Lew Wenzel & Co. of Southern California, Inc. v. London Litho Supply Co., Inc.
| Decision Date | 04 November 1977 |
| Docket Number | No. 76-2720,76-2720 |
| Parties | LEW WENZEL & COMPANY OF SOUTHERN CALIFORNIA, INC., Plaintiff-Appellee, v. LONDON LITHO SUPPLY CO., INC., Defendant and Counterclaimant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Morton Minikes, Los Angeles, Cal., argued for defendant and counterclaimant-appellant.
Hal L. Coskey, Los Angeles, Cal., argued for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before ELY, HUFSTEDLER and ANDERSON, Circuit Judges.
In this diversity case, London Litho Supply Co., Inc. ("Litho") appeals from a judgment on remand contending that the district court improperly interpreted our remand from the prior appeal and, accordingly, impermissibly allowed Wenzel & Company ("Wenzel") an award of attorney's fees and incorrectly awarded Wenzel post-judgment interest from the date that the original judgment was entered, rather than from the date upon which judgment was entered after remand. We affirm.
Wenzel sued Joseph London and Litho on alternative theories of tort and breach of contract, seeking damages for injuries arising out of Litho's and London's purchase of Wenzel's business. The district court awarded no compensatory damages against London, but it awarded punitive damages against him. Next, the court awarded both compensatory and punitive damages against Litho. On the first appeal, we held that, applying California law, punitive damages could not be awarded against London, because no compensatory damages had been awarded against him. We also overturned the punitive damages award against Litho, because, while the district court had awarded compensatory damages for breach of contract, it had not awarded damages on the tort theory. Again, applying California law, we held that punitive damages could not be annexed to compensatory damages awarded for breach of a sales contract. Separate compensatory damages were not the subject of adequate findings on the tort theory. Although Wenzel could have potentially recovered on either the tort theory or the contract theory, "(D)amages cannot be awarded under both contract and tort theories, nor can they be awarded for punitive damages under any contract theory." We affirmed in part, reversed in part, and remanded the case to the district court to permit Wenzel to elect its remedy and to permit damages to be "accordingly reassessed."
When the case was returned to the district court, Wenzel elected its contract theory and was permitted to amend its complaint to seek attorney's fees in accordance with a contract provision authorizing recovery of such fees. The district court entered a new judgment, consisting of the compensatory damages originally awarded, plus $15,000 attorney's fees, plus post-judgment interest on the former award beginning from the entry of the original judgment on April 5, 1974.
I
Litho contends that the district court disobeyed this court's mandate by permitting the amendment of the complaint to include a claim for attorney's fees on the ground that our mandate confined the district court upon remand to a reassessment of damages based solely on the prior record. No disobedience of our mandate is involved. Once Wenzel...
To continue reading
Request your trial
-
Handgards, Inc. v. Ethicon, Inc.
...66 L.Ed.2d 36 (1980). To hold Ashland Oil and Hysell applicable here would overrule Mt. Hood Stages and Lew Wenzel & Co. v. London Litho Supply Co., Inc., 563 F.2d 1367 (9th Cir.1977). Japan Lines' attempt to reconcile post-judgment interest law in all of the circuits cannot be viewed as ov......
-
Mt. Hood Stages, Inc. v. Greyhound Corp.
...interest runs from the date the judgment was originally entered in the district court. Fed.R.App.P. 37; Lew Wenzel & Co. v. London Litho Supply Co., 563 F.2d 1367 (9th Cir. 1977); Perkins v. Standard Oil Co., 487 F.2d 672, 674 (9th Cir. 1973). Greyhound argues that interest cannot be awarde......
-
Onyx Pharms., Inc. v. Bayer Corp.
...1589, 134 L.Ed.2d 809 (1996); Bains LLC v. Arco Prods. Co., 405 F.3d 764, 776–77 (9th Cir.2005); Lew Wenzel & Co. of S. Cal., Inc. v. London Litho Supply Co., 563 F.2d 1367, 1368 (9th Cir.1977). However, these cases do not stand for the broad proposition that only evidence which is attached......
-
Turner v. Japan Lines, Ltd.
...1311-12 (9th Cir.1982); Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394, 406 (9th Cir.1980); Lew Wenzel & Co. v. London Litho Supply Co., 563 F.2d 1367, 1369 (9th Cir.1977). On the other hand, where a district court judgment in favor of defendant is reversed on appeal or a judgment i......
-
Chapter §21.03 Reissue
...counterclaimant Contour's U.S. Patent No. RE37,545 ('545 patent) satisfied the written description requirement. See Revolution Eyewear, 563 F.2d at 1367. The appellate court also rejected challenger Revolution's separate argument that claim 22 was "invalid for violating 35 U.S.C. §251 becau......