Wells Fargo Bank Minnesota, N.A. v. Diamond Point Plaza L.P.

DAVIS, J. Appellant/cross-appellee Wells Fargo Bank, N.A. (Wells Fargo), in its role as trustee for the registered holders of the commercial mortgage backed securities for a loan held by appellee/cross-appellant Diamond Point Plaza Limited Partnership, et al. (Diamond Point), brought suit in the Circuit Court for Baltimore County against Diamond Point alleging breach of contract based on loan default, fraud and misrepresentation and conversion of funds. Wells Fargo also sued appellees/cross-appellants Sam’s P.W., Inc. and Wal-Mart Stores, Inc. (Sam’s and Wal-Mart, respectively), for various breaches of a lease agreement between landlord (Diamond Point) and tenant (Sam’s). Upon considering cross-motions for summary judgment from the parties, the court denied Diamond Point’s motion but granted partial summary judgment in favor of Sam’s, concluding that it did not violate a radius restriction contained in the lease and partial summary judgment in favor of Wells Fargo, finding that Sam’s violated a retail use restriction.

After the remaining issues were presented at a bench trial, the court ruled in favor of Wells Fargo and entered judgment against Diamond Point and Sam’s, finding several breaches. The court also concluded that Wells Fargo did not satisfy its burden of proof to recover reasonable attorney’s fees. Wells Fargo presents the following three issues for our review: 1. Whether the Circuit Court erroneously concluded that the seven mile radius restriction in the Sam’s lease could not be violated in the absence of simultaneous operation of both the Diamond Point store and another store within the restricted area when the lease provided that, “Tenant agrees that it [and its Affiliates] shall not, during the term of this lease, own operate, manage or have any financial interest in, any store or business located within a radius of seven (7) miles from the ⁷⁹ Shopping Center and similar to that then being conducted upon the demised premises;” 2.

Whether the Circuit Court erroneously concluded that the default provisions of the Sam’s lease under Article 20 did not provide for recovery of attorneys’ fees by Wells Fargo against Sam’s and Wal-Mart; and 3. Whether the Circuit Court erroneously concluded that Wells Fargo was not entitled to recover attorneys’ fees or expenses from any of the [appellees/cross-appellants] under the contracts at issue because it failed to apportion its fees on a line-by-line basis as to every time entry on its bills. Sam’s and Wal-Mart responded by filing a cross-appeal, seeking our review of the following six questions: 1. Did the circuit court correctly conclude that the “radius restriction” in the subject lease was not violated absent the simultaneous operation of both the Diamond Point Plaza store and another store within the designated area? 2.

Did the circuit court erroneously conclude that Appellant proved that The Wire’s presence in the former Sam’s Club space at Diamond Point Plaza proximately caused $1,250,000 in damages to the property? 3. Did the circuit court erroneously award $56,000 damages for violation of the “radius restriction” arising from a Sam’s Club store located in Port Covington, Maryland!;?] 4. Did the circuit court erroneously conclude that WalMart is liable for breach of the subject lease to which it is not a party? 5. Did the circuit court correctly conclude that the default provisions of the subject lease do not permit Appellant to recover attorneys’ fees against Sam’s PW and WalMart in the instant case? 6.

Was any error in granting summary judgment on Appellant’s attorneys’ fee claim harmless inasmuch as Ap ⁸⁰ pellant failed to meet its burden of attributing reasonable and necessary fees to the claims against Sam’s PW and Wal-Mart? Diamond Point also filed a cross-appeal, presenting five questions for review: 1. Does carve-out liability for the full amount of the non-recourse loan at issue in this case exist for fraud, misrepresentation, or gross negligence when (a) the borrower disclosed information that forms the basis for the Circuit Court’s judgment for recourse liability; (b) there is no evidence that the loan would not have been made or that its terms would have been any different but for the alleged misrepresentations; and (c) there is no evidence that Wells Fargo was even aware of the alleged misstatements, much less that it suffered any damages as a result of them? 2. Did the borrower have the right under the loan documents to keep rents that it collected prior to its default and the lender’s assignee’s demand? 3.

Did the borrower commit “waste” by allegedly failing to maintain roofs it was given no notice or opportunity to repair, or by failing to commence litigation to prevent a tenant from violating a lease radius restriction when the violation lasted less than three months? 4. Did the Circuit Court otherwise err in awarding damages? 5. Did the Circuit Court properly deny Wells Fargo’s request for attorneys’ fees and expenses? FACTUAL AND PROCEDURAL BACKGROUND Diamond Point and its affiliates 1 own and operate Diamond Point Plaza (the Center), a retail shopping center located in ⁸¹ eastern Baltimore County, which consists of three buildings containing space available for leasing to commercial tenants.

Two of the largest tenants at the Center were Sam’s Club, which executed an Assignment and Assumption of Lease on January 5,1994, and Ames Department Store, which began its tenancy on April 13, 1989. In 2002, both stores closed or “went dark.” The Sam’s Club store closed on July 31, 2002 and, pursuant to its lease, continued to pay its base monthly rent. After filing for bankruptcy in August 2001 and announcing its decision to liquidate its “operations and to close all of the remaining Ames locations” in August 2002, the Ames store at the Center closed in late October of 2002. After Ames rejected the lease in bankruptcy court, it made no further rent payments.

