Suarez

Filing 10

MEMORANDUM OPINION AND ORDER affirming the Bankruptcy Court's Orders Denying Motion for Reimbursment of Attorneys' Fees.(Signed by Judge Sim Lake) Parties notified.(hcarr, )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTR ICT OF TEXAS HOU STON DIVISION

IN RE : IFS FINANCIAL CORPORATION ,
Deb to r . R AMON GARCIA SUAREZ,
App e llant ,

, 5 5 5 . 5
5 5 5 $ 5 5 5 5 5

CASE NO . 02-39553-H1-7

C IV IL ACTION NO . H-10-0047 A DVE RSAR Y NO . 04-3745

W . STEVE SMITH, TRUSTEE 0F THE ESTATE OF IFS FINANCIAL COR PORAT ION , et a1 .,

( onsolidated with H-10-0052) C

App e llees .

WOODBERRY #2,
App e llant ,

5 5 f 5 5

C IV IL ACTION NO . H-10-0052 A DVER SAR Y NO . 04-3768

W . STEVE SM ITH , TRUSTEE OF THE ESTATE OF IFS FINANCIAL COR PO RAT ION , et al .r

5
A pp el lees . M EM ORA NDUM OPINION AND ORDER Ap pe llan ts r Ramon Garcia Suarez and Woodberry
Suarez

ap p eal the

Ban krup t cy Court's December
Doc. 10

2009, Orders Denying Motions

Reimbursement of Attorneys' Feesx

Pending before the court is the

Appellants' Brief ( ocket Entry No. 7), Brief of Appellee, W. Steve D
Smith, Trustee ( ocket Entry D
and Appellants' Reply Brief

lDocket Entry No . 260 in Adversary No . 04-3745 and Docket En try No . 189 in Adversary No . 04-3768 .

Dockets.Justia.com

( ocket Entry No. 9). D

the reasons explained below, the

B an krup tcy Court's orders will be affirmed .

1.

Factual Background

On October 8, 2004, the Trustee filed two separate adversary p ro ceed in g s against the appellants, Suarez and Woodberry, seeking

recove ry of allegedly fraudulent transfers pursuant to 5 544 of the
B an krupt cy Code, and 55 24.005 and 24.006 of the Texas Business and
C omm erce Code . The Suarez and Woodberry adversaries were consoli-

d ated for purposes of trial, and trial began on July
Ju ly

2 008 .

2008 , the Bankruptcy Court continued the trial to allow Ja nua ry 2009. 2 00 9, trial resumed, and Two more trial days were held 2009 . June 2009, the

add ition al discovery . con tinued through January on January

and February

Ban krup t cy Court heard final argument . On September 10, 2009, the Ban krup t cy Court entered a Memorandum Opinion dismissing al1 claims
aga in st Suarez and Woodberry .z the same day, i .e .,

Sep temb e r 1O, 2009, the Bankruptcy Court entered a Judgment in both the Suarez and Woodberry adversary proceedings stating nCosts are

awarded

E efendant q and against d

Trustee .z3 z

z em oran dum Opinion , Exhibit 3 attached to Appellants' Brief, M

Docket Entry No. 7 ( ocket Entry No. 225 in Adversary No. 04-3745 D and Docket Entry No. 169 in Adversary No. 04-3768).
3 e e Judgment, Docket Entry No . 226 in Adversary No . 04-3745 S and Docket Entry No . 170 in Adversary No . 04-3768 .

On September

2009, Suarez and Woodberry filed their notice

of appeal to the district court .4

Sept emb e r

2009, Suarez

Woodberry filed their

Motions
Bank r . a hearing

Reimbursement
7054 .5 on the December motions

Attorneys' Fees/costs Under Fed.
2009, the Bankruptcy Court held for reimbursement attorneys'

fees/costs.f
m otion s

the hearing
a tto rney s' fees

Bankruptcy Court denied the
stating that longer have

jurisdiction over whether to award attorney's fees or not because
that 's up on appeal .z7 The Bankruptcy Court explained that '

I don't think that a federal judgment that awards costs
a lso awards attorney's fees unless it says so or unless y ou seek attorney's fees within 14 days after the

judgment, which you did, but that only applies in a civil
m atte r not in an adversary proceeding . In an adversary p rocee ding I think you have to say I'm awarding

attorney's fees under the judgment, which I didn't do.

