Appendix — Brock v. Massachusetts Mutual Life Insurance

Supreme Court brief1969

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| 1224 APR-3 1969 &

No. —. - 7

JOHN F. BAVIS, CLERK

_- 2a

| Supreme Court of the United | States

-October Term 1968

IN THE MATTER OF THE WINGREEN CO., ET AL

J. H. BROCK as trustee for the WINGREEN CO.,’a

FLORIDA corporation; the DANIA CORPORATION,

a FLORIDA corporation; and the LAKE WORTH

| CO., a FLORIDA corporation, 0

: Petitioner,

vs. :

‘The MASSACHUSETTS MUTUAL’ LIFE INSURANCE ete

COMPANY, a MASSACHUSETTS corporation, |

: | Respondent.

nn) Aa

—

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT. 4

IRVING M. WOLF

Attorney for the Petitioner

‘916 Biscayne Building .

Miami, Florida ;

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IN THE

SUPREME COURT OF THE

~ UNITED STATES |

October anil 1968

No. | .

IN THE MATTER OF THE WINGREEN CO., ET AL

J. H. BROCK as trustee for the WINGREEN CO., a

. FLORIDA corporation; the DANIA CORPORATION,

a FLORIDA corporation; and the LAKE WORTH

' CO., a FLORIDA corporation,

. Sos tae : Petitioner,

. U8.

The MASSACHUSETTS MUTUAL LIFE INSURANCE

COMPANY, a MASSACHUSETTS corporation,

Respondent.

APPENDIX 10 PETITION FOR A WRIT OF

CERTIGRARI THE ITED STATES COURT —

‘OF APPEALS FOR THE FIFTH CIRCUIT.

ee en cae

J -

App. 2

APPENDIX ,

big -A ee 4

_ UNITED STATES

COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 25.303

MASSACHUSETTS MUTUAL LIFE INSURANCE

COMPANY and COLLEGE INN, INC.,

_ Appellants,

v8.

' J. H. BROCK, ‘as Trustee of

THE WINGREEN COMPANY, et al.,

! . Appellees. +

| Appeal from the. United States District Court. for the

Southern District of Florida

(December 5, 1968)

Before THORNBERRY and ——, a Judges

, and SUTTLE, District Judge..

SIMPSON, Circuit Judge: This appeal involves an

Objection by a creditor to the amount of ‘the allowances

by the District Court of interim fees to the trustee and

ans. ati aa ite ae pierre De tare it nw 2

, ; A AR ae oh IS NS Ol Os mt ago | ip taste Bom \

App. 3 3 °

his attorney in a corporate reorganization under Chapter

X of the Bankruptcy Act, 11 USCA, § 501 et seq. This

- appeal was allowed by the court under the authority of .

§ 250. of the Bankruptcy Act, 11 USCA, § 650.! There is

no merit the contention of appellee that the order in

question was not va annara

There is no merit in the contention of appellee that

Massachusetts Mutual, a secured creditor, has not -been

adversely affected by the order in question and thus has —

no right to appeal. We. hold that § 206? of the Act, 11

USCA, § 606, accords the right to maintain this appeal.

Cf. In re Kéystone Realty Holding Co., 3 Cir. 1941, 117

F.2d 1003. See also 6A Collier on Bankruptcy (14th Ed.),

| 9.23(2). Massachusetts Mutual js the holder of a, first

mortgage on one of the properties of the Wingreen "Com-

pany and its interest lies in the fact that the fees in

question may result in the assessment of administrative

costs against that property.

The trustee also urges that this court is without

.jurisdiction for the reason that Massachusetts Mutual

failed to obtain leave to appeal prior fo the expiration

_of the time allowed within which to seek permission from

1§ 250 of the Bankruptcy Act, applicable in corporate reorganization

proceedings under Chapter X provides:

“Appeal may be taken in matters of law or fact from orders

making or refusing to make allowances of compensation or re-

imbursement, and may, in the manner and within the time pro-

vided for appeals by this Title, be taken to and allowed by the

circuit court of appeals independently of other appeals in the

proceeding, and shall be summarily heard from the original

papers.”

2§ 206 in pertinent part:

.- “The debtor, the indenture trustee, and any creditor or stock-

holder of the debtor shall have the right to be heard on all matters ~

— ina proceeding under this chapter 23

App. 4

the circuit court £0 appeal. This is answered adversely to

the trustee by the case of Reconstruction Finance Cor-

poration v. Prudence Securities Advisory Group, 1941, ;

311 U.S. 582, 61.S.Ct. 333, 85 L.Ed. 367. The court here

held that the appeal must be taken to the court of appeals ~ |

within the time prescribed in 11 USCA, § 48 (a), but

that it was not the fair intendment of § 250, supra, that

the appeal must be allowed within. that time. 2

- There-is thus no impediment whatever to our reach-

ing the ‘merits of this. controversy : Whether the District

Court abused its diseretion in awarding the interim fees

in’ question to the trustee and his counsel. We are con-

strained to the view that the awards were excessive un-

der the facts and, as such, constitute an abuse of dis-

cretion. a

The facts are of great importance in answering a

question such as is posed here. There are three debtor

corporations, The Wingreen Company, The Dania Cor- —

poration, and The Lake Worth Company, all controlled’

by the same individuals, and being interrelated as to in-

debtedness. Their petitions, filed on. January 25, 1966,

seeking to have their affairs reorganized under the Chap-

ter X provisions, were consolidated.

The thrust of the reorganization proceedings is one

of virtual liquidation. The Dania Corporatién and The —

Lake Worth Company were holding companies, controlling

shares of the capital stock of banks. These corporations

have been liquidated and washed out for all practical

purposes by the sale of the stocks to liquidate indebted-

ness, and to dispose of pending litigation. The Wingreen

Company is in operation but on a much reduced basis. It

App. 5—

is a real estate holding company and its business con-

sisted of acquiring real estate and developing the same

by improving the parcels with apartment houses, office

buildings and motels. The reorganization proceedings in-

volved in excess of 900 creditors, with some ” claiming

secured status.

Mr. Brock was appointed receiver of the debtors on

February 8, 1966 and Mr. Wolff was appointed attorney

for the receiver. On May 23, 1966 the court approved the

petitions for reorganization and appointed Mr. Brock as

trustee and Mr. Wolff as attorney for the trustee. Mr.

Brock is a retired vice president of astern Airlines while

his counsel is an able lawyer having broad a in

the aaa tl field.

This wer involves-the interim award of fees to the

trustee and his counsel for the period September 1, 1966-

December 31, 1966. Detailed, statements of services ren-

’ dered were filed with the court by the trustee and his

~ counsel.» These reflected that the trustee had spent a

total of 396.5 hours on the affairs of the debtors during

the period. He was awarded his requested fee, $20,800.00

or approximately -$50.00 per hour. His counsel was award-

ed his requested fee of $25,000.00 for 222.5 hours or ap-

proximately $113.00 per hour.

There have been two previgus interim fee awards

‘from which no appeal was taken. They are pertinent to

the question presented on this appeal. The entire picture.

rhust be assessed to the extent possible. Moreover, the

District Court has consistently taken the position in these

proceedings that all interim fee awards were to be con-

sidered in making the final award of fees and we think |

. App. 6

-that this is the proper approach. One of these previous

awards was for services rendered by Mr. Brock as re-

ceiver and for his counsel as attorney for the receiver.

These fees covered the period February 8, 1966-May 26,

1966. The receiver sought a fee of $15,000 for himself and

$25,000 for his counsel. The receiver was awarded $12,500

for services entailing 352.5 hours or approximately $35.00

per hour. Counsel was awarded $20,000 for services of

320 hours or approximately $62.50 per hour. The other

award was for the period May 24, 1966-August 31, 1966

when each was awarded his requested fee. The trustee

was awarded $13,500 for services of 356.5 hours or ap-

proximately $37.00 per hour while counsel was awarded

$12,500 for 174 hours or approximately $72.00 per hour.

Our relation of the awards to. an hourly basis. is not

to imply that the District Court purported to use the

time involved as anything more than one factor to be

considered in arriving. at the amount of the fees to be

awarded. The ¢ourt considered as other factors the: com-

plexity of the-problems involved and the results obtained

by the trustee and his counsel.

The District Court has a broad discretion in the

award of fees. Calhoun v. Hertwig, 5 Cir., 1966, 363. F.2d

257; Campbell. v. Green, 5 Cir., 1940, 112 F.2d 143. This

discretion is not to be interfered with short of a showing

that it has been abused. Such an abuse may stem from

a factual bas& or form the application of an improper

legal standard. Our conclusion that the fees here in ques-

tion are excessive results from a difference in view as to .

the applicable legal standard.

Our difference with the District Court is that we

apply an additional factor: The public interest which is

inherent in bankruptcy matters must be considered in

2 eA.

_ App.7 ee

awarding fees. The object is to draw a balance to the end

that competent trustees and counsel are obtainable in

‘matters of this kind because of, the knowledge that they

' will be fairly compensated. They must not and cannot,

‘expect, however, to be overcompensated for the court

must exercise its discretion for the double purpose of

fairly treating the trustee and his counsel while at the

same time doing equity, to. the debtor and creditors.

Calhoun v. Hertwig, supra, p. 261. The result likely to

acerue to the debtor estate from the standpoint of over- -

all value must also be given prime consideration in draw-

ing the balance. A good statement of the problem is con-

tained in Finn v. Childs Co., 2 Cir., 1950, 181 F.2d 431, a —

reorganization proceeding where the appeal was from

final allowances for trustee and‘ counsel/fees. The court

contrasted ordinary litigation with a reorganization pro-

ceeding and said:

“We have examined the applications for al-

lowances of: each of the parties involved here,

with their detailed record of amount of- time

spent and the kind of work performed. We are.

not disposed to question the reasonableness. of

such fees by metropolitan ‘practitioners for ser-

vices of this kind when performed in the course

of ordinary litigation. But in a reorganization |

proceeding, where the lawyers look for compen-

sation to the debtor’s estate which may belong,

in equity, largely to others than those who have

requested :their services, they should have ‘in ~

mind the fact that the total aggregate of fees

must bear some reasonable relation to the es-

tate’s value. Under these circumstances they -

cannot always expect to be compensated at the

same rate as in litigation of the usual kind. . .”

ileal

peererer: ae Ra «aha i aK i)

. App. 8 .

The court then held that an award to the trustee

- whose overhead, as here, had been paid out-of the estate,

of $22.50 pér hour, and to the law firm representing the

trustee at the rate of $18.50 per hour was excessive. See

also Fox Markets, Inc. v. Ely, 9 Cir., 1964, 337 F.2d 461,

and London v. Snyder, 8 Cir., 1947, 163 F.2d 621.

