1

United States Court of Appeals,

Fifth Circuit.

No. 94-50265

Summary Calendar.

In the Matter of EL PASO REFINERY, LP, Debtor.

ANDREWS & KURTH L.L.P., Appellant,

v.

WRIGHT KILLEN & CO., INC., Appellee.

Nov. 9, 1994.

Appeal from the United States District Court for the Western

District of Texas.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM:

This case involves the issue of whether a bankruptcy debtor's

former counsel has standing under Fed.R.Civ.P. 60(b) to have a

bankruptcy court's published memorandum opinion withdrawn based

upon its assertion that the court's findings of fact and other

comments therein are erroneous and injurious to the firm's

reputation. Because we conclude that Debtor's former law firm does

not have standing to file such a motion, we affirm the denial of

counsel's motion.

BACKGROUND

 On May 26, 1993, the United States Bankruptcy Court for the

Western District of Texas entered a memorandum opinion granting

Debtor's application to employ Wright Killen as an industry
 

1Wright Killen had not obtained prior court authorization of

its employment, although it had already performed services for

Debtor. Thus, its employment application was sought nunc pro

tunc, meaning "now for then." BLACK'S LAW DICTIONARY 964 (5th ed.

1979). Nunc pro tunc orders are allowed in bankruptcy

proceedings where the judge feels that circumstances require it,

as a result of a previous oversight or omission. In re

MortgageAmerica Corp., 831 F.2d 97 (5th Cir.1987). 

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consultant nunc pro tunc.1 This opinion was published at In re El

Paso Refinery, L.P., 155 B.R. 418 (Bankr.W.D.Tex.1993). Debtor's

former counsel, Andrews & Kurth ("A & K") law firm, read the

opinion in the advance sheets and took exception to some of the

language in it, claiming that it is erroneous and wrongly casts the

firm in an unfavorable light.

The gist of the bankruptcy judge's opinion was that he granted

Debtor's nunc pro tunc application, over the Internal Revenue

Service's objection, based upon his conclusion that Wright Killen

was not at fault for the delay in filing its employment

application. Instead, the bankruptcy court found that it was A &

K's fault that the application had not been filed sooner.

Accordingly, the judge decided not to penalize Wright Killen for

what it viewed as A & K's error. A & K did not participate in the

hearing on the application, as it was no longer serving as Debtor's

counsel.

Months later, after reading the opinion in the advance sheets,

A & K filed a Rule 60(b) motion to revoke the order approving

Wright Killen's employment because of its quarrel with the

bankruptcy court's findings and comments about A & K, which it

claims are wrongfully injurious to the firm's reputation.
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In particular, A & K objects to the bankruptcy judge's finding

of fact that Wright Killen had provided copies of its employment

contract to A & K so that counsel could file an application seeking

authorization to employ Wright Killen. The firm asserts that this

finding is erroneous, that no employment contract ever was provided

to A & K by Wright Killen. A & K claims that the court's finding

was based upon untrue testimony given by Wright Killen at the nunc

pro tunc hearing.

The firm also objects to language in the opinion whereby the

court found that Wright Killen performed services for the Debtor

from approximately October 14, 1992 through the first week of

December 1992, "[i]n reliance on counsel's representations and

assurances that they would take care of filing the application to

employ." In re El Paso Refinery, L.P., supra, at 419. A & K

contends that even if the employment contract and other documents

needed to obtain court approval were delivered to A & K during the

first week of November 1992, as Wright Killen's representative

testified at the hearing, the court's statement that Wright Killen

relied on A & K's assurances beginning October 14th is clearly

erroneous. A & K claims that its attorneys did not even meet Mr.

Dudley, Wright Killen's representative, prior to October 23, 1992.

Moreover, A & K asserts that it told Wright Killen that it would

have to have a copy of the employment contract and a certificate of

disinterestedness, as required by the Bankruptcy Code, before it

could file the employment application.

The firm also quibbles with the bankruptcy court's finding of
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fact that A & K was replaced on January 20, 1993 by Debtor's

current counsel, Kemp, Smith, Duncan & Hammond ("Kemp Smith"). A

& K acknowledges that this finding is technically accurate, because

January 20, 1993 is the date the order approving Kemp Smith was

entered. However, A & K contends that Kemp Smith was involved in

this case from the outset and had already taken over as Debtor's

primary bankruptcy attorney by early November 1992. A & K also

takes offense at other language in the opinion whereby the

bankruptcy court, in approving the nunc pro tunc employment

application, noted that:

The reason [the application] was never filed was due solely to

the failure of [A & K] to act as they represented they

would.... Wright Killen was not responsible for their

application not being filed. [A & K] was. It would be unjust

and improper to penalize Wright Killen for the failure of [A

& K] to perform their duties.

In re El Paso Refinery, L.P., supra, at 421.

