In re CHC Industries, Inc.

381 B.R. 385, 2007 Bankr. LEXIS 4451, 2007 WL 4740010
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedMarch 30, 2007
DocketNo. 8:03-bk-20775-PMG
StatusPublished
Cited by1 cases

This text of 381 B.R. 385 (In re CHC Industries, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re CHC Industries, Inc., 381 B.R. 385, 2007 Bankr. LEXIS 4451, 2007 WL 4740010 (Fla. 2007).

Opinion

ORDER ON MOTION FOR RECONSIDERATION AND/OR CLARIFICATION OF FINAL ORDER ON MOTION FOR RECONSIDERATION OF ORDERS APPROVING INTERIM FEE APPLICATIONS AND SEVENTH INTERIM FEE APPLICATION OF GLENN RASMUSSEN FOGARTY & HOOKER, P.A.

PAUL M. GLENN, Chief Judge.

THIS CASE came before the Court for hearing to consider the Motion for Reconsideration and/or Clarification of Final Order on Motion for Reconsideration of Orders Approving Interim Fee Applications and Seventh Interim Fee Application of Glenn Rasmussen Fogarty & Hooker, P.A. The Motion was filed by the equity interest holders (the Equity Holders) of the Debtor, CHC Industries, Inc.

Background

The Debtor filed its petition under Chapter 11 of the Bankruptcy Code on October 6, 2003.

On December 19, 2003, the Debtor filed a Motion for Entry of an Order Regarding Cycles and Procedures for Seeking and Awarding Interim Fees to Professionals. (Doc. 210).

On April 2, 2004, the Court entered an Order Regarding Cycles and Procedures for Seeking and Awarding Interim Fees to Professionals (the Procedural Order). (Doc. 385).

Generally, the Procedural Order authorized the Debtor to pay attorneys employed by the Debtor and the Committee on a [388]*388monthly basis in accordance with the conditions set forth in the Order. The Procedural Order also required the attorneys to file and serve interim fee applications according to a designated schedule, and set forth the procedure for providing notice to interested parties of all hearings scheduled to consider the interim applications.

The Procedural Order was served on the Local Rule 1007-2 Parties in Interest List. (Docs. 385, 387).

On April 16, 2004, the Court entered an Order authorizing the Official Unsecured Creditors’ Committee (the Committee) in this case to employ Glenn Rasmussen Fo-garty & Hooker, P.A. (Glenn Rasmussen) as its counsel. (Doc. 398).

On March 31, 2004, August 2, 2004, November 30, 2004, April 12, 2005, August 4, 2005, and December 5, 2005, respectively, Glenn Rasmussen filed its First, Second, Third, Fourth, Fifth, and Sixth Applications for Interim Allowance and Payment of Fees and Expenses. (Docs. 382, 607, 737,1057,1347, and 1559).

A notice of the hearing scheduled on each Application was filed with the Court and served on the Local Rule 1007-2 Parties in Interest List in accordance with the Procedural Order. (Docs. 392, 611, 744, 1171, 1378, and 1562). According to each notice, the deadline for any party to object to the fee application was five days before the hearing scheduled on the application.

No objections were filed to any of the Applications submitted by Glenn Rasmussen, and no objections to Glenn Rasmussen’s Applications were asserted at the hearings conducted on April 26, 2004, November 1, 2004, January 24, 2005, July 11, 2005, September 19, 2005, and January 30, 2006.

On May 14, 2004, November 22, 2004, February 8, 2005, August 5, 2005, October 4, 2005, and February 14, 2006, respectively, the Court entered separate Orders approving Glenn Rasmussen’s First, Second, Third, Fourth, Fifth, and Sixth Fee Applications. In each instance, the fees and costs requested in the underlying Application were approved in their entirety, and the Debtor was authorized to pay the allowed amounts to Glenn Rasmussen. Also in each case, the Order provided that it was an interlocutory order, and that all aspects of the interim allowance were subject to review by the Court at any point in time during the case. (Docs. 435, 721, 856, 1359,1439, and 1645).

On February 26, 2006, the Equity Holders filed a Motion for Reconsideration of Orders Approving Interim Fee Applications. (Doc. 1671). In the Motion, the Equity Holders asked the Court to reconsider each of the Orders approving Glenn Rasmussen’s interim allowance of fees “on the basis that the attorney’s fees approved by the Court are unreasonable and excessive in amount for the services provided.”

On April 17, 2006, the Equity Holders filed an Objection to Glenn Rasmussen’s Seventh Application for Interim Allowance and Payment of Fees. (Docs. 1729, 1765).

On April 28, 2006, the Equity Holders filed a Supplemental Objection to Glenn Rasmussen’s Seventh Application. (Doc. 1775).

On September 5, 2006, the Court entered its Order on Motion for Reconsideration of Orders Approving Interim Fee Applications of Glenn Rasmussen Fogarty & Hooker, P.A. (the Reconsideration Order), and a separate Order approving Glenn Rasmussen’s Seventh Fee Application. (Docs. 1872,1873).

In the Reconsideration Order, the Court determined that it would not reconsider the interim fees previously awarded to Glenn Rasmussen because (1) the estate is not administratively insolvent, (2) the Eq[389]*389uity Holders’ objections were essentially standard challenges that could have been asserted when the Applications were filed, (3) the Equity Holders did not show that reconsideration was warranted because of any wrongdoing or subsequent developments in the case, (4) the objections were untimely, and (5) the fees that were requested and approved were reasonable based on Glenn Rasmussen’s contributions to the case.

On September 15, 2006, the Equity Holders filed a Motion (the Second Motion) for Reconsideration and/or Clarification of the Reconsideration Order. (Doc. 1878).

Discussion

It should be noted at the outset that neither Glenn Rasmussen nor Robert B. Glenn have or have ever had any relationship, personal or professional, with the undersigned Bankruptcy Judge.

The Equity Holders’ Second Motion states that it is filed pursuant to Rule 9023 of the Federal Rules of Bankruptcy Procedure. (Doc. 1878, p. 1).

Rule 9023 provides that Rule 59 of the Federal Rules of Civil Procedure applies in cases under the Bankruptcy Code. F.R.Bank.P. 9023.

Rule 59 of the Federal Rules of Civil Procedure provides in part:

Rule 59. New Trials; Amendment of Judgments
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues ... (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the Unites States.

F.R.Civ.P. 59(a). The purpose of a motion filed under Rule 59 is to present newly discovered evidence or to correct manifest errors of law or fact in the Court’s prior order. Hill v. Tammac Corporation, 2006 WL 529044, at *2 (M.D.Pa.). Reconsideration “is merited when there has been a clear error or manifest injustice in an order of the court or if newly discovered evidence is unearthed.” Key Mechanical Inc. v. BDC 56 LLC, 2002 WL 467664, at *3 (S.D.N.Y.)(quoting In re Bird, 222 B.R. 229, 235 (Bankr.S.D.N.Y.1998)).

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Bluebook (online)
381 B.R. 385, 2007 Bankr. LEXIS 4451, 2007 WL 4740010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-chc-industries-inc-flmb-2007.