Case Summaries

Attorney's Fees

[09/03] Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc.
An order denying counter-claimants damages, attorneys' fees, and costs in an action for trademark infringement against plaintiffs is affirmed in part, vacated in part, and remanded where: 1) the doctrine of unclean hands does not bar the application of the equitable defense of acquiescence in this instance; 2) plaintiff had permission to use the marks at issue before July 12, 2006; and 3) a remand was proper so that the district court may consider the applicability of plaintiffs' defense of acquiescence in a manner consistent with the circuit court's opinion.

[09/01] Fisher v. Wal-Mart Stores, Inc.
In an action against Wal-Mart Stores, Inc. and two Missouri police officers following an incident involving counterfeit money orders at a Raymore Wal-Mart store, summary judgment for defendants is affirmed where: 1) given these undisputed facts, probable cause supported plaintiff's warrantless arrest; 2) attorney's fees were proper because plaintiff's continued prosecution of her false arrest claim against the officers in the face of the evidence upon discovery was unquestionably groundless and unreasonable; and 3) the record reflected no evidence of racial animus or hostility toward plaintiff.

[09/01] Smith v. Selma Cmty. Hosp.
In plaintiff's successful suit against a hospital to have his hospital privileges reinstated, trial court's denial of his motion for attorney fees is reversed and remanded where: 1) when the conditions contained in section 809.9 are shown, the prevailing party is entitled to attorney fees; 2) the statutory phrase "frivolous, unreasonable, without foundation, or in bad faith," set forth separate grounds for an award of attorney fees; 3) the terms "frivolous," "unreasonable" and "without foundation" are objective standards that might overlap; 4) the term "bad faith" is a subjective standard concerned with a defendant's motives for defending or litigating a lawsuit; and 5) because a defendant's subjective state of mind is usually proven by circumstantial evidence, a defendant's prelitigaton conduct and postlitigation conduct are relevant evidence from which inferences can be drawn regarding its motives in defending or litigating a lawsuit.

[08/31] Wickens v. Shell Oil Co.
In plaintiffs' suit against Shell Oil under Indiana's Underground Storage Tank Act, claiming that Shell Oil was liable for the contamination on a plot of land where plaintiffs' shoe store was located, district court's grant of most of the plaintiffs' requests for corrective actions costs and attorney's fees is affirmed in part, reversed in part and remanded where: 1) without a better showing from the plaintiffs' attorney, the court will assume that the district court did its job properly when it decided to award $37,443.25 in litigation costs and disbursements; 2) there is no error in ordering Shell to pay for the corrective action costs incurred in May and June 2007; 3) district court did not abuse its discretion in denying the attorney's request for prejudgment interest; 4) district court did not abuse its discretion in denying Shell's Rule 60(b) motion; and 5) district court's judgment is reversed and remanded insofar as it miscalculated when it deducted the attorney's wife's fees from the attorneys' fees award.

[08/31] Cotchett, Pitre & McCarthy v. Universal Paragon Corp.
In defendant's suit against a law firm, claiming that an arbitrator's award of $7,554,149.13 in attorney fees and expenses for the law firm, related to its representation of defendant in an underlying complex environmental litigation, is unconscionable and violates public policy, superior court's affirmance of the award is affirmed as, assuming that defendant's claim of unconscionability is subject to judicial review as a predicate for determining whether the arbitration award violates public policy, the claim is rejected on the merits as neither the fee agreement nor the award actually issued by the arbitrator is unconscionable under rule 4-200 of the Rules of Professional Conduct.

[08/30] Metavante Corp. v. Emigrant Savings Bank
In plaintiff's suit for breach of contract against defendant-bank for nonpayment of fees under the parties' Technology Outsourcing Agreement, judgment of the district court is affirmed where: 1) an expert's testimony was both relevant and reliable; 2) district court correctly determined that plaintiff did not breach the Agreement's performance warranty and its duty of good faith; 3) district court did not err in concluding that any reliance by defendant on the alleged misrepresentations of plaintiff was not reasonable; 3) district court committed no reversible error in determining that defendant's fraud claims were without merit; 4) district court determined correctly that defendant's success on the in-house issue does not render it a "prevailing party" within the meaning of the contract; and 5) the district court acted within the bounds of its discretion in determining that no additional guarantee of reasonableness was required.

[08/30] Flood v. ClearOne Communications, Inc.
In defendant's appeal from a preliminary injunction requiring defendant-corporation to advance attorney fees and costs to its former CEO, who was then facing a criminal trial, the order is vacated where the district court misread the parties' contract as a matter of law, disregarding express conditions to advancement specified in their agreement.

