Free Motion for Judgment - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 262-5747 Telephone (602) 262-5311 Peter Baird (State Bar No. 001978) Richard A. Halloran (State Bar No. 013858) Cory A. Talbot (State Bar No. 020702) Attorneys for Brown & Bain, P.A.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) John M. O'Quinn, an individual; John M. ) O'Quinn & Associates, L.L.P., a Texas ) limited liability partnership; John M. ) O'Quinn, P.C., a Texas professional ) corporation; John M. O'Quinn Law ) Firm, PLLC, a Texas limited liability ) company; O'Quinn, Kerensky & ) McAninch; and Jane Doe O'Quinn, ) ) Defendants/Counterclaimants. ) )

8 Brown & Bain, P.A., an Arizona professional association, 9 Plaintiff/Counterdefendant, 10 vs. 11 12 13 14 15 16 17 18

No. CIV 03-0923-PHX-ROS BROWN & BAIN'S MOTION FOR ENTRY OF JUDGMENT and NOTICE OF LODGING OF PROPOSED FORM OF JUDGMENT

Plaintiff Brown & Bain, P.A., moves for entry of judgment pursuant to Rule 58,

19 FED.R.CIV.P. The Court has granted two motions for partial summary judgment in favor 20 of Brown & Bain (Dckt. 57 & 146). Those rulings entitle Brown & Bain to judgment in 21 its favor on all claims except for two small matters that Brown & Bain is no longer 22 pursuing. Accordingly, Brown & Bain requests that the Court enter a final judgment in 23 its favor and against Defendants jointly and severally. The amount of the judgment, 24 calculated in accordance with the formula set forth in the parties' agreement, should be 25 $3,293,752.94, plus prejudgment interest and post-judgment interest. Brown & Bain will 26 also be seeking an award of its attorneys' fees and costs. 27 Brown & Bain's proposed form of judgment is attached as Exhibit 1, and has been

28 lodged with the Court herewith.
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I.

BROWN & BAIN IS ENTITLED TO A DAMAGES JUDGMENT. As set forth in the Court's most recent summary judgment ruling, Brown & Bain

is entitled to recover "additional payments" from O'Quinn in the amount of $155.25 for each attorney hour previously billed and $51.75 for each paralegal hour previously billed. (Opinion & Order at 2:15-18, 9:5-6 (Dckt. 146).) These additional payments were due when O'Quinn recovered an amount equal to the discount rate payments previously paid to Brown & Bain, i.e., $2.9 million. Once that amount was recovered by O'Quinn, the remainder of the amount recovered by O'Quinn was to be split with Brown & Bain until the additional payments were paid in full. On February 4, 2002, O'Quinn recovered $10.1 million as a result of the settlement of the McIntire v. Motorola lawsuit. (See O'Quinn's "Internal Settlement Sheets" attached as Exh. 6 to Brown & Bain's July 27, 2005 Statement of Facts).)1 Of that amount, O'Quinn was obligated to split with Brown & Bain the remainder in excess of the $2.9 million previously paid to Brown & Bain until Brown & Bain was paid the full amount of the additional payments. Under that contractual formula, Brown & Bain is entitled to additional payments of $3,293,752.94: 18,523.7 attorney hours x $155.25: 8,076.3 paralegal hours x $51.75: TOTAL:
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$ 2,875,804.42 $ 417,948.52 $3,293,752.94 2

O'Quinn settled the McIntire case for $26,301,921.39. The proceeds were in two categories: $25,151,921.39 Settlement payment for personal injury claims + $1,150,000.00 Settlement payment for property damages claims $26,301,921.39 Total Settlement Amount That $26,301,921.39 was then distributed as follows: -$13,727,597.66 $12,574,323.73 - $2,467,335.12 $10,106,988.61
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Costs paid by clients Settlement funds paid to clients Amount recovered by O'Quinn

See Exh. 3 to 7/27/05 SOF. These amounts exclude the time billed by Brown & Bain in connection with the two matters on which summary judgment was not sought, the "Harvey" and "Farr" matters. Brown & Bain is no longer pursuing an award of
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II.

BROWN & BAIN IS ENTITLED TO PREJUDGMENT INTEREST. Brown & Bain's entitlement to prejudgment interest in this diversity case is

governed by state law. See, e.g., Fidelity Fed. Bank v. Durga Ma Corp., 387 F.3d 1021, 1023 (9th Cir. 2004); Northrop Corp. v. Triad Int'l Marketing S.A., 842 F.2d 1154, 115556 (9th Cir. 1988). The parties have not disputed that Arizona law governs this case. Under Arizona law, Brown & Bain is entitled to prejudgment interest at the rate of 10 % per annum. See ARS § 44-1201(A). "The general rule in Arizona is that a plaintiff is entitled to an award of pre-judgment interest on a liquidated claim." Autonumerics, Inc. v. Bayer Indus., Inc., 144 Ariz. 181, 193 (App. 1985). "A claim is liquidated if the plaintiff provides a basis for precisely calculating the amounts owed." John C. Lincoln Hospital and Health Corp. v. Maricopa County, 208 Ariz. 532, 544 ¶ 39 (App. 2004). Here, Brown & Bain's claims were liquidated. The amount of the additional payments owed to Brown & Bain is governed by the straightforward mathematical formula set forth in the parties' Engagement Letter. The amount can be calculated with exactness, without reliance on opinion or discretion. Accordingly, Brown & Bain is entitled to prejudgment interest.3 The interest should run from the date O'Quinn recovered the $10.1 million as a result of the McIntire settlement ­ February 4, 2002 ­ through the date of the Court's entry of judgment. III. BROWN & BAIN IS ENTITLED TO POST-JUDGMENT INTEREST. Post-judgment interest is governed by federal law. Under 28 U.S.C. § 1961, Brown & Bain is entitled to post-judgment interest on the full amount of the judgment. additional payments for the time it incurred in connection with the Harvey and Farr matters. 3 Courts often award prejudgment interest in cases involving unpaid attorneys' fees. This is particularly true when the fees are based on a contract that sets out a clear hourly rate where the client was billed in accordance with those rates. E.g., In re Gaston & Snow, 243 F.3d 599, 609-10 (2d Cir. 2001) (awarding prejudgment interest on fees sought because fee was ascertainable by "mere mathematical calculation"), cert. denied, 534 U.S. 1042 (2001); Sebaly, Shillito & Dyer v. Bakers Equipment/Wholesalers, Inc., 597 N.E.2d 1144, 1147 (Ohio App. 1991) (affirming award of prejudgment interest because client "knew the hourly rate applicable to each attorney...The amount due and owing on the...account for all legal services rendered by [lawyer] was fixed in itemized monthly billings that reflected the services rendered as well as the time expended").
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IV.

CONCLUSION. In light of the foregoing, Brown & Bain requests that the Court enter Brown &

Bain's proposed form of judgment, awarding Brown & Bain additional payments of $3,293,752.94, plus prejudgment interest and post-judgment interest. DATED: March 20, 2006. LEWIS AND ROCA LLP

By

s/Peter D. Baird Peter D. Baird Richard A. Halloran Cory A. Talbot Attorneys for Plaintiff Brown & Bain, P.A.

CERTIFICATE OF SERVICE I hereby certify that on March 20, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic filing for the following CM/ECF registrants: Peter D. Baird Leo R. Beus Linnette Rachel Flanigan Richard Henry Herold, Jr. [email protected], [email protected] [email protected], [email protected], [email protected] [email protected] [email protected], [email protected] [email protected], [email protected]

20 Cory Alan Talbot 21 22 23 24 25 26 27 28
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s/Matthew A. Hoggatt