David J. Pierce Trust U/A v. Alpha Natural Resources, Inc.

Filing 19

MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Henry E. Hudson on 2/21/2017. (sbea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
In re:

Chapter 11

ALPHA NATURAL RESOURCES, INC.,
et al,

Case No. 15-33896-KRH

(Jointly Administered)

Debtors.

THE DAVID J. PIERCE TRUST U/A

DATED FEBRUARY 23, 2011, e/ al.

Appellants,
Case No.3:16-cv-709-HEH

V.

ALPHA NATURAL PIESOURCES, INC.,
et al.

Appellees.
MEMORANDUM OPINION

(Affirming the Decision of the United States Bankruptcy Court)
THIS MATTER is before the Court on appeal from the United States Bankruptcy
Court for the Eastern District of Virginia (the "Bankruptcy Court"). It evolves from a

dispute as to whether an agreement for royalty payments from coal mined on certain
tracts of land is an executory contract that the debtors may reject under § 365 of the

Bankruptcy Code.' Appellants objected to the debtors' rejection ofthe agreement.

' Section 365 ofthe Bankruptcy Code allows a debtor in possession to assume, assign, or reject any lease
or executory contract. 11 U.S.C. § 365(a). An executory contract is one "under which the obligations of
both the bankrupt and the other party to the contract are so far unperformed that the failure of either to
complete the performance would constitute a material breach excusing the performance of the other."
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arguing that it conveyed an interest in real property and, therefore, that it could not be
construed as an executory contract. (App. 515-556.)

On August 11, 2016, Judge Huennekens of the Bankruptcy Court entered a

Memorandum Opinion and Order overruling Appellants' objections. SeeIn re Alpha
Natural Res., Inc., et al., 555 B.R. 520 (Bankr. E.D. Va. 2016). Appellants filed their

notice of appeal to this Courton August 26, 2016. (ECF No. 1.) Both sides filed
memoranda in support of their positions, and oral argument followed on February 1,
2017.

For the reasons stated below, this Court will affirm the decision of the Bankruptcy
Court.

I.

JURISDICTION AND LEGAL STANDARD

As an initial matter, the Court finds that it has jurisdiction over this case pursuant

to 28 U.S.C. § 158(a)(1) as this is an appeal from a final decision of the Bankruptcy

Court. Appellants filed their notice of appeal withinthe time provided by Bankruptcy
Rule 8002(a).

The standard of review applied by this Court is well-settled. The Bankruptcy
Court's legal conclusions are reviewed de novo and its factual findings for clear error. In
re HarfordSands Inc., 372 F.3d 637, 639 (4th Cir. 2004).
II.

FACTUAL FINDINGS AND LEGAL CONCLUSIONS OF THE
BANKRUPTCY JUDGE

In order to fully grasp the Bankruptcy Court's analysis, some back story is
Gloria Mfg. Corp. v. Int'l Ladies' Garment Workers' Union, 734 F.2d 1020, 1022 (4th Cir. 1984)
(citation omitted).

necessary to provide context. The following narrative represents the underlying facts, as

found and described in Judge Huennekens's Memorandum Opinion.^
The Organs and Ayrshire entered into [an] Agreement titled "Letter
of Proposed Settlement" [(the "Agreement")] on January 22, 1969 (the
"Acceptance Date"). The settlement addressed "certain differences
between Ayrshire Collieries Corporation and [the Organs] respecting
certain coal interests" involving coal seams in three areas.The
Agreement, as drafted by John Organ, states that "Mrs. Organ and I will
accept the interests set out hereinafteras full settlementof our claims." The
Agreement obligated Ayrshire to pay the Organs an amount calculated
based upon a percentage of the coal mined and subsequently sold from each
of... three separate areas. At issue in the case at bar is the area comprised
of North and South Gillette in the state of Wyoming (the "North and South
Gillette Areas"). Ayrshire was obligated to make monthly installment
payments at the rate of one-half of one percent of the net realization (as
defined in the Agreement) from coal mined and sold from the North and
South Gillette Areas until December 31, 2019 (the "Payment

Obligation").^"^^ John Organ agreed to assist Ayrshire in the use ofcoal
across the three separate areas, and the Organs agreed to waive all claims
against Ayrshire. Ayrshire also agreed to cancel an outstanding note made
by John Organ, which note had an unpaid balance of $22,692.38.
On the Acceptance Date of the Agreement, Ayrshire mined coal in
the North and South Gillette Areas as a tenant under two federal leases

