Lock Realty Corp. v. U.S. Health, LP

• Decision Date: 12 February 2013
• Docket Number: 12–1334.,Nos. 11–3477,11–3570,s. 11–3477
• Parties: LOCK REALTY CORP. IX, Plaintiff–Appellee/Cross–Appellant, v. U.S. HEALTH, LP, et al., Defendants–Appellants/Cross–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

707 F.3d 764

LOCK REALTY CORP. IX, Plaintiff–Appellee/Cross–Appellant,

v.U.S. HEALTH, LP, et al., Defendants–Appellants/Cross–Appellees.

Nos. 11–3477, 11–3570, 12–1334.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 17, 2012.

Decided Feb. 12, 2013.

Timothy Maher (argued), Attorney, Barnes & Thornburg LLP, South Bend, IN, for Plaintiff–Appellee/Cross–Appellant.

Robert J. Palmer (argued), Attorney, May, Oberfell & Lorber, Mishawaka, IN, for Defendants–Appellants/Cross–Appellees.

Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.

WOOD, Circuit Judge.

These appeals represent the end of the line for a long-running dispute over a nursing-home lease between Lock Realty Corporation IX (the lessor) and U.S. Health (the lessee) and Americare (the lessee's assignee). For simplicity, we refer to the defendants as Americare unless the context requires otherwise. Between Americare's appeal and Lock's cross-appeal, we are presented with a potpourri of issues covering everything from the propriety of a partial summary judgment in Lock's favor to the district court's attorneys' fee decision. The most complex question, however, relates to our appellate jurisdiction—a subject on which we requested supplemental briefing after oral argument. After reviewing the parties' submissions, we are satisfied that our jurisdiction is secure. On the merits, we find no reversible error in the various rulings of the district court that the parties have highlighted, and so we affirm.

I

In January 2002, U.S. Health entered into a 20–year lease for a nursing home and adjacent property owned by Lock in Goshen, Indiana. Defendants Larry New, John Bartle, and Rebecca Bartle guaranteed the lease, which was to run from April 2002 to March 2022. At some point before mid–2006, U.S. Health assigned the lease to defendant Americare Living Centers III, LLC. It did so without obtaining Lock's written consent, despite a provision in the lease imposing that precondition to assignment. Other concerns began to come to light, however, that did attract Lock's attention. Two separate lawsuits followed, to which we will refer as Lock I and Lock II. We trace each one here, in the hope that this detail will not only place the issues before us in context, but will also show why we have appellate jurisdiction. For the most part, facts relating to the merits of the arguments on appeal will be presented as we discuss each point.

A. Lock I

On January 24, 2006, Lock filed suit in federal court, invoking the diversity jurisdiction, against U.S. Health. This lawsuit, No. 3:05–CV–715 in the district court, charged that U.S. Health had violated a provision of the lease under which it was required to fund a replacement reserve. The parties reached a settlement relatively quickly. On May 4, 2006, the district court entered an order for a stipulated judgment in Lock's favor of $679,287.96, along with prejudgment interest of $1,471.13; it set the interest rate for the post-judgment period at 4.94%. The next day, U.S. Health filed a motion to set aside the May 4 judgment. On May 17, 2006, the parties stipulated that the judgment would be set aside and a new judgment for Lock in the amount of $485,430.56 would be entered. The stipulation also noted that an amount for attorneys' fees would be agreed by June 10, 2006, and a supplemental judgment reflecting that agreement would be entered. On May 30, 2006, the court entered an order reflecting the May 17 stipulations.

Although things had been going smoothly (more or less) up to that point, it was not long before problems began to crop up. The June 10 date for an agreement on attorneys' fees turned out to be unrealistic, and so there were several extensions. On June 21, 2006, however, the court entered a final judgment for Lock in the agreed amount of $485,430.56, plus post-judgment interest at a rate of 5.13%. On July 14, 2006, the court issued an order granting Lock's motion for fees and setting the amount at $29,238.85. Six weeks later, on August 31, 2006, Lock filed a motion under Federal Rule of Civil Procedure 60(b)(2) and (3) asking the court to modify its judgment to include Americare as a judgment debtor. Lock explained that it had only then learned that U.S. Health, without the necessary authorization from Lock, had assigned its lease to Americare. The court obliged in an order entered September 25, 2006.

