Elemental Processing, LLC v. Amerra Capital Management, LLC ( 2022 )

RENDERED: DECEMBER 16, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1413-MR
ELEMENTAL PROCESSING, LLC APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NO. 20-CI-00907
AMERRA CAPITAL MANAGEMENT,
LLC; AB SCIEX LLC; CAPSTONE
GROUP 2100, LLC; DEERE &
COMPANY; DYNASTY FARMS,
LLC; HEMPTOWN ORGANICS
CORP. AND CERTAIN OF ITS
SUBSIDIARIES, INCLUDING HTO
HOLDINGS, INC.; JAMES FRAZIER,
RECEIVER; KENTUCKY 21ST
CENTURY AGRI, LLC; MOKENA
HOLDINGS, LLC; PAUL
EQUIPMENT COMPANY; AND
STRATEGIC COMPENSATION
GROUP, LLC APPELLEES
AND
NO. 2021-CA-0495-MR
ELEMENTAL PROCESSING, LLC APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NO. 20-CI-00907
AMERRA CAPITAL MANAGEMENT,
LLC; AB SCIEX LLC; CAPSTONE
GROUP 2100, LLC; DEERE &
COMPANY; DYNASTY FARMS,
LLC; HEMPTOWN ORGANICS
CORP. AND CERTAIN OF ITS
SUBSIDIARIES, INCLUDING HTO
HOLDINGS, INC.; JAMES FRAZIER,
RECEIVER; KENTUCKY 21ST
CENTURY AGRI, LLC; MOKENA
HOLDINGS, LLC; PAUL
EQUIPMENT COMPANY; AND
STRATEGIC COMPENSATION
GROUP, LLC APPELLEES
AND
NO. 2021-CA-0526-MR
CAPSTONE GROUP 2100, LLC APPELLANT
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APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NO. 20-CI-00907
AMERRA CAPITAL MANAGEMENT,
LLC; DYNASTY FARMS, LLC;
ELEMENTAL PROCESSING, LLC;
JAMES H. FRAZIER, III; KENTUCKY
21ST CENTURY AGRI, LLC; AND
MOKENA HOLDINGS, LLC APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
LAMBERT, JUDGE: We are considering these three separate appeals together,
and we affirm all three.
The facts are well known to the parties and will be repeated only as is
necessary to the understanding of this Opinion. The procedural history will be
stated as pertaining to each appeal separately.
On August 23, 2019, Elemental Processing, LLC (Elemental), signed
loan documents with AMERRA Capital Management, LLC (AMERRA), whereby
AMERRA advanced to Elemental the principal sum of just under $8 million, and
Elemental granted, as collateral, first-priority liens and security interests in what
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amounted to substantially all of Elemental’s assets. The pertinent documents were
filed with the Kentucky Secretary of State’s office.
The initial money was used to pay off creditors. Within two months
of the loan’s origination, Elemental found itself in need of an additional $2 million.
AMERRA refused Elemental’s request for further funding. By letter dated January
10, 2020, AMERRA notified Elemental of the latter’s events of default and called
for the note to be accelerated. The following month, AMERRA notified Elemental
that AMERRA considered itself released from its obligations under the note, which
AMERRA stated was due in full under the agreed-upon provisions. In March of
that year, AMERRA filed suit against Elemental in Fayette Circuit Court.
AMERRA also sought appointment of a receiver pursuant to Kentucky Revised
Statute (KRS) 425.600.1 The receiver was appointed by order of the circuit court
on March 18, 2020.
1
KRS 425.600 (“Appointment of receiver; appeal from order appointing or refusing to appoint;
powers of receiver”) provides:
(1) On the motion of any party to an action who shows that he has, or probably
has, a right to, a lien upon, or an interest in, any property or fund, the right to
which is involved in the action, and that the property or fund is in danger of being
lost, removed or materially injured, the court may appoint a receiver, or order the
master commissioner to take charge of the property or fund during the pendency
of the action, and may order and coerce the delivery of it to him. The order of a
court appointing or refusing to appoint a receiver, shall be deemed a final order
for the purpose of an appeal; Provided, that such order shall not be superseded.
(2) The receiver or master commissioner has, under the control of the court,
power to bring and defend actions, respecting the property, to take and keep
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Elemental filed its answer (and eight affirmative defenses) in April
2020. Shortly thereafter, Elemental sought Chapter 11 bankruptcy protection in
the United States Bankruptcy Court, Eastern District of Kentucky. On May 15,
2020, Elemental’s bankruptcy action was dismissed, and the matter was returned to
Fayette Circuit Court. In June 2020 AMERRA was granted its motion to amend its
complaint to name, as defendants, five junior lienholders (namely, Dynasty Farms,
LLC; Mokena Holdings, LLC; AB Sciex, LLC; Paul Equipment Company; and
Strategic Compensation Group). Elemental answered and counterclaimed.
