CARLOTA M. BÖHM, United States Bankruptcy Judge.
The matter before the Court is the Amended Motion for Stay Pending Appeal ("Motion") filed by Rock and Marcia Ferrone, pro se (hereinafter, the "Ferrones").
The Court writes primarily for the parties who are familiar with the extensive background and procedural history of the above-captioned bankruptcy case of RPP, LLC ("RPP"), the related bankruptcy case of Rock Airport of Pittsburgh, LLC ("Rock Airport"), and the adversary proceedings associated with these bankruptcy cases. In March of 2015, numerous matters were pending before the Court, and the parties sought judicial mediation to pursue a global settlement. Accordingly, on March 13, 2015, at the suggestion of the parties, this Court referred the pending matters to the Honorable Thomas P. Agresti for the purpose of mediation. Among these matters were the competing disclosure statements and plans filed in RPP's bankruptcy case by RPP and Trib Real Estate Company ("Trib"). The parties directed to participate in mediation included Rock Ferrone, the equity security holder of RPP.
Following a great deal of preparation by the parties and the Mediation Court, the mediation, lasting over eleven hours, was conducted on August 17, 2015. The result was a settlement, the terms of which were documented on the record by the parties. On August 20, 2015, Judge Agresti entered the Final Judicial Mediation Consent Order ("Consent Order"), "incorporat[ing] by reference the consensual Order entered at approximately 10:45 P.M. following the on the record colloquy of the Parties with the Mediation Court at the conclusion of the Judicial Mediation." See Consent Order, Doc. No. 495. The Consent Order further provided as follows:
Id. Following the Consent Order, the transcript of the settlement ("August 17th Transcript") was filed on the docket. See
As set forth within the August 17th Transcript, the settlement anticipated the filing of an agreed-upon plan of reorganization in RPP's bankruptcy case. In light of the settlement, on October 15, 2015, Trib filed the Amended Plan of Reorganization of Trib Real Estate Company Dated October 15, 2015 ("Trib's Plan") along with a summary and disclosure statement. See Doc. Nos. 517, 518, and 519. Also on October 15, 2015, this Court held a status conference on all matters referred to mediation in order to begin implementation of the global settlement. At that time, it was confirmed that Trib's Plan replaced its previously filed plan and was intended to constitute the agreed-upon plan achieved through mediation. With respect to the plan previously filed by RPP ("RPP's Plan"), RPP asserted that it was not prepared to withdraw its plan as there were some undisclosed issues to resolve with respect to the settlement. Ultimately, on November 5, 2015, due to the questions raised regarding the terms of the settlement, the matter was submitted to Judge Agresti for the purpose of clarification and/or further mediation. See Doc. No. 530. The November 5, 2015 Order further requested a report from the Mediation Court with respect to its findings as to the status of the Consent Order if the matter(s) were not fully resolved.
On December 10, 2015, the Mediation Court held a conference in an attempt to resolve the issues that might affect the Consent Order. At that time, it became clear that the sole issue was the Ferrones' contention that the settlement included a "blanket security interest" in RPP's electrical power grid to secure the payment of their equity claim. The parties were provided with the opportunity to present their respective positions, and those arguments are set forth in a transcript. See December 10th Transcript, Doc. No. 545. Following the conference, the Report of Mediation Court Regarding "Clarification Issues" ("Mediation Report") was filed on January 12, 2016. See Doc. No. 553. Within the detailed Mediation Report, Judge Agresti set forth the arguments of the parties, provided a thorough analysis, and concluded that no clarification of the Consent Order appeared to be necessary; rather, the concerns raised by the Ferrones appeared to be in the nature of "buyers' remorse." As stated within the Mediation Report:
See id. at 6 (internal citations omitted). With the filing of the Mediation Report, this Court prepared to go forward with status conferences on the pending matters on February 17, 2016.
Prior to the status conferences, upon review of the August 17th Transcript, the Consent Order, the Judicial Mediation Termination Order, the December 10th Transcript, and the Mediation Report (collectively, the "Mediation Record"), this Court issued an Order directing RPP, through counsel, to appear on February 17, 2016, and show cause why RPP's Plan was not withdrawn based upon the global settlement, particularly with respect to the pursuit of an agreed-upon plan. The Order further contemplated dismissing and/or striking RPP's Plan if RPP did not withdraw it prior to the hearing. On February 15, 2016, RPP filed Debtor's Response to Rule to Show Cause questioning the enforceability of the settlement agreement. After an opportunity for all parties to be heard, this Court ruled on the record that, following a thorough review of the Mediation Record, a global settlement was achieved. The Mediation Report was adopted and incorporated into the ruling. Accordingly, RPP's failure to withdraw its plan violated the terms of settlement, and RPP's Plan was dismissed. See Doc. No. 561.
