In re Witchita River Oil Corp.
In re Witchita River Oil Corp.
Opinion of the Court
ORDER AND REASONS
Before the Court is an appeal from two final orders of the United States Bankruptcy Court, Eastern District of Louisiana, one issued on February 5,1997, denying the Application to Employ Co-Counsel, Nunc Pro Tunc, filed by William E. Steffes and Steffes & Macmurdo, LLP (the “Employment Application”), and the other, entered February 25, 1997, denying the First Application for an Allowance of Fees and Expenses (the “Fee Application”).
II. ANALYSIS: Appellants have appealed the Bankruptcy Court’s decision, asserting that the Bankruptcy Court failed to apply the correct legal standard to nunc pro tunc applications for employment. Alternatively, appellants contend that the Bankruptcy Court abused its discretion by refusing to exercise its equitable power to grant nunc pro tunc applications.
A bankruptcy court’s rulings on nunc pro tunc employment applications are reviewed for abuse of discretion. See In re Briscoe Enterprises, Ltd., II, 994 F.2d 1160, 1170 (5th Cir. 1993). However, this Court reviews de novo the Bankruptcy Court’s conclusions of law. In re Inter Urban Broadcasting of St. Louis, Inc., 174 B.R. 441, 444 (E.D.La. 1994).
The Bankruptcy Court denied the employment application “with regret.” Although the Bankruptcy Court found that Steffes’ efforts had benefited the debtor’s estate, it considered this fact to be “ ‘immaterial’ ” under F/S Airlease II, Inc. v. Simon, 844 F.2d 99, 108 (3d Cir. 1988). See Transcript at 14 (quoting Airlease, 844 F.2d at 108). Citing to its prior decisions in In re Diesel Power, 205 B.R. 66 (Bankr.E.D.La. 1996), and In re Little Greek Restaurant, Inc., 205 B.R. 484 (Bankr.E.D.La. 1996), the Bankruptcy Court concluded that the applicable standard to be applied was the “exceptional circumstances” test. See Transcript at 4-5. Like the Third Circuit in Airlease and In re Arkansas Co., Inc., 798 F.2d 645 (3d Cir. 1986), the Bankruptcy Court concluded that oversight does not “rise to the standard of exceptional circumstances.” See Transcript at 14-15; Airlease, 844 F.2d at 106; Arkansas, 798 F.2d at 651; Diesel Power, 205 B.R. at 71. The appellants argue that this conclusion is inconsistent with the Fifth Circuit’s holding in In re Triangle Chemicals, Inc.
As the holding quoted above reflects, the Triangle court clearly provided that a bankruptcy court does have the equitable power to grant a nunc pro tunc application for employment “where through oversight the attorney has neglected to obtain ... prior approval.” Triangle, 697 F.2d at 1289 (emphasis added).
It is evident from the Bankruptcy Court’s oral reasons in this matter, particularly when read in conjunction with Diesel Power and Little Greek Restaurant, that the Bankruptcy Court considered itself to be without discretion to grant the appellants’ application, denying it “with regret” and wishing the appellants success on appeal. It is further evident that the reason for the Bankruptcy Court’s constricted view of its equitable powers flowed from its adherence to the “bright-line” rule of Arkansas and Airlease, which precludes nunc pro tunc approval in eases where the failure to obtain prior approval results from the inadvertence or oversight of counsel. Because Triangle controls in this District and because Triangle and Arkansas are inconsistent on this point, it was error for the Bankruptcy Court to bind itself under the Third Circuit’s per se rule against retroactive approval in cases of oversight.
Therefore, for the foregoing reasons, the order of the Bankruptcy Court denying the appellants’ application for employment of co-counsel is HEREBY VACATED as based upon the Bankruptcy Court’s perception that it had no discretion at law to enter a nunc pro tunc order approving the employment of an attorney “where through oversight the attorney has neglected to obtain ... prior approval.”
IT IS FURTHER ORDERED that this matter is HEREBY REMANDED to the Bankruptcy Court, for it to determine in the exercise of its sound discretion whether to enter such an order and, if it does so determine, to award such compensation as within its sound discretion it deems appropriate.
. It is clear from the record that all concerned, including the United States Trustee, had been operating under the assumption that approval had been granted for Steffes and his firm. Even the Bankruptcy Court’s docket sheet listed Steffes as co-counsel for the Debtor.
. Swiss Bank filed an objection that was restricted to payment of any allowed compensation out of cash collateral without further order of the court after notice and hearing. Steffes and his law firm agreed with Swiss Bank on this point.
. 697 F.2d 1280, 1289 (5th Cir. 1983).
. In its subsequent decisions, the Fifth Circuit has consistently read Triangle as allowing for nunc pro tunc approval in cases of "oversight or omission.” See In re MortgageAmerica Corp. 831 F.2d 97, 98-99 (5th Cir. 1987); In re
. See Airlease, 844 F.2d at 109.
Reference
- Full Case Name
- In re WICHITA RIVER OIL CORPORATION
- Status
- Published