Mobile Alabama Associates, LLC v. Hoeppner Construction Corporation
ORDER denying 111 motion of MAA for renewed judgment as a matter of law or alternatively for new trial; granting Hoeppner's 121 motion for leave to supplement; finding that the amounts requested for attorneys' fees, expenses and pre-jud gment interest (Docs. 109 , 121 , 122 ) should be awarded; and directing Hoeppner to file a response to this order further detailing or explaining the amounts requested for post-judgment interest, along with a proposed order as set out. Signed by Judge Callie V. S. Granade on 4/22/2011. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MOBILE ALABAMA ASSOCIATES, LLC, )
) CIVIL ACTION NO. 07-00432-CG-B
This matter is before the court on the motion of Hoeppner Construction
Corporation (“Hoeppner”) for attorneys’ fees (Doc. 109), the motion of Mobile
Alabama Associates, LLC (“MAA”) for renewed judgment as a matter of law or
alternatively for new trial (Doc. 111), MAA’s opposition to the motion for attorneys’
fees (Doc. 113), Hoeppner’s opposition to the renewed motion for judgment as a
matter of law or for new trial (Doc. 118), Hoeppner’s motion for leave to supplement
its motion for attorneys’ fees (Doc. 121), Hoeppner’s supplemental motion for
attorneys’ fees (Docs. 121, 122), Hoeppner’s reply in support of attorneys’ fees (Doc.
125), MAA’s reply in support of judgment as a matter of law or new trial (Doc. 126),
and MAA’s response in opposition to attorneys’ fees (Doc 127).
The trial of this matter was held from March 9 through 13, 2009. MAA’s
claims for breach of contract, breach of express warranty, breach of implied
warranty, negligence, wantonness, and fraud were presented to the jury along with
Hoeppner’s counterclaim for breach of contract. The jury found in favor of
Hoeppner on all of the claims and found Hoeppner was entitled to damages in the
amount of $270,500 on its counterclaim. (Doc. 104). After judgment was entered,
Hoeppner moved for attorneys’ fees and MAA moved for renewed judgment as a
matter of law. However, before responses in opposition could be filed, MAA filed for
relief under Chapter 11 of the Bankruptcy Code and this case was stayed pending
completion of the bankruptcy proceedings or lift of the stay. (Docs 114, 116). This
court lifted the stay of this case on October 29, 2010, upon receiving notice that the
bankruptcy stay had lifted as to Hoeppner’s claims in this case. (Docs. 119, 120).
Responses have since been filed by both parties and the motions are ripe.
MAA seeks judgment as a matter of law or for new trial pursuant to Rules 50
and 59 based on the following contentions: 1) the evidence overwhelmingly
indicated that Hoeppner failed to perform its contractual obligations and therefore
breached the contract with MAA, 2) the evidence overwhelmingly indicated that
Hoeppner fraudulently misrepresented that the work would be performed in
accordance with the contract documents and failed to perform the work in that
manner, and 3) Hoeppner’s reference at trial to the wealth of MAA and the poverty
of Hoeppner improperly influenced and invoked the sympathy of the jury. (Doc.
111). MAA’s opposition to the motion for attorneys’ fees is also based on MAA’s
contention that the evidence does not support Hoeppner’s claim. MAA asserts that
Hoeppner is not entitled to attorneys’ fees because Hoeppner failed to perform its
A. Renewed Motion for Judgment as a Matter of Law
Judgment as a matter of law under Rule 50 of the Federal Rules of Civil
Procedure is appropriate where “there is no legally sufficient evidentiary basis for a
reasonable jury to find for the non-moving party.” Optimum Techs., Inc. v. Henkel
Consumer Adhesives, Inc., 496 F.3d 1231, 1251 (11th Cir. 2007). In deciding a Rule
50 motion, the “proper analysis is squarely and narrowly focused on the sufficiency
of evidence.” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007). The
question is “whether there was sufficient evidence, as a legal matter, from which a
reasonable jury could find for the party who prevailed at trial.” Id. at 1228. The
court looks at the record evidence, drawing all inferences in favor of the non-moving
party. Nurse “Be” v. Columbia Palms W. Hosp. L.P., 490 F.3d 1302, 1308 (11th Cir.
