104. Id. 34:14-18. 307 and 308 (Bankr. Furthermore, even if these Remaining Mirrors are deemed fixtures, the Court concludes they are "trade fixtures" installed by a prior tenant which are removable by the tenant under the terms of the Lease, and therefore Debtor, not Landlord, has an ownership interest. In addition to social distancing, personal trainers at Evans Fitness Club said people can also stay active from home with virtual fitness classes. 5. In re Science Fitness, LLC., Chapter 7 Case No. Ex. Sav. Tr. GH Evans purchased all of Pro Fit's: Def. Ex. If you are still not wanting to come into the gym all of my trainers do FaceTime work outs and virtual classes as well. 109:10-23. The metal building frame allowed us to maximize clear story height and long spans without sacrificing interior space with additional columns, says John Martin, executive vice president with R.W. Mr. Simeone stated GH Evans never made any material improvements to the property while it was a tenant. Tr. 134:10-13. See In re Smith, 2008 WL 7390623, at *3 (detachability has been a determinative factor when intent of parties is difficult to discern). For the foregoing reasons, it is therefore ORDERED that (i) the lockers and mirrors located in the New Addition, and the sink built in the cabinet belong to Landlord; (ii) the Remaining Mirrors, the freestanding sink, the T.V. 122 (1925), marble wainscoting, which extended around the walls in a restaurant and attached to the wall by plaster and copper hooks was a wall covering because its removal left the walls rough and unfinished. 32:6-8; 33:22; Dckt. The walls were adapted especially for the placement of the mirrors/wainscoting and it was clear the mirrors/wainscoting were intended to be the permanent finish to the wall. Tr. Landlord argues both sinks are "plumbing fixtures" which under paragraph 8 of the Lease belong to Landlord. Mr. Hogue testified Debtor's purchase from GH Evans was a "turnkey" purchase, with Debtor thinking it purchased the lockers and mirrors. He testified that when he has closed gyms in the past, the mirrors are usually removed and reused at another gym location. Tr. Serv., Inc., 826 F.2d at 366 (emphasis added).

133:1-11; 133:23-25. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. Ga. Sept. 29, 2016). Robert M. Matson, Akin, Webster & Matson, P.C., Macon, GA, John P. Claeys, Claeys, McElroy-Magruder & Kitchens, Augusta, GA, for Defendant. 162:3-4.

In the post trial brief, Express mentions refrigerators; however, Landlord's response indicates it is not contesting Express's right to the refrigerators. Ex. Under the Wolff test, courts also consider the use in determining the nature of the item. Tr. 498, 439 S.E.2d 729 (1993) ("In construing contracts, Georgia law requires us to give meaning to every term rather than construe any term as meaningless.") Tr. No. In support, Landlord points out that O.C.G.A.

Visit our cookie policy to learn more. 1, Section 8(B) (emphasis added). Gauche Realty Co. v. Janssen, 104 So. Ga. Sept. 9, 2016); Pl. Based upon the undisputed trial testimony that the lockers were installed by the Landlord and are located in the New Addition, the Court orally ruled at the conclusion of the trial that the lockers belong to Landlord for the same reasons set forth herein that the Court has concluded the mirrors located in the New Addition belong to the Landlord. Given these facts, Express has no right to these mirrors, as the Debtor did not have an ownership interest in these mirrors as of the petition date. 172:21-25. "Excluded Assets" are defined as "[a]ny asset of the Debtor not defined in Acquired Assets" and are not included in the sale. By continuing to browse this site you agree to the use of cookies. No. This year as the country continues to battle with covid-19, local gyms like Evans Fitness Club are taking precautions to keep everyone safe and healthy. 1. 's Ex. Tr. 14-12297, Adv. 7 Case No. This adversary proceeding is a core proceeding under 28 U.S.C. Young Coloradans can now receive three mental health counseling sessions for free, The Need for Nature in Public Schools | Healthiest Communities Health News, Hells Angels drive through Toronto in memorial procession for deceased member Reuters, Tips for eating well when cooking seems impossible, How SAFER Guides Improve Patient Safety and Medical Risk Management, Culturally Appropriate Mental Health Services in Denver. S.D.

