Spizizen et al v. National City Corporation et al

Filing 72

OPINION AND ORDER REGARDING DEFENDANT'S 63 SEALED MOTION Attorney's Fees ; 62 SEALED MOTION Entry of Judgment. Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NEIL SPIZIZEN, et al.,
Plaintiffs,

No. 09-cv-11713
Hon. Gerald E. Rosen

v.

NATIONAL CITY CORPORATION, et al.,
Defendants.
____________________________________/
OPINION AND ORDER REGARDING DEFENDANT’S MOTIONS
FOR ENTRY OF JUDGMENT AND FOR ATTORNEY FEES
I. INTRODUCTION
This case centers on a series of debt obligations between the parties. On April 14,
2011 this Court entered an order denying Plaintiffs’ motion for partial summary judgment
and granting Defendants’ motion for summary judgment. The Court instructed
Defendants to submit a proposed judgment. On May 16, 2011 Defendants submitted a
motion for entry of judgment and a motion for attorney fees. Plaintiffs responded with
their objections on May 27, 2011. Having reviewed the briefs and supporting exhibits, as
well as the record as a whole, the Court finds that the pertinent arguments are sufficiently
addressed in these materials and that oral argument would not assist in the resolution of
these motions. Accordingly, the Court will decide both motions “on the briefs.” See
L.R. 7.1(f)(2). The Court’s opinion and judgment is set forth below.

II. FACTUAL BACKGROUND
Plaintiffs Neil Spizizen (“Spizizen”) and Crescendo Homes, Inc. (“Crescendo”), a
real estate development company owned and operated by Spizizen and others, have had a
longstanding relationship with Defendants. The parties have been involved in a series of
loan transactions for the purchase and development of various Michigan properties. On
December 29, 2004, Spizizen obtained a private portfolio line of credit from Defendants
in the principal amount of $2.4M (the “Private Portfolio Note”). On the same date, the
parties signed a security agreement granting Defendants a specific security interest in
Spizizen’s 5,000,000 shares of Armada Tax Exempt Money Market securities. Per the
terms of the Private Portfolio Note, the $2.4M became due and payable in full on
December 29, 2009. As of June 30, 2010, the Private Portfolio Note had an outstanding
balance of $630,355.27.
On March 3, 2006, Oakland Pointe Partners, II, LLC executed a promissory note
in favor of Defendants in the principal amount of $1.2M (the “OPP Note”). Spizizen
guaranteed fifteen percent of the OPP Note balance or $180,000, whichever was less (the
“OPP Note guaranty”). The OPP Note required annual principal payments in the amount
of $300,000. Spizizen failed to make the annual principal payment for 2008, sending the
OPP Note into default. As of June 30, 2010, the OPP Note had an outstanding balance of
$811,466.67 of which Plaintiff owed fifteen percent, totaling $121,720.00.
Crescendo maintained a checking account with Defendants. On February 13,
2007, Crescendo obtained a commercial note, demand line of credit, in favor of

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Defendants in the amount of $1.5M (the “Crescendo Note”). Additionally, on February
13, 2007, Plaintiffs executed a separate Guaranty of All Debt, which guaranteed prompt
payment for each of Plaintiffs’ obligations to Defendants. Defendants mailed a letter to
Plaintiffs -- dated March 3, 2009 and postmarked March 4, 2009 -- demanding payment
in full for the Crescendo Note. On March 5, 2009, Spizizen attempted to transfer the
Trust Account from Defendants to UBS Financial Services. Defendants denied the
transfer, stating that they had placed a hold on the Crescendo Account and applied $1.1M
from the Crescendo Account to the Crescendo Note debt. The $1.1M payment left
essentially no funds remaining in the Crescendo Account. Plaintiffs filed their complaint
on April 3, 2009. Defendants removed the case to this Court on May 5, 2009.
A series of motions ensued. On April 14, 2011, the Court denied Plaintiffs’
motion for partial summary judgment and granted Defendants’ motion for summary
judgment, holding that Plaintiffs had breached their contracts with Defendants.
Accordingly, Defendants submitted a motion for judgment, a proposed judgment, and a
motion for attorney fees. Plaintiffs objected on numerous grounds. The following
opinion and judgment addresses Plaintiffs’ objections and sets forth the Court’s
judgment.
III. ANALYSIS
The Court having granted Defendants’ motion for summary judgment, all that
remains is entry of judgment. Defendants filed a motion for judgment, a motion for
attorney fees, and a proposed judgment that reflects Plaintiffs’ liability on the Private

