IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50081
Summary Calendar
ELWOOD CLUCK,
Debtor,
ELWOOD CLUCK, KRISTINE A.
CLUCK AND FIRST CAPITAL MORTGAGE CO., INC.,
Appellants,
versus
RANDOLPH N. OSHEROW, TRUSTEE,
Appellee.
Appeal from the United States District Court
for the Western District of Texas
(SA 94 CV 49)
( July 7, 1995 )
Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Elwood Cluck, Kristine Cluck, and First Capital Mortgage
Company1 (collectively Cluck) challenge the bankruptcy court's
award of attorney's fees to special counsel McKenzie. We affirm.
First, in several points of error Cluck argues (somewhat
redundantly) that the bankruptcy court failed to "independently
audit, examine, and make an objective determination of the nature,
extent, and value" of the services for which McKenzie claimed
compensation; that the bankruptcy court failed "to consider, give
appropriate weight to and explain" its attorney's fees award; and
that the bankruptcy court failed "to ascertain the nature and
extent of the services" McKenzie supplied and "the value of those
services," and failed to "briefly explain the findings and reasons
upon which the award is based, including an indication of how each
of the twelve factors listed in Johnson affected [its] decision."
We disagree. The bankruptcy court carefully considered
McKenzie's extensive fee application and its detailed billing
record, which reflected McKenzie's time, billing, and expenses.
The court also considered Cluck's detailed objections to the fee
request. At a hearing on the fees, the court heard argument on the
twelve factors listed in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir. 1974). The bankruptcy court also
heard testimony on the propriety of various elements of the fee
application, including, inter alia, alleged double billing; the
distinction between trustee services and legal services, and
1
The bankruptcy court found that First Capital Mortgage
Company was an alter ego of Elwood and Kristine Cluck.
2
between clerical and legal services; telephone calls; legal
research; paralegal support; the expansion of McKenzie's role upon
the discovery of additional assets; and the benefit to the estate
of McKenzie's services.
After reviewing all of this evidence, the bankruptcy court
found the fee application reasonable. The fact that the court
sustained one of Cluck's objections, deducting fees for time
McKenzie spent on a collateral criminal matter, demonstrates that
the bankruptcy court did not merely rubber-stamp the fee
application. In short, we are satisfied with the bankruptcy
court's independent and objective examination of the nature,
extent, and value of McKenzie's claimed compensation, and we reject
Cluck's challenge on this ground.
Second, Cluck argues that there was no need for McKenzie to
render further legal services after 1991, when Cluck settled a
claim by his ex-spouse and when a state court judgment favoring one
of his major creditors was reversed. However, we agree with the
district court that until the Supreme Court of Texas denied a writ
of error in that case on December 8, 1993, that creditor's claim
was contingent and unsecured, and the creditor benefited by
McKenzie's legal efforts. Specifically, the revocation of
discharge that McKenzie secured allowed the creditor to drop its
dischargeability complaint. In short, McKenzie's legal services
were reasonably necessary even after 1991.
Third, Cluck contends that McKenzie represented the estate
even though he held a conflicting interest adverse to the estate,
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in violation of 11 U.S.C. § 327(a). The only potential conflict of
interest Cluck notes, however, is that McKenzie is to be paid out
of the estate for his legal services. This alone does not
constitute a conflict of interest in violation of Section 327.
See, e.g., In re Martin, 817 F.2d 175, 180 (1st Cir. 1987).
Fourth, Cluck argues that because the bankruptcy court
originally authorized McKenzie as special counsel for "the special
purpose" of recovering certain fraudulently transferred assets, he
should not be entitled to compensation for legal services he
rendered pursuing either the revocation of Cluck's discharge or the
recovery of other fraudulently transferred assets. The bankruptcy
court acknowledged that it had never formally expanded McKenzie's
role in the litigation, but noted that the parties had all
understood that McKenzie had assumed additional duties, and that no
harm had been done by the failure to formally authorize that.
Because the court correctly found that McKenzie's additional
services benefited the estate, we find the bankruptcy court's nunc
pro tunc approval appropriate. See, e.g., In re Triangle
Chemicals, Inc., 697 F.2d 1280, 1289 (5th Cir. 1983).
Finally, Cluck challenges the factual findings of the
bankruptcy court and faults the district court for adopting them.
Yet nothing in his appellate brief leaves us with a definite and
firm conviction that those factual findings are mistaken. See In
re Anderson, 936 F.2d 199, 203 (5th Cir. 1991).
AFFIRMED.
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