*1 of that rule and cannot avail itself defense. for less than the amount the mistaken First National therefore entitled to is res- transfer. Birch.
titution White III. CONCLUSION circumstances, Under normal amount of restitution would be the above, For all of the reasons set forth $693,000 overpayment. But here First judgment we REVERSE the of the dis- National was able to settle Calumet’s claim trict court REMAND the case for the $550,000. against it for a total of First entry judgment favor First Nation- argument National conceded oral that al. loss, this is the true extent of its and thus by the measure which Birch has White unjustly
been enriched at the bank’s ex-
pense. Although argued White Birch has $500,000 of the bank’s claim was in Calumet,
the form of a loan to the record
makes clear that First National credited solely amount to account Calumet’s Kelly DILLERY, Plaintiff-
settle the filed it as a result lawsuit Appellee/Cross- If the mistaken wire transfer. the bank Appellant, has in fact recovered this “loan” bankruptcy proceedings, Calumet SANDUSKY, al., CITY OF et De district court on remand can take this into fendants-Appellants/Cross- account in rendering judgment the final Appellees. against White Birch. The district court is also free to consider First Nation- whether Kelly Dillery, Plaintiff-Appellant, al is to prejudgment entitled interest on its restitution claim. al., et Defendants- point, allowing
As a final we note that Appellees. White Birch to keep funds no one intended for it to have when it received 03-3465, 03-3466, Nos. 04-3314. them would constitute a windfall to White United of Appeals, States Court expense Birch at the of First National. Sixth Circuit. $550,000 Returning paid out First National to extricate itself from its trans- Argued: Dec. 2004. will, however, mission put parties error Decided and Filed: Feb. position they the same would have in transferring been had the error
funds not Although equi- occurred. these
table trump considerations do not the dis-
charge-for-value defense in situations applicable, they
where the defense is are should,
pertinent here. Birch White
fact, consider itself fortunate that it is $550,000
having to return
$693,000 excess it because received First
National was able to settle Calumet
ARGUED: William P. Lang, Avon Lake, Ohio, for Defendants. K. Ronald Bailey, Associates, K. Bailey Ronald & Ohio, Sandusky, for Plaintiff. ON BRIEF: Lang, Lake, William P. Avon Ohio, K. Bailey, Defendants. Ronald K. Bailey Associates, Ronald & Sandusky, Ohio, Tine, Ohio, Linda R. Sandusky, Van for Plaintiff. MERRITT, GIBBONS,
Before: ROGERS, Judges. Circuit OPINION GIBBONS, Judge. Circuit Kelly Dillery is a disabled woman who uses a wheelchair or motorized scooter to move. Sandusky, sued the city commissioners, and city several em- Sandusky, with Disabil lives Ohio. ployees, under Americans Act, (“ADA”), Sandusky promulgated a policy Act the Rehabilitation install ities ramps § various Ohio state curb where intersections work U.S.C. Sandusky being done make the provisions. alleged She was order to side- law by prop handicapped ADA to install failing walks accessible. Around violated cuts, time, Sandusky forced began program such that this also er curb sidewalks, curbs, replace gutters her in the street instead to ride wheelchair .Further, Dillery city. al throughout undisputed sidewalk. It of on the is officers violat despite undertaking pro- leged and, rights stopping gram, her does have a formal ed transition *4 occasions, riding arresting plan place, required by her for in as several ADA. in the The district her wheelchair street. Dillery often traveled in her wheelchair summary judgment to the granted than, streets, on the rather on Dillery filed a on all counts. defendants sidewalk, curbs, because the sidewalk reconsideration, part for based in motion sidewalk, of the unevenness and the G. Judge District James on United States slope of the sidewalk could overturn her in a ruling separate Carr’s case difficulty wheelchair or cause her ma- Sandusky, Ability Tole Center Greater of occasions, neuvering. police On numerous Sandusky. The district do v. of stopped Dillery traveling officers for court, Judge ruling, grant based on Carr’s and move to streets directed her to Dillery’s but found that part, ed motion Dillery use sidewalk. continued to injunctive for relief had been her claims streets, however, because she