Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.in Re Melp, Ltd., Debtor.harvey A. Friedman, Appellee, v. Melp, Ltd.,; Davis & Davis, Appellants, 117 F.3d 1422 (8th Cir. 1997)

In April 1990, the bankruptcy court appointed an operating trustee for Chapter 11 debtor MELP, Ltd. but allowed debtor to continue to be represented by separate counsel. The court subsequently approved an award of fees from the Chapter 11 estate to Davis & Davis, debtor's counsel. Harvey Friedman, debtor's limited partner, appealed that award, and the district court affirmed. The bankruptcy court then approved a second fee award to Davis & Davis, including an award for time spent defending the first award on appeal to the district court. Friedman again appealed.

Reversing the second fee award, the district court¹  concluded that an attorney for a debtor not in possession--that is, when the Chapter 11 estate has an operating trustee--may recover fees from the estate "only for services which provided an identifiable, tangible and material benefit to the estate." Applying that standard, the court denied an award of fees for defending the first fee award on appeal and remanded the remainder of the second fee award for further consideration of the benefit-to-the-estate issue. The parties settled the issues on remand, and debtor and Davis & Davis now appeal the denial of fees for successfully defending the first fee award. After carefully considering the record on appeal, we affirm for the reasons stated in the district court's March 28, 1995, memorandum opinion. See 8th Cir. Rule 47B.