In July of 1999, prior to the closing of the Sam’s and Ames stores, Diamond Point and its affiliates sought to refinance the commercial loan on the Center because the original loan was scheduled to mature in January of 2000. Diamond Point submitted a refinancing application to Pinnacle Capital Group (Pinnacle), which was approved in June of 2000 in the amount of $15,300,000. At the loan closing, the loan and loan documents were assigned to Paine Webber Real Estate Securities, Inc. (Paine Webber), “which provided the funding to close the [l]oan.” Wells Fargo became the assignee of the loan “by merger,” resulting in the assignment of the “[n]ote, [m]ortgage, and all [l]oan [documents” to Wells Fargo as of August 15,2000. As a result of Ames’ failure to pay rent to Diamond Point for November of 2002, Diamond Point failed to make its November 2002 loan payment to Wells Fargo.

Wells Fargo initially filed suit on March 7, 2003 against Diamond Point, alleging breach of contract based on the loan default, fraud and/or misrepresentation in obtaining the refinancing loan and conversion of funds due and owing to Wells Fargo. Wells Fargo then amended its complaint on September 15, 2003 to ⁸² add breach of retail use restriction and radius restriction claims against Sam’s and Wal-Mart. Subsequently, Wells Fargo filed a Third Amended Complaint on July 21, 2004, alleging the following in its complaint: Diamond [Point] and its affiliates, agents or employees breached the contracts within the Loan Documents in numerous ways including the following: a. By failing to disclose to Paine Webber and Wells Fargo what it and its affiliates knew prior to closing on the Loan with regard to Sam’s intention to vacate the Property, in violation of its duties____ b.

By falsely affirming that it knew of no tenant’s intention to vacate the Property when in fact it had specific knowledge of Sam’s intention to vacate the Property, in violation of ¶ 21 of the Certificate; c. By failing to disclose to Paine Webber and Wells Fargo attributes of the Property that could reasonably be expected to cause an institutional investor to regard the loan as an unacceptable investment and could affect the Loan’s value and marketability, ...; d. By failing to enforce the Lease provisions against Sam’s when Sam’s breached the Lease by owning, operating, managing or having a financial interest in any store or business within 7 miles of Diamond Point, ...; e. By failing to enforce the Lease against Sam’s and Wal-Mart when iVthey sublet the Property to a non-retail tenant without notifying Diamond and obtaining its consent f.

By committing waste upon the Property by not properly maintaining the roof and other structures, ...; g. By failing to maintain its status as a Single Purpose Entity, ...; and h. By wrongfully transferring, misappropriating or otherwise converting Rents after an Event of Default,____ ⁸³ These breaches constitute fraud, intentional misrepresentation, gross negligence, willful misconduct, waste, misapplication, conversion and a violation of the single purpose entity requirement and therefore entitle Wells Fargo to full recourse against Diamond [Point] for all sums due under the Loan Documents and for damages. 2 Regarding Wells Fargo’s allegations of fraudulent conveyance, it contended: It is believed and therefore averred that the $633,000 conveyance by Diamond [Point] to Michael Konover and/or to MCK after Diamond’s default on its payment obligations to Wells Fargo was made when Diamond [Point] was legally insolvent or when such payment rendered Diamond [Point] insolvent, was made by Diamond [Point] without fair consideration, was made by Diamond [Point] with the knowledge of its insolvency and intent or belief that it would cause Diamond [Point] to incur or continue to incur debts beyond its ability to pay as they matured, and was made by Diamond [Point] with the intent to hinder, delay and de ⁸⁴ fraud its largest creditor, Wells Fargo, all in violation of the Maryland Uniform Fraudulent Conveyance Act ... and in violation of the Loan Documents. Michael Konover and/or MCK knew of Diamond [PointJ’s insolvency and accepted the conveyance with the intention of further depleting Diamond [Point]’s assets to deprive Wells Fargo of the Rents to which it was rightfully owed.

That $633,000 transfer was fraudulent as to Wells Fargo and Wells Fargo has been damaged as a result. Wells Fargo’s claims against Sam’s and Wal-Mart included the following: Wells Fargo’s absolute assignment of all rights, titles and interests in the Lease and of all causes of action related to the Property entitles it to enforce those rights against all lessees at Diamond Point Plaza, including Sam’s PW. Sam’s PW has breached the Lease in the following ways: a. By assigning or allowing an assumption of the Lease to Sam’s East and/or Wal-Mart, without notice to Diamond [Point]____; b.

By owning, operating, managing or having a financial interest in other stores within a 7 mile radius of Diamond Point Plaza, ...; c. By permitting related entities, including Sam’s East and Wal-Mart, to own, operate, manage and/or have a financial interest in other stores within a 7 mile radius, ...; d. By allowing Wal-Mart to sublet the demised premises to The Wire without providing notice to Diamond [Point] ...; and c. [sic] By allowing the demised premises to be used for a non-retail purpose.... Although not a party to the Lease, Wal-Mart has assumed all of the liabilities under the Lease by virtue of its de facto assumption of the rights and liabilities under the Lease.

As a result of that assumption, Wal-Mart is bound by the terms of the Lease to the same extent as Sam’s PW. ⁸⁵ Alternatively, Sam’s made a constructive and non-gratuitous assignment of the Lease to Wal-Mart, insofar as WalMart agreed to be liable for Sam’s contractual obligations under the Lease and Sam’s assigned all of its rights under the lease to Wal-Mart. As a result of that assignment, Wal-Mart is bound by the terms of the lease to the same extent as Sam’s. Wal-Mart entered into the Wire License in October 2002. The Wire License had an original term of one year.

