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7th Circuit rules on attorney fee issues in brownfield case

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The 7th Circuit Court of Appeals has mostly upheld an Indiana federal judge who’d ruled on the litigation costs and attorney fees involved in a Shell gas station brownfield case.

The 25-page opinion came today in Daniel J. and Pamela Wickens and Mark E. Shere v. Shell Oil Company, Nos. 09-2737 & 09-2620, which affirms and reverses in part a 2008 judgment from Judge Sarah Evans Barker in Indianapolis. The case dates back more than five years and involves a couple who were trying to sell their shoe shop when they discovered contaminated soil from a former fuel station on the Anderson property. Though they reached a settlement on most of the issues, the parties disagreed on various issues that included how attorney fees were calculated.

In its ruling today, the 7th Circuit held that Judge Barker correctly used a cut-off date for when Mark Shere’s legal work could stop being used to calculate the litigation costs and disbursements. The appellate panel upheld a $37,443.25 award for litigation costs and disbursements and denied the attorney’s request for prejudgment interest before Jan. 9, 2007; as well as ordered Shell to pay the $116,511.27 in corrective action costs incurred in May and June 2007.

The 7th Circuit did reverse Judge Barker on an issue about how Shere had billed for work that his wife -- an Indianapolis attorney who’s been on inactive status since 2005 – did during the litigation. The court made a “small calculation error” that it described as a clerical error that cost Mark Shere about $1,020.25 and should be corrected on remand.

A larger sticking point in the litigation was that Shere failed to disclose during the litigation that Employers Fire Insurance Company was funding the litigation. Judge Barker criticized Shere for not disclosing this, but didn’t go as far as determining fraudulent concealment as Shell alleged and stopped short of sanctioning him. The trial court denied a motion to vacate the judgment based on that issue, and the 7th Circuit affirmed that decision.

On the point where Shere argues about the District judge’s portrayal of him in a less than favorable light, the 7th Circuit wrote that an appeal isn’t the proper remedy for this even if the judge had found misconduct, which she didn’t.

“What Shere does not mention is that the district court was, in many places, equally critical of Shell’s approach to this case, and that it had some complimentary things to say about Shere,” the court wrote. “We sit to review judgments, not particular language in district court opinions, and Shere will have to be satisfied with our decision on the merits, which is largely favorable to him.”
 

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  1. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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