13-1480-cv
Wifiland, LLP v. R.V.C., Inc.

                  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 COUR T, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").      A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
      th
the 5    day of May, two thousand fourteen.

PRESENT:    JOHN M. WALKER, JR.,
            DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                      Circuit Judges.

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WIFILAND, LLP, d/b/a WIFIRV,
                    Plaintiff-Appellant,

                        -v-                                 13-1480-cv

R.V.C., INC., d/b/a RIVERVIEW CAMPGROUND
AND CANOE LIVERY,
                    Defendant-Appellee,

RIVER VIEW CAMPGROUND,
                               *
                    Defendant.

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FOR PLAINTIFF-APPELLANT:            CHRISTOPHER G. WINANS, Christopher
                                    G. Winans, P.C., Danbury,
                                    Connecticut.

FOR DEFENDANTS-APPELLEES:           DAVID A. REIF (James E. Regan on
                                    the brief), McCarter & English,
                                    LLP, Hartford, Connecticut.

*
            The Clerk of the Court is directed to amend the official caption
      as noted above.
           Appeal from the United States District Court for the
                                           1
District of Connecticut (Wilson, J.).

           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the amended judgment of the district court is

AFFIRMED and the case is REMANDED for calculation of attorneys'

fees to be awarded to defendant-appellee.

           Plaintiff-appellant Wifiland, LLP ("Wifiland") appeals

from the district court's amended judgment entered April 3, 2013,

dismissing its complaint and awarding attorneys' fees to

defendant-appellee R.V.C., Inc. ("RVC").         We assume the parties'

familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

           On August 18, 2010, Wifiland filed this action in

Connecticut state court, alleging breach of contract and breach

of the implied covenant of good faith and fair dealing, in

connection with an agreement (the "Agreement") whereby Wifiland

agreed to provide a wireless Internet system for RVC to self-

install in its recreational vehicle park.         The Agreement required

Wifiland to provide certain services in connection with the

installation, and it also contained a provision awarding

reasonable attorneys' fees and costs to the prevailing party in

the event of litigation.      On August 17, 2011, RVC removed the



1
           Hon. Billy Roy Wilson, United States District Judge for the
     Eastern District of Arkansas, sitting by designation.

                                    -2-
case to federal court.     The case was tried to the court, without

a jury, beginning on February 25, 2013.

            After calling only one witness -- John Borg -- Wifiland

rested.    Following a brief recess, the district court issued a

bench ruling in favor of RVC and against Wifiland.       On March 15,

2013, the district court filed written findings of fact and

conclusions of law, concluding that Wifiland had not proven that

RVC breached the Agreement or the implied covenant of good faith

and fair dealing.

            On March 29, 2013, the district court issued an order

granting RVC's motion for attorneys' fees, allowing fees of

$112,222.50 and costs of $2,907.27 (RVC had requested $189,517.15

and costs of $2,907.27).     An amended judgment was entered April

3, 2013.

            This appeal followed.     Wifiland argues that the

district court erred in finding that it had failed to prove its

claims and in awarding attorneys' fees of $112,222.50.

1.   The Merits

            On appeal from a judgment entered following a nonjury

trial, "[w]e review the district court's findings of fact for

clear error and its conclusions of law de novo."       MacDraw, Inc.

v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 960 (2d Cir. 1998).

"A factual finding is clearly erroneous only when the reviewing

court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed."       United States v.


                                    -3-
Oehne, 698 F.3d 119, 121 (2d Cir. 2012) (internal quotation marks

omitted).    Where the district court's factual "findings are based

on credibility determinations," we are required to give even

"greater deference" to the district court.    United States v.

Isiofia, 370 F.3d 226, 232 (2d Cir. 2004).

            Here, the district court concluded that Wifiland had

not met its burden of proof.    We are not persuaded that it erred

in doing so.    The district court's conclusions that RVC met its

contractual obligations by properly installing the system and

that the flaws in the system's operation resulted from Wifiland's

failures were not clearly erroneous.    See Oehne, 698 F.3d at 121;

MacDraw, 157 F.3d at 960.    Indeed, Wifiland does not challenge

the district court's findings and even relies on them in its

brief.   While it contends that the district court misapplied

Connecticut law in concluding that Wifiland lacked "good faith,"

the district court's conclusions that Wifiland was unwilling to

provide the support it was contractually required to give were

amply supported by the evidence.

            Finally, we note that while Wifiland repeatedly

complains that the district court heard no testimony from RVC's

witnesses, Wifiland had the right to call RVC's representatives

to the stand, but it did not do so.

2.   Attorneys' Fees

            On appeal, Wifiland does not dispute that, as the

prevailing party below, RVC is entitled to attorneys' fees


                                 -4-
pursuant to the Agreement.     Rather, Wifiland argues that the

court misapplied the law and in turn granted an excessive

attorneys' fee award.     Wifiland's arguments fail.

           We review a district court's award of attorneys' fees

for abuse of discretion, and we will reverse only if the decision

rested on an error of law or a clearly erroneous finding of fact,

or was not otherwise "'within the range of permissible

decisions.'"     McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 416

(2d Cir. 2010) (quoting Kickham Hanley P.C. v. Kodak Ret. Income

Plan, 558 F.3d 204, 209 (2d Cir. 2009)).     Our review of fee

decisions is especially deferential because the district court

"'is intimately [more] familiar with the nuances of the case,

[and thus] is in a far better position to make [such]

decisions.'"     Goldberger v. Integrated Res., Inc., 209 F.3d 43,

48 (2d Cir. 2000) (quoting In re Bolar Pharm. Co. Sec. Litig.,

966 F.2d 731, 732 (2d Cir. 1992) (per curiam) (third alteration

in original)).

           Wifiland contends that the district court failed to

apply the test set forth in Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).     This argument lacks

merit.   Connecticut courts have adopted the Johnson test for

attorneys' fees, but limit its application to statutory claims.

Elec. Wholesalers, Inc. v. V.P. Elec., Inc., 132 Conn. App. 843,

849-50, cert. denied, 303 Conn. 939 (2012) (holding that Johnson

test applies exclusively to actions brought pursuant to a


                                  -5-
statute, not to "contract dispute[s] between two similarly

situated businesses").   Johnson, therefore, does not apply here.

           Nor do we identify any abuse of discretion in the

district court's fee calculation.      The district court properly

exercised its discretion in its lodestar calculation, see Land

Group, Inc. v. Palmieri, 123 Conn. App. 84, 98 (2010), and in

applying an across-the-board reduction to RVC's compensable

hours, see Metcoff v. NCT Group, Inc., 52 Conn. Supp. 363, 377

(Super. Ct. 2011) (citing Kirsch v. Fleet St., Ltd., 148 F.3d

149, 173 (2d Cir. 1998)).

           RVC also requests attorneys' fees and costs for this

appeal.   We conclude that an award of appellate attorneys' fees

and costs is appropriate here.    See Porzig v. Dresdner,

Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 143-44 (2d Cir.

2007); Dague v. City of Burlington, 976 F.2d 801, 803-05 (2d Cir.

1992); Total Recycling Servs. Of Ct., Inc. v. Connecticut Oil

Recycling Servs., LLC, 308 Conn. 312, 337 (2013) ("We . . . will

construe an attorney's fees provision that is silent with respect

to appellate attorney's fees as encompassing such fees in the

absence of contractual language to the contrary.").




                                 -6-
                               * * *


          Accordingly, the judgment of the district court is

hereby AFFIRMED.   We REMAND for the district court to determine

RVC's reasonable attorneys' fees and costs for defending this

appeal and for the entry of a supplemental judgment in that

amount.


                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk




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