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Portfolio Note, the OPP Note guaranty, and the Crescendo Note, as well as the fees
accrued by Defendants’ attorneys. Defendants seek $1,314,443.87 in total: $631,511.11
on the Private Portfolio Note; $121,940.00 on the OPP Note guaranty; $405,569.26 on
the Crescendo Note; and $155,423.50 in attorney fees. Plaintiffs have proffered a
number of objections to Defendants’ proposed judgment. The following analysis
addresses Plaintiffs’ objections.
A.

Plaintiffs’ Objections to Late Fees
In addition to the amounts of principal and interest owed by Plaintiffs, Defendants

have requested $4,061.82 in late fees that accumulated prior to Plaintiffs’ default.
Plaintiffs object to the inclusion of late fees, arguing that Defendants failed to provide
information regarding the fees during the course of discovery and going so far as to
suggest sanctions are warranted. (Pls.’ Resp. to Defs.’ Mot. for J. 2.) Specifically,
Plaintiffs claim that they received no documentation prior to April 14, 2011 regarding the
late fees claimed. (Id. at 3.) This statement is patently false. A cursory examination of
the record reveals that Exhibit 9 accompanying Defendants’ motion of summary
judgment [Dkt. #37] consists of account statements detailing the late fees contested by
Plaintiffs. The document itself is forty-one pages long, and includes entries for late fees
on pages twelve through forty-one. Notwithstanding the fact that these account
statements were likely in Plaintiffs’ possession from the outset of this case, Defendants
filed their motion for summary judgment on July 30, 2010.

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In the alternative, Plaintiffs also dispute a specific late fee of $449.38 levied on
December 14, 2007. The parties agree that the applicable provision provides for a ten
day grace period before a late fee may be assessed and that payment was due on
December 3; however, the parties dispute whether the grace period expired on December
13 or December 14. If the grace period expired on December 14, then the late fee was
not justified.
The relevant loan provision states that “if any interest on this Note is not paid
within (10) days after the due date of that interest, then, and in each such case, Bank shall
have the right to assess a late charge.” (Defs.’ Mot. for J. Ex. 4.) Plaintiffs emphasize
the word “after” without explaining how the grace period lasted until December 14. It
seems, instead, that the important word in the language quoted above is “within,” since
payment had to be made within the grace period to avoid a late fee. That is, after
payment was due on December 3, Plaintiffs had ten days to make their payment and
avoid a late fee; that period began on December 4. Since Plaintiffs had “ten days after
the due date” to make payment, a ten day period beginning on December 4 ends on
December 13. The note specifically states that the payment must be made “within (10)
days after the due date” and thus Plaintiffs had until the end of December 13 to avoid a
late fee. A payment occurring on December 14 cannot be characterized as “within” the
ten day period. Therefore, Plaintiffs’ objections to Defendants’ late fees are without
merit.

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B.

Plaintiffs’ Alleged Settlement of Claims
Plaintiffs also claim that liability should be reduced on the basis of a settlement

