Memorandum of Decision Re: Trustee Fees

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
In re THEODORE PAPPAS,                                                                         No. 1-82-0097        Debtor. ___________________________/ EDWARD F. TRAVERSE, et al.,        Plaintiffs,      v.                                                                                                        A.P. No. 1-90-0086 FRANCIS B. MATHEWS, et al.,        Defendants. ______________________________/
Memorandum of Decision on Remand
     It has been several years since the court visited this issue, so it does not remember all of the facts of the case and all of the evidence. What it does remember quite clearly, however, is the utter faithlessness of defendant Mathews in his fiduciary obligations to his partners and the bad faith manner in which he conducted his entire defense. The court will never forget his crass production of "lost" partnership records on the second day of trial, after denying their existence all through the pretrial stages of the case and the first day of trial. The court believed that Mathews' entire defense of the case was in bad faith, and for that reason ordered that plaintiffs were entitled to recover all of their attorneys' fees. The court wishes it had articulated its ruling with more clarity.      On remand, the court has no difficulty stating with specificity that Travers was the prevailing party with respect to the action instituted by Mathews against Travers on the promissory note. Moreover, the $72,400.00 sought by Travers in fees is extremely reasonable given the many years of litigation and Mathew's conduct through pretrial and trial.      Mathews' opposition on remand is typical of his litigation posture as the court remembers it. Because the appellate courts specifically remanded this issues now decided, the court doubts that Travers is in violation of Circuit Rule 39-1. To the extent that the rule is applicable, the court exercises the same discretion in deciding the issue anyway that it exercises in even considering Mathews' arguments at all, since his opposition was filed nine days late in violation of Local Rule 220-3.      The court finds no merit in Mathews' argument that California Code of Civil Procedure section 580(b) bars recovery of attorneys' fees because (without conceding the validity of the argument) it is too late to raise the issue. The court has no discretion at this point to do anything other than comply with the directions of the appellate courts.      For the foregoing reasons, the court finds that Travers was the prevailing party in the action instituted by Travers on the promissory note and that $72,400.00 is a reasonable amount for attorneys' fees. Counsel for Travers shall immediately submit an appropriate form of order.
Dated: October 10, 1994                                                   _______________________                                                                                                       Alan Jaroslovsky                                                                                                       U.S. Bankruptcy