Peterson et al v. Direct Coast to Coast, LLC et al

Filing 155

OPINION AND ORDER: Plaintiffs Motion for Attorney Fees is GRANTED in the amount of $155,617 123 . Plaintiffs Motion to Certify a Question to the Supreme Court 146 is DENIED AS MOOT. Plaintiffs Amended Bill of Costs is GRANTED in par t and DENIED in part 140 . Costs are awarded in the amount of $7,361.10. Plaintiffs original Bill of Costs 125 is DENIED AS MOOT. Defendants Motion for a Judgment Notwithstanding the Verdict, a New Trial, or an Amended Judgment 129 is DENIED. Signed on 2/24/16 by Chief Judge Michael W. Mosman. Signed on 2/24/16 by Chief Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

JOSEPH PETERSON, and
TAMI K. PETERSON,

Case No. 3:14-cv-00284-MO
Plaintiffs,
OPINION AND ORDER
v.
DIRECT COAST TO COAST, LLC
and SELECTIVE TRANSPORTATION
CORPORATION,
Defendants.

MOSMAN, J.,
Plaintiffs’ have prevailed at trial and now seek attorney fees and costs [123]. Defendants
move for a judgment notwithstanding the verdict, a new trial, or to amend the judgment [129].
For the reasons set forth below I GRANT Plaintiffs’ motion for attorney fees and costs [123]. I
DENY Defendants’ Motion [129].
I.

Attorney fees

I award attorney fees under ORS § 20.105 and award only the amount Plaintiffs had to pay
under their contract with counsel.
a. Whether to award
Oregon does not recognize attorney fees as special damages for a slander of title claim.
Hubbard v. Scott, 85 Or. 1, 13 (1917). Despite this, Plaintiffs ask for attorney fees arguing
Hubbard’s reasoning rested on the fact that the majority of jurisdictions did not award attorney
fees as special damages at the time the case was decided. One hundred years later, the majority
1 Opinion and Order

of jurisdictions have changed their position and most award attorney fees. Plaintiffs ask that I
follow the current majority rule, as the Hubbard court did, and award attorney fees. I decline to
do so.

Oregon law is clear that attorney fees are not allowed and it would be inappropriate to

award them here.1
Oregon does allow the award of attorney fess to a party if its opponent asserted a defense
with “no objectively reasonable basis for asserting [the] defense.” OR. REV. STAT. ANN. §
20.105 (West). A defense lacks an objectively reasonable basis only if it is “entirely devoid of
legal or factual support.” Olson v. Howard, 237 Or. App. 256, 269 (2010). This can occur either
at the time the defense is asserted or, “in light of additional evidence or changes in the law,” as
litigation proceeds. Dimeo v. Gesik, 197 Or. App. 560, 562 (2005). The court must inquire
whether there is “at least some support to each element of the claim.” Lenn v. Bottem, 221
Or.App. 241, 249 (2008). Weak evidence, or evidence rebutted by other evidence in the record,
suffices to meet this threshold. See Scott v. Harold Barclay Logging Co., Inc., 162 Or.App. 228,
231 (1999). A party’s testimony alone, however, is insufficient to support a claim as objectively
reasonable where other evidence directly contradicts that testimony and thus demonstrates that
party’s position was untenable. Kraft v. Arden, 2009 WL 73869, at *4 (D. Or. Jan. 8, 2009).
Defendants presented a defense with no objectively reasonable basis. At trial,
Defendants argued Plaintiffs failed to mitigate their damages because they did not remove the
lien themselves. Oregon law outlines that the release of lien may be accomplished by a
judgment creditor creating a release of lien document signed by the creditor and filed with the
court administrator. Testimony at trial showed Mrs. Peterson attempted to remove the lien and

1

In the alternative, Plaintiffs ask that I certify the question of whether Hubbard is still good law to the Oregon
Supreme Court. Because there is already controlling precedent from Oregon, certification is unavailable. See OR.
REV. STAT. ANN. § 20.200 (West). Therefore I DENY Plaintiffs’ Motion to Certify Question to the Oregon Supreme
Court [146].

