      Case: 14-11186          Document: 00513111413          Page: 1   Date Filed: 07/10/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                          No. 14-11186                      United States Court of Appeals
                                        Summary Calendar                             Fifth Circuit

                                                                                   FILED
                                                                               July 10, 2015
In the Matter of: BODIN CONCRETE, L.P.                                        Lyle W. Cayce
                                                                                   Clerk
                 Debtor
----------------------------------------------------------

BODIN CONCRETE, L.P.,

                 Appellant

v.

CONCRETE OPPORTUNITY FUND II, L.L.C.,

                 Appellee




                      Appeal from the United States District Court
                           for the Northern District of Texas
                                  USDC 3:14-CV-1695


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*




        *Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-11186
      The Bankruptcy Court in this case awarded Appellee a fee for
substantially contributing to the Debtor’s bankruptcy case under 11 U.S.C.
§ 503(b)(4). Appellant challenges this award. We affirm.
                                       I
      On September 1, 2012, Appellant Bodin Concrete, L.P. (Debtor or Bodin)
filed for chapter 11 bankruptcy. Over a year later, on October 30, 2013, after
the Debtor sold most of its assets, it filed a plan of reorganization (Original
Plan) proposing to pay fifty percent of the unsecured claims within thirty days
of the effective date of the plan and the remainder over the next five years. On
November 20, 2013, two creditors who did not intend to vote in favor of the
Original Plan, Blue Star Materials LLC and Buzzi Unicem USA, filed a motion
to convert the Debtor’s case to a chapter 7 or dismiss the case under 11 U.S.C.
§ 1112(b). After becoming a creditor in this case by purchasing a small claim,
on December 6, 2013, Appellee Concrete Opportunity Fund II, LLC (Concrete)
filed an objection to the Debtor’s disclosure statement. On December 9, 2013,
Concrete proposed its own plan of reorganization that would pay seventy-five
percent of unsecured claims within ten days of the effective date and the
remaining balance seventy-five days later. This plan also included a cash
infusion of $750,000.
      Also on December 9, 2013, the Debtor filed an amended plan that would
pay sixty-five percent of the unsecured claims within ten days of the effective
date and the remainder over five years. On December 18, 2013, the Debtor
again filed an amended plan, this time proposing to pay 100 percent of
unsecured claims within one day of the effective date and included a $660,000
cash infusion. Finally, on January 22, 2014, the Debtor filed a third amended
plan (Final Plan), which proposed to pay 100 percent of unsecured claims
within one day of the effective date but also included a cash infusion of


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                                  No. 14-11186
$750,000, matching Concrete’s competing plan. The Final Plan was confirmed
on March 7, 2014.
       On January 17, 2014, Concrete filed an application for reimbursement
of legal fees and expenses for substantial contribution under 11 U.S.C.
§ 503(b)(4), Bodin objected, and an evidentiary hearing was held on February
25, 2014. Finding that Concrete substantially contributed to the case, the
Bankruptcy Court overruled the objection and awarded Concrete an allowed
administrative expense claim of $50,000, roughly two-thirds of the requested
amount. The District Court affirmed this award, and Bodin timely appealed.
                                        II
      On appeal, Bodin argues that the Bankruptcy Court erred by: (1)
allowing Concrete’s attorney to testify at the evidentiary hearing, and (2)
finding that Concrete substantially contributed to the case. We review appeals
from the bankruptcy court in the same manner as the district court: “Fact
findings of the bankruptcy court are reviewed under a clearly erroneous
standard and issues of law are reviewed de novo.” In re Soileau, 488 F.3d 302,
305 (5th Cir. 2007) (internal quotation marks and citation omitted).
      Debtor argues that the Bankruptcy Court erred by allowing Trey
Monsour, Concrete’s attorney, to testify at the evidentiary hearing on
substantial contribution because he lacked sufficient personal knowledge of
this issue and was not qualified as an expert.           We review evidentiary
determinations for abuse of discretion and we will only “vacate a judgment
based on an error in an evidentiary ruling . . . [if] the substantial rights of the
parties were affected.” Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 370
(5th Cir. 2000) (internal quotation marks and citation omitted); Fed. R. Evid.
103(a); see also In re Pequeno, 223 F. App’x 307, 308 (5th Cir. 2007) (per curiam)
(“In an appeal based on an evidentiary ruling of the Bankruptcy Court, an
appellant must prove both: (1) that the Bankruptcy Court abused its discretion;
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                                  No. 14-11186
and (2) that the appellant’s substantial rights were prejudiced.” (citation
omitted)). While Monsour did not have personal knowledge of events that
transpired in the case before Concrete purchased a claim and retained
Monsour, Monsour testified concerning Concrete’s actions in the case after his
retention, such as efforts by Concrete via Rule 2004 examination 1 to obtain
documentation from the Debtor, the various plans proposed by Concrete and
the Debtor, and the amount and reasonableness of Concrete’s fees. Even
though Monsour was not designated as an expert, his testimony related to his
personal knowledge of the contributions of Concrete to the case after his
retention, and the Bankruptcy Court was within its discretion in allowing this
testimony from Monsour.
      Bodin next argues that the Bankruptcy Court erred in awarding a
substantial contribution fee to Concrete. “The inquiry regarding a substantial
contribution is one of fact.” In re Consol. Bancshares, Inc., 785 F.2d 1249, 1253
(5th Cir. 1986). As such, we review this determination for clear error. Soileau,
488 F.3d at 305; see also In re DP Partners Ltd., 106 F.3d 667, 673−74 (5th Cir.
1997) (“Necessarily, the bankruptcy court enjoys broad discretion in making
these determinations.” (citation omitted)). We cannot say the Bankruptcy
Court clearly erred in determining that Concrete substantially contributed to
the case. While substantial contribution is not statutorily defined, we have
stated that “services which make a substantial contribution are those which
foster and enhance, rather than retard or interrupt the progress of
reorganization.” DP Partners, 106 F.3d at 672 (internal quotation marks and
citation omitted).   Further, a substantial contribution must be “considerable
in amount, value or worth.” Id. at 673 (internal quotation marks and citation



