                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS           April 4, 2003

                                                        Charles R. Fulbruge III
                      FOR THE FIFTH CIRCUIT                     Clerk
                      _____________________

                           No. 02-60070
                      _____________________

IN THE MATTER OF: REBECCA MITCHELL BARRON,
                                                               Debtor

CYNTHIA DANIELS,
                                                          Appellant,

                              versus

REBECCA MITCHELL BARRON; JOHN A. BARRON; CHARLES EASLEY,

                                                          Appellees.

__________________________________________________________________

           Appeal from the United States District Court
             for the Northern District of Mississippi
_________________________________________________________________


Before REAVLEY, JOLLY, and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Cynthia Daniels appeals the award of attorneys’ fees by the

bankruptcy judge for her representation of a bankrupt’s estate.

Though we have previously addressed the issue in this case, it

appears that, although the bankruptcy judge approved a one-third

contingency fee for Daniels’ agreeing to pursue a disputed claim

for the bankrupt’s estate, and she was 100% successful in obtaining

and collecting the judgment, the bankruptcy judge reduced her fee.

The bankruptcy court relied on an exception to Section 328, which

permits a bankruptcy court to deviate from a previously-approved
compensation plan if the “terms and conditions prove to have been

improvident   in   light       of   developments     not     capable     of     being

anticipated   at   the     time     of    the   fixing     of   such    terms    and

conditions.” 11 U.S.C. § 328(a).              The district court affirmed the

bankruptcy court and Daniels appealed to this court.                   We reversed

and remanded, finding the bankruptcy court applied the wrong

standard to determine whether circumstances satisfied the exception

to Section 328.    See In re Barron, 225 F.3d 583 (5th Cir.                   2000).

On remand, the bankruptcy court clarified its earlier opinion,

indicated   that   it    had    originally       applied    the   correct      legal

standard, and reaffirmed its previous award. See In re Barron, No.

95-10538, slip op. at 3 (Bankr. N.D. Miss. May 22, 2001).                     Daniels

appealed to the district court, which affirmed.                 See In re Barron,

No.   1:99CV21-S (N.D. Miss., Jan. 2, 2002).             Daniels again appeals

to this court and, because we find that the bankruptcy court has

abused its discretion, we reverse and remand for entry of judgment.

                                          I

      The factual background of this case is stated succinctly in

this Court’s previous opinion in this case, In re Barron, 225 F.3d

583, 584-585 (5th Cir. 2000).            In pertinent part, Attorney Cynthia

Daniels sought approval of a fee arrangement from the bankruptcy

court to pursue an action on behalf of the bankruptcy estate, which

arose from a divorce and remarriage of the debtor and her husband.

Daniels’ application stated she was willing to work on a one-third



                                          2
(1/3) contingency basis of the amount recovered in the filing of

any   preferential    and/or   fraudulent    complaints,   if    warranted.

Various parties objected to her appointment, arguing that such

representation and the fee arrangement were premature because of

the potential ease of collection of the debt owed to Mrs. Barron’s

estate by Mr. Barron.     The bankruptcy court found that there was a

high likelihood of litigation in the matter and, over objections,

approved of the arrangement with recovery of Daniels’ contingency

predicated on “an actual suit being filed against Mr. Barron

following the filing of a demand letter.”        In re Barron, 225 F.3d

at 584.   Daniels agreed to take no fee if a demand letter proved

effective in collecting the obligation.

      After   the    arrangement   was    approved,   Daniels    sent    the

contemplated demand letter to Mr. Barron, and received no response.

At this point, Daniels filed a complaint against Mr. Barron.            After

unsuccessful attempts by Mr. Barron to settle for less than the

amount owed, Daniels moved for summary judgment after conducting

three depositions.      After a hearing, the court granted judgment

against Mr. Barron for the full balance of $160,000 in August 1997.

In re Barron, 225 F.3d at 584-85.        Mr. Barron immediately tendered

full payment to the court.

