Tri-State Truck Insurance, LTD. et al v. First National Bank of Wamego, Kansas, No. 5:2009cv04158 - Document 194 (D. Kan. 2014)
Court Description: MEMORANDUM AND ORDER denying 179 Motion to Alter or Amend Judgment. That attorneys' fees and other damages (Dk. 171, 174) are hereby awarded to Flint Hills and to Gibson in accordance with the terms of this memorandum and order. The Court shall retain jurisdiction over the case until February 6, 2015, to determine a party's entitlement to and amount of future damages. Signed by U.S. District Senior Judge Sam A. Crow on 8/5/14. (mb)
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Tri-State Truck Insurance, LTD. et al v. First National Bank of Wamego, Kansas Doc. 194 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS TRI - STATE TRUCK I NSURANCE, LTD., TST, LTD., and ANDREW B. AUDET, Plaint iffs, v. No. 09- 4158- SAC BANK OF THE FLI NT HI LLS, et al, 1 Defendant s. MEMORANDUM AND ORDER This case com es before t he Court on TST’s m ot ion ( Dk. 179) t o alt er or am end j udgm ent , and on t he issue of at t orneys’ fees ( Dk. 171, 174) . I . M ot ion t o Alt e r or Am e n d To prevail on t his m ot ion, TST m ust est ablish eit her “ ( 1) an int ervening change in t he cont rolling law, ( 2) new evidence previously unavailable, [ or] ( 3) t he need t o correct clear error or prevent m anifest inj ust ice.” Servant s of t he Paraclet e v. Does, 204 F.3d 1005, 1012 ( 10t h Cir. 2000) . TST assert s t he lat t er. “ A Rule 59( e) m ot ion ... is designed t o perm it relief in ext raordinary circum st ances and not t o offer a second bit e at t he proverbial apple.” Synt roleum Corp. v. Flet cher I nt 'l, Lt d., 2009 WL 761322 ( N.D.Okla. Mar. 19, 2009) . Such a m ot ion does not perm it a losing part y t o rehash 1 The Court refers t o t he Defendant s collect ively as “ Flint Hills” for purposes of convenience, except when necessary t o dist inguish bet ween t hem . See Dk. 192 ( agreed order revising capt ion) . Dockets.Justia.com argum ent s previously addressed or t o present new legal t heories or fact s t hat could have been raised earlier. Brown v. Presbyt erian Healt hcare Servs., 101 F.3d 1324, 1332 ( 10t h Cir. 1996) , cert . denied, 520 U.S. 1181 ( 1997) . Yet t hat is precisely what TST does in t his m ot ion. Aft er reviewing t he argum ent s present ed by TST in support of t he m ot ion, t he Court finds t hat TST’s m ot ion is prem ised on it s disagreem ent wit h t he court 's previous findings and int erpret at ion, applicat ion, and conclusions of law. TST has dem onst rat ed no reason for t he Court t o alt er or am end it s j udgm ent or t o m ake addit ional findings or rulings. Because t he part ies have repeat edly dem onst rat ed t heir penchant for const ruing language in sharply conflict ing ways, t he Court believes t hat an econom y of words is appropriat e. Therefore, for t he reasons st at ed by t he Court in it s prior rulings ( Dk. 176, 166) as well as t hose st at ed in Flint Hills’ brief ( Dk. 186) , t he Court finds no basis for grant ing t his m ot ion. I I . At t or n e ys’ Fe e s The Court ’s order dat ed March 18, 2014 ( Dk. 166) required t he part ies t o confer regarding t he am ount of reasonable at t orneys’ fees TST owes t o Flint Hills and Gibson, and t o not ify t he Court by a specified dat e whet her or not an agreem ent had been reached. The part ies were unable t o reach an agreem ent on fees so t he court est ablished a briefing schedule, and t he issue is now ripe for decision. The part ies are fam iliar wit h t he prior decisions in t his case and t he underlying fact s. Furt her, t he Court has 2 previously addressed t he legal st andard, t he burden of proof, and t he fact ors in det erm ining t he reasonableness of fess, so will not repeat t hose herein. Flint