WalMart, not Sam’s, has extended the Wire License at least two times. Under the Wire License, Wal-Mart has the contractual right to receive payments from The Wire Productions, Inc. for its use and enjoyment of the leasehold premises. Wal-Mart has received payments from The Wire Production, Inc. for its use and enjoyment of the leasehold premises. Wal-Mart also has made payment to Wells Fargo under the Lease.

Therefore, Wal-Mart has assumed all rights and liabilities under the Lease and is jointly and severally liable with Sam’s PW for the breach of the Lease. In any event, Wal-Mart was bound by the radius restriction when Sam’s PW assumed the obligations under the Lease and agreed under ¶ 4(H) that neither it nor its affiliates would own, operate, manage or have a financial interest in a store within a 7 mile radius of Diamond Point. Sam’s PW was expressly, impliedly and apparently authorized, by and through its common officers and employees, to contract and bind its affiliates, including Wal-Mart. Wal-Mart furthermore expressly authorized, directed and actively joined with Sam’s PW and Sam’s East in committing the violations and breaches set forth herein.

Wal-Mart is equally liable to Wells Fargo for those breaches. Those breaches and violations include, but are not limited to the following: a. Improperly assuming and/or accepting an assignment of the Lease without notice to Diamond [Point] as required by ¶¶ 17(B) and 38(C); ⁸⁶ b. Improperly entering into The Wire License for a portion of Sam’s leasehold space, without notice to Diamond [Point]____ c.

Subletting the premises to The Wire for a use other than retail ...; and d. Owning, operating, managing or having a financial interest in another store within a 7 mile radius of Diamond Point Plaza____ After considering the parties’ cross-motions for summary judgment and hearing argument, in an Order filed January 10, 2005, the court issued the following ruling from the bench: 1. [Wells Fargo]’s Amended Motion for Partial Summary Judgment is granted in part and denied in part; 2. The Amended Motion for Summary Judgment filed by the Konover entities [Diamond Point] is denied; 3. The Cross Motion for Summary Judgment of the Wal-Mart entities [Sam’s P.W., Inc. and Wal-Mart, Inc.] is granted in part and denied in part.

The Court finds the language of the lease at issue concerning the radius restriction to be unambiguous. As such, tenant Sam’s agreed that it would not: ... During the term of this lease, own, operate, manage or have any financial interest in, any store or business located within a radius of seven (7) miles from the Shopping Center and similar to that then being conducted upon the demised premises. Sam’s closed its store on one day; and as a result, no store business was being conducted upon the demised premises the next day.

On that next day, Sam’s opened its store at Golden Ring Mall. [Wells Fargo] argues that Sam’s violated the radius restriction slightly more than two years prior to the opening of the location at Golden Ring Mall when Sam’s first acquired a “financial interest” in Golden Ring Mall by entering into a letter of intent for a ground lease at that location. ⁸⁷ The Wal-Mart entities argue that there was no violation of the radius restriction as the lease permitted Sam’s to close at any time, and by closing, the radius restriction was no longer applicable. The fact that Sam’s had employees and inventory at the Golden Ring Mall location prior to the Diamond Point location going dark does not violate the radius restriction. Furthermore, if Sam’s employees and inventory at the Diamond Point location once it had gone dark and the Golden Ring Mall location had opened, that too did not violate the radius restriction. For the radius restriction to have been violated, the Sam’s at both the Diamond Point location and the Golden Ring Mall location would have had to be open at the same time.

The language of the radius restriction is unambiguous in that it requires both stores to be operating simultaneously. Therefore, unless the doors of both locations were open for business and customers were being served simultaneously, then and only then would the radius restriction have been violated. Similarly, the language concerning use of the demised premises is also unambiguous. So long as the tenant is open for business, “the demised premises shall only be used for lawful retail and shopping center purposes ... ”.

The sublease to The Wire violated this use provision in the lease despite the Wal-Mart Entities’ argument that the restriction applies only to the tenant’s own operations of the premises. The case proceeded to trial on April 4, 2005. After reviewing the parties’ submitted Proposed Findings of Facts and Conclusions of Law, the court issued its Findings of Fact and Conclusions of Law on August 15, 2005. The court’s findings were amended in an Order dated August 24, 2005, in which the court ruled that the language in Sam’s rental lease “[did] not entitle Wells Fargo to attorneys’ fees in this case,” and that Sam’s and Wal-Mart were jointly and severally liable for $1,250,000.00 and $56,260.86 in damages as a result of violating the retail use and radius restrictions contained in its lease. ⁸⁸ The court also reiterated its conclusion that Wells Fargo was not “entitled to its reasonable and necessary attorneys’ fees in enforcing the Loan Documents.” At the conclusion of the two-day hearing regarding Wells Fargo’s request for attorney’s fees, the court denied its request, reasoning: ...

I’m just not persuaded, so it is my intention to vacate that part of the partial judgment which says that [Wells Fargo] is entitled to attorney fees from Wal-Mart and Sams and to revise the finding of fact and conclusions in those respects as well. All right. In addition, even if I weren’t making that finding, and I guess that is an alternative finding, I don’t think that [Wells Fargo] has met its burden of proof by the preponderance of the evidence regarding the fees that it seeks from Wal-Mart and Sams or from the Konover [and Diamond Point] Defendants. [Wells Fargo has] to meet [its] burden of proof by a preponderance of the evidence that the fees are necessary and reasonable. I’ve considered the factors in Rule 1.5, the Court’s own two decades of experience in commercial litigation such as this case, experience in presiding over other trials in which attorney fees are at issue, and the record in this ease.