      Daniels then filed an application seeking $53,333.33, one-

third of the recovered judgment, in attorneys’ fees.            The Barrons

objected to the application, as did a creditor who objected to her



                                    3
payment in priority to his claim.              After a hearing, the bankruptcy

court   acknowledged         it   had    approved     Daniels’   employment     and

contingency arrangement, but then noted the sizeable loss to Mrs.

Barron if Daniels was awarded her requested compensation.                       The

court noted that the legal issue in the underlying dispute had been

straightforward      and      thus      resolution    was    “relatively”     easy.

Understandably, the court stated that it would try to do what was

fair to all sides, and eventually awarded Daniels compensation of

$24,341.25 with an additional expense allowance of $2,500.00.

Daniels appealed to the district court which affirmed the award.

On   appeal,   after    careful       consideration,     this    court   reversed,

finding that the bankruptcy court had abused its discretion,

misinterpreting the applicable exception to 11 U.S.C. § 328 by

failing to find that the circumstances relied on were incapable of

being anticipated at the time the plan was approved.

      On   remand,     the    judge     essentially    reiterated   his     earlier

holding, writing: “With all due respect, [the standard mandated by

the Fifth Circuit] is the standard that was applied by this court

when rendering its decision.” In re Barron, No. 95-10538, slip op.

at 3 (Bankr. N.D. Miss., May 22, 2001).                     The court added the

additional observation that Daniels had had a relatively easy time

collecting the judgment from Mr. Barron and thus the reduction in

her fee award was reasonable.               The district court affirmed the

compensation award, and Daniels timely appeals to this court.



                                           4
                                           II

       This court reviews a bankruptcy court’s determination of

attorneys’ fees for abuse of discretion.                   In re Fender, 12 F.3d

480, 487 (5th Cir. 1994).                This “abuse of discretion standard

includes review to determine that the discretion was not guided by

erroneous legal conclusions.” In re Coastal Plains, Inc., 179 F.3d

197, 205 (5th Cir. 1999) (quoting Koon v. United States, 518 U.S.

81, 100 (1996)).        Consistent with this review, this court reviews

a bankruptcy court’s conclusions of law de novo.                        In re Texas

Securities, Inc., 218 F.3d 443, 445 (5th Cir. 2000).                         Specific

findings of fact are reviewed for clear error.                    Fender, 12 F.3d at

487.

       Sections 328 and 330 of the Bankruptcy Code govern attorneys’

fees in representing bankruptcy estates.                   Under 11 U.S.C. § 330,

attorneys’      fees    are    reviewed    for     their    reasonableness           after

representation has concluded. In contrast, Section 328 of the

Bankruptcy      Code    allows    an     attorney       seeking    to   represent        a

bankruptcy      estate    to     obtain        prior    court     approval      of     her

compensation plan.        As this Court has noted, “able professionals

were often unwilling to work for bankruptcy estates where their

compensation would be subject to the uncertainties of what a judge

thought   the    work    was     worth    after    it    had    been    done.         That

uncertainty continues under the present § 330 . . . .” In re

National Gypsum Co., 123 F.3d 861, 862 (5th Cir. 1997).                              Under



                                           5
Section 328, an attorney or other professional may avoid that

uncertainty by obtaining court approval of her representation and

fee arrangement prior to performing the contemplated services.

Section 328      provides    that     once     a   compensation     plan   has     been

approved by the bankruptcy court, “the court may allow compensation

different from the compensation provided under such terms and

conditions after the conclusion of such employment, if such terms

and    conditions    prove    to    have       been   improvident    in    light     of

developments not capable of being anticipated at the time of the

fixing of such terms and conditions.” 11 U.S.C. § 328(a).

       The case law of this circuit, as reflected in National Gypsum

and In re Texas Securities, 218 F.3d at 445-46, has not always

clearly      delineated      Section    328(a)’s        requirement        that     the

intervening circumstances must have been incapable of anticipation,

not merely unanticipated.          This distinction is not insignificant.

