Rosebrough Monument Co. v. Memorial Park Cemetery Ass'n

• Citation: 736 F.2d 441
• Decision Date: 12 July 1984
• Docket Number: 83-2351,Nos. 83-1498,s. 83-1498
• Parties: 1984-1 Trade Cases 66,019 ROSEBROUGH MONUMENT COMPANY, Appellant, v. MEMORIAL PARK CEMETERY ASSOCIATION, a corporation, Valhalla Cemetery, Crematory and Mausoleum Company, a corporation; Lake Charles Memorial Park, Inc., a corporation; Alexander & Sons, Inc., a corporation, d/b/a Mt. Lebanon Cemetery and Mausoleum; Lakewood Park Cemetery, Inc., a corporation; Sunset Burial Park, Inc., a corporation; Stanza & Company Inc., a corporation, d/b/a Oakgrove Cemetery; Laurel Hill Memorial Gardens, Inc., a corporation; Mason Securities Company, d/b/a Hiram Cemetery; Mt. Hope Cemetery and Mausoleum Company, a corporation; Southern Securities Company, a corporation, d/b/a Park Lawn Cemetery, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 441

736 F.2d 441

1984-1 Trade Cases 66,019

ROSEBROUGH MONUMENT COMPANY, Appellant, v. MEMORIAL PARK CEMETERY ASSOCIATION, a corporation, Valhalla Cemetery, Crematory and Mausoleum Company, a corporation Lake Charles Memorial Park, Inc., a corporation; Alexander & Sons, Inc., a corporation, d/b/a Mt. Lebanon Cemetery and Mausoleum; Lakewood Park Cemetery, Inc., a corporation Sunset Burial Park, Inc., a corporation; Stanza & Company Inc., a corporation, d/b/a Oakgrove Cemetery; Laurel Hill Memorial Gardens, Inc., a corporation; Mason Securities Company, d/b/a Hiram Cemetery; Mt. Hope Cemetery and Mausoleum Company, a corporation; Southern Securities Company, a corporation, d/b/a Park Lawn Cemetery, Appellees.

Nos. 83-1498, 83-2351.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 18, 1983.

Decided May 22, 1984.

Rehearing Denied July 12, 1984.

John Ashcroft, Atty. Gen., Warren D. Weinstein, Robert E. Dolan, Jr., Asst. Attys. Gen., Trade Offense Div., Jefferson City, for amicus curiae State of Mo.

Lewis & Rice, Tucker, Allen & Chubb, Robert S. Allen, Richard A. Ahrens, Biggs, Casserly, Barnes, Fickie & Wolf, Ward Fickie, St. Louis, Mo., for appellees other than Memorial Park Cemetery Ass'n.

Bryan, Cave, McPheeters & McRoberts, Thomas C. Walsh, St. Louis, Mo., for Memorial Park Cemetery Ass'n.

Charles Alan Seigel, Stolar, Heitzmann, Eder, Seigel & Harris, Bernard J. Mellman, James L. Zemelman, St. Louis, Mo., for appellant.

Before HEANEY and McMILLIAN, Circuit Judges, and COLLINSON, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Rosebrough Monument Co. appeals from an injunction entered by the District Court ¹ for the Eastern District of Missouri upon a remand from this court. The injunction enjoined appellee St. Louis area cemeteries from conditioning sale of interment space on the buyer's purchase of the cemetery's memorial foundation preparation service and approved cemetery rules governing memorial foundation preparation by third parties. For modification of the injunction appellant argues that (1) the district court acted beyond the scope of its mandate in approving these rules and (2) certain of the approved rules are unreasonable and an abuse of discretion. In a related appeal, appellant argues that the district court erred in awarding appellant only one-half of its requested attorney's fees. For the reasons set forth below, we modify the approved rules and affirm the injunction as modified. We also affirm the attorney's fees award.

This case began as a suit by appellant seeking $3,300,000 in treble damages and injunctive relief for violation by appellees of Sec. 1 of the Sherman Act, 15 U.S.C. Secs. 1-7 (1976). Appellant, a manufacturer of burial monuments and markers which also provides a monument foundation preparation service, alleged that appellees, eleven St. Louis area cemeteries and their trade association, conspired to unreasonably restrain interstate commerce through an illegal tying arrangement. Appellants challenged the cemeteries' rule that required purchasers of cemetery lots to also purchase from the cemetery the cemetery's own memorial foundation preparation service. Following a bench trial, the district court ruled in favor of the cemeteries, concluding that the challenged transaction involved the sale of a single product as a package deal and that the cemeteries' exclusive foundation preparation rule was justified by the cemeteries' ownership interests in the property and their statutory responsibility to provide perpetual care. Rosebrough Monument Co. v. Memorial Park Cemetery Ass'n, 505 F.Supp. 525 (E.D.Mo.1980) (Rosebrough I ). The district court also found that appellant was not injured by the cemeteries' rule and that appellant's evidence of damages was wholly speculative. Id. at 530.