- With respect to the overall result and the total of

the fees sought, we are fortunate in having facts and

circumstances not in the record of this case which we.

may consider in addition to the prior awards. We judi-

cially know from our own court records that interim

fees for subsequent periods are being challenged. It is

permissible for us to take these subsequent proceedings

into consideration. United States v. California Coopera-

tive Canneries, 1929, 279 U.S. 558, 555, 49 S.Ct. 423, 73

L.Ed. 838; The Aspen Mining & Smelting Co. v. Billings,

1893, 150 U.S. 31, 38, 14 S.Ct. 4, 37 L.Ed. 986. These sub-

sequent: awards and the appeals based thereon are pend-

ing in this court in two separate cases, No. 26,479 and

No. 26,711, under the name and style of Massachusetts

Mutual Life Insurance Company v. Brock, as Trustee, etc.

The record in No. 26,479 indicates. that fees were

awarded the trustee for the period January 1, 1967-June

30, 1967 in the amount of $27,500 at an hourly rate of

approximately $45.00 for a total of 607 hours. Counsel.

"was awarded $35,000 at the approximate rate of $89.50

per hour for 391 hours. In No. 26,711, the trustee was

awarded $35,580. for 702 hours spent on the affairs of

the debtors during the period June 30, 1967-June 30, 1968.

For the same period his counsel was awarded $69,000 for -

1,287 hours. No. 26,711 also involves an order wherein the

District Court aggregated all of. the interim fees awarded

_ App. 9

to the trustee and his counsel (excluding the receivership)

so that they averaged some $40.00 per hour for the trustee

and $59.00 per hour for his counsel.

| Taking all of these interim awards into consideration,

including fees for the receivership, it appears that the

total compensation awarded for the period ‘February 8,

1966-June 30, 1968 was.as en

Hours $ Received Hourly Rate

Brock , 2,414.5 $109,080 $45.1

Wolff 2,394.5 161,500 67.4

Total | _ . $270,580

We also know from the record in the case before us

and from the records in the subsequent appeals that the -

liquidation of the debtor corporation is almost complete>

As noted, Dania and Lake Worth hawe been virtually

liquidated. The Wingreen Co. formerly owned and/or

operated four motels, an office building, a warehouse

building, and four apartment buildings’ It also owned

vacan¥ lands. Most of these properties were heavily en-

- cumbered. All have now been liquidated or lost through

sale or foreclosure or abandonment except the Ramada

Inn.at Cocoa Beach, Florida. That property is subject to .

first, second, third and fourth mortgages. The first mort-

gage is to secure a debt due appellant in excess of $1,000,-

000. The other three mortgages are to secure debts total-

: ing $1, 390,000, including interest, as of October 1, 1968.

This ‘property was appraised for appellant in 1966 as hav-

ing a value of $1,500,000. The trustee has obtained an

appraisal‘as of April 1, 1968 of $2,200.000.

a a

App. 10

According to a report filed by the trustee, the Ra- .

mada Inn was operated at a profit ‘of only $50,900.88

during .the first nine months of 1968. The same report

shows that the trustee has unrestricted cash available

of only $96,029.88 as of September 30, 1968. :

The record discloses that the claims of unsecured

creditors totaled $1,385,718.95 as of January 25, 1966. In

discussing a proposed plan of reorganization, the trustee

advised the court on December 30, 1966 that there were no

stockholder equities to be dealt with and that “... there

is little which the unsecured creditors may expect.” We

have found nothing in the records before us to indicate

a change in this prognistication. The trustee hopes to

realize something from a tax loss carry forward, subject:

to a ruling by the Internal Revenue Service. There is

some tag end litigation which may produce assets for the

' debtors but what is realized, if anything, will not greatly

exceed the administrative expenses. .

It is apparent that the trustee and his counsel have

rendered and are rendering valuable and almost daily

‘services in connectior with these Chapter X proceedings.

These services have involved complex legal and business

matters and we in no way disparage them. The fact re-

mains, however, that they have been more than ‘amply

compensated for their services under the circumstances

_ of these Chapter X proceedings.

The trustee, as previously stated, has received com-

pensation for the period February 8, 1966-June 30, 1968,

a period of some 29 months, in the amount of $109,080 3

free of overhead. His compensation has been at the hourly

rate of $45.00. We conclude that this is excessive. The

App. 11

“trustee has been compensated for services taking little

more than half his time at a rate.of almost $50,000 per

‘annum. : .

With respect to counsel, we hold that his fees are

also excessive. He has been compensated at the rate of

approximately $67.00per hour during the same period.

His total compensation has been $161,500 for little more

than half time service or at a rate of more than- $65,000

per annum. He is a ‘sole practitioner and these services

have been rendered entirely by him, and, or course, he

‘has overhead expense.

There is opinion evidence before the court that the

services of counsel were reasonably worth $50.00 per

hour. There is some evidence that one*Miami practitioner -

charges $80.00 per hour for his services in some matters

and his view was that counsel for the trustee has been

underpaid. There is no evidence as to the reasonable value |

of the services rendered ‘by the trustee save his*own

statements. The absence of: evidence, however, in fee mat-

ters is -not a deterrent to the court of appeals reaching

a Conclusion that the fees were excessive. Judge Sibley |

speaking for this court in Campbell v. Green, supra, a

case involving an appeab from orders allowing fees in a

corporate reorganization, said with respect to the amount

of fees to be awarded:

‘“The court, either trial or appellate, is itself

an expert on the question and may consider its

own knowledge and experience concerning rea-

sonable and proper fees and may form an in-

dependent judgment either with or without the

aid of testimony of witnesses as to value...” —

App. 12.

- We conclude that the order under consideration must

be reversed and the matter remanded to the District

Court for reconsideration of the amounts awarded to the

trustee and his counsel’as feés. We conclude-also that the

"fees to be awarded to the trustee shall not exceed $25.00 ©

per hour for his services during the period covered by

the order and that the fees to be awarded counsel for the

trustee shall not exceed $50.00 per hour for the same

period. ae r :

It is to be noted that the court is also this day

reversing the orders complained of in No. 26,479. and’

No. 26,711, supra. The District Court will be in a better

- position to award fees upon considering the entire course

of the proceedings than was the case in the several in-

terim awards. In any event we do not believe fees above

the stated amounts of $25.00 per hour and $50.00 per hour

for the trustee and his counsel, respectively, can be justi-

fied for the services rendered under the circumstances

of these Chapter X proceedings. :

REVERSED and REMANDED with directions.

“ws

e gq -. es

APPENDIX

B %

IN THE UNITED STATES COURT OF APPEALS

*s FOR THE H CIRCUIT -

No. 26,479.

In the Matter of: THE WINGREEN COMPANY .

MASSACHUSETTS MUTUAL LIFE INSURANCE |

COMPANY, )

. Vs.

iin

J. H. BROCK, Trustee,

No. 26,711

In the Matter of: THE WINGREEN COMPANY

MASSACHUSETTS MUTUAL LIFE INSURANCE

COMPANY,

Appellant,

v8.

J. H. BROCK, Trustee,

; Appeals peu » the United States District Court fer the

Southern District .of Florida

(December 5, 1968)

Before GEWIN, BELL and DYER, Circuit Judges.

. Appellant,

Appellee.

—!

App. 14 .

PER CURIAM?’ hese appeals involve orders ailow-

ing fees for the trustee and his counsel in Chapter X .— ,

proceedings under the Bankruptcy Actefor the periods

January 1, 1967-June 30, 1967; June 30, 1967-June 30,

1968; and May 24, 1966-June 30, 1968. The appeals pre-

sent the same questions as were presented in Massachu-

setts Mutual Life Insurance Company v. Brock, 5 Cir.

1968, F.2d _, [No. 25,308, slip opinion dated .

December , 1968]. "The orders are reversed for the

reasons stated i in a case.

The District Court is directed to reconsider the re-

quest for fees for the stated periods. The order in No.

26,479, dated February 19, 1968, involves the period Jan-

uary 1, 1967-June 30, 1967. It so happens that the order

in No. 26,711, dated Augyst 6, 1968, involves the entire

period of trusteeship (Receivership period excluded)

through June 30, 1968. Thus it: is that the fees for the

period May 24, 1966-June 30, 1968, including the periods

involved in No. 25,303 and No. 26,479 must be recon-

sidered. The facts and circumstances of these reorganiza-

tion proceedings will not warrant the fees in excess of

$25.00 per hour for the trustee and $50.00 per hour for

counsel for this period.

REVERSED and REMANDED with directions.

Avnp. 15

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 25,303

MASSACHUSETTS MUTUAL LIFE INSURANCE

a al A Massachusetts en, i

and .

COLLEGE INN, INC.,a Florida Corporation,

Tg Appellants,

versus

J. H. BROCK, as Trustee for the Wingreen Celina,

Fiorida corporation; The Dania Corporation,.a Flor-

ida corporation; and-The Lake Worth Company, a

bi Florida corpor ation,

Appellee.

Appeal from the United States District Court for the

_ Southern District of Florida

Before-RIVES and DYER, Circuit Judges, and JOHN-

SON, ‘District Judge.

BY THE COURT:

' App. 16 | a

The joint petition for leave to take an interlocutory

appeal from the orders of the United States District

Court entered in the captioned cause is hereby

GRANTED | |

The motion filed by appellees to dismiss the appeal

is DENIED 3 af ee

The motion of appellants to require appellees to

diminish their designation of the record on appeal is

GRANTED

(original filed — June 15, 1967)

| a

App. 17. \

a \

* | APPENDIX

| | aa :

IN THE UNITED STATES COURT OF APPEALS

an FOR THE FIFTH CIRCUIT

° . aes

No. 25,303

P, ’

MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY,

and ;

COLLEGE INN, INC.,

Appellants,

v8.

; J. H. BROCK, as Trustee of . _

THE: WINGREEN COMPANY, ET AL,

| Appellees.

Appeal from the United States District Court for the

Southern District of Florid..

