Free Designation of Record on Appeal - District Court of Delaware - Delaware

Case 1:07-cv-00510-SLR

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE IN RE: ORION REFINING CORPORATION, Debtor. FLUOR ENTERPRISES, INC., Plaintiff, v. ORION REFINING CORPORATION, CYPRESS ASSOCIATES, LLC as ORC DISTRIBUTION TRUST REPRESENTATIVE, Defendant. ORION REFINING CORPORATION, Counter-Claimant, v. FLUOR ENTERPRISES, INC., Counter-Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Chapter 11 Case No. 03-11483 (MFW)

Adv. Proc. No. 04-52447 (MFW) [Parallel Contested Matter under Fed. R. Bankr. P. 9024 and Fed R. Bankr. P. 60(b)]

CROSS-DESIGNATION OF ITEMS TO BE INCLUDED IN RECORD ON APPEAL BY APPELLANT Appellant, Cypress Associates, LLC, as ORC Distribution Trust Representative, successor-in-interest to Orion Refining Corporation ("Appellant"), by its undersigned attorneys, hereby submits, pursuant to Rule 8006 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") and Rule 8006-1 of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the "Local Rules"), its crossdesignations of items to be included in the record on appeal of the Bankruptcy Court's Order,

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dated May 9, 2006 and entered by the Court on May 10, 2006 (D.I. 69), Opinion, dated May 9, 2006 and entered by the Court on May 10, 2006 (D.I. 68) and the Bankruptcy Court's Order, dated July 20, 2007 and entered by the Court on July 20, 2007 (D.I. 1912; A.D.I. 137).1 CROSS-DESIGNATION OF ITEMS TO BE INCLUDED IN RECORD ON APPEAL Appellant hereby cross-designates the following items to be included in the record on appeal:

1

On July 30, 2007, Appellant filed the Motion Of Cypress Associates, LLC, As ORC Distribution Trust Representative, For An Order (I) Granting Reconsideration, In Part, Of The Court's Findings Of Fact, Opinion And Order, Each Dated July 20, 2007, And (II) Upon Reconsideration, (A) Vacating That Portion Of The Opinion And Order Authorizing Fluor Enterprises, Inc. To Recover Pre-Judgment Interest And (B) Granting Related Relief (Adv. D.I. 138; Bankr. D.I. 1913) (the "Reconsideration Motion") in the above-captioned proceedings. Accordingly, Appellant believes that, pursuant to Bankruptcy Rule 8002(b), Cross-Appellant's cross-appeal is ineffective. Bankruptcy Rule 8002(b) broadly provides that "[a] notice of appeal filed after announcement or entry of the judgment, order or decree but before disposition of any of the above motions [expressly including a motion to alter or amend the judgment under Bankruptcy Rule 9023] is ineffective to appeal from the judgment, order or decree, or part thereof specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding" and that "[a]ppellate review of an order disposing of any of the above motions, requires the party, in compliance with Rule 8001, to amend a previously filed notice of appeal." Appellant believes that the Reconsideration Motion, which expressly invokes Bankruptcy Rule 9023, is a motion of the type specified in Bankruptcy Rule 8002(b) such that Cross-Appellant's designations are premature. Nevertheless, Appellant has filed its Cross-Designations Of Items To Be Included In Record On Appeal out of an abundance of caution because, although CrossAppellant's Designation of Record and Statement of Issues on Appeal (D.I. 1927; A.D.I. 156) does not challenge the Bankruptcy Court's Findings of Fact (D.I. 1910; A.D.I. 135) or Opinion Granting Fluor Enterprises, Inc.'s Motion for Relief from Previously Entered Critical Fire and Trade Vendor Orders (D.I. 1911; A.D.I. 136), Appellee has appealed from the Bankruptcy Court's Order, dated July 20, 2007 and the cross-designated items may be relevant to any arguments that Cross-Appellant may make with respect to that Order or the Bankruptcy Court's determination after trial (D.I. 1912; A.D.I. 137). Appellant reserves its right to file designations in support of its appeal at the appropriate time. 2

