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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.