ORDER:

IT IS ORDERED that the joint motion of the parties

to dispense with the printing of the record on appeal, in

the above styled and numbered cause be, and the same

is hereby granted*upon the condition that the parties are

. directed to 28 api and file a reproduced joint appendix

of such portiofls of the record as relate to the issues to

aa:

App. 18 — ®

be decided on appeal. Briefs shall be prepared and filed

_ pursuant to Rule 24(a)(2) with the. reproduced joint

- appendix to be filed within twenty (20) days after the

filing of the brief of the appellee. é

/s/WALTER P. GEWIN

United States Circuit Judge

-- (original filed — October 19, 1967)

[ARREARS te Terps opens tare ry OP D EP ECO a 2 % - -

App. 19. - : a

- APPENDIX

IN THE UNITED STATES COURT OF APPEALS

| FOR THE FIFTH CIRCUIT © |

No. 25,303

MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY

and

COLLEGE INN, INC. |

Appellants,

v8.

J. H. BROCK, as Trustee of

THE WINGREEN COMPANY, ET AL,

Appellees.

Appeal from the United States District Court for the

Southern District of Florida

Before TUTTLE, WISDOM and GEWIN, Circuit Judges:

BY THE COURT: | |

IT IS ORDERED that the motion of appellee to

dismiss the above entitled and numbered ° cause for lack '

of jurisdiction be, and the same is hereby carried with the

case. : | , }

St omNs SEPP See ATE FDR PEARL NITY

App. 20

IT IF FURTHER ORDERED that the motion of

appellee to strike and‘correct the brief of appellant be,

and the same is hereby DENIED.

IT IS FURTHER ORDERED that ithe motion of ap-

pellee to summarily determine the appeal be, and the .

same is hereby DENIED. :

IT IS FURTHER ORDERED that the request of

appellant for an order that the joint appendix be limited

to the portions ef the record which are related to mat-

ters which are directly referred’ to in the briefs of coun-

sel be, and the same is — GRANTED.

(Original filed — February 2, 1968)

Piel

App. 21 —

APPENDIX:

a - IN THE UNITED STATES COURT OF APPEALS

»¥ FOR THE FIFTH CIRCUIT

No. 25,303 os

MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY

| and

COLLEGE INN, INC.,

| > } Appellants,

vs. |

J. H. BROCK, as Trustee of

THE WINGREEN COMPANY, El AL,

ge: Appellees.

ay, - ee ue

_ “Appeal from the United States District Court for the

; Southern District of Florida —

(

et EADIE 8 a>

“<=

App. 22°

: s oa :

Before RIVES, GEWIN and THORNBERRY, Circuit

Judges. ck J |

BY THE COURT: | ben

IT IS ORDERED that the motion of appellant to

strike certain items which have been designated by the

appellee to be printed in the Joint Appendix Pt the above

entitled and numbered cause be, and the same is hereby

GRANTED provided that if at the time of the hearing

of this appeal or thereafter it appears to the Court that

anything material to either party is omitted from the

Joint Appendix this Court on-a proper suggestion or of

its own initiative may direct that the omission shall be

corrected by requiring the Clerk of the District Court to

forward such necessary documents and papers to the

Clerk of this Court; and if necessary, that a supplemental

appendix or record shall be certified and transmitted by -

the Clerk of the District Court to this Court.

( Orginal filed — February 29, 1968)

App. 23

APPENDIX

IN THE UNITED SfATES COURT OF ‘APPEALS

FOR THE FIFTH CIRCUIT

Misc. No. 1,006, 26,479

MASSACHUSETTS MUTUAL LIFE™

INSURANCE COMPANY,

. + Appellant,

7. hs aa : aT,”

J. H. BROCK, ETC., ET AL,

: is Appellees.

pAppeal from the United States District Court for the

Southern District of Florida

Before THORNBERRY, AINSWORTH and SIMPSON,

Circuit —

BY THE COURT:

IT IS ORDERED that appellant’s suggestion and mo- .

‘tion for the entry of an order to require the appellees to ~. .

diminish the designations of contents of the record to be

prepared on appeal, filed in the above styled and num-

bered cause, is hereby granted, the Court finding that

the appellant’s designations (together with the appendix

printed in No. 25,303 pending herein) are sufficient for

review of the questions involved on this’ appeal.

(Original filed — June 25, 1968)

eo awa

App. 25

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

_ -FOR THE FIFTH CIRCUIT —.. ©

No. 26,479

In the Matter of: THE WINGREEN COMPANY

‘MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY, »

Appellant,

‘ vs.

J. H. BROCK, Trustee, ‘ .

eee Appellee. |

—- from the United States District Court for the

| Southern District of Florida

ORDER:

IT IS ORDERED that the petition of appellee to sup-

plement the record filed in the above entitled and number

cause be and the same is hereby granted. ~*~ «

/s/DAVID W. DYER

- United States Circuit Judge

(Original filed — September 3, 1968)

eee een are we

¥ \

. ‘

De Oe ry SEIT I

, Fo

App. 27 °

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

. FOR THE FI“TH CIRCUIT

No. 26,479

In the Matter of:: THE WINGREEN COMPANY

MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY,

Appellant,

vs. .

J.-H. BROCK, Trustee |

| Appellee.

Appeal from the United States District Court for the

Southern District of Florida

ORDER:

IT IS ORDERED that the petition of appellant to

supplement the record filed in the above entitled and

numbered cause be, and the same is hereby granted.

/s/DAVID W. DYER

United States Circuit Judge

(Original filed September 3, 1968) .

~ae

App. 29

APPENDIX

aia

IN THE UNITED STATES DISTRICT COURT IN AND

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION c

No. 66-28-Bk-WM

In the Matter of: THE WINGREEN COMPANY,

| Debtor.

ORDER GRANTING LEAVE TO TRUSTEE TO SEEK

' A WRIT OF CERTIORARI IN E SUPREME

COURT OF THE UNITED STATES ADDRESSED

TO THE UNITED STATES COURT OF Arr nals

e FOR THE FIFTH CIRCUIT -

This matter coming before this Court to be heard on

the sworn Petition of J. H. Brock, Trustee of The Win-.

green Company, a Florida corporation, the Dania Cor-

‘poration, a Florida corporation, and The Lake Worth

Company, a Florida corporation, and Irving M. Wolff,

as his attorney, seeking this Court’s approval for leave

_ by said parties to prosecute in the Supreme Court of the

United States a aang for certiorari addressed to the .

United States Court c* Appeals for the Fifth Circuit, and

further representing to this Court that these estates shall

not be burdened with the expenditure of any expenses

and costs in connection therewith, and it appearing that

this order may be entered ex parte without notice, it is

ORDERED that J. H. Brock, as Trustee for The Win-

green Company, The Dania Corporatien, and The Lake

Worth Company, and Irving M. Wolff, as his attorney in

said causes, be and they are: hereby authorized in their

1969.

App. 30

respective names and in their official capacities as Trust-

ee and attorney for the Trustee for the respective estates,

. to prosecute a petition seeking a writ of certiorari in the

Supreme Court of the United States addressed vo the

‘United States Court of Appeals for the Fifth Circuit in

the following matters lately pending in said United .

States Court of Appeals for the Fifth Circuit, to wit:

“Massachusetts Mutual Life Insurance Company, et al., v.

J. H. Brock, Trustee, etc.”, No. 25308, and the consoli-

dated cases “Massachusetts Mutual Life Insurance Com-

pany, et al. v. J. H. Brock, Trustee, ete.”, Nos. 26479 and

26779. 3

“IT IS FURTHER ORDERED that all expenses and

costs involved in said proceedings are to be borne by the

‘ respective J. H. Brock, Trustee, and Irving M. Wolff, and

no administrative or other charge thereof shall be made

to the respective estates in these proceedings.

IT IS FURTHER ®RDERED that J. H. Brock as

Trustee, and Irving M. Wolff, as attorney for the Trustee

for said Debtors, shall not: be paid, nor will they be. en-

entitled to be paid any fees in connection with the au-

thorized litigation. It is the expressed intention that the

instant estates shall not be burdened: with any charges

whatsover whether costs, expenses and fees, in connection

with the proceedings authorized to’ be undertaken in the

Supreme Court of the United States.

‘DATED at Miami, Florida this 16th day of January,

/s/W. 0. MEHRTENS

United States Circuit Judge

App. 31.

APPENDIX

K .

[ORDER ENTERED January 30, 1967, United States

District Court, Southern. District of Florida;. United ©

States Court of Appeals, Fifth Circuit Cause No. 25808].

IN THE UNITED STATES DISTRICT COURT IN’ AND

FOR THE SOUTHERN DISTRICT vail FLORIDA

MIAMI DIVISION

No, 66-28-Bk-WM

66-29-Bk-WM

-66-30-Bk-WM

In the Matter of:

THE WINGREEN COMPANY,

Debtor.

In the Matter of: ae

THE DANIA CORPORATION, c

: Debtor.

‘In the Matter of:

THE LAKE WORTH COMPANY,

| : Debtor.

ORDER AWARDING ADDITIONAL INTERIM FEES

TO THE TRUSTEE AND HIS ATTORNEY

is Rene ;

On May 23, 1966, by Court Order, J. H. Brock was

appointed Trustee for The Wingreen Company, a Florida

corporation, Debtor; The Dania Corporation, a Florida

corporation, Debtor; and The Lake Worth Company, a

App. 32

Florida corporation, Debtor in these consolidated pro-

ceedings, and in ‘accordance with this Court’s Order of

May 23, 1966 did qualify as Trustee by posting and bond

required in the Order of appointment, and he has been,

since May 24, 1966, and at all times pertinent thereafter,

the duly acting and qualified Trustee of the three debtor

estates in these consolidated proceedings. |

: This Court by its Order of May 24, 1966 did appoint _

Irving M. Wolff attorney for the said Trustee of the.

three Debtor corporations in these consolidated proceed-

ings, and the said Irving M. Wolff did file the necessary

- affidavits required under the pertinent sections of the

Bankruptcy ‘Act, including: Chapter X—corporate reor-

ganization applicable, and since May 24, 1966, and at all

times material herein, he has represented the said J. H.

Brock, Trustee for the three Debtors in these consoli-

dated proceedings as am attorney at law in accordance

with the Order of his appointment.

| The Trustee, J. H. Brock has filed his Petition for

an award of additional interim compensation and reim-

bursement of disbursements ih accordance with the ap-

plicable sections of the Acts of Congress relating to

Bankruptcy, and in accordance with local Rule 10(g),

Bankruptcy Rules of the District Court of the United

States for the Southern District of Florida, for the serv-

ices performed-as Trustee for and on behalf of the three

Debtors in these consolidated proceedings fér the interval

commencing, with the date of September 1, 1966 to and

including the 3lst day of December, 1966.