Additional entities (Deere and Company; Capstone Group 2100, LLC (Capstone);2
Hemptown Organics Corp. and Certain of Its Subsidiaries, Including HTO
Holdings, Inc.) were granted leave to intervene as cross- and counter-claim parties.
James Frazier, the appointed Receiver, was also listed as a party to these actions.
Elemental filed its first request for discovery on August 3, 2020.
Shortly thereafter, AMERRA advanced upwards of $1.26 million to the Receiver
to meet Elemental’s payroll, continue insurance on the assets, and
possession of the property, to receive rents, collect debts and generally to do such
acts respecting the property as the court may authorize.
(3) Any income accruing during the pendency of proceedings under this section
shall follow the property upon final disposition of the case.
2
Capstone leased premises to Elemental, beginning October 2017, at 2120 Capstone Drive,
Lexington, Kentucky. The lease was terminated, pursuant to the terms of the agreement, by
Capstone because of the appointment of the Receiver.
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remove/remediate environmental waste. AMERRA filed a motion for summary
judgment on August 11, 2020. Its discovery responses to Elemental were filed in
early September. The hearing on the motion for summary judgment was heard on
September 9, 2020. The order granting AMERRA’s motion was entered on
September 30 of that year. The circuit court found Elemental liable to AMERRA
in the amount of $7,979,505.00 (the dollar amount of the original loan), and
counterclaims asserted by Elemental, Dynasty Farms, and Strategic Compensation
Group were dismissed with prejudice. Elemental filed timely notice of appeal.
In the first appeal (No. 2020-CA-1413-MR), we consider the
propriety of the Fayette Circuit Court’s order granting summary judgment to
AMERRA.3 We begin by stating the standard of review, recently summarized in
Lawson v. Smith, 652 S.W.3d 643, 645 (Ky. App. 2022):
The standard of review upon appeal of an order
granting summary judgment is “whether the trial court
correctly found that there were no genuine issues as to
3
We note that Elemental’s briefs fail to follow the dictates of Kentucky Rule of Civil Procedure
(CR) 76.12(4)(c)(vii), which requires, in pertinent part: “An ‘APPENDIX’ with appropriate
extruding tabs containing copies of the findings of fact, conclusions of law, and judgment of the
trial court, any written opinions filed by the trial court in support of the judgment, the opinion or
opinions of the court from which the appeal is taken, and any pleadings or exhibits to which
ready reference may be considered by the appellant as helpful to the appellate court. The first
item of the appendix shall be a listing or index of all documents included in the appendix.
The index shall set forth where the documents may be found in the record. The appellant
shall place the judgment, opinion, or order under review immediately after the appendix
list so that it is most readily available to the court. Except for matters of which the appellate
court may take judicial notice, materials and documents not included in the record shall not be
introduced or used as exhibits in support of briefs.” (Emphases added.) Proper appendices
would have been very beneficial here where the record is so large. Counsel is advised to comply
with this Rule in future briefs filed with this Court.
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any material fact and that the moving party was entitled
to judgment as a matter of law.” Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996) (citing CR 56.03).
Upon a motion for summary judgment, all facts and
inferences in the record are viewed in a light most
favorable to the non-moving party and “all doubts are to
be resolved in his favor.” Steelvest, Inc. v. Scansteel
Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Thus,
a summary judgment looks only to questions of law, and
we review a trial court’s decision to grant summary
judgment de novo. Brown v. Griffin, 505 S.W.3d 777,
781 (Ky. App. 2016); see also Blackstone Mining Co. v.
Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010), as
modified on denial of reh’g (Nov. 23, 2011). However,
“[a] party opposing a summary judgment motion cannot
rely on the hope that the trier of fact” would simply
“disbelieve the movant’s denial of a disputed fact, but
must present affirmative evidence in order to defeat a
properly supported motion for summary judgment.”
Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 790 (Ky. App.
2012) (citing Steelvest, 807 S.W.2d at 481).
With these standards in mind, we turn to Elemental’s first appeal.
Elemental insists that summary judgment was premature because
discovery was not yet complete, that there were genuine issues of material fact, and
that the circuit court failed to weigh inferences in a light most favorable to
Elemental.