believed that a essentially mooted. filed The defendants a they provided more level surface her appeal, Dillery and a notice notice filed city than many wheelchair side- cross-appeal. walks. Dillery subsequently moved for attor- 1, 1998, riding Dillery was On June and costs. The district court neys’ fees to In order her wheelchair her bank. motion, finding that even denied bank, Dillery reach her crossed prevailing party, if she was a she was to the south north side Perkins Avenue timely fees. filed a entitled south along side and then traveled side appeal. notice of street, were no side- of this where there reasons, following affirm the For the we According report, she walks. to a of the district court. decisions traveling in the eastbound was observed “[njumerous and lane of Perkins Avenue I. stop had to or swerve miss vehicles 35-year-old suf- Dillery is woman who reporting striking” person her. The Ataxia, Fredericks progressive fers from person another incident also observed that disease is neurological disorder. The sitting Dillery’s lap as she traveled pecu- by speech impairment, characterized this route. movements, swaying, irregular and liar Tracy a citation use a wheelchair Brewer issued and she must motorized Officer party being pedestrian that she roadw disputes to move. Neither meaning ay.1 judge Dillery guilty within the the ADA. A this is disabled found person, sitting lap. planned Dillery for How- 1. Officer Brewer to cite child was ever, endangerment, believing Dillery's the citation Officer Brewer served child offense fined her when alleged she admit- ADA. She also violations of the $50 using in court Act, ADA, ted that she was the street. Rehabilitation and various state and provisions. federal She incident, Dillery After this continued to relief, declaratory compen- July use her wheelchair in the street. On satory damages, attorneys’ fees and 30, 1998, Dillery daughter and her went to costs. buy school clothes at a store on Perkins A stopped Avenue. motorist at an inter- summary defendants moved for Dillery approach section observed his vehi- judgment. granted The district court passenger’s cle side of the car. Her entirety. motion in its Dillery filed a mo- daughter lap. was in her As tion for reconsideration or to alter car, passed the thought the motorist he judgment. amend the granted The court Dillery’s daughter saw hit her head and part the motion in as follows: it vacat- arm reported on his car’s mirror. He portion ed the of the opinion granting sum- incident to police, subsequently who mary judgment city “on the matter protective called services. Protective ser- compliance Defendant’s with the Ameri- vices following came home the cans With Act Disabilities sidewalk acces- *5 day daughter, and checked her who dis- (2) sibility regulations;” adopted and it However, played signs injury. no of portions Judge of final Carr’s order police charged Dillery still with child en- Ability Center Greater Toledo v. City of of dangerment. Dillery acquitted was of this Sandusky, opinion an that held that San- charge jury after a trial. dusky violated the ADA in- failing to occasions, On several other citizens com- proper stall curb ramps cuts and at nu- plained to police Dillery’s officers about merous intersections. The remainder of riding her wheelchair the street and the the motion was denied. fact that swerving cars were to avoid her The timely defendants filed a notice of or nearly hitting her. Police officers in- appeal judgment. from this Dillery filed a vestigated complaints these and Dil- cited timely notice of cross-appeal. lery being pedestrian a roadway. In Dillery March a filed motion for Dillery subsequently filed suit attorneys’ fees and pursuant costs City City of members of its motion, ADA. opposed The defendants Commission in capacities, their official arguing that Dillery was not a prevailing City Police, Engineer, Chief of Acting and party and thus was not entitled to fees and capacities, Police Chief their official costs. The district denied Brewer, Tracy individually Officer motion, concluding that “Plaintiffs success capacity officer, as a in the Defendants, impact and its on any, [was] Northern District of Ohio. She a represent so limited as to a mere moral or
