Breland et al v. Levada EF Five, LLC
ORDER DENYING Plf's 178 Renewed Motion for Judgment as a Matter of Law on Plf's Claims for Breach of Contract as set out; DENYING Plf's 179 Renewed Motion for Judgment as a Matter of Law on Levada's Counterclaim for Breach of Contract as set out; DENYING Plf's 180 Motion for New Trial or, Alternatively, Motion for Remittitur as set out; GRANTING in part, WITHHOLDING in part, & DENYING in part Levada's 175 Motion to Enter Final Judgment with Interest, Attorne ys' Fees & Litigation Expenses as set out. A separate judgment will be entered in Levada's favor against Plfs, jointly & severally, in the total amount of $2,397,695.94. Signed by Senior Judge Callie V. S. Granade on 4/28/2016. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CHARLES K. BRELAND, JR., et
LEVADA EF FIVE, LLC,
) CIVIL ACTION NO. 14-158-CG-C
This matter is before the Court on the motion of Plaintiffs1 for a
renewed judgment as a matter of law on Plaintiffs’ breach of contract claims
(Doc. 178), opposition thereto by Defendant Levada EF Five, LLC (“Levada”)
(Doc. 181), Plaintiffs’ Renewed Motion for Judgment as a Matter of Law on
Levada’s Counterclaim for Breach of Contract (Doc. 179), Levada’s opposition
thereto (Doc. 182), Plaintiffs’ Motion for a New Trail or, Alternatively, Motion
for Remittitur (Doc. 180), Levada’s response in opposition thereto (Doc. 183),
Levada’s Motion for Entry of Judgment With Interest, Attorneys’ Fees, and
Litigation Expenses (Doc. 175), and Plaintiffs’ objection thereto (Doc. 177).
For the reasons explained below, the Court holds that Plaintiffs’ Motions for
Plaintiff Charles K. Breland, Jr.; Osprey Utah, LLC (“Osprey”); Water
Canyon Holdings, LLC (“Water Canyon”); Range Creek Holdings, LLC
(“Range Creek”); and Utah Reserve Exchange, LLC (“Utah Reserve”) are
collectively referred to as “Plaintiffs”.
Judgment as a Matter of Law and their Motion for a New Trial or,
Alternatively, Motion for Remittitur is due to be denied. As to Levada’s
Motion for Entry of Judgment with Interest, Attorneys’ Fees, and Litigation
Expenses, the Court holds for the reasons set forth below that it is due to be
granted, in part, withheld, in part, and denied, in part.
This case arises from an Amended and Restated Agreement (the
“Agreement”) between Mr. Breland and Levada, which is a product of Mr.
Breland’s bankruptcy. The Agreement facilitated the transfer of Plaintiffs’
interest in approximately 20,676 acres of land located in Carbon County,
Utah (the “Utah property”) to Levada pursuant to the Agreement’s terms and
conditions. Plaintiffs filed a three-count breach of contract suit against
Levada, and Levada filed a one-count breach of contract counterclaim against
Plaintiffs. The case was tried before a jury in this Court on February 1, 2,
and 3, 2016.
Of the three counts originally filed, Plaintiffs only pursued two at trial:
(1) Levada failed to pay property taxes for the Utah property in violation of
Section 15 of the Agreement and (2) Levada failed to satisfy Section 8 of the
Agreement, which requires Levada, subject to force majeure, to meet certain
development obligations for the Utah property. Levada’s counterclaim
sought damages under Section 14 of the Agreement for Mr. Breland’s failure
to transfer three Questar Facility Agreements to Levada within 120 days of
the Agreement’s closing date. The jury returned a verdict in favor of Levada
on Plaintiffs’ two breach of contract claims and on Levada’s counterclaim for
breach of contract. (Doc. 173-1). On Levada’s counterclaim, the jury awarded
Levada “$1,500,000.00 – 79,328.98 Utah taxes paid,” which equals
$1,420,671.02 in total damages. Id. at 2.
A. Renewed Judgment as a Matter of Law
Judgment as a matter of law under Rule 50(a) 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). If the court denies a Rule 50(a) motion, the movant
may file a “renewed motion” after trial. Fed. R. Civ. P. 50(b).
The standard for deciding a Rule 50(b) motion is the same as a Rule
50(a) motion. McGinnis v. Am. Home Mortg. Servicing, Inc., – F.3d –, 2016
WL 1105394, at *8 (11th Cir. 2016). Thus, the proper Rule 50(b) “analysis is
squarely and narrowly focused on the sufficiency of the evidence.” Chaney v.
City of Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007). In evaluating whether
sufficient evidence supports a jury’s verdict, “‘the court must evaluate all the
evidence, together with any logical inferences, in the light most favorable to
the non-moving party.’” Id. (quoting Beckwith v. City of Daytona Beach
Shores, 58 F.3d 1554, 1560 (11th Cir. 1995)). The Court is ever mindful of
the Eleventh Circuit’s instruction that “‘[i]t is the jury’s task—not [the
court’s]—to weigh conflicting evidence and inferences, and determine the
credibility of witnesses.’” Id. (quoting Shannon v. Bellsouth Telecomms., Inc.,
292 F.3d 712, 715 (11th Cir. 2002)). “A motion under Rule 50(b) is not
allowed unless the movant sought relief on similar grounds under Rule 50(a)
before the case was submitted to the jury.” Exxon Shipping Co. v. Baker, 554
U.S. 471, 485 n.5 (2008).
Between Plaintiffs’ Renewed Motion for Judgment as a Matter of Law
for their two claims and Levada’s counterclaim, Plaintiffs raise three
arguments. First, Plaintiffs aver that undisputed evidence proved that
Levada did not pay taxes on the Utah property in accordance with Section 15
and, therefore, breached the Agreement. (Doc. 178, p. 3). Specifically,
Plaintiffs contend that Mr. Breland paid $79,328.98 in 2013 to cover the
taxes due on the Utah property from mid-2011 through 2012. Further,
Plaintiffs maintain that Levada’s representative, Adrian Zajac, admitted
during his testimony to not paying the taxes from mid-2011 on while under
an obligation to do so.2 Thus, Plaintiffs contend they are due judgment as a
matter of law on their failure to pay property taxes claim. Levada counters
Plaintiffs also insist that Levada never had the ability to pay the property
taxes for the Utah property. (Doc. 178, p. 3). After reviewing the relevant
trial transcript, the Court finds the testimony referenced does not support
Plaintiffs’ proposition. The line of questioned referenced specifically dealt
with the Section 14 development obligation and not the Section 15 payment
of taxes obligation.
that it produced sufficient evidence to show Plaintiffs caused or could have
caused Levada’s failure to pay taxes on the Utah property.
If Plaintiffs are the cause of Levada’s failure to pay taxes on the Utah
property, Plaintiffs cannot benefit from Levada’s nonperformance. See Tiller
v. YW Housing Partners, Ltd., 5 So. 3d 623, 629 (Ala. Civ. App. 2008).3
Testimony at trial diverges on this point. On the one hand you have Mr.
Breland testifying that he told Adrian Zajac4 the taxes were due but not sure
if he ever told Mr. Zajac he paid the taxes. (Doc. 184-1, p. 3, ll. 2–4). On the
other, Mr. Zajac testified that “there was some confusion in 2011 and ‘12 as to
getting all the proper taxes, all the proper tax notices.” (Doc. 184-2, p. 2, ll.
