12-50073-lmc Doc#331 Filed 10/02/12 Entered 10/02/12 17:37:11 Main Document Pg 1 of 5

UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

In re: DELTA PRODUCE, L.P. 1 , Debtors

Chapter 11 Case No. 12-50073-LMC Jointly Administered

JENSENS OMNIBUS OBJECTIONS TO PACA TRUST CREDITORS APPLICATIONS FOR ATTORNEYS FEES Walter Scott Jensen (Scott Jensen or Jensen) files this Objection to the PACA Trust Creditors Applications for Attorneys Fee, showing as follows: I. PROCEDURAL HISTORY 1. Debtors filed a Voluntary Petition pursuant to Chapter 11 of the Bankruptcy Code

on January 3, 2012 [DE 1]. 2. On January 25, 2012, the Court entered an Order Establishing a Deadline to File

PACA Trust Claims, for Procedures to Resolve Those Claims, and for Appointment of Special PACA Counsel [DE 52].

Debtors are the following entities: Delta Produce, L.P. Case No. 1250073-LMC-11, Superior Tomato-Avocado, Ltd. Case No. 12-50074-LMC-11, Atled, Ltd. Case No. 12-50075-LMC-11, and Staci Properties, Ltd. Case No. 12-50110-LMC

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3.

On February 29, 2012, the Court entered an Amended Order Establishing a

Deadline to File PACA Trust Claims, for Procedures to Resolve Those Claims, and for Appointment of Special PACA Counsel (the Claims Procedure Order) [DE 124]. 4. On August 23, 2012, the Court entered an Order modifying the Claims Procedure

Order, as requested by Special PACA Counsel, pursuant to which PACA Trust beneficiaries claiming a right to attorneys fees were required to file such claims within 21 days of the Order. 5. The deadline for PACA Trust beneficiaries to file claims for attorneys fees

passed on September 13, 2012. PACA Trust beneficiaries, excluding Special PACA Counsel, have filed claims for attorneys fees in the total amount of $212,710.41. The PACA Trust beneficiaries filing claims are: Mecca Farms, Inc.; Muller Trading Company, Inc.; Eco-Farms Sales, Inc.; Gargiulo, Inc.; Henry Avocado Corp.; Rio Queen Citrus, Inc.; Harlle Packing, Inc.; I.Kunik Company, Inc.; the R&J Group (Bernardi and Associates, Inc., Franks Distributing of Produce, LLC, Fresh Pac International, Inc.; J-C Distributing, Inc.; Mission Produce, Inc.; California Artichoke & Veg Growers Corp. d/b/a Ocean Mist Farms; Pacific International Vegetable Marketing Inc. d/b/a Pacific International Marketing; Prime Time Sales, LLC; Royal Flavor, LLC; Wilson Produce, LLC); London Fruit, Inc.; Triple H Produce, LLC; Coosemans Houston, Inc.; Texas Sweet Potato Distributors, LLC; Eagle Eye Produce, Inc.; Mecca Farms, Inc.; C&R Fresh, LLC; Duckwall Fruit Co.; Fresh Start Produce Sales; Sunriver Sales; Rio Bravo Produce Ltd., LLC; and Uesugi Farms, Inc. 6. This objection is to the foregoing PACA Trust beneficiaries applications for

attorneys fees, as well as any other PACA Trust beneficiaries seeking attorneys fees. This objection does to apply to applications for fees by Craig Stokes, as he was appointed by this Court pursuant to 11 U.S.C. 327-29.

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II. ARGUMENT & AUTHORITIES A. SUMMARY OF ARGUMENT 7. Jensen, a party in interest, objects to the PACA Trust beneficiaries attorneys

fees applications because the PACA Trust beneficiaries, to the extent they assert their claims against the Estate, are unsecured creditors who are not entitled to post-petition attorneys fees. If necessary, PACA Trust beneficiaries asserting claims for attorneys fees should be required to segregate their fees to prove the amount of fees incurred pre- and post-petition. Additionally, certain PACA Trust beneficiaries identified herein have filed claims for attorneys fees that are not recoverable. B. STANDING TO OBJECT 8. Jensen is the principal owner of all Debtors. Accordingly, Jensen is an interested

party in this Jointly Administered Estate with a right to be heard in this Estate. 11 U.S.C. 1109. C. OBJECTION TO POST-PETITION ATTORNEYS FEES IN BANKRUPTCY COURT 9. Following the U.S. Supreme Courts decision in Travelers Casualty & Surety Co.

of America v. Pacific Gas & Electric Co., 549 U.S. 443 (2007), Judge Craig Gargotta held that an unsecured creditor is not entitled to post-petition attorneys fees in a bankruptcy estate. In re Seda France, Inc., 2011 Bankr. LEXIS 2874 (Bkrtcy. W.D. Tex. 2011). 10. The PACA Trust beneficiaries are asserting unsecured claims against the Estate,

and as unsecured creditors, are not entitled to post-petition attorneys fees. Id. The PACA Trust beneficiaries seeking attorneys fees should be required to segregate their attorneys fees, and all portions of their claims for post-petition attorneys fees should be disallowed.

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D.

MISCELLANEOUS OBJECTIONS 11. Further, Jensen objects to the PACA Trust beneficiaries claims for attorneys

fees on the grounds that they are unreasonable. Special PACA Counsel has been appointed in this matter, so there is no necessity for any of the claimants to incur substantial fees. 12. Further, Jensen objects to the Motion for Reimbursement of Fees and Costs of

Muller Trading Company, Inc. (Muller). Muller seeks $13,686.90 in attorneys fees pursuant to the common fund doctrine for its efforts in regard to the PACA Trust, as well as $28,874.90 in attorneys fees in its Application for Prejudgment Interest, Attorneys Fees and Costs. To the extent Muller seeks to recover attorneys fees pursuant to the common fund doctrine from the Estate, Jensen objects as such claim is properly asserted, if at all, against the PACA Trust, not against the Estate. Moreover, to the extent the same work was performed by Special PACA Counsel, Jensen objects to the duplication of fees. 13. Further, to the extent that Muller, Rio Bravo Produce Ltd. Co., LLC, or

Wilson Davis Company (which does not appear to have filed a claim for attorneys fees in the Estate), seek attorneys fees from this Court for fees incurred in connection with their adversary actions, Jensen objects to such fees as claims against the Estate. WHEREFORE, Jensen requests this Honorable Court deny the PACA Trust Creditors Applications for Attorneys Fees as set forth herein, and grant Jensen such other and further relief to which he is justly entitled.

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Respectfully submitted, PULMAN CAPPUCCIO PULLEN & BENSON, LLP 2161 NW Military Highway, Suite 400 San Antonio, Texas 78213 www.pulmanlaw.com (210) 222-9494 Telephone (210) 892-1610 Facsimile By: /s/ Randall A. Pulman Randall A. Pulman Texas State Bar No. 16393250 rpulman@pulmanlaw.com Leslie Sara Hyman Texas State Bar No. 00798274 lhyman@pulmanlaw.com
Ryan C. Reed Texas State Bar No. 24065957 rreed@pulmanlaw.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE I certify that on the 2nd day of October, 2012, I electronically filed the foregoing Delta Produce, L.P.s Objections to PACA Trust Creditors Applications for Attorneys Fees utilizing the Courts CM/ECF System, which will serve copies of same upon all registered users. /s/ Randall A. Pulman Randall A. Pulman