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Robert J. Keach with whom Foley, Hoag & Eliot, Roger A. Cleme
_______________
____________________ _______________
Jr., and Verrill & Dana were on brief for appellant.
___
______________
Peter J. DeTroy with whom James D. Poliquin and Norman, Hanson
_______________
_________________
______________
attorney's
professionals
"debtor").
fees
of
and
debtor
expenses
DN
After thoroughly
to
Associates
counsel
("DN
court's award
and
other
Associates"
or
we
affirm the district court's order allowing the fees and expenses.
affirm
I.
I.
Background
Background
__________
We
Associates,
briefly
outline
the
a limited partnership
dispositive
facts.
DN
the Atlantic Motor Inn immediately before the severe real-estatevalue plunge in
New England,
and ended up
11
reorganization
commencement
mortgage of
wanted to
of an
the
came
action in
on
Inn
11
DN Associates' attempt at
the
state court
Atlantic Motor
filing a Chapter
heels
of
to foreclose
property.
DN
Casco's
on its
Associates
investment of
profitable
Throughout
August
19,
1991,
DN
Associates,
as
debtor
in
plan; Casco,
for an appointment of
a trustee or,
in the alternative, to
Casco
to unsecured creditors.
court terminated
that the
end
On September
DN Associates' exclusivity
plans offered by
simultaneously.
amended plan on
October 5,
by Casco
DN Associates filed
bankruptcy
DN Associates and
best considered
financial
1991.
Both
would be
its first
filed its
proposed
the interests
recapitalization proposal.
not
retain the
of the
through a
interests of
attempt to salvage DN
limited partners
the limited
partners and
it did
did not
Following
17, 1992,
Associates'
thereafter,
DN's
seeking approval
various
In
award
and
reorganization
of $62,898.65 in
an
alternatives.
additional fee
fees of
between September
subsequent application
Soon
application
attorneys and
3, 1991 and
confirmed an
counsel filed
professionals incurred
1992.1
and
other
April 17,
sought
not
only a
____________________
-33
The
understanding
Casco's
also a return of
fees
that
the
debtor's continued
opposition
to
estate.
and expected
bankruptcy
court.
to be
The
compensated for
record indicates
his efforts
that
at
by the
least
one
DN's
counsel
in
offering
alternatives
to
Casco's
plan
August
20,
1992, the
bankruptcy
court overruled
professionals.
and
Five
were not
necessary
On March
court,
district court
that the
bankruptcy
affirmed the
judge had
bankruptcy
not
abused his
now appeals
four issues:
district
the district
court's order
First, whether as
a matter
choice of the
on the
of law the
relevant standard of
-44
review;
second,
applied the
and
whether as
a matter
other professionals
the
lower courts
performed "actual,
necessary services"
law the
resulting in benefit to
by
of
incorrect
U.S.C.
standard for
determining
if
DN's
the
alternative,
discretion
in
whether
determining
at 11 U.S.C.
the
that
328(c);
district
DN's
court
counsel
and fourth,
abused
and
its
other
330(a).
II.
II.
Relevant Bankruptcy Code Provisions
Relevant Bankruptcy Code Provisions
___________________________________
Section 323
trustee
is the
323(a),
and
(a) of the
fiduciary
11
possession
has
Bankruptcy
courts
U.S.C.
are
trustee or
services"
from
professionals
given
the
that
powers
assets
and
necessary
also 11 U.S.C.
____
in
trustee.
authority
327
to
by an
"actual, necessary
similarly
expenses."
331
U.S.C.
11 U.S.C.
to
that a
a debtor
as
discretionary
possession for
by application of professional).
courts
and
employed under
for "actual,
estate, 11
provides
rights
debtor in
estate
bankrupt
1107(a)
similar
compensate professionals
estate
of a
reimburse
11 U.S.C.
(interim compensation
By the same
token, bankruptcy
at
issue
are found
not to
be
"disinterested" persons2
or if
11 U.S.C.
328(c).
However,
fees even if a
in
light of
the circumstances.
See In re Kendavis
___ _______________
appeals of
legal determinations de
__
erroneous standard."
bankruptcy court
novo and factual
____
holdings, "we
findings on a
review
clearly
(1st Cir. 1990); see also In re G.S.F. Corp., 938 F.2d 1467, 1474
________ __________________
(1st Cir. 1991)
bankruptcy
court's
decision,
applying
the
clearly
erroneous
. .
. ");
In re Spillane,
______________
884 F.2d
642, 646
(1st Cir.