14–18). Upon finding out that Mr. Breland paid the taxes on the Utah
Property from mid-2011 through 2012, Mr. Zajac testified that he attempted
to reimburse Plaintiffs for the taxes paid but was refused. Id. at 3, ll. 1-5.
Moreover, Mr. Zajac’s testimony established that, even as late as a few weeks
before trial, taxes for portions of the Utah property remained assessed and
notified in Plaintiffs’ name. Id. at 2, ll. 16–18.
Thus, the present issue boils down to whether Mr. Breland or Mr.
Zajac is the more credible witness. Deciding between the two is not within
the Court’s discretion in deciding the present Rule 50(b) motion. See
Although the Agreement calls for the application of Utah law, the parties
stipulated (Doc. 142) and the Court ordered (Doc. 155) that Alabama law
“shall be used for all substantive and remedial issues.”
4 Mr. Zajac is the managing member of Levada and Levada’s representative
present at trail.
McGinnis, – F.3d –, 2016 WL 1105394, at *8. And despite Plaintiffs’
contentions otherwise, the jury’s reduction of Levada’s award by the taxes
Mr. Breland paid is “not germane to the legal analysis” of whether a Rule
50(b) motion should be granted. Chaney, 483 F.3d at 1228. As such, the
issue is “whether there was sufficient evidence … from which a reasonable
jury could find” that Levada’s failure to pay taxes could be attributed to
Plaintiffs. Id. This question is answered affirmatively. Therefore, the Court
DENIES Plaintiffs’ Renewed Motion for Judgment as a Matter of Law on
their first claim against Levada: failure to pay property taxes for the Utah
Second, Plaintiffs move judgment on their claim that Levada failed to
satisfy its development obligation. (Doc. 178, p. 5). An examination of the
record shows that Plaintiffs failed to move for judgment as a matter of law for
this claim during trial. It is undisputed that a Rule 50(b) motion “cannot
assert grounds in the renewed motion that it did not raise in the earlier
motion.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 903 (11th Cir. 2004).
To allow otherwise would open counsel up to being ambushed or sandbagged
regarding the sufficiency of the evidence after it is too late to address the
potential deficiency. Id. Therefore, Plaintiffs’ motion for judgment on their
second claim is DENIED because it is improperly before the Court.
Third, Plaintiffs move for judgment on Levada’s counterclaim that Mr.
Breland breached the Agreement by failing to transfer the Questar Facility
Agreements within 120 days of the closing date. (Doc. 179). Plaintiffs first
contend that they are due a favorable ruling because Levada failed to prove
its own performance under the Agreement. Id. at 3. Turning to the trial
record, the Court finds this argument shares a common bond with the
argument discussed immediately above: Plaintiffs did not raise it during
trial. Thus, this argument is improperly before the Court.
Plaintiffs next aver that judgment as a matter of law is due on
Levada’s counterclaim because Section 14 of the Agreement limits Levada’s
remedy to indemnification of expenses incurred in gaining alternative access
to the Questar Pipeline. (Doc. 179, p. 10). Alternatively, Plaintiffs argue
that, even if the Agreement allows for damages, Levada suffered no
cognizable injury because the Questar Facility Agreements are of no use until
Levada develops the Utah property. Id. at 12. Therefore, Plaintiffs contend
that the million and a half dollars in damages Mr. Zajac testified to were
“taken out of the air.” Id. at 13.
Alabama law recognizes the freedom to contract and upholds “clearly
manifested limitations” in a contract. Campbell v. S. Roof Deck Applicators,
Inc., 406 So. 2d 910, 913 (Ala. 1981). But listing only one remedy in a
contract does not necessarily equate to a clearly manifested exclusion of all
other remedies. Instead, the exclusivity of a remedy is based on the
“intention of the parties gathered from the whole contract viewed in light of
the surrounding facts and circumstances.” Coral Gables v. Patterson, 173 So.
4, 6 (1937).
Section (B)(1), Section 2(ii), Section 3, and Section 14 of the Agreement
directed Mr. Breland to transfer three Questar Facility Agreements to
Levada. (Doc. 172-1, pp. 1–19). Section 14 required the transfer to take place
“[w]ithin 120 days of the Closing Date ….” It was established at trial that
Plaintiffs did not transfer the Questar Facility Agreements to Levada. Based
on this, Section 14 the Agreement required Plaintiffs to “indemnify Levada
against costs and expenses incurred by Levada in obtaining the acquisition or
use of alternate tap facilities [ ] with equivalent through-put capacity [ ]
required by Levada.” Id. at 14.
When the remedy in Section 14 of the Agreement is juxtaposed to the
remedy in Section 9, Levada contends that sufficient evidence exists for a
reasonable jury to find that the parties did not manifest a clear intent to limit
Levada’s remedy to indemnification. (Doc. 182, p. 9). Section 9 states in
The increase of Osprey’s interests initially described in Section
4(a), the increase in the working interest, the increase described
in Section 5(c), and the transfer of 55% of the surface ownership
in the Subject Property as set forth in this Section 9 shall be
Osprey’s exclusive remedy resulting from Levada’s failure to
commence the drilling program or make the required
Id. at 8 (emphasis added). The Court finds that the inference a reasonable
jury could draw from the differing language is that the parties not only
understood what an exclusive remedy is but used particular language when
they “clearly manifested” such a limitation. See Campbell, 406 So. 2d at 913.
Therefore, it was not the parties’ intention to exclude all other remedies.
In response to Plaintiffs’ alternative argument that Levada suffered no
cognizable injury, Levada contends that evidence established that it suffered
damages even though the Utah property was undeveloped. (Doc. 182, p. 11).
The Court agrees. Transfer of the Questar Facility Agreements was to take
place before Levada’s development obligation expired and for good reason.
According to Mr. Zajac, access to the pipeline served a critical purpose in
farming agreements or reaching terms with potential developers. (Doc. 1851, p. 83, ll. 6–10). In fact, Mr. Zajac testified, “Talks on several occasions
have broken down because we didn’t have ultimate transport.” Id. at 85, ll.
1–2. Without the agreements, “you have no way of getting that gas to
market, you just spend a million or two dollars drilling a hole.” Id. at 83, ll.
15–16. When Plaintiffs did not transfer the Questar Facility Agreements,
Mr. Zajac obtained alternative access quotes from a Questar representative
totaling “about a million and a half dollars.” Id. at 108, l. 12.
Mr. Zajac’s testimony about the cost of alternative access might not
have been mathematically certain, but it sufficiently allowed the jury to
establish the “extent of damages as a matter of just and reasonable
inference.” Deng v. Scroggins, 169 So. 3d 1015, 1026 (Ala. 2014) (internal
quotations and citations omitted). This distinguishes the instant matter from
the case Plaintiffs now rely on: Alabama Power Co. v. Alabama Public Service
Commission, 103 So. 2d 14 (Ala. 1958). In Alabama Power Co., a power
company employee estimated during testimony that the property in question
should not be sold for anything less than $4,000,000.00. Id. at 16. The court
opined that it was impressed that the figure provided was “taken out of the
air; rather than computed.” Id. at 17. Mr. Zajac did not take the estimate he
testified to out of the air but based it on quotes Questar provided. The
reasonable inference is that the estimate was obtained through some
measure of computation. Further, the breakdown in past negotiations shows
damages resulted in spite of the property being undeveloped. A reasonable
jury could find this evidence supports the verdict and “within the pale of sane
judgment.” Parson v. Aaron, 849 So. 2d 932, 949 (Ala. 2002) (internal
quotations and citation omitted). Thus, Plaintiffs’ Renewed Judgment as a
Matter of Law on Levada’s Counterclaim is DENIED.
