OPINION
Thе Beneke Company, Inc. appeals from an order of the bankruptcy court disallowing Beneke’s unsecured claim for fees billed to the Debtor for services rendered by Beneke’s secretaries and execu *693 tive assistant and holding that Beneke’s postpétition fees arising from prepetition contractual obligations are not administrative priority expenses pursuant to 11 U.S.C. § 503(b)(1)(A). We AFFIRM.
I.ISSUES ON APPEAL
Two issues are before the Panel on appeаl: (1) whether the bankruptcy court erred in concluding that the term “representatives” as used in the parties’ fee agreement does not include Beneke’s secretaries and executive assistant, and (2) whether the bankruptcy court abused its discretion in denying Beneke’s request for § 503(b)(1)(A) administrative expense priority for postpetition fees incurred pursuant to Beneke’s prepetition agreement with the Debtor.
II.JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Appellate Panel has jurisdiction over final orders of the bankruptcy court for the Northern District of Ohio pursuant to '28 U.S.C. § 158(a)(1) and (c). The bankruptcy court’s order of October 28, 1998, disallowing that portion of Beneke’s unsecured claim representing fees incurred for secretarial services and for services of its executive assistant and denying administrative expense priority under § 503(b)(1)(A) for Benej^e’s postpetition fees, is a final, appealable order.
Tedeschi v. Falvo (In re Falvo),
The bankruptcy court’s conclusions as to the proper interpretation of a contract are subject to de novo review.
First Bank of Ohio v. Brunswick Apartments of Trumbull County, Ltd. (In re Brunswick Apartments of Trumbull County, Ltd.),
The bankruptcy court’s denial of Beneke’s claim for administrative expense priority pursuant to § 503(b)(1)(A) is reviewed for an abuse of discretion.
Citybank v. Udhus (In re Udhus), 218
B.R. 513, 515 (9th Cir. BAP 1998). “An abuse of discretion occurs only when the [bank ruptcy] court ‘relies upon clearly erroneous findings of fact or when it improperly applies the law or uses an erroneous legal standard.’ ”
Sicherman v. Diamoncut, Inc. (In re Sol Bergman Estate Jewelers, Inc.),
To the extent that this appeal involves the bankruptcy court’s interpretation of the applicable statute, we review the question of law de novo.
See Andersson v. Security Fed. Sav. & Loan of Cleveland (In re Andersson),
III.FACTS
The Debtor, Economy Lodging Systems, Inc. (“ELS”), which owns and manages motels, was alerted to the possible existence of defective polybutylene plumbing systems in some of its motel buildings. The Beneke Company (“Beneke”) is a property loss consultant and is known in the motel industry as an expert on polybu-tylene plumbing systems and their defects. On September 8, 1993, ELS and Beneke entered into an “Estimating and Consulting Agreement” (“Agreement”) whereby Beneke agreed to, among other things, “locate, estimate and document the loss *694 and damage incurred by reason of faulty polybutylene plumbing systems” and assist ELS in the pursuit of any claims arising from defective polybutylene plumbing installed in any of the eleven motels specified in the parties’ Agreement. The Agreement further provided, in pertinent part:
2. Services. The services to be performed by BENEKE include the estimating of loss and damage to the SYSTEMS and to surrounding areas and property caused by leaks in the SYSTEMS, the identification of the polybutylene, and shall include the determination of the most feasible methods to replace the SYSTEMS with copper pipes and brass fittings, together with the estimating of the loss, damage ■ and costs associated with such replacement.
6. Compensation. BENEKE’s compensation for servicеs hereunder, shall be paid from any payment, whether by settlement, judgment or otherwise, by any manufacturers, designers, marketers and/or installers of such polybutylene plumbing systems upon presentation of the ESTIMATES as contemplated above. The amount of the compensation to BENEKE shall be $150.00 per hour for time expended by BENEKE representatives in the performance of the services provided herein, but such compensation shall in no event be greater than ten pеrcent (10%) of the total amount recovered by OWNER/AGENT for OWNER/AGENT’s loss and damage, whether recovered by settlement, judgment or otherwise. Payment of compensation to BENEKE shall be due only upon receipt by OWNER/AGENT of any settlement or judgment proceeds paid of OWNER/AGENT’s claim, (emphasis added).
8. Except to the extent BENEKE may present the ESTIMATES to representatives of the manufacturers, designers, marketers and installers, BE-NEKE will not assert or present any claim or engage in any settlement or negotiations, mediations, arbitration or litigation other than by providing information to OWNER/AGENT or its lawyers in support of such proceedings, or by acting as an expert witness. (emphasis added).
14. Writing Required. A waiver, alteration, or modification of any of the provisions of this agreement shall not be binding unless in writing and signed by authorized representatives of the parties to this AGREEMENT, (emphasis added).