Nathan Edward Huff, Cleary, West & Hawkins, LLP, Augusta, GA, Plaintiff. Proceeding No. No. There were couches, oversized leather chairs, benches to sit on in front of the lockers in the men's locker room a pool table. 4, 9 (Bankr. Tr. Therefore, while the cases cited by the Landlord may be helpful, they are not controlling. 16-01034, Dckt. There was little testimony as to the installation or initial ownership of the T.V. He testified he did not install the mirrors but he did replace mirrors that were broken. 70:10-24; 80:1-22. 174:1-9. In the Landlord's wall covering cases, the walls actually had recesses or embedded wooden frames in plaster for the mirrors/wainscoting.

Building Type: Recreation/Fitness Tr. 379, 104 So. First, the Landlord cites the case of U.S. E.P.A. He stated he considered these items to be furniture. 133:1-11; 133:23-25. This site uses cookies to collect information about your browsing activities in order to provide you with more relevant content and promotional materials, and help us understand your interests and enhance the site. As previously discussed, the Remaining Mirrors were attached to the walls, which is common in health clubs for the purpose of carrying out the gym's business. S.D. 2; Pl. First, in determining whether the Remaining Mirrors are a fixture or personalty, the Court must look to applicable state law, which, in this case, is Georgia law. Def. As an initial matter, it is undisputed that Landlord constructed the New Addition and installed the mirrors located therein. Mirrors are common in gyms, allowing patrons to monitor their form and surroundings. In support of its ownership claim, Landlord cites several cases involving non-Georgia law. Make your practice more effective and efficient with Casetexts legal research suite. Evans Fitness Club raised a total of $150 K in funding over 1 rounds. The equipment list attachment to the APA entitled "Equipment List 2016" lists various exercise equipment such as treadmills, ellipticals, weights, bikes, and segregates some items by their location within the gym using the subheadings "office," "conference room," "kids klub," and "lobby area." The buildings low price point was also a major advantage, Montarbo adds. Mr. Hogue, currently a consultant for Express and former co-owner of Debtor, testified that when Debtor bought GH Evans's assets he believed Debtor was purchasing the mirrors and lockers. stands belong to Express. The Court must decide if the Remaining Mirrors became fixtures through the process of their affixation to the walls. S.D. See Webster v. Express, Ch. Id. Ex. According to the pleadings and testimony, the building was initially used as a grocery store with accompanying retail/office space. While some of the mirrors may have been repaired or replaced by various tenants, Mr. Simeone claims "substantially all" the mirrors were installed by Landlord. The leases between these successive tenants and Landlord did not change this ownership. No. This indicates the intent of the parties that trade fixtures are not to become part of the real property. This installation was before the New Addition was constructed so the issue is whether the parties intended the Remaining Mirrors to be permanent as opposed to easily removable. v. New Orleans Public Serv., Inc., 826 F.2d 361, 366 (5th Cir. stands, and refrigerators belong to Express. Mirrors generally are considered personal property. stands and he further testified that GH Evans did not install the sinks. Since we have opened, we have had about 30 gym owners tour the facility. Mr. Simeone added that the Landlord did not sell any of the Disputed Items to GH Evans and therefore GH Evans could not have sold any of the Disputed Items to Debtor. The Bill of Sale conveyed the following items to Express: Although, the Remaining Mirrors are not expressly listed on the equipment list, for the