( Jo me, costs does not include attorney's fees unless T you say it does or unless there is a 54 ( ) motion that's d
filed , which you can 't file in the adversary .8

4 o cke t Entry No . 229 in Adversary No . 04-3745, and Docket D En try No . 173 in Adversary No . 04-3768.
s x h ib it 1 attached to Appellants' B r ie f , Docket Entry No . 7 E ( ocket Entry No. 232 in Adversary No. 0 4-374 5 , and Docket Entry D

No. 176 in Adversary No. 04-3768).
6 e e Transcript, Appendix A attached to Brief of Appellee, S Steve Smith, Trustee ( ppellee's Brief), Do cke t Entry No . 8 . A
7Id .

8Id . at 6-8.

The Bankruptcy Court explained,

don't think the judgment

includ es attorney's fees and so any testimony about the attorney's

fees is irrelevant . I'm not awarding attorney's fees based on what

my judgment said.'g Accordingly, when '
eviden ce rela tion atto rney 's

App e llan ts proffered court ruled

fees, the

re sp on se to Appellants' attem p t recover unon-traditional' costs, i .e ., costs that are '

li sted

U .S .C .

1920,

Bankruptcy

Court asked

Appellants' counsel, ' E lhat authority do I have for awarding costs 'w
that aren't included U . . .i Section 1920?'1 SC '1 Before the

c lo se of the hearing the Bankruptcy Court told coun sel , nLet me get you to file a supplement goes into the law , because

I'm not aware

what

award
1920 .'1 '2

addition to g hose costs t

l isted in 28 U .S .C .

On December 21, 2009, the B an krup tc y Court entered an Order Deny ing Motion for Reimbursement A tt orne ys ' Fees b0th the

Suarez and the Woodberry adversary proceedingsx 3
II . Standard of Review

district court has jurisdiction bankruptcy court's final judgment
9Id . 1 jd 0g at

hear an appeal from order. See 28

ll d . at 14-15 . l l Id . at 16. 2
H Do cket Entry No . 260 in Adversary No . 04-3745 and Docket E ntry No . 189 in Adversary No . 04-3768.
-

4-

5 158 ( ). a

The Bankruptcy Court's findings of fact are reviewed
F .3d 303,

unde r the nclearly erroneous' standard . In re Perrv, '

309 ( th 5

2003). The nclearly erroneous' standard allows this '

court to reverse the Bankruptcy Court's findings of fact nonly

left with Athe definite and firm conviction that a m ista ke has been

committed .'' '

Id. ( uoting Tn re Dennis, 33O F.3d 696, q
F . d 323, 3 ( th Cir. 5

Cir . 2003)). See also In re Connola,

2005)

The Bankruptcy Court's conclusions

1aw and conclusions

on m ixe d questions of law and fact and questions concerning the app licat ion of 1aw to the facts are reviewed de novo . In re U .S .

Brass Corr w
cou rt's

F.3d 1016, 1021 ( th 5
den y attorneys '

1999).
fees

A bankruptcy
generally

decision

disc re tion ary ; therefore , the exercise of that power is generally review ed for abuse of discretion . See Matter of Terrebonne Fuel

and Lube, Inc w

F .3d 609,

1997) . However, when

a fee decision is based on C ode , the district court
d e novo .

lega l construction of the Bankruptcy reviews the underlying construction

See In re West Delta Oi1 Co ., Inc .,

( th Cir. 2005) C'( )e review a bankruptcy court's determination of 5 W
attorne ys ' fees for abuse of discretion . Specific findings of fact supp ort ing the award are reviewed for clear error, and conclusions

o f 1aw are reviewed de novo . ' /)

uIn resolving whether

request

for attorneys' fees was timely E ourtsq apply a de novo standard of c review .' ' Romaquera v . Geqenheimer,
-

F . d 893, 3

( th Cir. 5

5-

1998), clarified upon denial of rehearinq, 169 F.3d at 223 ( th 5
1999) ( iting Bellaire General Hospital v . Blue Cross Blue c

Shield of Michiqan, 97 F.3d 822,

( th Cir. 1996) ( eviewing JA 5 r
the Federal Rules

novo a district court's interpretation

Civil Procedure).
111 . Analysis

Appellants argue
dete rm ining that Fed .
attorn eys ' fees as

that

n E qhe t

Bankruptcy
7054

Court

erred by

Bankr .
costs

provide
within an adversary

recoverable

proceeding ./' /4
claim s

Asserting that ' a ls a general rule, defendants' U
fees constitute costs, damages,' '

attorneys'

