1 10-2314-cv (L) Sea Tow Int’l Servs., Inc. v. Pontin 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P** **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 8 th** **day of December, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **JON O. NEWMAN,** 8 **GERARD E. LYNCH,** 9 **Circuit Judges .**  10 11 - - - - - - - - - - - - - - - - - - - -X 12 **Sea Tow Servs. Int’l, Inc.,** 13 **Plaintiff-Counter-Defendant** 14 **Appellee ,**  15 16 **-v.- 10-2314-cv (Lead)** 17 **10-3023-cv (Con)** 18 **Duke Pontin, DBA Spirit Towing, DBA** 19 **Sea Tow Florida Keys, Duke Pontin,** 20 **individually,** 21 **Defendants-Counter** 22 **Claimants-Appellants .**  23 - - - - - - - - - - - - - - - - - - - -X 24 25 **FOR APPELLANTS:** John W. Mitchell, New York, NY 26 27 **FOR APPELLEE:** Mitchell A. Stein, Stein Law, 28 P.C., Northport, NY (Conor V. 29 McDonald, Stein Law, P.C., 30 Northport, NY, on the brief ) 312 Appeal from a judgment of the United States District 1 Court for the Eastern District of New York (Wexler, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 4

**AND DECREED**that the District Court’s judgment is **AFFIRMED**
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6 Duke Pontin appeals from a judgment of the District 7 Court vacating a jury verdict in his favor on his cross8 claim for breach of contract and denying his post-trial 9 motion for attorneys’ fees. We assume the parties’ 10 familiarity with the underlying facts, the procedural 11 history of the case, and the issues on appeal. 12 13 **[1]** A jury’s verdict should be vacated only if, viewing the 14 evidence in the light most favorable to the jury’s verdict, 15 “a reasonable jury would be compelled to find in favor of 16 the moving party.” Tuccio v. Marconi , 589 F.3d 538, 540 (2d 17 Cir. 2009). A district court’s vacatur of a jury’s verdict 18 is reviewed denovo . Id. at 541. 19 We see no error in the District Court’s decision 20 vacating the jury’s verdict. “To establish a primafacie 21 case for breach of contract, a plaintiff must plead and 223 prove: (1) the existence of a contract; (2) a breach of that 1 contract; and (3) damages resulting from the breach.” Nat’l 2 Market Share, Inc. v. Sterling Nat’l Bank , 392 F.3d 520, 525 3 (2d Cir. 2004). Pontin’s claim failed for lack of a jury 4 finding that he suffered damages as a result of Sea Tow’s 5 breach of contract. 6 The only evidence that Pontin incurred contract damages 7 was his testimony that Sea Tow’s breach of contract resulted 8 in the loss of four towing opportunities, totaling $800. 9 But the jury awarded him no damages for that alleged loss. 10 The jury did award him attorneys’ fees, but that award 11 violated the instructions on the special verdict form. 12 Instead of a dollar amount of damages suffered by Pontin for 13 Sea Tow’s breach of contract, the jury wrote “ lawyers fee’s 14 [sic] associated with this case[.]” 15 Pontin alleges that the jury determined his damages to 16 be attorneys’ fees and cites the instruction to the jury 17 that “[t]he basic principle of damages in a contract action 18 is to leave the injured party in as good a position as he 19 would have been if the contract had been fully performed.” 20 This instruction, however, does not override “the ‘American 21 Rule’ . . . that each party bears its own attorneys’ fees.” 224 SeeMcGuire v. Russell Miller, Inc. , 1 F.3d 1306, 1312 (2d 1 Cir. 1993). The jury was not instructed regarding the 2 existence of the American Rule or the circumstances in which 3 it can be overcome under New York law (which governed 4 Pontin’s counterclaim). SeeOscar Gruss & Son, Inc. v. 5 Hollander , 337 F.3d 186, 199 (2d Cir. 2003). Finally, as 6 explained below, certain factual issues regarding the 7 contract undermine any argument that the jury could have 8 relied on the contract between Pontin and Sea Tow to support 9 its award of attorneys’ fees on Pontin’s counterclaim. 10 Accordingly, the District Court did not err in vacating the 11 jury’s verdict on Pontin’s counterclaim. 12
13 **[2]** Pontin challenges the District Court’s denial of his 14 post-trial motion for attorneys’ fees. Our review of a 15 district court’s decision regarding attorneys’ fees is 16 generally “highly deferential.” Id. at 198. However, where 17 the question on appeal turns on whether “the district court 18 made an error of law [regarding attorneys’s fees], ‘the 19 district court’s rulings of law are reviewed denovo .’” Id. 20 (quoting Baker v. Health Mgmt. Sys., Inc. , 264 F.3d 144, 149 21 (2d Cir. 2001)). 225 Pontin’s motion for attorneys’ fees assumes that the 1 following language is part of the contract: 2 In the event of any litigation between the parties 3 hereto with respect to the subject matter hereof, the 4 party in a [sic] such litigation in w[h]ose favor a 5 final judgment is entered shall be entitled to have and 6 recover[,] and the other parties agree to pay[,] its 7 reasonable attorneys’ fees and expenses, in addition to 8 any other award to which it may be entitled. 9 Whether this language was in fact agreed to by the 10 parties, however, is decidedly unclear. The language is 11 included in the typed contract but was crossed out. A 12 subscription in the margin read “OK Duke Pontin”. It is 13 unclear from the face of the contract whether Pontin was 14 “OK” with the crossed-out text or with its elimination. 15 Pontin cites an admission by Sea Tow’s Chief Executive 16 Officer, which was submitted in support of Sea Tow’s 17 summary-judgment motion and included in Sea Tow’s Rule 56.1 18 Statement of Undisputed Facts. However, Pontin’s response 19 contains its own arguable ambiguity. Accordingly, the 20 parties’ intent was an issue that would have required 216 resolution by the finder of fact and not by post-trial 1 motion. 2 However, it is unnecessary to resolve this issue. In 3 this case, final judgment was entered in favor of both 4 parties: in favor of Pontin on Sea Tow’s claims and in favor 5 of Sea Tow on Pontin’s claims. Thus, both parties were 6 winners, just as both were losers. We, therefore, conclude 7 that the outcome in this case would not trigger an 8 obligation to pay attorneys’ fees even if the contract 9 unambiguously included the crossed-out provision. 10
11 We have considered all of Pontin’s additional arguments 12 and find them to be without merit. Accordingly, the 13 judgment of the District Court is **AFFIRMED**
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15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18