McMillan v. Joseph Decosimo and Co.

United States Court of Appeals,
Eleventh Circuit.
No. 96-6981.
In re DAS A. BORDEN & COMPANY, Debtor.
Ed Leigh McMILLAN, II, Montford Companies, Inc., Plaintiffs-Appellees,
v.
JOSEPH DECOSIMO AND COMPANY, Defendant-Appellant,
Das A. Borden & Company, Defendant.
Dec. 31, 1997.
Appeal from the United States District Court for the Northern District of Alabama. (No. CV-94-G-
1572-NE), J. Foy Guin, Jr., Judge.
Before HATCHETT, Chief Judge, and FAY and FARRIS*, Senior Circuit Judges.
FAY, Senior Circuit Judge:
Appellant Joseph Decosimo and Company ("Decosimo"), an accounting firm, appeals a
district court's decision to reverse a bankruptcy court order granting Decosimo $99,053.10 in
accounting fees as an administrative expense of the bankruptcy estate of Das A. Borden &
Company. Decosimo contends the district court erred in substituting its judgment for that of the
bankruptcy court. Because it appears from the record and from our review of the applicable law that
Decosimo improperly sought compensation for accounting work that was not reasonable and
necessary to the maintenance of the bankruptcy estate of the debtor, we find no error on the part of
the district court and therefore affirm its order.
I. BACKGROUND
*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
The Historical Facts
1. The Parties
The factual setting for this dispute is a bit complicated. Appellant Decosimo is an
accounting firm hired by Das A. Borden ("Borden"), individually, and by Das A. Borden and
Company (the "Company"). Between January 1, 1990 and August 28, 1993, Decosimo performed
various accounting services including consulting, tax audit duties, and other professional services
for the Company, Borden, and certain limited partnerships affiliated with the Company and/or
Borden. It is Decosimo's work for Borden and the eighteen other related entities that is the basis of
this dispute. The other entities are Turtle Lake, Ltd. ("Turtle Lake"), Navarro Place Associates
("Navarro"), Riverchase, Ltd. ("Riverchase"), Greentree Place Apartments ("Greentree"), Willow
Wood Ltd. ("Willow Wood"), Wood Village Ltd. ("Wood Village") and twelve HUD-assigned
partnerships ("HUD"). With the exceptions of Willow Wood and Wood Village, all of these
partnerships had filed for bankruptcy, with all of the bankruptcy cases, except that of Greentree,
filed in the U.S. Bankruptcy Court for the Northern District of Alabama. Greentree's bankruptcy
case was filed in New Orleans, Louisiana. The appellees are Ed Lee McMillan, II, and McMillan's
assignee, the Montford Companies, Inc. (collectively "McMillan"). McMillan is a secured creditor
of the Company and Borden. Pursuant to a cash collateral agreement, McMillan is obligated to pay
the allowed administrative expenses necessary to wind up the Company's bankruptcy case.1
1
Initially, Ed Lee McMillan, II, was a guarantor of $3,000,000 of debt of the Company and
Borden owed to AmSouth Bank. At that time, First United Bank was a $4,500,000 secured
creditor of the Company and Borden. Its security was the partnership interests and distributions,
management fees, and advances to the partnerships of the Company and Borden. When First
United Bank made public to all parties in interest that it desired to sell its secured claim, Mr.
McMillan purchased the secured claim of First United Bank and then allowed his cash collateral,
consisting largely of management fees, to be used by the Company to pay certain expenses
necessary to preserving the Company's bankruptcy estate. In the cash collateral agreement, this
practice became formalized and Mr. McMillan agreed to have his cash collateral applied to the
2. Chronology
On July 8, 1988, the Company filed its voluntary petition for Chapter 11 relief in the United
States Bankruptcy Court for the Northern District of Alabama. On July 11, 1988, Borden consented
to the entry of an order of relief under Chapter 7.2 On July 12, 1988, Borden converted his
bankruptcy case to one under Chapter 11. At the time of the commencement of the Company's and
Borden's bankruptcy cases, the Company and Borden were general partners of approximately 40
limited partnerships which operated various apartment complexes throughout the southeast.3
On October 8, 1991, the bankruptcy court approved the employment of Decosimo as
accountants for the Company. The application stated that it was necessary for the Company to
employ the accountants for a number of reasons.4 In 1992, Borden applied to the bankruptcy court
administrative expenses necessary to the preservation of the Company's estate.
