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To: scion who wrote (11742)	11/19/2007 8:43:16 PM
From: scion	Respond to of 12518

11/19/2007 320 Motion to Set Aside Agreed Order, filed by Plasticon International, Inc.. (Kennedy, Ellen) (Entered: 11/19/2007) --------------------------- Doc 320 IN RE: PLASTICON INTERNATIONAL , INC. DEBTOR. CASE NO. 07-50934 CHAPTER 11 HON. WILLIAM S. HOWARD MOTION TO SET ASIDE AGREED ORDER Comes Fowler Measle & Bell PLLC and for its Motion to Set Aside the Agreed Order (the “Order”) [D.E. #315] entered November 16, 2007, regarding the Application for Fees and Expenses filed by Wyatt, Tarrant & Combs, LLP (“Wyatt”) [D.E. #281] (the “Application”) states as follows; Fowler Measle & Bell PLLC (“Fowler”) requests the Court to set aside the Order for several reasons, the primary reason being that the terms regarding the transfer of the remaining retainer held by Wyatt (the “Retainer”) to Wise DelCotto (“WD”), attorneys for Unsecured Creditors Committee (the “Transfer”), as set out in the Agreed Order was not a part of the Application proper. Because the Application of Wyatt does not address the Retainer issue, it is not appropriate for the Agreed Order to direct the Transfer without other notice to the parties. The time to object to the Wyatt Application had not run at the time that the Agreed Order was entered. Given that the Agreed Order contains new information regarding the retainer, it would be appropriate that at the very least the Agreed Order should be tendered with opportunity for parties to object within the time allowed to object to the Application itself. There are more parties, specifically, the Fowler firm, which have interest in the distribution of the Retainer held by Wyatt. That Fowler was not a party to the Agreed Order should make entry of the Order inappropriate. Fowler does not consent to the Transfer of the Retainer to the escrow account of WD. The Retainer at issue was paid to the then counsel for the Debtor. It is only appropriate that it be turned over to current counsel, Fowler. The Order Employing WD did state that the Debtor should turnover a $25,000.00 carve-out retainer to WD, but that direction was clearly intended to be in addition to and separate and apart from the $55,000.00 retainer held by Wyatt and there is no reference in the WD Employment Order to the Wyatt retainer. Fowler submits that the retainer held by Wyatt should be turned over to the Fowler firm as was requested in the Debtor’s Application to Employ Fowler Measle & Bell PLLC filed August 16, 2007 [D.E. #168], as that Application was sustained and no further issues related to the Debtor’s counsel’s retainer have come before the Court by Motion. Other than paragraph 4, which refers to the treatment of the retainer, Fowler has no objection to the remaining terms of the Order. Respectfully submitted, FOWLER MEASLE & BELL PLLC /s/ Ellen Arvin Kennedy Ellen Arvin Kennedy, Esq. Timothy A. West, Esq. 300 West Vine Street, Suite 600 Lexington, KY 40507-1660 Telephone:(859) 252-6700 Facsimile: (859) 255-3735 Email: EAKennedy@Fowlerlaw.com TWest@Fowlerlaw.com ATTORNEYS FOR DEBTOR, PLASTICON INTERNATIONAL, INC. CERTIFICATE OF SERVICE I hereby certify that the foregoing was served this the 19th day of November, 2007, electronically in accordance with the method established under this Court’s CM/ECF Administrative Procedures and Standing Order dated July 25, 2002 upon all parties in the electronic filing system in this case. /s/ Ellen Arvin Kennedy ATTORNEY FOR DEBTOR, PLASTICON INTERNATIONAL, INC.