United States of America v. 0.39 Acre Of Land, More Or Less, Situate In Logan County et al
Filing
146
MEMORANDUM OPINION AND ORDER pursuant to the 145 MOTION to disburse funds on deposit with the court; the Clerk is directed to disburse from the registry the sum of $450,917.04, plus accrued interest, in a check payable to Waller Lansden D ortch & Davis, LLP, as attorneys for Sholand Properties Group 3, LLC, and Sholand, LLC, and to mail such check to Thomas H. Peebles, IV, Waller Lansden Dortch & Davis, LLP, 511 Union Street, Suite 2700, Nashville, TN 37219, for immediate deposit in to the client trust fund maintained for Sholand Properties Group 3, LLC, by that law firm; further directing that this action is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 12/24/2013. (cc: attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
UNITED STATES OF AMERICA,
Plaintiff,
v.
Civil Action No. 2:11-0259
0.39 ACRE OF LAND, MORE OR LESS,
SITUATE IN LOGAN COUNTY, STATE OF WEST VIRGINIA,
AND SHOLAND PROPERTIES GROUP 3, LLC,
formerly known as SHONEY'S PROPERTIES
GROUP 3, LLC, and SHOREST 1451, LLC,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion to disburse funds on deposit
with the court filed December 5, 2013, by Sholand Properties
Group 3, LLC (“Sholand”).
I.
On November 17, 1986, Congress enacted the “Water
Resources Development Act of 1986 [(the Act)].”
662, 100 Stat 4082.
Pub. L. No. 99-
Section 401 of the Act states in pertinent
part as follows:
(a) AUTHORIZATION OF CONSTRUCTION. — The following
works of improvement for the control of destructive
floodwaters are adopted and authorized to be
prosecuted by the Secretary substantially in
accordance with the plans and subject to the
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conditions recommended in the respective reports
designated in this subsection, except as otherwise
provided in this subsection:
. . . .
ISLAND CREEK BASIN, WEST VIRGINIA
The project for flood control, Island Creek
Basin, in and round Logan, West Virginia:
Report of the Chief of Engineers dated April
25, 1986, at a total cost of $86,000,000,
with an estimated first Federal cost of
$62,200,000 and an estimated first nonFederal cost of $23,800,000.
Id.
On April 19, 2011, the United States instituted this
action with its complaint in condemnation.
Through the exercise
of its eminent domain powers, the United States took certain
interests in land for purposes of completing a flood control
project.
On June 9, 2011, the United States filed its Second
Amended Declaration of Taking ("Declaration").
The author of
the Declaration, Deputy Assistant Secretary of the Army Joseph
F. Calcara, estimated the amount of just compensation for the
property as $156,500.
On June 15, 2011, the court directed that
the United States' check in that amount be deposited into the
registry.
On June 28, 2011, the court entered its Judgment on
the Declaration, delivering possession to the United States of
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the interests discussed supra.
On September 4, 2012, the court
permitted the United States to deposit into the registry the sum
of $23,251.93 as additional estimated just compensation.
On August 27, 2013, a jury trial commenced for
purposes of determining the amount of just compensation due on
the property.
On August 29, 2013, the jury returned its verdict
ascertaining the amount of just compensation at $450,917.04.
That same day, the court directed counsel for Sholand and
Shorest 1451, LLC, to meet and confer on or before September 20,
2013, to discuss their respective positions concerning the
apportionment of the just compensation award.
On October 2, 2013, the court authorized the United
States to deposit into the registry the additional sum of
$272,325.04 in satisfaction of the Judgment and accrued
interest.
Inasmuch as Sholand and Shorest were unable to
amicably resolve the matter of apportionment, a briefing
schedule was set on the matter, with the final brief arriving
November 15, 2013.
In a memorandum opinion and order entered November 26,
2013, the court concluded that Shorest was not entitled to any
portion of the just compensation award.
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The court additionally
concluded, however, that a nonparty, Sholand, LLC, may be
entitled to all or a portion of the award, observing as follows:
The Prime Lease appears to address apportionment
between Sholand and Sholand, LLC, but Sholand, LLC,
has not had the opportunity to be heard on those
provisions. Depending upon the corporate relationship
between Sholand and Sholand, LLC, they may wish to
adjust the dispute informally, to the extent any such
dispute exists. If not, the court desires to hear from
both Sholand and Sholand, LLC, respecting the matter
of apportionment between them.
(Memo. Op. and Ord. at 9).
Sholand was directed to consult with the authorized
representatives of Sholand, LLC, and inform the court no later
than December 13, 2013, of any further proceedings necessary
herein.
The instant motion followed.
The material portion of
the motion provides as follows:
3. Sholand Properties Group has consulted with
authorized representatives of Sholand, LLC, which is
the sole managing member of Sholand Properties Group
3, and Sholand, LLC has executed a document entitled
"Written Consent of LSF4 Restaurant Holding, LLC as
the Sole Member of Sholand, LLC" which relates to the
disbursement of the just compensation award, a copy of
which is attached hereto as Exhibit A. Attached as
Exhibit B is the sworn affidavit of Jeremy R. Frazer,
Vice President and custodian of records for Sholand,
LLC, attesting to the authenticity of the Written
Consent attached as Exhibit A.
4. By its Written Consent, Sholand, LLC has authorized
all proceeds due to Sholand, LLC in the present action
(i.e. its share of the just compensation award which
has been paid into Court by the United States) to be
paid to the client's trust fund of its legal counsel,
Waller Lansden Dortch & Davis, LLP, as counsel for
Sholand,LLC. See Exhibit A.
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5. As sole managing member of Sholand Properties Group
3, Sholand, LLC, has also authorized all proceeds due
to Sholand Properties Group 3 with regard to the
present condemnation action to be paid to the client's
trust fund of Waller Lansden Dortch & Davis, LLP, as
counsel for Sholand Properties Group 3. Id.
6. Accordingly, Sholand Properties Group 3
respectfully requests that the Court enter an Order
directing the Clerk of this Court to disburse the
entirety of the just compensation award in this
matter, $450,917.04, plus interest accrued, if any, to
Waller Lansden Dortch & Davis, LLP, as attorneys for
Sholand Properties Group 3, LLC and Sholand, LLC, and
to mail such check to Thomas H. Peebles, IV, Waller
Lansden Dortch & Davis, LLP, 511 Union Street, Suite
2700, Nashville, TN 37219.
(Mot. at 2).
Inasmuch as the documentation referenced in the motion
supports the aforementioned representations, it is ORDERED that
the Clerk be, and she hereby is, directed to disburse from the
registry the sum of $450,917.04, plus accrued interest, in a
check payable to Waller Lansden Dortch & Davis, LLP, as
attorneys for Sholand Properties Group 3, LLC, and Sholand, LLC,
and to mail such check to Thomas H. Peebles, IV, Waller Lansden
Dortch & Davis, LLP, 511 Union Street, Suite 2700, Nashville, TN
37219, for immediate deposit into the client trust fund
maintained for Sholand Properties Group 3, LLC, by that law
firm.
It is further ORDERED that this action be, and hereby
is, dismissed and stricken from the docket.
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The Clerk is directed to transmit copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
ENTER: December 24, 2013
John T. Copenhaver, Jr.
United States District Judge
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