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Records from Main Bankruptcy Case TAB NO. 1 2 DOCKET NO. 1 229 DESCRIPTION OF PLEADING/EVIDENCE Chapter 11 Voluntary Petition, filed 5/13/2003 Order (WITH REVISIONS OF THE COURT) (A) Establishing Bidding Procedures In Connection With Sale of Substantially All of the Assets of the Debtor, Including Certain Buyer Protections, (B) Approving the Form and Manner of Notices, (C) Approving the Form of the Amended Asset Purchase Agreement, (D) Setting a Sale Hearing, and (E) Granting Related Relief, filed 6/12/2003 Response to The Sale Motion and Proposed Order (A) Approving the Sale of Certain Assets of the Debtor Free and Clear of Liens, Claims and Encumbrances Pursuant to 11 U.S.C. Section 363, (B) Authorizing the Assumption and Assignment of Certain Unexpired Leases and Executory Contracts, (C) Authorizing the Rejection of Certain Unexpired Leases and Executory Contracts and (D) Granting Related Relief, filed 6/19/2003 Objection to Notice of (I) Debtor's Request for Authority to Assume, Assign and Sell Certain Executory Contracts and Unexpired Leases, (II) Debtor's Proposed Cure Amounts and (III) Debtor's Request for Authority to Reject Certain Executory Contracts and Unexpired Leases Not Assumed and Assigned, filed 6/19/2003 Order (A) Approving the Sale of Certain Assets of the Debtor Free and Clear of Liens, Claims and Encumbrances Pursuant to 11 USCS Section 363, (B) Authorizing the Assumption and Assignment of Certain Unexpired Leases and Executory Contracts, (C) Authorizing the Rejection of Certain Unexpired Leases and Executory Contracts and (D) Granting Related Relief, filed 6/26/2003 Notice of Lien / Notice Under Section 546 of Perfection of Lien, filed 7/09/2003 Transcript of Motions Hearing Held on June 26, 2003, filed 7/15/2003 Motion to Allow Motion of Fluor Enterprises, Inc. for Allowance and Immediate Payment of Administrative Expense Claim, filed 10/03/2003 Response to Motion of Fluor Enterprises, Inc. for Allowance and Immediate Payment of Administrative Expense Claim Filed by Fluor Enterprises, Inc., filed 10/30/2003 3

3

267

4

269

5

336

6 7 8

357 372 582

9

676

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TAB NO. 10

DOCKET NO. 677

DESCRIPTION OF PLEADING/EVIDENCE Response to Motion of Fluor Enterprises, Inc. for Allowance and Immediate Payment of Administrative Expense Claim Filed by Fluor Enterprises, Inc., filed 10/30/2003 Supplemental Response to Debtor's Supplemental Response to Motion Of Flour Enterprises, Inc. For Allowance And Immediate Payment Of Administrative Expense Claim And Reservation Of Rights, filed 10/31/2003 Limited Objection to Fluor Enterprises, Inc. To Motion For Order Authorizing (I) Retention And Disposal Of Certain Records And Files, And (Ii) Entry Into Agreements With Storage Facilities, filed 12/10/2003 Disclosure Statement Disclosure Statement To Accompany Plan Of Liquidation Of Orion Refining Corporation, filed 4/16/2004 Chapter 11 Plan of Reorganization Plan Of Liquidation Of Orion Refining Corporation, filed 4/16/2004 Motion to Allow Emergency Motion Of Fluor Enterprises, Inc. For Order Fixing Hearing Date, Shortening Notice And Establishing Date For Objections, filed 5/3/2004 Notice of Withdrawal Of Motion Of Fluor Enterprises, Inc. For An Order Modifying The Automatic Stay Pursuant To 11 U.S.C. Section 363(d), filed 5/04/2004 Motion for Relief from Stay Motion Of Fluor Enterprises, Inc. For An Order Modifying The Automatic Stay Pursuant To 11 U.S.C. Section 362(d), filed 5/03/2004 Objection to Disclosure Statement to Accompany Plan of Liquidation of Orion Refining Corporation, filed 5/04/2004 Amended Disclosure Statement Notice Of Filing Of Amended Disclosure Statement To Accompany Amended Plan Of Liquidation Of Orion Refining Corporation, filed 5/10/2004 Amended Plan, filed 5/10/2004 Order Granting Motion of Fluor Enterpises, Inc. to Modify the Automatic Stay, filed 5/12/2004 Order Approving Disclosure Statement to Accompany Amended Plan of Liquidation of Orion Refining Corporation, Debtor, filed 5/12/2004 Disclosure Statement Disclosure Statement to Accompany Amended Plan of Liquidation of Orion Refining Corporation, filed 5/12/2004 Amended Plan, filed 5/12/2004 4

