Opinion
Civil Action No. 3:00-CV-1801-G
February 26, 2003
ORDER
Pursuant to the District Court's Order of Reference, entered October 22, 2002, the "Motion of Matisse Capital Partners for Award of Attorneys' Fees," filed September 30, 2002, has been referred to the United States Magistrate Judge for hearing, if necessary, and for determination. The Court held a hearing on this matter on January 6, 2003. Having considered the arguments and the evidence of the parties in connection with the pleadings, the motion for attorney fees is hereby GRANTED in part and DENIED in part.
I. Background
On August 16, 2000, Defendants Matisse Capital Partners ("Matisse"), L.L.C.; Paul Bagley ("Bagley"); and Jack Takacs ("Takacs") removed the instant suit to the Northern District of Texas on the grounds of diversity jurisdiction. Following the removal, Plaintiff American Realty Trust ("ART"), Inc., amended its complaint to assert claims against Defendants for breach of contract, breach of the duties of care and loyalty, breach of fiduciary duty, declaratory judgment, and attorney fees. Plaintiff Basic Capital Management ("BCM"), Inc., then asserted claims against Defendants for breach of contract, unjust enrichment, declaratory judgment, and attorney fees. Matisse, in turn, asserted counterclaims for breach of contract and attorney fees against ART; fraud against Rossi, ART, and BCM; and tortious interference against A. Cal Rossi ("Rossi") and Gene Phillips ("Phillips"). Following a ten-day jury trial, the District Court entered: (1) judgment as a matter of law in favor of Defendants on all claims brought by Plaintiffs against Defendants; (2) judgment as a matter of law in favor of Matisse on its counterclaims for breach of contract and attorney fees against ART; and (3) judgment on the verdict in favor of Rossi and Phillips on all counterclaims brought by Matisse against Rossi and Phillips.
Matisse, Bagley, and Takacs will be referred to collectively as "Defendants."
In the instant motion, Matisse seeks to recover $1,163,221.50 in attorney fees and $109,981.38 in non-taxable costs. (D.'s Br. at 2; D.'s Reply at 7; D.'s Letter of Jan. 21, 2003.) Matisse also seeks $250,000 in attorney fees for an appeal to the Fifth Circuit Court of Appeals; $50,000 in attorney fees if a petition for writ of certiorari is filed with the United States Supreme Court; and $200,000 in attorney fees if the petition for writ of certiorari is granted. (D.'s Br. at 2.) In support of its motion, Matisse contends that: (1) it is entitled to recover its attorney fees; (2) it is not required to segregate its attorney fees among the causes of action; (3) the attorney fees it seeks are reasonable; and (4) it is entitled to recover its non-taxable costs. (D.'s Br. at 4-6, 6-8, 8-14, 14-15.) ART, on the other hand, contends that: (1) the fee application is "fatally defective" because Matisse failed to segregate the recoverable attorney fees from the non-recoverable attorney fees; (2) Matisse submits flawed billing records in support of its fee application; (3) Matisse claims an unreasonable number of billable hours "on particular aspects of its case"; (4) Matisse cannot recover its non-taxable costs; and (5) Matisse seeks an arbitrary and unreasonable amount of attorney fees for appeals to the Fifth Circuit Court of Appeals and the United States Supreme Court. (P.'s Resp. at 4-7; 7-10, 11-12, 12-13, 13.)
This amount reflects adjustments that Matisse has made since the filing of its motion for attorney fees. Although Matisse originally sought $1,164,577.50, it later reduced its claim by $93.00 in its reply and by $1,263.00 in a letter dated January 21, 2003. (D.'s Br. at 2; D's Reply at 7, D's Letter of Jan. 21, 2003.)
The Court now turns to discuss the legal standards that will guide its analysis.