Beneke assisted ELS in obtaining experienced legal counsel and then maintained contact with and reported to that attorney rather than directly to ELS. During the course of its investigation, Bеneke prepared a preliminary survey, which indicated that seven of the eleven motels Beneke inspected had been damaged or would incur damages as a result of defective poly-butylene plumbing systems. ELS decided to pursue its claims by joining in a lawsuit with other plaintiffs.
Communications between Beneke and ELS’s attorney subsequently deteriorated, and the attorney hired a different consulting firm to complete the plumbing project and to assist in the pursuit of ELS’s damage claims. However, neither the attorney nor ELS officially terminated the Beneke Agreement nor advised Beneke to stop work on the project. The new consulting firm repeated Beneke’s work and provided other services, and ELS’s lawsuit eventually settled out of court.
ELS was placed in a receivership and subsequently commenced its Chapter 11 bankruptcy on October 4, 1994. ELS regained access to its corporatе offices and *695 records for two days following the Chapter 11 filing and then lost control of its corporate documents again until the receivership was lifted, on February 7, 1995. ELS’s corporate records were apparently in significant disarray during this period, and ELS completed its bankruptcy schedules primarily from its accounts receivable records. These records did not identify Beneke as a creditor because, pursuant to the contingent payment terms of the parties’ Agreement, no payment was due Be-neke at that time. As a result, ELS failed to list Beneke as a creditor on its bankruptcy petition. Beneke therefore had no notice of ELS’s bankruptcy until the Summer of 1995 but continued its work on the ELS project well after that time.
Approximately one year after learning of the bankruptcy, Beneke filed a motion for leave to file its proof of claim and a motion for administrative expense priority for its postpetition fees. In addition to the fees billed for prepetition work by Beneke consultants, Beneke’s total claims of $142,-200 also represented secretarial and executive assistant fees of $37,387.50, and $50,-212.50 in fees incurred postpetition.
ELS objected to the amount billed for the services of Beneke’s secretaries and executive assistant, arguing that these employees were not “representatives” contemplated in paragraph six of the parties’ Agreement. ELS also objected to Be-neke’s motion for administrative expense priority for its postpetition fees because Beneke failed to meet the requirements of § 503(b)(1)(A) of the Bankruptcy Code. The bankruptcy court allowed Beneke an unsecured claim of $104,812.50, after disallowing the secretarial and executive assistant fees.
Relying on well-established rules of contract construction, the bankruptcy court determined_ that the term “representatives” in the Agreement did not encompass Beneke’s secretaries and executive assis--tant. The bankruptcy court also determined that Beneke’s claim for postpetition fees was not entitled to administrative expense priority pursuant to § 503(b)(1)(A), as Beneke’s Agreement with the Debtor arose prepetition and Beneke failed to show that the bankruptcy еstate benefitted from its postpetition services.
On appeal, Beneke argues that the parties intended the term “representative” to include Beneke’s clerical employees and staff for billing purposes, or that the term is so ambiguous as to permit such a broad definition. Beneke further argues that its claim for postpetition services is entitled to administrative expense priority due to the Debtor’s breach of duty in failing to list Beneke as a creditor in the bankruptcy petition and because the Debtor will otherwise be unjustly enriched.
IV. DISCUSSION
A. Interpretation of the term “representative” in the Agreement
The Agreement stipulated that it is to be governed in accordance with Texas law. In construing a contract under Texas law, courts must “give terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used them in a technical or different sense.”
Heritage Resources, Inc. v. NationsBank,
The bankruptcy court, looking at the four comers of the Agreement, deter
*696
mined that the ordinary meaning of the term “representative” was the meaning supplied by Black’s Law DictionaRy 1302 (6th ed.1990), which defines “ ‘representative’ as including ‘an agent, an officer of a corporation or association, and a trustee, executor or administrator of an estate, or any other person empowered to act for another.’ ”
In re Economy Lodging Sys., Inc.,
Beneke’s argument that “[it] is quite reasonable ... for the term ‘representative’ to include clerical employees” is inconsistent with the ordinary meaning of the term and with the manner in which the term is used elsewhere in the Agreement.
See Clardy Mfg. Co. v. Marine Midland Business Loans Inc.,
In addition, the term “representatives” also appears in the Agreement in a context that does not ordinarily include secretaries or executive assistants. It is unlikely, under the terms of the Agreement, that Be-neke intended to present its damage estimates to the secretaries of its clients. Likewise, it is also improbable that a secretary or an executive assistant would be authorized to waive, alter or modify the Agreement on Beneke’s behalf. In the context of the Agreement, the uses of the term “representatives” are consistent with the bankruptcy court’s view that the term rеfers to one “empowered to act for another.”
Economy Lodging Sys.,
For these reasons, we conclude that the bankruptcy court properly applied the ordinary meaning to the term “representatives” and properly found that the term does not encompass Beneke’s secretarial and executive assistant staff.
*697 B. Administrative expense priority
Section 503(b)(1)(A) of the Bankruptcy Code states:
(b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under seсtion 502(f) of this title, including-
(1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case[.]
