parker and stearns v. bestway

Vermont Superior Court
Filed 02/02/21
Lamoille Unit

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
LAMOILLE UNIT DOCKET NO. 51-5-20 Lecv

PARKER & STEARNS, INC.,
Plaintiff

Vv.

BESTWAY OF NEW YORK, INC.;
BLUELINX CORPORATION; IDEAL
ROOFING COMPANY LIMITED;
VERMONT WHOLESALE BUILDING
PRODUCTS, INC.; STATE OF
VERMONT, DEPARTMENT OF TAXES;
BROCKWAY-SMITH COMPANY;
COMMUNITY NATIONAL BANK and
JOLLIE D, PARKER IRREVOCABLE
TRUST,

Nee Nee Se Ne nee ee nee ee Nee” ee! ee eee eee ee ee” ee”

Defendants

ORDER APPOINTING RECEIVER

This matter came before the Court on Wednesday, January 20, 2021, for a WebEx hearing on
Plaintiff's Amended Motion for Appointment of David Williams of Johnson, Vermont, as Receiver,
pursuant to 11A V.S.A. § 14.31(c). Counsel and parties attending were noted from the bench at
commencement. Based upon the representations of counsel, pleadings, the statutory authority, and no
objections being made, Plaintiff's motion is hereby granted. IT IS HEREBY ORDERED THAT:

1. David A. Williams (“Receiver), a competent and qualified person, be and hereby is
appointed Receiver of Parker & Stearns, Inc. (hereinafter, “Parker & Stearns”) and all of its real and
personal property, both tangible and intangible, located at Railroad Street in Johnson, Vermont, in Eden,

Vermont, and wherever else such property may be situated. The purpose of the Receivership is to sell

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the assets of the corporation, pay its debts, and wind up and liquidate the corporation pursuant to Title
11A, Chapter 14, Subchapter 3 of the Vermont Statutes Annotated.
2. The power and authority of the Receiver are as follows:

a. To take and receive exclusive and complete custody, control and possession of all
Parker & Stearns’s property, including the power to negotiate terms and conditions of sale and to
give, grant and convey any and all real and personal property of Parker & Stearns upon such
terms and conditions as the Receiver finds appropriate to the ultimate dissolution of Parker &
Stearns, but any sale shall be subject to prior approval of the Court.

b. To delegate various administrative and/or management tasks to employees,
agents, managers, and accountants in the conduct of this receivership.

c. To demand that all parties to this proceeding promptly supply the Receiver with
accountings of amounts claimed due from Parker & Stearns, a memorandum of their legal
positions regarding the priority of their claims as they relate to other Defendants’ claims, and
such other matters as the Receiver may request. Accountings shall be submitted by notarized
affidavit or Covid-19 affirmation.

d. To employ such employees, agents, managers, accountants, and attorneys as the
Receiver deems advisable in the conduct of this receivership, subject to prior approval of the
Court.

e. To procure such credit and loans, whether secured or unsecured, as the Receiver
deems advisable in the conduct of the receivership, subject to prior approval of the Court, and to

make necessary payments thereon.

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f. To enter into such contracts and agreements on behalf of Parker & Stearns as the
Receiver deems advisable in the conduct of the receivership to further the purpose of the
receivership, subject to all terms of this Order.

g. To incur such expenses and make such disbursements as may be necessary for the
care and maintenance of Parker & Stearns’ property.

h. To make such payments as may be necessary for the preservation of the Parker &
Stearns’ property, but payment of the principal on any debts shall require prior approval of the
Court.

i. To institute, prosecute, defend, intervene in, become a party to, negotiate
compromises or settlements in legal actions in which Parker & Stearns or the Receiver are a
party, as are, in the Receiver’s opinion, necessary or proper to preserve or protect the Parker &
Stearns property, but the Receiver shall not finalize settlements without prior approval of the
Court.

j. To recover monies, damages, and/or insurance proceeds due to Parker & Stearns
or the Receiver, or to carry out the terms of this Order, whether such cases and proceedings are
now pending or hereafter brought by or against the Receiver or Parker & Stearns, in state or
federal courts, administrative agencies or other forums. The Receiver may also waive any
attorney/client privilege or other privilege held by Parker & Stearns, its directors and/or its
officers in their official capacities. The Receiver shall not hire counsel without prior Court
approval except for the purpose of representation in routine sales of real estate or assets.