On appeal this court reversed the district court on the antitrust question. Rosebrough Monument Co. v. Memorial Park Cemetery Ass'n, 666 F.2d 1130 (8th Cir.1981) (Rosebrough II ), cert. denied, 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1321 (1982). We held that appellees conspired to unreasonably restrain trade or commerce in violation of Sec. 1 of the Sherman Act and that the tying arrangement was illegal. Id. at 1140-45. We rejected appellees' justification for the tying arrangement because appellees failed to meet their burden of showing that multiple entry into the market for foundation preparation "will become unmanageable and that the foundations prepared or markers installed by their private competitors will detract from the appearance [of the cemeteries] or decrease the general services rendered the public." Id. at 1146. Recognizing that appellees had a legitimate property interest, we nevertheless concluded that this interest could be protected by less restrictive alternatives such as quality specification guidelines for foundation preparation by third parties. Id. at 1145.

In considering what remedy was appropriate, we concluded that the district court's finding that appellant failed to prove the fact of damage was clearly erroneous, but that the finding that appellant failed to satisfy its burden of proof as to the amount of damages was not. We therefore affirmed the denial of damages but directed the district court to award appellant nominal damages in the amount of $1.00 trebled to $3.00. We reversed the district court's denial of injunctive relief and remanded this portionof the cause to the district court for "formulation of an appropriate order," adding that "[a]ppellees, individually or through [their trade association], are free to propose and adopt reasonable rules and guidelines with respect to foundation preparation and installation of monuments by third parties." Id. at 1148. Finally, we held that appellant was entitled to reasonable attorney's fees and costs under 15 U.S.C. Secs. 15 & 26 (1976 & Supp. IV 1980) and remanded this matter as well to the district court for determination. Id.

On remand, the injunction issue was submitted on each party's proposed form of injunction and on the prior record. The district court entered an order enjoining appellees' tying arrangement and requiring appellees to allow independent monument dealers to perform memorial foundation preparation and installation services

in accordance with rules and regulations which may be adopted by the cemeteries and which may contain any or all of the following provisions:

(1) the cemetery may establish specifications for the foundation of each type memorial which it permits in the cemetery. These specifications shall be the same as the cemetery itself utilizes in preparing foundations for particular type memorials;

(2) the cemetery may schedule, upon reasonable notice, all installations, taking into account weather and ground conditions, cemetery burial services, availability of personnel, etc.;

(3) the cemetery may require that the foundation site be laid out by cemetery personnel;

(4) the cemetery may supervise the foundation and installation process and require the installation meet specifications after inspection and prior to placement of a memorial;

(5) the cemetery may require removal of excavated dirt and cleanup of the installation site;

(6) the cemetery may require

(a) evidence that the installer's employees are covered by workman's compensation insurance and that the installer carries adequate public liability insurance in which the cemetery is a named insured, and

(b) a bond to insure compliance with the rules and regulations;

(7) the cemetery may charge a fee based on its actual labor costs in connection with the third party memorial foundation services; ²

(8) if the cemetery contributes separately to a fund for the care of memorials, it may require the third party installer to contribute to such fund the same percentage of the charge by said installer as is contributed by the cemetery from its own installation charge; ³

(9) the cemetery may require that the installer expeditiously correct any deviations from the specifications. If, after notice, any deviation is not corrected the cemetery may make such corrections at the installer's expense. All such rules and regulations which the cemetery may hereinafter adopt are to be reasonable in nature and application.

Rosebrough Monument Co. v. Memorial Park Cemetery Ass'n, No. 77-883 C (1), slip op. at 2-3 (E.D.Mo. Mar. 18, 1983) (order) (Rosebrough III ). The district court explained that the approved rules, which were based on appellees' proposed injunction order, were designed to preserve accountability and responsibility in the memorial foundation preparation market and to avoid new and fresh disputes over each foundation preparation. Id. at 2 (memorandum).

On the attorney's fees issue, the district court determined that under Hensley v. Eckerhart, --- U.S. ----, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), it was required to take into account the significance of appellant's overall relief in fixing reasonable attorney's fees. The district court noted that appellant had won insignificant damages "after expending enormous efforts to prove its claim of well over three million dollars," and awarded appellant $51,293.95, or one-half the requested amount of attorney's fees. Rosebrough III, 572 F.Supp. 92 (E.D.Mo.1983). Appellant now appeals from the injunction and the attorney's fee award.

I. The Injunction

Appellant lodges two attacks against the injunction. First, appellant argues the mandate from this court (i.e., Rosebrough II ) did not authorize the district court to approve any cemetery rules and guidelines within the ambit of the injunction, but specifically relegated the proposal and adoption of rules to the cemeteries. Second, appellant argues even if the district court had the authority to approve rules, certain of the rules actually approved represent an abuse of discretion. Specifically, appellant challenges rules (3), (4), (6)(b), (7) and (8) as violative of this court's holding in Rosebrough...