On October 5, Americare filed a motion under Federal Rule of Civil Procedure 59(e) to amend the September 25 order by removing it as a judgment debtor. The court denied this motion on November 28, 2006; this appears to be its last word on the appropriateness of including Americare in the case.

In the meantime, Lock was having no luck collecting its half-million dollars from either U.S. Health or Americare. On January 16, 2007, Lock filed a motion for supplemental attorneys' fees and costs arising out of its collection efforts. The court denied that motion on February 27, 2007. At the same time, it resolved some motions that raised issues about priority among the parties for certain Medicare funds, which apparently were being sought in connection with the judgment. It set a hearing on that issue for March 7, and on March 9, it entered an order disbursing the Medicare funds that it previously had frozen. This order stated that the June 21 judgment on the merits and the July 14 attorneys' fee judgments were satisfied. This came tantalizingly close to resolving the case, but one matter remained outstanding: Lock's effort to obtain additional fees and costs related to the post-judgment phase.

On March 16, 2007, Lock decided to pursue that matter in a different way, by filing a motion to amend the July 14, 2006, judgment for attorneys' fees. Although it is not clear, this motion seems to have relied on Rule 60(b)(3), which permits relief from a final judgment for reasons of fraud, misrepresentation, or misconduct by an opposing party. The court denied that motion more than a year later, on April 28, 2008, but it did so “without prejudice to its renewal at the conclusion of the companion case [ Lock II ], at which time Lock may submit evidentiary support for the attorneys' fees and costs requested.” More than two years after that order, on July 22, 2010, the court entered its final judgment in Lock II, as we describe below. Lock followed up with a renewed motion for supplemental attorneys' fees, as the court had said it could, on August 5, 2010. Another year and a half elapsed before that motion was resolved, but on January 10, 2012, the court issued an order granting Lock an additional $86,675.50 in fees and $1,206.02 in costs. In the same order, the court denied Americare's motion to strike the affidavit of Timothy Maher, Lock's lead counsel, in support of the fee motion. With all of the loose ends finally tied up, Americare and U.S. Health filed their notice of appeal on February 9, 2012, from the January 10 award of fees. That appeal was docketed as No. 12–1334 in this court.

B. Lock 77

As we noted above, shortly after the district court entered its judgment in June 2006 in Lock's favor and Lock began its collection efforts, Lock learned about U.S. Health's assignment of the lease to Americare. In addition, Lock had not received the rental payments on the lease for the months of June, July, and August 2006, and Lock believed that U.S. Health had breached the guarantees in the lease. In September 2006, therefore, Lock filed suit against U.S. Health, Americare, and the individual defendants for breach of contract and for immediate possession of the premises. This case was assigned No. 3:06–CV–487 in the district court. Within a few days, the district court granted Lock's motion for immediate possession.

The focus of the case then shifted to the damages question. On February 6, 2007, the court denied Lock's motion for damages in the amount of $10,291,817.73, which allegedly represented the future rent under the lease. Instead, the court ruled, damages had to be calculated by offsetting the fair rental value of the property against the future rents owed under the lease. Lock also filed a motion seeking from the defendants the $371,249.30 that represented the missed rental payments for June through September 2006. U.S. Health and Americare responded—five months late, the court thought—and asserted that this amount should be reduced by the value of the assets and consumables that Lock acquired when it took over the nursing home.

On March 25, 2008, the court granted Lock's motion for partial summary judgment for the delinquent rents in the full requested amount of $371,249.30. The court explained that it was denying Americare's setoff defense because it had been waived by the tardy filing. This left the question of the remaining damages for the breach of the lease on the table.

Matters lay quiet for a long time, but on September 14, 2009, the district court filed an order addressing a number of matters that had accumulated. In that order, it rejected the methodology for calculating the fair rental value of the property that had been proposed by Lock's expert, Jean Tipton, as unreliable under Federal Rule of Evidence 702. It criticized Tipton for relying on two rejected offers from U.S. Health to pay lower rent and for failing to use any of the three conventionally accepted methods for property valuation. Next, the court denied as untimely Lock's motion to introduce evidence of audit rates to supplement its showing of fair rental value; Lock had filed the motion in October 2008, long after the discovery cutoff of April 2008. The court also denied Lock's motion for summary judgment in the amount of $6,092,153, because there was no support for this figure once Tipton's testimony was excluded. Finally, the court granted Americare's motion to limit Lock to its liquidated damages, because Lock had the burden of proof on damages and it had failed to submit any admissible evidence.

After...