2 Opinion and Order

was told she could not do so without a release from the creditor. The only other way to remove a
lien is to obtain a court order

a method Plaintiffs pursued by filing this case. Defendants

produced no evidence at trial to support the proposition that Plaintiffs could have done more.
There was neither a legal nor a factual basis for the assertion that Plaintiffs could remove the lien
themselves. For that reason, I find the defense qualifies as objectively unreasonable and award
attorney fees to Plaintiff.
b. Amount of Attorney Fees
Plaintiffs seek $164,958.50 in attorney fees. Defendants argue that amount is too high
both because Plaintiffs spent an unreasonable number of hours on the case and because the Kerr
factors favor a downward adjustment of Plaintiffs’ lodestar figure.2 After taking into account the
factors outlined below, I adjust Plaintiffs’ request and award $155,617.
i. Reasonable hours
Defendants point out three instances in particular that they believed Plaintiffs overbilled.
Plaintiffs concede one was a mistake and adequately explain the other two. The amount
requested has been adjusted according to Plaintiffs’ initial mistake.
ii.
Kerr factors
The parties primarily address how attorney fees are calculated under federal law applying
the Kerr factors. However, the current case is brought under Oregon law which provides its own
set of factors to apply to attorney fees. For attorney fees granted under ORS 20.105, ORS 20.075

2

In addition, Defendants ask for additional discovery if attorney fees are to be awarded. Attorney fees may be
awarded based on the affidavits of counsel so long as they are “sufficiently detailed to enable the court to consider
all the factors necessary in setting the fees.” Henry v. Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir.1993). Plaintiffs’
submissions were sufficiently detailed here. Indeed, Defendants, on the current record, were able to challenge the
number of hours Plaintiff worked in three instances.

3 Opinion and Order

outlines the relevant factors for determining a reasonable fee. Williams v. Salem Women's Clinic,
245 Or. App. 476, 483 (2011). Under that statute I must consider first:
a) The time and labor required in the proceeding, the novelty and difficulty of the
questions involved in the proceeding and the skill needed to properly perform the
legal services.
(b) The likelihood, if apparent to the client, that the acceptance of the particular
employment by the attorney would preclude the attorney from taking other cases.
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved in the controversy and the results obtained.
(e) The time limitations imposed by the client or the circumstances of the case.
(f) The nature and length of the attorney's professional relationship with the
client.
(g) The experience, reputation and ability of the attorney performing the services.
(h) Whether the fee of the attorney is fixed or contingent
OR. REV. STAT. ANN. § 20.075(2) (West).
In applying the factors, I note that while a slander of title claim is not particularly novel,
it is rarely litigated. In addition, Plaintiff has provided evidence counsel’s firm was at capacity
and gave up doing other cases to pursue the present case. Defendants do not dispute the
customary locality fee applied by Plaintiffs in calculating their attorney fees. This was a one time
relationship between Plaintiffs and their counsel, and the present counsel did not even join this
case until after discovery concluded. The arrangement between the parties was a mixed fee, with
Plaintiffs agreeing to a hybrid hourly and contingent fee arrangement of $175 per hour plus 20
percent of the jury verdict.3
In addition to the factors above, Oregon law instructs me to look at the behavior of the
parties including:
(a) The conduct of the parties in the transactions or occurrences that gave rise to
the litigation, including any conduct of a party that was reckless, willful,
malicious, in bad faith or illegal.
(b) The objective reasonableness of the claims and defenses asserted by the
parties.

3

Under this arrangement, the amount for attorney fees would be $155,617 rather than the $165,538.50
Plaintiffs are requesting.
4 Opinion and Order

(c) The extent to which an award of an attorney fee in the case would deter others
from asserting good faith claims or defenses in similar cases.
(d) The extent to which an award of an attorney fee in the case would deter others
from asserting meritless claims and defenses.
(e) The objective reasonableness of the parties and the diligence of the parties and
their attorneys during the proceedings.
(f) The objective reasonableness of the parties and the diligence of the parties in
pursuing settlement of the dispute.
(g) The amount that the court has awarded as a prevailing party fee under ORS
20.190.
(h) Such other factors as the court may consider appropriate under the
circumstances of the case.
OR. REV. STAT. ANN. § 20.075(1) (West).
All of these factors cut against Defendants for their unreasonable legal position and
intransigence in the proceedings. Some examples, just from the most recent motions practice,
include: Objecting to paying for a transcript when a free condensed expert deposition transcript
was provided (but ignoring that free transcript was a bonus for paying for the transcript, and
would not have been obtained otherwise); objecting to witness travel expenses (but ignoring that
“witness fees, including a daily attendance fee and travel expenses as set forth in 28 USC §
1821, are taxable as costs under 28 USC § 1920(3) and FRCP 54(d)(1).”) Kibbee v. City of
Portland, 2000 WL 1643535, at *3 (D. Or. Oct. 12, 2000) (citation omitted); objecting to
printing (but ignoring 28 USC § 1920(3) “fees for printing”); objecting to costs for making
materials to be used in cases (but ignoring that 28 USC § 1920(4) “has been interpreted to
include all types of demonstrative evidence, including photographs and graphic aids.”) Id
(citations omitted). As explained above, Defendants’ proffered mitigation defense was
unreasonable. The award of attorney fees would thus deter meritless defenses. As to the
Defendants’ diligence in the case, Mr. Horowitz ignored the pre-trial filing schedule without
notifying opposing counsel or the court, and while he offered an excuse, it was a thin one at best.
In addition, Mr. Horowitz was rebuked for his demeanor during the course of the trial. Taken

