Granite Southlands Town Center, LLC v. Alberta Town Center, LLC et al

Filing 286

ORDER adopting 260 Report and Recommendation, re: 199 Motion for Attorney Fees. By Judge Sterling Johnson, Jr on 2/7/13.(mnfsl, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
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GRANITE SOUTHLANDS
TOWN CENTER, LLC,
ORDER ADOPTING
REPORT AND
RECOMMENDATION
Plaintiff,
09 CV 799 (SJ) (KLM)
-againstALBERTA TOWN CENTER, LLC, and
LAND TITLE GUARANTEE CO.,
Defendants.
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APPEARANCES
FULBRIGHT & JAWORSKI LLP
98 San Jacinto Boulevard
Suite 1100
Austin, TX 78701
By:
Paul D. Trahan
Osbourne J. Dykes, III
Attorneys for Plaintiff
JONES & KELLER PC
1999 Broadway
Suite 3150
Denver, CO 80202
By:
Aaron David Goldhammer
Stuart N. Bennett
Attorneys for Defendant Alberta Town Center, LLC
JOHNSON, Senior District Judge:
Following a bench trial before the undersigned, and by order dated
September 2, 2011, Plaintiff Granite Southlands Town Center, LLC, (“Plaintiff”)
obtained a judgment against defendant Alberta Town Center, LLC, (“Defendant’) in
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this breach of contract action. The facts and circumstances presented in that order
are incorporated by reference herein. (Docket No. 195.) Briefly, at issue was the
parties’ Forward Purchase and Sale Agreement (“FPSA”), which was entered into in
order that Plaintiff purchase a 450,000 square foot parcel of commercial property
located in Aurora, Colorado (the “Property”). Pursuant to the FPSA, Defendant was
required to produce certain tenant estoppel certificates containing warranties about
the Property’s tenants. Those certificates were to be provided within 30 days of the
December 12, 2008 closing. Defendant failed to provide satisfactory tenant estoppel
certifications, and, though proceeding with the closing, the parties amended the
FPSA to account for the late certificates. Specifically, $650,000 was placed in
escrow pending Defendant’s satisfaction of the revised terms of sale. Defendant
delivered the remaining certificates in early 2009, nine of which were met with
displeasure by Plaintiff.
However, of the nine allegedly faulty certificates, only one was the subject of
trial.

The certificate from the Colorado Cinema Group, LLC (the “Cinema”)

disclosed for the first time the existence of a cracked foundation and other structural
defects. Plaintiff argued that, at least six months prior to closing, Defendant was
aware of these defects in the property leased by the Cinema but failed to disclose
same. The Court determined that the FPSA was not ambiguous and that Defendant’s
actions entitled Plaintiff to the $650,000 placed in escrow.
Plaintiff moved for $674,477.98 in attorneys’ fees and expenses, as are
contemplated in the FPSA. The motion was referred to Magistrate Judge Kristen L.
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Mix, who, in her February 24, 2012 Report and Recommendation (the “Report”)
found the fees unreasonable. Specifically, Judge Mix found that the matter, a simple
breach of contract action, was overstaffed with three partners billing between
$433.50 and $552.50 per hour, and at least three associates and other staff billing
between $182.75 and $403.75 per hour. (See Report at 4 (“[T]he invoices presented
by Plaintiff make apparent that Plaintiff brought a bazooka to a fist fight.”).) Judge
Mix found not only that fewer attorneys were required to try this action, but that
certain claimed expenses were not ultimately utilized by the client, such as an unfiled countermotion for summary judgment, and preparation for a jury trial. Plaintiff
objects to the Report.
Having reviewed (1) the Report; (2) the case file; (3) the trial transcripts; (4)
Plaintiff’s objections; (5) Defendant’s response to Plaintiff’s objections and having
reviewed de novo Judge Mix’s findings that (1) this was a relatively straightforward
breach of contract action; (2) fewer high-priced attorneys were necessary to
prosecute it; (3) fees for services unutilized should not be recovered; and (4) fees are
appropriate for all hours billed by one partner and one senior associate, the Court
concurs with Judge Mix’s rulings for the reasons set forth in her Report.
Judge Mix correctly determined that Plaintiff’s fee request is unreasonable.
“Cases may be overstaffed, and the skill and experience of lawyers vary widely.
Counsel for the prevailing party should make a good faith effort to exclude from a
fee request hours that are excessive, redundant, or otherwise unnecessary.” Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983). In particular, the Court notes that, with
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fewer attorneys, it would not be necessary to reinvent the wheel quite so many times,
which happens when more and more people are brought up to speed. And, while
Plaintiff argues that the parties chose not to cap fees, even a contractual agreement
can be reviewed by the Court for reasonableness. See Burr v. Moyer, 2012 WL
845412, at *1 (D. Colo. Feb. 23, 2012) (“The district court . . . should only reject the
contractually-stipulated award if it is unreasonable or inequitable.”). Finally, this
Court presided over the one-day bench trial, which itself was uncomplicated.
Plaintiff’s argument that the amount recovered should not function as a de
jure cap on fees does not fall on deaf ears. However, Judge Mix considered this to
be one of many factors for a fee reduction, and this Court agrees not only that it is a
factor but that in this particular case it is an important factor. Cf. Case v. Unified
Sch. Dist. No. 233, Johnson Cty., Kansas, 157 F.3d 1243, 1250 (10th Cir. 1998)
(“Billing judgment consists of winnowing the hours actually expended down to those
reasonably expended.”).

A reasonableness inquiry necessarily involves the

consideration of not just the quantity but the quality of services provided.
Contrary to Plaintiff’s objections, Judge Mix applied the proper legal
standards and construed the evidence in a thoughtful, fair, and clear manner. For the
foregoing reasons, the Court finds Plaintiff’s objections to be without merit and
adopts the Report in its entirety.
SO ORDERED.

Dated: February 7, 2013
Brooklyn, NY

______________/s______________
Senior United States District Judge
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