Um, there is no question that [Wells Fargo] attorneys have significant experience and solid reputation in commercial litigation. And the many papers filed in the case, the oral arguments at the hearings and presentation at trial and performance at trial demonstrate their excellent skills, and that is true of each of the four attorneys representing [Wells Fargo] that appeared in this Court. I don’t dispute that this litigation has been complex compared to most of the other cases tried in this Court. I think that the hourly rates charged by [Wells Fargo’s] lawyers reflect that high level of skill that was required and necessary to present [Wells Fargo’s] claims.... ⁸⁹ The hourly rates charged by each of [Wells Fargo’s] attorneys and their paralegals I would find are reasonable and consistent with or below the market in this region.

And I do appreciate the' efficiency of the manner in which [Wells Fargo’s] request for fees have been presented. I don’t think any other method would have been as inexpensive for clients and the Defendants from whom the fees are sought, and no other method suggested at this hearing would have been as efficient in terms of the Court’s time and resources. I think that the so-called Adelberg discount of 15 percent was an appropriate measure of the duplicating incurred by substituting the Proctor law firm for the Adelberg law firm. But I don’t believe it is possible that fees are reasonable and necessary without undertaking a line-by-line analysis of each legal bill.

Most reluctantly, I don’t believe that is possible. I also don’t believe it is possible to find that fees are reasonable and necessary where the description of services has been redacted. Perhaps it was good trial strategy to have more than one attorney see certain witnesses testify at deposition, and that may have been good trial preparation, but I don’t think that I could find it was necessary to have more than one lawyer at any of the depositions, particularly depositions being defended. Nor do I think it would be fair to recover fees for more than one lawyer at deposition and at many of the hearings that were held in this case.

From the Konover [and Diamond Point] defendants in this case Mr. Clark has appeared for most part alone at hearings, although at trial he did have other counsel, one other attorney appeared with him, and he was alone at the deposition. I also don’t think it would be fair and to recover fees for paralegals at the trial or at depositions. ⁹⁰ Further, I wouldn’t find it reasonable or fair to collect from the debtor, under the circumstances of the case, secretarial overtime or charges for faxes or for meals of the lawyers or others involved in this case. Although the defendants have only pointed out some examples of fees which it would not be reasonable or fair, which clearly were not necessary, such as the expense for travel to South Carolina or Mr. Joyce’s travel to Minnesota, which was not really explained. The inclusion of those time entries highlights the problems with [Wells Fargo] not undertaking a line-by-line analysis.

Without having the case presented that way, although I have looked at many, many pages of these legal bills and looked at a number of individual entries, it is impossible for the Court to determine from looking at them that way whether or not the apportionment would be fair between the time and resources expended for claims against Wal-Mart and Sams as opposed to the claims against the Konover or Diamond Point defendants. I think that’s it. The court filed its Amended Final Judgment Order on December 5, 2005: 1. Judgment in favor of [appellant], Wells Fargo Bank, N.A., as Trustee, is hereby entered against [appellees/crossappellants], Diamond Point Plaza Limited Partnership, Oriole Commercial Associates Limited Partnership and Diamond Point Management Corporation for breach of ¶ 55(A) and (B) of the Mortgage for intentional misrepresentation and gross negligence and against ...

Konover Management Corporation, now known as Peerless Corp., for breach of the Guaranty of Recourse Obligations, under Counts 1, 2, 3 and 4 of the Third Amended Complaint, in the amount of $22,862,399.66 ... (representing the total note indebtedness owing as of April 4, 2005) together with pre-judgment interest thereon at the rate of $5,799.51 per day from April 5, 2005, of $811,931.40, and post-judgment interest from the ⁹¹ date of entry of Final Judgment until finally paid. This judgment is entered jointly and severally---- 2. Judgment in favor of [appellant], Wells Fargo Bank, N.A., as Trustee, is hereby entered against [appellees/crossappellants], Sam’s P.W., Inc. and Wal-Mart Stores, Inc., for breach of the 7 mile radius restriction of the Lease in the opening of the Port Covington Sam’s store, under Counts 7 and 10 of the Third Amended Complaint, in the amount of $56,260 ... and post-judgment interest from the date of entry to Final Judgment until finally paid.

This judgment is entered jointly and severally.... 3. Judgment in favor of [appellant], Wells Fargo Bank, N.A., as Trustee, is hereby entered, jointly and severally, against [appellees/cross-appellants], Sam’s P.W., Inc. and Wal-Mart Stores, Inc., under Counts 7 and 10 of the Third Amended Complaint, in the amount of $1,250,000 ... for breach of the retail use restriction of the Lease, and post-judgment interest from the date of the entry to Final Judgment until finally paid. 4. Judgment in favor of [appellant], Wells Fargo Bank, N.A., as Trustee, is hereby entered against [appellees/crossappellants], Diamond Point Plaza Limited Partnership, Oriole Commercial Associates Limited Partnership and Diamond Point Management Corporation for breach of ¶ 55(F)(misapplication of rents) and ¶ 55(I)(single purpose entity) of the Mortgage and against ... Konover Management Corporation now known as Peerless Corp., for breach of the Guaranty of Recourse Obligations, under Counts 1, 2, 3 and 4 of the Third Amended Complaint, in the amount of $633,000 ... together with pre-judgment interest thereon from November 22, 2002, of $104,466.20, and post-judgment interest from the date of entry of Final Judgment until finally paid.

