Case: 12-11221   Date Filed: 11/16/2012           Page: 1 of 9


                                                                     [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 12-11221
                           Non-Argument Calendar
                         ________________________

          D.C. Docket Nos. 8:11-cv-02223-JSM ; 8:90-bk-10016-PMG



In Re: The Celotex Corporation,
In Re: Carey Canada, Inc.,

                                                 lllllllllllllllllllllllllllllllllllllllllDebtors.

_________________________________________

THE PROPERTY DAMAGE ADVISORY COMMITTEE,

                                   llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,

                                        versus

THE CELOTEX ASBESTOS SETTLEMENT TRUST,

                                  llllllllllllllllllllllllllllllllllllllllDefendant - Appellee.




                         ________________________
              Case: 12-11221    Date Filed: 11/16/2012   Page: 2 of 9



                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                               (November 16, 2012)

Before MARTIN, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

      The Property Damage Advisory Committee appeals from the bankruptcy

court’s denial of its motion to compel payment of counsel fees from the Asbestos

Settlement Trust.

                                        I.

      This appeal arises out of long-standing personal injury and property damage

claims relating to the manufacture and use of building materials containing

asbestos. The Asbestos Settlement Trust (the Trust) was formed after Celotex

Corporation and Carey Canada Inc.—respectively, a manufacturer and distributor

of asbestos—filed for Chapter 11 bankruptcy protection in 1990 after being named

as defendants in thousands of asbestos-related lawsuits. See In re Celotex Corp.,

, 1324 (11th Cir. 2007). The Trust was established to manage the

approval, disallowance, and payment of property damage and personal injury

claims against Celotex and Carey Canada. See id. at 1325. This is not the first



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time that this Court has been asked to resolve disputes between the Trust and its

beneficiaries. See generally id.

       This particular appeal requires us to answer when counsel for the Property

Damage Advisory Committee is entitled to recover fees for services under the

Trust Agreement. The Second Amended and Restated Asbestos Settlement Trust

Agreement creates a number of bodies to facilitate the processing and

administration of property damage claims. Of particular relevance to this appeal,

the Trust Agreement establishes the Property Damage Advisory Committee (the

Committee) to aid in the resolution of property damage claims against the Trust.

See Trust art. 8.1. The Committee exists under the Trust Agreement “until the

date the Trust pays the last Allowed PD [Property Damage] Claim and all

disallowed PD Claims have been disallowed by final, non-appealable order.” Id.

The Agreement assigns the Committee various duties. Among those

responsibilities is the duty to consult with the Trustees concerning the

“implementation and administration of [the Claims Resolution Procedures],” id. at

art. 3.2(e)(ii); see also id. at art. 8.1, and the duty to “serve in a fiduciary capacity

representing all holders of PD Claims,” id. at art. 8.1. The Committee also

reviews financial statements and annual reports issued by the Trust. See id. at art.

3.2(c)(i)–(ii).

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      In addition to the duties assigned in the Trust Agreement, the Committee

has specific responsibilities in the Third Amended and Restated Asbestos Property

Damage Claims Resolution Procedures (APDCRP). This document obligates the

Property Damage Claims Administrator to “participate and consult with the

[Committee] on all major policy and administrative decisions affecting . . .

implementation of[] the APDCRP.” APDCRP § II. The Administrator must also

obtain the Committee’s consent when affecting any “material changes . . . in these

APDCRP for processing Asbestos Property Damage Claims, but not related to

specific amounts to be paid or percentages to be paid.” Id.

      In connection with these duties, the Trust Agreement requires the Trust to

reimburse all reasonable expenses incurred by the Committee “in connection with

the performance of [its] duties hereunder, including costs and fees of professionals

and experts.” Trust art. 8.6(c).

                                           II.

      In October 2006, the Property Damage Claims Administrator informed the

bankruptcy court that all property damage claims had been processed, although

some issues remained as to the payment of some approved claims. In February

2009, after three years of adjudicating those payment issues, the bankruptcy court

established a cut-off date of August 12, 2009 for “any and all claims arising from

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or relating to [property damage claims] that were allowed by the Property Damage

Claims Administrator but not promptly paid by the trust.”

      Even after the cut-off date passed, a number of property damage claims

remained outstanding against the Trustees, including claims for breach of express

and implied contract; breach of trust; and breach of fiduciary duty. The claims

largely arose out of delayed payment of property damage claims that had been

allowed by the Claims Administrator and the allegedly unequal treatment of

property damage claimants as compared to personal injury claimants. Also after

the cut-off date, the Trust filed an annual report explaining the status of existing

claims against the Trust in May 2010 and served it on the Committee.