_ Irving M. Wolff, the Trustee’s attorney in these con-

solidated proceedings, representing the Trustee in his @

ne A

App. 33

capacity as Trustee of the three debtor estates, in ac-

cordance with the foregoing statutory and procedural .

citation, did also file his application for an award ‘of

additional interim attorney’s fees for the same period of

time involved.as that included in the Trustee’s Petition

for compensation and reimbursement of expenditures.

It appearing from the record that due and sufficient

notice of said hearing for the application of interim fees

was given ‘o all parties materially and adversely af-

fected by tMese proceedings, and to such parties of record

that this Court has designated as being entitled to receive.

copies of all pleadings, and subsequent to the notice two .

parties materially and adversely affected by these pro-

ceedings did file written objections to the Petitions filed-

by the Trustee and by the Attorney. for the Trustee seek-.

ing interim fees for’ the period involved, said parties be- -

ing Massachusetts Mutual Life Insurance Company, and -

College Inn. ; |

Neither of the objectors did take into consideration

the value of the services rendered by the Trustee and his

attorney in connection with the complicated and difficult

sale of the holdings of the Dania Corporation, a Debtor

in these consolidated proceedings, specifically{ the stock

in the Dania Bank. The liquidation of these{ particular

assets resulted in a transaction in excess ‘of $4,000,000.00

and resulted in the consolidated proceedings realizing in

excess of $100,000.00 in cash.

- The Court finds that the services rendered in this

regard which commenced with an offer by the eventual

purchaser whereby the consolidated estates would have

been required to pay to the purchaser some $6,000.00 cul- :

Ann ae nk ee Ree ee es

ED 5 App. 84

| //minated in a transa¢tion as herinbefore observed, netting

y° the estate not only the cash in excess of $100,000.00, but

unburdened the estate of some $250,000.00 per year of

interest. charges, in addition to the dismissal of a com-

plicated proceeding involving three Orders heretofore

entered by this Court, which appeals properly defended

would create sizeable administrative expenditures which

the consolidated proceedings would have to bear. This

savings must be considered ‘gizeable when the Appellate

record therefor prepared was stipulated to, and direc-

tions were submitted to the Appellate Court Clerk by

Counsel for the intended Appellant and Trustee, which

| _ withheld instructions directing the Appellate Court Clerk

to bind the record pending the negotiations involving the

sale. ; .

This Court further finds that the hourly expenditure

_ of time is only one of the factors which governs an allow-

ance of fees in reorganization proceedings. This is only

an indication of time expended by the applicant. This

factor alone is not the sole controlling item. The ex-

penditure of time must be coupled with the results ob-

‘tained. In these consolidated proceedings the Trustee

has within his jurisdiction the management and opera-

tion of two motels, one office building, four apartment

houses, a warehouse, and several parcels of unimproved

property. At the inception of the proceedings the Trustee

had the controlling stock interest of a national bank, and

the controlling stock interest in a state bank within his

custody. ar } ~

In accordance with the reports filed by the Trustee

under Section 167 of the Bankruptcy Act [11 U.S.C.A.

§ 567] the total evaluation of the consolidated estates

Se a eee cme

- Q@&» .-

-ervation of the assets.

App. 35

was in the neighborhood of $20,000, 000.00, and the.

monthly reports filed by the Trustee reveal that the total ~

gross annual business done by the properties in his .cus- a

tody and under his supervision on an annual basis —

more than $3,000, 000.00 per annum. ee

The Trustee is the sole executive under whose active

management these properties are operated.. The Court -

must take into consideration the executive ability of the

Trustee, in addition to the hours expended, the monies.

the Trustee handles, and the dispatch in which decisi

are made, and the activities.of the Trustee in the p

“4 .

At the commencement of these consolidated proceed-

' ings, the records of the Debtors were in a deplorable

condition. That through the efforts of the Receiver, J. H.

Brock, now the Trustee, J. H. Brock, an efficient admin-

istrative system was created which allowed this Court to

have at its disposal all of the necessary financial data

and reports to assist this Court in making the decisions

necessary in these complicated reorganization proceed-

ings. It was:through the efforts of this Trustee that the

estate at the present time is in a position to be reorgan-

ized, and there are prospective investors who are inter-

‘ested in reorganization, and these-investors have at their ;

disposal because of the Trustee’s efforts,: detailed and

minute financial information: and information advising

them as to the claims of all secured creditors and’ un-

_ secured. creditors. Where the secured creditors are in- -

- volved, these people have available to them enumerations

as to the types of liens on the specific properties, whether

they be real or personal; they have available to them éach

facet that is necessary to allow them to make not only

a %, App. 36

a decision as to the possibility of participation in reor-

ganization, but as to the future recapitalization of the

facilities and assets to be utilized in reorganization.

At the commence ement of these consolidated proceed- .

ings, ‘there was little or no cash position available to the

estates, and yet the Receiver, J. H. Brock, now the

Trustee, J. H. Brock, through diligent application has

discharged portions of the secured indebtedness, portions

of the current taxes, and all of the operational expenses

of the estate without the necessity of any borrowings,

specifically no certificate of indebtedness having been |

issued by the Trustee to accomplish this facet of the

administration. ;

This type and ‘calibre of service must also be con-

sidered in the establishment of fees.

° é

CONCLUSIONS OF LAW

That under the applicable provisions of the Bank-

ruptcy Act dealing with reorganizations, this Court does

have the jurisdiction to allow interim fees in accordance

with the services rendered as they benefit the estate. It

is therefore 4 .

c a

ORDERED:

1. That the said J. H. Brock, as Trustee of the Win-

green Company, the Dania Corporation, and The, Lake

Worth Company, Debtors in these consolidated proceed-

ings, be and he is hereby awarded $20,000.00. as allowance

for compensation for the interim period commencing

September 1, 1966 and concluding December 31, 1966, for

| App. 37.

the said services so rendered during said period in these

consolidated proceedings as Trustee of the hereinbefore:

enumerated Debtors.

2. That the enumerated disbursements as exhibited |

by Exhibit B attached to the Petition of the said J. H.

Brock for reimbursement of out-of-pocket expenses as

Trustee during the interval of September‘1, 1966 through

_ December 31, 1966 in the amount of $36.55 be allewed,

-. and that said expenditures are approved as reported, and

that they shall be taxed as administrative costs in these

proceedings. ;

_ 8. That Irving M. Wolff as attorney for the Trustee —

J. H. Brock, in these consolidated proceedings be and he

is hereby awarded $25,000.00 for the legal services

-_ rendered by the said Irving M. Wolff in accordance with

the Order appointing him under a general retainer as

attorney for the said-Trustee, J. H. Brock, in these con-

- . solidated proceedings, for the interim period commencing

September 1, 1966 and terminating December 31, 1966.

4. The sisal fees awarded to the Trustee and

to his attorney in these consolidated proceedings are on

an interim’ -basis and such awards will be taken into con-

sideration ‘at the time of the final award of fees and

compensation for the Trusteé and his attorney in these

consolidated proceedings.

5. That the said-J. H. Brock, Trustee in these con-

solidated proceedings, prior to his payment and discharge

“of said awards, shall satisfy himself that all parties

awarded compensation and allowance and reimbursement

of costs have filed their respective affidavits as required

by Section 249 of the Bankruptcy Act [11 U.S.C.A. § 649]..

App. 38 °

6. That the said Trustee, within twenty (20) days

from the entry of this Order, shall mail a copy hereof to

all creditors and stockholders of the said foregoing and

enumerated Debtors in these consolidated proceedings as

the same are reflected by the records of the said respec-

y~tive Debtors now in the possession of the: said Trustee.

7. That all of the allowances for compensation and

fees are for services rendered during the period set forth

in the respective applications and hereinbefore provided

for imthis Order in conjunction with the administration

of the instant Debtor estates in these consolidated pro-

ceedings, and that of said compensation allowances, fees

and reimbursements for expenditures are reasonable and

that the said awards are hereby allowed in payment on

an interim basis for suth services rendered, and the said

J Trustee, J. H. Brock, in these consolidated a

is hereby authorized to make the same.

DONE and ORDERED, at Miami, Florida, this 30th

day of January, 1967.

“a ih is el laa a staan @

, : /s/ W. 0. MEHRTENS,

es, UNITED STATES DISTRICT JUDGE

a eR Oe ee

Es PUD RAAF A RR I EAA AS,

App. 39

APPENDIX

ee ae

[ORDER ENTERED February 19, 1968, United States —

District Court, Southern District of Florida; United

States Court of Appeals, Fifth Circuit Cause ‘No, 26479]

IN THE UNITED STATES DISTRICT COURT IN AND

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

—_—

_No. 66-28-Bk-WM

66-29-Bk-WM

66-30-Bk-WM

In the Matter of:

THE WINGREEN COMPANY,

; ) Debtor.

In the Matter of:. s ,

THE DANIA CORPORATION, hy

; ‘Debtor.

i. In the Matter of:

cary THE.LAKE, WORTH COMPANY, .

ie eee Lin Debtor.

ORDER AWARDING ADDIFIONAL INTERIM FEES

TO THE TRUSTEE AND HIS ATTORNEY

«*

e +

App. 40

On May 23, 1966, by Court Order, J. H. BROCK was

appointed Trustee for The Wingreen Company, a Florida

corporation, Debtor ; The Dania Corporation, a Florida

corporation, Debtor; and The Lake Worth Company, a

Florida corporation, Debtor, in these consolidated pro-

ceedings, and in accordance with this Court’s Order of

May 23, 1966 did qualify as Trustee by posting the bond

required in the Order of appointment, and he has been,

since May 24, 1966,.and at all times pertinent thereafter, |

the duly acting and qualified Trustee of the three debtor

estates in these consolidated proceedings. |

This Court by its Order of May 24, 1966, did, appoint

IRVING M. WOLFF attorney for the said Trustee of

the three Debtor corporations in these consolidated pro-

ceedings, and the said IRVING M. WOLFF did file the _

necessary affidavits required under the pertinent sec-

- tions of the Bankruptcy Act, including Chapter X—cor-

porate reorganization applicable, and since May 24, 1966

and at all times material ‘herein, he has represented the

-said J. H. BROCK, Trustee for the three Debtors in these

consolidated proceedings qs an attorney at law in accord-

ance with the Order of his appointment.