Hills seeks it s at t orney fees as part of t he m erit s of it s breach of cont ract count erclaim . The provision of t he CLA upon which Flint Hills relies in seeking at t orneys’ fees st at es in relevant part : COLLECTI ON EXPENSES AND ATTORNEYS’ FEES. To t he ext ent perm it t ed by law, Borrow er agrees t o pay all expenses of collect ion, enforcem ent and prot ect ion of Lender's right s and rem edies [ under] t his Agreem ent . Expenses include, but are not lim it ed t o, reasonable at t orneys' fees including at t orney fees as perm it t ed by t he Unit ed St at es Bankrupt cy Code, court cost s and ot her legal expenses. Dk. 76, Exh. 4, para. 34. A. Flin t H ills’ Fe e s TST does not generally challenge t he reasonableness of t he hourly rat es Flint Hills’ at t orneys charged, t he adequacy of t he billing records ( wit h som e except ions not ed below) , or it s dut y t o pay int erest on t he expenses Flint Hills incurred as a result of t his disput e. 1 . Pe n n sylva n ia Ca se s TST cont ends t hat Whit e’s fees, port ions of Dent on’s fees, and port ions of Spencer Fane’s fees are unreasonable because t hey are at t ribut able t o unsuccessful legal work on relat ed Pennsylvania cases. But TST does not cont end t hat t hose fees were not “ expenses of collect ion, enforcem ent and prot ect ion of Lender's right s and rem edies” under t he Loan Agreem ent . 2 2 Because TST does not base it s obj ect ion on t he fact t hat fees were incurred in separat e cases, t he Court does not exam ine t his issue. 3 a . Re a son a ble n e ss TST cont ends t hat Flint Hills’ at t orneys’ fees for it s unsuccessful lit igat ion in t wo Pennsylvania cases are unreasonable. I n Bucks Count y case No. 2009- 10141- 35, Flint Hills m oved t o int ervene, filed a m ot ion t o st rike or open t he default j udgm ent , prepared a praecipe, and prepared a pet it ion seeking relief from t he default j udgm ent . None of t hose effort s succeeded. Flint Hills also filed a separat e Pennsylvania case against TST, a “ com plaint in equit y,” which t he court dism issed because Flint Hills failed t o prosecut e it . ( Bucks Count y case No. 2011- 08872) . I n support of it s posit ion t hat fees should be reduced t o account for unsuccessful effort s, TST cit es § 1988 cases which award fees t o “ prevailing part ies.” See Dk. 177, p. 9. Alt hough fees in t his case are not pursuant t o a fee- shift ing st at ut e or any “ prevailing part y” language, t he “ result s obt ained” are a relevant fact or in det erm ining t he reasonableness of fees in t his case. See U.S. for Use of C.J.C., I nc. v. West ern St at es Mechanical Cont ract ors, I nc., 834 F.2d 1533, 1547, 49 ( 10t h Cir. 1987) . Flint Hills assert s t hat it obt ained “ relief” from t he Pennsylvania court . But t he “ favorable ruling” Flint Hills references is prem ised on t his finding by Judge Baldi: “ Flint Hills has failed t o dem onst rat e at t his j unct ure t o t his Court t he fact ual basis for it s argum ent t hat t he j udgm ent against eit her defendant s would im pose liabilit y upon Flint Hills, or affect it s own legally enforceable int erest in TST’s loan.” Dk. 76- 24 p. 6. This and ot her language 4 in Judge Baldi’s decision reflect s Flint Hills’ failure t o m eet it s burden of proof, rat her t han t he affirm at ive finding on t he m erit s sought by Flint Hills t hat t he Pennsylvania j udgm ent could not possibly affect Flint Hills’ int erest in t he loan. See e.g., Dk. 76- 24, p. 4 ( finding, “ [ t ] his Court has not ent ered any Order regarding Flint Hills’ right s, dut ies, or obligat ions wit h regard t o com m ercial Loan Nos. 5483 or 5484. I t is unclear from t he evident iary record before t his Court if Flint Hills has an ownership int erest or ot her int erest in Loan