The A & K firm asserts that these comments are erroneous and

severely injurious. It claims that up to now A & K has enjoyed a

reputation as an excellent and highly capable bankruptcy firm, but

now its reputation has been damaged as a result of the published

opinion criticizing it. A & K claims that the opinion could be

used in the future to prevent the firm from being hired in

bankruptcy cases, as court approval is usually required for a

firm's employment to represent a bankrupt.

The bankruptcy court denied A & K's Rule 60(b) motion to

revoke the employment order and published opinion, noting that A &

K is not an interested party, nor was it affected by the order in

question. The judge stated that the motion was "at best an attempt
 

2Federal Rule of Civil Procedure 60(b) provides that "[o]n

motion and upon such terms as are just, the court may relieve a

party or a party's legal representative from a final judgment,

order, or proceeding (emphasis added)" in certain situations,

including inter alia: (1) mistake, inadvertence, surprise, or

excusable neglect; ... (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other misconduct

of an adverse party; ... or (6) any other reason justifying

relief from the operation of the judgment (emphasis added).

Fed.R.Bankr.P. 9024 makes Fed.R.Civ.P. 60 applicable to

bankruptcy proceedings. Thus, a party or a party's legal

representative may file a Rule 60(b) motion in a bankruptcy

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to appeal and/or collaterally attack an order previously entered

which has no direct effect upon the movant." A & K appealed to the

district court for the Western District of Texas, which affirmed

the bankruptcy court's order denying the motion. This appeal

followed.

STANDARD OF REVIEW

We review a denial of a Rule 60(b) motion only for abuse of

discretion. Latham v. Wells Fargo Bank, 987 F.2d 1199 (5th

Cir.1993); First Nationwide Bank v. Summer House Joint Venture,

902 F.2d 1197 (5th Cir.1990); Aucoin v. K-Mart Apparel Fashion

Corp., 943 F.2d 6 (5th Cir.1991).

ANALYSIS

At issue is whether Debtor's former counsel, A & K, has

standing to file a Rule 60(b) motion. A & K contends that it does

have standing. It makes three separate arguments in support of its

view that it has standing to file a Rule 60(b) motion.

A & K contends that it qualifies as "a party's legal

representative," as that term is used in Fed.R.Civ.P. 60(b),

enabling it to file such a motion.2 A & K also claims that it is
proceeding. 

 

3Section 1109(b) provides, in pertinent part, that "[a]

party in interest, including ... a creditor ... may raise and may

appear and be heard on any issue in a case under this chapter." 

 

4A & K contends that under Kem, an attorney for a party may

qualify as a legal representative under Rule 60(b); however, we

disagree. The court in Kem analyzed whether the movant had

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a "party in interest" under 11 U.S.C. § 1109(b) and has status to

intervene in the proceedings via a Rule 60(b) motion because it is

debtor's former counsel and therefore a creditor of the debtor's

estate.3 Moreover, A & K argues that it is entitled to standing

under principles of justice.

We are not persuaded by any of A & K's arguments that it has

standing to file a Rule 60(b) motion. This opinion will separately

address each of the three theories under which A & K claims to

derive standing.

1. "A party's legal representative"

A & K claims that it meets the definition of "a party's legal

representative" for purposes of Rule 60(b) because it served as

Debtor's counsel. We reject this argument. The phrase "a party's

legal representative" means one who stands in the place and stead

of another, such as an heir at law. Mobay Chemical Co. v. Hudson

Foam Plastics Corp., 277 F.Supp. 413 (S.D.N.Y.1967).

The term was intended to reach "only those individuals who

were in a position tantamount to that of a party or whose legal

rights were otherwise so intimately bound up with the parties that

their rights were directly affected by the final judgment." Kem

Mfg. Corp. v. Wilder, 817 F.2d 1517 (11th Cir.1987).4 The Kem
standing by considering whether the final judgment therein

directly affected any property or other legal right of the

movant. Andrews & Kurth relies on language therein which

suggests that an attorney may qualify as representative of a

party. However, the movant in Kem was not an attorney; 

therefore, the Court's comments are merely dicta. 

 

5See e.g., In re Ewing, 54 B.R. 952 (D.C.Co.1985) (real

estate broker did not have standing to file a motion to

reconsider denial of Debtor's motion to have broker appointed as

exclusive broker for sale of real property); Screven v. United

States, 207 F.2d 740, 741 (5th Cir.1953) (alleged realty owners

did not have standing to set aside judgment in original

condemnation proceeding because they were not parties to such

proceeding); United States v. West Willow Apartments, Inc., 245

F.Supp. 755, 757 (E.D.Mich.1965) (purchaser at a mortgage

foreclosure sale lacked standing under 60(b) to move to reopen

the foreclosure decree to seek removal of the period of

redemption). But cf. In re Casco Chemical Co., 335 F.2d 645, 651

(5th Cir.1964) (trustee in bankruptcy had standing to bring

action to set aside judgment in interpleader action ordering

distribution of funds allegedly owed to bankrupt.) 