k. To obtain from Parker & Stearns, its present and former directors, officers,
accountants and/or attorneys, forthwith and without delay, any and all documents, books,

accounts, records, or other information or property pertaining to corporate affairs of Parker &

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Stearns in their respective possession, custody or control, including without limitation, copies of
all electronic mail (“email”) transmission and receipts. Transmission to the Receiver of
documents and/or emails subject to Parker & Stearns’s attorney/client privilege shall not
constitute a waiver of the Parker & Stearns attorney/client privilege.

1. The email accounts of Parker & Stearns constitute intangible personal property
subject to the Receiver’s authority and control. Therefore, the Receiver has the power and
authority to obtain from Parker & Stearns, its present and former directors and/or officers,
forthwith and without delay, a list of each and every email account pertaining to Parker &
Stearns, together with the user names and passwords associated with each and every email
account so identified.

m. Except as otherwise set forth herein, to otherwise perform all duties and
obligations of Parker & Stearns’ Board of Directors pursuant to the authority and power of that
Board as defined by Parker & Stearns’ governing documents and pertinent law.

n. The Receiver may not convey real estate, sell assets, distribute sales proceeds, or
transfer other assets of Parker & Stearns without prior approval of the Court. Real estate
conveyances shall be signed by the Receiver on behalf of Parker & Stearns, and shall
acknowledge that the conveyance was pursuant to receivership Order and upon Court approval.

3. Before David A. Williams enters on his duties as Receiver, he shall take an oath as

required by law and post a bond to be approved by this Court, conditioned for the faithful performance

of the trust reposed in him, and in the sum of Seven Hundred Fifty Thousand Dollars ($750,000)

payable to the Lamoille Civil Division of the Vermont Superior Court, to all parties to this cause and

their successors and assigns and to all persons having a claim in or against Parker & Stearns and its

property.

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4. The Receiver shall have such immunity and protection as is set forth by the Vermont
Supreme Court in Lyman v. Central Vermont R. Co., 59 Vt. 167 (1887).

5. Copies of communications between the Receiver and the Court shall be served on all
parties to this proceeding, verified by a Certificate of Service. Such materials and disclosures may be
sent electronically. The Receiver shall be a party to the case and shall be served with all filings, verified
by a Certificate of Service. Parker and Stearns shall remain as a party in the case but subject to the terms
of this Order.

6. The appointment shall take effect upon the taking of the oath by the Receiver on the
record and the filing of the Receiver’s bond, which shall be filed promptly after the oath.

7, Within 30 days of his appointment, the Receiver shall file with this Court an
inventory/report of all Parker & Stearns’ assets and liabilities, the status of any real property under
contract pending sale, and the projected income and expenses of Parker & Stearns for the calendar year
2021. Starting April 15, 2021, the Receiver shall submit written status reports on the 15" of each April,
July, October, and January, regarding the preceding calendar quarter summarizing actions that he has
undertaken during the preceding quarter in furtherance of his duties. These reports shall include a
narrative of significant actions, real estate closings, a financial statement, and an accounting of expenses.
The parties have fourteen (14) calendar days to file any objections. The Receiver may file additional
reports at other times in his discretion. As to any report, if no objection is filed, the Court may approve
the report without hearing.

8. The Receiver is entitled to compensation for services at the billing rate of $150 per hour.
The Receiver shall maintain detailed time and billing records for services and expenses, which shall be
submitted monthly for Court approval prior to payment. Any party may file an objection within 14

calendar days.

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9. Once all the real estate is sold, within 30 days the Receiver shall submit an Application
for a Decree of Dissolution pursuant to 11A V.S.A. §14.33 and a Special Report with an accounting of
remaining assets and liabilities, and identification of tasks remaining to complete dissolution, together
with a projected timetable.

10. Although it is anticipated that the process of dissolution will take approximately a year,

this appointment will remain in effect until further Order of the Court.

Electronically signed pursuant to V.R.E.F. 9(d) on February 2, 2021 at 9:05 AM.

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