      In June 2010, in connection with these remaining claims, the Committee

filed a motion to compel the Trust to pay its counsel fees. The bankruptcy court

denied the motion in part. The parties disputed whether the Committee still

existed after the cut-off date for filing new claims. The court ruled that although

the Committee still existed under the Trust Agreement, the Committee had no

duties to perform under the Agreement after the cut-off date of August 12, 2009.

The bankruptcy court explained that the Committee’s duties were limited to “the

formulation and administration of claims resolution procedures” as outlined in

Section II of the APDCRP. Relying upon this assumption, the bankruptcy court

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reasoned that the Committee’s claims-processing duties ceased after August 12,

2009—the cut-off date for filing or processing any additional claims against the

Trust. The district court affirmed the bankruptcy court, and the Committee

appealed.

                                         III.

        We examine a bankruptcy court’s fact-finding for clear error and its legal

conclusions de novo. In re Celotex Corp, 487 F.3d at 1327–28. We

independently interpret the terms of the Trust Agreement and accompanying plan

documents to determine the duties of the Committee, and whether the Committee

may be compensated for expenses incurred in performing those duties. See id. at

1328.

        To begin, we agree with the bankruptcy court that the Committee still exists

under the Trust Agreement. Article 8.1 of the Trust Agreement provides that the

Committee “shall exist . . . until the date the Trust pays the last Allowed [Property

Damage] Claim and all disallowed [property damage] claims have been disallowed

by final, non-appealable order.” Article 1.24 of the Modified Joint Plan of

Reorganization defines a property damage claim to include “any claim . . . relating

to or arising by reason of, directly or indirectly, property damage.” Thus, if there

are any unresolved claims that arose out of asbestos property damage, even

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indirectly, then the Committee continues to exist. The outstanding claims—breach

of express and implied contract, breach of trust, and breach of fiduciary

duty—arose out of the Trust’s alleged duty to pay property damage claims in

accordance with the terms and procedures outlined in the Trust Agreement and

accompanying plan documents. Therefore, the Committee still exists.

      We turn next to the duties of the Committee under the Trust Agreement.

Section 8.1, which is entitled, “Formation; Duties,” identifies two core duties of

the Committee. First, “[t]he Trustees must consult with the PD Advisory

Committee on matters [concerning the APDCRP].” Trust art. 8.1; see also id. at

art. 3.2(e)(i)–(ii). Second, “[t]he PD Advisory Committee . . . shall serve in a

fiduciary capacity representing all holders of [property damage] claims.” Id. at art.

8.1. Thus, under the clear terms of Article 8.1, in addition to its duties related to

the APDCRP, the Committee has a duty to represent property damage claimants in

a fiduciary capacity.

      In reaching this conclusion, we have rejected the bankruptcy court’s ruling

and the Trust’s argument that the Committee’s duties were limited to the duties

enumerated in the APDCRP. The Committee correctly points out that its duties

are broader than facilitating the processing of new property damage claims under

the APDCRP. For example, the Trustees are obligated to furnish the Committee

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with annual financial reports and reports regarding the number and type of claims

disposed of during the previous fiscal year. See Trust arts. 3.2(c)(i)–(ii). The

Trust Agreement thus appears to contemplate some level of review and approval

of these reports by the Committee. See id. (referring to the Committee as a

member of the “Approving Entities”). Indeed, the record supports that the

Committee engaged in at least some review of these records in May 2010 when the

Trustees served them with the annual report. Therefore, we cannot conclude that

August 12, 2009—the cut-off date for filing new claims against the Trust—is

determinative of whether the Committee was performing its duties under the Trust

Agreement.1

       At this juncture, we need not delineate all the Committee’s duties under the

Trust Agreement. It suffices for now to say that at least some duties under the

Trust Agreement were broader than those identified in the APDCRP, and that the

Committee performed those broader duties even after the cut-off date for filing



       1
           The Committee alleges, as it did in the bankruptcy court, that it seeks reimbursement in
part for counsel fees that it incurred in reviewing the Trust’s annual report filed in May 2010. It
also seeks reimbursement for performance of its basic fiduciary duties, which it defines as the
duty of loyalty, a duty to act in the best interest of the parties, and a duty to disclose material
facts. While we accept that the review of annual reports is a compensable duty under the
agreement, we reject that the fact of being a fiduciary, standing alone, is compensable under the
agreement. A fiduciary duty does not exist in a vacuum, but instead defines the relationship of
the fiduciary to the principal as it acts pursuant to the terms of the agreement. See Restatement
2d Trusts § 2(b).

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new claims against the Trust.2

                                            IV.

       For these reasons, we VACATE the bankruptcy court’s order, and

REVERSE and REMAND for further proceedings consistent with this opinion.




       2
        The Committee concedes that its duties under the Plan Documents do not include the
advocacy of individual property damage claims. See APDCRP § II.

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