2007). The existence of a genuine issue of material fact precludes judgment as a
matter of law, but the presence of “a mere scintilla of evidence” does not create a
genuine issue of material fact. Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th
Cir. 1999) (en banc). A jury verdict will stand unless the evidence is so weighted in
favor of the moving party that the moving party must prevail as a matter of law.
Thosteson v. United States, 331 F.3d 1294, 1298 (11th Cir. 2003) (citing Mendoza,
195 F.3d at 1244). A renewed motion under Rule 50(b) must be based upon the
same grounds as the original motion. Chancy, 483 F.3d at 1228.
MAA first claims that judgment should be entered in its favor because the
evidence overwhelmingly indicated that Hoeppner failed to perform its contractual
obligations and thus, breached the contract. The court notes that although MAA
refers to the trial testimony at length, it did not file a transcript of the trial or quote
the actual trial testimony. Both MAA and Hoeppner refer generally to the
testimony they remember being offered at trial and only refer directly to the trial
MAA argues that the evidence demonstrated that Hoeppner did not comply
with the contract between the parties and that Hoeppner even admitted to
breaching several provisions of the contract. However, there was evidence that
many of Hoeppner’s asserted breaches were immaterial and that some of the
requirements stated in the supplemental documents to the contract were not agreed
to and were inconsistent with their practice of dealing with each other. There was
also evidence that MAA breached the contract and delayed and/or prevented
Hoeppner from complying with the contract. For instance, there was evidence that
MAA failed to timely pay Hoeppner, that MAA failed to timely obtain the necessary
plans and permits, and that MAA made significant modifications. The court finds
that there was sufficient evidence for a jury to find that MAA’s failures and
modifications resulted in substantial delays, prevented Hoeppner from performing
under the contract, and resulted in significant losses to Hoeppner. The evidence
supports a finding that Hoeppner substantially performed the contract and that
MAA’s breaches resulted in Hoeppner incurring the damages detailed in Hoeppner
trial exhibit 150, which is consistent with the jury’s verdict. The court finds that
MAA has not shown that the evidence is so weighted in its favor that it must
prevail as a matter of law.
MAA also argues that the evidence overwhelmingly indicates that Hoeppner
fraudulently misrepresented that the work would be performed in accordance with
the contract documents. However, as mentioned above, there was evidence that the
terms contained in the supplementary documents to the contract were not agreed to
by the parties. Moreover, there was evidence that such representations were not
relied upon by MAA and that it did not suffer damages as a proximate cause of the
alleged misrepresentations.1 There was also evidence that Hoeppner had no intent
to deceive. As such, the court finds that there was sufficient evidence for a jury to
find that Hoeppner was not liable for fraudulent misrepresentation.
Lastly, MAA argues that Hoeppner’s reference at trial to the wealth of MAA
[basic] elements of fraud are (1) a false representation (2) of a material
existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as a
proximate consequence of the misrepresentation. Ex parte Michelin North America, Inc., 795
So.2d 674, 678 (Ala. 2001).
and the poverty of Hoeppner improperly influenced and invoked the sympathy of
the jury. Specifically, MAA objects to testimony being presented regarding a loan
entered into between MAA and Monarch Bank in the amount of $4.5 million. “In
determining whether the admission of evidence regarding a party's financial status
constitutes reversible error, however, this Court must consider the evidence, the
argument itself, the prejudicial effect of the evidence and the argument, and any
limiting or cautionary actions of the trial court.” Murphy v. Droke, 668 So.2d 513,
516 (Ala. 1995) (citation omitted).
