Court of Appeals of Indiana.

Gabriel McCREARY, Appellant–Plaintiff,

v.

CONNERSVILLE STORAGE AND MINIWAREHOUSING, Appellee–Defendant.

 

No. 21A01–1212–CC–554.

Oct. 22, 2013.

 

Appeal from the Fayette Superior Court; The Honorable Beth A. Butsch, Special Judge; Cause No. 21D01–1001–CC–24.

Richard Wayne Greeson, Connersville, IN, Attorney for Appellant.

 

Gary E. Smith, Smith Harvey Law Office Connersville, IN, Attorney for Appellee.

 

MEMORANDUM DECISION—NOT FOR PUBLICATION

BAKER, Judge.

*1 This case involves the improper sale of appellant-plaintiff Gabriel McCreary’s personal property by appellee-defendant Connersville Storage and Warehousing (Connersville Storage). McCreary had failed to pay his monthly storage fee,FN1 and Connersville Storage seized and sold his belongings. The trial court determined that it had done so in violation of Indiana law, and awarded McCreary $763.50 in damages for his lost property, as well as $7,522.50 in attorney fees. Unsatisfied with the amount of damages and attorney fees awarded, McCreary appeals.

 

FN1. While the record does not specify the number of months McCreary failed to pay his storage fee, it does indicate that McCreary was continually delinquent in his payments.

 

FACTS

In September 2007, McCreary contracted with Connersville Storage, agreeing to pay $45 each month in exchange for storage space. McCreary breached the contract sometime in 2009 when he failed to pay the storage rent. After sending McCreary three notices, Connersville Storage seized the property McCreary had placed in his storage unit and sold it pursuant to the terms of their contract.

 

On September 28, 2009, McCreary filed a small claims action against Connersville Storage for loss of personal property. Following a bench trial on August 18 and November 1, 2011, findings of fact were requested pursuant to Trial Rule 52. The trial court found that the contract contained ambiguous language about the disposal of a renter’s goods upon default and that Connersville Storage failed to comply with the requirements of Indiana Code section 26–3–8–12(c).FN2 McCreary testified that his goods had an actual and sentimental value of $8,382, and that he had incurred attorney fees in the amount of $16,200. He also asked for treble damages. McCreary presented the trial court with his attorney’s affidavit, which documented the hourly rate and time that was spent on his case.

 

FN2. Ind.Code § 26–3–8–12(c) requires an owner enforcing an owner’s lien to send notices by registered or certified mail and include an itemized statement of the owner’s claim showing the amount due and the date it became due. It also gives instructions for proper notice of auction or sale. Connersville Storage failed to conform to these requirements.

 

At the trial, Connersville Storage introduced into evidence the bankruptcy petition McCreary filed on October 15, 2009, in which he valued all his household goods and wearing apparel at $600.

 

The trial court found that McCreary’s claim of $8,382 in damages was excessive, and determined that Connersville Storage had disposed of the property in a commercially reasonable manner. Because of these findings, the trial court set the value of McCreary’s personal property at $763.50, and awarded McCreary $7,522.50 in attorney fees. McCreary contends that the trial court applied an incorrect legal standard in valuing his personal property and erred in calculating his attorney fees. McCreary now appeals.

 

DISCUSSION AND DECISION

I. Valuation of Personal Property

McCreary argues that the trial court applied the incorrect legal standard when it valued his property. He contends that the court should have valued his property by determining its value to him, and argues that it failed to consider the use and replacement value of the property.

 

The trial court entered findings of fact and judgment concerning the value of McCreary’s property pursuant to Rule 52. These findings will not be set aside unless the trial court’s judgment was “clearly erroneous,” and regard is given to the trial court’s opportunity to judge the credibility of witnesses. Ind. Trial Rule 52(A). “This deferential standard of review is particularly important in small claims actions, where trials are ‘informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law.’ “ City of Dunkirk Water & Sewage Dept. v. Hall, 656 N.E.2d 115, 116 (Ind.1995) (quoting Ind. Small Claims Rule 8(A)).

