We say yes, they say no – Renfroe and Rigsby respond to “say what” order issued by Judge Acker

Next thing you know, there’ll be pom poms in the court and supporters cheering for team Renfroe or team Rigsby; but, for the moment they’re not, so let’s examine the answers counsel for Renfroe and Rigsby filed to Acker’s duh-say-what Order.

If it wouldn’t totally remove what little logic there is to this process of Acker’s, I’d start with the “Scruggs” question (#3)  and the responses – both written and implied – that follow.  Not to worry, however, these first two won’t take long.

Acker’s First Question:

Is the court to understand that plaintiff is waiving any claim it may have to damages in the form of its attorneys’ fees except for the previously paid $65,000?

Rigsbys’ Response:

The Defendants have been advised by counsel for Renfroe that it will respond to this question. Defendants dispute that Renfroe is entitled to any damages in the form of attorney’s fees based on their breach of contract claim.

Renfroe’s Response:

No, Renfroe does not waive its claim for damages in the form of its attorneys’ fees incurred in pursuing its claim for breach of contract (excluding the $65,000 already paid)…They were able to stipulate to the “consulting fees,” but not to the attorneys’ fees..[and]…agreed that Renfroe’s entitlement to attorneys’ fees could be decided by the Court, as fact finder, on motion…Renfroe will file by January 30, 2009…

Ready for the next?

Acker’s Second Question:

If plaintiff is still seeking attorneys’ fees, how do the parties propose to obtain a decision on the amount of fees attributable to defendants’ breach of contract? The only alternatives the court can envision are a stipulation or a trial.

Renfroe’s Response:

The Court saw only two options to obtaining a decision on the amount of Renfroe’s attorney fees attributable to defendants’ breach of contract: stipulation or trial…In its forthcoming motion…Renfroe asks this Court, as fact finder, to determine the reasonableness and necessity of the requested attorneys’ fees based on (1) Renfroe’s motion, affidavit and supporting documents, (2) any opposition filed by defendants and/or Richard Scruggs and the Scruggs Law Firm (“Scruggs”), and (3) Renfroe’s reply to that opposition, or, alternatively, Renfroe asks for an evidentiary hearing on the reasonableness and necessity of the requested attorneys’ fees.

The resulting rulings by the Court on Renfroe’s impending motions for attorneys’ fees and for restitution of the Rigsbys’ ill-gotten “consulting fees,” its previous rulings on the breach of contract and trade secret motions for summary judgment…and its Permanent Injunction…will resolve all of the issues as to all`of the parties cited by Renfroe’s Complaint…(except for interest and costs, if any, to be awarded). Renfroe anticipates then filing a motion for entry of final judgment collecting all of the dispositive pieces in one motion to constitute a final judgment.

Rigsbys’ Response:

The parties are willing to stipulate that the question can be submitted on briefs, documentary evidence and sworn declarations. In connection with this stipulation, Renfroe has agreed to provide the Defendants with certain documents supporting its claim for the attorney’s fees it seeks. The Defendants reserve the right to challenge Renfroe’s claim; however, the parties agree that this can also be done by sworn declarations, if necessary. The parties intend to submit a stipulation that waives certain evidentiary objections, excluding relevance. Moreover, the Defendants do not waive their right to challenge the propriety of the categories of damages sought by Renfroe under Alabama contract law; causation; the reasonableness and necessity of the attorneys’ fees sought; and satisfaction of burden of proof. Nonetheless, the parties are willing to submit all of these issues on paper and without a trial.

Some days all you can do is scratch your head and wonder is a post I wrote last September that included mention of Dick Scruggs’ Appeal of Acker’s order finding him in Civil Contempt and the what-I-thought-peculiar identification of Renfroe as appealee.

Well, I scratch my head no longer.  Greed.  As evidence I offer, first, Judge Acker’s final question:

Acker’s Third Question:

In its opinion of June 5, 2008, this court held, consistent with its prior rulings and with the representations of the parties, that “Scruggs is obligated as indemnitor to pay all monetary damages assessed in this case against the Rigsbys”. Thereafter, Scruggs paid the judgment of $65,000 entered by the court against the Rigsbys.

As an indemnitor, does “due process” require that Scruggs be given the opportunity to participate in the resolution of the remaining controversy over what, if any, monetary damages should be awarded to plaintiff and against defendants?

My second exhibit evidencing same follows.

Renfroe’s Response:

In the context of a settlement discussion, the Eleventh Circuit has held that due process is offended if unilateral actions by an indemnitee could bind an indemnitor without notice and an opportunity to be heard…While this situation does not involve a settlement, Renfroe has no objection to Scruggs’ being afforded notice and the opportunity to participate in the resolution of the remaining controversy concerning an award of monetary damages to Renfroe against the Rigsbys.

Additionally, I offer evidence that I’m not the only one who “got it” (OK, I was probably the last to figure it out; but, hey, I’m not a lawyer).

Rigsbys’ Response:

The Defendants claim that Scruggs has indemnity obligations to them and they have provided Scruggs with notice of their position. Neither state law, nor due process, nor the Fed.R.Civ.P. require that the Defendants litigate their indemnity claims in the action that may give rise to the indemnity claim, and the Defendants do not waive any right to pursue such in the future. However, given that Scruggs is a non-party to this action and that he has also objected to the jurisdiction of this Court, the Defendants choose not to litigate these indemnity issues further in this Court and preserve the right to pursue these indemnity obligations in another court, if necessary.

Moreover, the indemnity obligation with respect to a judgment would only be ripe in the event of a judgment. The Defendants have contested and continue to contest that the damages sought by Renfroe for breach of contract are the type of damages that can be recovered under Alabama law. Similarly, even if the damages sought by Renfroe were the type of recoverable damages recognized by Alabama law for a breach of contract claim, which they are not, Renfroe has not and cannot meet its burden of proof.

Thus, if the Defendants are correct, the indemnity issue will become moot, obviating the need to address any issues Scruggs may have with the Defendants’ indemnity claim. This will allow the Defendants to conserve their limited financial resources to focus on the remaining issues regarding the merits of Renfroe’s claims against them. Consequently, under the circumstances, this case can proceed without the further participation from Scruggs.

Next steps? With Acker, you never know; nor, am I prepared to guess what he will do – and I don’t have a clue about when and what the 11th Circuit will rule on Scruggs’ appeal of the Acker Court’s jurisdiction to hold him in civil contempt.  I just figure he didn’t take his checkbook with him.

2 thoughts on “We say yes, they say no – Renfroe and Rigsby respond to “say what” order issued by Judge Acker”

  1. 8/26/09 – TODAY’S DATE

    Nowdy: The date of your post that I’m reading is 1/26/09 and you start a paragraph by saying:

    “Some days all you can do is scratch your
    head and wonder is a post I wrote last September that included mention of Dick Scruggs

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