Although the loan reportedly was not used solely for the funding of the
construction project at issue in this case, MAA does not dispute that it was entered
into, at least in part, to fund the project at issue. Hoeppner alleged that MAA’s
delays caused problems with the project, making MAA’s failure to timely obtain
financing an issue in the case. There was testimony that MAA did not have funding
in place when the project began and that MAA did not make timely payments to
Hoeppner. The court notes that the loan amount does not necessarily indicate the
wealth of MAA, but merely indicates the size of the projects they are involved in.
Hoeppner did not offer any detailed testimony of the wealth of MAA or its members.
Hoeppner also asserts that the overall financing for the construction was relevant
to assist the jury in putting into perspective the inflated damages being claimed by
MAA as compared to the overall monies borrowed to construct the buildings.
Hoeppner also points out that MAA introduced testimony regarding the prior
experience of MAA’s members in developing other commercial properties and
elicited testimony that the members flew to Mobile, Alabama, in a private jet to
meet with a sub-contractor. Under the circumstances, the court finds that the loan
documents were relevant evidence and the admission of the loan documents did not
prejudice MAA. As such, the court finds that MAA has not shown that it is entitled
to judgment as a matter of law.
B. Motion for New Trial
The court may grant a motion for new trial “for any reason for which a new
trial has heretofore been granted in an action at law in federal court.” FED.R.CIV.P.
59(a)(1)(A). A party may seek a new trial on grounds that
the verdict is against the weight of the evidence, that the damages are
excessive, or that, for other reasons, the trial was not fair to the party
moving; and may raise questions of law arising out of alleged
substantial errors in admission or rejection of evidence or instructions
to the jury.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). District courts are
entrusted with broad discretion in determining whether a new trial is warranted in
a particular case. See, e.g., Hessen for Use and Benefit of Allstate Ins. Co. v. Jaguar
Cars, Inc., 915 F.2d 641, 644 (11th Cir. 1990). However, the remedy of granting a
motion for new trial “is sparingly used.” Johnson v. Spencer Press of Maine, Inc.,
364 F.3d 368, 375 (1st Cir. 2004) (citation omitted). The Eleventh Circuit has
specifically instructed district courts that a motion for new trial should be granted
when “the verdict is against the clear weight of the evidence or will result in a
miscarriage of justice, even though there may be substantial evidence which would
prevent the direction of a verdict.... Because it is critical that a judge does not
merely substitute his judgment for that of the jury, new trials should not be granted
on evidentiary grounds unless, at a minimum, the verdict is against the great-not
merely the greater-weight of the evidence.” Lipphardt v. Durango Steakhouse of
Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001) (internal quotations and
citations omitted); Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1559 (11th Cir. 1984)
(“The trial judge's discretion to set aside a jury verdict based on the great weight of
the evidence is very narrow,” and is limited to “protect[ing] against manifest
injustice in the jury's verdict.”); Pozzi Window Co. v. Auto-Owners Ins. Co., 429
F.Supp.2d 1311, 1323 (S.D. Fla. 2004) (“A trial judge may grant a motion for new
trial if the jury verdict is contrary to the great weight of the evidence”; however, he
may not “simply substitute his judgment for that of the jury.”).
The court finds that a new trial should not be granted for essentially the
same reasons that MAA is not entitled to judgment as a matter of law. The court
finds that the verdict is not against the great weight of the evidence and that there
were no substantial errors in admission of evidence. Accordingly, the court will
deny MAA’s motion for new trial.
C. Attorneys’ Fees
Hoeppner’s asserts that it is entitled to recover reasonable attorneys’ fees,
interest and expenses pursuant to ALA. CODE § 8-29-1 et. seq., which is also known
as the Miller Act.2 Hoeppner’s original motion for attorneys’ fees claims attorneys’
fees in the amount of $312,510.59, expert witness services in the amount of
$36,847.66, deposition transcripts in the amount of $7,434.86, pre-judgment
interest in the amount of $99,658.40 and post-judgment interest at 12% per
annum.3 (Doc. 109). Hoeppner moved for leave to supplement the motion for
attorneys’ fees (Doc. 121), and that motion is hereby GRANTED.