Nos. 5483 and 5484.” ) . Judge Baldi ult im at ely denied Flint Hills’ m ot ion t o int ervene because t hat m ot ion was unt im ely and because Flint Hills failed t o show t hat it had any dog in t he fight . Dk. 76- 24, pp. 5, 6. Flint Hills also seeks fees for filing a separat e act ion in Pennsylvania against TST, Bucks Count y case No. 2011- 08872. But Flint Hills did not pursue t hat case so aft er t wo years of inact ivit y t he Court dism issed it for failure t o prosecut e. Flint Hills has shown no reason why it should recover fees in t his case for t hat abandoned proceeding. The Court finds t hat Flint Hills has not shown t hat it should recover fees in t his case from it s effort s in t he Pennsylvania lit igat ions, where it s effort s t o prot ect t he Lender’s right s and rem edies consist ed largely of filing a m ot ion t o int ervene t hat was unt im ely filed and procedurally insufficient , and of filing a lawsuit t hat was dism issed for lack of prosecut ion. Alt hough t he cases are relat ed, t he reasonableness of t hose part icular act ions has not been shown. 5 Flint Hills urges t his Court t o focus inst ead on t he overall result s t hat Flint Hills ult im at ely obt ained in t his case, but t hat out com e, as found t he Tent h Circuit and by t his Court on rem and, is based on t he prem ise t hat t he Pennsylvania act ion had no im pact on t he lit igat ion in t his court bet ween t hese part ies. I n fact , Flint Hills’ success on it s sum m ary j udgm ent m ot ion in t his case would have been surer, swift er, and sim pler had it not engaged in lit igat ion in Pennsylvania. Flint Hills’ assert ion t hat it s effort s in Pennsylvania yielded an ult im at e vict ory or subst ant ially advanced it s int erest s in t his case is t hus not well t aken. Accordingly, t he Court will reduce Flint Hills’ at t orneys’ fees by t he am ount s incurred in lit igat ing t he Pennsylvania act ions. b. Am ou nt Flint Hills’ sole challenge t o t he am ount of $180,481.75 incurred in t he Pennsylvania act ions is t o st at e t hat som e of t he fees included t herein “ relat e t o” t he present act ion, so TST cannot j ust ify any reduct ion in fees on t hat basis. But t he burden t o prove t he reasonableness of fees rest s on Flint Hills. Flint Hills does not st at e what am ount of fees included in TST’s calculat ion it believes “ relat e t o” t his case, nor does it specify any relevant invoices or ent ries. Flint Hills does not clarify how any Pennsylvania fees “ relat e t o” t his case, or whet her it believes t hat som e fees incurred solely in t his case were erroneously included in t he calculat ion. 6 Nor are t he invoices a m odel of clarit y. Dent on’s and Spencer Fane’s invoices do not separat ely ident ify t heir work on t he unsuccessful Pennsylvania lit igat ions by reference t o case nam es or num bers, and oft en com bine t hat work wit h ot her m at t ers. See e.g., Dk. 171, Exh. 3, p. 20 ( Spencer Fane ent ry on 9/ 22/ 11, $1207.50, including “ pet it ion t o int ervene” and t he Pennsylvania “ independent act ion in equit y” ) . I n m any cases, t he invoices reflect block billing of large am ount s of t im e including m ult iple t asks, som e apparent ly incurred in t he present case and som e in t he Pennsylvania cases. See e.g., id, p. 19 ( Spencer Fane ent ry on 9/ 20/ 11, 6.8 hours, $1,666.00, including work on Pennsylvania cases and Equit able Bank int ervent ion) . Addit ionally, m any ent ries are redact ed t o such an ext ent t hat t he Court cannot t ell what work t he at t orney perform ed or in which case. See e.g., id, p. 37 ( Spencer Fane ent ry on 1/ 13/ 12 178.50, st at ing: “ Finish analyzing grounds for * * * * * evaluat e* * * * * and relat ed issues of appellat e st rat egy.” ) The Court const rues any am biguit y against t he claim ant . Accordingly, t he Court finds t hat Flint Hills has not m et it s burden t o show t hat t he following fees incurred in t he Pennsylvania lit igat ions are reasonable: Whit e and William s LLP’s fees in t he am ount of $62,140.50; Dent on’s fees in t he am ount of $93,341.25; and Spencer Fane’s fees in t he am ount of $25,000. Accordingly, t he Court shall reduce Flint Hills’ fees by $180,481.75. 