B-176876, NOV 27, 1972

B-176876, NOV 27, 1972

CIVILIAN PERSONNEL - TRANSFER OF STATION - SALE OF RESIDENCE - ATTORNEY'S FEES DECISION ALLOWING IN PART THE CLAIM OF DR. BRUCE C. BECKER, FOR REIMBURSEMENT OF ATTORNEY'S FEES INCURRED IN CONNECTION WITH THE SALE OF HIS FORMER RESIDENCE INCIDENT TO A TRANSFER OF STATION BY THE DEPARTMENT OF THE NAVY FROM LAKE FOREST, ILL. TO BETHESDA, MD. THE COST OF UNITEMIZED SPECIAL SERVICES BY AN ATTORNEY IS NOT REIMBURSABLE. ALSO, AN ATTORNEY'S FEE TO REPRESENT AND COUNSEL AN EMPLOYEE IN CONNECTION WITH A REAL ESTATE TRANSACTION MAY NOT BE REIMBURSED. 48 COMP. GEN. 469 (1969). HOWEVER, AN ATTORNEY'S FEES FOR THE REVIEW OF THE ORIGINAL SALE CONTRACT OF THE RESIDENCE AND A MODIFICATION OF IT TO INCLUDE A SECOND MORTGAGE AND THE REVIEW OF A LETTER OF OPINION IN CONNECTION WITH THE PREPARATION OF AN AFFIDAVIT OF TITLE ARE REIMBURSABLE. MOREOVER, THE COST IN PREPARATION OF A POWER OF ATTORNEY IS REIMBURSABLE WHERE THE EMPLOYEE IS UNABLE TO ATTEND THE SETTLEMENT DUE TO THE TRANSFER OF STATION. ALSO, LEGAL FEES FOR PREPARING CLOSING DOCUMENTS AND CONDUCTING THE SAME ARE REIMBURSABLE, B 174011, NOV. 15, 1971.

TO DR. BRUCE C. BECKER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1972, REQUESTING RECONSIDERATION OF THE DENIAL BY THE TRANSPORTATION AND CLAIMS DIVISION OF YOUR CLAIM FOR REIMBURSEMENT OF ATTORNEY'S FEES INCURRED BY YOU IN CONNECTION WITH THE SALE OF YOUR FORMER RESIDENCE INCIDENT TO YOUR TRANSFER OF STATION BY THE DEPARTMENT OF THE NAVY FROM LAKE FOREST, ILLINOIS, TO BETHESDA, MARYLAND.

YOUR CLAIM IN THE AMOUNT OF $525 WAS DENIED DUE TO YOUR FAILURE TO SUBMIT AN ITEMIZED STATEMENT OF THE TYPE OF SERVICES PERFORMED BY THE ATTORNEY AND THE CHARGE FOR EACH. YOU HAVE NOW SUBMITTED A STATEMENT FROM THE ATTORNEY WHICH SHOWS THAT $140 REPRESENTS UNITEMIZED SPECIAL SERVICES AND THE FOLLOWING ITEMS, COMPUTED AT THE MINIMUM BAR FEE OF $35 PER HOUR IN THE CHICAGO AREA, TOTALING $385:

1. REVIEW OF THE ORIGINAL CONTRACT PREPARED

BY BROKER AND MODIFICATION TO INCLUDE

SECOND MORTGAGE REQUIRED TO COMPLETE SALE. 1 HOUR $ 35

2. REVIEW OF LETTER OF OPINION AND

SUGGESTIONS CONCERNING IT. 1 HOUR $ 35

3. APPROXIMATELY 25 TELEPHONE CONVERSATIONS

WITH THE BROKER, THE MORTGAGE

COMPANIES, THE PURCHASER, AND THE SELLER. 2 HOURS $ 70

4. APPROXIMATELY 20 PIECES OF CORRESPONDENCE

PREPARED FOR THE ABOVE

PARTIES, NECESSARY FOR COMPLETING

THE TRANSACTION. 3 HOURS $105

5. PREPARATION OF THE FOLLOWING DOCUMENTS:

WARRANTY DEED 30 MIN.

POWER OF ATTORNEY 15 MIN.

ASSUMPTION AGREEMENT 15 MIN.

TRANSFER OF TAX RESERVE 15 MIN.

CLOSING STATEMENT 45 MIN.

AFFIDAVIT OF TITLE 15 MIN.

BILL OF SALE 30 MIN.

ILLINOIS REVENUE FORM FOR TRANSFER 15 MIN.

3 HOURS $105

6. CLOSING AT OUR OFFICES, ATTENDED BY

PURCHASER, BROKER AND ATTORNEY. 1 HOUR $ 35

TOTAL TIME SPENT: 11 HOURS $385

THE REGULATIONS WHICH CONTROL THE REIMBURSEMENT OF EXPENSES FOR LEGAL FEES IN CONNECTION WITH A CHANGE OF STATION IS OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, SECTION 4.2C WHICH READS AS FOLLOWS:

"C. LEGAL AND RELATED COSTS. TO THE EXTENT SUCH COSTS HAVE NOT BEEN INCLUDED IN BROKERS' OR SIMILAR SERVICES FOR WHICH REIMBURSEMENT IS CLAIMED UNDER OTHER CATEGORIES, THE FOLLOWING EXPENSES ARE REIMBURSABLE WITH RESPECT TO THE SALE AND PURCHASE OF RESIDENCES IF THEY ARE CUSTOMARILY PAID BY THE SELLER OF A RESIDENCE AT THE OLD OFFICIAL STATION OR IF CUSTOMARILY PAID BY THE PURCHASER OF A RESIDENCE AT THE NEW OFFICIAL STATION, TO THE EXTENT THEY DO NOT EXCEED AMOUNTS CUSTOMARILY CHARGED IN THE LOCALITY OF THE RESIDENCE; COSTS OF (1) SEARCHING TITLE, PREPARING ABSTRACT, AND LEGAL FEES FOR A TITLE OPINION, OR (2) WHERE CUSTOMARILY FURNISHED BY THE SELLER, THE COST OF A TITLE INSURANCE POLICY; COSTS OF PREPARING CONVEYANCES, OTHER INSTRUMENTS, AND CONTRACTS; RELATED NOTARY FEES AND RECORDING FEES; COSTS OF MAKING SURVEYS, PREPARING DRAWINGS OR PLATS WHEN REQUIRED FOR LEGAL OR FINANCING PURPOSES; AND SIMILAR EXPENSES. COSTS OF LITIGATION ARE NOT REIMBURSABLE."