Despite the filing of the Mediation Report and the scheduling of the rule to show cause hearing approximately one month earlier, the day before the February 17, 2016 hearing, the Ferrones filed their Motion for Order Enforcing Settlement Agreement, or in the Alternative, Setting Aside Agreement Due to No Meeting of the Minds ("Motion to Enforce"). Based upon the ruling at the February 17, 2016 hearing, adopting the Mediation Report and enforcing the settlement agreement as set forth therein, the Motion to Enforce was denied as moot. See Doc. No. 564.
On February 22, 2016, the Ferrones filed a Notice of Appeal with respect to the Orders dismissing RPP's Plan and denying the Motion to Enforce as moot. In addition, the Ferrones filed their original motion seeking a stay pending appeal. The amended motion was filed on March 1, 2016. Of particular concern to the Ferrones appears to be any progress with respect to the Trib's Plan; however, given the global nature of the settlement, it is unclear how any matters could proceed in the event of a stay pending appeal. Responses were filed opposing the Ferrones' request for a stay, and a hearing was held on March 10, 2016.
Pursuant to Fed. R. Bankr. P. 8007, a motion for stay of an order pending appeal is ordinarily presented to the bankruptcy court in the first instance. The Third Circuit recently clarified and provided guidance regarding the test to be applied by courts considering motions for stay pending appeal. See In re Revel AC, Inc., 802 F.3d 558 (3d Cir.2015). The four factors to be considered and balanced are
With respect to the first factor, "a sufficient degree of success for a strong showing exists if there is `a reasonable chance, or probability, of winning.'" Id. at 568-69 (quoting Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir.2011) (en banc)). The strength of the case that a movant must demonstrate is determined by the "sliding-scale" approach, such that the court's assessment of the remaining factors will impact the degree of possibility of success that a movant must show. See Revel, 802 F.3d at 569. As to the second factor, the movant must show that irreparable injury is more than a mere possibility, rather it must be likely. See id. When these two factors are satisfied, the next step is to assess the harm to the party or parties opposing the stay and weigh the public interest. See id. The likely harm to the movant in the absence of a stay is weighed against the likely harm to the opponents if a stay is granted. See id. In summarizing the analysis to be applied, the Third Circuit provided:
Id. at 571. Accordingly, with the guidance of Revel, this Court considers the instant Motion.
In applying the analysis outlined in Revel to this case, the Court notes that the Ferrones did not specifically address the four factors set forth above in their Motion or in their oral argument. Instead, the Ferrones suggest that a stay is appropriate as there is a reasonable question with respect to the enforceability of the settlement agreement.
Beginning with the Ferrones' likelihood to succeed, the Ferrones contend that the
In dismissing RPP's Plan, the Court considered Debtor's Response to Rule to Show Cause, in which RPP contended that an evidentiary hearing was needed to determine the intent of the parties. In support, RPP cited to In re BG Petroleum, LLC, 525 B.R. 260 (Bankr.W.D.Pa.2015). The facts of BG Petroleum, however, are distinguishable. The dispute that arose in that case was with respect to terms of payment which were not set forth on the mediation term sheet. See id. at 267. Ultimately, the court found that it did not need to resolve any ambiguity as the weight of the evidence supported the conclusion that that the gap in the term sheet was filled in by a subsequent document prepared by the parties. See id. at 272. Unlike BG Petroleum, there is no gap or ambiguity in the settlement here, and it is inappropriate to attempt to read excerpts of the transcript out of context as the Ferrones suggest in an effort to change the terms. The plain meaning of the settlement is clear from review of the August 17th Transcript, and the transcript does not support the Ferrones' interpretation.
To the extent the Ferrones challenge whether the parties possessed the requisite meeting of the minds to form a contract, that argument clearly fails. In a thorough and meticulous manner, the Mediation Court required that the parties set forth the terms of settlement on the record. A review of the transcript reveals, without a doubt, that the parties absolutely manifested the requisite intent to be bound by the terms of the settlement.
In questioning the settlement, the Ferrones also contend that the settlement was never approved in compliance with Fed. R. Bankr. P. 9019. This appears to be a belated concern raised in the amended version of the Motion. The Court notes that the dispute with respect to terms of the settlement arose at the first status conference following the settlement. Thus, any implementation of the mediated resolution was stalled. Furthermore, following mediation, upon the filing of Trib's Plan, it appeared that full disclosure of the settlement to any parties in interest who did not participate in mediation (to the extent such parties exist) would be accomplished through the process of confirmation of the agreed-upon plan, presumably pursuant to 11 U.S.C. § 1123(b)(3), which permits a plan to "provide for the settlement or adjustment of any claim or interest belonging to the debtor or to the estate[.]" Although the plan confirmation process achieves the goals of providing complete disclosure to all parties and review by the Court, to be clear, it does not provide the Ferrones, or any party to the mediation, with a renewed opportunity to challenge the settlement to which they are bound. The Ferrones' true concern appears to be regret regarding the settlement rather than whether there was compliance with Fed. R. Bankr.P. 9019.
