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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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