BR Tank, L.L.C. v. Holcim (US), Inc.

Filing 75

RULING: The Court grants Holcims motion to set Attorneys Fees and Costs in the amount of $52,791.28. Council for the parties shall jointly submit a proposed Judgment consistent herewith within five (5) days of the issuance of this ruling. Signed by Judge James J. Brady on 09/07/2011. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BR TANK, LLC
CIVIL ACTION
VERSUS
NO. 09-979-JJB
HOLCIM (US), INC.
RULING
A bench trial was held in this matter on May 17, 2011. In a subsequent
Memorandum Opinion (doc. 69), the Court found Defendant Holcim was entitled
to reasonable attorneys’ fees and court costs under the lease. The parties filed
briefs regarding the proper amount of those fees and costs.
Holcim filed a motion to set fees and costs at $53,311.28. (Doc. 70). BR
Tank replied, asking the Court to reconsider its award of fees and costs to
Holcim. Alternately, BR Tank urges Holcim is not entitled to attorneys’ fees for its
counterclaim against BR Tank. As for the amount in Holcim’s motion, BR Tank
claims it is too much: first, it includes more than attorneys’ fees and costs and
thus should be $47,816.85; second, there are some improper charges. Holcim,
in their response (doc. 74), allows only that $520 was mistakenly charged to this
case file and lowers the amount requested to $52,791.28.
The Court sees no reason to reconsider its decision to award attorneys’
fees and costs to Holcim. As the suit for Declaratory Judgment was a legal
proceeding filed by BR Tank against Holcim, it clearly fits within the language of
Article VI, §2 of the lease agreement, in which the parties agree to indemnify
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each other against “any and all claims, suits, actions, causes of action . . .” BR
Tank’s request for reconsideration is denied.
As for the amount of fees, BR Tank urges first that Holcim’s recovery
should be limited to the period involving the Declaratory Judgment and should
not include Holcim’s counterclaim. Holcim counters with two arguments: first,
they say the Declaratory Judgment is still alive in that BR Tank has not dismissed
its claim and may yet appeal. Further, Holcim argues they were forced to bring
their compulsory counterclaim to recover any potential losses, including lost rent
because it could not re-lease the property during the pendency of the suit. The
Court finds no reason to segregate the fees and expenses of the Declaratory
Judgment and the counterclaims: the lease does not envision such division and
the compulsory nature of Holcim’s claim gave it no choice but to bring it.
Therefore, the fees and costs will cover the entirety of the suit.
BR Tank argues that the fees and costs should include only actual
attorneys’ fees and court costs. Again, the language of the lease contradicts this
argument: “any and all . . . expenses, including court costs and reasonable
attorneys’ fees . . . “ (emphasis added). This wording clearly indicates that other
expenses beyond court costs and reasonable attorneys’ fees would be
indemnified.

Thus, the other expenses included in Holcim’s motion will be

included.
The Court grants Holcim’s motion to set Attorneys’ Fees and Costs in the
amount of $52,791.28.
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Council for the parties shall jointly submit a proposed Judgment consistent
herewith within five (5) days of the issuance of this ruling.
Signed in Baton Rouge, Louisiana, on this 7th day of September, 2011.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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