preliminary injunction against the defen- pyrrhic victory.” Dillery timely filed a prevent dants to them from “arresting or appeal notice of of this decision. harassing City otherwise her” in the Sandusky and prohibit also to them from II. installing or changing buildings, streets, walkways, or unless changes challenge defendants the district comported requirements decision, with the of court’s motion for being pedestrian roadway upon trip adult daughter. friend on this and not her learning Dillery accompanied by that was an
reconsideration, Judge through Title adopt portions private to forceable II’s cause of action.” 385 F.3d at Ability decision in Center Great Carr’s Sandusky. Based on er Toledo argument Defendants’ does Center, district court found Ability cause private pur- have of action Sandoval, that Alexander v. U.S. accessibility sue on the relief based ADA’s (2001), L.Ed.2d 517 did regulations Ability fails based on Center. The district court not bar claims. adopted paragraphs also certain III. Judge Carr’s order Center. three appeal raises issues on adopting paragraphs, these district with regard to the district court’s resolu- Sandusky court determined that violated tion of her lawsuit. She the fol- contests failed “illegally prop the ADA when it (1) lowing: the district determina- court’s curb erly install or maintain cuts and tion intentionally that defendants did not resurfacing ramps when streets and alter (2) against Dillery; discriminate the dis- city ap ing installing sidewalks.” On grant summary judgment trict court’s argue peal, the defendants issues; on various defendants right have private does not action failure to grant court’s on the failure of pursue her claims based Dillery. relief to regulations con comply cerning accessibility of facilities. A. II provides Title of the ADA argument previ
Defendants’
*6
“no qualified
disability
individual
awith
rejected by this
in
ously raised and
court
shall,
disability,
of such
ex
by reason
be
Toledo
Ability
City
Center Greater
v.
of
of
cluded
in
denied
(6th
participation
from
or be
Cir.2004),
Sandusky,
Thus, Dillery cannot demonstrate Sandusky intentionally discriminated B.
against specifically by her failing to under Next, Dillery argues that the district take these actions. and omissions “[A]cts court erred in granting summary judg- which disparate impact have a on disabled ment to the defendants on various state persons general specific not [are] acts of and federal claims. The district court intentional against discrimination [the granted summary judgment for the defen- plaintiff] particular.” Tyler (1) dants on claims as follows: (10th Manhattan, 118 F.3d Cir. regulations 1997). requiring public entities to en- gage in a self-evaluation and create a tran- Dillery also contends that the San- plan sition do not private create a right of dusky police “stopped, charged and ha action was rassed Plaintiff because she is disabled.” subjected to discrimination aas result Further, argues they she made no of the failure to create such a transition reasonable accommodation for her. How (2) plan; Dillery did not demonstrate in- ever, the record reflects that did tentional discrimination on the part of de- not stop Dillery disability, because her fendants and thus compensatory damages stopped but rather in response to citi (3) her; were not available to Dillery has complaints zen being about her legally cognizable no claims for malicious roadway. The four times prosecution arrest; or false Dillery pre- charged with a violation all resulted from *7 sented no evidence that injury her was a complaints citizen reported which others result of inadequate the training of Officer that: stop “vehicles had to or swerve” to (5) Brewer; Sandusky is not liable under her, striking miss “a small lay child [was] § 42 U.S.C. by 1983 the actions taken ing lap” across her as she drove her wheel (6) Brewer; Officer Officer Brewer was road, chair in “they almost hit a white entitled to qualified immunity for her ac- wheelchair,” female in a and “numerous tions; and the defendants are entitled swerving keep vehicles were from strik immunity under ruling Ohio law. In on ing subject kept as she swerving into reconsideration, motion for traffic.” police The were by motivated district court further clarified that Dillery citizen complaints potential violations failed to offer evidence sufficient to with- that occurring subject were and were not stand summary judgment on the issue of ing Dillery to discrimination “solely be selective enforcement of criminal laws. Jones, cause disability.” of her 341 F.3d at 477 (requiring actions to solely be taken specifically does not address person’s disability because of a in order to each of these claims her appeal; howev- establish a prima er, facie violation of Title generally she does disputed assert that II). police Because discharging were exist, issues of material fact making sum- their in investigating duties mary citizen com- judgment inappropriate. For the
