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Normann v. Ddra Arrowhead Crossing, LLC

United States District Court, Ninth Circuit

June 11, 2013

David Normann, Plaintiff,
v.
DDRA Arrowhead Crossing, LLC, Defendant.

ORDER AND OPINION

JOHN W. SEDWICK, District Judge.

I. MOTION PRESENTED

At docket 26, defendant DDRA Arrowhead Crossing, LLC ("DDRA") asks the court to enforce its settlement agreement with plaintiff David Normann ("Normann"). Normann's response is at docket 30. DDRA's reply is at docket 31. Oral argument was requested, but it would not assist the court.

II. BACKGROUND

Normann sued DDRA in September of 2012. His complaint seeks relief pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. and the Arizonans with Disabilities Act, A.R.S. §41-1492. DDRA answered denying liability. An amended complaint was filed. On March 18, 2013, DDRA answered the amended complaint, again denying liability. Just over two weeks later, on April 3, 2013, DDRA filed the pending motion seeking to enforce a settlement agreement which it claims was reached by the parties. There is no dispute about the fact that the parties entered settlement discussions. However, there is a marked difference of opinion about whether a settlement agreement was reached.

III. DISCUSSION

In order to resolve the issue at hand, it is necessary to march through many of the events which have transpired between counsel in this case. To begin with it is necessary to note that DDRA used both an Arizona law firm, Renaud Cook Drury Mesaros, PA, and a Florida law firm, Baker & Hostetler LLP, in dealing with Normann and his lawyer. The Arizona firm is the only one which has appeared in this litigation. The Florida firm, however, provided the draft Settlement Agreement discussed below. A copy of the draft Settlement Agreement along with copies of various communications between representatives of the parties are included in the motion papers.

Normann retained an expert who prepared a report concerning the condition of the real property which is the subject of this lawsuit. A copy of that report was provided to DDRA. Thereafter, Normann's lawyer sent an email to DDRA's counsel-both an Arizona and a Florida lawyer were addressed-dated February 21, 2013, which read in part as follows:

Please let me know if we should expect some sort of response from your client to our expert report. We presently remain open to a negotiated settlement based on the report - one that includes both barrier removal and payment of Mr. Normann's fees and costs.[1]

Thereafter, on February 26, the Florida lawyer responded in a letter that was both emailed and mailed to Normann's counsel along with which the Florida lawyer transmitted the draft Settlement Agreement. In the cover letter, the Florida lawyer explained that the document should be familiar to Normann's lawyer, because "[t]he form is the same [one] we have used in the past."[2] Notably, the draft Settlement Agreement contained a provision which expressly provided for the payment of Normann's fees and costs.[3] The amount of fees and costs was left blank in the draft, so the next day Normann's lawyer responded in an email stating that he was preparing "a fee and cost demand."[4] On February 28, Normann's lawyer emailed the Florida lawyer that the attorney fees were of $7, 177.08, costs were $4, 377.90, and future fees and costs were $1, 500.00 making for a total demand of $13, 054.98.[5] That communication also suggested various changes to and excisions from the text of the draft Settlement Agreement.

After reviewing the February 28 communication, the Florida lawyer responded on March 8, writing that DDRA agreed to all the suggested changes, except that the amount of attorney fees remained for resolution.[6] It appears that the Florida lawyer and Normann's lawyer also had a telephone conversation on March 8, for in an email dated March 12, Normann's counsel indicated that in a follow up to a March 8 conversation, his client would agree to reduce the total for attorney fees and costs to $12, 250.[7] The email stated that the offer to accept $12, 250 would expire on March 14. It also included supporting fee and cost data for examination by the Florida lawyer. The Florida lawyer responded on March 12, in an email questioning some of the supporting data and offering to pay $9, 100. On March 13, 2013, Normann's lawyer responded: "To get this done, we will go down to $12, 000 as a final offer-together with all other terms previously agreed upon. This offer will expire at the close of business Thursday, March 14, 2013."[8]

In light of the parties' inability to agree on the fees and costs, the Florida lawyer emailed a proposal on March 13 which would rewrite paragraph 5 of the draft Settlement Agreement so that it replaced a statement of the amount of fees and costs with a procedure for determining what the amount would be.[9] To this Normann's lawyer responded the same day:

No deal. We have not resolved all aspects of the remdial work. As I have repeatedly stated, the deal on the timing of the remedial work was contingent on a comprehensive settlement, including resolution of fees and costs. All aspects must be resolved simultaneously. We will not agree to a two-year barrier removal time frame without resolving fees and costs at the same time.[10]

Norman's lawyer also proposed several options to break the log jam on the amount of fees and costs which would lower the amount in exchange for shortening the time for barrier removal. The Florida lawyer responded with an email which said he would get back to Normann's lawyer "one way or another before the deadline you gave me."[11] This generated a response from Normann's lawyer addressed to both the Florida lawyer and one of the Arizona lawyers indicating he would deal directly with the ...


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