5 Opinion and Order

together both sets of factors indicate awarding an amount equivalent to the full amount of
attorney fees would be appropriate in this case.
While the Oregon factors suggest the base amount may be reasonable, I am concerned by
the difference between what the Plaintiffs paid their counsel and what is being sought in this
motion. Calculated using the attorney’s normal rates rather than the rates of the contract, the
award Plaintiffs seek is $10,000 higher than what they actually contracted to pay their attorneys.
To avoid any improper windfall, I place special importance on Plaintiffs’ fee arrangements and
award the $155,617 of actual cost to the Plaintiffs for hiring their attorneys, rather than
$165,538.50 Plaintiff’s counsel would have received had the fee arrangement been otherwise.
II.

Costs
Federal Rule of Civil Procedure 54(d) provides “costs . . . should be allowed to the

prevailing party.”

FED. R. CIV. P. 54(d)(1). “Rule 54(d) creates a presumption for

awarding costs to prevailing parties; the losing party must show why costs should not be
awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932, 944 945 (9th Cir. 2003). “A district
court need not give affirmative reasons for awarding costs; instead, it need only find that the
reasons for denying costs are not sufficiently persuasive to overcome the presumption in favor of
an award.” Id. at 945.
Plaintiffs seek $13,639.69 in costs. Defendants raise three substantive issues. Each is
addressed below.
a. Expert witness
Defendants have not paid Dr. Patten, an expert that Defendants deposed as they must
under FRCP26(b)(4)(E). They owe him $2,040.71. Defendants argue both that the amount is
unreasonable and that the expert’s work preparing for the deposition is not compensable.
6 Opinion and Order

The Federal Rules of Civil Procedure provide little guidance on whether “time spent in
responding to discovery” includes an expert’s time spent in preparation for a deposition. See
FED. R. CIV. P. 26(b)(4)(C)(i). Courts are divided on whether Rule 26(b)(4)(C)(i) permits
compensation for the time an expert spends in preparation for a deposition. Compare, e.g., Lent
v. Fashion Mall Partners, 223 F.R.D. 317, 318 (S.D.N.Y. 2004) (“Rule 26(b)(4)(C) clearly
contemplates remuneration for time spent responding to discovery requests, which would
include reasonable preparation for a deposition.”), and Collins v. Village of Woodridge, 197
F.R.D. 354, 356 58 (N.D. Ill. 1999) (finding preparation time compensable regardless of
complexity), with U.S. ex rel. Fago v. M & T Mortgage Corp., 238 F.R.D. 3, 15 (D.D.C. 2006)
(holding that the circumstances of the individual case must be examined and declining
reimbursement where issues not complex, experts were deposed within three months of
production of their reports, and moving party offered no other compelling reasons), and M.T.
McBrian v. Liebert Corp., 173 F.R.D. 491, 493 (N.D. Ill. 1997) (refusing to include preparation
time in “reasonable fee” calculation since case was not complex and there was not a considerable
lapse of time between expert's work and deposition). Most courts have held in the affirmative.
See, e.g., Magee v. Paul Revere Life Ins., 172 F.R.D. 627 (E.D.N.Y. 1997) (citations omitted).
Two district courts in the Ninth Circuit have considered the issue and both held preparation time
for a deposition could be compensable. All Cities Realty, Inc. v. CF Real Estate Loans, Inc.,
2008 WL 10594412, at *5 (C.D. Cal. Mar. 14, 2008); Mock v. Johnson, 218 F.R.D. 680, 683 (D.
Haw. 2003). I join them in finding the plain language of Rule 26(b)(4)(C)(i), which permits
recovery for time spent in responding to discovery, can encompass time spent by an expert
witness in deposition preparation.