2
An involuntary bankruptcy petition had been filed against Borden on April 18, 1988.
3
Turtle Lake, the 12 HUD-assigned partnerships, Navarro, Riverchase, Willow Wood, and
Wood Village were among the forty limited partnerships. Borden alone was a general partner of
Greentree.
4
The reasons, as stated in the application, were limited to the following:
(a) Said accountants must prepare federal and appropriate state income tax returns
of Das A. Borden & Company for the year ended March 31, 1991, in accordance
with the attached engagement letter dated September 23, 1991, made exhibit A to
this application;
(b) Said accountants are to assist Debtors-In-Possession in preparing periodic
statements of the Debtors-In-Possession operations as required by the rules of this
court or the Estate Analyst;
(c) Said accountants must inspect and verify financial records and reports and
review financial transactions;
(d) Said accountants must review claims and advise concerning the financial
computations and bases for claims;
(e) Said accountants must advise concerning the tax aspects of various partnership
to have Decosimo perform personal accounting work for Borden individually and this separate
application in a separate bankruptcy case was similarly approved.
In September of 1993, McMillan, the Company, and the Unsecured Creditor's Committee
entered into an agreement in the Company bankruptcy case which called for the liquidation of the
Company and payment of a small dividend to unsecured creditors. Under the terms of this cash
collateral agreement, McMillan agreed to the use of his cash collateral to pay the administrative
expenses necessary to close the Company case. After an objection by Decosimo, McMillan agreed
to include Decosimo's accounting fees as an administrative expense of the Company's case if such
fees were deemed by the bankruptcy court to have administrative expense priority. On October 4,
1993, the bankruptcy court entered an order approving the cash collateral agreement.
Prior to the court order approving the agreement, on September 30, 1993, Decosimo filed
applications for payment in the Borden and Company bankruptcy cases seeking payment from the
Company for various accounting services. The fees in dispute in the instant case include:
1. Borden's Personal Tax Work—(1991)—$31,961.07 for work on Borden's federal and state
income tax returns, tax accounting, and research and consulting.
2. Greentree—(1992)—$6,025.00 for tax and audit services, preparation of K-1's.
3. Turtle Lake—(1990)—$5,793.75 for services performed in 1990 related to litigation.
4. The Twelve HUD-Assigned Partnerships—(1992)—$15,000.00 for preparation of
financial statements to be submitted to HUD relating to various audits and tax returns.
5. Navarro—(1991 & 1992)—$12,981.22 for preparation of federal and state income tax
returns and K-1's, assistance in preparation of a plan of reorganization and in supplementing
disclosure statements.
activities and the impact upon Debtors-In-Possession of partnerships of which for
which Debtors-In-Possession are general partners; and
(f) Said accountants are to render such other accounting services as will probably
be required by Debtors-In-Possession.
6. Riverchase—(1992)—2,266.66 for services relating to compiling tax basis financial
statements and preparation of federal and state tax returns and K-1's.
7. Willow Wood—(1990, 1991, & 1992)—$15,875.00 for an audit of the financial
statements and preparation of federal and state tax returns and Schedule K-1's.
8. Wood Village—(1991 & 1992)—$8,650.00 for performance of audit services and
preparation of federal and state tax returns and Schedule K-1's.
Over the objections of McMillan, the Company, and Borden, on April 22, 1994, the bankruptcy
court entered an order allowing all claims in the Company case.5 McMillan appealed to the district
court. The district court conducted a de novo review of the record and reversed the award of
accounting fees. Decosimo appeals to this court seeking a reinstatement of the bankruptcy court
order.
