     10-2314-cv (L)
     Sea Tow Int’l Servs., Inc. v. Pontin

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8th day of December, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JON O. NEWMAN,
 9                GERARD E. LYNCH,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Sea Tow Servs. Int’l, Inc.,
14                Plaintiff-Counter-Defendant-
15                Appellee,
16
17                                 -v.-                           10-2314-cv (Lead)
18                                                                10-3023-cv (Con)
19       Duke Pontin, DBA Spirit Towing, DBA
20       Sea Tow Florida Keys, Duke Pontin,
21       individually,
22                Defendants-Counter-
23                Claimants-Appellants.
24       - - - - - - - - - - - - - - - - - - - -X
25
26       FOR APPELLANTS:                       John W. Mitchell, New York, NY
27
28       FOR APPELLEE:                         Mitchell A. Stein, Stein Law,
29                                             P.C., Northport, NY (Conor V.
30                                             McDonald, Stein Law, P.C.,
31                                             Northport, NY, on the brief)

                                                  1
1        Appeal from a judgment of the United States District

2    Court for the Eastern District of New York (Wexler, J.).

3

4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

5    AND DECREED that the District Court’s judgment is AFFIRMED.

6

7        Duke Pontin appeals from a judgment of the District

8    Court vacating a jury verdict in his favor on his cross-

9    claim for breach of contract and denying his post-trial

10   motion for attorneys’ fees.    We assume the parties’

11   familiarity with the underlying facts, the procedural

12   history of the case, and the issues on appeal.

13

14   [1] A jury’s verdict should be vacated only if, viewing the

15   evidence in the light most favorable to the jury’s verdict,

16   “a reasonable jury would be compelled to find in favor of

17   the moving party.”   Tuccio v. Marconi, 589 F.3d 538, 540 (2d

18   Cir. 2009).   A district court’s vacatur of a jury’s verdict

19   is reviewed de novo.   Id. at 541.

20       We see no error in the District Court’s decision

21   vacating the jury’s verdict.   “To establish a prima facie

22   case for breach of contract, a plaintiff must plead and


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1    prove: (1) the existence of a contract; (2) a breach of that

2    contract; and (3) damages resulting from the breach.”    Nat’l

3    Market Share, Inc. v. Sterling Nat’l Bank, 392 F.3d 520, 525

4    (2d Cir. 2004).   Pontin’s claim failed for lack of a jury

5    finding that he suffered damages as a result of Sea Tow’s

6    breach of contract.

7        The only evidence that Pontin incurred contract damages

8    was his testimony that Sea Tow’s breach of contract resulted

9    in the loss of four towing opportunities, totaling $800.

10   But the jury awarded him no damages for that alleged loss.

11   The jury did award him attorneys’ fees, but that award

12   violated the instructions on the special verdict form.

13   Instead of a dollar amount of damages suffered by Pontin for

14   Sea Tow’s breach of contract, the jury wrote “lawyers fee’s

15   [sic] associated with this case[.]”

16       Pontin alleges that the jury determined his damages to

17   be attorneys’ fees and cites the instruction to the jury

18   that “[t]he basic principle of damages in a contract action

19   is to leave the injured party in as good a position as he

20   would have been if the contract had been fully performed.”

21   This instruction, however, does not override “the ‘American

22   Rule’ . . . that each party bears its own attorneys’ fees.”



                                   3
1    See McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1312 (2d

2    Cir. 1993).   The jury was not instructed regarding the

3    existence of the American Rule or the circumstances in which

4    it can be overcome under New York law (which governed

5    Pontin’s counterclaim).   See Oscar Gruss & Son, Inc. v.

6    Hollander, 337 F.3d 186, 199 (2d Cir. 2003).    Finally, as

7    explained below, certain factual issues regarding the

8    contract undermine any argument that the jury could have

9    relied on the contract between Pontin and Sea Tow to support

10   its award of attorneys’ fees on Pontin’s counterclaim.

11   Accordingly, the District Court did not err in vacating the

12   jury’s verdict on Pontin’s counterclaim.

13

14   [2] Pontin challenges the District Court’s denial of his

15   post-trial motion for attorneys’ fees.     Our review of a

16   district court’s decision regarding attorneys’ fees is

17   generally “highly deferential.”   Id. at 198.   However, where

18   the question on appeal turns on whether “the district court

19   made an error of law [regarding attorneys’s fees], ‘the

20   district court’s rulings of law are reviewed de novo.’”       Id.

21   (quoting Baker v. Health Mgmt. Sys., Inc., 264 F.3d 144, 149

22   (2d Cir. 2001)).


                                   4
1        Pontin’s motion for attorneys’ fees assumes that the

2    following language is part of the contract:

3        In the event of any litigation between the parties

4        hereto with respect to the subject matter hereof, the

5        party in a [sic] such litigation in w[h]ose favor a

6        final judgment is entered shall be entitled to have and

7        recover[,] and the other parties agree to pay[,] its

8        reasonable attorneys’ fees and expenses, in addition to

9        any other award to which it may be entitled.

10       Whether this language was in fact agreed to by the

11   parties, however, is decidedly unclear.   The language is

12   included in the typed contract but was crossed out.    A

13   subscription in the margin read “OK Duke Pontin”.   It is

14   unclear from the face of the contract whether Pontin was

15   “OK” with the crossed-out text or with its elimination.

16   Pontin cites an admission by Sea Tow’s Chief Executive

17   Officer, which was submitted in support of Sea Tow’s

18   summary-judgment motion and included in Sea Tow’s Rule 56.1

19   Statement of Undisputed Facts.   However, Pontin’s response

20   contains its own arguable ambiguity.   Accordingly, the

21   parties’ intent was an issue that would have required




                                  5
1    resolution by the finder of fact and not by post-trial

2    motion.

3        However, it is unnecessary to resolve this issue.      In

4    this case, final judgment was entered in favor of both

5    parties: in favor of Pontin on Sea Tow’s claims and in favor

6    of Sea Tow on Pontin’s claims.   Thus, both parties were

7    winners, just as both were losers.   We, therefore, conclude

8    that the outcome in this case would not trigger an

9    obligation to pay attorneys’ fees even if the contract

10   unambiguously included the crossed-out provision.

11

12       We have considered all of Pontin’s additional arguments

13   and find them to be without merit.   Accordingly, the

14   judgment of the District Court is AFFIRMED.

15
16                              FOR THE COURT:
17                              Catherine O’Hagan Wolfe, Clerk
18




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