FAIRMONT — A business court judge who ruled in favor of Horizon Ventures of West Virginia in a long-running case regarding the lease of a Marion County power plant handed down damages in his final judgment order.
Judge Michael Lorensen ordered American Bituminous Power Partners (AMBIT) to pay $9,168,608 to Horizon Ventures of West Virginia.
"This amount includes the 2.5% rent payments due from February 15, 2013, to September 2023, including contractual interest and AMBIT's corporate bond rate interest pro-rated for period 2," Circuit Judge Michael Lorensen wrote in the final order.
Lorensen also ordered that Horizon credit AMBIT $211,812.68 toward the judgment and must credit any subsequent payments made but AMBIT to Horizon in this regard, according to a final judgment order filed Feb. 23 in the Marion Circuit Court Business Court Division.
"This is a final order," Lorensen wrote. "There is nothing further to accomplish in this matter, the Clerk is directed to retire this matter from the active docket. The Court notes the objections and exceptions of the parties to any adverse ruling herein."
The case had a bench trial last fall and the case was then remanded to the business court from the state Supreme Court. It involves a dispute about a 370-acre tract of land where the Grant Town Power Plant sits.
"Horizon and its legal team are most pleased with the outcome of this trial," attorney Mark A. Kepple previously told The West Virginia Record. "This verdict represents a complete win for Horizon and a recognition that AMBIT’s legal position that they have asserted for years and that it used to avoid paying rent for years is without any merit whatsoever."
The Grant Town power plant is built on the former Federal No. 1 mine in Marion County. It employs about 70 people.
Horizon has said AMBIT owes more than $3.2 million in rent for the land where the power plant sits. It wants the money or the ability to evict AMBIT. AMBIT has called the motion for eviction "unfounded and improper," saying the refusal to pay Horizon is based on court-ordered actions.
Horizon and AMBIT held an agreement until 2013 when AMBIT didn’t pay rent so it could pay off senior debt to bank creditors. Horizon sued AMBIT in Ohio County in June 2013 and a judge ruled banks were entitled to have their senior debt paid ahead of Horizon receiving rent and that Horizon was barred from filing a rent lawsuit under the 1989 lease.
After that, AMBIT filed this complaint saying it used foreign fuel for operating reasons from 2003 and should have been paying 1% rather than 2.5% since 2003, which is when it claims usable local fuel was exhausted.
Lorensen said in the fall that AMBIT was required to pay its unpaid balance of rent owed from 2013 to the present at the rate of 2.5% of gross revenue. He ordered AMBIT to produce all financial reports since January 1, 2013, as well as other records. He also ordered AMBIT to begin paying rent at 2.5% until all local fuel, regardless of quality, is used and no longer present.
AMBIT was represented by Roberta F. Green and John F. McCuskey of Shuman McCuskey Slicer in Charleston. Horizon was represented by Kepple of Bailey & Wyant in Wheeling and Joseph Nogay of Sellitti Nogay & Nogay in Weirton.
Marion Circuit Court, Business Court Division case number: 18-C-130