purportedly agreed to before the Court issued its opinion and order on the parties’ crossmotions for summary judgment. According to Plaintiffs, the parties were engaged in
settlement talks and reached an agreement to settle Plaintiffs’ claims prior to the Court’s
opinion and order granting Defendants’ motion for summary judgment. The Court finds
no merit to Plaintiffs’ argument. Plaintiffs have not produced the text of the alleged
agreement, let alone a copy signed by the parties. Further, Plaintiffs have failed to even
articulate the terms of the supposed settlement to the Court. Rather, as explained below,
the single piece of evidence put forth by Plaintiffs instead demonstrates that the parties
had not yet reached an agreement.
Contract formation requires a meeting of the minds on all essential terms.
Burkhardt v. Bailey, 680 N.W.2d 453, 463 (Mich. Ct. App. 2004). “A meeting of the
minds is judged by an objective standard, considering the express words of the parties
and their visible acts rather than their subjective states of mind.” Oceguera v. Seaway
Cmty. Bank, No. 298174, 2011 WL 3115786, at *2 (Mich. Ct. App. July 26, 2011) (citing
Kloian v. Domino's Pizza L.L.C., 733 N.W.2d 766, 771 (Mich. Ct. App. 2006)). The
email offered by Plaintiffs as evidence of a settlement -- an email from Plaintiffs’
attorney, Jeffrey M. Thompson -- objectively demonstrates that the parties had not agreed
on a settlement of claims.

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In the email, Thompson suggested two modifications to what was apparently a
preliminary settlement agreement between the parties, but Thompson’s own words
explicitly show that no agreement had been reached. After describing his proposed
changes, Thompson asked Defendants’ attorneys to “circulate a final version of the
release . . . to review in advance of execution.” (Pls.’ Resp. to Defs.’ Mot. for J. Ex. 6.)
Clearly, Thompson did not believe that a binding agreement had been entered into,
otherwise there would be no need to review a final draft of the agreement prior to
executing it. A contract requires an objectively verifiable meeting of the minds.
Oceguera v. Seaway Cmty. Bank, No. 298174, 2011 WL 3115786, at *2 (Mich. Ct. App.
July 26, 2011) (citing Kloian v. Domino's Pizza L.L.C., 733 N.W.2d 766, 771 (Mich. Ct.
App. 2006)). Here, Thompson’s outward conduct unequivocally shows that no meeting
of the minds had occurred because Thompson contemplated further review before
executing the settlement. As such, Plaintiffs’ argument fails.
C.

Plaintiffs’ Request for Interest on Amounts to be Returned
As the Court discussed in its prior opinion, Defendants will be required to return

to Plaintiffs any funds that are not used to satisfy the debts at issue. On the basis of this
prospective recoupment, Plaintiffs contend that a judgment exists in their favor and seek
pre- and post-judgment interest on any funds that will be recovered from Defendants
because, according to Plaintiffs, “even the judgment proposed by [Defendants] is a
money judgment in favor of Plaintiffs . . . .” (Pls. Resp. to Defs.’ Mot. for J. 7.)
However, this statement is false. “The ‘substance’ of a money judgment is a compelled

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transfer of money[,]” and the Court is not compelling Defendants to transfer a specific
sum of money to Plaintiffs. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.
204, 216 (2002). See also Matter of Commonwealth Oil Refining Co., 805 F.2d 1175,
1186 (5th Cir. 1986) (stating that a money judgment requires (1) specific identification of
parties and (2) a definite and certain amount owed by one party to another). Since the
Court granted summary judgment in Defendants’ favor, any judgment will in fact be a
money judgment in favor of Defendants.
The fact that Defendants will return funds not used to satisfy Plaintiffs’ debts does
not convert the judgment into one that is in Plaintiffs’ favor. Plaintiffs’ money will be
returned because Defendants will lose the power to withhold the funds once Plaintiffs’
debts are satisfied. See Spizizen v. Nat’l City Corp., No. 09-11713, 2011 WL 1429226, at
*3-*4 (E.D. Mich. Apr. 14, 2011). Plaintiffs’ recoupment is simply the inevitable
consequence of the Court’s judgment, rather than a judgment unto itself. As such, no
money judgment in Plaintiffs’ favor exists, and no interest is warranted.
D.