II. Legal Standards
In diversity cases, an award of attorney fees is governed by state law. Mid-Continent Casualty Co. v. Chevron Pipe Line Co., 205 F.3d 222, 230 (5th Cir. 2000). See also Grant v. Chevron Phillips Chemical Co., 309 F.3d 864, 875 n. 37 (5th Cir. 2002) ("[W]hen a federal court sits in diversity, entitlement to attorney's fees is governed by state law." (emphasis omitted)). Under Texas law, "a person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . an oral or written contract." TEX. CIV. PRAC. REM. § 38.001(8) (Vernon 2002). In determining the amount of reasonable attorney fees to be awarded, a finder of fact should consider eight factors:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
(2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.Arthur Andersen Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997). See also Vela v. City of Houston, 276 F.3d 659, 679-81 (5th Cir. 2001) (affirming an award of $2.8 million in attorney fees because "[t]he district court separately considered each Arthur Andersen factor."). Finally, the burden is on the party seeking attorney fees to establish an entitlement to the attorney fees. See Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991)
The Court now turns to address the merits of the motion.
III. Analysis
Matisse seeks to recover its attorney fees and non-taxable costs. (D.'s Br. at 2; D.'s Reply at 7; D.'s Letter of Jan. 21, 2003.) Matisse also seeks attorney fees in the event of appeals to the Fifth Circuit Court of Appeals and the United States Supreme Court. (D.'s Br. at 2.) The Court will address each of Matisse's requests in turn.
A. Attorney Fees
As noted above, Matisse seeks to recover $1,163,221.50 in attorney fees. (D.'s Br. at 2; D.'s Reply at 7; D.'s Letter of Jan. 21, 2003.) ART, however, objects to the amount of attorney fees on the following grounds: (1) the fee application is "fatally defective" because Matisse failed to segregate the recoverable attorney fees from the non-recoverable attorney fees; (2) Matisse submits flawed billing records in support of its fee application; and (3) Matisse claims an unreasonable number of billable hours "on particular aspects of its case." (P.'s Resp. at 4-7; 7-10, 11-12.) The Court will now consider each of ART's objections to the attorney fees sought by Matisse.
1. ART's Objections
a. Segregation of Attorney Fees
First, ART maintains that the fee application is "fatally defective" because Matisse failed to segregate the recoverable attorney fees from the non-recoverable attorney fees. ( Id. at 4-7.) Specifically, ART contends that Matisse's non-recoverable attorney fees are those incurred: (1) in the defense of ART's claims for breach of fiduciary duty under Georgia law against Bagley and Takacs; (2) in the prosecution of Matisse's counterclaims for fraud against BCM and Rossi; and (3) in the prosecution of Matisse's counterclaims for tortious interference against Phillips and Rossi. ( Id.) For the reasons set forth below, the Court concludes that Matisse has met its duty of segregating its attorney fees to the extent required by Texas law.
During the hearing before this Court on January 6, 2003, ART submitted a chart detailing the attorney fees it believes to be recoverable versus the attorney fees it believes to be non-recoverable. The Court has relied on this chart in interpreting ART's briefing on the subject of attorney fee segregation.
Under Texas law, there is a general duty to segregate recoverable attorney fees from nonrecoverable attorney fees and to segregate the attorney fees owed by different parties. See Stewart Title Guaranty Co., 822 S.W.2d at 10-12 (Tex. 1991). However, the Supreme Court of Texas has recognized two exceptions to the duty to segregate attorney fees. First, there is no duty to segregate attorney fees where the attorney fees are incurred "in connection with claims arising out of the same transaction and are so interrelated that their `prosecution or defense entails proof or denial of essentially the same facts.'" Id. (quoting Flint Assoc. v. Intercontinental Pipe Steel, Inc., 739 S.W.2d 622, 624-25 (Tex.App.-Dallas 1987)). In other words, there is no duty to segregate attorney fees where "the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are "intertwined to the point of being inseparable.'" Id. (quoting Gill Sav. Ass'n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex.App.-Houston [14th Dist.] 1989)). Second, there is no duty to segregate attorney fees that are incurred in the defense of claims that a party must defeat before it can prevail on its own claims. Republicbank Dallas v. Shook, 653 S.W.2d 278, 282 (Tex. 1983).