 

*2 Given McCreary’s own valuation of his goods at $600 on his October 2009 bankruptcy petition and the sale price at auction, the trial court’s $763.50 dollar judgment is not “clearly erroneous.” Ex. 1 p. 10. See Ponziano Const. Services v. Quadri Enterprises LLC, 980 N.E.2d 867, 873 (Ind.Ct.App.2012) (stating that this Court will not overturn a judgment for damages if the amount is within the scope of the evidence before the trial court). Moreover, the fact that McCreary left his personal possessions in a storage unit for which he failed to pay does not support the contention that they held great personal or use value. Appellant’s App. p. 11, 12. Additionally, this Court has found that “the best method to ensure fairness to both parties is to receive a wide range of elements for consideration in the actual value.” Campins v. Capels, 461 N.E .2d 712, 721 (Ind.Ct.App.1984).

 

In light of these facts and circumstances, we cannot say that the trial court applied the incorrect legal standard or erred in valuing McCreary’s property. Consequently, these arguments fail.

 

II. Attorney Fees

McCreary also argues that the trial court erred in calculating his attorney fees. He claims that the trial court abused its discretion when it reduced the hours and hourly rate contained in the attorney’s affidavit.

 

When reviewing a trial court’s decision regarding the amount of an attorney fee award, this Court uses an abuse of discretion standard. Hill v. Davis, 850 N.E.2d 993, 993 (Ind.2006). An award of attorney fees will be reversed only where an abuse of the trial court’s discretion is apparent on the face of the record and only if the award is clearly against the logic and effect of the facts and circumstances before the court. Id. at 993.

 

Our Supreme Court has stated that the Rules of Professional Conduct provide the factors to be considered in determining reasonable attorney fees. In re Order for Mandate of Funds, 873 N.E.2d 1043, 1049 (Ind.2007). The trial court has the discretion to consider a wide variety of factors, including, but not limited to, the requisite skill to perform the legal services under consideration, the time and labor required, and the fee customarily charged for similar legal services. Prof. Cond. R. 1.5. Furthermore, the trial court judge possesses personal expertise he or she may use in determining a reasonable amount of attorney fees. Mason v. Mason, 775 N.E.2d 706, 709 (Ind.Ct.App.2002).

 

As discussed above, the trial court appropriately determined that McCreary had grossly overvalued the personal property sold by Connersville Storage. Upon examining the attorney fee affidavit regarding the hourly rate and the time spent on the case, the trial court awarded McCreary $7,522.50, which was a generous amount in relation to the $763.50 judgment. As a result, we decline to set aside the attorney fee award.

 

The judgment of the trial court is affirmed.

 

FRIEDLANDER, J., and VAIDIK, J., concur.

United States District Court,

D. New Jersey.

The DONNA KARAN COMPANY LLC, Plaintiff,

v.

AIRGROUP et al., Defendants.

 

Civil Action No. 12–2149 (SRC).

Oct. 22, 2013.

 

OPINION & ORDER

CHESLER, District Judge.

*1 This matter comes before this Court on two motions: 1) the motion for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56, by Defendant Radiant Global Logistics, Inc. d/b/a Airgroup (“Airgroup”); and 2) the motion for summary judgment by Plaintiff the Donna Karan Company LLC (“Karan”), pursuant to Federal Rule of Civil Procedure 56. The Court heard oral argument on October 7, 2013. For the reasons stated below, Plaintiff’s motion will be granted, and Defendant’s motion will be denied.

 

This case arises from a dispute over the liability of Airgroup, a carrier, for a shipment, made by shipper Karan, which was stolen during the shipping process. The parties do not dispute any of the fundamental facts about the shipment and the theft. At issue on these motions are two questions: 1) whether Airgroup’s liability for the theft is limited by the Carmack Amendment, 49 U.S.C. § 14706; and 2) if Airgroup’s liability is not so limited, what the measure of damages should be.

 

The Carmack Amendment regulates the liability of common carriers for loss or damage to shipments:

 

The Carmack Amendment to the Interstate Commerce Act imposes absolute liability upon carriers for the actual loss or injury to property caused by a carrier. Under [the statute], carriers, however, are permitted to limit their liability through a written agreement with the customer or shipper which evidences an absolute, deliberate and well-informed choice by the shipper. Permitting carriers to limit their liability is a carefully defined exception to the Carmack Amendment’s general objective of imposing full liability for the loss of shipped goods; courts, thus, carefully scrutinize agreements purporting to limit such liability.