11

680

12

825

13 14 15

1165 1166 1198

16

1204

17

1206

18 19

1212 1231

20 21 22 23 24

1232 1236 1238 1241 1242

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TAB NO. 25 26

DOCKET NO. 1311 1334

DESCRIPTION OF PLEADING/EVIDENCE Limited Objection to Amended Plan of Liquidation of Orion Refining Corporation, filed 6/17/2004 Affidavit Declaration Of Steven L. Victor, Chief Restructuring Officer Of Orion Refining Corporation, In Support Of Amended Plan Of Liquidation Of Orion Refining Corporation, Dated May 12, 2004, filed 06/23/2004 Debtor's Memorandum Of Law (A) In Support Of Confirmation Of Amended Plan Of Liquidation Of Orion Refining Corporation, Dated May 12, 2004, And (B) In Response To Objections Thereto, filed 06/24/2004 Exhibit (EXHIBIT C) Debtor's Memorandum Of Law (A) In Support Of Confirmation Of Amended Plan Of Liquidation Of Orion Refining Corporation, Dated May 12, 2004, And (B) In Response To Objections Thereto, filed 06/24/2004 Findings of Fact and Conclusions of Law and Order Confirming Amended Plan of Liquidation of Orion Refining Corporation, Dated May 12, 2004, filed 07/02/2004 Findings of Fact and Conclusions of Law Notice of (1) Entry of Confirmation Order (2) Effective Date of Amended Plan of Liquidation of Orion Refining Corporation Dated May 12, 2004, As Modified, (3) Certain Bar Dates for (A) Filing Administrative Claims, (B) Filing Fee Claims, And (C) Fililng Rejection Damage Claims And (4) Affected Executory Contracts And Unexpired Leases, filed 07/08/2004 Chapter 11 Plan of Reorganization Notice Of Filing Of Conformed Version Of Amended Plan Of Liquidation Of Orion Refining Corporation, Dated May 12, 2004, As Effective, filed 07/08/2004 Reply In Further Support Of Motion Of Cypress Associates, LLC, As ORC Distribution Trust Representative, For An Order (I) Granting Reconsideration, In Part, Of The Court's Findings Of Fact, Opinion And Order, Each Dated July 20, 2007, And (II) Upon Reconsideration, (A) Vacating That Portion Of The Opinion And Order Authorizing Fluor Enterprises, Inc. To Recover Pre-Judgment Interest And (B) Granting Related Relief, filed 08/22/07

27

1338

28

1340

29

1361

30

1368

31

1374

32

1929

5

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Trial Exhibits TRIAL EXHIBIT NO. JTX 1 JTX 3 JTX 4 JTX 6 JTX 7 JTX 9 JTX 10 JTX 12 JTX 13 JTX 14 JTX 15 JTX 16 JTX 17 JTX 18 JTX 20 JTX 21 JTX 23 JTX 24 JTX 25 JTX 26 JTX 29 JTX 30 JTX 32 JTX 34 JTX 35 DATE OF EXHIBIT 5/12/2003 6/9/2003 5/12/2003 6/18/2003 5/14/2003 5/20/2003 5/10/2003 5/13/2003 5/14/2003 5/16/2003 5/20/2003 Undated 5/16/2003 5/9/2003 5/10/2003 5/12/2003 5/13/2003 5/13/2003 5/13/2003 7/13/2004 Undated 5/15/2003 5/16/2003 5/16/2003 5/20/2003 5/23/2003

DESCRIPTION OF PLEADING/EVIDENCE Constable Notes Statement of Claim and Privilege by Fluor Enterprises, Inc. Supplemental Statement of Claim and Privilege by Fluor Enterprises, Inc. Orion Update Presentation Orion Update Presentation D. Stinger Email H. Pozzo Email, attaching Orion Update Presentation Penn Notes Penn Notes Orion Update Presentation with Penn notes Stover Notes Pozzo Notes S. C. Johnson Email S. C. Johnson Email J. Tillery Email E. Bluth Email S. C. Johnson Email S. C. Johnson Email Valerie Krehmeier Affidavit Fluor/PSC Payables Analysis Pozzo Notes; Orion Update Presentation J. Reynolds Email; Pozzo Notes Pozzo Notes Pozzo Notes A. Schexnaydre Email; Pozzo Notes 6

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TRIAL EXHIBIT NO. JTX 41 JTX 43