In the instant case, the Court concludes that Matisse incurred the claimed attorney fees "in connection with claims arising out of the same transaction[,] and [the claims] are so interrelated that their `prosecution or defense entails proof or denial of essentially the same facts.'" Stewart Title Guaranty Co., 822 S.W.2d at 10-12 (quoting Flint Assoc., 739 S.W.2d at 624-25). As an initial matter, the Court notes that ART does not dispute that all of the claims and counterclaims in this case involve substantially similar questions of law and fact. Nevertheless, ART seems to contend that segregation of attorney fees must occur because it would be possible to identify the nonrecoverable attorney fees through an examination of the billing records. (P.'s Resp. 4-7.) ART's contention is without merit. The issue is not whether segregation of attorney fees is possible, but whether segregation of attorney fees is required. Texas case law is clear that a party is relieved of its duty to segregate attorney fees where "the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are `intertwined to the point of being inseparable.'" stewart Title Guaranty Co., 822 5.W.2d at 10-12 (quoting Gill Sav. Ass'n, 783 S.W.2d at 680). As noted above, ART contends that Matisse's non-recoverable attorney fees are those incurred: (1) in the defense of ART's claims for breach of fiduciary duty under Georgia law against Bagley and Takacs; (2) in the prosecution of Matisse's counterclaims for fraud against BCM and Rossi; and (3) in the prosecution Matisse's counterclaims for tortious interference against Phillips and Rossi. (P.'s Resp. at 4-7.) The Court will now explain how these causes of action are "dependent upon the same set of facts or circumstances" as the causes of action for which Matisse may recover its attorney fees.
First, with respect to Matisse's defense of ART's claims for breach of fiduciary duty against Bagley and Takacs, it is not disputed that ART's claim for breach of fiduciary duty against Matisse was based on the alleged conduct of Bagley and Takacs. Thus, Matisse's defense of Bagley and Takacs involved "proof or denial of essentially the same facts" as Matisse's successful defense of itself. Stewart Title Guaranty Co., 822 S.W.2d at 10-12 (quoting Flint Assoc., 739 S.W.2d at 624-25). Next, with respect to Matisse's counterclaim for fraud against BCM and Rossi, it is not disputed that Matisse, as part of its successful defense against ART's claim for breach of contract, raised the affirmative defense of estoppel based on the same set of alleged facts as its counterclaim for fraud against BCM and Rossi. Thus, Matisse's affirmative defense of estoppel involved "proof or denial of essentially the same facts" as Matisse's counterclaim for fraud against BCM and Rossi. Stewart Title Guaranty Co., 822 S.W.2d at 10-12 (quoting Flint Assoc., 739 S.W.2d at 624-25). Finally, with respect to Matisse's counterclaims for tortious interference against Phillips and Rossi, it is not disputed that Matisse's counterclaim for breach of contract against ART was based on the alleged conduct of Phillips and Rossi. Thus, Matisse's counterclaims for tortious interference against Phillips and Rossi involved "proof or denial of essentially the same facts" as Matisse's successful counterclaim for breach of contract against ART. Stewart Title Guaranty Co., 822 S.W.2d at 10-12 (quoting Flint Assoc., 739 S.W.2d at 624-25). In each of the three instances above, Matisse alleged one set of facts to support two legal arguments-one legal argument for which its attorney fees would be recoverable and one legal argument for which its attorney fees would be non-recoverable. Thus, in each instance, the facts supporting the two legal arguments are "intertwined to the point of being inseparable." Id. (quoting Gill Say. Ass'n, 783 S.W.2d at 680). Accordingly, Matisse has met its burden of segregating its attorney fees to the extent required by Texas law.
Much is made of the issue that whereas ART's claim for breach of fiduciary duty against Matisse arose under Texas law, ART's claims for breach of fiduciary duty against Bagley and Takacs arose under Georgia law. (P.'s Resp. at 5-6.) The Court is not convinced that the source of law is necessarily relevant to the applicability of the exception to the duty to segregate attorney fees. In determining whether the exception applies, the relevant inquiry is whether "the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are `intertwined to the point of being inseparable.'" Stewart Title Guaranty Co., 822 S.W.2d at 10-12 (quoting Gill Sav. Ass'n, 783 S.W.2d at 680). Thus, so long as the "facts or circumstances" are "intertwined to the point of being inseparable," there does not appear to be any requirement that the source of law be the same.
