does not separately set out the amount of one-month's work.

Claim No. 1284 is for $1,520,285.09. It consists of 33 invoices dated from March 19, 2019 to October 7, 2019 reflecting work performed between January 13, 2019 and October 4, 2019. It also contains a Notice of Lien against The Monongalia County Coal Company. Nineteen of the invoices reflect work done within one calendar month; fourteen invoices reflect work that spanned two months. The Notice of Lien lists all invoices by number and date and contains the same text as in Claim No. 1280 above except that it is against The Monongalia County Coal Company for work performed in Monongalia County, West Virginia and the total claimed is $1,520,285.09. The Notice of Lien does not separately set out the amount of one-month's work.

Claim No. 1285 is for $538,116. It consists of 19 invoices dated from March 19, 2019 to September 25, 2019 for work performed between February 2, 2019 and September 10, 2019. It also contains a Notice of Lien against The Marion County Coal Company. Fifteen of the invoices reflect work done within one calendar month; four invoices reflect work that spanned two months. The Notice of Lien list all invoices by number and date and contains the same text as in Claim No. 1280 above except that it is against The Marion County Coal Company for work performed in Marion County, West Virginia and the total claimed is $538,116. The Notice of Lien does not separately set out the amount of one-month's work.

Claim No. 1286 is for $14,000. It consists of one invoice and a Notice of Lien against The Harrison County Coal Company for work performed from February 1, 2019 to March 8, 2019. The Notice of Lien lists the invoice and contains the same text as in Claim No. 1280 above except that it is against The Harrison County Coal Company for work performed in Wetzel County, West Virginia and the total claimed is $14,000. The Notice of Lien does not separately set out the amount of one-month's work.

Claim No. 1288 is for $1,287,252.52. It consists of 15 invoices dated from March 19, 2019 to October 7, 2019, reflecting work performed between February 1, 2019 and October 4, 2019. It also contains a Notice of Lien against The Ohio County Coal Company. Ten of the invoices reflect work done within one calendar month; five invoices reflect work that spanned two months. The Notice of Lien lists all invoices by number and date and contains the same text as in Claim No. 1280 above except that it is against. The Ohio County Coal Company for work performed in Marshall County, West Virginia and the total claimed is $1,287,252.52. The Notice of Lien does not separately set out the amount of one-month's work.

Claim No. 1300 is for $3,942,534.88. It consists of 116 invoices dated from February 7, 2019 to October 8, 2019 for work performed between January 8, 2019 and October 4, 2019. It also contains a Notice of Lien against The Marshall County Coal Company. The Notice of Lien contains a listing of 159 invoices by number and date. There is no explanation for the missing 43 invoices. Ninety-four of the attached invoices reflect work done within one calendar month; 22 invoices reflect work that spanned two or more months. The Notice of Lien contains the same text as in Claim No. 1280 except that it is against. The Marshall County Coal Company for work performed in Marshall County, West Virginia and the total claimed is $3,942,534.88. The Notice of Lien does not separately set out the amount of one-month's work. GMS Mine Repair & Maintenance, Inc.

GMS filed five proofs of claim at issue: Nos. 2502, 2507, 2547, 2558 and 2560.

Claim No. 2502 is for $694,350.27. It is comprised of an accounts receivable aging report containing a chronological listing of invoices dated from March 2019 through September 2019 and a Notice of Lien against The Monongalia Coal Company. No actual invoices are attached. The Notice of Lien contains the following statement: "You are further notified that GMS Mine Repair and Maintenance, Inc., has not been paid the sum of six-hundred-ninety-four thousand, three-hundred-fifty dollars and twenty-seven cents ($694,350.27), being the total value of the work performed. For the avoidance of doubt, GMS Mine Repair and Maintenance, Inc., further claims the priority provided for in W. Va. Code § 38-2-31 with regard to the value of one month's such work or labor. To secure the payment of full sum owed as aforesaid, GMS Mine Repair and Maintenance, Inc., claims a lien upon your interest in any and all real estate or personal property, either at the aforesaid mine or of whatever kind or nature or wherever situate, pursuant to article two, chapter thirty-eight of the Official Code of West Virginia, including but not necessarily limited to section thirty-one of said article and chapter." The Notice of Lien does not separately set out the amount of one-month's work.

Claim No. 2507 is for $4,228,364.44. It is comprised of two accounts receivable aging reports containing a chronological listing of invoices from January 2019 to October 2019 and two Notices of Lien, both against The Ohio County Coal Company. No actual invoices are attached. These accounts receivable aging reports appear to be substantially identical except that the first has three additional invoices not found on the second listing. The total amount owed listed on both is, however, the same. The first Notice of Lien was filed October 30, 2019 in Ohio County, West Virginia; the second was filed December 17, 2019 in Marshall County, West Virginia. Both Notices of Lien contain the same text as Claim No. 2502 above, except that the amount claimed in each is $4,228,364.44. The Notices of Lien do not separately set out the amount of one-month's work.

Claim No. 2547 is for $1,018,747.69. It is comprised of an accounts receivable aging report containing a chronological listing of invoices from January 2019 through September of 2019 and a Notice of Lien against The Marion County Coal Company. No actual invoices are attached. The Notice of Lien contains the same text as that in Claim No. 2502 above, except that the amount claimed is $1,018,747.69. The Notice of Lien does not separately set out the amount of one-month's work.

Claim No. 2558 is for $699,941.70. It is comprised of an accounts receivable aging report containing a chronological listing of invoices from March 2019 to October 2019 and a Notice of Lien against The Marshall County Coal Company. No actual invoices are attached. The Notice of Lien contains the same text as that in Claim No. 2502 above, except the amount claimed is $699,941.70. The Notice of Lien does not separately set out the amount of one-month's work.

