The debtor filed a voluntary petition under Chapter 11 of the Bankruptcy Code on May 14, 1992. Pending at that time, and apparently filed only a few days prior, was an action in the Floyd Circuit Court, Kentucky, wherein Elk Horn Coal Corporation (AElk Horn@) was attempting to have that court adjudicate that the debtor had defaulted under the terms of its lease agreement concerning certain mineral properties that the debtor was mining under a lease with Elk Horn.

On August 9, 1996, the debtor filed its Motion for Order Allowing and Authorizing Debtor to Pay Class I Claims Pursuant to Plan of Reorganization and Notice wherein it sought to pay its Class I claims pursuant to the confirmed plan which were the administrative expenses incurred in the Chapter 11 proceeding. As a part of that motion, debtor sought to pay for legal services the sums of $21,937.50 to Earl Martin McGuire, an attorney, and $16,556.77 to Daniel King, III, also an attorney. No application for retention of these individuals under any provision of the Bankruptcy Code had been filed during the proceeding to that date and, when the matter was called for hearing on August 28, 1996, the Court, by order from the bench, ordered that appropriate applications to employ the attorneys be filed with additional time for objections by Elk Horn after which the Court would take the matter under submission. At the hearing, the Court directed attorney Leathers for Elk Horn to prepare an order and submit the order for signature by the attorney for the debtor and McGuire. Apparently, based upon representations in the briefs, attorney Leathers prepared such an order and forwarded to other counsel for signature but that order apparently did not arrive in the Clerk=s office.

On November 26, 1996, a motion was filed by the debtor to employ attorneys McGuire and King, nunc pro tunc, and to allow compensation as sought in the previous application. Also filed on that date was the first interim application for compensation by McGuire and his affidavit, and the application of King for compensation and his affidavit. Elk Horn subsequently filed its memorandum of law in support of the objections. Because no order was entered reflecting that the parties had completed the briefing of the matter and that the matter should stand submitted to the Court, as per the Court=s order from the bench on August 28, 1996, no computer entry was made putting the matter on the list of submitted cases and the matter lay dormant in the file until McGuire renewed his application by refiling his First Interim Application for Allowance of Reasonable Compensation and Reimbursement of Actual Necessary Expenses on September 16, 1997. McGuire also filed an additional affidavit at that time, Elk Horn renewed its objection and the matter was heard on October 8, 1997.

This latter result has been reached by several other courts. Matter of Arkansas Co., Inc., 798 F.2d. 645 (3^rd Cir. 1986) (retroactive approval may be granted by bankruptcy court only under extraordinary circumstances excusing failure to have sought prior approval); In re Occidental Financial Group, Inc., 40 F.3d. 1059 (9^th Cir. 1994) (fees may be awarded which were not authorized in advance only in exceptional circumstances where a satisfactory explanation is provided and there is a demonstration that the services significantly benefitted the estate); In re Land, 943 F.2d 1265 (10^th Cir. 1991) (nunc pro tunc approval is appropriate only in extraordinary circumstances which do not include simple neglect); In re Jarvis, 53 F.3d. 416 (1^st Cir. 1995) (since the Bankruptcy Code provision was ambiguous as to whether post facto authorization of outside professional services was permissible, and in light of the position of bankruptcy courts as courts of equity, bankruptcy courts may entertain post facto applications and applicants must demonstrate existence of extraordinary circumstances sufficient to excuse failure to file timely application); In re Anderson, 936 F.2d. 199 (5^th Cir. 1991) (no per se rule against nunc pro tunc employment and award of attorney=s fees applies); Matter of Singson, 41 F.3d. 316 (7^th Cir. 1994) (prior approval of engagement of attorneys and other professionals is strongly preferred but nothing in the Bankruptcy Code forbids belated authorization).

The attorneys in question in this matter, McGuire and King, have both filed affidavits setting forth the circumstances of their employment, their services rendered and various other matters. It is unquestioned that they rendered services to the debtor in possession in this matter and that, by dent of the efforts of all of the attorneys, including the Wyatt firm, who have already been compensated in this matter, a very successful conclusion was reached in the Elk Horn litigation. While both McGuire and King are sophisticated attorneys, they are not sophisticated bankruptcy attorneys nor do they claim to be. It is hard to imagine what sorts of reasons might be given to constitute the unusual or exceptional circumstances in which courts allow nunc pro tunc orders. Is the attorney too busy to file a three or four page application and affidavit? Are there so many fires to put out that ten minutes are not available to dictate, sign and file the appropriate application? The Court doubts that any of these constitute the real reason that these applications are not timely made. The real reason, normally, is simple oversight or the lack of the knowledge on the part of the attorney employed for a special litigation that any such application is required in a bankruptcy matter. The Court here is persuaded by the results obtained and the fact that the objector in this matter is the same party against whom these attorneys obtained those results. Elk Horn, of course, sees it as adding insult to injury that they lost in the circuit court action and now, as a creditor, their recovery will be diminished by attorney=s fees allowed to those very attorneys who prevailed over them earlier.

A review of the King application reveals that, while invoices total $16,371.77, $14,000 has been paid to King by Broken Hill Mining Company, Inc., a Asister corporation@ of the debtor during the pendency of the bankruptcy. King now wishes payment of the entire attorney fee, and the Court assumes this is with the intent of reimbursing Broken Hill for the payments it made. Additionally, objection has been made by Elk Horn to certain portions of Mr. King=s fees which clearly outline legal work other than the Elk Horn litigation. From a review of the record, it appears that Mr. King has been compensated in the amount of $14,000 already from another source and that the valid objections of Elk Horn to certain portions of the King invoices exceed the remaining balance due to King. Thus, the Court declines to award any further compensation to King than he has already received.

It appears clear that the likelihood of collecting attorney=s fees was small in the absence of a recovery after prevailing in the case. The case required good skills for trial practice. While there is a dispute concerning the actual fee agreement, this Court will apply the Lodestar method to determine applicable compensation. The amount in controversy in this proceeding, several million dollars, certainly warrants the retention of capable and experienced counsel. Mr. McGuire clearly qualifies. Apparently no previous compensation was paid to Mr. McGuire concerning this matter.