^The Appellants and Appellees do not take issue with any ofthe Bankruptcy Court's factual findings.
(See Joint Br. of Appellants 3, ECF No. 10; Br. of Appellees 2, ECF No. 12.) At oral argument before
this Court, however, Appellants appeared to raise one passing point of contention, namely that they were
unable to determine the identity of who drafted the Agreement entered between the parties. This assertion
conflicts with the finding by Judge Huennekens that John Organ was the original drafter, see In re Alpha
Resources, Inc., 555 B.R. at 524, and is in direct opposition with the Appellants' position at oral argument
in the Bankruptcy Court. (App. 588 ("This document [the Agreement] is obviously written by Mr.
Organ.").) Since Appellants have proffered no evidence that this finding was erroneous, and because the
language in the Agreement clearly and convincingly supports a conclusion that John Organ was the
original drafter, the Court will adopt the Bankruptcy Court's factual finding.

^The first area identified in the Agreement was the Illinois No. II coal seam in the state of Vermont, the
second area was the Illinois No. VI coal seam in the state of Illinois, and the third area consisted of the
Smith and Roland coal seams in North and South Gillette, Wyoming.

The Agreement initially set a periodic payment amount for which Ayrshire was obligated for all three
areas at a fixed rate of $30,000 per year payable in monthly installments until June 1, 1977, at which time
the yearly obligation decreased to $18,000 payable in monthly installments until January 1, 1988.

between Ayrshire and the United States Department of Interior Bureau of
Land Management (the "FederalLeases"). The Federal Leases are nowhere
referenced in the Agreement. More than five years after the Acceptance

Date, the Organs unilaterally recorded a document titled "Memorandum of
Understanding" in the Campbell County, Wyoming, clerk's office (the

"Memorandum["]).^^^ The Memorandum summarizes pertinent terms ofthe
Agreement between Ayrshire and the Organs, including the Payment
Obligation. The Memorandum also includes a description of the
underlying real property. The Memorandum notes that the described
property is subject to "U.S. Government coal leases," but it does not
identify the Federal Leases. Both of the Federal Leases were readjusted
effective September 1, 2015. Alpha Wyoming Land Company LLC is the
current lessee under the Federal Leases ("Alpha Wyoming Land
Company"). The readjusted Federal Leases do not contain any reference to
the Agreement between Ayrshire and the Organs.

On August 3, 2015, Alpha Natural Resources, Inc., and 149^^^ ofits
direct and indirect subsidiaries, including Alpha Wyoming Land Company,
(the "Debtors") commenced bankruptcy cases by each filing a separate

voluntary petition for relief under chapter 11 of the Bankruptcy Code in the
United States Bankruptcy Court for the Eastern District of Virginia. As the
current lessee under the Federal Leases, and as successor in interest to

Ayrshire, Alpha Wyoming Land Company [sought] to assume and assign
the Federal Leases in connection with the Debtors' reorganization. See 11

U.S.C. § 365(a). In connection with that transaction, the Debtors want[ed]
to reject the Agreement with the Organs.

The [Appellants, who are successors in interest to and descendants
of the Organs,] argue[d] that the Agreement cannot be rejected as an
executory contract under § 365 of the Bankruptcy Code. The [Appellants]
maintain[ed] that the Payment Obligation due under the Agreement is not a
contractual obligation owed by Ayrshire, but instead constitutes an interest
in real property to which they have become seized. The [Appellants]
argue[d] that the Agreement must be assumed and assigned as part of the
Federal Leases.

In re Alpha Natural Res., Inc., 555 B.R. at 524-25.

^The Memorandum is not executed by either Ayrshire or the United States Department of Interior Bureau
of Land Management, but rather is endorsed solely by the Organs.

^The chapter 11 petition foroneof the Debtors' subsidiaries, Grey Hawk, has since been withdrawn.
Order Dismissing Case, In re Alpha Natural Resources, Inc., No. 15-33896 (Bankr. E.D. Va. Oct. 8,
2015) (EOF No. 638).