We disagree with all of these assertions. The parties are bound to the
terms of the agreements they negotiated at arm’s length. As the circuit court
found, the loan documents “constitute legal, valid, and binding obligations of
Elemental in accordance with their terms.” Elemental defaulted, and AMERRA,
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as a secured creditor with a first-priority lien on and security interest in most of
Elemental’s collateral,4 exercised those rights to which it was entitled pursuant to
the default and enforcement of security interest provisions of Article 9 of the
Uniform Commercial Code (UCC). And the parties were governed by New York
law, a conclusion of law which Elemental does not contest. Cicconi v. McGinn,
Smith & Co., Inc., 35 A.D.3d 292, 825 N.Y.S.2d 360 (2006);5 N.Y. U.C.C.6 § 9-
601(a)(1). See also KRS 355.9-601 et seq.
Elemental failed to present affirmative evidence to the circuit court, as
it does here, that any admissible evidence existed beyond the four corners of the
loan documents that would have defeated AMERRA’s motion for summary
judgment. Nor does Elemental rebut, in its reply brief, AMERRA’s claim that
4
The circuit court’s three exceptions to first-priority interests, where AMERRA was found to be
the junior lienholder, were: (1) the Deere collateral; (2) the landlord’s lien of Capstone Group
2100; and (3) the interests of Hemptown Organics and K21, which were to be determined at a
later date. Also, an agreed order regarding priorities of AMERRA and Mokena Holdings was
entered on November 24, 2020. Mokena’s counterclaim against AMERRA was ordered
dismissed with prejudice. K21 and Sky Hemp (both had filed notice of interest of ownership of
assets prior to the Receiver’s sale of Elemental’s assets) notified the circuit court, on December
4, 2020, that they had reached an agreement with AMERRA and thus withdrew their ownership
and interest claims. A settlement agreement was reached between AMERRA and Hemptown in
early 2021. The Deere collateral was identified and sold. The Capstone issue is the subject of
Appeal No. 2021-CA-0526-MR, discussed later in this Opinion.
5
In Cicconi, summary judgment was affirmed “where Plaintiff made a prima facie case for a
right to payment by proof of the note and the debtor’s failure to make the payments called for
therein” and “Defendant . . . failed to rebut sufficiently plaintiff’s statement of material facts.”
Id. (citation omitted).
6
Uniform Commercial Code.
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Elemental was already in possession of all necessary documents and evidence.
Elemental’s bare assertion that AMERRA retained hidden documents is
insufficient “affirmative evidence . . . to defeat a properly supported motion for
summary judgment.” Ryan, 360 S.W.3d at 790. The circuit court, after examining
the documents before it and after hearing oral arguments of the parties, properly
granted summary judgment to AMERRA. We thus affirm the Fayette Circuit
Court in No. 2020-CA-1413-MR.
Elemental’s second appeal (No. 2021-CA-0495-MR) pertains to its
claim that the circuit court improperly granted AMERRA’s motion for entry of a
deficiency judgment. Elemental argues that the sale conducted by the Receiver
was not performed in a “commercially reasonable manner,” that the circuit court
erred in its summary determination prior to complete discovery, and that, even
without discovery, there were questions of fact raised that made summary disposal
inappropriate under the circumstances.
Again, we disagree. The Receiver had been duly appointed in March
2020, and he fulfilled his duties of managing Elemental’s business while the
litigation proceeded and filing regular reports with the circuit court. Once
summary judgment was granted to AMERRA in September 2020, the circuit court
entered a subsequent order authorizing the Receiver to establish procedures
governing the sale of Elemental’s assets. Those procedures were adhered to
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strictly, and the sale went forward on December 1, 2020, with AMERRA the
successful bidder. The order confirming the Receiver’s sale was entered on
December 7, 2020. The bid price was $6.35 million plus $95,603.36 in cash.
AMERRA then filed a motion of deficiency judgment on February 22, 2021,
seeking reimbursement for the difference between the monies owed by and not
realized from Elemental’s sale, namely, $6,145,694.04 (plus all accrued interest up
to and through the date of entry of judgment at the per diem rate of $1,417.29,
according to AMERRA’s motion). A hearing was held on March 12, 2021, after
which the circuit court required the Receiver to respond to certain allegations
raised by Elemental. AMERRA’s motion was granted by the circuit court on April
1, 2021.7
The applicable UCC section governing the issue of “commercially
reasonable” here is not §9-601 (as Elemental advocates) but rather § 9-627, since
the sale was approved in “a judicial proceeding.” See N.Y. U.C.C. § 9-627(c)(1)
and KRS 355.9-627(3)(a).8 The record indicates that Elemental voiced no
7
The circuit court’s judgment ordered the following amounts repaid by Elemental: “the sum of
$6,225,844.68, plus pre-judgment interest at the per diem rate of $1,481.40 from March 19,
2021, until the entry of judgment, plus post-judgment interest at the rate of 6% from the entry of
judgment until the judgment is paid in full.”