 

Carmana Designs, Ltd. v. North American Van Lines, Inc., 943 F.2d 316, 319 (3d Cir.1991) (citations omitted).

 

The key Third Circuit case on this “carefully defined exception” to absolute liability is Emerson Elec. Supply Co. v. Estes Express Lines Corp., 451 F.3d 179, 186 (3d Cir.2006):

 

Prior to the enactment of the TIRRA and the ICCTA, a carrier had to satisfy four requirements before it could limit its liability under the Carmack Amendment:

 

(1) maintain a tariff within the prescribed guidelines of the Interstate Commerce Commission; (2) obtain the shipper’s agreement as to [the shipper’s] choice of liability; (3) give the shipper a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment.

 

The carrier bears the burden of proof. Id. Since the enactment of the TIRRA and ICCTA in 1994 and 1995, carriers are no longer required to file tariffs with the Surface Transportation Board, but need only provide them to the shipper upon request. Id . at 187 n. 6; 49 U.S.C. § 14706(c)(1)(b).

 

The present motions turn on the third element, the question of whether the carrier gave the shipper a reasonable opportunity to choose between two or more levels of liability. The relevant facts are undisputed. The carrier used an online shipment booking system named “Shiptrax.” (Defs.’ 56.1 Stmt. ¶¶ 73, 74.) The shipper entered shipment information on a series of web pages, and there were empty boxes for the declared value and for the insured value of the shipment. (Defs.’ Resp. 56.1 Stmt ¶ 12; Sakal Aff. Ex. T at RGL0124.) For the shipment at issue, the Karan employee booking the shipment left both boxes blank. (Defs.’ 56.1 Stmt. ¶¶ 84.) Karan accepted the “Rules and Regulations” of the carrier. The question before this Court is whether this provided a reasonable opportunity to choose between two or more levels of liability.

 

*2 Karan contends that it did not. Karan cites the deposition testimony of Karan employee Barbara Freitag, who stated that the shipping rate was based solely on weight and never on value. (Sakal Aff. Ex. R at 97:16–98:10.) Karan asserts as an undisputed fact that, under the terms of a rate agreement entered into on February 9, 2004, the shipping rate was based on the weight of the cargo. (Pl.’s 56.1 Stmt. ¶¶ 3, 4.) In its responsive statement, Airgroup disputed this only to the extent that the rate agreement was based on “weight and service.” (Defs.’ Resp. 56.1 Stmt. ¶ 4 .) Airgroup thus does not contend that the rate changed based on the declared value of the shipment.

 

At oral argument, the Court asked Airgroup’s counsel whether the rate would have been different had Karan entered values in either the declared value or shipping value boxes. Counsel responded that the rate would not have changed—an entry into the boxes would have had no impact on the rate. How, then, can this be considered an opportunity to pay a higher rate by declaring a higher value?

 

Airgroup argues that, by virtue of the fact that the Shiptrax form offered Karan the opportunity to declare a value for the shipment, and that Karan chose to leave it blank, Airgroup provided a reasonable opportunity for Karan to choose between two or more levels of liability, and that, by leaving the box empty, Karan made an enforceable choice to accept the level of liability stated by Airgroup in its “Rules and Regulations.” This Court does not agree. There is no evidence in the record that Airgroup offered Karan an alternative rate for a higher level of liability. Consider, for example, the facts of National Small Shipments Traffic Conference, Inc. v. United States, 887 F.2d 443, 444 (3d Cir.1989), in which the Third Circuit found that the reasonable opportunity requirement had been met: the tariff expressly stated four different rates, based on the amount of the declared value. There is no similar evidence here. To the contrary, the undisputed evidence of record shows that Karan was not offered a choice of rates based on level of liability: there is no evidence that a declaration of value would have caused a different rate to apply.

 

Airgroup points to Rule 22 of its “Rules and Regulations,” which states:

 

Declared Value

 

(A) Declared Value is agreed and understood to be not more than 50 cents per poind [sic] or $50.00, which ever is lesser.