B. Motion for New Trial
A losing party may also motion for a new trial under Rule 59 of the
Federal Rules of Civil Procedure “on the 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 … and may raise questions of law arising out of
alleged substantial errors in admission or rejection of evidence or instructions
to the jury.’” McGinnis, 2016 WL 1105394 at * 8 (quoting Montgomery Ward
& Co. v. Duncan, 311 U.S. 243, 251 (1940)). It is within the court’s discretion
to grant a new trial when, in its opinion, “‘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.’” Id. (quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556
(11th Cir. 1984)). Unlike ruling on a motion for judgment as a matter of law,
a district court is free to weigh evidence when ruling on a motion for new
trial. Id. Thus, the trial court should evaluate both evidence favoring the
verdict and favoring the moving party. Id. But it is imperative that a
reviewing judge not substitute his or her judgment for that of the jury, so
“new trials should not be granted on evidentiary grounds unless, at a
minimum, the verdict is against the great—not merely greater—weight of the
evidence.” Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d
1183, 1186 (11th Cir. 2001) (internal quotations and citation omitted). Given
this, the remedy set forth in Rule 59 is “sparingly used.” Goodloe v. Daphne
Utilities, 2015 WL 4523974, at * 4 (S.D. Ala. July 27, 2015) (citing Johnson v.
Spencer Press of Main, Inc., 364 F.3d 368, 375 (1st Cir. 2004)). Moreover,
“[d]eference to the district court is particularly appropriate where a new trial
is denied and the jury’s verdict is left undisturbed.” Middlebrooks v. Hillcrest
Foods, Inc., 256 F.3d 1241, 1247–48 (11th Cir. 2001) (internal quotations and
1. Proof of Levada’s Performance Under the Agreement
Plaintiffs’ first argument in support of a new trial is that the verdict is
contrary to the law and against the clear weight of the evidence because
Levada failed “to prove that it performed all of its obligations arising” under
the Agreement. (Doc. 180, p. 3). This argument mirrors Plaintiffs’ first
ground for judgment as a matter of law discussed in Section A, supra. The
Court finds that a new trial is improper on this basis for the same reasons
Plaintiffs are not entitled to judgment as a matter of law.
2. Jury Verdict Consistency
Plaintiffs’ second argument for a new trial is that the jury’s verdict is
inconsistent “because the jury’s findings on Plaintiffs’ breach of contract
claim for property taxes cannot be reconciled with the jury’s attempt to
compensate Plaintiffs for paying the Utah property taxes.” Id. at 6.
Plaintiffs argue further that “[t]he only way they could be entitled to a
reimbursement of the ‘Utah taxes paid’ is if they prevailed on their claim for
breach of contract.” Id. at 7. Levada responds that Plaintiffs waived their
right to object to the verdict by not doing so before the Court dismissed the
jury. (Doc. 183, p. 10).
“A verdict is inconsistent when there is no rational, non-speculative
way to reconcile … two essential jury findings.” Reider v. Phillip Morris
USA, Inc., 793 F.3d 1254, 1259 (11th Cir. 2015) (internal quotations and
citation omitted). “A district court ‘must make all reasonable efforts to
reconcile an inconsistent jury verdict and if there is a view of the case which
makes the jury’s answers consistent, the court must adopt that view and
enter judgment accordingly.’” Id. (quoting Burger King Corp. v. Mason, 710
F.2d 1480, 1489 (11th Cir. 1983)). In reconciling an inconsistency, a district
court must determine “whether the jury’s answers could reflect a logical and
probable decision on the relevant issues … submitted.” Id. Any objection to a
verdict’s inconsistency must be raised before the jury is excused. See
Coralluzzo v. Education Management Corp., 86 F.3d 185, 186 (11th Cir. 1996)
(finding that “all challenges to the inconsistency of a special verdict must be
raised before the jury is excused”); Mason v. Ford Motor Co., Inc., 307 F.3d
1271, 1275–76 (11th Cir. 2002) (applying the same principle to general
verdicts). “The reason for this particular raise-it-or-lose-it rule is that if the
inconsistency is raised before the jury is discharged, the jury can be sent back
for further deliberations to resolve the inconsistency in its verdict,” but once
the jury is gone “that is not possible.” Pensacola Motor Sales, Inc. v. E. Shore
Toyota, LLC, 684 F.3d 1211, 1225 (11th Cir. 2012).
Upon announcement of the jury’s verdict, Plaintiffs did not object to
the verdicts as inconsistent, and the Court dismissed the jury. Since the
necessary objection is absent, the present argument is not properly before the
Court. But even if Plaintiffs had timely objected, rational and logical bases
reconcile the verdicts. As discussed above, sufficient evidence established
that some or all of the tax notices for the mid-2011 through 2012 time frame
did not reach Levada. Further, Levada presented evidence that its attempts
to reimburse Mr. Breland for the taxes he paid were rejected. Reducing
Levada’s award by the amount Mr. Breland paid merely accomplished
Levada’s desire to reimburse Mr. Breland while making Levada whole for
Plaintiffs’ failure to transfer the Questar Facility Agreements. This not the
same as the jury finding for Plaintiffs on their claim. The jury merely
reduced the damages Plaintiffs must satisfy. It was within the jury’s
prerogative to make this determination. See G.M. Mosley Contractors, Inc. v.
Phillips, 487 So. 2d 876, 879 (Ala. 1986) (finding the amount of damages a
question for the “trier of fact”). Additionally, the Agreement clearly states
that Levada’s consideration for Plaintiffs’ conveyance of the Utah property is
paying off the Cypress Capital II litigation against Plaintiffs. (Doc. 172-1, p.
11). Levada met this condition. Thus, it is logical and probable Levada’s
failure to pay the taxes is immaterial and not a breach. See Abernant Fire
Dept. v. Rhodes, 21 So. 3d 739, 744 (Ala. Civ. App. 2009) (“To succeed in a
breach-of-contract action, a claimant must prove a material breach of the
contract.”) Either conclusion squares with logic and cannot be said to be the
product of confusion. Given this, a new trial is unwarranted on the
contention that the verdicts are inconsistent.
3. Amount of Damages Awarded by the Jury
i. New Trail Based on the Amount of Damages Awarded
Plaintiffs next argue that a new trial should be granted because the
jury’s award was based on Mr. Zajac’s vague and unsubstantiated testimony.
(Doc. 180, p. 8). Plaintiffs also argue that a new trial is necessary because
Mr. Zajac materially misrepresented the cost of obtaining alternative access
to the Questar Pipeline. (Doc. 180, p. 10). In the sense that Plaintiffs argue
that Mr. Zajac’s testimony regarding damages was vague and
unsubstantiated, this argument mirrors the argument Plaintiffs raise in their
motion for judgment as a matter of law and does not necessitate a new trial
for the same reasons.