II. STANDARD OF REVIEW
Our standard of review of the bankruptcy court's findings of fact is the clearly erroneous
standard, while conclusions of law made by the bankruptcy court or the district court are reviewed
de novo. In re Miller, 39 F.3d 301, 304-05 (11th Cir.1994). As the second court of review in this
bankruptcy matter, this court's review of the decision of the district court is entirely de novo. In re
Sublett, 895 F.2d 1381, 1384 (11th Cir.1990). As this court explained in In re Sublett, when a
district court reverses the factual findings of a bankruptcy court, we must be independently
convinced, upon de novo review, that the factual findings by the bankruptcy court were clearly
erroneous. Id. at 1384 n. 5. However, when the question at issue depends upon a proper construction
of the Bankruptcy Code by the bankruptcy court or district court, we subject such interpretations to
de novo review. In re Haas, 48 F.3d 1153, 1155 (11th Cir.1995).
5
McMillan disputes the process provided by the bankruptcy court after the bankruptcy court
tried the case without allowing McMillan access to Decosimo's source documents and work
product.
III. DISCUSSION
Decosimo contends that in providing accounting services to Borden individually and to
various limited partnerships6 to which the Company was either a general partner, managing partner,
or managing agent, Decosimo was acting on behalf of the Company's interests and is, accordingly,
entitled to compensation for the accounting services provided. The issue before this court is not
whether Decosimo is entitled to be compensated for the accounting work done for Borden and the
limited partnerships. Rather the issue to be resolved by this court is whether the fees for such
services are to be categorized as an administrative expense of the Company's bankruptcy estate, for
which McMillan would be liable under the cash collateral agreement. We hold that the accounting
fees in dispute arising from services provided to Borden and the limited partnerships are not
administrative expenses of the Company's bankruptcy estate entitled to a favored priority, and that
the bankruptcy court's decision to the contrary was in error as a matter of law.
Initially, McMillan contends that Decosimo's accounting fees for services provided to
Borden and the limited partnerships are not administrative expenses of the Company's estate because
Decosimo never received, as per 11 U.S.C. § 327(a),7 the required prospective approval in the
Company case to provide services to any of these challenged entities. While it is clear that
Decosimo never received prospective approval for the accounting services for Borden and the
limited partnerships, it is not clear that such prospective approval is an absolute requirement. So
6
Again, the Decosimo fees in dispute are for Borden, Turtle Lake, Navarro, Riverchase,
Greentree, the twelve HUD partnerships, Willow Wood, and Wood Village.
7
The pertinent statute states that "the trustee, with the court's approval, may employ one or
more ... accountants ... to represent or assist the trustee in carrying out the trustee's duties under
this title." 11 U.S.C. § 327(a). The Company, as a debtor in possession, has the right to appoint
professionals such as accountants through the operation of 11 U.S.C. § 1107(a) which grants to
the debtor in possession all the rights (except the right to receive compensation), powers,
functions and duties of a trustee serving in a case under Chapter 11.
far as we can ascertain, this court has never grappled with the issue of whether § 327(a) of the
Bankruptcy Code permits the nunc pro tunc,8 or post facto,9 approval of professional services after
the services have already been rendered. In light of other grounds mandating affirmance of the
district court order, we reserve our opinion on the propriety of nunc pro tunc authorizations for
another dispute demanding the resolution of this divisive issue.10
The narrow issue to be resolved by this court is whether the accounting services in dispute
were actual and necessary to the administration of the bankruptcy estate of the Company so as to
render McMillan liable for payment of such services under the cash collateral agreement as an
administrative expense. We hold that the accounting fees at issue were clearly not necessary to the
upkeep and maintenance of the bankruptcy estate of the company and we therefore affirm the district
court. "The threshold requirement for an administrative expense is that it be actual and necessary
to the preservation of the estate; the benefit must run to the debtor and be fundamental to the
conduct of its business." In re Colortex Indus., Inc., 19 F.3d 1371, 1383 (11th Cir.1994).11 Here
8
Nunc pro tunc literally means "now for then". See In re Singson, 41 F.3d 316, 318 (7th
Cir.1994).
