Opinion
Case No. 01-70019-SCS, Chapter 11, (Jointly Administered)
June 25, 2002
Counsel for Camellia Food Stores, Inc.: Karen M. Crowley and Frank J. Santoro. V.S.B. #20259 at Marcus, Santoro, Kozak Melvin, P.C. from Portsmouth, Virginia.
Counsel for Richfood Holdings, Inc.: Jonathan L. Hauser, V.S.B. # 18688 and Troutman Sanders LLP from Norfolk, Virginia.
Counsel for the Official Unsecured Creditors and Committee of Camellia Food Stores, Inc.: Brent C. Strickland, Esq. of Whiteford, Taylor Preston, L.L.P. from Baltimore, MD.
ORDER AUTHORIZING TRANSFER OF REAL PROPERTY
This matter comes before the Court upon the Joint Request of Camellia Foods Stores, Inc., Eastern Shore Markets, Inc. and Bonnie Be-Lo Markets, Inc. (jointly the "Debtor") and Richfood Holdings, inc. and its affiliates for authority to allow the Debtor to transfer and convey real property of the estate.
1. The property at issue is described as follows, to wit:
All that lot or parcel of land situate, lying and being in the Town of Princess Anne, West Princess Anne Election District, Somerset County, Maryland, lying and binding in part on the east side of U.S. Route 13 known as the Princess Anne By-Pass leading from Princess Anne to Salisbury, bounded on the north by the land of M. Lurline Cross, bounded on the east in part by the land of Joseph Pietroski and Mary Pietroski (G.J.B. No. 201, folio 557), in part by the land owned or formerly owned by S. Banes Layfield (I.T.P. No. 262, folio 129), in part by the land formerly owned by Thomas S. Simpkins, in part by the land of John H. Fitzgerald and Emma C. Fitzgerald (B.L.B. No. 182, folio 100) and in part by the land of Lindy Bromley and Mary Jane Bromley (I.T.P. No. 275, folio 70), in part by the land of Kellam Realty Company (I.T.P. No. 343, folio 382), in part by the land of Somerset County Organization for Progressive Enterprises, Inc. (I.T.P. No. 341, folio 65) in part by Maryland Route 362 which leads in an easterly direction from U.S. Route 13 to Maryland Route 675, bounded on the southwest in part by the land of Hardee's Food Systems, Inc. (I.T.P. No. 312, folio 409) in part by the land of Maryland State Bank (I.T.P. No. 312, folio 412) and in part by the land of Richard D. Wheatley and Teresa W. Wheatley (I.T.P. No. 345, folio 591 formerly owned by Richard P. Smith and Dorothy S. Smith I.T.P. No. 344, folio 772); said land was originally laid down and described as containing 11.48 acres on a plat entitled "Property Survey for Logan D. Widdowson" dated February 13, 1979 by Herman Lloyd Purnell, III, Surveyor, recorded among the Land Records of Somerset County in Plat Book I.T.P. No. 13, folio 48 and is the same and all of said land described on said plat and conveyed unto Eastern Shore Markets, Inc. by Logan C. Widdowson by deed dated December 23, 1981 and recorded among the aforesaid Land Records in Liber I.T.P. No. 330, folio 626; EXCEPT SO MUCH THEREOF subsequently conveyed by Eastern Shore Markets, Inc. by the following deeds: (1) To Somerset County Organization for Progressive Enterprises, Inc. dated November 22, 1983 and recorded among the aforesaid Land Records in Liber I.T.P. No. 341, folio 65, containing 39,320 square feet or 0.92 acres as laid down and described on a plat entitled "Lot Survey for SCOPE, Inc." by Herman Lloyd Purnell, III, dated September 9, 1983 recorded in Liber I.T.P. No. 341, folio 69; and (2) To Richard P. Smith and Dorothy S. Smith dated June 18, 1984 and recorded among the aforesaid Land Records in Liber I.T.P. No. 344, folio 772 containing 24,728.27 square feet or 0.57 acres as laid down and described on a plat entitled "Property Survey for Richard P. Smith and Dorothy S. Smith" dated May 17, 1984, prepared by Herman Lloyd Purnell, III, Surveyor recorded in Liber I.T.P. 344, folio 776 (now owned by Richard D. Wheatley and Teresa W. Wheatley; I.T.P. No. 345, folio 591); leaving a residue of 19.99 acres as hereinafter described; together with a right of way over and across a 30 ft. strip of land on the western side of the land which was conveyed by L. Wilbur Engleman unto Hardee's Food Systems, Inc. by deed dated January 22, 1979 and recorded among the aforesaid Land Records in Liber I.T.P. No. 312, folio 409 and on the western side of the land which was conveyed by L. Wilbur Engleman unto Maryland State Bank by deed dated January 22, 1979 and recorded among the aforesaid