United States District Court, N.D. Indiana, South Bend Division
LOCK REALTY CORPORATION IX, Plaintiff.
U.S. HEALTH, LP, et. al., Defendants.
OPINION AND ORDER
ROBERT L. MILLER, Jr., District Judge.
The parties filed cross-appeals challenging various prior rulings in Lock I and Lock II. The court of appeals found no error, affirmed the judgments, taxed costs against the defendants, and summarily granted Lock Realty's motion for attorneys' fees, and remanded for a determination of the proper amount due. Lock Realty Corp. IX v. U.S. Health, LP , 707 F.3d 764, 770-74 (7th Cir. 2013). Following the remand, defendants (collectively referred to as "Americare" for simplicity) also moved for appellate fees, seeking fees for services rendered in responding to Lock Realty's appeal. Lock Realty countered with a motion for fees related to its efforts to collect on the judgments. For the following reasons, the court denies the motions.
Whether Lock Realty is entitled to fees on appeal under the terms of the lease and guaranties isn't a question for this court at this point. The court of appeals already determined that it is. The first question is whether Americare also is a prevailing party. Americare says it is the prevailing party on Lock Realty's appeal and is entitled to reasonable fees for time expended on issues raised in that appeal. Americare seeks a total of $55, 312.00 (213.1 hours at hourly rates ranging from $210-$305 for three attorneys).
Lock Realty presented three issues on appeal:
(1) whether [this] court abused its discretion when it struck [Jean] Tipton's expert opinion, denied Lock's motion to strike the opinions of Greg Jurgonski and Bonnie Mitchell, and denied Lock's motion to supplement its evidence of future damages; (2) whether on the record that existed, Lock showed that there were no genuine issues of material fact on its claim for future rent damages, and thus was entitled to summary judgment on that point; and (3) whether [this] court abused its discretion by allowing Americare to assert its setoff defense and by refusing to allow Lock to conduct discovery on that issue.
Lock Realty Corp. IX v. U.S. Health LP , 707 F.3d at 770. Americare presented two appellate issues:
(1) attack[ing] [this] court's decision to permit [Timothy] Maher's affidavit to be used in support of attorneys' fees in both Lock I and Lock II, and (2) argu[ing] that the district court erred both in awarding fees to Lock and in refusing to adjust the amount of fees to reflect Americare's success on its setoff argument.
The court of appeals found no abuse of discretion with respect to the first and third issues that Lock Realty raised, and held that Lock Realty couldn't satisfy its burden of proof with respect to the second once the court "rejected [Ms.] Tipton's report and denied Lock's motion to supplement the record." Id. at 770-773. The court of appeals also rejected Americare's arguments, holding that this court didn't err in admitting Mr. Maher's affidavit as support for Lock Realty's fee requests and didn't abuse its discretion "in its decision to award fees or in the amount of the fees and costs it selected." Id. at 773-774.
The decision was ultimately a draw. Neither side prevailed on its own appeal; each prevailed on its opponent's. In the end, the parties spent a great deal of time and energy simply to maintain the status quo.
Lock Realty responds that the law of the case doctrine precludes an award of fees to the defendants because both the appellate and district court have previously determined that Lock was the prevailing party in the underlying litigation; the court of appeals specifically considered and rejected defendants' argument when it granted Lock Realty's motion for fees in connection with the appeal; and the outcome of the appeals doesn't change that determination. But Lock Realty offers no law or evidence for the proposition that Indiana law and the lease would not allow both sides to be prevailing parties if there are multiple actions in which attorney fees are incurred.
The lease expressly provides that:
In the event either party brings an action against the other to enforce any condition or covenant of this lease, the prevailing party in such action shall be entitled to recover the court costs and reasonable ...