7 Opinion and Order

Courts that do award time spent in deposition preparation have made a point not to award
time spent in trial preparation. To avoid this, I consider the amount of time the expert claims
and its proximity to the deposition. Here, Dr. Patten’s preparation happened immediately before
his deposition and more than a month in advance of trial. Dr. Patten totaled 2.9 hours

.75

hours two days before the deposition, .66 hours one day before and 1.5 hours the day of his
deposition. The deposition itself was 5.5 hours. The timing indicates Dr. Patten was preparing
for the deposition, not the trial, and the hours spent on preparation are reasonable compared to
the hours of deposition time.
As to reasonableness of his overall fee, what constitutes a “reasonable fee” for purposes
of Rule 26(b)(4)(C) lies within the Court’s sound discretion. Edin v. Paul Revere Life Ins. Co.,
188 F.R.D. 543, 545 (D. Ariz. 1999). There is no mandated Ninth Circuit test, but courts across
the country have applied a seven part test evaluating: (1) the witness’s area of expertise; (2) the
education and training required to provide the expert insight which is sought; (3) the prevailing
rates of other comparably respected available experts; (4) the nature, quality, and complexity of
the discovery responses provided; (5) the fee actually charged to the party who retained the
expert; (6) fees traditionally charged by the expert on related matters; and (7) any other factor
likely to assist the court in balancing the interests implicated by Rule 26. Edin, 188 F.R.D. at
546; U.S. Energy Corp. v. NUKEM, Inc., 163 F.R.D. 344 (D. Colo. 1995); Goldwater v.
Postmaster General of the United States, 136 F.R.D. 337 (D. Conn. 1991). Plaintiffs’ expert is a
Ph.D. who has dedicated himself to cranberry research. The amount sought here is the same
amount the expert charged Plaintiffs: $125 per hour for preparation work and $200 per hour for
the deposition. These rates for experts have previously been found to be reasonable. Head v.

8 Opinion and Order

Glacier Nw., Inc., 2006 WL 1222650, at *2 (D. Or. Mar. 24, 2006). As such, I find Dr. Patten’s
expert fees are reasonable and award them as costs.
b. Computer Expenses
Plaintiffs include computer research expenses under the bill of costs, but argue the
expenses can also be viewed as a “component of attorney fees.” Neither argument is availing.
As costs, they cannot be awarded. Chevron U.S.A., Inc. v. Pelican Butte Oil, LLC, 2011
WL 1398932, at *4 (D. Or. Jan. 31, 2011) (computer costs generally considered by the court to
be overhead and therefore not properly considered costs that may be awarded); Frederick v. City
of Portland, 162 F.R.D. 139, 144 (D. Or. 1995); Ringcentral, Inc. v. Quimby, 711 F.Supp.2d
1048, 1066 (N.D. Cal. 2010); see also U.S. v. Merritt Meridian Constr. Co., 95 F.3d 153, 172
(2nd Cir. 1996) (“computer research is merely a substitute for an attorney's time that is
compensable under an application for attorneys’ fees and is not a separately taxable cost”); Jones
v. Unisys Corp., 54 F.3d 624, 633 (10th Cir. 1995) (computer research costs not statutorily
authorized under 28 U.S.C. § 1920); Standley v. Chilhowee R IV School Dist., 5 F.3d 319, 325
& n. 7 (8th Cir. 1993) (internal citation omitted) (computer costs part of the attorneys’ fees and
not to be taxed separately).
The Ninth Circuit has, at times, allowed computer costs to be reimbursed as attorney fees
noting “neither tradition nor statutory usage distinguishes computer-based legal research costs
from attorney's fees.” Trustees of Const. Indus. & Laborers Health & Welfare Trust v. Redland
Ins. Co., 460 F.3d 1253, 1258-59 (9th Cir. 2006) (holding computer expenses as “attorney’s
fees” under § 1132(g)(2)(D) [ERISA]”). Oregon courts have not yet considered whether they are
allowed as a component of attorney fees. Yuan Chou v. Farmers Ins. Exch., 260 Or. App. 564,
568 (2014) (holding “we need not address whether computer-assisted research expenses might