Land Records in Tiber I.T.P. No. 312, folio 412; said right of way being designated as "Proposed Private Drive on a plat by Stewart Whitter, Registered Surveyor, dated October 2, 1978, recorded December 26, 1978 and recorded among the Land Records of Somerset County in Plat Book I.T.P. No. 12, folio 33 and also shown on as "30 ft. Reserved for Roadway" on the aforesaid plat by Herman Lloyd Purnell, III surveyed for Logan C. Widdowson recorded in Plat Book I.T.P. No. 13, folio 48 and also together with certain drainage rights and appurtenance thereto conveyed unto Eastern Shore Markets, Inc. by Bailey Alfred Thomas by deed of easement dated December 28, 1982 and recorded among the aforesaid Land Records in Liber I.T.P. No. 330, folio 561 and also together with an easement for the purpose of construction, installation, inspection, maintenance and replacement of water and sewer mains and facilities appurtenant thereto as set forth in a deed of easement and agreement by and between Somerset County Organization for Progressive Enterprises, Inc. and Eastern Shore Markets, Inc. dated April 30, 1984 and recorded among the aforesaid Land Records in Liber I.T.P. No. 344, folio 257; and together with the benefit of the restrictions established for the benefit of Eastern Shore Markets, Inc. in the aforesaid deed from Eastern Shore Markets, Inc. to Richard P. Smith and Dorothy S. Smith dated June 18, 1984 and recorded among the aforesaid Land Records to Liber I.T.P. No. 344, folio 772; subject to the term and conditions set forth in the aforesaid deed of easement from Bailey Alfred Thomas to Eastern Shore Markets, Inc. dated December 28, 1982 and recorded among the aforesaid Land Records in Liber I.T.P. No. 330, folio 561 and subject to the terms and conditions of said deed of easement and agreement by and between Somerset County Organization for Progressive Enterprises, Inc. and Eastern Shore Markets, Inc. dated April 30, 1984 and recorded among the aforesaid Land Records in Liber I.T.P. No. 344, folio 257 subject to an Inquisition by the State Roads Commission of Maryland vs. Harold A. McAllen and Bessie P. McAllen on November 12, 1957 and recorded among the aforesaid Land Records in Liber G.J.B. No. 184, folio 177; subject to the easements contained in a deed to the State of Maryland to the use of the State Records Commission from Warren C. Gladden and Helen W. Gladden dated November 4, 1959 and recorded among the aforesaid Land Records in Liber G.J.B. No. 196, folio 3041 subject to an agreement by and between Oakhill Farms, Inc. and Somerset County Sanitary Commission dated October 3, 1962 and recorded among the aforesaid Land Records in Liber G.J.B. No. 211, folio 596; subject to an agreement by and between Warren C. Gladden and Helen W. Gladden and Somerset County Sanitary Commission dated October 5. 1962 and recorded among the aforesaid Land Records in Liber G.J.B. No. 221, folio 605; subject to the use in common with Hardee's Food Systems, Inc. and Maryland State Bank and Richard D. Wheatley and Teresa W. Wheatley of a 30 ft. right of way on the west side of the properties of Hardee's Food Systems, Inc. and Maryland State Bank and Richard D. Wheatley and Teresa W. Wheatley and lying between the west side of said properties and the east side of U.S. Route 13; subject to the use by Hardee's Food Systems. Inc., Maryland State Bank and Richard D. Wheatley and Teresa W. Wheatley of the 60 ft. right of way on the east side of their respective properties for access to Maryland Route 362 and for the installation and maintenance of water and sewer mains and appurtenances thereto and subject to the use by Somerset County Organization for Progressive Enterprises, Inc. of said 60 ft. right of way on the west side of its property for access to Maryland Route 362 and for the installation and maintenance of water and sewer mains and appurtenances thereto; subject to the restrictions set forth in the aforesaid deed to Eastern Shore Markets, Inc. from Logan C. Widdowson dated December 23, 1981 and recorded among the aforesaid Land Records in Liber I.T.P. No. 330, folio 626; subject to the covenants as to the use of land of Eastern Shore Markets, Inc. as set forth in the deed from Eastern Shore Markets, Inc. to Richard P. Smith and Dorothy S. Smith dated June 18, 1984 and recorded among the aforesaid Land Records in Liber I.T.P. No. 344, folio 772.