DATE OF EXHIBIT 10/7/2003 5/13/2003

DESCRIPTION OF PLEADING/EVIDENCE V. Krehmeier Email with attachments Debtor's Motion for Authority to Pay Certain Fixed Liquidated and Undisputed Prepetition Claims of Fire Vendors, Mechanics and Materialmen (D.I. 14) Order Authorizing The Debtor To Pay Certain Fixed, Liquidated And Undisputed Prepetition Claims Of Fire Vendors And Mechanics And Materialmen Pursuant To 11 U.S.C. & 105(a) And 363(b) [Re: D.I. 14] (D.I. 38) Confirmation Hearing Transcript Affidavit of Steven L. Victor (D.I. 1839) M. Stevens Email Accounts Receivable Services Agreement Wire Transfer Confirmations K. Scallon Email with attachment Cost Reports Letter from F. Rusich, Jr. to S. Victor Orion Pre-Petition Costs Summary Orion Update Status Presentation Orion Refining Corporation Master Service Agreement Contract Number: 02-1257 Letter from F. Rusich to T. Landry Letter between Orion Refining Corp. and PSC Industrial Outsourcing, Inc. E. Bluth Email Orion Wrap-Up Meeting Notes Letter from J. Reynolds to E. Schwartz Letter from E. Schwartz to J. Reynolds R. Rayzor Email Transcript of Hearing Before Honorable Mary F. Walrath Purchase and Sale Agreement Among Orion Refining Corporation, Valero Energy Corporation and Valero Refining-New Orleans, L.L.C. Letter from S. Victor to Power Logic (Exhibit A) 7

JTX 45

5/15/2003

JTX 49 JTX 52 JTX 56 JTX 58 JTX 59 JTX 60 JTX 62 JTX 68 JTX 71 JTX 76 JTX 83 JTX 84 JTX 85 JTX 87 JTX 88 JTX 89 JTX 90 JTX 91 JTX 92 JTX 93 JTX 95

6/24/2004 11/21/2006 5/15/2003 3/2/2003 5/19/2003 Various 5/20/2003 9/4/2003 6/10/2003 5/20/2002 2/3/2003 2/4/2003 6/11/2003 7/19/2003 9/8/2003 10/1/2003 5/15/2003 6/5/2003 5/13/2003 06/18/2003

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TRIAL EXHIBIT NO. JTX 96 F2

DATE OF EXHIBIT 04/06/2007 06/04/2004

DESCRIPTION OF PLEADING/EVIDENCE Plaintiff's Response to Defendant's Second Set of Interrogatories Directed to Plaintiff Fluor Fire Repair Summary

MORRIS, NICHOLS, ARSHT & TUNNELL LLP /s/ Thomas W. Briggs, Jr. William H. Sudell, Jr. (#463) Donna L. Culver (#2983) Thomas W. Briggs, Jr. (#4076) 1201 North Market Street Wilmington, Delaware 19801 (302) 658-9200 Attorneys for Appellant/Defendant Cypress Associates, LLC Dated: August 30, 2007
1223034.3

8

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UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE APPEAL TRANSMITTAL SHEET
04-52447 Case Number: _____________________ BK AP If AP, related BK Case Number: ______________________ 03-11483

Title of Order Appealed: Order Granting Motion for Relief from Previously Entered Critical Fire and Trade Vdr ____________________________________________________________________________________ Docket Number: _________ 137 Date Entered: __________________ 7/20/2007 Item Transmitted: Notice of Appeal Amended Notice of Appeal Docket Number: _________ 145 Motion for Leave to Appeal Cross Appeal 8/9/2007 Date Filed: _____________________

*Appellant/Cross Appellant: *Appellee/Cross Appellee Cypress Associates, LLC Fluor Enterprises, Inc. _______________________________________ _________________________________________ Counsel for Appellant: Counsel for Appellee: William H. Sudell, Esq. Francis A. Monaco, Jr., Esq. _______________________________________________ _________________________________________________ Francis Mangan, Esq. _______________________________________________ _________________________________________________ Gregory W. Werkheiser, Esq. Kevin J.A. Morris Nichols Arsht & Tunnell Womble Carlyle Sandridge & Price, PLLC _______________________________________________ _________________________________________________ 1201 N. Market Street 222 Delaware Avenue, Suite 1501 _______________________________________________ _________________________________________________
_______________________________________________ Wilmington, DE 19801
*If additional room is needed, please attach a separate sheet.

Wilmington, DE 19801 _________________________________________________

Filing Fee paid?

Yes

No Yes No

IFP Motion Filed by Appellant?

Have Additional Appeals to the Same Order been Filed? Yes No Yes If so, has District Court assigned a Civil Action Number? 07-520 No Civil Action # ____________ Additional Notes: Appellees' designations FILED; Notice of Appeal (BAP-07-82) transmitted to Distr. Ct. 8/21/07 ________________________________________________________________________________

8/31/2007 ___________________________ Date
BAP-07-85 Bankruptcy Court Appeal (BAP) Number: _____________________ 7/6/06

Margaret A. Stansbury, By: ________________________________ Deputy Clerk
FOR USE BY U.S. BANKRUPTCY COURT