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United States v. Bilbro Construction Co., Inc.

United States District Court, S.D. California

September 25, 2019

UNITED STATES OF AMERICA for the Use and Benefit of PENN AIR CONTROL INC., a California corporation, Plaintiff,
v.
BILBRO CONSTRUCTION COMPANY, INC., a California corporation, and INTERNATIONAL FIDELITY INSURANCE COMPANY, a New Jersey corporation Defendants. And Related Counterclaims.

          AMENDED JUDGMENT AFTER JURY TRIAL AND PARTIES’ MOTIONS

          HON. WILLIAM Q. HAYES UNITED STATES DISTRICT JUGDE.

         This action came on regularly for trial beginning on February 5, 2019 in Courtroom 14B, the Honorable William Q. Hayes, presiding. Counter-Complainant, and Counter-Defendant BILBRO CONSTRUCTION COMPANY, INC. (“Bilbro”), appearing by attorneys Peter D. Lepiscopo of Lepiscopo & Associates Law Firm and Lori F. Bessler of Denning Moores; Defendant and Counter-Complainant, ALPHA MECHANICAL, INC. (“Alpha”), appearing by attorneys Mark Angert and Andrew C. Myers of Solomon Ward Seidenwurm & Smith, LLP and Counterclaim Defendant SHADPOUR CONSULTING ENGINEERS, INC. (“Shadpour”), appearing by attorneys Michael M. Edwards and Zachary M. Lemley of Bryon & Edwards, APC.

         The lawsuit was tried as a jury trial before eight jurors regularly empaneled and sworn to try this action. Bilbro brought a claim for relief for Breach of Contract against Alpha. Alpha brought a claim for relief for Breach of Contract against Bilbro and a claim for relief for Contractual Indemnity against Shadpour for Bilbro’s claim.

         Witnesses were sworn in and testified. After hearing the evidence, arguments of counsel, and instructions of the Court, the jury retired to consider the evidence and the special verdict jointly drafted by the parties and approved by the Court. After deliberation, on February 14, 2019, the jury returned into Court and rendered their verdict denying Bilbro’s claim for Breach of Contract against Alpha and denying any liability of Alpha to Bilbro, and thereby making Alpha’s counterclaim for Contractual Indemnity against Shadpour moot. The jury further granted Alpha’s claim for Breach of Contract against Bilbro, ordering Bilbro to pay Alpha $323, 352.00 for failure to pay monies owed to Alpha under contract and an additional payment of $1, 128, 854.00 to Alpha for additional work required by Bilbro and performed by Alpha on the project.

         On March 19, 2019, the Court entered Judgment [Doc. 286] stating that: (1) Alpha Mechanical, Inc. is entitled to judgment against Bilbro Construction Company, Inc. on Bilbro Construction Company, Inc.’s claims against Alpha Mechanical, Inc. and Bilbro Construction Company, Inc. shall recover nothing from Alpha Mechanical, Inc.; (2) Alpha Mechanical, Inc.’s claim for Contractual Indemnity against Shadpour Consulting Engineers, Inc. is resolved as a result of Number 1, above; and (3) Alpha Mechanical, Inc. is entitled to judgment against Bilbro Construction Company, Inc. on its claim for Breach of Contract and shall recover from Bilbro Construction Company, Inc. the sum of $1, 452, 206.00.

         As the prevailing party, Alpha submitted a Bill of Costs [Doc. 287], and on April 18, 2019, the Clerk of the Court issued an order taxing costs against Bilbro in the amount of $28, 834.55. [Doc. 297]

         Bilbro filed a Motion for New Trial or, in the Alternative, Remittitur of the Verdict. [Doc. 295] Alpha opposed. On September 12, 2019, the Court denied Bilbro’s motion on the condition that Alpha accept a reduced judgment of $1, 067, 352.00 ($323, 352.00$744, 000.00). [Doc. 335] On September 13, 2019, Alpha accepted the Court’s order agreeing to a reduced judgment of $1, 067, 352.00. [Doc. 336]

         Shadpour declared itself the prevailing party against Alpha and submitted its Bill of Costs, which the Clerk of the Court awarded. In response, Alpha filed a Motion to Re-Tax Costs [Doc. 315]. Shadpour also filed a Motion for Attorneys’ Fees against Alpha [Doc. 292] which Alpha opposed. Alpha also filed its own Motion for Attorneys’ Fees, Costs and Pre-Judgment Interest as the prevailing party against Bilbro [Doc. 289] which Bilbro opposed.

         On September 18, 2019, the Court issued an Order on (1) Alpha’s Motion for Attorneys’ Fees, Costs and Pre-Judgment Interest, (2) Shadpour’s Motion for Attorneys’ Fees and Costs; and (3) Alpha’s Motion to Re-Tax Costs. In the Order, the Court granted in part and denied in part Alpha’s Motion for Attorneys’ Fees, Costs and Pre-Judgment Interest; denied Shadpour’s Motion for Attorneys’ Fees and Costs finding that Shadpour did not prevail against Alpha and was not the prevailing party in this litigation; and granted Alpha’s Motion to Re-Tax Costs against Shadpour, overturning Shadpour’s prior award of costs by the Clerk of the Court. [Doc. 340]

         In granting in part Alpha’s Motion for Attorneys’ Fees, Costs and Pre-Judgment Interest against Bilbro, the Court awarded Alpha’s request for attorneys’ fees amounting to $695, 894.00 ($720, 690.50 total sought - $24, 796.50 in paralegal fees that were denied). The Court also awarded Alpha compound pre-judgment interest of 2.4% from October 15, 2015 on the amount awarded for work performed under the contract - $323, 352.00. The compound interest of 2.4% on $323, 352.00 comes out to $31, 475.32. Therefore, the total additional amount awarded by the Court under Alpha’s Motion for Attorneys’ Fees, Costs and Pre-Judgment Interest against Bilbro is $727, 369.32.

         NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED THAT:

         1. Alpha Mechanical, Inc. is entitled to judgment against Bilbro Construction Company, Inc. on Bilbro Construction Company, Inc.’s claims against Alpha Mechanical, Inc. and Bilbro Construction Company, Inc. shall recover nothing from Alpha Mechanical, Inc.;

         2. Alpha Mechanical, Inc.’s claim for Contractual Indemnity against Shadpour Consulting Engineers, Inc. is moot as a result of Number 1, above. Shadpour Consulting Engineers, Inc. is not the prevailing party and shall take nothing from Alpha Mechanical, Inc.; and

         3. Alpha Mechanical, Inc. is entitled to judgment against Bilbro Construction Company, Inc. on its claim for Breach of Contract and shall recover from Bilbro ...


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