reasons discussed herein, the Remaining Mirrors are furnishings and equipment used in Debtor's business. Find your B2B customer within minutes using affordable, accurate contact data from Datanyze, Evans Fitness Club headquarters are located in 3002 Allen Dr, Evans, Georgia, 30809, United States, Evans Fitness Clubs main industries are: Fitness & Dance Facilities, Hospitality, Evans Fitness Club appears in search results as Evans Fitness Club, EVANS FITNESS CLUB, LLC, EFC, Evans Fitness Club Partners, The Evans Fitness Club, Web Hypertext Application Technology Working Group, Get Free Access to Evans Fitness Club Contacts Info. The MBS is complemented by a second-story mezzanine that was designed independently, but its conventional steel tied seamlessly to the metal building. at the intersection of Chamblin Road. 108:16-21; Tr. 1 (Bankr. 113:2-7; Tr. The Court granted the Trustee's motion for a temporary restraining order stopping Express from removing any additional items from the premises. "Trade fixtures are defined as articles annexed to the realty by a tenant for the purpose of carrying on a trade." v. New Orleans Pub. Ex. 199:2-12. Second, the cases cited by Landlord are factually distinguishable from the matter currently before the Court. Nos. SUSAN D. BARRETT, UNITED STATES BANKRUPTCY JUDGE. Removal of the Remaining Mirrors does not cause substantial damage to the freehold. Pindar's Georgia Real Estate Law and Procedure, 10:1 (2018). After the sale was consummated, Express began removing assets from the premises. 149:14-25. The Lease further states: The Trustee did not assume the Lease during the chapter 7 proceedings; however, from the date of the Trustee's appointment through the sale date, the Trustee was operating the business pursuant to the Lease, and had obtained an extension of time to assume or reject the Lease until after the sale was consummated with Express. Under the fact-intensive analysis of Wolff, the freestanding sink is not a fixture given its ease of detachment, and no evidence that removal damages the premises. Fitness, LLC). Under Georgia law, the determination of whether an item has become a fixture or remains personalty is a fact intensive, multi-factor analysis. Tr. 115:15-25. While Debtor, or its predecessor, may have replaced or repaired some of these mirrors under the duty to repair in the Lease, the mirrors in the New Addition belong to Landlord and it is entitled to retain these mirrors. Proceeding No. 149:14-22. He testified that on behalf of Pro Fit, he installed most of the mirrors in the gym at that time, but not all of them because Mr. Hammonds acknowledged Landlord added the New Addition long after Pro Fit's involvement at the site. Over the years, portions of the building have been rented to a variety of tenants, including a karate studio, a gym, a church, and a driver's license bureau. When intent is unclear, Courts may look to the ease of removal to discern the intent of the parties. Ex. Working out in a group thats still socially distanced is something that makes people feel better about themselves, yet theyre still being safely protected from COVID, Katz said. Proceeding No. S.D. Tr. 541(a). The parties acknowledge Landlord has the burden of proof on the issues at hand. The club also provides a 4,000-square-foot daycare center, steam and sauna rooms, and two additional businesses: Smoothie King and Evans Medical Weight Loss. 16-01034, Dckt. 121, p. 2. See Pl. Weve increased our cleaning budget to three and a half times what it was prior to COVID so, were diligently making sure that all of the surfaces are wiped down throughout the day and that we can provide the best and safest community due to COVID, owner of Evans Fitness Club, Lisa Katz said. If Debtor had an interest, the Court must then determine whether the Trustee sold the Disputed Items to Express. 22:20-24; Tr.