Appellants contend that ' E qhen fees are sought as costsr no demand 'w
fee s within the complaint is required ./o ' App el le e argues that the Bankruptcy Court's denial of

a ttorne ys ' fees should be affirmed because appellants waived their

righ t

recover attorneys' fees

three different ways:

() i

PRE-TRIAL AND TRIAL. Neither Suarez nor Woodberry

sou ght attorneys' fees in their Answer to Complaint, the ir Amended Answer to Comp la int or at Trial - no requ es t for attorneys' fees was made under any provision,

including Fed. R . Bankr. P. 7054 ( Bankruptcy Rule n 7054'), and no evidence to support same was offered until ,
A FTE R the Court issued its Opinion . .;

( i) POST-TRIAL. Ev en in their post-Trial Motion for i Re imb u rsem en t of Attorneys' Fees/costs Under FED. R. BANKR . P . 7054 ( he nMotion for Fees'), although t '
l App e llant s ' Brief, Docket Entry No . 4
l Id . at 1O . 5

p.

mentioning Bankruptcy Rule 7054 in the title of such doc um en t , in sub stance , Suarez and Woodberry sought

relief under Federal Rule 54 ( ) which applies in civil d suits, but NOT in adversary proceedings ( ocket No. 23227 D

( ii) APPEAL. Neither Suarez nor Woodberry raised as an i
i ssu e in this Appeal whether the Bankruptcy Court erred

in not awarding them attorneys' fees. ( ocket No. 265, D Statement of the Issues). In fact, neither Suarez nor
W oodb erry even designated the Trial transcript in this App e al to evidence such entitlement to attorneys' fees . R athe r , they specifically limited their uissue' before ' th i s Court to whether nthe Bankruptcy Court erred in its d ete rm ina tion that Acosts' under Fed . R . Bankr. P.

7054 ( ) does not include attorneys' fees when a statute 5 of the United Stats E ic) or rules provide otherwise .'6 s 'l
A. A pp licab le Law
State Law

A pp el lants ' claim

attorneys' fees arises from the fact

th at the Trustee filed the adversary proceedings against them under

the Texas Uniform Fraudulent Transfer Act ( UFTA ), Tex. Bus. T
Comm . Code 24 .001 , et seq w which expressly provides

n In any p roceed ing under this chapter, the cou rt may award costs and reasonab le

attorney's fees as are equitable and just.' '
Tex . Bus . & Comm . Code 5 24 .0 13 .1 7
nTh is provision of TUFTA gives the trial court the sound discretion to award attorney's fees based on the evidence Walker v .

Anderson,

S . .3d W

( ex . App . T

Dallas 2007, no pet.).

l Ap pe llee 's Brief, Docket Entry No . 6

4.

UMotion for Reimbursement of Attorneys' Fees/costs Under Fed.
R . Bankr . P . 7054 at p . 2 % 2 .1, Exhibit 1 attached to Appellants' Brief, Docket Entry No . 7 ( ocket Entry No. 232 in Adversary D No . 04-3745, and Docket Entry No. 176 in Adversary No . 04-3768).

Federal Law

() a

Federal Rules of Civil Procedure

( ) Pleading Requirements 1
c ircu it attorney's fees are generally treated uas spe cia l damages that must be specifically pleaded under Federal

Rule of Civil Procedure 9( ).' United Industries, Inc. v. Simon g'
Ha rtlev , Ltd w

F .3d

Cir . 1996)

Un ited

Indu str ie s the Fifth Circuit explained th at

E qhile this Circuit has not specifically held that w
atto rney s ' fees are items of special damage that must be sp e cif ica ll y p le aded , we have intimated that this is so . See Crosbv v . O1d Republic Ins . Co ., 978 F .2d 210, 211

n . 1 ( th Cir. 1992) ( oting that any pleading defect 5 n
cau sed by a party's failure to plead for attorneys' fees u nde r Rule 9 was cured by advancing the claim during the

pretrial conference).

Similarly, our district courts

h ave denied attorneys' fees in the absence of appropriate p lead ing and we have affirmed on appeal . See Wilson v . W ill iam Hall Chevrolet , Inc w 87l F .supp . 279, 282-83

( . . iss . 1994), aff'd in part and rev'd in part, 77 SDM F.3d 479 ( th Cir. 1996) ( npublished per curiam) 5 u ( ffirming on all issues except award of interest). a
Id . at 764-65 .