Claim No. 2560 is for $1,072,308.79. It is comprised of two identical accounts receivable aging reports containing a chronological listing of invoices from March 2019 to October 2019 and two Notices of Lien against The Harrison County Coal Company. No actual invoices are attached. The first Notice of Lien was filed in Harrison County, West Virginia and the second was filed in Marion County, West Virginia. The Notices of Lien both contain the same text as that in Claim No. 2502 above, except that the amount claimed is $1,072,308.79. The Notices of Lien do not separately set out the amount of one-month's work.

Pioneer Conveyor, LLC

Pioneer filed three proofs of claim at issue: Nos. 2329, 2496 and 2541.

Claim No. 2329 is for $485,219. It is comprised of 33 invoices dated from April through September, 2019 and a Notice of Lien against The Marshall County Coal Company. It is also accompanied by an accounts receivable aging statement listing all the invoices. The Notice of Lien attached to the claim states that "[f]or the avoidance of doubt, Pioneer Conveyor, LLC, further claims the priority provided for in W. Va. Code § 38-2-31 with regard to the value of one month's such work, being ninety-two thousand, nine-hundred-thirty-six dollars and fifty cents ($92,936.50) being the value of work performed during the most recent calendar month, i.e., September 2019, during which work relevant hereto was performed."

Claim No. 2496 is for $56,460. It is comprised of ten invoices dated in August 2019 and a Notice of Lien against The Marion County Coal Company. It is also accompanied by an accounts receivable aging statement listing five invoices. The Notice of Lien states that "[f]or the avoidance of doubt, Pioneer Conveyor, LLC, further claims the priority provided for in W.Va. Code § 38-2-31 with regard to the value of one month's such work, being the same $56,460.00 as above-noted, all work relevant hereto having been performed in the selfsame month."

Claim No. 2541 is for $ 210,557. It is comprised of 14 invoices dated from March 2019 through September 2019 and a Notice of Lien against The Ohio County Coal Company. It is also accompanied by an accounts receivable aging statement listing all the invoices. The Notice of Lien attached to the claim states that "[f]or the avoidance of doubt, Pioneer Conveyor, LLC, further claims the priority provided for in W.Va. Code § 38-2-31 with regard to the value of one month's such work, being twenty-six thousand, four-hundred-twenty dollars and zero cents ($26,420.00), being the value of work performed during the most recent calendar month, i.e., September 2019, during which work relevant hereto was performed."

Wayne's Water ‘N’ Wells

Wayne's filed two proofs of claim at issue: Claim Nos. 1780 and 1801.

Claim No. 1780 contains two invoices: No. 3179 for $47,252.70 and No. 3180 for $50,323.72, an explanatory attachment, and two Notices of Lien against The Marshall County Coal Company. Both invoices are dated August 8, 2019, and attached to them are purchase orders dated July 3, 2019 and July 15, 2019, respectively. Both purchase orders specify a delivery date of July 4, 2019. The explanatory attachment states that the last day on which Wayne's performed labor under Invoice 3179 was August 5, 2019, and the last day on which it performed labor under Invoice 3180 was August 8, 2019, although these dates are not found on the invoices, purchase orders or Notices of Lien. The date the work commenced is unknown. The Notice of Lien as to Invoice 3179 states in its entirety: "To The Marshall County Coal Company: Notice is hereby given, in accordance with the laws of the State of West Virginia, that the undersigned claims a lien to secure the payment of the sum of $47,252.70 upon your interest in and to all real estate and personal property pursuant to W.Va. Code § 38-2-31. The work on which such lien is based was drilling work performed within Marshall County, West Virginia, in accordance with (1) an Intermittent Work Contract between the claimant and The Marshall County Coal Company; (2) the claimant's Invoice No. 3179; and (3) the claimant's Purchase Order No. 4501052372/1720, the last of which is attached as Exhibit A. The claimant has not received payment for this work in any amount and thus there are no credits." The Notice of Lien as to Invoice No. 3180 is identical except that the amount is $49,783.60, the invoice number referenced is No. 3180, and the purchase order number referenced is 4501056257/1720. The Notices of Lien do not separately set out the amount of one-month's work. Both Notices of Lien are filed in Marshall County, West Virginia.

Wayne's Claim No. 1801 contains two invoices: No. 3181 for $84,638 and No. 3197 for $126,030.11, an explanatory attachment, and a Notice of Lien against The Ohio County Coal Company. Invoice 3181 is dated August 8, 2019. Invoice 3197 is dated August 16, 2019. There is one purchase order attached covering both invoices. It is dated April 12, 2019 and specifies a delivery date of April 13, 2019. The explanatory attachment states that the last day on which Wayne's performed labor under both invoices was August 20, 2019, although this date is not found on the invoices, purchase orders or Notice of Lien. The date the work commenced is unknown. The Notice of Lien states in its entirety: "To The Ohio County Coal Company: Notice is hereby given, in accordance with the laws of the State of West Virginia, that the undersigned claims a lien to secure the payment of the sum of $210,668.11 upon your interest in and to all real estate and personal property pursuant to W.Va. Code § 38-2-31. The work on which such lien is based was drilling work performed within Marshall County, West Virginia, in accordance with (1) an Intermittent Work Contract between the claimant and the Ohio County Coal Company; (2) the claimant's invoices No. 3181 & 3197; and (3) the claimant's Purchase Order No. 4501019871/1710, the last of which is attached as Exhibit A. The claimant has not received payment for this work in any amount and thus there are no credits." The Notice of Lien does not separately set out the amount of one-month's work.