1 ABR 517

HERBERT A. ROSS
U.S. Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ALASKA
605 West 4th Avenue, Room 138, Anchorage, AK 99501-2296

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In re
MARTINSON GRAVEL & CRANE, INC.,
	Case No. A89-01142-HAR
	Chapter 11
Debtor(s).	ORDER DENYING APPLICATION TO APPROVE EMPLOYMENT NUNC PRO TUNC, BUT ALLOWING COSTS
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        Smith Coe & Patterson moved nunc pro tunc for an order approving its application to be employed as attorneys for the debtor. The application was filed on March 29, 1991, but the case was filed in November, 1988, almost a year and a half ago. Smith Coe & Patterson acted as debtor's attorney when the case was filed. After a little over a month, Smith Coe & Patterson was replaced by attorney William D. Artus. Smith Coe & Patterson moved for attorney fees of $8,175.00 and costs of $801.99. It has been paid only $700.00.

        Employment of an attorney by a debtor-in-possession or trustee must be approved by the court. 11 U.S.C. § 327. This is usually done at the beginning of the engagement. The court has authority to issue retroactive orders for employment of professionals. Nunc pro tunc orders should not be routinely    1 ABR 518 granted, however. If reasonable objections are raised, the burden is on the applicant for employment to justify a nunc pro tunc order. Where lateness in applying for authorization for employment is the result of inexcusable or unexplained negligence, retroactive effect should not be given to the order authorizing employment. In re Crook, 79 B.R. 475 (9th Cir.BAP 1987). See, also, In re Kroeger Properties, 57 B.R. 830 (9th Cir. BAP, 1986), adopting the tests in In re Twinton Properties Partnership, 27 B.R. 817, 819-820 (Bankr. M.D. Tenn. 1983), and In re THC Finance Corp., 837 F.2d 389 (9th Cir. 1988), an Old Act case, but applicable to Code.

        At the hearing on May 9, 1991, Smith Coe & Patterson offered no excuse for not having filed an application for over a year and a half. It also appears to the court that the firm did not have the experience for a chapter 11 of this size and may have bitten off more than it could chew. The court will enforce the Crook rule and deny fees.

        IT IS ORDERED that the application to employ Smith Coe & Patterson nunc pro tunc is DENIED. Costs will be allowed in the amount of $801.99 less a $700.00 offset, or a net of $101.99.

       DATED:    May 9, 1991.

HERBERT A. ROSS
Bankruptcy Judge

Serve:
William D. Artus, Esq. for Debtor
Bruce Rausch, Esq. for Smith Coe & Patterson
U.S. Trustee