In re Lake Winnebago Development Co.

64 B.R. 7, 1985 U.S. Dist. LEXIS 12404
CourtDistrict Court, W.D. Missouri
DecidedDecember 23, 1985
DocketNo. 41574-1
StatusPublished

This text of 64 B.R. 7 (In re Lake Winnebago Development Co.) is published on Counsel Stack Legal Research, covering District Court, W.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 Lake Winnebago Development Co., 64 B.R. 7, 1985 U.S. Dist. LEXIS 12404 (W.D. Mo. 1985).

Opinion

MEMORANDUM AND ORDERS ON APPLICATIONS FOR FEES

JOHN W. OLIVER, Senior District Judge.

I.

This case pends on (1) the application of Dale M. Thompson for Trustee’s fee, (2) the application of Abraham E. Margolin, Esquire, for fees as the Trustee’s attorney, (3) the application of Paul E. Berman, Esquire, for attorney’s fees as attorney for the debt- or, and (4) the application of Elvin S. Douglas, Jr., Esquire, for attorney’s fees as a second attorney for the debtor.

This Court entered an Order on November 11, 1985 setting all four of the applications for a hearing to be held on December 13, 1985. That order provided that all persons notified should file objections to any of the applications at least seven days before the hearing.

Only two persons filed objections. The first was filed on December 4, 1985 by John Latshaw, a secured creditor. The second was filed by Dorothy Wetherill, Admin-istratrix of the estate of Georgina Steinhil-ber as both a secured and unsecured creditor. Significantly, the Securities and Exchange Commission, although duly notified as required by law, did not file, nor has that agency registered any objection to any of the fee applications.

A full plenary evidentiary hearing was conducted on December 13, 1985 as scheduled. Evidence was adduced by the various applicants for fees. No evidence was adduced by either of the two objectors. Counsel for the applicants and the objectors presented oral argument at the hearing. The arguments of counsel for the objectors were somewhat out of the ordinary in that such counsel recognized that the files and records of this proceeding established that all of the applicants, par[9]*9ticularly the Trustee and the Trustee’s attorney, were entitled to a commendation for a job well done.

Counsel for Latshaw, for example, in commenting on the application of the Trustee and his attorney stated that “There is no question ... that all of these gentlemen have done a very fine job and have expended a good deal of time and effort, and we do believe that they should be fairly compensated.” (Tr. 21). Counsel for Latshaw added that we “do not question the time, the effort or the results” and that “these people have devoted a good deal of time and have come up with a workable plan.” (Tr. 22).1

Counsel for Wetherill, Administratrix, stated in regard to the Trustee’s attorney that “I think he [Mr. Margolin’s office] did a beautiful job.” And counsel for that objector stated in regard to Mr. Berman, one of the attorneys for the debtor, that “I think we all recognize that he [Mr. Ber-man] is a very capable lawyer and an expert in this area, ... and he’s entitled to everything he asks for.” (Tr. 41).

Counsel for the two objectors, both in their written objections and in the arguments presented at the hearing suggested, of course, that each believed that there should be a reduction in the amount of fees requested in the applications before the Court. Counsel for Latshaw, however, in response to a question from the Court, stated that he did not have a specific recommendation in regard to the amount of reduction that he believed should be made in regard to any of the applications. (Tr. 22). And counsel for Wetherill, Adminis-tratrix, stated in response to this Court’s question that he did not have any “very definite” suggestion in regard to how much the request for fees should be reduced. He did make “just a curbstone” suggestion that the applications should be reduced by some percentage figure. (Tr. 27). Counsel for Wetherill, Administratrix, however, did not suggest how those percentages should be determined other than by this Court’s discharge of its “discretionary obligation to distribute the funds equitably,_” (Tr. 27). Counsel did make clear that “I think everybody should draw in their horns” and this Court should “recognize the equities of the secured creditors.” (Tr. 41).

Neither of the objectors made any attack on the factual recitations in any of the fee applications. Based on our careful review of the files and records in this long pending proceeding and our personal knowledge of the factual circumstances stated in the application of the Trustee, the application of the Trustee’s attorney, and the application of Mr. Berman as one of the debtor’s attorneys, I find that the factual recitations in each of those three applications are true and correct.

I cannot make such a finding in regard to the application of Mr. Douglas, the other attorney for the debtor, for the reason that his application is stated in conclusory language and simply incorporated by reference an exhibit to his application which was later introduced in evidence as Exhibit 4. That exhibit, however, is not sufficiently detailed for the Court to make the same finding in regard to Mr. Douglas’ application as that made in regard to the other three applicants for fees.

Mr. Douglas, however, supplemented the factual basis for his application in his oral statement to the Court at the time of the hearing. See Tr. 42-46. That statement, when considered in light of this Court’s personal knowledge of the proceeding, was in sufficient detail, when considered with the files and records of the case, to enable the Court to rule Mr. Douglas’ application.2

II.

In Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 [10]*10(1983), the Supreme Court stated that a “request for attorney’s fees should not result in a second major litigation.” The Court was able to state that admonition because the guidelines and standards that control the award of attorney’s fees are no longer in any substantial dispute. Counsel for Latshaw accurately stated on page 3 of his written objection that “[ojther than requiring that compensation for services be reasonable and that expenses be proper, neither the Act nor the Rules provide any guidelines to the Court for determining whether and in what amounts such claims should be allowed.” He properly added that the “case law, however, does provide such guidelines.”

Counsel for Latshaw cited the early Eighth Circuit case of Silver v. Scullin Steel Co., 98 F.2d 503 (8th Cir.1938), together with other cases from other circuits and district courts.3

In re Continental Inv. Corp., 28 B.R. 972, 979 (D.Mass.1982), after discussing many of the familiar cases, stated the following:

Among the factors to which courts look in determining compensation for services rendered by a Trustee and his counsel are the following:
1. The time that was required in dealing with the case;
2. The novelty and complexity of the issues presented;
3. The opposition encountered;
4. The skill demanded by the questions presented;
5. The customary charges for similar services;
6. The professional standing, ability and reputation of counsel;
7. The amount in controversy;
8. The results achieved.
See In re Westec Corp., 313 F.Supp. 1296, 1303 (S.D.Tex.1970).4

Hensley v.

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Related

Hensley v. Eckerhart
461 U.S. 424 (Supreme Court, 1983)
Finn v. Childs Co.
181 F.2d 431 (Second Circuit, 1950)
In Re Polycast Corporation
289 F. Supp. 712 (D. Connecticut, 1968)
Silver v. Scullin Steel Co.
98 F.2d 503 (Eighth Circuit, 1938)
In Re Yuba Consolidated Industries, Inc.
260 F. Supp. 930 (N.D. California, 1966)
In Re Continental Investment Corp.
28 B.R. 972 (D. Massachusetts, 1982)
In Re Westec Corporation
313 F. Supp. 1296 (S.D. Texas, 1970)
In the Matter of Arlan's Dept. Stores, Inc.
462 F. Supp. 1255 (S.D. New York, 1978)

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Bluebook (online)
64 B.R. 7, 1985 U.S. Dist. LEXIS 12404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lake-winnebago-development-co-mowd-1985.