ATTACHED TO THE ATTORNEY'S STATEMENT IS A COPY OF THE LOCAL BAR ASSOCIATION'S MINIMUM FEE SCHEDULE WHICH INDICATES THAT THE ATTORNEY NORMALLY PERFORMS THE FOLLOWING SERVICES FOR THE SELLER WHICH ARE PERTINENT TO THIS CASE:

1. DRAFTING OR REVIEWING OF OFFER TO PURCHASE, CONTRACT OF SALE, OR ARTICLES OF AGREEMENT FOR WARRANTY DEED.

2. DRAFTING OF DEED AND OTHER INSTRUMENTS, INCLUDING AFFIDAVITS OF TITLE, BILL OF SALE AND ANY OTHER AFFIDAVITS OR OTHER REQUIRED DOCUMENTS.

3. PREPARATION OF CLOSING STATEMENTS, INCLUDING PRORATIONS.

THE $140 AMOUNT IS OF COURSE NOT FOR CONSIDERATION SINCE THERE IS NO ITEMIZATION OR EXPLANATION THEREOF OTHER THAN THE STATEMENT THAT SUCH AMOUNT COVERED "SPECIAL SERVICES." ITEM 1, AS QUOTED ABOVE, IS ALLOWABLE SINCE THE RECORD INDICATES THAT THE ATTORNEY MODIFIED THE ORIGINAL CONTRACT TO INCLUDE THE SECOND MORTGAGE REQUIRED TO COMPLETE THE SALE. THE RECORD INDICATES THAT THE REVIEW OF THE LETTER OF OPINION WAS APPARENTLY MADE IN CONNECTION WITH THE PREPARATION OF THE AFFIDAVIT OF TITLE. ACCORDINGLY, ITEM 2 IS ALLOWABLE.

IT HAS BEEN HELD THAT THE FEE WHICH AN EMPLOYEE PAYS TO RETAIN AN ATTORNEY TO REPRESENT AND COUNSEL HIM IN CONNECTION WITH A REAL ESTATE TRANSACTION MAY NOT BE REIMBURSED UNDER THE ABOVE REGULATION. 48 COMP. GEN. 469 (1969). INASMUCH AS THE TELEPHONE CONVERSATIONS AND CORRESPONDENCE WERE APPARENTLY FOR THE ABOVE PURPOSES, ITEMS 3 AND 4 ARE FOR DISALLOWANCE.

SECTION 4.2C OF THE CIRCULAR PROVIDES FOR REIMBURSEMENT FOR THE PREPARATION OF INSTRUMENTS REQUIRED FOR LEGAL PURPOSES. AS TO THE PREPERATION OF A POWER OF ATTORNEY, IT WAS HELD IN DECISION B-168254, NOVEMBER 19, 1969, THAT REIMBURSEMENT FOR THE PREPARATION OF SUCH AN INSTRUMENT WAS PRECLUDED WHEN THE NECESSITY THEREFOR DID NOT ARISE FROM THE REAL ESTATE TRANSACTION BUT FROM THE INABILITY OF ONE OF THE PARTIES TO THE SALE TO BE PRESENT AT THE SETTLEMENT BECAUSE OF ILLNESS. IN THE INSTANT CASE THE RECORD INDICATES THAT YOU HAD REPORTED TO YOUR NEW STATION PRIOR TO THE DATE OF SETTLEMENT AND WERE NOT PRESENT AT THE SETTLEMENT. THE POWER OF ATTORNEY, THEREFORE, APPEARS TO HAVE BEEN NECESSITATED BY THE GOVERNMENT'S ACTION IN TRANSFERRING YOU TO A POST SEVERAL HUNDRED MILES DISTANT FROM YOUR OLD STATION. UNDER SUCH CIRCUMSTANCES, THE DECISION OF NOVEMBER 19, 1969, WOULD BE INAPPLICABLE. ACCORDINGLY, THE COST INCURRED FOR THE POWER OF ATTORNEY AND THE OTHER INSTRUMENTS LISTED IN ITEM 5 ARE FOR ALLOWANCE.

LEGAL FEES FOR PREPARING CLOSING DOCUMENTS AND CONDUCTING THE SAME ARE REIMBURSABLE. B-174011, NOVEMBER 15, 1971. THE RECORD HERE SHOWS THAT THE CLOSING WAS HELD AT YOUR ATTORNEY'S OFFICE. THEREFORE, IT IS REASONABLE TO ASSUME THAT HE CONDUCTED THE CLOSING. UNDER SUCH CIRCUMSTANCES, ITEM 6 IS ALLOWABLE.

WE HAVE INSTRUCTED OUR TRANSPORTATION AND CLAIMS DIVISION TO PROCESS YOUR CLAIM IN ACCORDANCE WITH THIS DECISION. A SETTLEMENT IN YOUR FAVOR WILL ISSUE IN DUE COURSE.