To the extent Plaintiffs argue Mr. Zajac materially misrepresented the
cost of replacement Questar Facility Agreements, Plaintiffs base this
argument on (1) the original price of the agreements and (2) newly discovered
evidence. To the first basis, Plaintiffs argue that they “introduced concrete
proof of the real cost of the taps themselves: $180,000.00.” (Doc. 180, p. 10).
In support of this position, Plaintiffs’ refer the Court to the “Questar
prepared invoice WOB09-211” but do not provide citation for this invoice.
The only mention of $180,000.00 the undersigned could locate in the record is
contained in the Facility Agreements. See (Doc. 172-2, pp. 91–93).5
Nonetheless, Levada argues that the original cost of the facility agreements
do “not prove the cost of alternate tap facilities in 2016.” (Doc. 183, p. 6). The
Court agrees. A number of factors could play a part in moving the value of
the agreements or cost of replacements up or down, none of which are in
Even then the Facility Agreements do not specifically spell out $180,000.00.
Instead, each facility agreement states, “Questar shall invoice JAKE Oil for
$60,000 cost for the tap facilities.” The three agreements total $180,000.00.
evidence. To speculate about these factors is improper. Therefore, Plaintiffs’
argument for new trial based on the Questar Facility Agreements’ original
price is without merit.
Under the second point, Plaintiffs proffer unto to the Court that they
“are in the process of acquiring an affidavit of an authorized representative of
Questar.” (Doc. 180, p. 12). Plaintiffs contend that the affidavit will
establish that Levada “could acquire access to [Mr. Breland’s] taps solely by
paying the tariff cost for tap connection.” Id. at 12. Thus, Levada could
access the pipeline at the same spot and pay no “more than the tariff cost.”
Id. Levada parries that the affidavit is new evidence that cannot be
considered because the affidavit was not in existence at trial and would
contain facts discoverable before trial. (Doc. 183, pp. 16–17).
If a party moves for a new trial based on newly discovered evidence,
the motion “must not be based on evidence or incidents of which [the movant]
had knowledge prior to return of the jury verdict.” Edwards v. Hyundai
Motor Mfg. Alabama, 701 F. Supp. 2d 1226, 1233 (M.D. Ala. 2010) (quoting
United States v. Calderon, 127 F.3d 1314, 1351 (11th Cir. 1997)). Even
though the newly discovered evidence must be unknown to the proponent
prior to return of the jury verdict, “the evidence must have been in existence
at the time of trial.” N.L.R.B. v. Jacob E. Decker and Sons, 569 F.2d 357, 364
(5th Cir. 1978); see also Smart v. City of Miami Beach, Fla., 933 F. Supp. 2d
1366, 1372 (S.D. Fla. 2013).
To grant relief based upon newly discovered evidence, a movant must
meet a five-part test:
(1) the evidence must be newly discovered since the trial; (2) due
diligence on the part of the movant to discover the new evidence
must be shown; (3) the evidence must not be merely cumulative
or impeaching; (4) the evidence must be material; and (5) the
evidence must be such that a new trial would probably produce
a new result.
Waddell v. Hendry County Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir.
2003) (enunciating the five-part test in deciding a Rule 60(b)(2) motion); see
also Smart, 933 F. Supp. 2d at 1372–73 (applying the five-part test in the
context of a motion for new trial); Baucom v. Sisco Stevedoring, LLC, 2008
WL 2428930, at *4 (S.D. Ala. June 12, 2008) (same).
To begin with, Levada’s argument that the affidavit is improper
because it was not in existence at trial improperly applies the rule from
Decker and Sons. The proper analysis is not whether the affidavit was in
existence before trial, but whether the facts that make up the affidavit were
in existence at trial. See Baucom, 2008 WL 2428930, at *5 (refusing to
consider a doctor’s affidavit in a motion for new trial when the facts it was
based on came into being three months after trial). Levada provides no
reason to conclude that Questar devised the tariff access option after trial.
Even so, the tariff option’s existence at trial does not help but hurts
Plaintiffs. Under Plaintiffs’ own argument, Questar is a federally regulated
entity with which “any company interested” could establish a tariff
relationship. (Doc. 180, p. 12). It strains reason to simultaneously argue
that Plaintiffs could not access the same information before trial with a quick
phone call. Moreover, Plaintiffs do not provide the cost of the tariff option.
Without the cost, it cannot be said that this evidence would probably produce
a different result at a new trial. Thus, Plaintiffs’ argument for new trial
based on the affidavit is improper and unavailing.
ii. Remittitur Based on the Amount of Damages Awarded
As an alternative to their Motion for Judgment as a Matter of Law or
Motion for New Trial, Plaintiffs argue for remittitur of the jury’s award to
$0.00. (Doc. 180, p. 19). In support, Plaintiffs revisit their earlier arguments
that the jury’s verdict is contrary to the law, unsubstantiated, and supported
by only Mr. Zajac’s speculative opinion. Id. at 20. Plaintiffs aver that a
recent decision of this Court supports their argument for remittitur:
Nationwide Mutual Ins. Co. v. Nall’s Newton Tire, 2015 WL 8207478 (S.D.
Ala. Dec. 7, 2015).
As an alternative to ordering a new trial, a district court may “order
remittitur and reduce the damages” awarded by a jury. Nationwide, 2015
WL 8207478, at *2. Within the Eleventh Circuit, “‘a remittitur order
reducing a jury’s award to the outer limit of the proof is the appropriate
remedy where the jury’s damage award exceeds the amount established by
the evidence.’” Rodrigues v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1266
(11th Cir. 2008) (quoting Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435,
1448 (11th Cir. 1985)). Before remitting a jury’s award, the Seventh
Amendment requires a plaintiff be given the option of a new trial in lieu of
the court’s discretionary remittitur of a jury’s award. Johansen v.
Combustion Eng’g, Inc., 170 F.3d 1320, 1329 (11th Cir. 1999). On the other
hand, “where a portion of a verdict is for an identifiable amount that is not
permitted by law, the court may simply modify the jury’s verdict to that
extent and enter judgment for the correct amount.” Id. at 1330 (citation
omitted). “The Seventh Amendment is not offended by this reduction because
the issue is one of law and not fact.” Id. Additionally, a reviewing court
should reduce a jury award that exceeds the damages proven by the evidence
at trial. “‘In general, a remittitur order reducing a jury’s award to the outer
limit of the proof is the appropriate remedy where the jury’s damage award
exceeds the amount established by the evidence.’” Sand v. Dawasaki Motors
Corp. U.S.A., 513 Fed. Appx. 847, 855 (11th Cir. 2013) (quoting Goldstein,
758 F.2d at 1448).
Based on the analysis in Section A, the Agreement did not exclude all
remedies other than indemnification. Thus, the jury’s award is permissible
and not contrary to law. Furthermore, Plaintiffs’ reliance on Nationwide is
misplaced. In Nationwide, “there was no evidence that [the counter-plaintiff]
was entitled to anything more under the [insurance] policy than the $318,
500 it had claimed.” 2015 WL 8207478, at *3 (emphasis added).
Additionally, this Court instructed the jury that the counter-plaintiff “was
claiming $168,500 for the building and $150,000 for the contents, for a total
damages award of $318,500.00.” Id. Thus, the Court was left to speculate “as
to how the jury arrived at a damage award in the amount of $510,000.00.”