He also previously served as manager of the former tenant, GH Evans. The Landlord contends the Remaining Mirrors are "wall coverings" belonging to Landlord under the terms of the Lease, regardless of who installed the mirrors. Here's a list of some of the top trending technologies and APIs used by Evans Fitness Club. Tr. Tr. 1998 - 2022 Nexstar Media Inc. | All Rights Reserved. Evans Fitness Club is committed to giving back to the community we are in. By agreement of the parties, the trial was bifurcated with a trial on damages to be held separately. Tr. For these reasons, the Court concludes that the terms "furniture," "furnishings" and "materials used or consumed in Debtor's business" are listed as separate and distinct categories from "equipment" and therefore the terms have separate and distinct meanings. The Project: Evans Fitness Club is a 50,000-square-foot, two-story health and exercise facility.

Conversely, Landlord contends the Disputed Items were not included in the assets Express acquired because Debtor never had an ownership interest in these items. From pictures and testimony, it is clear these mirrors are wall to wall mirrors common in gyms. I gotta live for my kids; Barnwell, Trenton correctional officer charged with providing, Car of missing SC woman found with body inside in, Man arrested in deadly shooting at Knights Inn, Elvis actress found dead in Nashville apartment, Georgias Smart gets 10-year contract extension worth, Tattoo Derrick wanted for questioning in motorcycle, Fourth person arrested in Larry Mitchell Ball Park, New York Rep. Lee Zeldin attacked at campaign stop, MS school board removes gun ban on school campuses, Puppy found with mouth taped shut in hot car, The Skill Factory 16-U earns weekend bid, defeat, Green steps down as Jaguars womens head coach, Lakeside product Will Childers signs as free agent, Gamecocks visit Atlanta for SEC Media Day, 4P Studios looking for artists to submit 80s inspired, 4th Circuit Court of Appeals removes injunction blocking, Oscar Mayer Wienermobile spotted in Augusta, Escaped inmate captured in South Carolina, State Attorney General and others responds to challenge, Lightning strikes Fort Gordon injuring 9 soldiers,. 14-12297, Adv. Conversely, a sink built in the cabinet is more permanent and is a fixture and therefore belongs to the Landlord, even if installed on behalf of Debtor by a third party. Also, before Landlord purchased the real property, the Remaining Mirrors were purchased by GH Evans from Pro Fit. See First Fed. 1, Section 8(B) (emphasis added). The Clerk is directed to set a status conference on the next available adversary court date to address the trial on damages.

The third party ultimately backed out of the venture. Tr. In order to fully address the issues before the Court, an understanding of the chain of title prior to Science Fitness, LLC ("Debtor") becoming a tenant of Landlord is helpful:Prior to this bankruptcy case, Pro Fit Management, Inc. ("Pro Fit") operated a health and fitness club as a tenant under a master lease. The sale from GH Evans to Debtor was entered after Landlord built the New Addition. Mr. Simeone has knowledge of the sale as he represented GH Evans and negotiated the terms of the sale of assets from GH Evans to Debtor when he was manager of GH Evans. The T.V. Thereafter, Debtor experienced financial difficulties and filed its chapter 11 bankruptcy petition in 2014, which was subsequently converted to a chapter 7 in 2016. Summary judgment was granted to the Trustee, Joy R. Webster, and the parties agreed she was no longer a party to this adversary. There also was no testimony regarding any damage caused by removal. In re Smith, 2008 WL 7390623, at *2 (Bankr. S.D. 6. Location: Evans, Georgia In the women's locker room there were massaging chairs. Ex. 541(a) (defining property of the bankruptcy estate). 's Ex. 133:14-25. Ex. 121, n. 3. 2013), ("under Georgia law, contracts should be interpreted so as to not render any part superfluous) (citing Harris County v. Penton, 211 Ga.App. Furthermore, as with the mirrors, the freestanding sink's usage does not serve the essential purpose for which the building was erected. Based upon these factors, the Court finds the freestanding sink is not a fixture and it was conveyed to Express as a "furnishing" or "equipment" under the terms of the APA and Bill of Sale as previously discussed. stands, and sinks--were sold to Express pursuant to the APA. Two sinks also remain in dispute. 52:10-15. Tr. Tr. and Loan Ass'n v. Stovall, 289 So.2d 32, 33 (Fla. Dist. Mackie v. Smith, 1850 WL 4075 at *1. Ga. Oct. 24, 2008) ; In re Janmar, Inc., 4 B.R. Ex. 7 Case No. Tr. Evans Fitness Club said they are following social distancing guidelines and requiring employees to wear a mask.