The Trustee, J. H. BROCK, has filed his Petition for.

an award of additional interim compensation and reim-

burseMi@ht. of disbursements in accordance with the

applicable sections of the Acts of Congress relating to

Bankruptcy, and in accordance with local Rule 10(g),

- Bankruptcy Rules of the District Court’ ofthe United

States for the Southern District of Florida, for-the serv-

ices performed as Trustee for and on behalf of the three

Debtors in these consolidated proceedings for the inter-

val commencing with the date of January 1, 1967 to and

including the 30th day of June, 1967. ;

™,

App. 41

IRVING M. WOLFF, the Trustee’s attorney in these

consolidated proceedings, representing the Trustee in his ~

capacity as Trustee-of the _ ee debtor estates, in accord-

ance with the foregoing statutory and procedural cita- ~

tion, did also file his application for an award of addi-

tional interim attorney’s fees for the same period of time

involved as that included in the Trustee’s Petition for

compensation and reimbursement of— expenditures. |

It appearing from the record that due and sufficient

ig! said hearing for the application of interim fees

was given to all parties materially and adversely af-—

fected by these proceedings, and to such parties of record

that this, Court has designated as being entitled to receive

copies of all. pleadings, and subsequent to the'notice one.

party’materially and adversely affected by these proceed- |

ings did file written objections to the Petitions filed by

the Trustee and by the Attorney for the Trustee seeking

interim fees for the period involved, said party being

MASSACHUSETTS MUTUAL LIFE INSURANCE

COMPANY.

The objector did not. take into consideration the value

of the services rendered by the Trustee and his attorney

in connection with the complicated and: difficult litigation’

_ concerning the claims of liens involving the ‘estates’ in-

terest in the Ramada Inn, Gainesville, Florida. This liti-

gation was complicated and lengthy, and the estates’

equity in the leasehold interest was enhanced by approxi-

mately $689,000.00, inasmuch as some sixteen claimants

seeking a secured position against the estates’ leasehold

interest had their claims reclassified: as unsecured claims.

In addition thereto, the first mortgagee’s claim as to

principal was recommended for reduction .by the Special

Master by an amount of seam

_ App. 42°.

As a result of this particular litigation and the hear- —

ings conducted: in connection with evaluation of secured

' claims under Section 197 of the Bankruptcy Act [11

U.S.C.A. § 597] it appears that a valuable asset of the 7

estates was preserved to enable the Trustee to resurrect

some consideration and to liquidate said asset so that.

the estates would resolve themselves into a reorganization

of the remaining property in Cocoa Beach, Florida.

The objector presents no testimony or evidence to

‘aid and assist this Court in reaching its determination.

It does, however, attach an affidavit of a practitioner,

and from the contents of said affidavit it does not appear

that the said affiant is fully familiar with the proceed-

ings or that he was given much time, nor is his conclusion .

as to the value of the services acceptable to the Court.

_ fhe Court has heard from counsel ‘in these proceed-

ings, and is fully familiar from -its own experience with

the matters and the complexity, of the proceedings in-

‘volved as to fully and completely evaluate the services

rendered by the Trustee and his attorney.

While the pbjector makes a severe issue that no Plan

-of Reorganization has been proposed, and he erroneously

concludes that no Plan of Reorganization will be proposed,

this Court, because of its-direct and minute supervision

of the instant estates, is apprised of factual material

which refutes the inferred conclusion. of the particular

objector. St Se | ;

The inconsistencies of the petition arid the conclu-

sions therein contained reveal that the objector is unfa-

miliar with the total ramifications of these proceedings. -

— << ie

While the objector complains that 1967 real and personal

property taxes which are now due and owing have not

been paid, and he does recognize that said expenses are

an administrative matter, the objector fails to recognize

that the fees earned by the Trustee and his attorney are

also’ administrative expenses. It appears that this par-

ticular creditor feels that the administration of ‘these

instant estates should be for its sole benefit, and that

anything that conflicts. therewith should be stricken

down.

It must be pointed out that the argument made by

the objector as to the failure to file a Plan of Reorgani-

zation should have some effect upon the fees, the law

is to the contrary, inasmuch as a trustee under the pro-

visions of the Bankruptcy Act where reorganization is

not affected, the provisions for remuneration of the:

Trustee are governed by the first seven chapters of the

Bankruptcy Act [11 U.S.C.A. §°647].

The case law relied upon by the objector cites vin-

tage cases (one case being decided in 1953 and the other

in 1957, which do not give any consideration to the span

of time and changing economic conditions).

This Court. further finds that the hourly expendi-

ture of time is only one of the factors which governs an

allowance of fees in reorganization proceedings. This is

only an indication of time expended by the applicant. |

This factor alone is not the sole controlling item. The

expenditure of time must’ be coupled with the results

obtained. In these consolidated proceedings the Trustee

has within his jurisdiction.the management and opera-

tion of two motels, one office building, four apartment

App. 44

houses, a warehouse, and several parcels of unimproved

-préperty. At the inception of the proceedings the Trustee

had the controlling stock interest of a national bank, and

_ the controlling stock interest in a state bank within his

custody.

The objector’s conclusions to the contrary notwith-

standing, the reports of the Trustee reflect that the an-

nual gross business being done by the properties in his

custody and his supervision has been increased for the

period under consideration when compared to the,pre-

vious period, particularly that as to the motels the opera-.

tion of the business shows an.increase of room sales of ©

some 4,000 rooms over the same period of time involved

in the preceeding year, and for the same period there.

' was a gross revenue increase of some $34,000.00 when

compared with the previous year. The Trustee’s business

policies resulted in considerable savings, and increased

- gross revenues arid eliminated operating losses.

The Trustee is the Sole executive under whose active

management these properties are operated. The Court

must take into consideration the executive ability of the

Trustee, in addition to the hours expended, the monies .

the Trustee handles, and the dispatch in which decisions

are made, and the activities of the Trustee in the pres-

ervation of the assets.

‘ |

It is apparent that the aggorney. for the Trustee has .

been conscientious and“has exhausted every avenue in

-handfing the legal problems presented in the administra-

tion of these estates to safeguard every asset of these

estates, and has kept the Court, as well as the Trustee,

fully informed as to the legal developments with which

the administration of the estates was faced.

App. 43 .

- The Court has reviewed the applications of the

Trustee and his attorney for a further award of interim

fees, and no creditor having filed any constructive ob-

jection to said application, nor put in issue any s®orn —

allegation therein contained, the contents of both peti-

tions must be taken to be factually correct, and as such

are found to be so, and the facts therein contained are

incorporated herein in haec verba as though fully set

forth.

CONCLUSIONS OF LAW

This Court concludes as a matter of law that it has

jurisdiction to allow interim fees in accordance with the _

services rendered, and in accordance, with the doctrine

established by the United States Court of Appeals for the -

Fifth Circuit; the Court recognizes from its own experi-

ence that it may form an independent judgment as to the

value of fees in accordance with the services rendered and

the achievements gained, with or without the aid of testi-

mony of witnesses to-establish said value [Campbell v. |

Green, 112 F.2d 143]. It is therefore ites |

ORDERED:

I. That the said J. H. BROCK, as Trustee of The

Wingreen Company, The Dania Corporation, and The

Lake Worth Company, Debtors in these consolidated pro-

_ ceedings, be and he is hereby awarded $27,500.00 as allow-

ance for compensation for the interim period commencing .

January 1, 1967 andéoncluding June 30, 1967, for the said

services. so rendered during said period in these consoli-. |

dated proceedings as Trustee of the hereinbefore enu-

merated Debtors.

App. 46

9 That the enumerated disbursements as exhibited

by Exhibit B attached to the Petition of the said J. H.

ROCK for reimbursement of out-of-pocket expenses a8

Trustee during the interval of January 1, 1967 through

_ June 30, 1967 in the amount of $74.60 be allowed, and

that said expenditures are approved as reported, and

that they shall be taxed as administrative costs in these ©

proceedings. © . pes Jui,

3 That IRVING M. WOLFF, as attorney for the

Trustee J. H. BROCK in these consolidated proceédings,

be and he is hereby awarded $35,000.00 for the A pitta %

ices rendered by the said IRVING M. WOLFF. in acco

ance with the Order appointing him under a general re-

tainer as attorney for the said Trustee, J. H. BROCK, in

these consolidated proceedings, for the interim period

commencing January 1, 1967 ani terminating June. 30,

1967. ee

4. The Yoregoing fees awarded to the Trustee and

to his attorney in these consolidated proceedings are on

an interim basis and such awards will be taken into con-

sideration at the time of the final award of fees and

compensation for the Trustee and his attorney in these

consolidated proceedings.

5. That the said J. H. BROCK,. Trustee in these

consolidated proceedings, prior to his payment and dis-

charge of said awards, shall satisfy himself that all par-

ties awarded compensation and allowance and. reimburse-

“gat of costs have filed their respective affidavits as

required by Section 249 of the Bankruptcy Act [11

U.S.C.A. § 649]. - rary

Sa a Ge eiawes

_ 6° That the said Trustee, within twenty (20) days

from the entry. of this Order, shall mail a copy hereof to

all creditors and stockholders of the said foregoing and

vnumerated Debtors in these consolfdated. proceedings |

as the samte are reflected by the records of the said re-

spective Debtors now. in the possession of the said Trustee. :

7. That all of the allowances for compensation and

._ fees are si oa rendered during the period set forth

in the respective applications and hereinbefore provided .

for in this Order in conjunction with the administration

of the instant Debtor estates in these consolidated pro-

ceedings, and that of said compensation. allowances, fees

and reimbu ents for expenditures are reasonable and

that the said’awards are hereby allowed in payment on ~ .

. an interim basis for such services rendered, and the said

Trustee, J. H. BROCK, in these consolidated proceedings

is hereby authorized to make thé same.

DONE and ORDERED, at Miami, Florida, this 19th

_ day of February, 1968. :

/s/ W. 0. MEHRTENS

- UNITED STATES DISTRICT JUDGE .

a De inde oy Berti

ie Dine sn ieee, 10 Siecle sotaliniaton sat AD ne rei i 6 it tal ARE Rinne ain Linas

App. 49

APPENDIX

[ORDER ENTERED August 6, 1967, United States Dis-

trict Court, Southern District of Florida; United States

Court of ‘Appeals, Fifth Circuit Cause No. 26711]

IN THE UNITED STATES DISTRICT COURT IN AND

FOR. THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION:

No. 66-28-Bk-WM

66-29-Bk-WM

66-30-Bk-WM.

In the Matter of:

THE WINGREEN COMPANY, 7

Debtor.

ORDER AWARDING ADDITIONAL INTERIM FEES.

TO THE TRUSTEE AND HIS ATTORNEY

On May 28, 1966, by Court Order J. H. BROCK was

appointed Trustee for The Wingreen Company, a Florida

corporation, Debtor.

