Acker’s latest Order, Renfroe’s OMG amended Response – Renfroe v Rigsby and the Hunting of the Snark

They sought it with thimbles, they sought it with care;
They pursued it with forks and hope…

After considering the responses filed on the 26th by counsel for Renfroe and the Rigsby sisters, on the 28th Judge Acker issued a responding Order:

The responses filed by the parties on January 26, 2009, to the questions posed to them by the court on January 20, 2009, make it plain that both plaintiff and defendants waive their right to a trial ore tenus on the questions surrounding the claim for attorneys’ fees as part of the damages plaintiff claims for breach of contract.

But the Judge said he never had summed up before;
So the Snark undertook it instead…

The court has never before conducted a trial by affidavit on a question of damages. The court is, of course, familiar with the determination by affidavit of a claim for the reasonable attorneys’ fees that are provided to a prevailing party by certain statutes. Nevertheless, the court ACCEPTS the parties’ express waiver, and will proceed accordingly.

And summed it so well that it came to far more
Than the Witnesses ever had said!

On the 29th of January, Renfroe’s counsel filed an amended Response to Acker’s earlier Order inclusive of a response to the Order issued by Judge Acker the day before.

Although in hindsight it should have been readily apparent when the Court on January 20, 2009 directed the parties to answer three questions, Renfroe’s counsel was focused on the question of whether or not Renfroe was going to seek recovery of its attorney fees, not apprehending that the Court might consider its pursuit of attorneys’ fees to be a claim for “damages” in the classic legal sense.

But their wild exultation was suddenly checked
When the jailer informed them, with tears,
Such a sentence would have not the slightest effect,
As the pig had been dead for some years.

Renfroe’s counsel should have stated – and now states – “No, Renfroe is not seeking damages in the form of attorneys’ fees; it is seeking equitable relief in the form of attorneys’ fees…

Renfroe’s counsel regrets its casual, pedestrian use of the word “damages” as if that term was interchangeable with the words “recovery” or “relief.”

…Unfortunately, counsel’s answers to the Court’s questions created confusion because they were based on counsel’s own faulty assumptions about what the Court ‘already knew.’ Not realizing it then, Renfroe’s counsel now sees they were in essence expecting the Court to read their minds. They were expecting the Court to know that, despite the use of the word “damages”, they would not attempt to recover attorneys’ fees as compensatory or other legal damages in a contract case, discretion to award Renfroe attorneys’ fees in equity but rather that the facts of this case, would call for the Court’s exercise of its discretion to award Renfroe attorneys’ fees in equity…

“In the matter of Treason the pig would appear
To have aided, but scarcely abetted:
While the charge of Insolvency fails, it is clear,
If you grant the plea ‘never indebted.’

Renfroe’s counsel apologizes to this honorable Court. They will file Renfroe’s motion for attorneys’ fees with affidavit(s) as directed, along with its restitution motion, by 4:30 p.m. on February 13, 2009.

“The fact of Desertion I will not dispute;
But its guilt, as I trust, is removed
(So far as related to the costs of this suit)
By the Alibi which has been proved.

Renfroe’s counsel definitely had an OMG! moment.  The Renfroe Motion for Partial Summary Judgment Regarding Breach of Contract was entered on October 31, 2007.

In this Motion, Renfroe claims the 11th Circuit disposed of all issues relating to Defendants’ breaches of contract thereby barring re-litigation of the issues and states:

Renfroe does not yet seek judgment on its claims regarding violation of the Alabama Trade Secrets Act, economic damages, materials not returned when requested, or other remedies. (emphasis added)

When Judge Acker granted the Motion, there was only a single reference to compensation in the Order and it was specific to damages:

Plaintiff must still prove damages proximately caused by the said breach.

He expands on that reference to damages in the associated Memorandum of Opinion; however, a review of the Memorandum suggests conflicting positions.  For example, he first states:

Although Renfroe has withdrawn any claim for compensatory damages for loss of good will, and has foregone a claim for lost income, it has not given up its claim for the attorneys’ fees and expenses it incurred in the litigation spawned by the Rigsbys “data dump” weekend. Any recovery of Renfroe’s said legal expenditures will, of course, be reduced by the $65,000 already paid by the Rigsbys to compensate Renfroe’s attorneys for obtaining compliance
with the preliminary injunction.

Whether Renfroe can recover from the Rigsbys their ill-gotten gains in the form of the substantial consulting fees received from Scruggs need not be determined today.At this juncture, the only
question is: “Was there a breach-of-contract that potentially caused Renfroe compensable damage?” The answer to this question is “Yes”…Renfroe will be put to the proof on damages.

The indictment had never been clearly expressed,
And it seemed that the Snark had begun,
And had spoken three hours, before any one guessed
What the pig was supposed to have done.

Not only does Judge Acker fail to identify what compensable damage there might be with the claims for loss of good  will and lost income withdrawn, his comments denying Renfroe’s other Motion for Partial Summary Judgment regarding violation of the Alabama Trade Secrets Act suggest he confused the two motions in regard to recovery of legal fees:

The ATSA claim is largely redundant to the breach-of-contract claim. The only reason for Renfroe to have invoked ATSA is that Ala. Code, § 8-27-4, makes it possible to recover not only actual damages but disgorgement, attorneys’ fees and exemplary damages if the ATSA violation is willful and malicious.

The next reference to damages on the docket is contained in the recently filed Joint Motion to decide the case without trial.

The Court has previously granted summary judgment in favor of Plaintiff, E.A. Renfroe & Company, Inc., (“Renfroe”) on Defendants’ liability for breach of contract, set the issue of damages on the contract claim for trial and set a pretrial conference for January 15, 2009.

Counsel for Renfroe again references damages in their Response to  questions Judge Acker directed to both parties in his recent order.

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).

In the amended response – and much to their credit – counsel for Renfroe took responsibility for the reference to damages in the Joint Motion.

Renfroe’s counsel initiated and filed the stipulation that included the parties’ waiver of trial, intending it to serve as a mechanism to simply inform the Court that the parties were in agreement that no trial was necessary…

It’s fair to ask what caused the OMG moment.  My guess is that it was this text in the Response filed by counsel for the Rigsby sisters.

[T]he 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…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.

One last point – Snark – take note of Renfroe’s claim that I quoted earlier in this post:

[the 11th Circuit] disposed of all issues relating to Defendants’ breaches of contract thereby barring re-litigation of the issues.

Now, compare that to this text from the ruling by the 11th as quoted by Judge Acker:

Having concluded that Renfroe is substantially likely to prevail on its breach-of-contract claim, we turn briefly [etc.]

The Rigsby qui tam was sealed when the 11th Circuit ruled on the Rigsby sister’s Appeal of Judge Acker’s Injunction, leading me to believe there might have been a different outcome and perhaps there still might be.

The Judge left the Court, looking deeply disgusted:
But the Snark, though a little aghast…
Went bellowing on to the last.

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