9 Opinion and Order

be recoverable as attorney fees” but acknowledging they had been awarded in a different case
under the FCRA).
Importantly, even if computer research expenses were appropriate to award as attorney
fees, Plaintiffs would have failed to make the showing needed to be awarded them. A party must
have shown it was the “prevailing practice in the local community” to bill clients for computer
charges in addition to the hourly fee that makes up the general attorney fees. Trustees 460 F.3d
at 1259. Plaintiffs have not done so here. The combination of Plaintiffs moving for the expenses
as a cost; Oregon courts having yet to recognize them as an aspect of attorney fees; and
Plaintiffs’ failure to show that it is not an impermissible double capture (i.e. charging computer
fees separately and also including them in the hourly rate of the attorney) suggests that
reimbursement for computer expenses as attorney fees is inappropriate here. Plaintiffs are not
awarded computer expenses either as costs or attorney fees.
c. Expert costs
Plaintiffs argue they are entitled to expert costs as special damages. Plaintiffs offer
nothing to suggest Oregon allows these costs as special damages in a slander of title case. To the
extent Plaintiffs analogize expert costs to attorney fees, their argument is connected to their
arguments for attorney fees in conjunction with a slander of title claim rather than the Oregon
statute regarding attorney fees I have applied in this case. Because I have found Oregon does not
allow attorney fees as special damages in a slander of title case, I cannot find expert costs
appropriate as a component of attorney fees under special damages in such a case. For that
reason, I do not award Plaintiff expert costs.
Plaintiff requested costs in the amount of $13,114.70. As I have found computer research
and expert fees are unavailable, I award costs in the amount of $7,363.10.

10 Opinion and Order

I.

Motion for Judgment Notwithstanding the Verdict, for New Trial, or to Amend
Judgment
a. Judgment Notwithstanding the Verdict/Renewed Judgment as Matter of Law
Judgment as a matter of law is appropriate “only if, under the governing law, there can be

but one reasonable conclusion as to the verdict.” Settlegoode v. Portland Pub. Sch., 371 F.3d
503, 510 (9th Cir. 2004). When evaluating such a motion, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility determinations or
weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
Defendants cannot raise arguments in its post-trial motion for judgment as a matter of law under
Rule 50(b) that they did not raise in their pre-verdict Rule 50(a) motion. Freund v. Nycomed
Amersham, 347 F.3d 752, 761 (9th Cir. 2003).
i. Weight of the evidence arguments
Defendants present no new arguments in their post-trial motions as to the weight of the
evidence at trial. Their primary argument is that the lien was appropriate when filed and, in the
alternative, Plaintiffs presented no evidence that their loan was rejected because of the lien. As
to the second argument, Plaintiffs provided direct evidence to the contrary in Exhibit 77, an
email from the bank stating “because of the lien we would be unable to make the loan.”
The argument that the lien was not false when published and therefore the elements of
slander of title are not met was offered by Mr. Horowitz when he requested a directed verdict. I
rejected it then and do so again now. Oregon law has recognized that “wrongful failure and
refusal to remove a lien on plaintiff’s property” can form the basis of a slander of title action.
Diamond v. Huffman, 64 Or. App. 330, 332 (1983). Defendants’ arguments fail.

11 Opinion and Order

ii.

Failure to mitigate defense

Defendants argue Plaintiffs could have removed the lien, but failed to do so. Defendants
presented this argument to the jury and the jury rejected it. They offer nothing new to suggest I
take the extreme set of setting aside a jury verdict. Defendants claim Plaintiffs could have
mitigated pursuant to ORS 24.150 which governs satisfaction of a judgment. First, Defendants
ignore the distinction between voiding a judgment and satisfying a judgment. That difference
may matter and it leaves unclear whether ORS 24.150 can even apply to this case. Next, even if
the statute does apply, it notes “it shall be the responsibility of the judgment creditor to provide
an executed satisfaction to this judgment debtor.” OR. REV. STAT. ANN. § 24.150 (West). This
directly contradicts the idea that Plaintiffs could have removed the lien themselves and fatally
compromises Defendants’ arguments.
iii.

Punitive damages unwarranted

Defendants argue punitive damages were legally and factually improper. I reject the
argument that they are factually improper. Plaintiffs presented sufficient evidence of
Defendants’ repeated refusal to remove the lien despite being informed of the damage it was
doing to Plaintiffs’ property. Based on these facts, the jury could have, and did, properly
conclude punitive damages were appropriate.
At my request, both parties briefed the issue of whether punitive damages are allowed in
slander of title cases. See State v. Robertson, 293 Or. 402 (1982). I need not reach the question
of whether punitive damages are barred for slander of title actions because Defendants waived
their objection by failing to raise the issue before trial.4 See Butler v. Halsey Dev., Inc., 262 Or.
4

Defendants, in their supplemental briefing, resubmit their red-line edits to the jury instruction for punitive damages
to show they properly objected to punitive damages. Far from establishing they objected to punitive damages, it
shows Defendants considered the issue and asked only for a change in verbiage, rather than a complete bar to the
question of punitive damages. At no point before the court’s request did either side raise the issue of Art. 8 and
punitive damages.