7 2 . D u plica t ive W or k Next , TST cont ends t hat Flint Hills’ current law firm ( Spencer Fane) engaged in “ significant duplicat ion of effort s” when it replaced Flint Hills’ previous law firm ( Dent on) aft er t he Court issued it s init ial sum m ary j udgm ent order in t his case in August of 2011. See Dk. 177 at 6–7. TST asks t he Court t o reduce t he fee request by $30,665.98, t he am ount of Spencer Fane’s invoices for it s work in August 2011 when it ent ered t his case, since t hat work was only t o fam iliarize it self wit h t his case, which Dent on had previously done. Flint Hills responds t hat when it ret ained Spencer Fane, m ore t han half a year had passed since Dent on had perform ed any work on t his act ion, so even had Flint Hills kept t he sam e firm , it s at t orneys would have had t o review t he proceedings t o refresh t heir m em ories. Dk. 181, p. 7- 8. But a review by counsel who has represent ed a part y in t he case is not as t im e consum ing as gaining an init ial grasp of t he issues, proceedings, and st at us of t he case. To t his Flint Hills avers t hat Spencer Fane was already fam iliar wit h “ m uch of t his lit igat ion” when hired because it had represent ed ot her lenders in sim ilar disput es. Flint Hills also shows t he Court t hat t he challenged invoices reflect t asks t hat Dent on did not perform and could not have perform ed, because t hey result ed from t he Court ’s sum m ary j udgm ent decision, issued aft er Dent on st opped working on t he case. 8 The Court agrees t hat no unnecessary duplicat ion of t asks or double billing has been shown. Even assum ing t hat Spencer Fane spent som e m ore t im e in August t han Dent on m ight have had it rem ained counsel for Flint Hills, t he court is not willing t o penalize t he client for it s decision t o ret ain new counsel, where t he new counsel’s fees were reasonable under t he circum st ances. 3 . Equ it a ble Ba n k ’s Fa ile d I n t e r ve n t ion TST cont ends t hat over $4,000 of Spencer Fane’s fees are unreasonable because Flint Hills paid t hem on behalf of Equit able Bank, anot her part icipat ing lender, who unsuccessfully sought t o int ervene in t his case. This Court denied Equit able Bank’s m ot ion t o int ervene as unt im ely and for it s non- com pliance wit h Rule 24( c) . Equit able Bank appealed t hat decision, t hen dism issed t hat appeal. Flint Hills does not challenge t his am ount , but replies solely t hat no reduct ion should be m ade because t his failed m ot ion t o int ervene w as “ part of a st rat egy t hat ult im at ely succeeded.” Dk. 181, p. 11. But Flint Hills fails t o show t he Court how filing an unt im ely and unm erit orious m ot ion t o int ervene on behalf of anot her part icipant was st rat egic in advancing it s own int erest s, or how t he denial of Equit able Bank’s m ot ion cont ribut ed in any way t o Flint Hills’ ult im at e success on t he m erit s of t he case. Neit her t his Court nor t he Tent h Circuit found Equit able Bank’s presence or absence t o be relevant . Accordingly, a reduct ion in t he am ount of $4000 is w arrant ed. 9 4 . Au de t ’s Loa n Finally, TST cont ends t hat Flint Hills is not ent it led t o it s at t orneys’ fees for w ork on Audet ’s loan, because Flint Hills did not prevail as t o t hat loan. Flint Hills lost it s sum m ary j udgm ent m ot ion regarding