See August 17th Transcript, at 67 (emphasis added). Further, following the mediation, the Consent Order was entered, which was not appealed.
In addition, it appears that all relevant parties participated in mediation when the global settlement was achieved, leaving only the question of whether the agreed — upon plan should be confirmed. Furthermore, the fact that the parties to the settlement are bound does not result in automatic confirmation of the Trib's Plan. The disclosure statement is scheduled for a hearing, and Trib's Plan will proceed as any other plan.
Finally, the Ferrones' contention that the settlement agreement is illusory appears to be nothing more than a red herring to undermine the entire, heavily negotiated settlement. The Ferrones assert that the agreement is illusory as it fails to provide them with guaranteed consideration. As stated by Judge Agresti in the Mediation Report, concluding that no support exists for a "blanket security interest" supporting "any" loss by the Ferrones:
See Mediation Report, at 6. As set forth in detail in the August 17th Transcript, funding the creditor trust (and accordingly payment of the equity claim) is dependent upon the monthly electrical bills of the members of RPP. See August 17th Transcript, at 7-8. The August 17th Transcript and Exhibit 2 to the Consent Order reveal that there was complete transparency as to the method by which the creditor trust would be funded.
Furthermore, to the extent the Ferrones argue that the agreement is made illusory as all of the parties could simply choose to purchase their electricity elsewhere, the contention is misleading, especially given the record of this case. It has not proven a simple task to walk away from the electrical grid and connect to a new source of electricity. Management Science Associates, Inc. ("MSA") is a prime example, as it took years for MSA to transition its electrical usage from RPP to West Penn Power.
Based on the foregoing, the Ferrones' likelihood of success does not rise even to the level of negligible and does not support granting a stay pending their appeal.
Significantly, the Ferrones also failed to demonstrate that they will suffer irreparable harm absent a stay. The Ferrones particularly take issue with the Court moving forward with Trib's Plan. Processing that plan is in its infancy. At this time, the Court has not yet held a hearing on the disclosure statement. In fact, a hearing on the disclosure statement will not be held until April 14, 2016. With respect to confirmation, the Court cannot speculate at this time when a hearing on that issue may occur. Any potential harm does not appear imminent. Further, whether Trib's Plan appropriately implements the settlement has not been determined. Should a party to the settlement contend that the Trib's Plan fails in that regard, an appropriate objection can be filed.
In addition, the Ferrones suggest that if the Trib's Plan is confirmed and if the members of the consortium immediately abandon the electrical grid for another
Therefore, as the Ferrones did not make the requisite showings on either of these first two factors, an inquiry into the remaining two factors is unnecessary. Notwithstanding the foregoing, the Court will briefly address the final two factors as they too support the conclusion that a stay is not appropriate under the circumstances.
In balancing the harm to the other parties in the event a stay is granted, this Court notes the considerable amount of time and effort dedicated to the mediation of these matters in order to obtain a successful result. The various pending matters were referred to mediation in March of 2015, which concluded approximately five months later. With major contingencies appearing to be resolved by the Third Circuit's ruling on February 22, 2016, this bankruptcy case, which commenced in 2013, is finally in a posture to proceed with a plan of reorganization. It appears that the stay requested by the Ferrones would halt any progress in this case for an undetermined amount of time to the detriment of the parties who diligently mediated and achieved a settlement.
Significantly, the other parties have relied upon the settlement and taken action in compliance with the agreement. Notably, the Trib expended time and resources to prepare a plan to implement the settlement. In addition, the Chapter 11 Trustee of Rock Airport withdrew her objection to the claim of K-Cor with prejudice in the bankruptcy case of Rock Airport in compliance with the settlement agreement.
There is significant potential for harm as the Ferrones question the entirety of the settlement, potentially reviving a dispute over the ownership of the grid and the litigation of large claims, which may threaten a successful reorganization in this case. For the Trib, a stay would prolong the uncertainty regarding the reliability of its power source.
In addition, with the recent ruling by the Third Circuit and the global nature of the settlement, the bankruptcy case of Rock Airport, which commenced in 2009, is finally nearing conclusion. A stay will undoubtedly prevent entry of a final decree in that case. Accordingly, the speculative harm to the Ferrones if this case proceeds does not outweigh the harm to other parties in the event a stay is granted.
As a matter of public policy, settlements are encouraged. See BG Petroleum, 525 B.R. at 270. Permitting a party to bring this case to a grinding halt while creating additional litigation to contest a point that is clear in the settlement undermines the mediation program and the promotion of amicable resolutions in general in this Court. In addition, the final resolution of these matters is significant and impacts others who have not been active participants in this case. As RPP is a source of electrical power for those at the business park, it is in the public interest
Therefore, based upon the foregoing, this Court finds that the Ferrones failed to meet their burden to obtain a stay pending appeal. Accordingly, their Motion must be denied. An Order will be entered consistent with this Memorandum Opinion.
It is hereby