[08/27] Garcia v. Gomez
In plaintiff's suit against a hospital and a treating physician for the death of plaintiff's mother from a pulmonary embolism following surgery, court of appeals' affirmance of trial court's dismissal of the suit and denial of defendants' motion for attorney's fees is reversed and remanded where: 1) there is some evidence of reasonable attorney's fees and some evidence that the physician incurred attorney's fees; 2) section 74.351(b) mandates an award of attorney's fees and costs, when expert reports are not served timely.

[08/27] Transcon. Ins. Co. v. Crump
In plaintiff's suit against her deceased husband's insurer for workers' compensation death benefits, the judgment of the court of appeals is reversed and remanded where: 1) the treating physician's opinion was based on a reliable foundation and, therefore, legally sufficient evidence supports the jury's verdict; 2) the trial court's omission of the but-for component in the jury charge constitutes reversible error; and 3) an insurance carrier is entitled to have a jury determine the disputed amount of reasonable and necessary attorney's fees for which it is liable.

[08/25] Fuller v. Fiber Glass Sys., L.P.
In an action under 42 U.S.C. section 1981 and Title VII of the Civil Rights Act of 1964 claiming discrimination (non-selection), harassment (supervisor and co-worker), and retaliation, judgment for plaintiff is affirmed where: 1) a reasonable juror could find that plaintiff did not unreasonably fail to take advantage of preventative/corrective opportunities offered by defendant, and thus defendant was not entitled to judgment as a matter of law on the Ellerth-Faragher affirmative defense; 2) the testimony regarding plaintiff's emotional distress was sufficient to allow a reasonable juror to award plaintiff $65,000 in compensatory damages; and 3) any issue with the magistrate judge presiding over the punitive damages portion of the trial was moot.

[08/19] New W. Charter Middle Sch. v. Los Angeles Unified Sch. Dist.
In plaintiff-charter school's suit against the Los Angeles School District for revoking its offer to plaintiff a number of classrooms and the shared use of other facilities at a high school, trial court's judgment awarding plaintiff $175,630.72 in damages and denial of attorney fees is affirmed but modified where: 1) plaintiff's damages are the value of co-location at the high school less the costs of co-location, for a total damage calculation of $187,356; and 2) trial court's order denying attorney fees is affirmed as it did not err in concluding that plaintiff's expense was not disproportionate to its stake in the case.

[08/18] In re: Mercury Interactive Corp. Sec. Litig.
In a securities class action, the district court's order awarding attorneys' fees of twenty-five percent of the $117.5 million settlement fund to class counsel is vacated where the district court erred under Federal Rule of Civil Procedure 23(h) in setting the schedule for objecting to counsel's fee request.

[08/17] Sottoriva v. Claps
District court's reduction of an Illinois Department of Human Rights employee's fee award by 67%, accounting for the partial success of the employee's suit against the Director of the Department and the Comptroller of the State of Illinois for withholding portions of his salary without an adequate hearing, is vacated and remanded as, although it was entirely proper for the district court to conclude that plaintiff achieved only "partial" success and that the lodestar figure should thus be reduced to reflect this fact, the district court provided insufficient reasoning in support of its judgment.

[08/13] El-Tabech v. Clarke
In an action by a Muslim inmate alleging that prison officials were violating his religious rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act, two contempt orders regarding defendants' compliance with the district court's judgment are reversed where: 1) Congress did not reflect in 42 U.S.C. section 1988 a "clear and manifest" intent to entirely preempt statutes such as Neb. Rev. Stat. section 25-1806; 2) the district court failed to determine an appropriate compensatory post-judgment interest rate; and 3) plaintiff did not fully deduct time spent on unsuccessful or non-compensable issues, his attorneys spent an unreasonable amount of time on compensable aspects of the case, and the requested fee was not proportional to the relief obtained.

[08/11] Howard v. Am. Nat'l Fire Ins. Co.
In plaintiff's suit against insurers to recover on a judgment arising from an underlying case against a Catholic Bishop that retained a priest in his diocese who molested plaintiff, trial court's judgment is affirmed where: 1) defendant insurer had a duty to indemnify the Bishop for damages assessed in the underlying litigation and plaintiff, as a judgment creditor, was entitled to recover against the insurer on that judgment; 2) trial court properly calculated the amount of recovery on the judgment; 3) defendant breached its duty to defend and owed contribution to the defending insurers; 4) defendant breached its duty to settle the underlying case; 5) defendant acted in bad faith; 6) bad faith damages were properly calculated; 7) Brandt fees were properly awarded; 8) plaintiffs are entitled to prejudgment interest; 9) trial court erred in awarding JAMS fees to plaintiffs; 10) trial court did not err in awarding plaintiffs' deposition costs; and 11) trial court did not abuse its discretion in awarding other costs.

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