Judges: Per Curiam
Filed: Mar. 24, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted March 11, 2009* Decided March 24, 2009 Before MICHAEL S. KANNE, Circuit Judge DIANE P. WOOD, Circuit Judge DIANE S. SYKES, Circuit Judge No. 08-2369 URIAN R. STURGIS, SR., Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:06-cv-1308-DFH-WTL
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted March 11, 2009* Decided March 24, 2009 Before MICHAEL S. KANNE, Circuit Judge DIANE P. WOOD, Circuit Judge DIANE S. SYKES, Circuit Judge No. 08-2369 URIAN R. STURGIS, SR., Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:06-cv-1308-DFH-WTL ..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 11, 2009*
Decided March 24, 2009
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2369
URIAN R. STURGIS, SR., Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:06‐cv‐1308‐DFH‐WTL
AUTHOR SOLUTIONS, INC., d/b/a
AUTHORHOUSE, et al., David F. Hamilton,
Defendants‐Appellees. Chief Judge.
O R D E R
Urian Sturgis, Sr., brought this diversity suit against Author Solutions, Inc.
(“AuthorHouse”), its CEO, and its client services manager for breach of contract and fraud.
The district court granted summary judgment in favor of AuthorHouse, reasoning that
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 08‐2369 Page 2
Sturgis’s claims were barred by the Release and Settlement Agreement that he and
AuthorHouse had agreed to. We affirm.
The business relationship between AuthorHouse and Sturgis began in January 2004,
when the parties entered into the first of two publishing contracts. Under these contracts,
AuthorHouse agreed, for a fee, to publish books authored by Sturgis, provide other
publishing services, and pay Sturgis royalties on the books AuthorHouse distributed.
AuthorHouse published two books for Sturgis, but a dispute arose regarding the amount of
royalties the books garnered. Sturgis proposed to settle the dispute, offering to cancel the
publishing contracts and release AuthorHouse from liability in exchange for a payment of
$1,699.
In June 2006, the parties executed a Release and Settlement Agreement (the “release
agreement”), which reflected the terms of Sturgis’s offer. In exchange for a settlement of
$1,699, Sturgis agreed to release claims against AuthorHouse “arising out of or as a result
of” the publishing contracts. The parties agreed that if one of them breached the release
agreement, “the breaching Party shall pay any and all reasonable expenses, including but
not limited to attorneys’ fees, incurred in obtaining the appropriate relief.” The parties
further agreed that Indiana law would govern the agreement. Sturgis faxed to
AuthorHouse a copy of the agreement bearing his signature. AuthorHouse then sent
Sturgis a copy of the executed release agreement and a check for $1,699, which Sturgis
cashed.
In September 2006 Sturgis sued AuthorHouse for breaching their publishing
contracts by not marketing the books properly and for defrauding him of the full amount of
the royalties he was owed. Both parties moved for summary judgment. AuthorHouse
argued that Sturgis’s claims were barred because, it contended, the release agreement
prohibited Sturgis from bringing claims related to AuthorHouse’s duties under the
publishing contracts. In support of its argument, AuthorHouse provided, among other
evidence, Sturgis’s settlement offer, the signed release agreement, and an affidavit from an
employee familiar with the negotiations. AuthorHouse also requested attorneys’ fees.
Sturgis argued that he was entitled to prevail on his fraud claim because AuthorHouse had
provided him with quarterly reports and tax forms (which Sturgis provided to the district
court) showing that he was entitled to more than $4,000 in royalties. He put forward no
evidence questioning the validity of the release agreement.
The district court granted summary judgment in favor of AuthorHouse and denied
Sturgis’s motion. The court reasoned, based on the uncontroverted evidence, that Sturgis
consented to the terms of the release agreement, did not seek to rescind it by returning the
No. 08‐2369 Page 3
$1,699 that AuthorHouse had paid him, and was thus bound by it. Because Sturgis’s claims
arose out of the parties’ contractual relationship, the court concluded, they were barred by
the release agreement. The court also agreed that the release agreement entitled
AuthorHouse to attorneys’ fees and awarded it $15,925.50 to cover its expenses in defending
Sturgis’s lawsuit. Sturgis moved to reconsider, arguing for the first time that AuthorHouse
was violating his copyrights. The court denied this motion because Sturgis did not point to
any error in its consideration of the record or application of the law.