t he Audet loan and t he Tent h Circuit affirm ed t hat ruling. TST seeks an overall fee reduct ion of 10% t o reflect t he degree of Flint Hills’ overall success in t he m at t er. That percent age is in accordance wit h t he Tent h Circuit ’s reduct ion of Flint Hills’ cost s on appeal by 10% t o account for it s lack of success on appeal. Flint Hills assert s t hat t he 10% reduct ion of cost s on appeal was in accordance wit h FRAP 39( a) , and t hat t his rule “ indicat es t hat cost s should be allocat ed in accordance wit h t he out com e of an appeal.” Dk. 181, p. 11. Cont rary t o Flint Hills’ assert ion, t he Rule does not lim it t he court t o consider only t he degree of success on appeal, or even include t hat as a fact or t o be considered. The rule m erely st at es in relevant part t hat “ if a j udgm ent is affirm ed in part [ and] reversed in part … cost s are t axed only as t he court orders.” And t hat rule is inapplicable here. Flint Hills also fault s TST for not ident ifying any records of Flint Hills’ work on Audet ’s loan, but t his is likely because t he at t orneys’ invoices lack sufficient specificit y on t his and ot her m at t ers. The burden t o show t he reasonableness of fees incurred in lit igat ing t he Audet loan, and t he dut y t o subm it m et iculous, cont em poraneous t im e records revealing how t he lawyer’s hours were allot t ed t o specific t asks rest s on Flint Hills, not on TST. 10 Flint Hills bears t he burden t o show t hat it would have incurred t he sam e am ount of fees in t his case, absent Audet ’s loan. Any t acit assert ion t hat Flint Hills spent no t im e or effort on Audet ’s loan is unsupport able, given t he Tent h Circuit ’s ruling which underscores t he fact t hat t he t erm s of t he Audet loan are different from t he ot her loan and warrant a separat e analysis. Because t he lack of specificit y of t he fee records precludes an exact calculat ion, t he Court agrees t hat a 10% reduct ion accurat ely reflect s t he result s obt ained, so shall m ake t he sam e percent age reduct ion m ade by t he Tent h Circuit . 5 . Am ou n t of W or k TST not es t hat t his case did not involve a j ury t rial, ret ained expert s, or m ult iple deposit ions, and t hat t he overall am ount of fees is t hus unreasonable. Flint Hills count ers t hat t his case necessit at ed ext ensive briefing on relat ively com plex issues and novel t heories and t hat analyzing t hose m at t ers correct ly and art iculat ing t hat analysis clearly j ust ified t he t im e spent . The Court has reviewed t he hours spent on t his case and finds t hem t o be reasonable except as not ed above. 6 . Fix e d v. Con t in ge n t Flint Hills alleges t hat t he reasonableness of it s fees is shown because it s fee request is m erely approxim at ely one- sixt h of t he am ount t o which it s at t orneys would have been ent it led had t heir fees been cont ingent . Dk. 171, 11 p. 14. Fees in t he am ount of six t im es t hose being sought by Flint Hills would t ruly shock t he conscience of t he Court . Flint Hills’ analysis m isconst rues t he purpose of t his fact or. Flint Hills’ com parison, m ade wit h t he benefit of hindsight , presum es t hat it s client would have agreed t o a cont ingency fee in t his case, t hat it s firm would have undert aken t he risk of recovering no fees by t aking t he case on a cont ingency fee, and t hat t he course of lit igat ion would have been pursued ident ically, had a cont ingency fee exist ed. Such a ret rospect ive assupt ion is neit her accurat e nor useful. This fact or is m ore appropriat e where t he case has been conduct ed pursuant t o a cont ingent fee agreem ent . See e.g., Edwards & Associat es, I nc. v. Black & Veat ch, L.L.P., 2001 WL 1718101, 5 ( D.Kan. 2001) ( finding t he fee was a