He was ‘also appointed Trustee for the Dania Cor-

poration, aud The Lake Worth Corporation, also Florida

corporations. The proceedings were consolidated. How-

ever, heretofore this Court has entered Orders awarding

interim aJlowances to the Trustee‘and his attorney, and it.

further did enter an Order apportioning the respective

1 ANI Gi ct eG IIT >

eS ee

thee ee

ee .

App. 50 |

administrative charges: amongst the various estates and |

the necessary payments were made and ¢redits and debits

achieved amongst the respective estates. Pie

: This Court is fully advised as to the status of the

causes, the interrelationship of the estates, and the serv-

ices rendered. The record reflects that the Trustee did

post bond and qualify for his office on May 24, 1966, and

at all times pertinent thereafter he was the duly quali-

fied and acting Trustee, in accordance with the Order

of this Court in these proceedings. | "

On May 24, 1966, this Court by its Order of instant

date did appoint IRVING M. WOLFF attorney for the

‘said Trustee in these consolidated matters. .

The record further reflects that the Trustee and his

attorney have made an application for interim fees for

the entire period of time of their appointment, and did

file the necessary affidavits required under the pertinent

sections of the Bankruptcy Act, including Chapter xX

corporate reorganization provisions, and that at all times

material herein, the said IRVING M. WOLFF did repre-

sent the Trustee J. H. BROCK and did perform the nec-

essary services. - j

The Trustee, J. H. BROCK, has filed his Petition for -

an award of interim compensation asking that this Court

review from the date of his appointment, May 24, 1966, to

and including the 30th day of June, 1968, the status of

interim allowances heretofore -made to the Trustee and

credit said interim allowances to any interim fees which

this Court may award for the entire period of the trustee-

ship, and should any deficiency appear in the payment of

said fees, enter an Order accordingly. )

ie ea Se a ae oe

App. 51

IRVING M. WOLFF, the Trustee’s attorney in these

proceedings, did also file a similar Petition and both ap-

plications are accompanied by the required Affidavits

under the: Bankruptcy Act and Local Rule 10C, Bank-

ruptcy Rules of the United States for the Southern Dis-

trict of Florida. The Petitions were dyly and properly

served on all parties adversely affected under the date of

July-18, 1968, in accordance with the Certificate of Serv-

ice filed in these proceedings by the Trustee and counter-

signed by his attorney.

The notice given was adequate and in accordance

with this Court’s rulings. f

The record reflects that the Trustee did expend 2,414

hours and 30 minutes, and the Trustee did take into his

possession assets evaluated at $17,931,973.89. That at the

present time he retains possession of assets evaluated at

$2,200,000.00. That in: addition to the~ foregoing assets,

the Trustee has in the disposition of the business of the

estates handled $6,154,708.63 from the dave of his ap- -

pointment as Trustee to and including June 30, 1968. That

$502,664.84 represented: proceeds from disposals of

debtor’s. assets which in effect were utilized in the ad-

ministration of the estates, enabling secured creditors to

have their secured status maintained and protected, and

_ to further afford unseeured creditors the possibility of

participation m distribution in reorganization. It thus

appears that the Trustee did handle in excess of $23,000,-

000.00 in assets and cash during his administration.

By previous Order of Court, the Trustee has been

awarded $61,000.00 for and on account of interim fees for

services rendered in these proceedings as Trustee. This

2 Ria eu aia 2 ee ~

ss Sianids er iene —— —

. eel a

App. 52

Court has made no allowance to the Trustee for the

period commencing with July 1, 1967 and ending June 30, ra

1968, a period in which the Trustee expended 1,054 hours

and 30 minutes of the 2,414 hours and 30 minutes ex-

pended during the entire progress of these proceedings.

. The Court is of the opinion that the value of the

services rendered by the Trustee in these proceedings

should be established on the basis of an hourly award

involving the time expended, but that this award should

also take into consideration the extraordinary responsi-

bilities and the ability displayed by the Trustee in the

management and conduct of the affairs of the said

debtors and bringing order out of chaos. This Court has

by its previous orders made observations as to the ability

of the Trustee and the achievements that he has at-

tained in the services rendered to this estate as an officer

of this Court. si

ote Sy phe AA Bate tah a etre eee

\ : The.attorney for the Trustee has. filed his sworn

Petition to which are attached minute schedules of the -

_ time expended by the attorney for the Trustee from the

date of -his appointment as such attorney to and includ-

ing June 30, 1968. These schedules so filed and the testi-

mony rendered reflect that the attorney for the Trustee

3 has expended, since his appointment to and including

3 said 30th day of June, 1968, 2,394 hours and 30 minutes,

and he has received an interim allowance of fees for and

on account of said services of $72,500.00. No award has

been made for interim fees to the attorney for the Trus-

tee for the period commencing July 1, 1967 and ending

June 30, 1968, during which period of time the attorney.

for the Trustee did expend 1,605 hours and 15 minutes in

- these proceedings. ;

| & RAN ho oA SA Wie we te a Da

App. 53

The Court is full well familiar with the services per-

formed by the attorney for the Trustee and has com-

mented on said services in the previous allowances for

interim fees in these proceedings. The attorney for the

Trustee has alleged in his sworn Petition that he did

expend 95% of his time on mattérs of these estates dur-

ing the period commencing January 1, 1967, to and in-

cluding June 30,1968. His practice has been limited be-

cause he is a single practitioner and due to the press of

duties involved as attorney for the Trustee of the instant

estates, he has discouraged and refused to take matters *

which have been tendered to him, thereby of necessity

curtailing his practice. The Court must recognize also

that the attorney for the Trustee, in the maintenance

of his office, experiences an overhead.

A review of the application of the attorney for the

Trustee reflects that he seeks to have established an —

hourly charge from the commencement of the appoint-

ment to and including June 30, 1968, and to award in-

terim fees on the basis of said hourly rate and to credit

against said figure any and all previous interim allow-

ances heretofore made to the attorney for the Trustee.

That should there be any deficiencies due and owing to.

the said attorney for.the Trustee in accordance with said

formula, then this Court shall enter such necessary Or-

ders as it deems proper in its discharge of the said matter.

The record reflects that the attorney for the Trustee

~ is now defending four appeals in the United States Court |

of Appeals for the Fifth Circuit. That he has matters of

complicated ‘nature involving the Internal Revenue Serv-

ice of the United States of America before this Court in

order to determine availability to a reorganized company

EE EP PIA 6S X

App. 54

of various and divers tax losses under the tax loss carry

forward provisions of the Internal Revenue Code. That

he has. plenary and/or summary lawsuits in- progress to

recover void or voidable preferences in an amount in

excess of $600,000.00. That he. further has had matters

involving the obtaining of testimony from hesitant wit-

nesses, and that he has exhausted every avenue in the

handling of legal problems presented in the administra-

tion of the estates to safeguard every asset of the estates,

and has kept the Court, as well as the Trustee, fully in-

formed as to the legal developments with which the ad- .

ministration of the estates has been faced. In addition

thereto, a Plan of Reorganization has been promulgated

and presented to the Court, and the Court has directed

t me to be forwarded to the Internal Revenue Serv-

eof the Treasury Department of the United States of

Ame

erica for its opinions. ~~

Massachusetts Mutual Life Insurance Company filed |

objections to the last application made by the Trustee

and his attorney for interim remuneration, and the Trus-

tee filed a motion to strike portions . of said objections,

‘which motion was disposed of by an independent ruling

«entered by this Court. aan ;

The Trustee introduced testimony as to the reason-

ableness of his attorney’s fees, calling to the witness

stand an eminent practitioner before the courts of the

State of Florida and the United States District Court. for

the Southern District of Florida, a past president of. the

local Bankruptcy Committee of this Court, senior part-

ner of the law firm.of Jepeway & Gassen, the Honorable

LOUIS M. JEPEWAY. This witness testified that within

his experience in bankruptcy , proceedings, which dated

App. 55

back to 1931, that a reasonable interim allowance for the

attorney for the Trustee for the services rendered in a

highly complicated and difficult administration . during

the interim period under consideration would be a mini-

mum fee of $175,000.00 and a maximum of $200,000.00,

based upon the size of the estates, the complexity of the

matters and problems, the success in achieving ultimate

ends, and the conscientious and direct effort expended

by the attorney for the Trustee, in addition to the loss

of practice sustained by said attorney because of his

representation of the Trustee in this matter. Mr. JEPE-

WAY further. testified to the methods utilized by attor-

neys in Dade County, Florida in setting fees and as to

‘what the standards were. Mr. JEPEWAY, in his exami-

nation and cross examination, confirmed much of the in-

dependent judgment of the Court within its experience

as to the setting of fees and as to the value in accordance

with the services rendered and the achievements gained.

The objector presented no testimony other than the

hereinbefore referred to objections and the alluded to rul-

ings upon said objections.

This Court recognizes from the record that since July

| 1, 1967, the Trustee has either disposed of or abandoned

under Order of this Court the following properties:

BANYAN ARMS APARTMENTS (August 30, 1967) ;

SUNNYBROOK APARTMENTS (September 20,

1967 — Condemnation) :

BISCAYNE SHORES APARTMENTS (February

14, 1968) 7

——aeee

@ depron

Caine

_ App. 56

RAMADA INN, GAINESVILLE | February 29, 1968)

THE LISCHKOFF PROPERTY — PENSACOLA

(March 11, 1968)

THE HALLMARK PROPERTY — PENSACOLA \

(April 8, 1968)" a

THE COCOA BEACH 39-JNIT. APARTMENTS

(March 22, 1968) . as

“THE EDGEWATER BUILDING ' May 1, 1968) |

‘THE GRAY PROPERTY — (May 3, 1968)

THE CORAL GABLES PROPERTY ‘mtay10, 1968+

_ The Court does further recognize from the record, as

hereinbefore stated, that the Trustee at the present time

_ is engaged in prosecuting summary and-plenary suits seek-

ing to recover sums in excess of $600,000.00, and .that in -

preparation for said proceedings: a substantial amount of

testimony and exhibits have been adduced under Sections

‘Ta and 21a of the Bankruptcy Act, and by depositions. That

the Trustee’s paramount duty is one of total administra-

tion of ail of the assets of the estate and preservation of

choses in action, and each and every. right of the estate.

That the Trustee’s duties cannot be minimized by the ir-

responsible conclusion contained in the “objections filed by

Massachusetts Mutual Life Insurance Company that the

said Trustee is “a super manager”. Such a conclusion re-

flects that the pleader is not fully and completely familiar

not only with these proceedings but with the duties im-

posed upon a reorganization Trustee by the Bankrupt¢y

mat Pag ea hart Sr aon My os RAE Dota At ecw Sees pel Bee a eo A

MApp. 57°

Act. Comment on this portion of. the objections filed by .

