New Mexico Motor Speedway, Inc.

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
New Mexico Motor Speedway, Inc.
05-14845
Minutes of Final Hearing Held On 9/19/05 Re: [6-1] Application To Employ Brian
E. Rowe, CPA by New Mexico Motor Speedway, Inc. .
Received on: 2005-09-20 15:09:32.000
2005-09-20 00:00:00.000
2005-09-21 00:00:00.000
Mary Anderson
Case 05-14845-s11 Doc 72 Filed 09/20/05 Entered 09/21/05 09:22:00 Page 1 of 3

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
Clerk’s Minutes
Before the Honorable James Starzynski
James Burke, Law Clerk
Jill Peterson, Courtroom Deputy
**Hearing was Digitally Recorded
Date:
MONDAY, SEPTEMBER 19, 2005
In Re:
NEW MEXICO MOTOR SPEEDWAY
No. 11-05-14845 SA
FH on Motion to Employ Accountant by Debtor
(applic. #6, affdt #7, obj. #24 & 28)
Attorney for Debtor: Dave Giddens
Attorney for Richards Parking, Inc., et al.: William Chappel and Robert
Jacobvitz
Attorney for UST: Leonard Martinez-Metzgar
Attorney for Madison, Harbour Law Firm: Gregory Steinman and Marisol Garcia
_____________________________________________________________________
TIME STARTED: 2:18 pm 	TIME ENDED: 4:18 pm
Summary of Proceedings: 	Exhibits ______
Testimony ______
MOTION DENIED. 	Mr. Jacobvitz to do order.
Case 05-14845-s11 Doc 72 Filed 09/20/05 Entered 09/21/05 09:22:00 Page 2 of 3

Ruling:
1334 and 157; core; 7052
The application of the estate to hire Mr. Rowe is denied.
Possible 547 and 548 actions. 	And the corporation and Mr. Shakra sort of
acknowledged that (re 547) by paying Mr. Rowe beforehand so he would not be a
creditor. 	I am aware of the distinctions that courts make between actual and
potential conflicts, but there is no bright line that I have been able to
determine, and this situation looks too much like an actual conflict.
Mr. Rowe did work for Mr. Shakra et al. prepetition, and helped determine what
the numbers are for the corporation that the DIP has now put in its schedules,
etc. – it would be difficult for an ordinary human being to go back and
seriously re-examine and challenge those numbers to the extent that the estate
on the one hand and the Mr. Shakra et al. on the other hand (esp. Mr. Shakra)
had a difference of opinion and the estate (or creditors of the estate) wanted
that issue raised. 	I don’t know where this leaves the average professional
that has worked for a corporation (or partnership, etc.) and all its owners,
directors, officers, family members, etc. when the corporation becomes a DIP,
but it does not work in this case.
By this I mean no attack on Mr. Rowe’s integrity at all; if anyone could pull
off being completely objective and loyal to the estate, it would be Mr. Rowe,
but I am not going to put him in that position.
There is also the issue of a potential claim against the estate and Mr. Rowe
for interference with contractual relations. 	I have a question about how
solid that is, in law and in fact, but it is not an empty threat with nothing
offered to back it up, and so that is an additional reason to not permit the
employment, although whether it would be so on its own is not something I need
to decide.
Case 05-14845-s11 Doc 72 Filed 09/20/05 Entered 09/21/05 09:22:00 Page 3 of 3