« Ind. Gov't. - "Make a break from prisons" | Main | Environment - "We don't need Ohio's environmental problems" »

Tuesday, August 31, 2010

Ind. Decisions - One Indiana opinion today from the 7th Circuit

In Wickens and Shere v. Shell Oil (SD Ind., Judge Barker), a 25-page opinion, Judge Wood writes:

Though the parties’ voluminous filings might suggest otherwise, this case had humble beginnings and there is not much left of it at this point. Pamela and Daniel Wickens owned a small shoe store in Anderson, Indiana. The store rested on a plot of land that once had been used as a Shell gas station. In 2004, when the Wickenses began preparing to sell the store and retire, they received the unwelcome news that their store rested on a bed of contaminated soil.

Not long after, the Wickenses retained Mark Shere as their attorney and began talks with Shell regarding its liability for the contamination. Their discussions centered largely on Shell’s responsibilities under Indiana’s Underground Storage Tank Act (the “Act”or the “USTA”), Ind. Code § 13-23-13-8. This statute provides that any person who takes corrective action to remedy damage caused by an underground storage tank may obtain a contribution from the owner or operator of the tank. Ind. Code § 13-23-13-8(b). If the party taking corrective action brings a successful suit, she is also entitled to attorneys’ fees.

Dissatisfied with the outcome of those discussions, the Wickenses filed suit on March 24, 2005. Much legal wrangling followed, but eventually the parties hammered out a settlement agreement that resolved most of the lingering liability issues. Critically for our purposes, the agreement provided that the calculation of corrective action costs and attorneys’ fees would be left to the court.

The district court granted most, but not all, of the Wickenses’ requests for corrective action costs and attorneys’ fees. After the court issued its decision, Shere revealed for the first time that the Wickenses’ litigation team had been funded in part by Employers Fire Insurance Company (“Employers”). Shell quickly filed a Rule 60(b) motion to vacate, which the court denied. Both parties have appealed. We conclude that the district court made the best of a fractious situation and but for a small calculation mistake, we find nothing erroneous in its judgment. Thus, we affirm in part and reverse and remand in part for further proceedings consistent with this opinion. * * *

Shere devotes a significant portion of his brief to contesting a number of the district court’s findings that portray him in a less than favorable light. But his request shows why we cannot do anything about this. He says, in his brief, that “this appeal also concerns pages of dicta, partially and ambiguously withdrawn, in which the district court gave scathing treatment to hardearned professional reputations. The undersigned respectfully requests that this Court vacate and remand the district court’s orders to allow this dicta to be corrected.” Even if the district court had formally found misconduct, an appeal is not the proper remedy. See, e.g., Seymour v. Hug, 485 F.3d 926, 929 (7th Cir. 2007) (explaining that attorneys can only appeal monetary sanctions). 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. 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.

We REVERSE the district court’s judgment insofar as it miscalculated when it deducted Colleen Shere’s fees from Shere’s attorneys’ fees award and REMAND for further proceedings consistent with this opinion. We AFFIRM the remainder of the district court’s judgment.

Posted by Marcia Oddi on August 31, 2010 12:43 PM
Posted to Ind. (7th Cir.) Decisions