To say there is no evidence supporting the jury’s verdict ignores the
trial record. Mr. Zajac clearly communicated to the jury the estimate
Questar provided: $1,500,000.00. Mr. Zajac’s testimony had a basis and set
the outer limit for the award. So this testimony is not as Plaintiffs now
characterize it: a “speculative opinion.” (Doc. 180, p. 22). And unlike
Nationwide, the jury did not return a verdict in excess of the evidence or the
Court’s direction. Thus, Plaintiffs are not due remittitur of the amount of
damages the jury awarded Levada.
4. Admission of Exhibit 8
Plaintiffs next argue that a new trial is necessary because, Exhibit 8,
Levada’s only evidence excusing its performance under Section 14, was
improperly admitted by the Court. (Doc. 180, p. 12). Exhibit 8 is a
spreadsheet prepared by Mr. Zajac containing the daily natural gas spot price
for November 2, 2010 through February 23, 2015. (Doc. 172-2, pp. 16–37).
Exhibit 8 also contains a column with the results of an Excel formula
computing the six-month moving average price of natural gas and a column
identifying whether force majeure existed, which would excuse development
of the Utah property. Id. Plaintiffs’ argument that Exhibit 8 was improperly
admitted is two-fold: improper authentication and inadmissible hearsay.
(Doc. 180, pp. 14–15).
As to their authentication argument, Plaintiffs argue that Exhibit 8
was improperly authenticated because Levada failed to proffer sufficient
testimony “from a witness with knowledge of the origin of the exhibit or its
components.” (Doc. 180, p. 16). Further, Plaintiffs contend that the website
that is the source of the information contained in Exhibit 8 is unknown,
“further underscoring” the lack of authentication. Id. Levada counters that
Mr. Zajac’s properly permitted testimony authenticated Exhibit 8. (Doc. 183,
A proffered exhibit is properly authenticated when the proponent
produces “evidence sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). Conclusive proof of authenticity
is not required. United States v. Arce, 997 F.2d 1123, 1128, reh’g denied, 5
F.3d 1493 (5th Cir. 1993). Instead, “[Rule] 901(a) requires only some
competent evidence in the record to support authentication.” United States
v. Elkins, 885 F.2d 775, 785 (11th Cir. 1989) cert. denied, 494 U.S. 1005
(1990). A proponent can satisfy his prima facie burden of authentication by
offering the testimony of a witness with knowledge that a matter “is what it
is claimed to be.” Fed. R. Evid. 901(b)(1). “After meeting the prima facie
burden, the evidence may be admitted, and the ultimate question of
authenticity [and credibility] is then decided by the jury.” United States v.
Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012).
Before offering Exhibit 8 into evidence, the following colloquy
Q (Levada’s attorney): Do you have personal knowledge
regarding the natural gas prices that were in effect during the
time period of the contract from May 2d, 2011, through
December 31, 2014? And I say that because that’s the deadline
we’ve been talking about.
A (Mr. Zajac): I do.
Q: And how did you get access to the natural gas prices during
A: There’s a governmental website from the Department of
Energy call EIA.org6 and they publish daily, monthly, yearly
prices of Henry Hub prices, which Henry Hub is considered to be
the benchmark for the country and anytime you hear natural
gas trading was, you know, $3 or 3.96, that’s what they’re
Q: Well, did you create a document downloaded from the
A: Yeah, all the data was downloaded off the website.
Q: Can you identify Exhibit 8?
A: Yes. It looks like it’s a printout of a spreadsheet that was
downloaded from the Department of Energy website.
Q: And does it have the natural gas prices based on the Henry
Hub natural gas spot price published by the Department of
The actual website is EIA.gov, not EIA.org. This error does not negatively
implicate Exhibit 8. If anything, it helps Exhibit 8.
Energy for each day between November 2d, 2010, through the
end of the list, which is February 23rd, 2015?
A: Yes, it’s [sic] got a date and for each trading day there’s a
Q: And did those prices in the first column – excuse me – the
first column after the date represent the prices from the
A: This is the actual – you can download a spreadsheet.
(Doc. 185-1, p. 112, l. 3–p. 114, l. 2). Further exchange at sidebar established
that the third column and fourth column from the left were Mr. Zajac’s own
analysis of the information downloaded using Excel. Id. at 115, ll. 1–18.
Mr. Zajac’s testimony establishes that he recognized the information
contained in Exhibit 8 and was aware of its source. If an additional witness
is required to authenticate Exhibit 8, Plaintiffs offer no authority to support
this proposition. Thus, the undersigned is satisfied that Mr. Zajac’s
testimony satisfies Rule 901’s threshold requirement that Exhibit 8 is as
Levada purports: a spreadsheet displaying both 1) natural gas prices
downloaded from a Department of Energy website and 2) Mr. Zajac’s personal
In response to Plaintiffs’ hearsay argument for Exhibit 8, Levada
contends that Plaintiffs did not raise this argument at trial and, therefore,
waived the opportunity to do so now. (Doc. 183, p. 13). The Federal Rules of
Evidence are clear that the failure to object to the admission of evidence
constitutes a waiver of the objection. Fed. R. Evid. 103(a)(1); see also United
States v. Maddox, 492 F.2d 104, 107 (5th Cir. 1974) (“A rule of evidence not
invoked is waived.”); New Market Inv. Corp. v. Fireman’s Fund Ins. Co., 774
F. Supp. 909, 918 (E.D. Pa. 1991) (applying Rule 103 to an objection first
raised in a new trial motion).
When Plaintiffs objected to the admission of Exhibit 8, Plaintiffs’
counsel stated he had “a couple of grounds” for the objection but only
articulated authentication arguments under Rule 901 and Rule 902. (Doc.
185-1, p. 115, ll. 1–6). And when Plaintiffs renewed their objection to Exhibit
8 during redirect examination of Mr. Zajac, it was again based only on Rule
901 and Rule 902. Id. at 121, ll. 10–11. With two bites at the apple,
Plaintiffs failed to object to Exhibit 8 as hearsay. Moreover, Plaintiffs’
authentication objection provides no quarter for their current hearsay
objection. See Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir. 1997)
(concluding that an objection on one basis does not preserve another
unidentified basis).7 Thus, the admission of Exhibit 8 does not warrant a
new trial because it was properly admitted.
Even if Plaintiffs had properly objected to Exhibit 8 as hearsay, the outcome
would be the same. One of the exceptions to the rule against hearsay is
“[m]arket quotations … generally relied on by the public or by persons in
particular occupations.” Fed. R. Evid. 803(17). Admissibility under Rule
803(17) hinges on trustworthiness of the information, which is based on the
“general reliance by the public or by a particular segment of it, and the
motivation of the compiler to foster reliance by being accurate.” Fed. R. Evid.
803(17) advisory committee’s note. Mr. Zajac testified that he has prior
experience in oil and gas development. (Doc. 185-1, p. 96). Given his
experience, he would know the source of natural gas pricing the market
would rely upon: EIA.gov. In turn, EIA.gov “know(s) their work will be
5. Preston Nutter Transaction
As their fifth basis for a new trial, Plaintiffs aver that they were
unfairly prejudiced by the Court’s refusal to allow Plaintiffs’ counsel to
rehabilitate Mr. Breland’s testimony with evidence of the Preston Nutter
transaction, which dealt with Levada selling a portion of the Utah property to
Mr. Nutter. (Doc. 180, p. 17). This is not Plaintiffs’ first attempt to introduce
this transaction. See (Doc. 68, 103, 118, 138, 144). The Court has
unequivocally denied each of Plaintiffs’ attempts. See (Doc. 108, 156, 173).