On appeal Sturgis clarifies the arguments he made in the district court. He first
contends that his claims are not barred by the release agreement because, he says, he did not
sign it and AuthorHouse forged his signature. Sturgis, however, has not put forward any
evidence to support this argument. Once AuthorHouse submitted a motion for summary
judgment supported by facts in the record, Sturgis was required to put forward evidence
showing that there was a genuine issue of fact necessitating trial. See Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). This he did not do, choosing instead
to rely on bare allegations, which alone are insufficient to stave off summary judgment. See
id. The record shows that Sturgis first proposed the settlement terms that AuthorHouse
eventually accepted, Sturgis later faxed to AuthorHouse a copy of the release agreement
bearing his signature, AuthorHouse sent Sturgis a copy of the signed release agreement
along with a check for $1,699, and Sturgis cashed the check without objecting that the
signature was invalid. Based on this uncontroverted evidence, the court did not err in
determining that Sturgis intended to be bound by the release agreement. See Beaver v. Grand
Prix Karting Ass’n, 246 F.3d 905, 909 (7th Cir. 2001) (explaining that, under Indiana law,
“assent to the terms of a contract may be manifested by a party’s actions”); Herald Tel. v.
Fatouros, 431 N.E.2d 171, 174 (Ind. Ct. App. 1982) (same).
Sturgis next asserts generally that his claims for breach of contract and fraud fall
outside of the scope of the release agreement. But the publishing contracts entitled Sturgis
to receive marketing services and royalties, and thus the district court was correct to
conclude that Sturgis’s grievances “aris[e] out of or as a result of the” publishing contracts
and so are covered by the release.
A significant portion of Sturgis’s brief on appeal urges that the district court
erroneously rejected his contention, raised in his motion to reconsider, that AuthorHouse is
infringing his copyrights. But Sturgis’s complaint did not even hint at a copyright‐
infringement claim. The district court made no error because an argument raised for the
first time in a motion to reconsider comes much too late. See Mungo v. Taylor, 355 F.3d 969,
978 (7th Cir. 2004).
No. 08‐2369 Page 4
Sturgis also baldly insists that the district court should not have awarded attorneys’
fees to AuthorHouse, but he does not say how the court abused its discretion. See, e.g.,
Aaron v. Mahl, 550 F.3d 659, 667 (7th Cir. 2008). And the award here was justified. As the
district court explained, Sturgis violated the terms of the release agreement when he sued
AuthorHouse for failing to comply with the publishing contracts. The court acted within its
discretion in assessing fees incurred by AuthorHouse while enforcing the terms of the
agreement. See Rogers Group, Inc. v. Diamond Builders, LLC, 816 N.E.2d 415, 420 (Ind. Ct.
App. 2004) (explaining that Indiana courts will enforce contract terms providing for
payment of attorneys’ fees as long as terms are not contrary to law or public policy).
Finally, AuthorHouse seeks additional attorneys’ fees to cover its expenses in
defending this appeal. Like the fees incurred in the district court, AuthorHouse’s expenses
in defending the judgment were necessary to enforce the release agreement. Thus, under
the terms of the agreement, AuthorHouse is entitled to reasonable attorneys’ fees incurred
during this appeal. See Hastetter v. Fetter Props., LLC, 873 N.E.2d 679, 685 (Ind. Ct. App.
2007); see also Rickels v. City of South Bend, 33 F.3d 785, 787 (7th Cir. 1994) (awarding
attorneys’ fees under statutory fee‐shifting rule to party successfully defending district court
judgment). We note that the district court, in its order awarding attorneys’ fees to
AuthorHouse, invited AuthorHouse to file a supplemental petition to recoup expenses
incurred after May 7, 2008, when briefing on the first fee petition was complete.
AFFIRMED.