blended hourly/ cont ingency fee agreem ent , which provided bot h sides wit h som e risks and som e benefit s) ; I n re Qwest Com m unicat ions I nt ern., I nc. Securit ies Lit igat ion, 625 F.Supp.2d 1143, 1151 ( D.Colo. 2009) ( “ A cont ingent fee, and t he pot ent ial for a relat ively high fee, is designed t o reward counsel for t aking t he risk of prosecut ing a case wit hout paym ent during t he lit igat ion, and t he risk t hat t he lit igat ion m ay be unsuccessful.” ) This fact or does not weigh in Flint Hills’ favor. The Court finds t hat t he rem aining fact ors under Rule 1.5( a) do not warrant eit her a reduct ion t o or an increase in t he fees sought by Flint Hills. 12 B. Flin t H ills’ Su pple m e n t a l Fe e s Flint Hills asks t he Court t o award at t orneys’ fees t hat it reasonably incurred in preparing it s briefs and exhibit s seeking fees, and in responding t o TST’s m ot ion t o alt er and am end. Flint Hills has support ed it s fee request wit h it em ized st at em ent s, and it is well est ablished t hat such fees are com pensable. Accordingly, t hose fees shall be allowed wit hout a 10% reduct ion, in t he am ount request ed of $20,473.00. C. Gibson ’s Fe e s Gibson seeks $26,367.00 in at t orneys’ fees, $384.36 in expenses, and $4,003.01 in int erest t hrough May 12, 2014. TST’s underlying obj ect ion is t hat Gibson had no need t o int ervene in t his act ion so should recover no fees, expenses, or int erest . TST first assert s t hat Gibson has t he burden t o prove t hat it s firm , Dysart Taylor, m ade a “ dist inct cont ribut ion” t o t he case on it s behalf, over and above t he represent at ion provided by Flint Hills’ lawyers. But precedent does not require a “ direct cont ribut ion.” Cont rary t o TST’s represent at ions, t hat language is from an 11t h Circuit case, not a 10t h Circuit case. See Dk. 178 at 4 ( quot ing t he “ Tent h Circuit ” case of Johnson v. Univ. College of Univ. of Ala., 706 F.2d 1205, 1208 ( 11t h Cir. 1983) ) ; I d, at 5, 8, 11 ( alluding t o Johnson or it s language regarding a “ dist inct cont ribut ion” of each at t orney) . And TST shows t he Court no such language in t he Tent h Circuit ’s analysis of at t orneys’ fees issues. 13 TST fails t o show t he Court t hat any hours claim ed by counsel for Gibson were unnecessary, irrelevant , or duplicat ive. Furt her, Gibson shows t he Court t hat it reasonably believed t hat it s int ervent ion in t his case was necessary t o prot ect it s int erest , given TST’s repeat ed assert ions in t his case t hat Flint Hills could not represent any ot her loan part icipant s, including Gibson. See e.g., Dk. 155, p. 18- 19; Dk. 180, p. 7. TST next cont ends t hat Gibson has m ade “ no subst ant ive filings in t he case,” Dk. 178, p. 2, and t hat it s involvem ent in t he case was “ m ere surplusage.” I d, at 6. But t he Court appreciat es t hat Gibson lit igat ed t he case efficient ly and avoided unnecessary expense by, on m any occasions, incorporat ing Flint Hills’ briefs - doing only what was necessary t o preserve it s posit ion wit hout belaboring t he issues. The record reflect s efficient cooperat ion, rat her t han redundancy, bet ween t he defendant s t hroughout t he case. Gibson was not unreasonably doing t he sam e work as was Flint Hills. TST also assert s t hat Gibson was unreasonable in select ing different counsel t han Flint Hills before Gibson ret ained t he sam e counsel for som e post - j udgm ent and appellat e proceedings. But separat e part ies oft en warrant separat e counsel because t he part ies’ int erest s are not coext ensive. Such is t he case here, where Flint Hills was not only a part icipant in t he loan but also t he servicer of t he loan, unlike Gibson. Alt hough som e fees could perhaps have been avoided if Gibson and