8
KRS 355.9-627 (U.C.C. § 9-627) (“Determination of whether conduct was commercially
reasonable”) states, in pertinent part:
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objection to the sale process or bid procedures prior to the sale, and AMERRA
submitted the higher of the two bids received (after proper marketing, publication,
and vetting of qualified bidders), making it the proper buyer of the assets.
AMERRA provided detailed records of the outstanding principal debt, accrued
interest, and expenses incurred throughout the loan period and ensuing default
procedures. The Receiver likewise responded to Elemental’s questions raised.
The circuit court was satisfied that the parties had acted in a commercially
reasonable manner, and Elemental fails to convince us otherwise. Further
discovery would not have changed the outcome and would only have served to
prolong the process. We affirm the circuit court’s deficiency judgment.
The third appeal (No. 2021-CA-0526-MR) pertains to the circuit court
order and judgment that Capstone reimburse AMERRA “for the assessment,
cleanup, and disposal of hazardous waste” at the premises formerly leased by
Elemental, and that Capstone and AMERRA “meet and confer regarding the
calculation of the amount to be reimbursed to the Receivership Estate for
electricity utilized by the other tenant at the Capstone Premises.”9 Capstone filed a
(3) A collection, enforcement, disposition, or acceptance is commercially
reasonable if it has been approved:
(a) In a judicial proceeding[.]
9
The April 2021 order further stated: “Capstone shall pay $65,443 plus 6% to accrue from the
date of judgment until paid in full to AMERRA to reimburse AMERRA for amounts advanced to
the Receiver[.]”
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motion to reconsider and a “true up” calculation. That motion was denied on April
27, 2021, and Capstone appealed (and filed a supersedeas bond).
Capstone argues that the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA, 42 U.S.C.10 § 9601 et seq.) is
applicable to recover cleanup costs, therefore, federal statutory and case law
govern this dispute. Capstone alleges that, while it did not bring a private right of
action or claim under CERCLA, AMERRA in effect had by requesting
appointment of the Receiver, and the Receiver, in turn, remediated the hazardous
waste in order to “avoid a shut down of the Capstone Facility by the EPA
(Environmental Protection Agency).” Thereafter, Capstone continues, the
Receiver sought reimbursement to recover costs incurred for the hazardous waste
removal. Under CERCLA, Capstone argues, it is an “innocent party” and entitled
to offset its liability.
We cannot agree with this line of reasoning. All evidence in the
record indicates that, at the time of the lease agreement, Capstone was fully aware
that Elemental was an ongoing industrial hemp processing concern, and that
barrels of oil and tanks of carbon dioxide were used in the ordinary course of hemp
production, a permitted use according to the terms of the lease.
10
United States Code.
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Also, by its own concession, the issue of application of CERCLA to
the within factual scenario was not raised by Capstone until its post-judgment
motion for reconsideration. It was incumbent on Capstone to proffer supportive
evidence, before the Fayette Circuit Court, that it was an “innocent party.” See
generally Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697, 703
(6th Cir. 2006) (citing Franklin County Convention Facilities Auth. v. Am. Premier
Underwriters, Inc., 240 F.3d 534, 541 (6th Cir. 2001)). The record lacks the
necessary proof by Capstone, without which the application of CERCLA fails.
Therefore, the circuit court did not err in denying Capstone’s requested relief.
Accordingly, we affirm the Fayette Circuit Court’s judgments and
orders on these three appeals.
ALL CONCUR.
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BRIEFS FOR APPELLANT BRIEFS FOR APPELLEE AMERRA
ELEMENTAL PROCESSING: CAPITAL MANAGEMENT, LLC:
Jay E. Ingle Matthew D. Ellison
Chacey R. Malhouitre Taft A. McKinstry
Christopher F. Hoskins Lexington, Kentucky
Lexington, Kentucky
Stephan E. Hornung, pro hac vice
BRIEFS FOR APPELLANT White Plains, New York
CAPSTONE GROUP 2100:
Thomas W. Miller
Susan Y. W. Chun
Lexington, Kentucky
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