Recognizing that the facts supporting the tort counterclaims of tortious interference and the contract counterclaim of breach of contract might not be wholly intertwined, Matisse has engaged in two efforts to segregate recoverable attorney fees from non-recoverable attorney fees with respect to the counterclaims for tortious interference against Phillips and Rossi. ln the first instance, prior to filing its motion for attorney fees, Matisse identified $32,744.50 in attorney fees for time relating to its counterclaims for tortious interference against Rossi and Phillips. (D.'s Br. at 8.) According to Matisse, the "[l]egal research and briefing that was specific to the issue of tortious interference is sufficiently unrelated to Matisse's contract claim that it can be segregated." ( Id.) In the second instance, by way of a letter dated January 21, 2003, Matisse identified a further $1,263.00 in attorney fees for time relating to the counterclaims for tortious interference and to a related lawsuit. Having conducted an in camera inspection of the unredacted billing records, the Court concludes that Matisse has sufficiently segregated its attorney fees with respect to the counterclaims for tortious interference against Phillips and Rossi.
b. Billing Records
Second, ART maintains that Matisse submits flawed billing records in support of its fee application. (P's Resp. at 7-10.) Specifically, ART contends that the billing records submitted by Matisse are arbitrary, inaccurate, and excessively redacted. ( Id. at 7-9.) In light of developments since the filing of ART's response, ART's contentions are now moot. First, at the hearing held before this Court on January 6, 2003, Matisse adequately explained and corrected the discrepancy between the total amount of attorney fees contained in the billing records and the total amount of attorney fees summarized in the "Matrix of Attorney Fees By Timekeeper." Furthermore, in its reply, Matisse withdrew the duplicative time entry of 0.3 hours billed by Attorney Paul B. Ridley on February 22, 2002. (D.'s Reply at 6-7.) Finally, pursuant to this Court's Order of January 13, 2003, Matisse has submitted unredacted copies of the relevant billing records for in camera inspection. As such, ART's contentions of arbitrariness, inaccuracy, and excessive redaction in the billing records have been addressed and are now moot. The Court perceives no other reason to question the accuracy of the billing records submitted by Matisse.
ART also contends that the billing records unreasonably group together descriptions of legal services. (P.'s Resp. at 10.) However, ART cites to no legal authority to support its contention that Matisse should not recover its attorney fees for such billing entries. Furthermore, the only specific billing entry to which ART objects-that of Associate Attorney Christy Naylor for nine hours on October 10, 2001 — is sufficiently detailed and clear to avoid a reduction in the total amount of attorney fees claimed by Matisse.
c. Number of Billable Hours
Finally, ART maintains that Matisse claims an unreasonable number of billable hours "on particular aspects of its case." (P.'s Resp. at 11-12.) Specifically, ART contends that Ms. Naylor billed nearly 20% of the entire amount of attorney fees requested by Matisse without being an attorney of record, without taking or defending a single deposition, without appearing at trial, and while performing some work that was better suited to paralegals. ( Id.) This argument is without merit. ART's argument regarding Ms. Naylor is conclusory, cites to no legal authority, and fails to object to specific billing entries.
ART also submits that Matisse seeks over $500,000 more in attorney fees than ART incurred in this case. (P's Resp. at 12.) Moreover, ART argues that whereas 14.7% of the total attorney fees requested by Matisse is attributed to paralegals, 26.9% of the total attorney fees incurred by Plaintiffs is attributed to paralegals. ( Id.) These arguments appear to implicate the reasonableness of the total amount of attorney fees sought by Matisse. However, under state law, the reasonableness of the total amount of attorney fees is evaluated under the eight factors described in Arthur Andersen Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997). Accordingly, the Court declines to engage in a comparison of the attorney fees billed by the parties in this case because the Court declines to expand the reasonableness inquiry beyond the eight factors described in Arthur Andersen.
The most egregious example of ART's failure to object to specific billing entries is ART's general citation to over 140 pages of billing records for the proposition that "several entries in the Records indicate that attorney Naylor was pulling documents and making indexes for exhibits." (P.'s Resp. at 12.) It is not the duty of this Court to scrutinize the billing records and identify billing entries that could support ART's objections. ART was not eased of its burden to make specific objections simply because some of the billing entries were redacted.