(1st Cir.
1985).
When
we
scrutinize
factual
determinations
by a bankruptcy judge,
and
such as may
____________________
2This
category
of
professionals
encompasses
both
"disinterested" persons as well as persons lacking an "adverse
interest." See In re Hub Business Forms, Inc., 146 B.R. 315, 318
___ ______________________________
(Bankr.D.Mass. 1992) (quoting In re Martin, 817 F.2d 175, 180
_____________
(1st Cir. 1987)).
-66
reiteration of
Associates,
__________
fee
awards."
his
discretion in determining
(citing In re Casco
noted in
This
at 3 (D.Me.
____________________________
Cir. 1982)).
summarize and
We
do not
standing raised
settled
that
jurisdictional
resolution
appellate
by
if
the
to whose
merits
After
court, confronted
by
of
the
easily resolved
benefit
appellate
all, it
is
difficult
question, may
forgo its
appeal
as
in favor
the objection
substantive
of Casco's
this court.
or quasi-jurisdictional
straightforward and
parties
of appellant's
sua sponte
___ ______
an
dispose
are,
of
here,
the party
to jurisdiction
or
would
-77
redound.
See
___
Norton v. Mathews,
__________________
427
U.S. 524,
532
(1976);
-88
A.
A.
a general matter
to
be
without merit.
district
review in
We find
this
court reviews
proceedings.
"Findings of
erroneous .
fact . . .
. . .
"
shall not be
Fed.
R. Bankr.
8013; see North Atl. Fishing, Inc. v. Geremia, 153 B.R. 607, ___,
___ ___________________________________
1993
U.S.
Dist.
LEXIS
they
discretion."
Cir. 1990);
are
made
5984,
*7
(D.R.I.
May
4,
error
or
constitute
an
1993).
aside only
"abuse
of
These
Casco
also
objects
to
the legal
standard
employed
by
the
district
court
in
reviewing
the
other
328(c)
bankruptcy
court erred
330(a).
in its
finding that
debtor's
DN's
counsel
in
submitting
revised
reorganization plans,
-99
following
creditors
the proposal
and
demonstrated
disinterested, since it
at
of Casco's plan,
that
created no
DN's
benefit to
counsel
was
district
We
agree
with
both the
provided 100%
payment to
interests
professionals.
not
explained
bankruptcy
and
the
like Casco's
to maintain the
limited
operation does
not signify
disinterested or held
bankruptcy
an adverse
court concluded
that DN's
interest to the
in its
with its
by DN Associates'
estate.
factual findings
fiduciary duties to
estate's
constituencies."
In re DN Associates,
____________________
slip op.
at 10 (Bankr.D.Me. Aug.
20, 1992).
We
remain
The
that "DN's
all of
the
No. 91-20417,
-1010
Id.
___
at
12-13
(cited
in
Associates,
__________
In addition, regarding
interest" pursuant to
determinations of
11 U.S.C.
(1st Cir.
position
to
1987).
observe
The
and
a "materially
327(a), we
adverse
have rejected
an
bankruptcy
court was
in the
best
analyze DN's
counsel's
actions
and
proposals, and that court found that "DN's plan sought to achieve
none
of
[its]
proposed that
results by
denying
creditors
confirmation; that
their
due.
DN
collateral and be
paid its
In
__
1992).
We find nothing in
acting
district court
before
Casco has
the
district
argued that
court
and
the bankruptcy
the
court
court
of
erred in
district
lengthy
court,
discussion of
have
interpreted
interest
the bankruptcy
and disinterest
We, like
court's
to address
--
-1111
implicitly
if
not
bankruptcy
court
explicitly
enumerated
nevertheless
real, benefits
proposals:
The
plans
--
the
several
to the
attempted
benefit
issue.
The
arguably
intangible, but
estate from
DN's counsel's
to
protect
all
interested
DN's counsel's
"persistent" actions
"spurred"
Casco to
resulting zealous,
constructive.
See id.
___ ___
the
efforts of
pressure
of DN
constructive
DN's
Moreover, as already
counsel prompted
Associates' proposals
competition
up
until
amended plan.
advanced, counsel
benefit in
created an
the
"eleventh
that
atmosphere of
hour"
The bankruptcy
the
that
court's
fact-intensive, and
there
is no
evidence in the
We cannot
findings of fact
bankruptcy
and
of fact and
law
of
adverse interest
and benefit
to
are not
-1212
clearly erroneous.
-1313