11 U.S.C. § 503(b)(1)(A).
The purpose of this Code section is to encourage third parties to provide the debtor in possession with goods and services essential to rehabilitation of the business.
United Trucking Serv., Inc. v. Trailer Rental Co. (In re United Trucking Serv., Inc.),
Exceptions to the “benefit to the estate” test have been recognized, and Beneke partially relies upon these exceptions, including an exception to the strict postpetition element of the test. In
Reading Co. v. Brown,
The Sixth Circuit has also carved out an “unjust enrichment” exception to the general rule, where the court found that priority expenses under § 503 “should reflect actual value conferred on the bankrupt estate by reason of wrongful” conduct on the part of the debtor.
United Trucking Serv.,
The thrust of Beneke’s argument in support of its claim for administrative expense priority is that ELS breached a duty to Beneke when ELS failed to schedule or otherwise provide notice to Beneke of its pending bankruptcy, and, as a result, Beneke continued working under the Agreement without seeking assumption of the contract. Beneke also contends that the bankruptcy estate has benefitted by Beneke’s postpetition services and by the Debtor’s failure to pay Beneke’s fees.
The bankruptcy court explained that Beneke’s postpetition work could not satisfy the test for administrative expense priority set forth by the Sixth Circuit in
Sunarhauserman,
The bankruptcy cоurt also determined that Beneke’s claim was not entitled to administrative expense priority under the rule set forth in
Irmas Family Trust v. Madden (In re Madden),
Beneke also relies on
United Trucking Service
and
Goldin v. Putnam Lovell, Inc. (In re Monarch Capital Corp.),
In light of the Act’s purpose of enabling the continued operation of insolvent businesses, we conclude that the bankruptcy court was correct in treating TRC’s post-petition damages claim as an administrative expense under § 503. United’s asserted failure to maintаin and repair the trailers in accord with the lease obligation allowed United, the debtor, to use the money saved and not paid for TRC’s benefit as contemplated under the lease, to continue its operations. This breach and misuse of TRC’s trailers did benefit the bankrupt estate. Accordingly, the damages under the breached lease covenant, to the extent that they occurred post-petition, provided benefits to the bankrupt estate and were properly accorded priority under § 503 to TRC.
Id. at 162.
Going further, the court placed a limit on its ruling: “[Section] 503 priority should be granted only to reflect actual value conferred on the bankrupt estate.”
Id.
at 163. In the present case, the bankruptcy court found a lack of “any benefit” conferred upon the estate by Beneke’s postpetition work.
Economy Lodging Sys.,
Beneke also contends that the benefit conferred in United Trucking Service was the debtor’s continued use of cash that should have been paid to the lessor and argues that ELS similarly benefitted in this case by retaining the use of funds that should have been paid to Beneke for its postрetition services. The United Trucking Service Court found unjust enrichment not merely in the fact that the estate failed to pay a creditor and instead used the money elsewhere, but also in the fact that the debtor in possession continued to take advantage of the creditor’s property in the postpetition operation of the debtor’s business. In contrast, the Debtor here appears to have been unaware that Beneke was even providing services postpetition, and the evidence fully supports the bankruptcy court’s finding that the Debtor did not take advantage of Beneke’s services in the postpetition operation of the Debtor’s business such that the Debtor and the estate’s other creditors would be unjustly enriched at Beneke’s expense.
The proof also supports the bankruptcy judge’s finding that the Debtor did not induce Beneke’s postpetition work. Be-neke’s argument that it was so induсed and, thus, harmed by the Debtor’s failure to schedule this creditor, thereby creating a postpetition obligation between the Debt- or and Beneke, is undermined by Beneke’s one-year delay between obtaining knowledge of the bankruptcy and fifing its motion for administrative expense priority. The Debtor’s failure to schedule Beneke, which the bankruptcy court found to be justifiably explained, does not rise to the level of the egregious nature of the debt- or’s actions in
United Trucking Service. See, e.g., In re Cardinal Indus., Inc.,
Based on its analysis of the circumstances existing in this ease, the bankruptcy court properly exercised its discretion in denying administrative expense priority to Beneke’s claim for postpetition fees. To the extent Beneke’s argument raises a question of incorrect interpretation of Code § 503, we find no error by the bankruptcy court.
V. CONCLUSION
The bankruptcy court’s order reducing Beneke’s unsecured claim by amounts representing fees billed by its clerical staff and holding that Beneke’s claim for post-petition fees arising from prepetition contractual obligations were not administrative priority expenses pursuant to 11 U.S.C. § 503(b)(1)(A) is AFFIRMED.
Notes
. The
Monarch
court relied on principles of restitution, determining that all a creditor need establish to recover the value of its services is that it “rendered postpetition services pursuant to its prepetition contract, without objection by the Trustee, and that the services had value to the estate.”
Monarch,