As    the   court   in    Barron   noted,       previous   Fifth    Circuit       cases

addressed the question whether Sections 330 or 328 applied; Barron

was the first case in this circuit to specifically address Section

328(a) in relevant part.           In that decision, this Court expressly

noted the limitations on bankruptcy courts’ ability to revise

approved fee plans.        We held that the bankruptcy court applied the

incorrect legal standard by finding that the circumstances were

merely      unforeseen;    instead,    the      bankruptcy   court    should      have

determined whether developments, which made the approved fee plan



                                           6
improvident, had been incapable of anticipation at the time the

award was approved.       In re Barron, 225 F.3d 586.

       On remand, the bankruptcy court relied on three factors to

find the previously approved compensation improvident. First, that

it “did not anticipate the substantial amount of the subsequent

recovery;” second, that the adversary proceedings became a “slam

dunk;” and third, that the judgment was collected from Mr. Barron

with “relative ease.”      The bankruptcy court stated that it did not

actually anticipate these developments at the time, but, apparently

because of the lack of clarity in our previous opinion, it failed

to   explain    why   these     developments      were   incapable    of   being

anticipated at the time the award was approved.                We hold, as a

matter of law, that none of these facts or developments was “not

capable of being anticipated” within the meaning of Section 328(a).

       As its first factor, the bankruptcy court candidly admits that

it “did not anticipate the substantial amount of the subsequent

recovery . . . .”      However, the bankruptcy court does not explain

why this factor was incapable of being foreseen.               On remand, the

bankruptcy judge addresses this ‘development’ by stating that

“[t]his court     could    have   and   perhaps     should   have    quoted   the

language of Section 328(a), adding after the word ‘improvident’ on

page   9   of   the   initial    opinion    the   following,   ‘in    light    of

developments not capable of being anticipated at the time’ . . ..

Unfortunately, it did not do so.”           See In re Barron, No. 95-10538,



                                        7
slip op. at 3 (Bankr. N.D. Miss. May 22, 2001).

       Indeed,     the    amount   of    eventual       recovery     was    reasonably

foreseeable; the bankruptcy court had a copy of the disputed

property    settlement       agreement,        which    clearly      contemplated    a

bargained-for consideration of $210,000 for the parcels of real

estate exchanged between the Barrons.                   Because $50,000 had been

paid   on   that    debt,    the   balance       that    remained     was    $160,000.

Moreover, the Barrons never disputed the amount, only the validity

of the obligation.          Mr. Barron was not insolvent and it never

appeared    that     he    would   not    be     able    to   pay     the    judgment.

Consequently, this ground for departing from the approved fee

arrangement is inadequate.

       Second,     the    bankruptcy     court    stated      that    the    adversary

proceedings became a “slam dunk” to justify its conclusion that the

fee arrangement was improvident. However, it has not been said how

this development was incapable of being anticipated.                       In fact, the

record indicates that this argument could have been anticipated.

Creditors argued to the bankruptcy judge before the plan’s adoption

that Daniels’ services were not needed, precisely because the

proceedings would prove easy.            One creditor even stated “all that

is needed is a demand letter.”                Thus, the exchange demonstrates

that not only was ease of litigation capable of being foreseen,

there is evidence that it actually was foreseeable.                    Although the

judge stated that “...[t]o me this was not a doubtful case. The



                                          8
results were fairly well predictable that there was going to be

recovery for this estate”, the bankruptcy court has offered no

reason why the alleged ease of enforcement was incapable of being

anticipated at the time of the hearing before the contingency award

was approved.

      Finally, the bankruptcy judge added another ground to support

his conclusion that the fees were improvidently awarded: the ease

with which collection was effectuated by Daniels. “In many cases,

obtaining a judgment is the easiest step. . . .                 The attorney for

the trustee was not required to issue garnishment, levy execution,

or force the sale of the remaining parcels of property.”                However,

the bankruptcy judge does not articulate how this development was

incapable of being anticipated; nor does it appear that it was in

fact incapable of being anticipated. There is no evidence that Mr.