 

(B) Insurance coverage is available upon request for amounts to $25,000.00. Any request for insurance coverage in excess of $25,000 .00 must have approval by the home office of Airgroup Express prior to movement of the freight.

 

(Sakal Aff. Ex. Q.) No reasonable finder of fact could find this to be an offer of two or more levels of liability. It is, rather, a limit to one level of liability, with a separate and supplementary mention of some very limited insurance coverage, but with no rate given. There is no way to read this as an offer of a shipping rate for a higher level of liability for a shipment of value greater than $25,000, since it states that such coverage requires prior approval. An offer to consider something for approval, with unspecified material terms, does not constitute an “opportunity” offered to a shipper. Rather, the facts of this case resemble those in Emerson, in which Third Circuit held:

*3 Estes’s tariff limited its liability to ten cents per pound regardless of whether the shipper declared a higher value or left the declared value box blank in the bill of lading. Because the tariff did not provide an option to declare a higher value with a corresponding level of liability, Estes failed to meet the two or more levels of liability requirement.

 

Emerson, 451 F.3d at 188. Similarly, in the instant case, Rule 22 limited the carrier’s liability to fifty cents per pound.FN1

 

FN1. Airgroup argues that, under the Carmack Amendment, it “is required merely to offer two rates, which it did.” (Defs.’ Opp. Br. 4.) What were the two rates? The record shows only one. Airgroup contends: “Airgroup provided a rate based on weight and a rate based on value.” (Defs.’ Br. 21.) This Court has not been shown the rate based on value that Airgroup contends it provided to Karan.

 

This Court concludes that there is no evidence of record that Airgroup gave Karan a reasonable opportunity to choose between rates for two or more levels of liability. The requirements for limitation of liability under the Carmack Amendment have not been met. Karan has demonstrated that no material factual disputes preclude the entry of judgment as a matter of law. On this issue, the Court will grant Karan’s motion for summary judgment and deny Airgroup’s.

 

Having found that Airgroup’s liability is not limited by the Carmack Amendment, this Court now considers the proper measure of Karan’s damages. “Hijacked goods, unlike those destroyed, ultimately compete with the manufacturer and, therefore, no true replacement is possible.” Polaroid Corp. v. Schuster’s Express, Inc., 484 F.2d 349, 351 (1st Cir.1973). The Third Circuit has held:

 

[O]rdinarily when the carrier is responsible for the loss of the goods in transit, the shipper is entitled to recover the contract price from the carrier. Yet the Supreme Court has recognized that the test of market value is at best but a convenient means of getting at the loss suffered. Thus it may be discarded and other more accurate means resorted to, if, for special reasons, it is not exact or otherwise not applicable. Of course, the carrier has the burden of proof to demonstrate that a court should deviate from the market value rule.

 

Robert Burton Assocs. v. Preston Trucking Co., 149 F.3d 218, 221 (3d Cir.1998) (citations omitted). Airgroup contends that, where the stolen items were to be added to the stock of the shipper, the owner could replenish the supply with replacement goods from the wholesale market or from its own stock. Yet Airgroup’s brief rests on the argument that Karan has failed to show that the stolen items would re-enter the stream of commerce in the United States. As Burton makes clear, it is Airgroup, not Karan, that bears the burden of proof on this issue. Airgroup claims that “it is highly unlikely that these [stolen] products will ever re-enter the domestic market.” (Defs.’ Opp. Br. 11.) The problem here is that Airgroup has offered no evidence to support this contention. There is nothing in the record from which any reasonable finder of fact could conclude that the theft of the goods did not cause Karan to lose sales. Airgroup has failed to meet its burden of proof that this Court should deviate from the market value rule. Karan’s damages shall be measured by the domestic market value of the stolen shipment.

 

*4 Karan’s motion for summary judgment is granted in its entirety, and Airgroup’s is denied.

 

For these reasons,

 

IT IS on this 22nd day of October, 2013

 

ORDERED that Airgroup’s motion for partial summary judgment (Docket Entry No. 59) is DENIED; and it is further

 

ORDERED that Karan’s motion for summary judgment (Docket Entry No. 63) is GRANTED.