This judgment is entered jointly and severally.... 5. Judgment in favor of [appellant], Wells Fargo Bank, N.A., as Trustee, is hereby entered against ... Michael C. Konover, for fraudulent transfer, under Count 6 of the Third Amended Complaint, in the amount of $633,000 ... ⁹² together with pre-judgment interest from November 22, 2002, of $104,466.20, and post-judgment interest from the date of entry of Final Judgment until finally paid. 6. Judgment in favor of [appellant] Wells Fargo Bank, N.A., as Trustee, is hereby entered against ...

American Way Commercial Associates Limited Partnership, for fraudulent transfer, under Count 6 of the Third Amended Complaint, in the amount of $243,500 ... together with prejudgment interest thereon from November 22, 2002, of $40,190.12, and post-judgment interest from the date of entry of Final Judgment until finally paid. This judgment is entered jointly and severally with the judgment entered in paragraph 5 hereof. 7. It is further ORDERED that the judgment awarded in paragraph 1 hereof shall be credited with the proceeds of any Trustee’s foreclosure sale which may be conducted with respect to the Diamond Point Plaza property securing the Diamond Point Plaza Limited Partnership indebtedness made the subject of this action. 9. It is further ORDERED that for the reasons stated on the record on August 24, 2005, [appellant] [Wells Fargo] is not entitled to recover reasonable and necessary attorneys’ fees incurred in connection with pursuing its claims for judgment against [appellees/cross-appellants], Sam’s P.W., Inc., and Wal-Mart Stores, Inc. pursuant to the Lease. 10.

It is further ORDERED that for the reasons stated on the record on August 24, 2005, [appellant][Wells Fargo], has not met its burden of proof for its claims to recover reasonable and necessary attorneys’ fees incurred in connection with pursuing its claims for judgments against ... Diamond Point Plaza Limited Partnership, Konover Management Corporation now known as Peerless Corp., Oriole Commercial Associates Limited Partnership, and Diamond Point Management Corporation pursuant to the Diamond Point Plaza Limited Partnership Promissory Note and re ⁹³ lated loan documents, and alternatively to No. 9 above, against ... Sam’s P.W., Inc. and Wal-Mart Stores, Inc. 11. As requested, the Court will reserve judgment on [Wells Fargo’s] legal fees and expenses incurred in the (inevitable) appeals.

The court denied Wells Fargo’s Motion to Alter or Amend the judgment denying the award of attorney’s fees. Each party filed notices of appeal and amended notices of appeal after each judgment and amended judgment entered by the court. Wells Fargo seeks review of the court’s partial summary judgment order concerning the Sam’s radius restriction and the court’s judgment rejecting Wells Fargo’s claim for counsel fees and expenses. Sam’s and Wal-Mart are challenging the court’s damages award against them relating to the retail use and radius restriction violations.

In Diamond Point’s cross-appeal, it contends that all judgments against it should be reversed. LEGAL ANALYSIS I Wells Fargo’s Appeal Wells Fargo asserts that the court erroneously granted Sam’s motion for summary judgment because Sam’s violated the radius restriction contained in its lease when it opened another location at Golden Ring Mall, which was located within seven miles from the Diamond Point store after the Diamond Point location went dark. In its brief, Wells Fargo argues that the plain and unambiguous meaning of this provision of the lease is that the Sam’s/Wal-Mart defendants cannot own, operate or have a financial interest in any other stores within 7 miles of the Diamond Point store at any time during the term of the lease. To interpret the lease any other way renders the language of the radius restriction surplusage and utterly defeats the purpose of the radius restriction. ⁹⁴ Radius Restriction In accordance with Maryland Rule 2-501 (a) Any party may make a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.

The motion shall be supported by affidavit if it is (1) filed before the day on which the adverse party’s initial pleading or motion is filed or (2) based on facts not contained in the record. Pursuant to Maryland Rule 2-501 (f), a trial court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. An appellate court’s review of the trial court’s grant of summary judgment involves the determination of whether a dispute of material fact exists and whether the trial court was legally correct. Redland Genstar, Inc. v. Mahase, 155 Md. App. 72, 77 , 841 A.2d 413 (2004).

Upon review of an order granting a motion for summary judgment, appellate courts “must determine whether the trial court was legally correct” because the trial court decided an issue of law, not fact. Maryland Cas. Co., et al. v. Lorkovic, 100 Md.App. 333, 354 , 641 A.2d 924 (1994)(citing Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993)). Accord, B.G.E. v. Lane, 338 Md. 34, 43 , 656 A.2d 307 (1995)(overruled on other grounds).

We review the same material from the record and decide the same legal issues as the trial court. Winmark Ltd. P’ship. v. Miles & Stockbridge, 109 Md.App. 149 , 674 A.2d 73 (1996)(judgment vacated on other grounds). Because we decide the same issues of law as the trial court and have the same information from the record, our review of a trial court’s grant of summary judgment is de novo. ABC Imaging of Wash. v. Travelers Indem.

Co. of Am., 150 Md.App. 390, 397 , 820 A.2d 628 (2003). As a threshold issue, we must first decide whether a genuine dispute of material fact exists, de la ⁹⁵ Puente, et al. v. County Comm’rs of Frederick County, 386 Md. 505, 510 , 873 A.2d 366 (2005). Only if such a dispute is absent will we proceed to review determinations of law and examine the facts reflected in the pleadings, depositions, answers to interrogatories and affidavits that were properly brought before the court and any reasonable inferences that may be drawn from them construed in the light most favorable to the non-moving parties. Id.