Massachusetts Mutual Life,» Insurance Company cannot

be concluded prior t@ the Court’s making an additional’

observation that the said objector seeks to create the im-

pression that the Trustee had little or nothing by way of

property management to do, and therefore the Court has

hereinbefore set forth the duties of liquidations of assets

held by the Trustee in accordance with this Court’s Orders.

It does further: <ppear that the objector is not cognizant

of the impending proceedings directed to the Secretary of

‘the Treasury to aid and assist this Court by rendering an

opinion concerning the tax loss carry forward which the.

Debtor has available in relation to the Plan of Reorgani-

zation as submitted to this Court. This tax-loss carry for-

ward at the present time is an asset in excess of $2,500,-

000.00;.and the salvaging of all or any part thereof within

the intended Plan of Reorganization. is important in saa ,

administration of this estate.

These are some of the matters which this Court has

_ actual knowledge of because of its. minute supervision and

surveillance of the proceedings. It appears that the objec-

tions filed are not well taken; in view of the fact that no

witness was presented and no testimony offered, said ob-

jections'can only be classified as a bargaining argument.

This Comant has, by previous Order, made an allocation -

of. administrative charges amongst the consolidated’ es-

tates; however, because of the interrelationship of the~

consolidated matters, while each estate has borne its re-"

spective share of the interim fees heretofore awarded, the

Court considers the total dollar sums heretofore allowed

and will credit said sums as to.any and all allowances

made for the period involved, as set forth in the applica-

tions filed for i inter im fees.

“£

App. 58

While the attorney for the tee seeks compensa-

tion upon an hourly rate in connection with the number of

hours expended—specifically 2,394 Hqurs and 30 minutes,

and the Trustee seeks remuneration, for the expenditure

of 2,414 hours and 30 minutes, which expenditure of time

this Court finds uncontradicted by. any legally sufficient

evidence, this Court has insisted that while the number of

hours expended is a factor in ‘determining fees, it is not

the sole and exclusive factor. The Court, while taking said

factor into consideration, does reiterate that the Court

has examined the entire record of services performed by .

both the Trustee and his attorney, and being full well

familiar with these progeedings, does take into considera-

tion in establishing the Trustee’s interim fee his executive

_ ability, his organizational ability, his direction of the af-

fairs and business of the estates, his decisions and recom-

mendations to this Court concerning liquidations and sal-

vaging of properties, the interfinancings which precluded

and prevented the issuance of Certificates of Indebted-

ness further encumbering the etates but still enabling the

estates through internal financing to maintain an eco-

- nomic semblance in their administration. The Court rec-

ognizes on behalf of the Trustee and his attorney their ..

ingenuity and their diligence and successes, and present-

‘ment. to the Court and thé parties materially and adversely

affected of a complete and understandable kaleidoscopic

picture of the financial affairs of the Debtors. This Court

feels that by virtue of the status of the record and the

accomplishments achieved and the time expended by the

Trustee and his attorney that any award made at the pres-

ent time on an interim basis could only be“classified as

reasonable and not in accordance with the true value of

the services performed. | |

MATEO aS »

App.. 59

It appears that Massachusetts Mutual Life Insurance

Company has constantly, reiterated and expressed a fear,

unwarranted by the record and unsupported by these

‘proceedings, that the secured creditors, of which it is one,

will be taxed and be required to pay and discharge at least

on a prorata basis, administrative costs in the nature of

the Trustee’s fees and the attorney for the Trustee’s fees.

This assumption is not supported by the record, the facts

in the matter, the applications made, or the law involved,

It further appears from the record that due and

sufficient notice of hearing for the application for in-

terim fees for the period involved was given to dfl parties

materially and adversely affected by these proceedings,

and to such parties of record as this Court has designated

as being entitled to receive copies of al] pleadings, and

the Court being fully advised in the premises, having re-

viewed the record of the proceedings for the interval of.

time for which the attorney and the Trustee seek com-

p fees for service rendered, and it further

ue that this Court has jurisdiction over the parties

and the subject matter to enter the hereinafter Order, it is

thereupon

ORDERED:

1. That the said J. H. BROCK, as Trustee of the

estates in these consolidated causes, be and he is hereby ~

awarded interim compensation in the amount of $96,580

for the period commencing May 24, 1966 and concluding

June 30, 1968, and that he has been awarded for and on

account of said services the sum of $61,000.00, and. that

therefore there is further interim allowance due and ow- -

ing to the said Trustee, J. ‘H. BROCK in the amount of

App. 60

$35,580 “as allowance of compensation for the interim.

period commencing May 24, 1966 and concluding June 30,

1968, for the said services so rendered during said period

in these proceedings. — eee

. -Q That IRVING M. WOLFF, as attorney for the

- ‘Trustee J. H: BROCK, be and he is hereby awarded interim

compensation in the amount of $141,500 for legal services

- yendered by said IRVING M. WOLFF in accordance with |

attorney for the said Trustee, and that he has received as

a partial allowance of said legal services the sum of $72,-

500.00, and that therefore there is presently further in-

terim allowance due and owing to the said attorney for

the Trustee, IRVING M. WOLFF, in the amount of $69,000

as allowance of compensation for the interim period com-

mencing May 24, 1966 and concluding June 30, 1968, for

the said services so rendered during said period in these

proceedings. . |

3. Nothing herein contained shall modify, alter, or

amend this Court’s Order of May 3, 1968 entitled “ORDER

APPORTIONING ADMINISTRATIVE COSTS AND

TAXING THE SAME”, apportioning administrative

claims amongst the consolidated estates and all allowances ~

made for services rendered by the Trustee and the attor-

ney. for the Trustee; however, the inferim fees herein

awarded are taxed ag@et and are to be borne by the

Wingreen estate solely.

4. The foregoing fees awarded to the Trustee and

to his attorney in these consolidated proceedings are on

an interim basis and such awards will be taken into con-

sideration at the time of the final award of fees and com-

pensation for the Trustee and his attorney in these con-

solidated proceedings.

App. 61 —

5. That the said J. H. BROCK, Trustee in these con- .

solidated proceedings, prior to his payment and discharge

of said awards, shall satisfy himself that all parties

awarded compensation and allowance and reimbursement.

of costs have filed their respective affidavits as required

by Section 249 of the Bankruptcy Act [11 U.S.C.A. § 649].

6. That the said Trustee, within twenty (20) days

- from the entry of this Order, shall mail_a copy hereof to

all creditors and stockholders of the said foregoing and

enumerated Debtors in tHese consolidated proceedings as

the same are reflected by the records of the said-respective

Debtors now in the possession of the said Trustee.

7. That all of the allowances for compensation and

fees are for services rendered during the period set forth

in the respective applications and hereinbefore provided |.

for in this Order in conjunction with the administration of

the instant Debtor estates. in these consolidated. proceed-

ings, and that all of said compensation, allowances, fees

and reimbursements for expenditures are reasonable and

that the said awards are hereby allowed in payment on an

interim basis for such services rendered, and the said Trus-

tee, J. H. BROCK, in these consolidated proceedings is

hereby authorized to make payment in ‘the amount of

_ $35,580 to the said Trustee, J. H. BROCK and $69,000 to

' Irving M. Wort as attorney for the rremes, as herein-

above provided.

DONE and ORDERED, at Miami, Florida, this 6 day

of August, 1968.

/s/ W.O. MEHRTENS

~ UNITED STATES DISTRICT JUDGE

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App. 63 f

‘APPENDIX |

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1967 °

Os No. 25,303

D.C. Docket Nos. BK 66-28, 66-29 and 66-30 Wm

(Consolidated)

Sf |

MASSAGHUSETTS MUTUAL LIFE INSURANCE

ws COMPANY and COLLEGE INN, INC.,

Appellants,

versus bs

J. H.. BROCK, as Trustee of THE WINGREEN

- | COMPANY, ET AL., |

Appellees.

Appeal from the United States District Court for the

Southern District of Florida.

Before THORNBERRY and SIMPSON, Circuit Judges

and slabs District Judge.

App. 64

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Florida, and was argued by counsel ;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the order ap-

pealed from in this cause be, and the same is hereby, re-

. versed, and that this cause be and the same is hereby re-

-manded to the Said District Court with directions, in

accordance with the opinion of this Court;

It is further ordered and adjudged that the appellees,

J. H. Brock as Trustee of The Wingreen Company, and

others, be cdndemned, in solido, to pay costs of this cause

‘<n this Court for which execution may be issued out ‘of the

said District Court.

: | December 5, 1968.

Issued as ‘Mandate: Jan. 31, 1969. .

A true copy ©

Edward W. Wadsworth,

Clerk U. S. Court of Appeals, Fifth Circuit.

By | ‘inde are

Deputy

Jan. 31, 1969

New Orleans, Louisiana.

App. 65

APPENDIX 2° | a

Bee's ae |

UNITED STATES COURT OF APPEALS 'f

FOR THE FIFTH CIRCUIT

No. 26,479

D.C. Docket No. BK 66-28-WM

In the Matter of: .

THE WINGREEN COMPANY |

MASSACHUSETTS MUTUAL LIFE ¥

INSURANCE COMPANY, ._ Appellant, | &

versus 7 .

J. H. BROCK, Trustee ~ Appellee.

No. 26,711 ©

In the Matter of: |

THE WINGREEN COMPANY

MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY, Appellant,

: vérsus | t

~ J. H. BROCK, Trustee _ Appellee.

Appeal from the United States District Court for the

Southern District of Florida. — } t

Before GEWIN, BELL and DYER, Circuit eee 7

i tbe La ETS Breed

App. 66

JUDGMENT

This cause came on to be heard on the transcript of

the records from the United States District Court for the

Southern Distfict of Florida, and was argued by counsel ;

ON CONSIDERATION WHEREOF, It’ is now 7 here.

ordered and adjudged by this Court that the orders ap-

pealed from in this cause be, and the same are hereby re-—

versed, and that this cause be, and the same is hereby re-

manded to the said District Court with directions, in

accordance with the opinion of this Court; |

It is further ordered and adjudged that. the appellee,

J, H..Brock, Trustee, be condemned to pay the costs of this

cause in this Court for which execution may be issued out

of the said District Court.

December 5, 1968.

Issued as Mandate: Jan. 31, 1969."

A true copy .

Edward W. Wadsworth,

Clerk, U.S. Court of Appeals, Fifth Circuit.

By.

