Spillane, In re
| Decision Date | 11 September 1989 |
| Docket Number | No. 89-1102,89-1102 |
| Parties | Bankr. L. Rep. P 73,166 In re Sherri SPILLANE, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Martin Malinou, Providence, R.I., on brief, for appellant.
Andrew S. Richardson, Wakefield, R.I., on brief, for John Boyajian, trustee, appellee.
Before TORRUELLA and SELYA, Circuit Judges, and COFFIN, Senior Circuit Judge.
Sherri Spillane, debtor in a Chapter 13 bankruptcy proceeding, appeals from an order of the District Court for the District of Rhode Island awarding attorney's fees pursuant to 11 U.S.C. Secs. 330(a)(1) and 331. We hold that the district court did not abuse its discretion in setting the fee award and, therefore, affirm.
Appellant filed a bankruptcy petition in Rhode Island in February 1985. In November 1986, the bankruptcy judge recommended to the district court that venue be transferred to California. Appellant objected to the transfer, but the district court nevertheless ordered the case sent to the United States District Court for the Central District of California. Appellant then appealed to this court. We found that the issues were interlocutory and dismissed the appeal for lack of jurisdiction. The trustee was represented before both the district court and this court by counsel approved by the court.
The trustee made two interim applications to the district court for attorney's fees on a total of 30.1 hours expended by counsel in representing the trustee before both courts. The district court examined the records submitted and heard argument concerning the reasonableness of the fee request. The court then awarded $2,709, finding that all 30.1 hours were necessary and reasonable, but reducing the requested amount per hour from $125 to $90. The matter now comes before us on appeal of this award.
Before reaching the merits, we must address two issues of jurisdiction. First, although not raised by the parties, we must decide whether this award of attorney's fees is final. We then must review whether the district court had jurisdiction to decide this issue after ordering the case transferred to another district. We address each of these concerns in turn.
It is generally held that an interim award of attorney's fees under 11 U.S.C. Secs. 330(a)(1) and 331 is not final. 1 E.g., In re Stable Mews Associates, 778 F.2d 121, 123, n. 3 (2d Cir.1985) (); In re Four Seas Center, Ltd., 754 F.2d 1416 (9th Cir.1985) (); In re Callister, 673 F.2d 305 (10th Cir.1982) (). At least two courts have held, however, that a fee award may be considered final where the "order conclusively determined the entire section 330 compensation to be paid the appellees." See In re Yermakov, 718 F.2d 1465, 1469 (9th Cir.1983); In re Dahlquist, 751 F.2d 295 (8th Cir.1985).
In Yermakov, the attorneys requesting fees had been discharged prior to the entry of the fee order. Attorney services were therefore complete and the award on appeal represented all of the services for which these attorneys were entitled to be compensated. Following the principle that "[f]inality is viewed more flexibily in the bankruptcy context than it is in other civil litigation contexts," In re American Colonial Broadcasting Corp., 758 F.2d 794, 801 (1st Cir.1985), the Ninth Circuit held that this order "conclusively determined a separable dispute in the case" and was therefore appealable. 718 F.2d at 1469 (citing In re Saco Local Development Corp., 711 F.2d 441, 444 (1st Cir.1983)). The court made this ruling despite language in the district court's order implying further fee applications might be made. 2
The instant case closely resembles Yermakov. The attorney for the trustee was appointed specifically to handle the appeal on the transfer of venue. When we dismissed the appeal for lack of jurisdiction, the attorney's authorized services were terminated. Thus, further applications will not be forthcoming, and appellee so states in both his brief and on the record to the district court. Moreover, because the case will now be transferred to California, the trustee's services are also due to end. He will make no further applications for attorney appointments. For both of these reasons, we conclude that the award of attorney's fees should be treated as final.
Appellant obliquely argues that the district court had no jurisdiction to hear the application for attorney's fees because of the earlier order transferring venue to California. The general rule has been that a district court ordering a transfer does not lose jurisdiction until the order has been executed by forwarding the record. See Lou v. Belzberg, 834 F.2d 730 (9th Cir.1987) (), cert. denied, --- U.S. ----, 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988); In re Sosa, 712 F.2d 1479 (D.C.Cir.1983) (); In re Nine Mile Limited, 673 F.2d 242 (8th Cir.1982) (); In re Southwestern Mobile Homes, Inc., 317 F.2d 65 (5th Cir.1963) (); A.C. Nielsen Co. v. Hoffman, 270 F.2d 693 (7th Cir.1959) (); Drabik v. Murphy, 246 F.2d 408 (2d Cir.1957) (). See also 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d Sec. 3846 n. 4 (1986 & Supp.1989). But see Robbins v. Pocket Beverage Co., Inc., 779 F.2d 351 (7th Cir.1985) (); Tharp v. Transworld Drilling Co., 367 F.Supp. 521 (W.D.Okl.1973) (). 4
Although this circuit has never dealt with the issue head on, we indicated adherence to the general rule in In re Josephson, 218 F.2d 174 (1st Cir.1954). We noted in that case that a petition for writ of mandamus was not mooted by the transfer of the case because the records were still at the clerk's office of the transferor court. Id. at 177.
This case differs from the precedent because none of the cases cited above have addressed the question of the district court's jurisdiction to hear issues separate from the order of transfer itself. All have addressed appellate court jurisdiction to review the order to transfer or district court jurisdiction to reconsider its own order. The question before this court is therefore somewhat novel.
We see no reason, however, why the general rule should not be applicable here. The records of this case remain in the District Court for the District of Rhode Island, despite the fact that the order to transfer was issued on July 23, 1987. 5 It appears from the record that no proceedings have begun in the Central District of California and the district court did not indicate that the transfer was to take effect immediately. In addition, as a practical matter, the district court in Rhode Island is in a better position to determine the reasonableness of fees for work performed in its own district. Finally, the attorney's service in the case has ended and the part of the dispute on which he worked is closed. Under these circumstances, there is no factual reason for departing from the general rule.
We decline, however, to adopt a rule that makes transfer of the record the universally controlling factor. See Robbins, 779 F.2d 351. We leave open whether circumstances such as action by the transferee court or attempts by parties to get such action might deprive the transferring court of jurisdiction in another case. We hold only that the district court had jurisdiction to decide this case and that we, therefore, have jurisdiction to review the decision as the circuit court having supervisory responsibility for the District of Rhode Island.
A district court traditionally has broad discretion in determining fee awards. Our review of the district court's decision is limited to abuse of discretion or error of law. Boston & Maine v. Sheehan, Phinney, Bass & Green, 778 F.2d 890 (1st Cir.1985); In re Casco Bay Lines, Inc., 25 B.R. 747 (Bankr. 1st Cir.1982). We find no abuse of discretion and uphold the fee award.
Debtor first argues that the district court abused its discretion by refusing to allow cross examination of the trustee's attorney during the fee hearing. Spillane wished to prove that the attorney was inexperienced in bankruptcy matters and that some 10 hours of the attorney's time were "unnecessary" because the issues raised were frivolous.
Appellant states that her right to cross examination is absolute and its denial a per se abuse of discretion. We disagree. Applicable bankruptcy rules clearly require a hearing before the award of attorney's fees. 11 U.S.C. Sec. 330(a); In re Foster Iron Works, 3 B.R. 715 (S.D.Tex.1980). However, the statute says little about the content of that hearing. In re Ralph Marcantoni & Sons, Inc., 62 B.R. 245 (D.Md.1986). Some guidance is found in 11 U.S.C. Sec. 102, which states that " 'after notice and a hearing,' or similar phrase ... means after such notice as is appropriate in the...
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