Hoeppner’s supplemental motion for attorneys’ fees requests an additional
$33,473.94 in attorneys fees in relation to the post trial motions in this case and in
the bankruptcy case4 ($23,305.56 incurred by Alford, Clausen & McDonald, LLC
and $10,168.38 incurred by Rayman & Stone) (Doc. 121-7, ¶ 6). Thus, the total
Ala. Code § 8-29-6:
A contractor, subcontractor, or sub-subcontractor may file a civil action solely
against the party contractually obligated for the payment of the amount claimed to
recover the amount due plus the interest accrued in accordance with this chapter. If
the court finds in the civil action that the owner, contractor, or subcontractor has
not made payment in compliance with this chapter, the court shall award the
interest specified in this chapter in addition to the amount due. In any such civil
action, the party in whose favor a judgment is rendered shall be entitled to recover
payment of reasonable attorneys' fees, court costs and reasonable expenses from the
Hoeppner’s figures represent amounts for both the federal and related state court
matter. MAA has not objected to the state court fees and expenses being included.
spent on general bankruptcy administrative matters, deposition of MAA
members in September 2010 in Michigan regarding MAA’s transfer of cash assets
and matters related to a claim against the three members for their fraudulent
transfers pending in Mobile County Circuit Court were redacted and are not
included in the requested amount. (Doc. 121, ¶ 17).
amount of attorneys’ fees requested is $345,984.53.5
MAA opposed the motions for attorneys’ fees on the basis that they are not
recoverable because Hoeppner failed to perform its contractual obligations. MAA
states that the Miller Act only permits Hoeppner to recover attorneys’ fees,
reasonable expenses, and interest if a judgment is rendered in favor of Hoeppner.
MAA argues that the Miller Act does not provide a remedy against an owner that
properly withholds payment or to a contractor that fails to perform its contractual
obligations. However, this court found above that the evidence supports a finding
that Hoeppner substantially performed under the contract, that MAA owes
Hoeppner money under the contract, and that the jury’s verdict should stand.
Accordingly, the court finds that Hoeppner can recover reasonable attorneys fees
MAA has not objected to the fee rates or hours charged and, upon review, the
court finds the requested amounts to be reasonable. MAA has also not specifically
objected to the amounts requested as expenses and the court upon review also finds
these amounts to be reasonable. The court also finds that the requested $99,658.40
in pre-judgment interest is appropriate. However, the court is confused by
Hoeppner’s request for post-judgment interest. The supplemental motion requests
court notes that this figure is $1.01 less than the amount calculated by
Hoeppner. It is unclear where this discrepancy comes from, but by the court’s
calculations the requested amounts for each law firm ($23,305.56 and $10,168.38
added to the originally requested amount of $312,510.59) total $345,984.53.
“Post-Judgment Interest Prior to Ruling on Fee Claim” in the amount of $171.57
per day and “Post-Judgment Interest After Ruling on Fee Claim” at 12%.
Accordingly, the court finds it necessary to order Hoeppner to file a response to this
order explaining the amounts requested for post-judgment interest and attaching a
For the reasons stated above, the motion of MAA for renewed judgment as a
matter of law or alternatively for new trial (Doc. 111), is DENIED; and Hoeppner’s
motion for leave to supplement (Doc. 121), is GRANTED.
With regard to Hoeppner’s motions for attorneys’ fees (Docs, 109, 121, 122),
the court finds that the amounts requested for attorneys’ fees, expenses and prejudgment interest should be awarded. However, the court ORDERS Hoeppner to
file a response to this order further detailing or explaining the amounts requested
for post-judgment interest. Hoeppner should attach to its response a proposed
order that includes all of the amounts requested.
DONE and ORDERED this 22nd day of April, 2011.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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