Childress v. Middleton Arms, Ltd. Partnership (In re Middleton Arms, Ltd. Partnership)

8 Citing cases

  1. Childress v. Middleton Arms, L.P.

    934 F.2d 723 (6th Cir. 1991)   Cited 130 times
    In Middleton Arms, the district court reversed a bankruptcy court's approval of an appointment under § 327(a) because the real estate broker hired by the debtor-in-possession was not a disinterested party and the bankruptcy court's equitable powers could not be used to evade the plain and disqualifying language of the very same statute. After Middleton Arms was appealed to this court, the district court, in the case at bar, sua sponte stayed the Trustee's appeal pending our decision.

    The Trustee appealed to the District Court, which reversed the Bankruptcy Court's decision, holding that the Bankruptcy Court's equity powers could not be used to disregard language within the Code that is unambiguous. 119 B.R. 131. The debtors now appeal the District Court's order. II.

  2. In re Federated Dept. Stores, Inc.

    44 F.3d 1310 (6th Cir. 1995)   Cited 108 times
    Holding that bankruptcy courts are not so authorized

    In fact, for reasons that are not entirely clear, the district court did not rule on the Trustee's appeal for almost three years until after the reorganization was completed. One reason for the delay was that during the period the district court was considering the Trustee's appeal, another district court had decided a similar issue in the case of In re Middleton Arms, Ltd. Partnership, 119 B.R. 131 (M.D.Tenn. 1990). In Middleton Arms, the district court reversed a bankruptcy court's approval of an appointment under § 327(a) because the real estate broker hired by the debtor-in-possession was not a disinterested party and the bankruptcy court's equitable powers could not be used to evade the plain and disqualifying language of the very same statute. After Middleton Arms was appealed to this court, the district court, in the case at bar, sua sponte stayed the Trustee's appeal pending our decision.

  3. Vergos v. Timber Creek, Inc.

    200 B.R. 624 (W.D. Tenn. 1996)   Cited 4 times

    The issue of employment of counsel is an important issue completely distinct from the underlying merits of the case. See In re Middleton Arms, L.P., 119 B.R. 131, 132-33 (M.D.Tenn.1990) (viewing the "employment issue as separable from the overall Chapter 11 proceeding"). Furthermore, once the Bankruptcy Court granted the debtor's request, the issue of Glankler Brown's employment was conclusively determined.

  4. In re Fairvue Club Properties LLC

    Case No. 09-13807 (Bankr. M.D. Tenn. Feb. 12, 2010)

    The Court may not utilize its equitable powers to disregard facts that evidence disqualification of counsel on the basis of expediency or necessity for the reorganization of the estate. In re Middleton Arms, Ltd. Partnership, 119 B.R. 131, 134 (D. M.D.Tenn. 1990), aff'd 934 F.2d 723 (6th Cir. 1991); In re M-H Group, Inc., 139 B.R. 836, 840 (Bankr. N.D.Ohio 1991). In appropriate circumstances, however, where disqualifying factors are identified, the court may impose "curative" measures that require counsel to take some action that allows the court to determine that counsel is disinterested and does not have or represent any adverse interest to the estate.

  5. In re RKC Development Corp.

    205 B.R. 869 (Bankr. S.D. Ohio 1997)   Cited 3 times
    Concluding that appointment under § 327 should be refused where retention is at variance with ethical and disciplinary rules

    The Court may not utilize its equitable powers to disregard facts that evidence disqualification of counsel on the basis of expediency or necessity for the reorganization of the estate. In re Middleton Arms, Ltd. Partnership, 119 B.R. 131, 134 (D.M.D.Tenn.1990),aff'd 934 F.2d 723 (6th Cir.1991); In re Federated Department Stores, Inc., 44 F.3d 1310, 1319 (6th Cir.1995).

  6. In re Omegas Group, Inc.

    195 B.R. 875 (Bankr. W.D. Ky. 1996)   Cited 5 times

    Accordingly, this Court entered an Order dated August 16, 1991, appointing Schilling as counsel for Wilson. The UST did not at any time move the Court to reconsider that Order, nor was any effort made to appeal that Order. In re Federated Dep't. Stores, Inc., 44 F.3d 1310, 1314 (6th Cir. 1995) (adjudicated a direct appeal from an Order appointing a professional); In re Middleton Arms Ltd. Partnership, 119 B.R. 131, 132-134 (M.D.Tenn. 1990) (also adjudicating a direct appeal from an Order appointing a professional), aff'd, 934 F.2d 723 (6th Cir. 1991). Moreover, the UST did not object to or even file a comment with regard to the Applications for Attorney Fees filed by Schilling on December 1, 1992, June 9, 1993, and April 13, 1994, each of which expressly stated that Schilling's representation was on a contingency fee basis with regard to the Trustee's Counterclaim against SSA. Accordingly, the UST is now, nearly four and one-half years after Schilling's employment, procedurally barred from arguing that the appointment of Schilling as counsel for Wilson was improper under § 327.

  7. In re Decor Corp.

    171 B.R. 277 (Bankr. S.D. Ohio 1994)   Cited 3 times

    The Court may not utilize its equitable powers to disregard facts that evidence disqualification of counsel on the basis of expediency or necessity for the reorganization of the estate. In re Middleton Arms, Ltd. Partnership, 119 B.R. 131, 134 (D.M.D.Tenn. 1990), aff'd 934 F.2d 723 (6th Cir. 1991); In re M-H Group, Inc., 139 B.R. 836, 840 (Bankr.N.D.Ohio 1991). In appropriate circumstances, however, where disqualifying factors are identified, the court may impose "curative" measures that require counsel to take some action that allows the court to determine that counsel is disinterested and does not have or represent any adverse interest to the estate.

  8. In re TMA Associates, Ltd.

    129 B.R. 643 (Bankr. D. Colo. 1991)   Cited 13 times

    In fact, the orders were in direct conflict with Section 327. This Court declines to follow PHM. Accord, In re Middleton Arms, Limited Partnership, 119 B.R. 131, 135 (M.D.Tenn. 1990) aff'd, 934 F.2d 723 (6th Cir. 1991) (rejects PHM in favor of upholding "the policy behind the specific language in § 327(a)."). See, generally, Amdura, supra at 866 ("what may be acceptable in a commercial setting, where all of the entities are solvent and creditors are being paid, is not acceptable when those entities are insolvent and there are concerns about intercompany transfers and the preference of one entity and its creditors at, perhaps, the expense of another.").