The Court sees no reason to change course now.
6. Miscarriage of Justice
As their final basis for a new trial, Plaintiffs argue that judgment on
the verdict will result in a miscarriage of justice. (Doc. 180, p. 18). This
argument, however, does not raise new grounds but merely reiterates all the
claims above. As established supra, ample evidence substantiated the jury’s
verdict and damages award. Thus, the Court cannot say that the present
outcome is against the great weight of the evidence or results in a manifest
injustice. See Mobile Alabama Associates, LLC v. Hoeppner Const. Corp.,
2011 WL 1539822, at * 3 (S.D. Ala. Apr. 22, 2011). Moreover, there were no
consulted; if it is inaccurate, the public or the trade will cease consulting [its]
product.” Avondale Mills, Inc. v. Norfolk Southern Corp., 2008 WL 6953956,
at *4 (D.S.C. Feb. 21, 2008). Additionally, Mr. Zajac’s incorporation of
market price data obtained from EIA.gov into a “blended document” does not
run afoul of Rule 803(17) as Plaintiffs insist. See Elliott Associates, L.P. v.
Banco de la Nacion, 194 F.R.D. 116, 121 (S.D.N.Y 2000) (allowing under Rule
803(17) a blended document that contained both Federal Reserve Board
website interest rates and subsequent interest calculations).
substantial errors in the admission of evidence. Accordingly, Plaintiffs’
Motion for New Trial or, Alternatively, Motion for Remittitur is DENIED.
C. Motion for Attorneys’ Fees and Expenses
1. Entitlement and Apportionment of Attorneys’ Fees
Levada moves the Court for $697,986.13 in attorneys’ fees incurred by
four different law firms through representation of Defendant in the present
matter. (Doc. 175). In a diversity action where Alabama is the forum state,
the court applies the law of the State of Alabama to determine whether a
party is entitled to fees and to resolve disputes as to the reasonableness of
fees. Kearney v. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369, 1373 (M.D. Fla.
2010) (citing Trans Coastal Roofing Co., Inc. v. David Boland, Inc., 309 F.3d
759, 760 (11th Cir. 2002)). Generally, Alabama follows the American rule for
attorney fees, “which does not require a losing party to pay the attorney fees
of the winning party ….” Classroomdirect.com, LLC v. Draphix, LLC, 992 So.
2d 692, 710 (Ala. 2008). This rule, however, is not without exception.
“‘[A]ttorney fees may be recovered if they are provided for by … contract ….’”
Id. (quoting City of Bessemer v. McClain, 957 So. 2d 1061, 1078 (Ala. 2006)).
Levada argues that the Agreement authorizes its recovery of the
attorneys’ fees under Section 19(c). (Doc. 175, p. 3). Plaintiffs counter that
Levada’s argument for recovery hinges on it being the prevailing party but
that Section 19(c) does not contemplate prevailing party recovery. (Doc. 177,
p. 3). Instead, Plaintiffs aver that the Agreement allows for recovery against
the defaulting party, and since “the record evidence is undisputed that
[Levada] is in default of its obligation under the” Agreement, it is not able to
recover attorneys’ fees. Id. at 5.
The Agreement states in Section 19(c),
In the event of a breach or default of the terms, provisions, or
conditions of this Agreement, the defaulting Party shall pay all
costs and expenses of enforcing this Agreement and the rights
arising out of breach or default of its provisions, including
attorneys’ reasonable fees.
(Doc. 172-1, p. 16). Given this language, the Court agrees with Plaintiffs.
Merely prevailing on a claim is insufficient to recover attorneys’ fees. A party
must default on the Agreement to be liable for attorneys’ fees. The jury’s
verdict is clear that Plaintiffs, not Levada, is the defaulting party. Thus, this
case is materially distinguishable from the case Plaintiffs now depend on
where the district court found “there was no ‘Defaulting Party’”: Jet Sales of
Stuart, LLC v. Jet Connection Travel, GmbH, 240 Fed. Appx. 839, 841 (11th
Cir. 2007). Moreover, the Court has already established that the jury’s
determination that Levada did not breach the Agreement accords with
Alabama contract law. See Tiller, 5 So. 3d at 629. Thus, the Court finds that
the Agreement allows for and Levada, the non-defaulting party, is entitled to
recover attorneys’ fees from Plaintiffs, the defaulting party.
Additionally, in exercising its wide discretion, the Court finds that
apportionment of attorneys’ fees based on whether Levada’s attorneys were
prosecuting its counterclaim or defending Plaintiffs’ claim is inappropriate for
two reasons. See Council for Periodical Distributors Associations v. Evans,
827 F.2d 1483, 1488 (11th Cir. 1987)(finding it within the discretion of the
district court “on when to apportion fees”). First, Section 19(c) makes no
distinction between prosecuting a claim and defending a claim when it allows
for the recovery of “all costs and expenses of enforcing” the Agreement from
the defaulting party. Second, Levada’s counsel, Caine O’Rear, stated in his
declaration, “the contract claims running in both directions between
Plaintiffs and Levada arose out of the same contract, same circumstances and
same facts ….” (Doc. 175-1, p. 2). Given this, “[p]rosecution of [Levada]’s
claim could not have been effectively completed without likewise defending”
Plaintiffs’ claim. Pediatric by the Bay v. EMD Solutions, Inc., 81 So. 3d 381,
385 (Ala. Civ. App. 2011). To make no distinction is “consistent with both
efficiency and fairness.” Evans, 827 F. 2d at 1488. To require otherwise
would result in the disfavored “second major litigation.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). Thus, the Court concludes that
apportionment of attorneys’ fees in this case is imprudent.
2. Reasonableness of Fees
It is well-settled that “[t]he determination of whether [ ] attorney[s’]
fee[s] [are] reasonable is within the sound discretion of the trial court ….”
Kiker v. Probate Court of Mobile County, 67 So. 3d 865, 867 (Ala. 2010)
(internal quotations and citation omitted). In assessing the reasonableness of
an attorneys’ fees request, courts generally apply the “lodestar” method to
obtain an objective estimate of the value of an attorney’s services. Norman v.
Housing Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).
The lodestar figure is calculated by multiplying the hours that each attorney
reasonably worked by a reasonable rate of pay, defined as the prevailing
market rate in the “legal community for similar services by lawyers of
reasonably comparable skills, experience, and reputation.” Blum v. Stenson,
465 U.S. 886, 895–96 n. 11 (1984). In this case, the relevant legal community
is Mobile, Alabama. See American Civil Liberties Union of Ga. v. Barnes,
168 F.3d 423, 437 (11th Cir. 1999) (providing that “the ‘relevant market’ for
purposes of determining the reasonable hourly rate for an attorney's services
is the place where the case is filed”) (citations omitted). The party moving for
fees bears the burden of establishing the “reasonableness” of the hourly rate
and number of hours expended via specific evidence supporting the hours and
rates claimed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Barnes, 168
F.3d at 427
When seeking attorneys’ fees, the movant must not request fees for
hours that are “excessive, redundant, or otherwise unnecessary;” or request
fees for unsuccessful claims. Hensley, 461 U.S. at 434–35. When a request
for attorneys’ fees is unreasonably high, the court may “conduct an hour-byhour analysis or it may reduce the requested hours with an across-the-board
cut.” Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).