Plaintiffs’ Claim that Defendants Will Recover More than the Total Amount
Due
In addition to Plaintiffs’ other objections, Spizizen contends that his liability under

the OPP Note guaranty should be reduced to an amount below the fifteen percent to
which he initially agreed. Specifically, Spizizen alleges that if Defendants recover fifteen
percent of the OPP Note from him, then Defendants will ultimately receive more than the
total amount owed by virtue of Defendants’ settlements with other guarantors of the OPP
Note. This claim is problematic because Spizizen cites no evidence and offers no
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analysis in support of this claim. Spizizen instead relies on conclusory statements alone.
That is, Spizizen has not offered any documentation regarding other guarantors’
settlement agreements, nor has Spizizen cited authority in support of his position.
Spizizen merely repeats his conclusion: that Defendants will recover more than the total
amount owed if they collect in full from Spizizen. Furthermore, the amount Spizizen
claims to owe as guarantor -- $90,586.89 -- is based on the settlement agreement he
argued in favor of earlier. The Court rejected this argument in Part B, supra. The
language of Spizizen’s guaranty agreement clearly states that Spizizen is obligated to pay
fifteen percent of the total owed on the OPP Note or $180,000, whichever is less. As
such, Spizizen will be liable accordingly.
E.

Plaintiffs’ Request Regarding Commercially Reasonable Liquidation of
Assets
In addition to voicing concerns with Defendants’ proposed judgment, Plaintiffs

request that the Court’s judgment include a mandate that Defendants liquidate Plaintiffs’
assets in a commercially reasonable manner. The Court declines this invitation because
Defendants are already so required. The Court made this clear in its earlier opinion and
order: “If Defendants decide to dispose of the collateral, the . . . statutes require that such
disposition be done in a commercially reasonable manner, and that any surplus be
returned to Plaintiffs.” Spizizen v. Nat’l City Corp., No. 09-11713, 2011 WL 1429226, at
*4 (E.D. Mich. Apr. 14, 2011) (emphasis omitted).

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F.

Spizizen’s Objections to the Award of Attorney Fees
In addition to the debts owed, Defendants have also requested $155,423.50 in

attorney fees and costs. Spizizen contests this request on the following three grounds:
(1) that the relevant indemnity provisions are too vague to provide attorney fees; (2) that
Defendants acted unreasonably when they elected to withhold his funds prior to the
instigation of this suit; and (3) that the $155,423.50 requested is unreasonable. “Under
the ‘American rule,’ attorney fees are not recoverable as an element of costs or damages
unless expressly allowed by statute, court rule, common-law exception, or contract.”
Reed v. Reed, 693 N.W.2d 825, 845 (Mich. Ct. App. 2005) (citations omitted). Here,
Defendants claim entitlement to attorney fees pursuant to contract. “The purpose of
contract interpretation is to enforce the parties’ intent, and if the language of the
document is unambiguous, interpretation is limited to the actual words used.” Comerica
Bank v. Alkhafaji, No. 268046, 2007 WL 1855048, at *2 (Mich. Ct. App. June 28, 2007).
Clear contractual language is given its ordinary meaning. Id.
At the outset, it appears that Spizizen is indeed liable for Defendants’ attorney fees
arising out of this litigation. There are three obligations at issue -- the Private Portfolio
Note, the Crescendo Note, and the OPP Note guaranty -- and each contains explicit
language providing for attorney fees. The Crescendo and Private Portfolio Notes, which
Spizizen signed, each include an indemnity clause that reads as follows:

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Borrower will reimburse Bank, on Bank’s demand from time
to time, for any and all fees, costs, and expenses (including,
without limitation, the fees and disbursements of outside legal
counsel and the interdepartmental charges and/or salary of inhouse counsel) incurred by Bank in administering this Note or
in protecting, enforcing, or attempting to protect or enforce its
rights under this Note.
(Pls.’ Mot. for Partial Summ. J. Ex. 7 at 3; Ex. 9 at 2.) Further, Spizizen’s OPP Note
guaranty contains language stating that Spizizen would be liable for “all of Lender’s
costs, expenses, and reasonable attorneys’ fees incurred in connection with or related to
(A) the collection of the Indebtedness, (B) the collection and sale of any collateral for the
Indebtedness or this Guaranty, or (C) the enforcement of this Guaranty.” (Pls.’ Mot. for
Partial Summ. J. Ex. 5 at 1.) By providing for recoupment of “fees and disbursements of
outside legal counsel” and “reasonable attorneys’ fees” in connection with the loans and
guaranty at issue, Spizizen’s contracts unambiguously entitle Defendants to attorney fees
in connection with this case. Comerica Bank v. Alkhafaji, No. 268046, 2007 WL
1855048, at *2 (Mich. Ct. App. June 28, 2007); Reed v. Reed, 693 N.W.2d 825, 845
(Mich. Ct. App. 2005).
Spizizen contests his liability for attorney fees by suggesting that the indemnity
provisions at issue are insufficiently specific because they do not explicitly reference
“attorney’s fees” per se. (Pls.’ Resp. to Defs.’ Mot. for Atty Fees 4.) However,
Spizizen’s position does not accurately reflect controlling law. In fact, the relevant case
law only requires that indemnity provisions express the parties’ intent to include attorney
fees; the magic phrase “attorney’s fees” is not required. For instance, in Comerica, the

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court refused an award of attorney fees because the relevant contract provision merely
provided for “any and all losses” arising out of the guaranty at issue. Comerica Bank v.
Alkhafaji, No. 268046, 2007 WL 1855048, at *3 (Mich. Ct. App. June 28, 2007). The
court did not require specific phrasing. Rather, the court denied attorney fees because the
indemnity provision did not contain “language (such as ‘of every character’) indicating
an intent that the language include attorney fees, costs, or other expenses.” Id. No
special language was required, only a sufficiently explicit expression of intent.
By contrast, in Redfern v. R.E. Dailey Co., 379 N.W.2d 451, 456 (Mich. Ct. App.
1985), the court held that attorney fees were contemplated by an indemnity provision
which agreed to reimbursement “against all claims, liabilities, losses, damages and
expenses, of every character whatsoever . . . .” Id. This language expressed the parties’
intent without using the specific language Spizizen claims is required. As these cases
demonstrate, Spizizen’s argument fails.
Spizizen further contests his liability for attorney fees based on Defendants’
purportedly unreasonable decision to hold Spizizen’s assets once he became delinquent
on his obligations. (Pls.’ Resp. to Defs.’ Mot. for Atty Fees 6-7.) Aside from the fact
that Defendants had the power to hold Spizizen’s assets pursuant to the relevant
agreements, see Spizizen v. Nat’l City Corp., No. 09-11713, 2011 WL 1429226, at *3-*4
(E.D. Mich. Apr. 14, 2011), Spizizen fails to cite any authority whatsoever in support of
his position. Furthermore, Spizizen decries that he was “deprived” of access to his assets
“for more than two years” without appreciating that the two-year denial stems more from

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his decision to file this lawsuit and the disputatious way in which the case was conducted,
rather than any specific conduct on Defendants’ part. Therefore, this argument lacks
merit as well.
Finally, Spizizen claims that the amount requested by Defendants -- $155,423.501
-- is patently unreasonable in light of the proceedings in this case. The Court has
discretion when awarding attorney fees, and “[f]ederal courts calculate awards of attorney
fees using the lodestar method, which consists of ‘the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.’” Sykes v. Anderson,
419 Fed. App’x 615, 617-18 (6th Cir. 2011). The amount produced by the lodestar
method is presumptively reasonable, although the Court retains discretion to increase or
reduce the amount for, e.g., duplication of effort. Ky. Rest. Concepts Inc. v. City of
Louisville, 117 Fed. App’x 415, 419 (6th Cir. 2004). “The appropriate rate . . . is not
necessarily the exact value sought by a particular firm, but is rather the market rate in the
venue sufficient to encourage competent representation.” Gonter v. Hunt Valve Co., 510
F.3d 610, 618 (6th Cir. 2007).
Spizizen contends that the rates and hours billed by Defendants’ attorneys are
unreasonably high. The following table shows -- for each member of Defendants’ legal
team -- years of experience, usual hourly rate, actual hourly rate in this case, hours billed,
and amount charged:

1

This correct amount, given Defendants’ figures, should be $155,418.50. See note 2,
infra.
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Years of
Experience
25
19
16
8
5
Paralegal
Paralegal
Total

Usual Hourly
Rate
$265-$300
$335-$350
$310-$325
$225
$225
$135
$135

Actual Hourly
Rate
$250
$250
$225
$225
$225
$135
$135

Hours
Billed
126.7
254.8
245.5
10.3
1.1
13.2
3.4

Total
Amount
$31,675.00
$63,700.00
$55,237.50
$2,317.50
$247.50
$1,782.00
$459.00
$155,418.502

The billing rates for Defendants’ attorneys are reasonable.3 Each attorney involved in
this case has experience in the field, and the three attorneys who billed the vast majority
of hours each substantially discounted their rates for this case, likely as the result of a

2

It should be noted that this figure differs from Defendants’ calculation by $5.00. It
appears that Defendants miscalculated the total charge for Mr. Bolton, one of
Defendants’ attorneys. According to Defendants, Mr. Bolton billed 10.3 hours at $225
per hour. Therefore, Mr. Bolton accrued $2,317.50 in fees. Defendants’ brief instead
lists Mr. Bolton’s total fees at $2,322.50.
3

Defendants do not address the reasonableness of their paralegals’ billing rate.
Nevertheless, the Court finds $135 per hour to be reasonable. According to the
Association of Legal Assistants and Paralegals, the average paralegal in the Great Lakes
Region had a billing rate of $111 per hour in 2010. See The Association of Legal
Assistants and Paralegals, 2010 National Utilization and Compensation Survey Report,
Section 3 - Paralegal Billing Rates, available at http://www.nala.org/Upload/file/PDFFiles/10SEC3.pdf (last accessed Nov. 29, 2011). However, the average billing rate for
paralegals at a firm the size of Clark Hill (i.e., more than 100 attorneys) is $152 per hour.
Id. As such, a $135 per hour billable rate is reasonable. Spizizen also contests whether
paralegal fees can be included in an award of attorney fees. The applicable case law
suggests that paralegal fees are includable. See, e.g., Imwalle v. Reliance Med. Prods.,
Inc., 515 F.3d 531, 552 (6th Cir. 2008); Grooms v. Comm’r of Social Sec., No. 08-14189,
2011 WL 4536886, at *5 (E.D. Mich. Sept. 30, 2011); Niswonger v. PNC Bank Corp.,
No. 10-377, 2011 WL 4543929, at *4 (S.D. Ohio Sept. 29, 2011); Brooks v. Whirlpool
Corp., No. 10-01098, 2011 WL 3684774, at *5 (W.D. Tenn. Aug. 23, 2011).
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specific arrangement with Defendants. (Defs.’ Mot. for Atty Fees 5-7.) As the table
shows, the three attorneys who billed the lion’s share of hours in this case reduced their
fees by substantial amounts.
Furthermore, these discounted hourly rates -- between $225 and $250 per hour -do not significantly vary from the average rates for attorneys with similar amounts of
experience.4 The discounted rates are also well within the range of expected billable
rates for a law firm the size of Clark Hill, as well as a law firm located in downtown
Detroit. According to the State Bar of Michigan, the mean rate at a firm with more than
fifty attorneys is $313 per hour, and the mean rate for a downtown Detroit law firm is
$290 per hour. (Defs.’ Mot. for Atty Fees Ex. 12 at 8-9.) Counsel’s discounted rates are
well below these amounts. As such, it appears that Defendants’ attorneys billed their
time at reasonable rates.
One last point is worth noting regarding billing rates: as the above table shows, an
attorney with twenty-five years of experience billed at a lower rate than an attorney with
nineteen years of experience. This difference reflects the attorneys’ respective roles in
this case -- the higher-billing attorney was the lead attorney on this case -- as well as the
fact that the lower-billing attorney is senior counsel at Clark Hill whereas the latter,
higher-billing attorney is a member of the firm. (Defs.’ Mot. for Atty Fees 5-6.)