Federal Rule of Civil Procedure 9( ) provides that ' E qf an g 'i
item of special damage is claimed,
Th e purpose of the rule is avoid unfair surprise by informing

th e parties as to the nature of the damages claimed, and to inform

th e court of the substance of the claims . Great American Indemnitv

Co . v . Brown,

F.2d 306,

1962). Accordingly,

th is circuit requests for attorney's fees must be p leade d . But the failu re to plead for attorney's fe es will not necessarily preclude
-

8-

p art y 's ability

recover attorney 's

fees

the party's See

opp one nt is on notice that attorney's fees are being sought .

Crosbv, 978 F.2d at 211 n.1 ( ailure f

plead attorney's fees as

sp ecia l damages does not bar recovery if the defect can be cured by

amendment).

The existence

exceptions

the general rule

requ ir in g special damages such as attorney's fees to be pleaded was
re cogni zed by the Fifth Circuit in United Industries : W e have noted that there may be exceptions to this gene ra l rule, such as when the issue is tried by consent or included in a pretrial order . See Crosbv, 978 F .2d at 2 11 n . 17 see also Sevbold v . Francis P . Dean , Inc w 628

F . upp . 912, 914-15 ( .D.Pa . 1986). s W

Likewise, we have

h eld that under certain circum stanc es not present here

that Rule 54 ( ) allows the district court to consider the c
fee s issue even in the absence of a specific pleading .

See Engel r . Telerromrter Corp w 732 F. d 1238,) 1241 v 2 E( th Cir. 1984)2. As a general rule, however, we find 5
n oth in g inapprop ria te with requiring a party to put its ad ve rsarie s on notice that attorneys' fees are at issue in a timely fashion or waive that claim . This is a ccomp lish ed by specifically pleading for attorneys' fees in the comp la int .

91 F .3d at 764-65. F .2d at 1238, the parties

En ce l,

h ad an explicit contract provision that the prevailing p arty would be entitled to fees in the event of

litigation . Id . at 1240E 412. The validity and interpretation of the provision was E ic ) never in dispute. s
Mo reov er , following remand to the district court, Te lep romp te r made a timely application for attorneys' fe es and submitted supporting materials before the

district court officially entered its final judgment.
Id . at 1242 . None of these characteristics are present in the case now before us .
=d I
n .4 .

( ) Motion Requirements 2
a civil case not enough merely to request attorney's

fees in the pleadings because Federal Rule of Civil Procedure 54( ) d
requ ire s parties seeking attorney's fees file a timely motion :

( ) Costs Other Than Attorney ' Fees. Unless a federal 1 s
sta tute , these rules, or a court order provides oth erw ise , costs--other than attorney's fees--should be al low ed to the prevailing party . . . The clerk may tax co sts on 14 days' notice . On motion served within the nex t 7 days, the court may review the clerk's action .

( ) Attorney ' Fees. 2 s ( ) Claim to Be by Motion. A claim for attorney's A
fees and related nontaxable expenses mu st be made b y motion unless the substantive 1aw requires those fees to be p rov ed at trial as an element of d am ag e s .

() B

Timing and Contents of the Motion . Unless the

statut e or a court order p rovide s otherwise, the m otion must :

() i be filed no later than 14 days after the entry of judgment; ( i) i specify the judgment and the statute,
ru le , or other g round s entitling the movant to th e award;

( ii) state the amount sought or provide a i
fair estimate of it; and

( v) i

disclose, if the court so orders, the

te rm s of any agreement about fees for the se rv ice s for which the claim is made .

Fed . R. Civ. P. 54 ( ). Thus, to be entitled to recover attorney's d
fees in a civil action, a party must p lead in gs a ttorne y 's fees otherwise place request attorney's fees in counter-party on notice that file a timely motion

being sought , and

under Rule 54( ) . Romaauera, d

F. d at 895. 3

() b

Federal Rules of Bankruptcy Procedure

() 1

Pleading Requirements
is made app lic ab le

Fede ral Rule of Civil Procedure

adv er sary proceedings by Federal Rule of Bankruptcy Procedure 7009.

In addition, Federal Rule of Bankruptcy Procedure 7008( ) provides b
th at requests for attorney's fees must 'b e pleaded as a claim '

comp la in t , cross-claim , third-party complaint, answer,
m ay be appropriate .' '

rep ly as

(2)

Motion Requirements

Fed era l Rule of Bankruptcy Procedure 7054 does not contain a

counterpart to Rule 54 ( ) that requires parties seeking attorneys' d
fee s

file a timely motion .

Bankruptcy Rule 7054 incorporates

Rule 54 ( )- ( ), but does not incorporate Rule 54( ) : a c d () a () b Judgments. Rule 54( )- ( ) F. . iV .P . applies in a c RC
adve rsar y p roceed ing s .