The subject land is described on a plat entitled "Property Survey for Eastern Shore Markets, Inc." by Herman Lloyd Purnell, III, Surveyor, dated October 28, 1984 and recorded among the Land Records of Somerset County in Plat Book I.T.P. No. 14, folio 20 as follows: Beginning for the same at a concrete monument found on the north side of Maryland Route 362 at the extreme southeast corner of the land of Hardee's Food Systems, Inc. (I.T.P. No. 312, folio 409), as shown on said plat, thence from said place of beginning as follows: (1) North 1° 30' 0" East a distance of 756.91 feet to a point which marks the northernmost corner of the land of Richard D. Wheatley and Teresa W. Wheatley (I.T.P. No. 345, folio 591), thence (2) by and with the west line of said Wheatley land South 21° 10' 30" West a distance of 394.97 feet to the southwest corner of said Wheatley land, thence (3) North 88° 30' 0" West a distance of 30 feet to intersect the east side of U.S. Route 13; thence (4) by and with the east side of U.S. Route 13 North 21° 10' 2" East a distance of 1310.25 feet to a concrete monument at the northwest corner of the land herein described, thence (5) South 72° 8' 0" East by and with the south line of the land by M. Lurline Cross 239.66 feet to a concrete monument at the northeast corner of the land herein described and the northwest corner of the land of Joseph Pietroski and Mary Pietroski (G.J.B. No. 201, folio 557), thence (6) South 11° 38' 0", West a distance of 625.04 feet to a point which designates the southwest corner of the land of Lindy Bromley and Mary J. Bromley (I.T.P. No. 275, folio 70), thence (7) North 74° 57' 19" West 164.99 feet to a point, thence (8) North 75° 23' 19" West a distance of 16.14 feet, thence (9) South 1° 6" 14" West a distance of 23.25 feet, thence (10) South 74° 55' 0" East a distance of 212.03 feet to a point, thence (11) by and with the west side of Walnut Street South 1° 5' 0" West a distance of 425.87 to a point which designates the northeast corner of Kellam Realty Company (I.T.P. No. 343, folio 382), thence (12) North 88° 30' 0" West a distance of 209.28 feet to the northwest corner of said Kellam Realty Company land, thence (13) South 1° 30' 57" West a distance of 35 feet to the northeast corner of the land of SCOPE, Inc. thence (14) North 88° 30' 0" West 160 feet to the northwest corner of SCOPE, Inc. thence (15 So. 1° 30' 0" West a distance of 444.50 feet to a concrete monument on the north side of Maryland Route 362, thence (16) by and with the north side of Maryland Route 362 North 88° 30' 0" West 60.03 feet to the first mentioned concrete monument and place of beginning, containing 10.56 acres, more or less, all as described on said plat (the "Property").
2. On April 29, 2002, this Court granted relief from the automatic stay provided for by 11 U.S.C. § 362 to allow Richfood Holdings, Inc. to foreclose on the property.
3. Richfood Holdings, Inc., by its affiliate G.W.M. Holdings, Inc., has executed a Purchase Agreement dated April 17, 2002 with E. Scott Tawes for the sale of the property for the sum of $950,000.00. The property has been marketed extensively and the price obtained is the highest and the best offer received since the filing of the petition herein.
4. The sale of the Property will benefit the estate.
5. The Debtor and Richfood Holdings, Inc. seek entry of this Order in connection with the transfer and conveyance of the Property.
AFTER DUE CONSIDERATION, it is ADJUDGED, ORDERED and DECREED as follows:
1. The Debtor be, and it hereby is, authorized to sell, transfer and convey all of its interest in the Property to the buyer pursuant to the above-referenced Purchase Agreement, with all liens and interest in the Property attached into the sales proceeds in the same priority.
2. The net sales proceeds after satisfaction of usual and customary closing costs shall be conveyed to Richfood Holdings, Inc. in partial satisfaction of the lien it holds thereon,
3. The Debtor is hereby authorized to take all necessary action to consummate the sale of the Property to the buyer.
CERTIFICATION
I hereby certify that the foregoing proposed Order has been endorsed by all parties required to do so pursuant to the Rules of Bankruptcy Procedure and Local Rules.
By __________________ Jonathan L. Hauser