In a well-reasoned and thorough opinion, the Bankruptcy Court found that
the Agreement did not create a real property interest, but rather a contractual

obligation, tied to the amount of coal mined and sold from the North and South

Gillette Areas. Id. at 526. Judge Huennekens articulated three justifications to

support his finding that the Agreement did not show a clear intent to transfer real

property, as required by Wyoming law. First, the Bankruptcy Court found that the
Agreement lacks any words indicating the conveyance of real property. Id. at
526-28. Second, it determined that Ayrshire's interest in the North and South
Gillette Areas was solely a leasehold interest, yet the Agreement conspicuously
failed to mention the underlying lease. Id. at 528. Moreover, the Bankruptcy

Court determined that the time period for payments under the Agreement extended
beyond the term of the then-existing lease. Id. And third. Judge Huennekens

determined that Ayrshire would have been required to obtain Bureau of Land
Management approval prior to assigning any interest in its lease. Id. at 528-29.

The Bankruptcy Court concluded that Ayrshire's failure to do so further evidences
the parties' intent for the Agreement to merely convey a contractual right. See id.
III.

ASSIGNMENTS OF ERROR

The Appellants have posed the following assignments of error for review:
1. Did the Bankruptcy Court err in concluding that under Wyoming law the
Agreement created only contractual rights personal to the parties and did
not intend to convey and it did not convey an overriding royalty interest or
any other interest to the Organs in the North and South Gillette Areas?
2. Did the Bankruptcy Court err in concluding that under Wyoming law the
conveyance of a mineral royalty interest must identify an underlying

mineral lease and must be tied to the terms of the underlying lease?

3. Did the Bankruptcy Court err in concluding that the lack of approval by the
Bureau of Land Management ("BLM") of the assignment or transfer of any
interest to the Organs affects the validity, enforceability, or nature of the
conveyance of a mineral royalty interest with respect to land leased from
the BLM?

4. Did the Bankruptcy Court err in concluding that under Wyoming law a
memorandum recorded in the land records must be signed by a party other
than the holder of the overriding mineral royalty interest that is the subject
of the memorandum?^
IV.

ANALYSIS

Although the underlying facts are a bit convoluted, this appeal turns on well-

established principles of Wyoming real property and contract law. "Property interests are
created and defined by state law. Unless some federal interest requires a different result,
there is no reason why such interests should be analyzed differently simply because an

interested party is involved in a bankruptcy proceeding." Butner v. United States, 440
U.S. 48, 55 (1979);

Tidewater Fin. Co. v. Kenney, 531 F.3d 312, 318-19 (4th Cir.

2008). This Court should apply the underlying substantive law that gave rise to the

obligation in question. Raleigh v. Illinois Dept. ofRev., 530 U.S. 15, 20 (2000).
' The Court notesthat this is an unfaircharacterization of the Bankruptcy Court's holding. At no point in
the Memorandum Opinion did JudgeHuennekens reference a requirement that the Memorandum be
signed by a party otherthan the Organs. Instead, the Memorandum Opinion merely noted that "[t]he
Memorandum is not executed by either Ayrshire or the [BLM], but rather is endorsed solely by the
Organs." In re Alpha NaturalResources, 555 B.R. at 524 n.6. Contrary to Appellants' assignment of
error, the Bankruptcy Courtreferenced the Memorandum multiple times in its analysis. Regardless, the
Court concludes that the Memorandum itself cannot be construed in any way to grant a real property

interest absent Ayrshire's signature. See Wyo. Stat. Ann. § 34-1-113 ("Execution of deeds, mortgages or
other conveyances of lands, or any interest in lands, shall be acknowledged by the party or parties
executing same, before any notarial officer.");see also Thomas v. Roth, 386 P.2d 926, 930 (Wyo. 1963)
("[I]f an instrumentrequired for recordation to be acknowledged is without an acknowledgment and is
admitted to record, the recordation does not afford constructive notice of the existence and contents of the
instrument.")

Wyoming law is clear that a royalty interest—^which is analogous to a net profit

interest^—can take many forms. See Ferguson v. Coronado Oil Co., 884 P.2d 971, 97677 (Wyo. 1994). It can be: (1) "a contractual right that is personal to the parties"; (2) "a
covenant running with the land or with a lease"; (3) "a charge on the land"; (4) "a

separately identifiable property interest with its own recognized incidents"; or (5) "it can
create a lease or a sublease" Id. at 976 (citation and quotation marks omitted). To
determine what type of interest is conveyed in the Agreement, like all contract

interpretation under Wyoming law, the Court must focus on the parties' intent. See Boley

V. Greenough, 22 P.3d 854, 858 (Wyo. 2001). Wyoming has "rejected any rigidrule of
law established by the courts without regard to the parties' intent." Mullinnix LLC v.