4

In Michigan, an attorney with three to five years of experience has a billing rate of $189
per hour; an average attorney with six to ten years of experience has a billing rate of $205
per hour; an average attorney with eleven to fifteen years of experience has a billing rate
of $232 per hour; and an average attorney with sixteen to twenty-five years of experience
has a billing rate of $255 per hour. (Defs.’ Mot. for Atty Fees Ex. 12 at 7.)
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In addition to evaluating the hourly rates charged by counsel, the Court must also
determine whether the number of hours billed is reasonable. Spizizen attempts to
characterize this case as requiring a marginal amount of time and effort, claiming that
Defendants should not recover full attorney fees because “[t]he proceedings in this case
were minimal, and this case was completely resolved during the summary judgment
stage.” (Pls.’ Resp. to Defs.’ Mot. for Atty Fees 8.) However, this case has lasted over
two years and has generated extensive motion practice, at least some of which was
generated by Plaintiffs’ hyper-zealous discovery tactics and other conduct. Defendants’
attorneys also spent a significant amount of time considering forbearance agreements and
engaging in settlement discussions. Nevertheless, as explained below, the Court deems it
appropriate to partially reduce Defendants’ attorney fees in light of duplication of effort
and the dismissal of some of Defendants’ counterclaims.
While the Court does not doubt that Defendants’ lead attorney expended
significant effort as “the ultimate decision maker on strategy, motions, discovery, and
deposition practice[,]” the 254.8 hours billed is slightly excessive in light of the work
done and time billed by Defendants’ other attorneys. (Defs.’ Mot. for Atty Fees 6.) In
particular, the attorney who “was primarily responsible for preparing the written
submissions to the Court in this case” billed 245.5 hours herself. (Id.) Even considering
the various obstacles Defendants’ legal team had to overcome, the number of hours billed
by Defendants’ lead attorney is high given that, insofar as written submissions to the
Court are concerned, his time was dedicated more to attention and review than drafting.

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This suggests some duplication of effort, which warrants a slight reduction in
Defendants’ total award.
Furthermore, Defendants cannot recover attorney fees for efforts expended on the
two counterclaims that Defendants dismissed earlier. The stipulated dismissal itself
specifically disclaims attorney fees and costs. These counterclaims are only responsible
for a small portion of the total hours billed here given that they were included within a
broader set of counterclaims. Nevertheless, a small reduction is appropriate for this
reason as well. For these reasons, the Court will reduce Defendants’ total attorney fee
award by ten percent, from $155,418.50 to $139,876.65. Therefore,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that SUMMARY
JUDGMENT is ordered in favor of Defendants and against Plaintiffs.
IT IS FURTHER ORDERED that Defendants are entitled to judgments in the
following amounts:
 Against Neil Spizizen: $631,511.11 (Private Portfolio Note), as well as
post-judgment interest per 28 U.S.C. § 1961.
 Against Neil Spizizen: $121,940.00 (OPP Note guaranty), as well as
post-judgment interest per 28 U.S.C. § 1961.
 Against Neil Spizizen and Crescendo Homes, Inc., jointly and severally:
$405,569.26 (Crescendo Note), as well as post-judgment interest per 28
U.S.C. § 1961.
IT IS FURTHER ORDERED that Defendants are entitled to attorney fees from
Plaintiffs in the amount of $139,876.65.

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IT IS FURTHER ORDERED that, within fourteen days of the Court’s order,
Defendants satisfy this judgment -- including interest, taxable costs, and attorney’s fees -by liquidating the assets held in the Trust Account held by the Neil Spizizen Revocable
Living Trust, U/A/D 7/3/86, any remaining surplus being returned to Neil Spizizen, as
trustee for the Neil Spizizen Revocable Living Trust, U/A/D 7/3/86.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: December 16, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of record on
December 16, 2011, by electronic and/or ordinary mail.
s/Ruth A.Gunther
Case Manager
[phone]

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