Likewise, where the rates or hours claimed seem excessive or lack the
appropriate documentation, a court may calculate the award based on its own
experience, knowledge, and observations. See, e.g., Norman, 836 F.2d at
1299. Notably, “[t]he court, either trial or appellate, is itself an expert on the
question and may consider its own knowledge and experience concerning
reasonableness and proper fees and may form an independent judgment
either with or without the aid of witnesses.” Id. at 1303 (citations omitted).
Further, the lodestar figure established by the reviewing court may be
adjusted by consideration of various factors including:
(1) the nature and value of the subject matter of the
employment; (2) the learning, skill, and labor requisite to its
proper discharge; (3) the time consumed; (4) the professional
experience and reputation of the attorney; (5) the weight of
his responsibilities; (6) the measure of success achieved; (7)
the reasonable expenses incurred; (8) whether a fee is fixed
or contingent; (9) the nature and length of a professional
relationship; (10) the fee customarily charged in the locality
for similar legal services; (11) the likelihood that a particular
employment may preclude other employment; and (12) the
time limitations imposed by the client or by the
Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala.1988). See
also e.g. Pharmacia Corp. v. McGowan, 915 So. 2d 549, 552–54 (Ala. 2004);
Lolley v. Citizens Bank, 494 So. 2d 19 (Ala. 1986). These criteria are for
purposes of evaluating whether the attorneys’ fees are reasonable but they
are not an exhaustive list of specific criteria that must all be met. Beal Bank,
SSB v. Schilleci, 896 So. 2d 395, 403 (Ala. 2004).
In support of its motion for attorneys’ fees, Levada provided the
declaration of Caine O’Rear, Chris Healy, and Bruce Rogers. See (Doc. 175-
1, 175-2, 176-1). First, Mr. O’Rear’s declaration lays out that Levada seeks
$377,832.13 in legal fees for the 1,134.6 hours expended by attorney Caine
O’Rear (forty-one years’ experience) attorney Christine Hart (almost five
years’ experience and a Third Circuit clerkship), paralegal Cindy McCarthy
(twenty-three years’ experience), and other unnamed attorneys at Hand
Arendall LLC. (Doc. 175-1, p. 3). Second, Mr. Healy’s declaration explains
that Levada seeks $275,376.00 in legal fees for the 676.1 hours expended by
attorneys Chris Healy (26 years’ experience), Jessica Shook (nine years’
experience), Daniel Levey (unknown experience), Jennifer Schramm
(unknown experience), and other unnamed “lawyers and para-professionals”
at Reed Smith LLP in New York City, New York. (Doc. 175-2, p. 3). Third,
Levada seeks $23,537.50 in legal fees for the 59.9 hours expended by
unnamed attorneys with Holland & Hart LLP in Salt Lake City, Utah. (Doc.
175-1, p. 4). Fourth, Levada seeks $19,250.00 in legal fees for the 70 hours
expended by Alex Gray of Silver, Voit & Thompson during the inception of
the present matter. Id. at 5.
With regard to the hourly rates charged, Bruce Rogers, a partner at
Bainbridge, Mims, Rogers & Smith, LLP, concluded, “my professional opinion
is that hourly rates charged by and requested by Levada EF Five, LLC’s
counsel in this matter are fair and reasonable in the Southern District of
Alabama.” (Doc. 176-1, p. 4). He based this conclusion on his thirty-six years
as an Alabama attorney with experience practicing in complex litigation
within the state and local area, familiarity with Mr. O’Rear’s reputation, the
subject matter of the case, and outcome of the case. Plaintiffs do not contest
the amount of hours spent on this case.8 Instead, Plaintiffs argue that the
hourly rate submitted by Levada “exceed[s] the normal rate for attorneys of
comparable skill in the Mobile area.” (Doc. 177, p. 12).
Upon consideration of all declarations submitted, the factors outlined
above, and the Court’s expertise, the undersigned finds the following rates
reasonable. The experience and expertise of Caine O’Rear and Chris Healy
justify the hourly rate of $400 per hour proffered by Mr. O’Rear.9 See Gulf
Coast Asphalt Co., LLC v. Chevron U.S.A., Inc., 2011 WL 612737, at * 3 (S.D.
Ala. Feb. 11, 2011) (finding $325 per hour a reasonable rate for an attorney
with 32 years of experience as a lawyer in a complex environmental law
Even so, the Court finds the hours expended reasonable given Levada’s
degree of success, the nature and complexity of this case, and geographical
location of both the subject matter of the suit (Utah) and parties (Alabama
and New York). See Natures Way Marine, LLC v. Everclear of Ohio, Ltd.,
2015 WL 1757116, at *4 (S.D. Ala. Apr. 17, 2015) (concluding that a party
that achieved an “excellent result” should be compensated “for all hours
reasonably expended”) (citing Popham v. City of Kennesaw, 820 F.2d 1570,
1578 (11th Cir. 1987)).
9 Mr. O’Rear also moves for a premium rate for the hours he spent on this
case in 2016. To provide some context, Caine O’Rear and Christine Hart
withdrew as counsel for Levada from September 10, 2015 until January 29,
2016 when they re-entered prior to trial. Due to his late re-entry, Mr. O’Rear
proposes a rate of $480 per hour for work completed in 2016. (Doc. 175-4).
The Court finds this premium unnecessary and, therefore, unreasonable.
The events that transpired in his absence (or the lack thereof) do not justify
the added cost of representation. Additionally, Mr. Healey, a non-local
attorney, requested an across the board rate of $480 per hour. (Doc. 175-2, p.
3). However, Mr. Healy, an out-of-town attorney, has not shown that he is
due a rate different than Mr. O’Rear, a local attorney. See Barnes, 168 F.3d
case). In the same vein, the Court is satisfied that, based on its own
experience and the rate above, the hourly rate proposed by Silver, Voit &
Thompson, $275 per hour, is a reasonable hourly rate for the work performed
by Alex Gray. Also Christine Hart and Jessica Shook’s experience as an
associate makes $200 per hour a reasonable hourly rate for these two
attorneys.10 See Vanderbilt Mortgage and Finance, Inc. v. Crosby, 2015 WL
5178719, at *2 (S.D. Ala. Sept. 4, 2015)(finding $185 per hour a reasonable
rate for an attorney with 3 to 4 years of experience). And the court finds the
rate of $140 per hour proffered for Cindy McCarty, a seasoned paralegal, is
reasonable and in line with the previous findings of this Court. See Vision
Bank, 2012 WL 222951, at *3 (finding $110 per hour a reasonable rate for
paralegals with indeterminate experience); Gulf Coast Asphalt Co., 2011 WL
612737, at *4 (finding $120 per hour a reasonable rate for paralegals). But
given that the experience for associate Daniel Levy and associate Jennifer
Schramm is not provided, the Court finds that the reasonable rate for their
work is $150 per hour. See Vision Bank v. FP Management, LLC, 2012 WL
222951, at *3 (S.D. Ala. Jan. 25, 2012)(finding $150 per hour a reasonable
rate for an associate attorney with an indeterminate amount of experience).
