Woodhaven Homes & Realty, Inc. v. Hotz, 03-4158.

Decision Date28 January 2005
Docket NumberNo. 03-4158.,03-4158.
Citation396 F.3d 822
PartiesWOODHAVEN HOMES & REALTY, INC., Plaintiff-Appellee, v. Barbara HOTZ and Dale Hotz, Defendants-Appellees, v. Douglas E. Robbins and Robbins Electric, Inc., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Bradley J. Dagen (argued), Rose & Dejong, Brookfield, WI, for Plaintiff-Appellee.

Patrick Hudec, East Troy, WI, for Defendant-Appellees.

Edward R. Antaramian (argued), Jansson, Shupe & Munger, Racine, WI, for Defendant-Appellants.

Patrick Hudec (argued), East Troy, MI, for Barbara Hotz.

Before BAUER, MANION, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

This case, which began as a minor copyright infringement dispute, has mushroomed into a protracted fight over, what else, attorney fees. Woodhaven Homes & Realty, Inc., sued a contractor, Robbins Electric, Inc.,1 and homeowners Dale and Barbara Hotz, claiming they used Woodhaven's blueprints without permission to build the Hotzes' home. After Robbins prevailed on summary judgment, it moved for an award of costs and attorney fees under the Copyright Act, specifically 17 U.S.C. § 505. The district court denied the request, prompting this appeal.

First, a brief review of the facts. Woodhaven builds and sells homes. In 1998, it placed a model home in the "Parade of Homes," a promotional undertaking sponsored by the Metropolitan Builders Association of Greater Milwaukee. The Hotzes toured the home and then paid Woodhaven $1500 for customized blueprints. There was no written contract between the two. The Hotzes later took these plans to Robbins, who in turn built the Hotzes' home in Mukwonago, Wisconsin, outside the city of Milwaukee. In a written construction contract, the Hotzes warranted that they owned the plans and agreed to hold Robbins harmless "in any and all litigation arising out of copyright claims."

After catching wind of the construction, Woodhaven took Robbins and the Hotzes to court for copyright infringement and unjust enrichment. Robbins responded by filing a counterclaim to declare invalid Woodhaven's purported copyright. It also filed a cross-claim against the Hotzes for indemnification of its litigation expenses. In February of 2003, the district court entered summary judgment for Robbins regarding infringement. In June of 2003, the court entered summary judgment in favor of the Hotzes on Robbins' cross-claim, concluding that the hold-harmless agreement covered only damages, not attorney fees. Robbins then moved to recover attorney fees and costs from Woodhaven under 17 U.S.C. § 505, a move the district court rejected. Woodhaven and the Hotzes eventually settled.

The primary issue on appeal is Robbins' efforts to recover its attorney fees from Woodhaven under § 505. The Copyright Act allows the award of reasonable attorney fees to a prevailing party. 17 U.S.C. § 505. The district court denied Robbins' request in light of the factors outlined by the Supreme Court in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). These nonexclusive factors include "frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance consideration of compensation and deterrence." Id. at 534 n. 19, 114 S.Ct. 1023. The court concluded that Robbins should not be awarded fees because much of the work performed by its lawyers related to various defenses that were ultimately never addressed or resolved.

But in the time period since the district court's decision, we issued an opinion clarifying the Fogerty standard. In Assessment Technologies of WI, LLC v. WIREdata, Inc., 361 F.3d 434, 436 (7th Cir.2004), we held that prevailing defendants in copyright cases, like Robbins, are presumptively entitled (and strongly so) to recover attorney fees:

[T]he prevailing party in a copyright case in which the monetary stakes are small should have a presumptive entitlement to an award of attorneys' fees. When the prevailing party is the defendant, who by definition receives not a small award but no award, the presumption in favor of awarding fees is very strong. For without the prospect of such an award, the party might be forced into a nuisance settlement or deterred all together from exercising his rights.

Id. at 437 (internal quotation and citations omitted). Robbins did prevail, but its victory was costly — it incurred over $220,000 in legal fees. In this case, like ...

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  • Nova v. Penske
    • United States
    • Court of Special Appeals of Maryland
    • July 25, 2008
    ...fee-shifting into contracts, and instead require the explicit use of the phrase "attorney's fees." See, e.g., Woodhaven Homes & Realty v. Hotz, 396 F.3d 822 (7th Cir.2005) ("Wisconsin courts will not construe an obligation to pay attorney fees unless contract language `clearly and unambiguo......
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    ...stretched beyond its clear meaning to cover an architectural plan for an apartment.For support, Wolfson cites Woodhaven Homes & Realty, Inc. v. Hotz, 396 F.3d 822 (7th Cir.2005). In that case, a home construction contractor, having prevailed on a claim for infringement of copyright in archi......
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    • California Lawyers Association New Matter: Intellectual Property Law (CLA) No. 41-3, June 2016
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