Costs. The court may allow costs to the prevailing

p art y except when a statute of the United States or these rule s otherwise provides. . . . Costs may be taxed by the cle rk on one day's notice; on motion served within five d ay s thereafter, the action of the clerk may be reviewed b y the court. Fed .
fee s

Ban kr . P . 7054 . Thus,

be entitled to recover attorneys'

an adversary action , a party must request attorneys' fees
p lead ing s otherwise place counter-party on notice

that attorneys' fees are being sought, but need not file a timely

motion like

required by Rule 54( ) d

civil actions.

B.

Application of the Law to the Facts
A pp el lan ts titled their request for attorneys' fees nMotion

for Reimbursement of Attorneys' Fees/costs Under Fed . R . Bankr.
7054,' but based their motion on Fed. R . / P. 54 ( ): d

2 .1 The cause of action was filed by Sm ith under Tex . Bu s . & Comm . Code 5 24 .001 , et seq w w h ich expressly p rovid es :
'In any proceeding under this chapter, the ' c ou rt may award costs and reasonable

attorney's fees as are equitable and just.' '
T ex . Bus . & Comm . Code 5 24 .013 .

2 .4

Under Fed. R. Civ. P. 54( ), a claim for attorneys' d

fee s and non-related, non-taxed expenses is to be made by

motion, which is to be filed no later than fourteen ( 4) 1

days after the entry of judgment, and must specify the
sta tute , rule or other grounds entitling the moving party to be awarded attorneys' fees . Under Fed . R . Civ . P . 54, a movant may request attorneys' fees .

2 .5 As a general rule, claims for attorneys' fees con st itu te costs, not damages. See Budinich v. Becton D ickin son & Co ., 486 U .S . 196, 200, 108 S.Ct . 1717, 1721

( 988). 1

A party seeking attorneys' fees as ncosts' is '
See Rissman v.

se ek in g fees for work done in a case .

Rissm an, 229 F.3d 586, 588 ( th Cir. 2000). One seeking 7
at torn eys ' fees as damages is usually seeking fees in cur red prior to the case . Td. When attorneys' fees a re recoverable as costs, the party is not usually req ui red to include a demand within the complaint . United In d us trie s v . Sim on -Ha r tley , Itdw 91 F .3d 762, 765-66

( th Cir. 1996).1 5 8
App e llant s dispu te that they failed ra ise their

reque st for attorneys' fees until after the Bankruptcy Court

lMotion for Reimbursement of Attorneys' Fees/costs Under Fed. 8
R . Bankr . P . 7054, Exhibit 1 attached to Appellants' Brief, Docket E ntry No . 7.

entered

Judgment

their

adversary

proceedings .

Instead,

App e llant s contend that when attorneys' fees are sought as costs instead as damages, requests for attorneys' fees need not be

raised before judgment

entered. Appellants rely on the Fifth
that

Circu it 's opinion in United Industries, 91 F .3d at 362,
op inion does not supp ort their argument . th at case

Un ited sued appellee Simon-Hartley, Ltd . seeking re form ation of a license agreement . The license ag reem en t included a choice of 1aw p rovi sion that 'th is ' ag reem en t shall be interpreted and the rights of the pa rtie s determ in ed in accordance with English law .' ' Un ited 's complaint did not include a request for a ttorn eys ' fees . It did r however, request 'co sts .' ' ' S im ila rly , the pretrial order did not include a request fo r attorneys' fees . The district court conducted a th ree -d ay bench trial in September 1992 . Following t ria l, the district court issued a memorandum op in ion on O ctob e r 29, 1992, indicating its intention to rule in Un ited 's favor on the reform ation claim . . . On April 5, 1994 , the court issued its opinion explaining the reasons fo r granting United's claim . Judgment was entered on

April 11, 1994. Simon-Hartley then appealed and E he t Fifth Circuit) affirmed in an unpublished per curiam
op inion on March 23 , 1995. On April 28, 1995 , nearly one year after entry of

judgment, United filed a nNotice of Application to
In clude Attorneys' Fees as Costs' in the district court . ' Un ited based its tardy claim for fees on the English cho ice -of- law provision . United argued that under sub stan tive English 1aw it was entitled to attorneys' fee s as 'co sts' because it was the prevailing party . ' ' W ithou t addressing the merits of whether the English rule app l ie d , the district court denied the fee request for tw o reasons . Initiallyr the court found that United's failu re to request attorneys' fees in its complaint or p retr ial order p reclud ed recovery . Alternatively, the

court noted that the judgment in the case was final and that it only had jurisdiction to enforce the judgment.

