Four Seas Center, Ltd., In re, No. 83-2382
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before ALARCON and CANBY, Circuit Judges, and STEPHENS; STEPHENS |
| Citation | 754 F.2d 1416 |
| Parties | In re FOUR SEAS CENTER, LTD., a limited partnership, Debtor. FOUR SEAS CENTER, LTD., Debtor-Appellee, v. DAVRES, INC., Secured Creditor-Appellant. |
| Docket Number | No. 83-2382 |
| Decision Date | 04 March 1985 |
Page 1416
FOUR SEAS CENTER, LTD., Debtor-Appellee,
v.
DAVRES, INC., Secured Creditor-Appellant.
Ninth Circuit.
Decided March 4, 1985.
Vernon D. Stokes, Stokes & Welch, San Francisco, Cal., for debtor-appellee.
Alan D. Croll, Michael J. O'Connor, Wyman, Bautzer, Rothman, Kuchel & Silbert, Los Angeles, Cal., for secured creditor-appellant.
Appeal from the United States District Court for the Northern District of California.
Before ALARCON and CANBY, Circuit Judges, and STEPHENS, District Judge *.
Page 1417
STEPHENS, District Judge:
Four Seas Center, Ltd. (the debtor) filed a Chapter 11 petition in bankruptcy on November 17, 1982. The debtor's only significant asset was a five-story commercial building in Burlingame, California. At the time of filing bankruptcy, the building was subject to several deeds of trust, including a first deed of trust in favor of New York Life Insurance Company for approximately $2.4 million, and a second deed of trust in favor of Union Bank for $247,000. The third deed of trust was in favor of Davre's, Inc., appellant herein.
Davre's had entered into a lease/management agreement with Four Seas Center, Inc. (FSC, Inc.), an entity related to the debtor, in December, 1980, which provided that Davre's would lease and operate a restaurant on the fifth floor of the Burlingame commercial building to be furnished and equipped by FSC, Inc. The debtor guaranteed all obligations of FSC, Inc. under the agreement; the third deed of trust secured that guarantee as well as the repayment of a $200,000 promissory note to Davre's.
In October, 1981, the debtor and FSC, Inc. filed suit against Davre's in the District Court for the Northern District of California for fraud and breach of contract. Davre's counterclaimed for in excess of $2,000,000, and sought judicial foreclosure on its third deed of trust. The case is now pending as Case No. 81-4404 WWS.
After bankruptcy was filed, the debtor's trial counsel was permitted to withdraw from the case, and debtor's bankruptcy counsel appeared temporarily in the litigation. On July 29, 1983, the bankruptcy court approved the employment of special counsel to represent the debtor in the case against Davre's. The court approved a compensation agreement between the debtor and special counsel whereby the source of compensation would be the rental income from the Burlingame commercial property or, if the property were thereafter sold, the sale proceeds. The bankruptcy court imposed a lien on the property or proceeds from its future sale to protect special counsel's right to compensation. The lien was placed in a position senior to all other liens on the property except the first and second deeds of trust, in favor of New York Life and Union Bank, respectively, and Davre's third deed of trust to the extent of $200,000, plus interest.
The agreement for compensation provided for a $120,000 retainer payable $20,000 immediately upon adoption of the agreement, and $10,000 each month for the following ten months. The retainer was to be kept "on account of fees incurred and billed" by special counsel at the hourly rate of $150. If Davre's recovered a judgment in excess of $407,000, the agreement provided that counsel would be paid no more than $120,000. If Davre's recovered a judgment of less than $407,000, counsel's compensation would not exceed $200,000. If judgment was in the debtor's favor, trial counsel would receive the larger of $120,000 or a third of the judgment minus compensation already paid. The agreement also specifically provided that special counsel understood that final payment of compensation under the agreement was subject to review and approval by the bankruptcy court.
On September 14, 1983, the sale of the Burlingame property was approved by order of the bankruptcy court. The sale price was $5,225,000. The first and second deeds of trust on the property to New York Life and Union Bank were discharged and the claims of the other trust deed holders were transferred to the remaining proceeds of sale, which were deposited in an interest-bearing cash collateral account.