However, ART also contends that the 3.1 hours claimed by Associate Attorney F. Medlin on July 31, 2002, for "[o]bserv[ing] Matisse trial" are unreasonable. ( Id. at 11.) The Court agrees. Without a further explanation in the billing entry as to why it was necessary for Mr. Medlin to observe the trial, the Court must conclude that the 3.1 hours for trial observation were not reasonably expended. See Pitts v. Dallas County Bail Bond Bd, 23 5.W.3d 407, 419 (Tex.App.-Amarillo 2000) (referring to "reasonably expended" attorney fees); United States Fidelity Guaranty Co. v. San Diego State Bank, 155 5.W.2d 411, 413 (Tex.App.-El Paso 1941) (referring to "reasonably expended" attorney fees). See also Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). Because Mr. Medlin's hourly rate for 2002 was $250 per hour, the total attorney fees sought by Matisse must be reduced by $775.00 to $1,162,446.50. (D.'s App. at 3.)
2. The Arthur Andersen Factors
Having considered the objections raised by ART, the Court must now consider whether an award of $1,162,446.50 in attorney fees is reasonable in this case in light of the eight factors set forth in Arthur Andersen Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997). At the outset of this discussion, the Court notes that ART has failed to address the Arthur Andersen factors in its response, despite a rather detailed analysis of those factors in Matisse's motion.
a. Time, Labor, Skill Required; Novelty Difficulty of Questions
This case presented multiple, complex legal issues which required extensive briefing and numerous hearings. The unusually complicated procedural history culminated in a ten-day jury trial and several post-verdict motions. In two years of highly contested litigation, Matisse responded to and defeated most of the significant motions filed by ART, including two motions to remand, a motion for disqualification, a motion to stay the case, a motion for partial summary judgment, a motion for summary judgment on the fraud counterclaim, and a motion for judgment on the verdict. The extended and complicated nature of the litigation, as well as the vigorous and abundant motion practice, all support the reasonableness of the attorney fees sought by Matisse.
b. Fees Charged in the Locality
The hourly fees billed by partners representing Matisse in this case ranged from $220 to $420. (D.'s App. at 11.) Furthermore, the hourly fees billed by associate attorneys representing Matisse in this case ranged from $150 to $250. ( Id.) Finally, the hourly fees billed by paralegals working for Matisse in this case ranged from $75 to $115. ( Id.) The Court concludes that these fees are consistent with the hourly fees customarily charged by attorneys and paralegals of similar experience, reputation, and ability in the Northern District of Texas. The Court also notes that ART did not object to the reasonableness of the hourly fees billed by the attorneys and paralegals for Matisse in this case. As such, the fees charged in the locality support the reasonableness of the attorney fees sought by Matisse.
c. Amount Involved Results Obtained
ART sought damages against Defendants in excess of $30 million. (Jnt. Pretrial Order at 37.) Despite a jury verdict in favor of ART, Matisse successfully moved for judgment as a matter of law and obtained a judgment against ART in the amount of $4.4 million plus pre — and post-judgment interest, costs of court, and attorney fees. As such, the amount involved in the case and the results obtained for Matisse all support the reasonableness of the attorney fees sought by Matisse.
d. Experience, Reputation Ability of the Attorneys
As detailed in the Declaration of Paul B. Ridley, the seven principal attorneys for Matisse in this case — Robert Everett Wolin, Paul E. Ridley, Michael D. Napoli, F. Lin Medlin, Jacqueline R. Peterson, Christy L. Naylor, and Delia A. Spencer-Young — are all partners or associates at the national law firm of Kirkpatrick Lockhart LLP ("KL"). (D.'s App. at 2-3.) Mr. Wolin is a partner at KL, is licensed to practice law in three states, and has been continuously engaged in the practice of law since 1973. ( Id. at 2.) Mr. Ridley is a partner at KL, is licensed to practice law in all state and federal courts in Texas and in the D.C. Circuit Court of Appeals, is specialized in the area of commercial litigation, and has been continuously engaged in the practice of law since 1984. ( Id.) Mr. Napoli is a partner at KL, is licensed to practice law in Texas, is specialized in the area of commercial litigation, and has been continuously engaged in the practice of law since 1991. ( Id. at 2-3.) Mr. Medlin is an associate at KL, is licensed to practice law in three states, and has been continuously engaged in the practice of law since 1980. ( Id. at 3.) Ms. Peterson is an associate at KL, is licensed to practice law in two states, and has been continuously engaged in the practice of law since 1994. ( Id.) Ms. Naylor is an associate at KL, is licensed to practice law in two states, is a former clerk for the Arkansas Supreme Court, and has been continuously engaged in the practice of law since 1998. ( Id.) Finally, Ms. Spencer-Young is an associate at KL, is licensed to practice law in Texas, is a former clerk for Judge Hilda Tagle of the United States District Court for the Southern District of Texas, and has been continuously engaged in the practice of law since 1998. ( Id.) As such, the experience, reputation, and ability of the attorneys for Matisse support the reasonableness of the attorney fees sought by Matisse.
e. The Remaining Factors
The remaining four Arthur Andersen factors are not applicable in this case. Accordingly, they are considered as neutral for purposes of determining the reasonableness of the attorney fees sought by Matisse.