12 Opinion and Order

589, 591 (1972) (holding since no objection to [punitive damages] was made during the trial;
therefore, the issue will not be considered); State v. McDonnell, 329 Or. 375, 987 P.2d 486
(1999); see also, State v. Hunter, 316 Or. 192, 199 (1993) (noting “rights, even of constitutional
dimension, can be waived”). Defendants’ failure to raise the issue at any point in time constitutes
waiver.
b. New Trial
The court may grant a motion for a new trial under Federal Rule of Civil Procedure 59 “if
the verdict is contrary to the clear weight of the evidence, is based on evidence which is false, or
to prevent a miscarriage of justice.” Silver Sage Partners v. City of Desert Hot Springs, 251 F.3d
814, 819 (9th Cir. 2001); see also Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)
(“Historically recognized grounds [for a new trial under Rule 59] include, but are not limited to,
claims that the verdict is against the weight of the evidence, that the damages are excessive, or
that, for other reasons, the trial was not fair to the moving party.”) (internal quotation and
citation omitted). The “district court may not grant a new trial simply because it would have
arrived at a different verdict.” Silver Sage Partners, 251 F.3d at 819. Rather, the “trial court must
have a firm conviction that the jury has made a mistake.” Landes Constr. Co., Inc. v. Royal Bank
of Canada, 833 F.2d 1365, 1372 (9th Cir.1 987).
i. Plaintiffs’ Counsel’s Comments during Opening Statements
Ms. Foster, in her opening statement, said in reference to Defendants’ offer to remove the
lien for payment: “That might work in the Land of Sopranos . . . here in Oregon, the Petersons
were not willing to go that route.” Defendants did not object at the time. I do not believe it
changed the outcome of the trial nor do I believe the comments themselves to be sufficiently
serious to warrant a new trial.

13 Opinion and Order

ii.

Exhibits

Defendants object that I admitted written evidence of Mr. Horowitz’s inflammatory
statements. These statements came in because they were offered by Plaintiffs as exhibits at the
pre-trial conference and Mr. Horowitz failed to object.
Defendants also object that the court’s exhibit list includes an “Exhibit 96” which
defense counsel claims never to have seen. Defense counsel is correct that Exhibit 96 was not
disclosed before trial. When it was offered at trial, I asked if Defendants had any objection. At
that time, Mr. Horowitz did not object. The exhibit in question is an email from Plaintiffs’ New
Jersey counsel asking Mr. Horowitz to remove the lien. Even if the admission of the exhibit
were error, there was ample other evidence to show that Plaintiffs had asked Defendants to
remove the lien. Indeed, Defendants never argued that they were unaware Plaintiffs wanted
them to remove the lien. Defendants did not object to Exhibit 96 when it was offered and it is
not prejudicial. It does not constitute grounds for a new trial.
c. Amended Judgment
Defendants object to the Amended Judgment because they claim it was done before the
court reviewed their objections. The initial judgment was amended to include an order that
Defendants remove the lien to remedy an inadvertent omission in the original judgment.
Defendants have since removed the lien. The issue is moot, but Defendants claim the record
would be unjust should the Amended Judgment be left without modification. Defendants,
through this motion, have outlined their objections. There is nothing more this court need do.
II.

Conclusion

Plaintiffs’ Motion for Attorney Fees is GRANTED in the amount of $155,617 [123].
Plaintiffs’ Motion to Certify a Question to the Supreme Court [146] is DENIED AS MOOT.

14 Opinion and Order

Plaintiffs’ Amended Bill of Costs is GRANTED in part and DENIED in part [140]. Costs are
awarded in the amount of $7,361.10. Plaintiff’s original Bill of Costs [125] is DENIED AS
MOOT. Defendants’ Motion for a Judgment Notwithstanding the Verdict, a New Trial, or an
Amended Judgment [129] is DENIED.

DATED this

24th

day of February, 2016.

/s/ Michael W. Mosman
_
MICHAEL W. MOSMAN
Chief United States District Judge

15 Opinion and Order