Deputy ‘

Jan. 31, 1969

New Orleans, Louisiana. -

? : ere ihe BNE Saw rn ore NG ARR A RY a LE te RES

FaseN Ma ay Ste Sy irre wri eT ue

App. 67 =,

APPENDIX

IN THE UNITED STATES COURT OF APPEALS |

-FOR THE FIFTH CIRCUIT

No. 25,303

In the Matter of: '

THE WINGREEN COMPANY |

MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY,

Appellant,

* versus ;

J. H. BROCK, Trustee

Appeals from the United States District Court for the

i Southern District of Florida.

(January 6, 1969)

ON PETITION FOR HEARING

Before THORNBERRY and SIMPSON, Circuit Judges,

and SUTTLE, District Judge

PER CURIAM:

item ened eiaaia initiate aaetail b

yi Lee Wt one >

_ App. 68

IT IS ORDERED that the petition of appellee Brock

in the above entitled and numbered cause be and the same

is hereby DENIED.

U. S. Court of Appeals

FILED

January 6, 1969

Edward W. Wadsworth,

Clerk

App. 69

APPENDIX

IN THE UNITED STATES COURT OF’ APPEALS

' FOR THE FIFTH CIRCUIT

No. 26,479

In the Matter of:

THE WINGREEN COMPANY

MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY,,. .

ava at Appellant,

versus

J. H. BROCK, Trustee,

‘ Appellee.

No. 26,711 ¢

_In the Matter of:

THE WINGREEN COMPANY

MASSACHUSETTS MUTUAL LIFE

Appellant; |

versus

"J. H. BROCK, Trustee,

Appellee.

Appeals from the United States District Court for the

Southern District of Florida

(January 45, 1969)

ON PETITION FOR REHEARING

eee

‘

j RLOGELEDDOYL OIE LIT LPO IIE OE

lentes otitis

ig OS ES Sy ne a OT eS TT NL Se Le: LAPS <-

AE EDAD ARSE “ROE.

App. 70

|. Before GWEN, BELL and DYER, Circuit ieee

PER CURIAM:

[PIS ORDERED that the petition of appellee Brock

for rehearing in the above entitled and numbered causes

/ be and the same is hereby DENIED.

ania Soe »

stenived nunc pro tunc as.of sesaniaid 6, 1969, this 15th

day of J anuary, 1969. |

a RK aS eee ate anal ais ny an CAE elon ROE

: "i

ec ee el Lee ©

_App. 71

* "ss APPENDIX

teal . . R ’

- \

IN THE UNITED STATES COURT OF APPEALS -

FOR THE FIFTH CIRCUIT

Case No. 25,303

No. 26,479

No. 26,711

MASSACHUSETTS. MUTUAL LIFE

. INSURANCE COMPANY,

) | Appellant,

vs.

-_ H. BROCK as Trustee of

THE WINGREEN COMPANY, et al.

«| vo } Appellee.

MOTION TO TAX COSTS

The Appellant, MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY, by and through its undersigned

attorneys, moves this Honorable Court, pursuant to FRAP

| 39, to tax costs against the Appellee, J. H. BROCK, as

rr Trustee of The Wingreen Company, and in muppert there-

of shows unto the Court as follows: ,

1. Qn December 5, 1968 this Honorable Court entered

its opinion reversing the order of the United States Dis-

trict Court for the Southern District of Florida dated Feb-

App. 72

ruary 19, 1968. and ordered the reduction of ‘the fees

awarded to the Trustee to $25.00 an hour and the fees.

awarded to the attorney for the ‘krustee to $50.00 an hour.

Thereafter the Appellee filed a Petition for Rehearing and

on January 6, 1969 this Honorable Court denied the Peti-

‘tion for Rehearing.

2. Subsequent fee appeals were taken in Case No. |

26,479 and No. 26,711 and on December 5, 1968 this Honor-

able Court entered its Order directing the District Court

to reconsider the request for fees in accordance with the

opinion in Case No. 25,308, and stated:

“The facts and circumstances of these reorgani-

zation proceedings will not warrant the fees in

excess of $25.00 per hour for the trustee and

$50.00 per. hour for counsel for this period.”

. 3. Thereafter, this Court entered its opinion on Jan-

uary 15, 1969 nunc pro tunc as of January 6, 1969 denying

the petition of the Appellee Brock for rehearing in Case |

No. 26,479 and Case No. 26,711. After receiving a copy of

the notice that the Petition was denied on January 16,

1969, the Appellant requested the court reporter who had

_ printed the record on appeal and the Review Printing Com-

pany, to send him copies of their itemised statement of

their costs for their services showing the amount paid per

page so that the Appellant could proceed to tax costs in

accordance with the opinion of this Court. Because of the

work load of both George E. Ahern, and the Review Print-

ing Company there was a delay in-receiving a return of

the. requested information. The Appellant has now re-

ceived this information regarding the costs of the briefs

and the record, which is required by Rule 39 which be-

- eame effective on July 1, 1968, and which sets forth the

uniform procedure in the various Circuits for taxing costs.

eC.

| re NES QL RATS Me Oo oaapar et ee ee

Apn. 73

4, While the Appellant. was in the process of ob-

taining the costs information to comply. with Rule 39, it

received a letter of transmittal dated January 31, 1969 =

from the Clerk of this Honorable Court directed to the

Clefk of the United States District Court enclosing a certi-

fied copy of the judgment of.this court, issued as and for

the mandate, together with a copy of the opinion. The let-

" _ ter-proceeded to state that incorporated on the judgment

is a detailed statement of the costs in this Court, as fol-

lows: “Docketing cause, etc., . . . $25.00 recoverable by ap-

. pellants from appellees.” ae

5. Since the parties were the same in-all three of

these fee appeals, involving the same Chapter 10 Reorgan-

ization case, Appellant is Setting forth all of the costs in-

volved in the three appeals in this one Petition.

The costs involved in Case No. 25,303 are as follows:

A. Invoice No. 034 dated May 1, 1968

from George E. Ahern official court

reporter, U.S. District Court, Miami,

Florida 33101 addressed to under-

signed counsel for Appellant for

printing 21 copies of Four Volumes of

‘Joint Appendix, and one Supple-

_ , per page (no charge for binding, mail-

ing & photographing), for a total

charge of Bere oe aes $2,187.50

which was paid :

| App. 74

B. Invoice No. D-715 dated December 11,

1967 from Review Printing Company :

P.O. Box 589, Miami, Florida 33101 ; 2

for printing 35 copies of Appellant’s an

Brief at a cost of approximately $6.60

per page, including covers and bind- :

ing for a total charge of... ‘ 115.36

C._ Invoice No. 934 dated February 1, 1968

* of the Review Printing Company, for

printing 35 copies of Appellant’s 9-

page Reply Brief to Motion to Dis-

miss for lack of Jurisdiction [red

cover] at a charge of $6.07 per page

including covers and binding for a ,

Cota) Of ane nnnnnnnnnetennenenenpmrentermennenmnnnennn 43.78

D. Invoice No. 1462 dated May 15, 1968

; of the Review Printing Company-for

_ printing 35 copies of a 38-page Brief

of the Appellant on the Merits and

Appendix with Exhibits at a charge

of $4.50 per page... 171.00

printed covers .......... CRT S < «6.50

binding charges ........!-------8- 5.50

$183.00

_ eee miners aR 7.32

ee Ne as is 190.32

The Costs involved in Cases No. 26,479 and 26,711 are

as follows:

A. Invoice No. 1976 dated September 4,

1968 of the Review Printing Company

for 35 copies of a 34-page brief of

Appellant at $7.50 per page for $255.00

nn ey eet a EL

[es meee

Ap..76 \™

plus 85 copies of 19-page

‘printed appendix with exhib- ~

-its at $12.50 per pg. 237.50

_plus charges for special print-

ing of Financial statements in °

the exhibits, the binding and

, ae .. 127.80

Cee . $620.30

FO ertrrecciimtgsoen hecceghek 24.81 646.11

B. Review Printing Company for’ 35

- copies of an 18-page Reply Brief of.

Appellant at $7.50 per pg.,......... 185.00

plus $6.50 for printed covers;

plus $5.66 tax—total....... Sie: Joie 147.16 |

TOTAL COSTS ON APPEAL NO. 25,308........... $2,421.60

TOTAL COSTS ON APPEALS NOS.-26,479 &

CR oe ee $ 792.27

TOTAL OF ALL CONSOLIDATED CASES... $8,218.87

6. Rule 39D FRAP provides:

«* * * if the mandate has been issued before the

final determination of costs, the statement or

any amendment thereof, may be added to the

- mandate upon request to the Clerk of the Court

of Appeal.”

The Appellant has worked diligently to obtain the infor-

mation provided in this Motion so that the Court can tax .

costs. The.Appellant is filing this Motion for the Court to

tax costs because the mandate was issued before the costs

were fanally determined in this case.

oom.

a e

ae “ ‘a a

App. 76 e

Wherefore, the Appellant moves this Honorable Court

to tax the costs in the total amount of $3,213.87 against the —

Appellee, J. H. Brock, Trustee in the above three com-

panion appeals, pursuant to the provisions of Rule 39(d)

FRAP. aes Bh Shier

Dated at Miami, Florida this 19 day of February, 1969.

DIXON, BRADFORD, WILLIAMS, |

McKAY & KIMBRELL, P.A.

’ 9th Fir. Dade Federal Savings Bldg.,

101 East Flagler Street

Miami, Florida 33131

Attorneys for Appellant

By: CARL K. HOFFMANN,

Of Counsel

STATE OF FLORIDA

COUNTY OF DADE

Before me, the undersigned authority, on this date

personally appeared CARL K. HOFFMAN who being

duly sworn deposes aru says that the statements contained

in the foregoing Motion to Tax Costs are true and correct.

ie CARL K. HOFFMANN

Sworn to & Subscribed before’ me this 19th day of

Feb. 1969. es Sieh 3

Catherine G. Ashley,

NOTARY PUBLIK, State of Florida at Large.

My Commission Expires April 25, 1969.

Bonded through Fred W. Diestelhorst.

Werte acs. Bi Adis hose eSigtiiteena Gol

App. 77

CERTIFICATE OF SERVICE

’WE HEREBY CERTIFY that a true and correct copy

of the foregoing Motion to Tax Costs was mailed to the

' offices of IRVING M. WOLFF, attorney for the Appellee,

916 Biscayne Building, Miami, Florida 33130 this 19 day

of February, 1969. .

DIXON, BRADFORD, WILLIAMS -

McKAY & KIMBRELL, P.A.

Attorneys. for Appellant —

By: CARL K. HOFFMANN,

Of Counsel

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.