Id . at 763-64 . A l th ough the Fifth Circuit held that the d ist rict court has, at a basic level, the authority to he ar such a fee request, this does not mean that United h as complied with the procedural requirements making such a motion for attorneys' fees appropriate . In its order deny ing United 's fee request, the district court sp e cific ally grounded its ruling on the fact that United fai led to plead for attorneys' fees . This was not reve rsib le error .

=d I

( mphasis added). e
A pp ellan ts do not dispute the Trustee's assertions that they

fa iled

request attorneys' fees

their

answers, amended

an sw ers , at trial,

post-trial p roceed ing s . Nor do Appellants attorneys' fees and ,

d ispu te that their initial request

the refo re , their initial notice

the Trustee that they were

see kin g attorneys' fees -- was made in the motion for reimbursement

fees/costs that they filed after the Bankruptcy Court entered

judgment in their adversary proceedings. Appellants have not cited
any case where a trial court has awarded attorneys' fees under

ana log ou s circum stanc es , i .e ., where a statute p rov id ed the court discretionary authority

such as TUFTA aw ard attorneys'

fee s, but the party seekin g to recover those fees failed either
p lead or otherwise place coun te r-p a rty on notice that

attorneys' fees were being sought until after a final judgment had
b een entered . Moreover, at least one of the cases that Appellants

cite rejects Appellants' contentions that attorneys' fees are
genera lly available as costs and that attorneys' fees are available

p ursuan t

Federal Rule

Bankruptcy Procedure 7054 under the
-

14-

circumstances at issue .

See In re Lance Richard Kellar, 125 B .R .

( ankr . N.D. .Y . 1989) ( Bankr . B N n permissible bankruptcy analogue

7054 ( ), the more b

Fed. . iV .P . 54 ( ), does RC d

gene ral ly encomp ass an award of attorney's fees absent exceptional
ci rcum stan ce s demanding equitable redress, since Acosts are merely

cou rt costs incurred from the filing

the p roce edin g .'

GATX

Term in a ls Corp . v . A . Tarricone, Inc. (In re Tarricone, Inc .), 83

B. . R

( ankr . D. .I . 1984). B R
58 B .R .

But see In re J & A ( ankr . W . . Tex . 1986) B D

Conc rete Contractors, Inc w

( ttorney fees and expenses imposed as sanctions treated as costs a

under Bankr.

7054): AM International, Inc. v. Tennessee Vallev

Authoritv ( n re AM International, Inc.), 46 B . . 566, 578 ( ankr. I R B Tenn . 1985) (A osts may be awarded under Bankruptcy Rule 7054 c
and attorney's fees may in c lu ded the se costs when

sp eci fical ly requested in the pleadings under Bankruptcy Rule

7008 ( ) .'') ( mphasis addedll). b 'e
Con clu sion s

TU FTA , Tex . Bus.

Comm . Code 5 24.001, et seq w the statute
issue, gives the trial In this circuit

unde rlying the adversary p ro ceed ing s court the discretion

award attorney's fees .
as

atto rn ey 's fees are treated

special damages that must be

specifically pleaded under Federal Rule of Civil Procedure 9 ( ), g
m ade applicable adversary proceedings by Federal Rule

B ankrup tcy Procedure 7009 . In addition , Federal Rule of Bankruptcy
-

15-

Procedure 7008( ) requires requests for attorney's fees b
p le aded claim

nbe

complaint, cross-claim , third-party
rep ly m ay be appropriate .' ' Becau se

comp la int , answer,
App ellan ts

o th erw ise place the Trustee on

not ice that attorneys' fees were being sought until after final

judgments had been entered, the Bankruptcy Court neither abused its
d iscret ion by failing to aw a rd attorneys' fees to the Appellants in

judgments, nor erred by failing

consider Appellants' post-

judgment applications for attorneys' fees as costs under Fed.
Ban kr .

7054 , or entering orders th at denied Appellants' motions
a tto rn ey s' fees .

fo r reimbursement

IV . Order For the reasons explained above, the Bankruptcy Court's Orders
Deny ing Motion for Reimbursement of Attorneys' fees are AFFINMED .

SIGNED at Houston , Texas, on this the 18th day of May, 2010.

e

SIM LAKE UN ITED STATE S DISTR IC T JUDGE