(citations omitted). See also Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533 , 836 A.2d 655 (2003); Remsburg v. Montgomery, 376 Md. 568, 579-80 , 831 A.2d 18 (2003). “Mere speculation as to the possible existence of a factual dispute will not defeat a motion for summary judgment.” A.J. Decoster Co. et al. v. Westinghouse Elec. Corp., 333 Md. 245, 262 , 634 A.2d 1330 (1994) (citation omitted). In contradistinction to the duty of the party moving for summary judgment to carry his burden, the party in opposition “ ‘must do more than simply show there is some metaphysical doubt as to the material facts.’ ” Id.

(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986)). In the case at hand, the parties filed cross motions for summary judgment.

The lease provisions at issue, which pertain to the radius restriction, are listed under the Annual Rent subheading on the lease and provide as follows: 4. (G) Subject to the other provisions of this lease, Tenant shall have the right to determine how any store on the demised premises is to be operated, and to discontinue the operation of any such store, and to operate stores in other locations which are in competition with any such store. Subject to the other provisions of this lease (i) Tenant reserves the right to operate its business whether on the demised premises, or elsewhere, as it sees fit, and (ii) Landlord shall have no express or implied right to interfere in the operation of Tenant’s business, or complain about or hold Tenant liable for the manner in which Tenant’s busi ⁹⁶ ness is conducted. Nothing contained in this Article 4 shall be deemed to express or imply any obligation on the part of Tenant to operate the demised premises in such a manner as to achieve Gross Sales sufficient to generate Percentage Rent.

(H) Tenant agrees that it shall not, during the term of this lease, own, operate, manage or have any financial interest in, any store or business located within a radius of seven (7) miles from the Shopping Center and similar to that then being conducted upon the demised premises. It shall also be a default hereunder if any “Affiliate” (hereinafter defined) or any partner, officer, director or stockholder of Tenant shall, during the term of this lease, own, operate, manage or have any financial interest in, any store or business located within the aforementioned radius and similar to that then being conducted upon the demised premises.... “Affiliate” means any person, firm or corporation which controls or is controlled by the party in question, or is controlled by the same person(s) or firm(s) or corporation(s) as control the party in question. The term “control” with respect to a corporation means the ownership of, and the right to exercise, more than fifty percent (50%) of the total combined voting power of all classes of the capital stock of the controlled corporation issued, outstanding and entitled to vote for the election of directors, whether such ownership be direct or indirect through control of another corporation^) or firm(s)____ (Emphasis added.) Wells Fargo asserts that the court erroneously granted Sam’s motion for summary judgment because Sam’s violated the radius restriction contained in its lease when it opened another location at Golden Ring Mall, which was located within seven miles from the Diamond Point store after the Diamond Point location went dark. Wells Fargo’s interpretation of the lease restriction in provision (H) is that “the phrase ‘then being conducted on the demised premises’ unambiguously refers to the earlier phrase ⁹⁷ in the radius restriction clause, ‘during the term of this lease.’ ” Wells Fargo contends that “[t]he language ‘then being conducted on the demised premises’ does not refer to specific moment in time,” and interprets the circuit court’s decision as concluding precisely that.

Wells Fargo maintains rather that the language refers to a “continuum in time” versus a specific moment, “that being the time during which the lease is in effect, i.e., the term of the lease.” In Wells Fargo’s view, such an interpretation limits Diamond Point from circumventing the radius restriction by simply closing one store and opening another “down the street.” The provision prohibits not only simultaneous operations, but all operations within the restricted area. Thus, the circuit court’s interpretation in Wells Fargo’s view renders the clause illusory and gives it a meaning not possibly intended by the parties. In its reply brief, Well’s Fargo dismisses the interpretation of the clause to mean no “competing” stores can be in the seven mile radius as Sam’s having done “what it declares to be forbidden by the rules of contract construction.” In support, Wells Fargo cites paragraph 4(G) supra and highlights language stating “tenant shall have the right ... to operate stores in other locations which are in competition with any such store.” The lease does not contain the word compete or competing. Wells Fargo further states that Sam’s interpretation renders the phrase “during the term of this lease” meaningless and nonsensical because Sam’s assigns the same meaning to it and the phrase “then being conducted.” When the term of the lease expires, there is “no business being conducted” that could be similar to any business in the restricted area.

Wells Fargo asserts that the phrase “during the term of the lease” must be read to modify “then being conducted upon the demised premises.” Thus, the word “then” modifies the phrase “the term of the lease.” Counsel for Wells Fargo, at oral argument posited that there are three possible outcomes. One is summary judgment for Wells Fargo; two is affirming the trial court’s decision; ⁹⁸ and three is for the Court to find ambiguity and remand for further proceedings. The pivotal point of contention is the word “then.” It is the position of Wells Fargo that “then” refers to “at any time during the term of the lease, ” and not to a specific moment in time as the trial court “seemingly concluded.” The time period referred to by “then being conducted on the demised premises,” according to Wells Fargo, is unambiguous. It refers to a continuum of time which is the time “during which the lease is in effect”, i.e. “the term of the lease.” Sam’s agrees with Wells Fargo and the court, that the language of the lease is clear and unambiguous.