HKB Royalty Trust, 126 P.Sd 909, 922 (Wyo. 2006). Therefore, Wyoming courts will
not construe a contract so as to negate any express terms in the contract or to frustrate the
overriding purpose of the agreement. Boley, 22 P.3d at 859.
For the reasons stated below, the Court finds that the Agreement's language

indicates an intent to convey a contractual obligation and nothing else.
a. The Agreement Lacks Language of Conveyance

In order to transfer an interest in real property—such as an overriding royalty
® Wyoming Supreme Court has found that a "netprofit interest entitl[ing itsholder] to a share of the
The
proceeds from production in the oil and gas field ... is similar to a non-participating royalty interest."
Ferguson v. Coronado Oil Co., 884 P.2d 971, 977 (Wyo. 1994). As the Bankruptcy Court noted,"[t]he
Wyoming Supreme Court in Coronado Oil indicates that a real property interestcan only arise in favor of
a grantee of a mineral interest when the grantee has title to the mineral while they are in situs. The
Agreement in this case does not purport to give the Organs title to the minerals while they are in the
ground, but rather a small percentage of earned royalties based on the amount mined and sold. The case
at bar is analogous to Coronado Oil because it involves the disposition of the proceeds due to the royalty
owner after the oil and gas has been removed from the ground and sold." In re Alpha Natural Res., Inc.,
555 B.R. 529 n.l3 (citations and quotation marks omitted).

interest—under Wyoming law, the conveyance "must contain sufficient words to show an
intention to convey." DeWittv. Balben, 718 P.2d 854, 860-61 (Wyo. 1986) (quoting
Whalon v. North Platte Canal & Colonization Co.,l\ P. 995, 999 (Wyo. 1903)).

Wyoming courts look for operative words of conveyance, such as "transfer," "sell," or

"assign" to indicate an intent to transfer a real property interest. Id, (citing Whalon, 71 P.
at 999 (holding that an instrument that included the words "transfer" and "sell"
demonstrate an intent to constitute a conveyance)). "Although no particular words are

required to convey real property, the language of the document must indicate a specific
intention to convey the property." Mullinnix, 126 P.3d at 922.

The Agreement, drafted by John Organ, provides that he and his wife "will accept
the interests set out hereinafter as full settlement of our claims [against Ayrshire]," and

sets forth "the areas involved, the royalties to be paid, [and] the description of the

properties

" (App. 545.) With reference to the Wyoming property, it goes on to

describe the interest owed as follows:

The earned royalty to be paid by Ayrshire to us or our successors or assigns
in respect to the so-called North and South Gillette, Wyoming areas is at
the rate of one half (1/2) of one percent (1%) of the net realization. The
obligation of Ayrshire in respect to the payment of royalties as herein
provided for each the North and South Gillette areas shall continue until the
end of the business day December 31st, 2019, at which time Ayrshire's
obligation shall cease.
{Id. at 546.) The Agreement concludes:

The provisions hereof shall be binding upon and inure to the benefit of the
successor and assigns of the parties hereto.

If this offer is accepted by the Ayrshire Board of Directors, please have the
acceptance indicated below and return one copy of this letter to me ....

{Id. at 547-48.)

After reviewing the Agreement, the Bankruptcy Court found that the language in
the document "does not show a clear intention to transfer a real property interest." In re

Alpha Natural Res., Inc., 555 B.R. at 527. Judge Huennekens reasoned that it "is devoid
of any words of conveyance.... The words overriding royalty do not appear anywhere in
the Agreement

[And] [w]ords such as 'grant,' 'transfer,' 'convey,' or 'reserve' are

notably absent...Id. Moreover, the Bankruptcy Court concluded that "[t]he term
'accept' does not evidence the clear intent to convey an interest in the lease or real

property that Wyoming law requires." Id. at 527-28 (citing Mullinnix, 126 P.3d at 922);
see also id. at 528 n. 10 ("The term 'acceptance' is a contractual term used to
demonstrate the offeree's assent, so that a binding contract can be formed." (citation
omitted)).