Flint Hills had shared counsel, t he 14 Court finds t hat t his savings is out weighed by Gibson’s int erest in choosing it s own counsel, who had represent ed Gibson in ot her legal m at t ers for m ore t han 15 years. TST also cont ends t hat t he “ m onit oring” of cases required no expert ise so should have been done by associat es inst ead of by part ners. But t hat would have required t he associat es t o confer wit h part ners, or part ners t o review t he sam e m at t ers previously reviewed by t he associat es before proceeding wit h t he subst ant ive aspect s of t he case. The Court believes t his decision was well wit hin t he discret ion of t he at t orneys t o m ake and t hat t heir decision was reasonable. Accordingly, Gibson shall be awarded it s fees, as request ed: $26,367.00 in fees, $384.36 in expenses, and $4,003.01 in int erest t o 5/ 12/ 14. D . I n t e r e st on At t or n e ys’ Fe e s TST does not disput e t hat it agreed t o pay int erest on Flint Hills’ at t orneys’ fees. See Dkt . No. 177 at 15. Nor does TST disput e t he accuracy of Flint Hills’ calculat ion of t hat int erest at t he rat e of 7.75% per 365 days unt il paid in full. See id. Accordingly, int erest at t hat rat e on t he at t orneys’ fees awarded by t he Court shall be ordered. I I I . Fut u r e D a m a ge s Flint Hills also seeks fees t hat it “ reasonably incurs aft er June 15, 2014 in connect ion wit h TST’s loan and accrued int erest on t hose fees.” But t hose fees are yet t o be incurred in t his case and t heir am ount cannot present ly be 15 shown t o a reasonable degree of cert aint y, as is necessary. Accordingly, as t o any fut ure at t orneys’ fees or int erest t hereon incurred by Flint Hills or Gibson, all part ies are ordered t o m eet and confer t o review t he docum ent s t hat show t hose dam ages wit h reasonable cert aint y. I n t he event no resolut ion can be reached, t he part y seeking such dam ages shall so not ify t he court . Accordingly, t his court shall ret ain j urisdict ion over t he case for a t im e t o det erm ine a part y’s ent it lem ent t o and am ount of fut ure dam ages. I V. Tot a l D a m a ge s Flint Hills has calculat ed it s t ot al dam ages and, except for t hose m at t ers addressed above, TST has st at ed no obj ect ion t o t hem . Therefore, in accordance wit h t his order and it s previous orders, t he Court finds t he following dam ages have been shown as a m at t er of law and hereby orders TST t o pay t he following am ount s: Principal am ount - $6,761,434.62 I nt erest on t he principal am ount at t he rat e of from Novem ber 16, 2009, unt il paid in full. $1,435.65 per day Flint Hills’ Cost s $1,151.28 Gibson’s Expenses $384.36 Gibson’s At t orneys’ fees t hrough 5/ 12/ 14: Flint Hills’ At t orneys’ fees t hrough 4/ 30/ 14: $475,784.50 sought - 180,481.75 ( Pa. lit igat ion) 16 $26,367.00 $262,172.48 - 4,000.00 ( Equit able Bank int ervent ion) - $291,302.75 29,130.27 ( Audet 10% ) $262,172.48 awarded Flint Hills’ Supplem ent al At t orneys’ fees from May 1, 2014 - June 15, 2014: $20,473.00 I nt erest on all at t orneys’ fees at t he rat e of 7.75% per 365 days from t he dat e such fees were paid unt il paid in full. I T I S THEREFORE ORDERED t hat plaint iff's m ot ion t o alt er or am end ( Dk. 179) is denied. I T I S FURTHER ORDERED t hat at t orneys’ fees and ot her dam ages ( Dk. 171, 174) are hereby awarded t o Flint Hills and t o Gibson in accordance wit h t he t erm s of t his m em orandum and order. The Court shall ret ain j urisdict ion over t he case unt il February 6, 2015, t o det erm ine a part y’s ent it lem ent t o and am ount of fut ure dam ages. Dat ed t his 5t h day of August , 2014, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 17
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