Summary
stating that "the court employs its own experience, both as an attorney and as a judge, to attorney fee applications"
Summary of this case from In re MorrealeOpinion
No. 0:02-bk-00536-EWH.
July 21, 2010
MEMORANDUM DECISION (RE: APPLICATION FOR TRUSTEE'S ATTORNEY'S FEES AND COSTS) PROCEDURAL FACTS
On April 14, 2010, the Trustee's attorney, Jim D. Smith, applied for attorneys' fees from the estate in the amount of $74,250. In addition, the request sought $74.14 as reimbursement for costs incurred. (ECF No. 129). The application noted that over the seven-year term of the case, the legal work related almost exclusively to the recovery and sale of certain real property. That effort resulted in cash to the estate of about $300,000. No broker's fees or commissions were paid.
The application was supported by 23 pages of time entries reflecting 258.45 hours of time expended by the Trustee's attorney. This equates to an average hourly rate of $287.28.
Unsecured creditors Clarence and Carol Clark objected (ECF No. 132), contending that (1) the Trustee failed to provide actual evidence as to reasonableness; (2) the attorney's time records were not detailed enough; and (3) some of the documented work included routine trustee services (which are compensable under a different statute, 11 U.S.C. § 326(a)).
The Trustee responded by noting that the estate had approximately $290,906.09 on hand, but that the IRS had an allowed priority claim of $533,519.07. Thus, argues the Trustee, the Clarks, as unsecured creditors, are "out of the money" because regardless of the outcome of this dispute, there will not be sufficient monies left over to pay them any dividend. Thus, due to the realities of the case, the Trustee urges that the Clarks have no standing to object.
In addition, the Trustee proffered the expert opinion of John Weil, Esq., who reviewed the matter and felt the requested fee was reasonable, and that the legal work undertaken was not comingled with routine trustee duties.
In response, the Clarks, on June 14, 2010, 11 days prior to the hearing scheduled on the Trustee's request for fees, noted that they desired to take the deposition of the Trustee's expert, and do other discovery on the issues. The Clarks failed to rebut Mr. Weil's opinion with an expert of their choosing.
The court then listened to oral argument on the Trustee's application, on June 25, 2010, after which the matter was taken under submission.
LEGAL DISCUSSION
Jim D. Smith was appointed as counsel to the Trustee. This is allowed by the Code, and an appointed trustee may also be designated as the attorney to the estate. 11 U.S.C. § 327(d).
The court has independently reviewed the attorney's application for compensation filed by Mr. Smith. Mr. Smith is well-qualified in the bankruptcy field, having done such work as a specialist (both certified and prior to such certification) for 40 years. Mr. Weil, the attorney expert for Mr. Smith, is similarly experienced and credible. In addition, the court employs its own experience, both as an attorney and as a judge, to attorney fee applications.
To determine reasonableness, the court applies the factors set forth in § 330 to the effort expended on this case. In so doing, it finds the work here to have been earned, and the fee application to have been appropriately documented. Nor do the matters enumerated in the fee application invade the province of the Trustee's routine duties.
CONCLUSION
Accordingly, it will be the order of this court approving the Trustee's fees of $74,250 and costs of $74.14, and OVERRULING the Clarks' objection thereto.
A separate order will be entered. FED. R. BANKR. P. 9021.