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definition of "legal representative" was cited with approval by

this Court in Harrell v. DCS Equipment Leasing Corp., 951 F.2d 1453

(5th Cir.1992). Other courts have taken a very similar approach to

Kem in analyzing standing issues under Rule 60(b).5

We conclude that the phrase "legal representative" as used in

Rule 60(b) does not include counsel within the context of the

attorney-client relationship. We cannot say that A & K was in a

position "tantamount" to Debtor's, nor were its rights so

intimately bound up with Debtor's that A & K's rights were directly

affected by the judgment.

At least three courts, including our colleagues of the Tenth

Circuit and the District of Columbia Circuit, have specifically

held that an attorney does not qualify as a "legal representative"
 

6Mobay Chemical Co. v. Hudson Foam Plastics Corp., supra; 

Ratner v. Bakery and Confectionery Workers Intl. Union of

America, 394 F.2d 780 (D.C.Cir.1968) (attorneys did not have

standing to file 60(b) motion for supplementary fees and expenses

in litigation which had been settled and dismissed); Western

Steel Erection Co. v. United States, 424 F.2d 737, 739 (10th

Cir.1970) (attorney may not use Rule 60(b) as a vehicle to

resolve his private controversy with a party over his fee). 

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of a party for purposes of Rule 60(b).6 Rule 60(b) on its face

makes no provision for a motion otherwise to be brought by a

party's counsel. In addition, A & K has produced no Fifth Circuit

authority on point indicating that the rule notwithstanding its

literal language should be read to include one in A & K's position.

Moreover, even if we were to conclude that an attorney-at-law

may in some circumstances have standing to file a Rule 60(b)

motion, it must not be overlooked that A & K was not Debtor's

counsel at the time of the filing of either the nunc pro tunc

application of the Debtor or the 60(b) motion of A & K, but was the

Debtor's former counsel. Even if the term "legal representative"

were construed to include a party's attorney-at-law, the term

certainly should not extend to a party's former counsel. In light

of these facts, we cannot say that the bankruptcy judge abused his

discretion in denying A & K's motion.

2. Status as a creditor

A & K also claims that it has standing as a creditor to

challenge the nunc pro tunc appointment of Wright Killen under 11

U.S.C. § 1109(b). We reject this contention as well, finding it to

be both specious and disingenuous. A & K does not really challenge

the appointment of Wright Killen per se; instead, it merely
 

7See, e.g., Ratner, supra, in which former attorneys sought

to reopen dismissed litigation in order to obtain additional fees

and expenses. The Court noted that, although former counsel

contended they should be allowed to file a 60(b) motion because

"notice of the settlement and dismissal was not given to them,

they [did] not assert entitlement to notice as a party or as

counsel for any party to the case, but only because of their

interest in additional fees and expenses (emphasis added)." 

Ibid., at 782. Similarly, A & K is not seeking to have the

opinion withdrawn in behalf of the Debtor, but only because of

its own interest in its reputation. 

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objects to the court's comments about A & K in the published

opinion. Thus, A & K's 60(b) motion did not really seek to assert

its rights as a creditor; instead, it sought to remedy the court's

characterization of A & K's performance in its role as Debtor's

prior counsel.7 Had A & K opposed the appointment of Wright Killen

because it was afraid its position as a creditor might be

compromised, i.e., that funds expended toward Wright Killen's

employment would jeopardize A & K's chance of being paid, it could

have done so; however, A & K did not oppose the appointment at the

hearing—only the IRS did. A & K merely quibbles with the reasons

enunciated by the bankruptcy judge in his approval of Wright

Killen's employment. In light of these facts, we reject as

meritless A & K's argument that it is entitled to file a Rule 60(b)

motion seeking revocation of the order by virtue of its status as

a creditor.

3. "Interests of justice"

We also reject A & K's argument that the interests of justice

require that their Rule 60(b) motion be granted. The bankruptcy

judge was in an optimal position to determine whether the arguments

forwarded by A & K in its motion warranted relief under Rule 60(b).
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We cannot say it was an abuse of discretion for the court to deny

the motion, or that the interests of justice require that the

district court be reversed. To the contrary, as a matter of

policy, it would not be in the interest of justice or judicial

economy for federal courts to have to entertain motions from every

individual who quarrels with the wording of an opinion or claims

offense at some language contained therein.

The bankruptcy court's order and opinion had no real operative

effect upon A & K in this case. Although A & K clearly was blamed

for the delay in filing the employment application, the firm was

not fined or forced to pay Wright Killen's fees as part of the

court's order. It was not directly penalized at all by the judge's

ruling. In fact, A & K admittedly did not even know about the

opinion until months after it was issued. Whether the judge's

characterization of A & K's performance regarding the employment

application in this case might have some negative effect on the

firm in the future is speculative at best. We are not persuaded

that this is a situation in which the interests of justice require

that the opinion be withdrawn. Accordingly, A & K's "interests of

justice" argument fails as well.

CONCLUSION

Finding no abuse of discretion, we AFFIRM the denial of A &

K's Rule 60(b) motion.