IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11186

Summary Calendar

In the Matter of: BODIN CONCRETE, L.P.

 Debtor

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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.

United States Court of Appeals

Fifth Circuit

FILED

July 10, 2015

Lyle W. Cayce

Clerk

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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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$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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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 examination1 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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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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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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