9
It has not escaped our attention that Judge Easterbrook has noted that the use of the
appellation "nunc pro tunc " in this context is confusing given the use of that term in connection
with the correction of court records. See Singson, 41 F.3d at 318. However, given that the
parties in this dispute have elected to refer to such after the fact authorization as nunc pro tunc
authorization, we will refer to it by that name in this opinion.
10
In 1983, the Fifth Circuit offered a brief review of the split between circuits on this issue of
the requirement of prior court approval under § 327(a). See In re Triangle Chemicals, Inc., 697
F.2d 1280, 1285-88 (5th Cir.1983). Since 1983, several decisions on this subject have been
issued by federal courts. See, e.g., In re Jarvis, 53 F.3d 416, 419-21 (1st Cir.1995); Singson, 41
F.3d at 319-20; In re Land, 943 F.2d 1265, 1267-68 (10th Cir.1991); In re F/S Airlease II, Inc.,
844 F.2d 99, 105 (3d Cir.1988); In re THC Financial Corp., 837 F.2d 389, 391-92 (9th
Cir.1988).
11
The compensation Decosimo seeks under 11 U.S.C. § 330(a)(1) specifically provides that
the compensation is to be for "actual, necessary services."
any benefit from the accounting services rendered by Decosimo ran to Borden, individually, and to
eighteen separate entities to which the Company was either a general partner, managing partner, or
managing agent. While it is clear from the record that the personal accounting work done for
Borden is not an administrative expense of the Company for which McMillan is liable,12 the
accounting work for the eighteen limited partnerships is a bit more complicated.
Decosimo argues that under Alabama law the Company, as a partner or managing agent of
these partnerships, is obligated for the debts of these partnerships.13 Assuming, without deciding,
that such is correct, the avenue for recovery for fees for Decosimo would not be as an administrative
expense, but as an unsecured creditor. Accounting fees arising from services performed for other
debtors in separate bankruptcy proceedings and arising from work for entities other than the debtor
in this case are not fees incurred in the upkeep and maintenance of this debtor's estate and therefore
are not to be reimbursed as an administrative expense. The tenuous and incidental benefit Decosimo
alleges it provided the Company, without more, is insufficient basis for administrative priority
status. See In re Appliance Store, Inc., 181 B.R. 237, 242 (Bankr.W.D.Pa.1995). Rather than give
Decosimo a leg up on the other creditors of the Company by granting its fee claims administrative
expense priority, we would require Decosimo to proceed against each of the parties for whom the
services were rendered. If Decosimo is successful in its suits against these limited partnerships, and
12
There is no written or verbal agreement by either the Company or McMillan to pay for the
accounting services rendered to Borden. Decosimo contends that Borden told Decosimo that
McMillan would pay for these services. The Company was never invoiced for these services; in
fact, Decosimo only invoiced Borden in its search for payment. Consequently, there is no legal
basis to allow Decosimo and administrative claim against the Company's estate for these
services.
13
Decosimo contends Ala.Code § 10-8-52(2) renders the Company liable for the debts of the
various partnerships. § 10-8-52 states: "All partners are liable ... (2) Jointly and severally for all
debts and obligations of the partnership, except as may be otherwise provided by law."
if it were found that the Company is liable for Decosimo's fees, then Decosimo would stand as a
creditor of the Company, no more and no less. Given the Bankruptcy Code's overriding concern for
keeping administrative expenses to a minimum so as to preserve as much of the estate as possible
for the creditors, we must carefully review the legitimacy of such claims. See Otte v. United States,
419 U.S. 43, 53, 95 S.Ct. 247, 254, 42 L.Ed.2d 212 (1974). Decosimo's fees for work performed
for other entities are simply not administrative expenses of the Company for which McMillan is
liable under the cash collateral agreement.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the United States District Court for
the Northern District of Alabama.
AFFIRMED.