Sam’s posits that the “provisions at issue should be interpreted as a matter of law.” The lease was negotiated fifteen years prior and, thus, according to Sam’s at oral argument, there is no parol evidence that could shed light on the intent of the parties. If the Court remands the case for further proceedings, according to Sam’s, there are no witnesses or evidence. Thus, an objective interpretation of the four corners of the document is the only way to interpret the language and Sam’s position. Sam’s contends that Wells Fargo “misinterprets the radius restriction by reading express language out of the lease and out of context.” Sam’s interprets Wells Fargo’s construction as ignoring the language “then being conducted on the premises.” Sam’s focuses on the provision stating that the tenant shall not operate “any store or business located within a radius of seven (7) miles from the Shopping Center and similar to that then being conducted upon the premises.” (Emphasis in brief.) Sam’s contends that the restriction has two parts that must be considered: “(1) that the allegedly offending store is within seven miles of the demised premises; and (2) it must conduct a business similar to that then being conducted on the demised premises.” Thus, according to Sam’s, “[i]f there is no business then being conducted on the demised premises, then another store within seven miles would not violate the second requirement of the restriction.” Sam’s concludes that, given its interpretation, Wells Fargo ⁹⁹ would render the second requirement “superfluous” because a tenant would be in breach of a twenty-year lease if it opened another store within seven miles regardless of whether there was any business was being conducted on the demised premises.

The circuit court’s interpretation of the restriction did not, in Sam’s view, ignore the rules of contract construction because it simply read the plain language in the lease “harmoniously” such that the words created a requirement that two “competing” stores be operating simultaneously. According to Sam’s, that is a plain reading of the language in the lease. Sam’s next contention is that Wells Fargo’s interpretation requires the court to ignore the fact that the language is “part of the Annual Rent provisions regarding percentage rent.” Thus, read in context, Sam’s contends that the restriction is to protect the opportunity for rental percentage collection while the “Diamond Point store is open and operating.” Another store opened in the radius would affect rental payments because it would necessarily detract from business and undermine the annual sales. Sam’s concludes that, once the Diamond Point Store closed, the point became moot because there was no competing enterprise within the radius.

Sam’s also posits that this argument renders Wells Fargo’s concern regarding circumvention of the clause and its being illusory and without merit because, “[s]o long as the store is operating, the clause remains in effect.” Sam’s cites the Court of Appeals for the proposition that the closing of the store was a “defined event in the future” that rendered the contractual clause here moot. Ledingham v. Bayless, 218 Md. 108, 116 , 145 A.2d 434 (1958); Tyler v. Capitol Indem. Ins. Co., 206 Md. 129, 137 , 110 A.2d 528 (1955).

Finally, Sam’s disregards Well Fargo’s assertion that the court ignored the phrase “during the term of this lease” because, as defined, it means the original term of the lease so long as the lease remains in effect. “Concomitantly, the phrase [ ] means only that the radius restriction cannot extend beyond the initial term of the lease” or its termination. ¹⁰⁰ It is well-settled that in regard to contract construction principles, Contracts are interpreted “as a whole to determine the parties’ intentions.” Ordinarily, the terms of a contract are construed consistent with their usual meaning, unless it is apparent that the parties ascribed a special or technical meaning to them. In ascertaining the parties’ intent, Maryland follows the objective law of contract interpretation. Thus, the court is required to “give effect to [the contract’s] plain meaning,” without regard to what the parties to the contract thought it meant or intended it to mean. Generally, “ ‘it must be presumed that the parties meant what they expressed.’ ” Therefore, the “ ‘true test of what is meant is ... what a reasonable person in.the position of the parties would have thought’ the contract meant.” “ ‘If only one reasonable meaning can be ascribed to the [contract] when viewed in context, that meaning necessarily reflects the parties’ intent.’ ” In addition, “the parties to an agreement are deemed to have contracted with knowledge of existing law....” When a contract is clear and unambiguous, “ ‘its construction is for the court to determine.’ ” Whether a contract is ambiguous is a question of law, which is subject to de novo review by an appellate court.

Contractual language is considered ambiguous when the words in it are susceptible of more than one meaning to a reasonably prudent person. A contract is not ambiguous, however, merely because the parties to it do not agree as to its meaning. Young v. Anne Arundel County, 146 Md.App. 526, 585-87 , 807 A.2d 651 , cert. denied, 372 Md. 432 , 813 A.2d 259 (2002)(internal and external citations omitted). See also Nat’l Union Fire Ins.

Co. of Pittsburgh v. David A Bramble, Inc., 388 Md. 195 , 879 A.2d 101 (2005)(applying contract interpretation principles to surety bonds). We have considered the constructions offered by both parties and, finding both interpretations to be reasonable, we ¹⁰¹ shall refer the matter to the circuit court to consider any extrinsic matters which will provide context for a proper determination of what the parties intended. The court granted judgment to Sam’s and Wal-Mart as a matter of law finding that the restriction language listed in subsection (H) was unambiguous. The trial judge construed the language creating the restriction to mean that, “unless the doors of both [Diamond Point and Golden Ring Mall] locations were open for business and customers were being served simultaneously, then and only then would the radius restriction have been violated.” Contrary to the construction accorded by the court, as we see it, the lease is ambiguous and Sam’s was not entitled to summary judgment because there remain genuine disputes as to material facts in regard to whether the opening or closing of a store constituted a violation of the restriction.

A lease contract, like any other contract, “is measured by its terms unless a statute, a regulation, or a public policy is violated thereby.” Pacific Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388 , 488 A.2d 486 (1985) (citations omitted). The instrument is construed as a whole to determine the intention of the parties, which is the entire reason for the analysis.

Id. (and citations within). The trial court should examine the “character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution.” Id. (and citations within).

Words are accorded their ordinary and accepted meanings as a reasonable prudent layperson would attach to them. Id. The Pacific Indemnity Court cited illustrations of both ambiguous and unambiguous contract terms. Id. at 389 , 488 A.2d 486 .