The Construction: The speed of construction was another important consideration on this project. No. 2. See 11 U.S.C. stands were described as arms that mount to a bracket on the wall and hold the television to the mount. Evans Fitness Club is also assisting with local youth organizations along with our schools to create an appreciation of health and fitness. Webster v. Express, Ch. 105:5-15; Tr. 152:24-25; Tr. These items include desks, tables, chairs, cabinets, printers, a refrigerator, and microwaves. The respective tenants sold the Remaining Mirrors to each successor tenant through the various asset purchase agreements and accompanying bills of sales. N.D. Ga. 1979) (finding the parties intended the sinks to permanently affixed to the realty and thus fixtures); Pl. As to the sinks, Mr. Hogue explained that a juice bar was installed by a third party planning to operate a juice/smoothie bar for the gym patrons. 157(b) (2)(A), (N), and (0) and the Court has jurisdiction pursuant to 28 U.S.C. 1901) (applying New York law and concluding mirrors set into wooden panel frames embedded in the plastering of the walls whose removal left the wall unfinished and dismantled in appearance were intended to be permanent fixtures). Pretrial Order, Dckt. at 123 ; see also New York Life Ins. No. One sink was built into the cabinets; and the other is a plastic freestanding sink which was attached by plumbing for hot and cold water and a drain, but is easily removable. The Chapter 7 Trustee ("Trustee") sought to sell "substantially all of [Debtor's] assets" to Express for $ 405,900.00 and Landlord planned to rent the space to another entity. He explained most of the mirrors were 5 ft X 100 and the largest mirrors are 5 ft X 120 and sit in a mirror channel, held in place with mastic/glue and safety clips. Nos. 365(d). 1. In re Science Fitness, LLC., Chapter 7 Case No. stands, and two sinks ("Disputed Items"). The Lease states: Pl. 14-12297, Adv. The mirror channel, mastic/glue, and the clips are safety features to prevent the mirror from falling and shattering if they are broken. EVANS, GA ( WJBF) Gyms usually see a peak of memberships at the beginning of a new year, with many people making resolutions to get in shape. 5. Co. v. Allison, 107 F. 179, 185 (2nd Cir. 108:16-21; 113:1-25; 114:1-12.

At trial, Mr. Hammonds, owner of Hammonds Construction Company, a commercial remodeling company that has remodeled many health clubs, testified that he was responsible for overseeing the removal of the mirrors and lockers for Express. Furthermore, the Lease allows the removal of trade fixtures: Pl. 171:15-21; Tr. Tr. Tr. Not even so much just losing weight, but just needing to get back into society. 33:15-18. To address this issue, the Court must determine whether Debtor had any rights in the Disputed Items as of the petition date. 1990) (finding hand sinks bolted to the walls, designed to remain permanently in place, and difficult to remove are not personalty rather they are structural components); In re Janmar, Inc., 4 B.R. Owner and General Manager Mike Montarbo envisioned a contemporary, industrial appearance for the fitness center. 7 Case No. This definition, while helpful, only defines terms "as used in this Code section" which is the Georgia Building Code, and therefore the Court must still apply the traditional Wolff test to determine whether the sinks are fixtures. So, if you still do want to stay at home, we have a lot of options for people to stay active, EFC personal training director Austin Smith said. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice.

O.C.G.A. Follow MBMA on. Dckt. 148:13-19. 33:15-18; 34:1-5. It also is clear that while removing the mirrors does damage the walls, the damage is mostly cosmetic and easily repairable. 8.

Based upon the intent of the parties, the ease of detachment, and the use and purpose of the Remaining Mirrors, I conclude the mirrors are not fixtures. Prior to Landlord's purchase of the real property, Mr. Hammonds installed the Remaining Mirrors on behalf of the tenant, Pro Fit. This is consistent with the terms of the Lease requiring the tenant to make repairs: Pl. Mr. Hammonds also testified credibly that when he was an owner of the tenant, Pro Fit, he installed mirrors in the gym for Pro Fit. 5-7; Pl's Ex. Def. 173:20-25; Tr. Mr. Simeone is Landlord's current manager. 14-12297, Dckt. 1, Section 8(B) (emphasis added). Also, on the same day, Landlord filed this adversary proceeding against the Trustee and Express.

1, Section 10(B)(emphasis added). At trial, Mr. Simeone testified Landlord built a new addition to the health club ("New Addition") in 2005 or 2006, after it purchased the shopping center in 2004. The energy efficiency alone is phenomenal. 1974) (lack of evidence of intent requires finding sinks are personalty). He also testified that Express took the mirrors and lockers into account when it bid on the assets it purchased from the Trustee. The sale from the Trustee to Express was consummated September 27, 2016; and the Trustee had until September 30, 2016 to assume or reject the Lease. 8-2-3 defines "plumbing fixture" "as used in this Code section" as "a device that receives water, waste, or both and discharges the water, waste, or both into a drainage system.