Appellants concedethat "the instrument must contain sufficientwords to show an
intention to convey," but they urge the Court to find that the terms "royalty" and
"interest" in the agreement suffice to satisfy that standard. However, the Court agrees

with the Bankruptcy Court that they do not. First, contrary to the Appellants' assertion,
the word "royalty" does not automatically create a real property interest. As discussed, a
royalty can take many forms, including a "a contractual right that is personal to the
parties." Ferguson, 884 P.2d at 976. Likewise, the word "interest" is not a term used
exclusively in the context of real property ownership. Certainly someone can have an

interest in real property. But he can also have an interest in a business entity, a liberty

interest, or as in this case a contractual interest.

Moreover, even if the terms "royalty" and "interest" were used in a real property

context in the Agreement, they alone are inadequate to demonstrate compliance with

Wyoming's requirement to indicate a specific intention to convey a real property interest.

As explained by the Wyoming Supreme Court, examples of this type of language include:
"transfer," "sell," "assign," "set over," and "release." De Witty 718 P.2d at 861, While
this is not an exhaustive list, the Court notes that all of the words used as exemplars are

active verbs meant to effectuate the grantor's intent. In this case, there is no language in

the Agreement indicating any type of active conveyance by Ayrshire. Rather, the

Agreement merely states that the Organs "will accept the interests set out hereinafter as
ftill settlement of our claims." This passive acceptance is clearly deficient under settled
Wyoming law.

Because the Agreement is devoid of any active language indicating Ayrshire's

specific intent to convey a real property interest, the Court finds that Ayrshire merely
intended to grant the Organs a contractual right to receive payments.
b. The Agreement Makes No Reference to the Underlying Leases

Appellants assert that the Agreement intended to convey an overriding royalty,
which is "a share of production, free of the costs of production, carved out of the lessee's
interest under the oil and gas lease." Wyo. Stat. Ann. § 30-5-304. According to settled
Wyoming law, an overriding royalty is a non-possessory interest in real property carved
out of the lessee's interest in a lease in favor of another party. See Connaghan v. Eighty-

Eight 0/7 Co., 750 P.2d 1321, 1324 (Wyo. 1988); jee also Meeker v. Ambassador Oil
10

Co., 308 F.2d 875, 882 (10th Cir. 1962), rev'don other grounds, 375 U.S. 160 (1963)
("It is an interest carved out of the lessee's share of the [coal], ordinarily called the

working interest, as distinguished from the owner's reserved royalty interest.").

The Agreement makes only a passing mention of the Wyoming real property that

it encompasses, describing it as "North and South Gillette in Wyoming: Consisting of
coal seams Smith and Roland as indicated on the maps attached hereto marked Exhibit C
for North Gillette and Exhibit D for South Gillette." (App. 546.) Significantly, the
document makes no reference to the underlying Federal Leases through which Ayrshire

held its interest in the land and out of which the purported overriding royalty interest was

to be carved. The Bankruptcy Court found this deficiency to be of great import, noting
that "[a]s an overriding royalty is an interest in an underlying mineral lease, the

underlying lease should be described in the conveyance.... The lack of any description
of the Federal Leases leads the Court to conclude the Payment Obligation in favor of the

Organs is contractual in nature." In re Alpha Natural Res., Inc., 555 B.R. at 528.
Appellants contend that the Bankruptcy Court reached this conclusion in error,
arguing that "there is no requirement that a conveyance of a royalty interest be
specifically tied to an underlying lease. Rather, what is required is just that the
instrument must sufficiently describe the lands involved." (Joint Br. of Appellants 14.)

In support of this proposition, Appellants cite the Wyoming Supreme Court's decision in
Pullar V. Huelle, where it held that the statute of frauds is satisfied in a contract for the

sale of real property so long as the writing "contain[s] an adequate description or ...
furnish[es] the means by which the land can be identified." 73 P.3d 1038, 1040 (Wyo.
11

2003). Appellants also cite the Wyoming Supreme Court's decision in Boley, where the
court found that several assignments conveyed a royalty interest, despite the fact that the
grantors did not "own leasehold interests in any of the lands described in the

assignments," and, therefore, made no reference to the non-existent leases. 22 P.3d at
857-60.