569 any tiff by significant district court and issue in “succeed[s] stated reasons litigation genuine there are no issues of which achieves some of the because bene fact, properly court fit the parties bringing district suit.” material Eckerhart, 424, summary 433, to the granted judgment Hensley defen- 461 U.S. 1933, (1983). these 76 regard to each of claims. 103 S.Ct. L.Ed.2d 40 dants with “The touchstone the prevailing party C. inquiry must be the alteration material legal relationship parties,” Tex. an issue raises as wheth Ass’n Indep. State Teachers v. Garland failing grant er trial court erred Dist., 792-93, 782, Sch. 489 U.S. injunction Sandusky prohibiting an her 1486, (1989), L.Ed.2d 103 866 such that stopping charging or her for “the modified] defendant’s behavior in a [is However, using city she sidewalks. way directly plaintiff,” benefits the part argu no of her brief to this devotes Farrar v. 103, 111-12, 113 Hobby, 506 U.S. It is well-established “issues ment. (1992). 566, 121 S.Ct. L.Ed.2d 494 Howev manner, in perfunctory unac adverted er, victory may insignifi “technical be so at developed companied some effort support cant ... as to be insufficient to waived.” argumentation, are deemed prevailing party Tex. status.” State F.3d 566 Layne, States 192 United Ass’n, at Teachers U.S. S.Ct. (6th Cir.1999) (quoting McPherson v. Kel 1486. (6th Cir.1997)). 125 F.3d 995-96 sey, Dillery wholly fails to address this Because district denied mo- brief, we appellate in her conclude issue attorneys’ tion for fees. It declined to right appeal has her that she waived if prevailing determine was the court’s denial of relief. district holding party, instead that even she prevailing party, were the “the rea-
IV.
attorney’s
fees are none
all.”
sonable
Finally,
Dillery appeals
The district
court did not
attorneys’
request
court’s denial
reaching
abuse its discretion
deci
ADA
provides
fees. The
“[i]n
Dillery only prevailed on the issue of
sion.
pursuant
...
to this
action
commenced
ADA
whether
violated
agency,
the court
its discre
chapter,
its
respect
accessibility
curbs.2
tion,
...
may
prevailing party
allow the
However, Dillery
no relief from
obtained
attorney’s
fee.”
U.S.C.
reasonable
issue,
Judge
on this
because
prevailing
§
A district court’s decision to
*8
Ability
had
previously
Carr
Center
grant
deny attorneys’ fees is reviewed
or
granted injunctive relief to class members.
Fogerty
for an abuse
discretion.
“materially
victory
alter[ ]
Her
did not
the
Group Holdings Corp., 379 F.3d
MGM
relationship
parties.”
legal
between
(6th Cir.2004).
348, 357
Farrar,
111,
566.
506 U.S.
113 S.Ct.
In
plaintiff
order for a
to re
brief,
action,
In
contends that
attorneys’
rights
in a civil
ceive
fees
relief,
“she did
must
she
obtain
because
plaintiff
prevailing party.
be the
did
experience
§
a cessation of the harassment
plaintiff may
42
12205. A
be
U.S.C.
previously
receiving”
if
had
been
prevailing party
plain-
a
she
considered
Heights,
Berger City Mayfield
plaintiff
prevail
on
fees.
A
need not
all claims
399,
(6th Cir.2001).
attorneys'
complaint
F.3d
to obtain
asserted
However, the
to her decision
ride her wheelchair in
from the defendants.
dis
before it that
the street.
court ruled in Dil-
trict court had no evidence
The district
lery’s
ground
had
favor
first
alleged
stopped,
against
harassment
on the
injunctive
case,
granted
Dillery on the
the district court never
second.
we
Thus,
issue.
have
I
rulings.
sepa-
relief to
on this
she
affirmed
write
both
rately
relief on
did
“actual
the merits
because I believe the district court
not obtain
a
required
prevail
refusing
attorney’s
claim” as
be
erred
award
[her]
fees
by
noted
based
ing party.
See id. As
the Far-
on
successful suit for in-
court,
junctive
alteration
rar
“no material
relief.
parties
legal relationship between
oc
writes,
majority
As the
“the district
until
becomes entitled to
plaintiff
curs
court
determined that
violated
decree or
judgment,
enforce
consent
set
‘illegally
the ADA when it
proper-
failed to
against
tlement
the defendant.”