On appeal to the district court, Davre's challenged the July 29, 1983, order allowing compensation to special counsel, arguing
Page 1418
that the bankruptcy court erred by allowing payment from the cash collateral...To continue reading
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Sumy v. Schlossberg, No. 85-1231
...Sec. 1291 are often helpful but cannot be imported wholesale to bankruptcy jurisprudence. E.g., Four Seas Center, Ltd. v. Davres, Inc., 754 F.2d 1416, 1418 (9 Cir.1985); Sambo's Restaurants, Inc. v. Wheeler, 754 F.2d 811, 813 (9 Cir.1985). Most adversary proceedings and contested matters in......
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Gugliuzza v. Fed. Trade Comm'n (In re Gugliuzza), No. 15-55510
...(In re Bonham) , 229 F.3d 750, 761 (9th Cir. 2000) ); see also Four Seas Ctr., Ltd. v. Davres, Inc. (In re Four Seas Ctr., Ltd.) , 754 F.2d 1416, 1418 (9th Cir. 1985) (citing "an order entirely terminating an adversary proceeding" as an example of an immediately appealable order).9 Consiste......
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Moody, Matter of, No. 87-2205
...re Regency Woods Apartments), 686 F.2d 899, 902-03 (11th Cir.1982); see also Four Seas Center v. Davres, Inc. (In re Four Seas Center), 754 F.2d 1416, 1419 (9th Cir.1985) (applying Cohen and Forgay to bankruptcy appeal under predecessor to section 158); cf. Firestone Tire & Rubber Co. v. Go......
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Guglkjzza v. Fed. Trade Comm'n (In re Guglkjzza), No. 15-55510
...Compton (In re Bonham), 229 F.3d 750, 761 (9th Cir. 2000)); see also Four Seas Ctr., Ltd. v. Davres, Inc. (In re Four Seas Ctr., Ltd.), 754 F.2d 1416, 1418 (9th Cir. 1985) (citing "an order entirely terminating an adversary proceeding" as an example of an immediately appealable order).9 Con......
-
Gugliuzza v. Fed. Trade Comm'n (In re Gugliuzza), No. 15-55510
...(In re Bonham) , 229 F.3d 750, 761 (9th Cir. 2000) ); see also Four Seas Ctr., Ltd. v. Davres, Inc. (In re Four Seas Ctr., Ltd.) , 754 F.2d 1416, 1418 (9th Cir. 1985) (citing "an order entirely terminating an adversary proceeding" as an example of an immediately appealable order).9 Consiste......
-
Sumy v. Schlossberg, No. 85-1231
...Sec. 1291 are often helpful but cannot be imported wholesale to bankruptcy jurisprudence. E.g., Four Seas Center, Ltd. v. Davres, Inc., 754 F.2d 1416, 1418 (9 Cir.1985); Sambo's Restaurants, Inc. v. Wheeler, 754 F.2d 811, 813 (9 Cir.1985). Most adversary proceedings and contested matters in......
-
Moody, Matter of, No. 87-2205
...re Regency Woods Apartments), 686 F.2d 899, 902-03 (11th Cir.1982); see also Four Seas Center v. Davres, Inc. (In re Four Seas Center), 754 F.2d 1416, 1419 (9th Cir.1985) (applying Cohen and Forgay to bankruptcy appeal under predecessor to section 158); cf. Firestone Tire & Rubber Co. v. Go......
-
Guglkjzza v. Fed. Trade Comm'n (In re Guglkjzza), No. 15-55510
...Compton (In re Bonham), 229 F.3d 750, 761 (9th Cir. 2000)); see also Four Seas Ctr., Ltd. v. Davres, Inc. (In re Four Seas Ctr., Ltd.), 754 F.2d 1416, 1418 (9th Cir. 1985) (citing "an order entirely terminating an adversary proceeding" as an example of an immediately appealable order).9 Con......