However, the Court fmds that this case is readily distinguishable from both of
those decisions if for no other reason than that the grantor in both Pullar and Boley was

the fee simple owner of the real property at issue, while Ayrshire merely owned a
leasehold interest in the Wyoming property at the time of the Agreement. But for the

underlying Federal Leases, Ayrshire would have had no interestto be carved out in order
to create an overriding royalty. It could not convey any interestthat was greaterthan
what it currently possessed.

Therefore, while it is not determinative of the issue at hand, the Court fmds the

fact that the Agreement fails to reference Ayrshire's leasehold interest to be significant in
looking to the intent of the parties. If this were, in fact, an attempt to convey a real
property interest, the Court can think of no logical explanation as to why the parties
would intentionally omit the very ownership interest possessed by the grantor that was
being carved out in favor of the Organs. Consequently, the Court fmds that such an
oversight presents strong evidence in support of the conclusion that the parties merely
intended to convey a contractual interest.
c. The Agreement Lacked BLM Approval

In its Memorandum Opinion, the Bankruptcy Court noted that the Federal Leases
12

under which Ayrshire was mining the North and South Gillette Areas required BLM

approval of any assignment or transfer of the leases—including the granting of a royalty
interest. See In re Alpha Natural Res., Inc., 555 B.R. at 528-29. Appellants contend that

this was error on the part of the Bankruptcy Court. They argue that failure to obtain
BLM approval does not render a real property transfer void. Appellants are correct in
this statement of the law—a point which Appellees have conceded. {See Br. of Appellees
15-17.) However, Appellants appear to have misconstrued the Bankruptcy Court's
holding.

The Bankruptcy Court never stated that failure to obtain BLM approval destroyed
what would otherwise be a valid real property interest. Rather, the Bankruptcy Court
merely cited the lack of BLM approval as additional evidence that the parties never
intended the Agreement to convey a real property interest. And this Court agrees.

Had Ayrshire intended to convey an interest in real property, presumably it would
have obtained BLM permission in order to avoid breaching the Federal Leases. {See
App. 637 ("[A]ny assignment or transfer made of this lease, whether by direct

assignment, operating agreement, working or royalty interest, or otherwise.... will take
effect the first day of the month following its approval by the Bureau of land
Management.").) Moreover, the Organs would have been particularly interested in
ensuring that Ayrshire obtained BLM approval of any conveyance of a real property
interest. Failure to do so could result in termination of the underlying lease. {See id. at
638 ("If the lessee shall... default in the performance or observance of any of the

provisions of this lease

... the lessor may institute appropriate proceedings in a court of
13

competent jurisdiction for the forfeiture and cancellation of this lease ... .")•) Any real
property interestthat Ayrshire could grant would be limited to a portion of its own
leasehold interest. A termination of the lease would also have resulted in a termination of

any interest—including the Organs' hypothetical overriding royalty—carved out of that
lease. Thus, the lack of BLM approval is further evidence that the parties intended to
convey only a contractual right.

d. Ambiguity Must be Construed Against the Agreement's Drafter

While the Agreement contains ample evidence that the parties did not intend to
convey a real property interest, even if it could be considered ambiguous, the Court must
reach the same result. A bedrock principle of Wyoming contract law is that "any

ambiguity in the contract is construed against the drafter of the agreement." Collins v.
Finnell, 29 P.3d 93, 100 (Wyo. 2001). Here, there is no question that John Organ drafted
the agreement and that the Appellants are his successors in interest. Therefore, to the

extent that it may be considered ambiguous, that ambiguity must be resolved in favor of
the Appellees with a finding that the Agreement conveyed only a contractual interest and
not a real property interest.
V.

CONCLUSION

While the Court is mindful that disagreement over characterizations will always

exist, it is also cognizant of the limited role it has in this appeal. As discussed above,

there is an abundance of evidence supporting the well-reasoned decision of the
Bankruptcy Court. Thus the Court finds no clear error in any of the Bankruptcy Court's
factual findings. Further, this Court finds all legal conclusions of the Bankruptcy Court
14

to be based on sound reasoning.

Therefore, this Court will affirm the judgment of the Bankruptcy Court in its

entirety. An appropriate Order will accompany this Memorandum Opinion.
The Clerk is directed to send a copy of this Memorandum Opinion to all counsel
of record.
It is so ORDERED.
/s/

Henry E. Hudson
United States District Judge

Date:
Richmond, Virgmia

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