For the foregoing reasons, the Court concludes that attorney fees of $1,162,446.50 in this case are reasonable and must be awarded. Accordingly, Matisse's motion for attorney fees is GRANTED in part and DENIED in part.
B. Non-Taxable Costs
As noted above, Matisse seeks to recover $109,981.38 in non-taxable costs. (D.'s Br. at 2.) In support of its motion, Matisse contends that 13h of the Consulting Agreement allows the prevailing party to recover "attorney's fees and other costs incurred in such action or proceedings." ( Id. at 15.) ART, however, contends that the Consulting Agreement did not provide for the recovery of non-taxable costs and that therefore Matisse has failed to meet its burden of showing an entitlement to an award of non-taxable costs. (P.'s Resp. at 13.)
Under Texas law, "[o]rdinary expenses incurred by a party in prosecuting or defending suit cannot be recovered either as damages or by way of court costs in the absence of statutory provisions or usages of equity." Flint Assoc. v. Intercontinental Pipe Steel, Inc., 739 S.W.2d 622, 626 (Tex.App.-Dallas 1987) (citing Hammonds v. Hammonds, 313 S.W.2d 603, 605 (Tex. 1958)). In the instant case, Matisse concedes that non-taxable costs cannot be recovered under TEX. CIV. PRAC. REM. CODE § 38.001. (D.'s Br. at 14.) See Flint Assoc., 739 S.W.2d at 627 ("Except as included in reasonable legal fees, there is no basis for recovery of [non-taxable costs] under section 38.001."). Thus, any award of non-taxable costs in the instant case must be authorized by the Consulting Agreement.
As noted above, ¶ 13h of the Consulting Agreement allows a prevailing party to recover "attorney's fees and other costs." (D.'s Br. at 15.) However, the Court concludes that the reference to "other costs," especially in the absence of a more specific definition in the contract, is insufficient to establish an entitlement to non-taxable costs under the contract. The Court's conclusion is supported by state court treatment of similar language in § 38.001. Section 38.001 refers generally to "costs," and Texas courts have declined to award non-taxable costs under this section. TEX. Civ. PRAC. REM. CODE § 38.001; Flint Assoc., 739 S.W.2d at 626-27; American Hallmark Ins. Co. of Texas v. Lyde, No. 05-97-01611-CV, 2000 WL 1702597, at *11 (Tex.App.-Dallas Nov. 15, 2000). Accordingly, Matisse's motion for non-taxable costs is DENIED.
C. Appellate Attorney Fees
As noted above, Matisse seeks $250,000 in attorney fees for an appeal to the Fifth Circuit Court of Appeals; $50,000 in attorney fees if a petition for writ of certiorari is filed with the United States Supreme Court; and $200,000 in attorney fees if the petition for writ of certiorari is granted. (D.'s Br. at 2.) ART, however, contends that Matisse seeks an arbitrary and unreasonable amount of appellate attorney fees. (P.'s Resp. at 12-13.) In its motion and reply brief, Matisse makes no attempt to cite to legal authority to support its motion for purely prospective, appellate attorney fees, nor does Matisse dispute that its calculations for appellate attorney fees are speculative at this juncture. Accordingly, Matisse's motion for appellate attorney fees is DENIED without prejudice.
IV. Conclusion
For the foregoing reasons, the "Motion of Matisse Capital Partners for Award of Attorneys' Fees" is GRANTED in part and DENIED in part. Specifically, Matisse is entitled to an award of attorney fees from ART in the amount of $1,162,446.50. Furthermore, Matisse is not entitled to recover its non-taxable costs, nor is Matisse entitled to recover its purely prospective, appellate attorney fees at this juncture.
SO ORDERED.