Id. at
ly install or maintain curb cuts and ramps
113,
case,
In this
judicial process therefore does not Sandusky that the court adopted concedes confer status on- prevailing party Dillery. portions Center decision “or- court did Finally, the district not abuse dering city] repair the ramps [the concluding that, its discretion in even if were improperly.” Appellee’s installed Br. , party, prevailing were a “the at 7. Yet the court district found that the attorneys’ reasonable fees are none at all.” plaintiff successfully who sought this relief conclusion, In reaching this the district attorney’s was entitled to no fees at all. It properly analyzed re- appears quite that Dillery pre- clear is a lief in already the context of relief vailing plaintiff with regard at least to the granted Judge to the class Carr. suit for relief ADA non- compliance. By obtaining an enforceable We conclude that the district court did judgment on the merits the defen- in declining abuse its discretion dant, Dillery qualifies as a prevailing par- Dillery'. award attorneys’ fees to ty. Hobby, See Farrar v. 506 U.S. (1992):
V.
571
(5th Cir.2003);
873,
the slower
of a
progress
Barrios v. bizarre that
case
876
Appx.
Federation,
through
judicial process
277
the
should control
Interscholastic
California
(9th Cir.2002);
attorney’s
1128,
awarding
the
see also
fees.
1134
F.3d
Bank, FSB, 345 F.3d
v. LaSalle
Sanglap
Moreover,
majority
the
as
acknowl
(7th Cir.2003) (“Fees
515,
be
520
should
edges,
touchstone of the prevailing
“[t]he
prevailing
the
[under
ADA]
awarded
party
must be
material altera
inquiry
the
course.”).
as a
matter
par
tion of
legal relationship
the
of the
that the district court
ties.” Texas State Teachers Assn. v. Gar
The
reason
Dist.,
majority
Independent
attor
land
489
give
rejecting
the
for
School
U.S.
and
782,
injunction
792-93,
1486,
in
that the
103
ney’s fees
this case is
L.Ed.2d
(1989).
majority
suggest
an in 866
The
in
plaintiff Dillery
mirrored
errs
issued
victory
ing
Dillery’s
in
not
junction
previous
materially
that was
a
deci
did
issued
legal relationship
alter
between
Ability
Greater Toledo
the
the
sion. See
Center of
it
F.Supp.2d
parties.
Supreme
133
589
Of course
did. As the
(6th
out,
(N.D.Ohio 2001),
pointed
sponse. Dillery’s victory merely is neither
technical nor judgment de minimis.1 This
of a imposes United States court
quite quite costly serious and obligations may partially explain which
why city appealed the district court’s
decision. , Permitting reject the district court to SANDERS, A. William Petitioner- attorney’s grounds fees on these ais dan Appellant, gerous precedent for fee-shifting provi sions like that included the ADA. Fee- shifting provisions are pro intended “to COTTON, Zettie Respondent-Appellee. vigorous
mote
enforcement” of laws
private plaintiffs regardless of
ability
their
No. 03-2622.
pay
representation.
for
See Christians
United
Appeals,
States Court of
EEOC,
burg
412,
Garment Co. v.
434 U.S.
Seventh Circuit.
422,
694,
(1978).
98 S.Ct.
hurried attorneys when be
come aware of pending similar cases. The
fee-shifting provisions of the ADA are generally
meant reward plaintiff
when courts rights vindicate their
award them relief unless such reward injustice.
would result Dillery is As
legally
equitably
attorney’s
entitled to
Supreme
252744,
The
(6th
Court has indeed
Cir.1998)
found that
1998 WL
*4
(reject-
circumstances,
plaintiff
"[i]n some
ing attorney’s
even a
fees where
success was
formally "prevails”
who
... should receive no
directing
court order
TVAto conduct a search
Farrar,
attorney’s fees at all.”
506 U.S. at
might
determine if at-home work
be avail-
115,
Farar,
113 S.Ct.
plaintiff
566. In
Bland,
who
plaintiff);
able for a
Higgs
disabled
compensatory
$17
had
million
(6th
Cir.1989)
dam
888 F.2d
(rejecting
ages
range
from a
of defendants was awarded
award to
whose suit resulted in a
damages
nominal
$1of
judicial
one defendant.
opinion suggesting greater caution
106-108,
Id. at