Barron did not have funds with which to pay an eventual judgment or

that he would be inclined to avoid his obligation.                Although there

was   no   certainty   that   Daniels       would   be   able   to   collect   the

judgment, it seems to us one could equally reasonably anticipate

that he might not unreasonably avoid payment, even if there was

some possibility that collection would not be easy.                       On the

evidence before the bankruptcy court either scenario was capable of

being anticipated, and neither was incapable of being anticipated.

Thus, this ground is inadequate to demonstrate that a pre-approved

fee arrangement was     “improvident.”



                                        9
                                   III

     In sum, we think that the bankruptcy court departed from the

contingency fee arrangement approved under 11 U.S.C. § 328.           There

appear to be no intervening circumstances that were incapable of

anticipation by the bankruptcy court at the time it approved the

award.   Although the court’s reasoning has some force when viewed

through today’s lenses, the factors relied upon to find the award

improvident were foreseeable.        Because the bankruptcy court’s

application of Section 328(a) was legally incorrect, the court

abused its discretion.     On the facts of this case the bankruptcy

court has not demonstrated circumstances that satisfy the exception

provided in Section 328(a).         Accordingly, Cynthia Daniels is

entitled   to   the   one-third   contingency   fee   approved   by    the

bankruptcy court.     We therefore reverse and remand to the district

court for entry of judgment in favor of Cynthia Daniels.

                        REVERSED and REMANDED for entry of judgment.




                                   10
EDITH H. JONES, Circuit Judge, concurring:

            A pox on all their houses!                   The panel’s discussion

euphemizes    what    was    going   on    here    --    a    useless       and    blatant

perversion    of    bankruptcy.      Mrs.       Barron       filed    this    Chapter     7

bankruptcy case to avoid paying a judgment owed to her divorce

lawyers   after      she    remarried     Mr.     Barron.            She    then    tried,

unsuccessfully, to have the case dismissed, but the trustee pleaded

on behalf of “the creditors’ interest.”                 Four of the six creditors

are attorneys, one a private investigator, and they were altogether

owed less than $50,000.        Mrs. Barron was due to receive, either in

real property or in unmatured installments, $160,000 from her then-

and-again husband as part of their divorce settlement. For unknown

reasons, Mr. Barron refused to pay off his wife’s debts.

            Understandably, there was confusion at the outset as to

the enforceability of a divorce property settlement for a couple

who have remarried.         The inexorable bankruptcy-driven “logic” of

this situation led to the appointment of Ms. Daniels as special

counsel, on a contingency fee, with the mission of recovering value

from Mr. Barron to pay off the attorney-creditors.

            With the same sort of bankruptcy-driven logic, the panel

concludes    that    the    bankruptcy     court    should       not       have    cut   Ms.

Daniels’ fee, even after she recovered ‘way more than was necessary

to pay the creditors and the trustee, and herself became the



                                          11
beneficiary of a sizeable windfall.              Were the events in the

adversary proceeding “capable of being anticipated”?               Although I

concur with the opinion, I think this is a close question.*

            But what definitely should have been anticipated was the

needless cost in time and administrative fees generated by Mrs.

Barron’s bad-faith resort to bankruptcy in the first place.             See 11

U.S.C. § 707(a) (court may dismiss a case “for cause”).                She had

assets.   He is wealthy.     She or her husband could pay the attorneys

for their mutual misstep into divorce court.           This case is a prime

example of how bankruptcy is misused.




      *
            A transcript from an early hearing in the case suggests considerable
uncertainty surrounding the legal status of the divorce property settlement in
this unusual situation. Further, as the bankruptcy court pointed out in his
opinion on remand, merely enforcing the property settlement would have required
considerable additional work by Ms. Daniels, since she would have had to sell or
file further proceedings to obtain the real property in question, or she would
have had to await the payment of installments due under the agreement. The
bankruptcy court was legitimately surprised when Mr. Barron finally paid off the
court’s judgment against him with a check.

                                      12
