In re Apex Oil Co.

112 B.R. 962, 1990 Bankr. LEXIS 393, 1990 WL 18601
CourtDistrict Court, E.D. Missouri
DecidedJanuary 26, 1990
DocketBankruptcy No. 87-03804-BKC-BSS
StatusPublished

This text of 112 B.R. 962 (In re Apex Oil Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Apex Oil Co., 112 B.R. 962, 1990 Bankr. LEXIS 393, 1990 WL 18601 (E.D. Mo. 1990).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BARRY S. SCHERMER, Bankruptcy Judge.

Introduction

This matter came before the Court for hearing on January 25, 1990 pursuant to the Application for Final Allowance of Compensation and Reimbursement of Expenses by Ernst & Young (successor by merger to Ernst & Whinney, hereinafter referred to as “E & Y”), Special Financial Advisor to the Examiner (the “Application”), Gregory D. Willard, Laurence M. Frazen, Bryan, Cave, McPheeters & McRo-berts having appeared on behalf of E & Y, and various other parties being represented as shown below.

The Court reviewed and carefully considered the Application and all supporting memoranda and affidavits thereto and all evidence presented in support of and in opposition to said Application.

All creditors and parties in interest received due and sufficient notice and had an opportunity to be heard as to the Application.

The following entries constitute the Court’s Findings of Fact and Conclusions of Law with respect to the Court’s ruling on the Application pursuant to Bankruptcy Rule 7052 and Rule 52(a) of the Federal Rules of Civil Procedure.

I.FINDINGS OF FACT

1. On December 24, 1987, each of the Debtors filed with this Court a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. The Debtors are continuing to operate their businesses and manage their properties as debtors-in-possession.

2. On October 11, 1988, Novelly Oil Company and Goldstein Oil Company, the partners of Apex Oil Company, filed voluntary petitions for reorganization under Chapter 11 of the Bankruptcy Code and have been procedurally consolidated with the other debtors herein. (All debtors are sometimes collectively referred to herein as “Debtors” or “Apex”.)

3. On January 27, 1988, acting on application of the Official Unsecured Creditors’ Committee (the “Creditors’ Committee”), this Court entered its Order Appointing Examiner.

4. The accounting firm of E & Y, through its partner Mr. Harold W. Sullivan, Jr., was employed by the Examiner, pursuant to two separate Orders of this Court dated January 11, 1989 and February 17, 1989, respectively, for the purpose of assisting the Examiner in the performance of certain Court appointed duties.

5. E & Y was initially retained by the Examiner to provide limited and special purpose consulting regarding issues raised during discovery in connection with Debtors’ Substantive Consolidation Motion and issues relative to the proposed settlement [964]*964with the Debtors’ principals. On February 17, 1989, the Court entered an Order expanding the scope of E & Y’s involvement to assist the Examiner in the preparation of the Examiner’s Statement of Investigation of Causes of Action Available to the Estate (the “Examiner’s Report” or the “Report”) which was filed with the Court on June 19, 1989.

6. E & Y has filed with the Court an application for final allowance of compensation for professional services rendered and reimbursement of actual and necessary costs and expenses incurred in the performance of professional services for the Examiner. All such services were performed at the request of the Examiner.

7. A summary of the fees and out-of-pocket expenses incurred by E & Y in the course of providing the professional services to the Examiner is as follows:

Hours Fees Total
$ 8,764 January, 1989 05 05 CO
11,613 February, 1989 CO CP ^
34,021 March, 1989 t- ^ CP tH
54,231 April, 1989 CO 04 CP CO
613.2 108,629
2.881 Out-of-pocket expenses
$111,510 TOTAL FIRST INTERIM APPLICATION
May, 1989 479.7 $ 74,536
June, 1989 227.1 42,148
August, 1989 29.8 6.971
780.4 132,850
Out-of-pocket expenses 1.440
TOTAL SECOND INTERIM APPLICATION $134,290
1.6 $ 440 September, 1989
October, 1989
November, 1989 oo b-CP 05
December, 1989 ic oo cp ¡M OO
21.1 5,803
Out-of-pocket expenses 395
TOTAL FOR WHICH AN INTERIM
APPLICATION HAS NOT YET BEEN MADE $ 6,198
TOTAL OF FEES AND EXPENSES INVOICED BY E & Y $251,998

8. E & Y has maintained detailed time records in connection with all of the professional services described herein. All time records were made concurrently with or shortly after the rendering of professional services.

9. From January 11, 1989, to December 31, 1989, E & Y professionals devoted an aggregate of 1,414.7 hours at an average hourly rate of $174.80.

10. In addition to the time reflected in E & Y’s Application, E & Y has incurred time as a result of related matters on which it has been legally compelled to respond, but which have not been billed to Debtors.

11. E & Y did not receive a retainer in conjunction with its engagement by the Examiner.

12. E & Y has not previously applied to this Court for allowance of its compensation for services rendered and reimbursement of costs and expenses incurred during the period September 1, 1989 to December [965]*96531, 1989. The cost of services rendered and reimbursement of costs and expenses incurred by E & Y during the period September 1, 1989 to December 31, 1989 amounted to $6,198.00. In accordance with the Court Order dated January 27, 1988, regarding fees and expenses, E & Y has been paid $330.00, and the remaining $5,868.00 remains unpaid.

13. No agreement or understanding exists between E & Y and any other person other than the members, associates and employees of E & Y for the sharing of compensation received or to be received for services rendered in this case.

14. There has not been any duplication of time and/or effort between the services performed by E & Y and those services performed by the various accountants, financial advisors and consultants employed by other parties-in-interest in this case. E & Y’s services were confined to assisting the Examiner with his investigation of causes of action available to the Debtors’ estates and his evaluation of documentation made available by the Debtors and certain non-debtor affiliates and the response of the Debtors’ principals and certain non-debtor affiliates to the Report.

15. E &

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Related

Compensation of officers
11 U.S.C. § 330(a)

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Bluebook (online)
112 B.R. 962, 1990 Bankr. LEXIS 393, 1990 WL 18601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-apex-oil-co-moed-1990.