In contrast to the reasonable rates above, there are 9 hours of work
proposed by Mr. O’Rear that were performed by “other lawyers” with Hand
A premium rate is also proposed for the work Christine Hart performed in
2016. The Court declines to find this rate reasonable based on footnote 9.
Further, the premium rate proposed for Jessica Shook is unreasonable for the
same reason Mr. Healy is not due a premium over the local rate.
Arendall and 59.9 hours of work performed by “various lawyers” with
Holland & Hart LLP. (Doc. 175-1, pp. 3–4). The rate charged by the Hand
Arendall attorneys is not provided and the rate charged by the Holland &
Hart attorneys ranges “from $260 to $465 per hour” in this matter. (Doc.
175-1, pp. 3–4). Either request, however, fails to proffer the attorneys’ names
or the experience they possess. Without at least identifying who the
attorneys are or how many attorneys performed the work, much less the
levels of experience, it cannot be said that any rate is reasonable. To assign a
rate would require the Court to speculate, which it is not willing to do.11
In sum, the Court, utilizing its own expertise in this market as well as
a review of prior awards and the facts and factors above, deems the following
lodestar calculations to be reasonable and appropriate in this matter:
Hand Arendall LLC
Reed Smith LLP
Daniel Levey &
Silver, Voit &
As noted above, Mr. Healy declared that “other lawyers and paraprofessionals at Reed Smith [ ] spent increments of time on this file and [ ]
[make] up the balance of the fees charged at their standard hourly rates ….”
(Doc. 175-2, p. 3). Mr. Healy does not offer the names and experience of these
individuals, but based on the declaration and Court’s own calculations, it
does not appear that the “other lawyers and para-professionals” work is a
component of the fee requested by Reed Smith LLP.
Levada also moves for an award of $27,189.91 in expenses incurred
throughout litigation in the following respects: Hand Arendall LLC
$8,638.43; Reed Smith LLP $17,085.99; and Veritext Legal Solutions
$1,465.49. See (Docs. 175, p. 4; 175-1, pp. 3, 5; 175-2, p. 3). Plaintiffs do not
object to these expenses. Further, the Court has already determined that
Levada is due “all costs and expenses” from Plaintiffs, the defaulting party.
But this determination does not allow the Court to be generous with
Plaintiffs’ money. Barnes, 168 F.3d at 428. Instead, Levada bears “the
burden of submitting a request that will enable [the Court] to determine
what expenses were incurred and whether [Levada] [is] entitled to them.”
Dzwonkowski v. Dzwonkowski, 2008 WL 2163916, at *19 (S.D. Ala. May 16,
2008) (citing Barnes, 168 F.3d at 438–39). The declarations of Messrs.
O’Rear and Healy fail to satisfy this burden by merely lumping fees together
with no explanation, but each attorney did state that the expense statements
“are available for inspection and/or production upon request of the Court, if
necessary, subject to appropriate protection and redaction for privileged and
confidential information in the descriptions of the work performed.” (Docs.
175-1, p. 3; 175-2, p. 3).
In keeping with the Eleventh Circuit’s tradition of reimbursing
necessary and reasonable expenses, the Court concludes that it would be
premature to render a decision regarding Levada’s expenses without more
information. Thus, Levada is to file and serve expense exhibits with only
such redactions as are truly necessary to conceal privileged and confidential
information. Plaintiffs are directed to file any response no later than May 4,
2016, at which time the Court will take Levada’s motion for expenses under
consideration. Given this, the Court WITHHOLDS its decision regarding
Levada’s request for expenses.
4. Prejudgment Interest
Lastly, Levada argues it is due prejudgment interest on the jury’s
award of damages. (Doc. 175, p. 1). Plaintiffs do not object to this request
and with good reason. Before submitting this case to the jury, the parties
stipulated that the Court would determine when prejudgment interest began
accruing and calculate the interest due by applying Alabama’s prejudgment
interest rate of 6% per annum. (Doc. 185-2, p. 20). Based on the following,
the Court GRANTS Levada’s request for prejudgment interest.
Alabama law instructs that “the legal rate of prejudgment interest is 6
percent per annum.” Bank of America, N.A. v. Newton, 2012 WL 5392265, at
*3 (M.D. Ala. Nov. 5, 2012) (applying the statutory prejudgment interest rate
outlined in the Code of Alabama § 8-8-1 (1975)) (citation omitted). And all
interest accrues from the time the party becomes liable and bound to pay
them. Ala. Code § 8-8-8 (1975); see also Maddox v. Alfa Mut. Ins. Co., 577 So.
2d 457, 458 (Ala. 1991).
Applying Alabama’s 6 percent per annum prejudgment interest rate to
this matter, the Court finds that the per diem interest rate taxed against the
jury’s award of $1,420,671.02 is 0.00016438356164, which equates to $233.53
per day ($1,420,671.02 times 0.00016438356164).12 As to when this per diem
amount began accruing, Section 14 of the Agreement directs Plaintiffs to
transfer the Questar Facility Agreements “[w]ithin 120 days of [the] Closing
Date.” (Doc. 172-1, p. 13). The Closing Date was “June 10, 2011.” (Doc. 175,
p. 2). Thus, 120 days from this date is October 8, 2011. From October 8,
2011 through this date, April 28, 2016, 1,664 days have elapsed. Based on
this, $388,593.92 ($233.53 per day times 1,664 days) in interest has accrued
on the jury’s award of damages for Levada.
5. Total Damages Award
In sum, Levada is due judgment in its favor based on the jury’s
determination that Plaintiffs breached the Agreement by failing to transfer
the Questar Facility Agreements. Thus, damages on the jury’s verdict are
due in the following categories and amounts:
$1,420,671.02 in damages for Levada based on Plaintiffs’ failure
to deliver the Questar Facility Agreements, as determined by
The Court used a 365 day calendar in its calculations.
prejudgment interest totaling $388,593.92 for the period of
October 8, 2011 through the date of entry of this Order and
Judgment, calculated at the statutory interest rate of 6%
($233.53 per diem) for 1,664 days; and
reasonable attorneys’ fees in the amount of $588,431.00;
bringing the total amount of damages due to $2,397,695.94.
For all the foregoing reasons, it is ORDERED as follows:
1. Plaintiffs’ Renewed Motion for Judgment as a Matter of Law on
Plaintiffs’ Claims for Breach of Contract (Doc. 178) is DENIED;
2. Plaintiffs’ Renewed Motion for Judgment as a Matter of Law on
Levada’s Counterclaim for Breach of Contract (Doc. 179) is
3. Plaintiffs’ Motion for New Trial or, Alternatively, Motion for
Remittitur (Doc. 180) is DENIED;
4. Levada’s Motion to Enter Final Judgment with Interest, Attorneys’
Fees and Litigation Expenses (Doc. 175) is GRANTED, in part,
WITHHELD, in part, and DENIED, in part; and
5. A separate judgment will be entered in Levada’s favor against
Plaintiffs, jointly and severally, in the total amount of
6. An amended judgment will be entered by separate order in
Levada’s favor against Plaintiffs, jointly and severally, once the
amount of reasonable expenses is determined.
DONE and ORDERED this 28th day of April, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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