      1   Under Federal Rule of Bankruptcy Procedure 2004, upon motion by a party in
interest, “the court may order the examination of any entity.”
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                                  No. 14-11186
omitted). While the determination of “substantial contribution is best left on
a case-by-case basis, . . . [a]t a minimum . . . the [bankruptcy] court should
weigh the cost of the claimed fees and expenses against the benefits conferred
upon the estate which flow directly from those actions” when the “[b]enefits
flow[] to only a portion of the estate or to limited classes of creditors.” Id. When
this is the case, the benefits should be “necessarily diminished in weight.” Id.
Further, “to aid the district and appellate courts in the review process,
bankruptcy judges should make specific and detailed findings on the
substantial contribution issue.” Id.
      The Bankruptcy Court, which presided over the Debtor’s entire case,
found that Concrete “provided direct and demonstrable benefits to th[e]
estate.” By its actions in the case, chiefly proposing an alternate plan, the
Bankruptcy Court found that Concrete “put[] pressure on the debtor to get its
plan approved and fulfill its promises under the plan.” Otherwise, Concrete’s
proposed plan could have replaced the Debtor’s. The Bankruptcy Court found
the timeline of events probative of Concrete’s contribution. More specifically,
the timeline indicated that the Debtor was unable to propose a satisfactory
plan during the exclusivity period. Concrete’s actions in the case motivated
the Debtor to amend its plan.
      In making the substantial contribution determination, the Bankruptcy
Court considered evidence regarding the value to the creditors under the
Original and Final Plans, but Bodin argues that the Bankruptcy Court was
required to quantify the precise benefit created by Concrete’s involvement in
the case by looking at the present value to creditors of each plan and weighing
this against the costs. Essentially, Bodin claims the Bankruptcy Court erred
by not determining the exact dollar value of the benefit created by Concrete’s
involvement using a present value comparison of the two plans. However, the
court considered the differences in the two plans and concluded that the Final
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                                  No. 14-11186
Plan provided cash to the unsecured creditors on the effective date of the plan,
eliminating the need for a five-year payout. The court stated that it was
unquestionable that cash today was more valuable to the creditors than the
payout proposed by the Original Plan. While the Bankruptcy Court did not
make a finding of the specific dollar value difference in the two plans, its
consideration of the differing natures of the two plans was sufficient “specific
and detailed findings” to support its award of a substantial contribution. DP
Partners, 106 F.3d at 673.
      Further, we have recognized that while some actions may result in
“benefit[s] that often can be measured by the actual cost of necessary goods or
services supplied,” there may be “less readily calculable benefits” conferred to
the estate, “such as the ability to continue to conduct business as usual.” In re
TransAmerican Natural Gas Corp., 978 F.2d 1409, 1420 (5th Cir. 1992). Here,
after the expiration of exclusivity, Concrete’s involvement in the case put
pressure on the Debtor to propose a more favorable plan that was confirmable
and provided a greater return for the estate. Concrete’s actions benefitted all
unsecured creditors in the case, and the Bankruptcy Court was not required to
trace the benefit to limited classes of creditors in order to accord it diminished
weight. Cf. DP Partners, 106 F.3d at 673. Thus, the Bankruptcy Court did not
clearly err in awarding Concrete $50,000 in fees for substantially contributing
to the Debtor’s case.
      For the foregoing reasons, we AFFIRM.




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