Ambiguous terms included the meaning of “occurrence,” and the meaning of “collapse.” Id. at 389-90 , 488 A.2d 486 . Unambiguous terms included the meaning of “loan” and the meaning of “loss by infidelity of an ... employee.” Id. at 390 , 488 A.2d 486 . The inquiry is initially confined to an analysis of the language used and, if unambiguous, courts may construe contracts as a matter of law. Id. at 389 , 488 A.2d ¹⁰² 486.

If the language is ambiguous, then the court may consult extrinsic evidence to determine the parties’ intentions. Id. If in its weighing of extrinsic evidence, the court finds disputed factual issues, the construction of the contract is for the fact finder. Id.

Even if there are no disputed facts, the court may construe an ambiguous contract. Id. That the Diamond Point Sam’s store went dark and did not serve customers, while the Golden Ring store, located within seven miles, remained open for business are facts that are material, we believe, relative to whether there was a breach. The court found that, under the lease, the two locations would have to be fully operational to invoke the radius restriction.

It was also established that Sam’s is an active tenant at both locations. The lease gave Sam’s the right to “determine how any store on the demised premises is to be operated, and to discontinue the operation of any such store,” but that right, and the fact that Sam’s took advantage of that right, is not inconsistent with the conclusion, by a rational fact-finder, that Sam’s maintenance of a presence at both locations, under the lease, constituted a violation of the radius restriction which provides that Sam’s should not “own, operate, manage or have any financial interest” in any store within a seven mile radius “similar to that then being conducted upon the demised premises.” In other words, a dispute existed as to the material fact as to whether maintenance of a presence at both locations constituted ownership, etc. in any store similar to that being conducted. Wells Fargo, in our view, presented sufficient facts to demonstrate ambiguity as to whether a breach only occurred if there were competing businesses at the two locations. Operating or managing competing stores would not prevent the ownership or financial interest in those stores.

Sam’s cross-motion for summary judgment, therefore, should have been denied and the issue submitted to the trier of fact for determination. We are thus constrained to reverse the court’s entry of summary judgment on the radius restriction issue and remand the case for proceedings to allow extrinsic evidence as to the meaning of “then” and resolve the ambiguity- ¹⁰³ b. Attorney’s Fees Under the Sam’s Lease Upon considering a request for attorney’s fees, Maryland courts adhere to the “American Rule,” which states that “attorney’s fees are ordinarily not recoverable by a prevailing party in a lawsuit ... ‘[t]he general rule is that costs and expenses of litigation, other than the usual and ordinary Court costs, are not recoverable in an action for [compensatory] damages.’ ” Hess Constr. Co. v. Bd. of Educ. of Prince George’s County, 341 Md. 155, 159 , 669 A.2d 1352 (1996) (citations omitted; alterations in original).

We have previously noted that “[t]his is true whether the action seeking fees sounds in contract or tort.” Chang v. Brethren Mut. Ins. Co., 168 Md.App. 534, 552 , 897 A.2d 854 (2006). In some instances, “a trial court may award attorneys’ fees only in the unusual situation where the trial court is authorized to award the prevailing litigant reasonable attorneys’ fees or where, as more common, a contract between the parties specifically authorizes attorneys’ fees.” Maxima Corp. v. 6933 Arlington Development Ltd. P’ship, 100 Md.App. 441, 452 , 641 A.2d 977 (1994) (citation omitted).

See Chang, 168 Md.App. at 552 , 897 A.2d 854 (explaining “[a]n exception to that general rule is when an action is brought to enforce an insurer’s obligations under third party liability provisions in a policy, and it is determined that there is coverage.”) (citation omitted). Notably, “the question of attorneys’ fees is a factual matter which lies within the ‘sound discretion of the trial judge and will not be overturned unless clearly erroneous.’ ” Maxima Corp., 100 Md.App. at 452 , 641 A.2d 977 (citations omitted). Wells Fargo argues that the court erroneously denied its request for attorney’s fees in its litigation against Sam’s for lease violations despite the provision in the lease that Sam’s was to be responsible for such fees in case of default. The default provisions of the lease provide, in pertinent part: 20.

(A) If (i) Tenant shall default in the payment of any rent or sum of money payable by Tenant to Landlord and if Tenant shall fail to cure said default within ten (10) days after receipt of notice of such default from Landlord, or (ii) ¹⁰⁴ Tenant shall default in the performance or observance of any other agreement or condition on its part to be performed or observed and if Tenant shall fail to cure such default ...; Landlord in addition to all other remedies given to Landlord in law or in equity may terminate this lease, or without terminating this lease, terminate Tenant’s right of possession, and in either event Landlord may reenter the demised premised by lawful proceedings and dispossess the Tenant. (B) Tenant agrees to be liable for all rent and other charges and sums due under this lease for the entire term, which liability shall survive the termination of this lease, the re-entry into the demised premises by Landlord, and the commencement of any action to secure possession of the demised premises. Landlord shall have the right to maintain successive actions against Tenant for recovery of all damages including, without limitation, said lost rental and other charges and sums, and any expenses incurred by Landlord in connection with obtaining possession of the demised premises and in connection with any reletting, including, without limitation, reasonable attorneys’ fees and brokers’ fees,.... Notwithstanding anything contained herein to the contrary, Landlord shall have all other rights and remedies available to it at law and in equity. * * * (D) All remedies available to Landlord are declared to be cumulative and concurrent, and may be exercised at one time or at different times.

In all events, Tenant shall be liable for all reasonable attorneys’ fees Landlord incurs in exercising its remedies under this Article 20, whether or not litigation is instituted. (Emphasis added.) The court, although having initially denied Sam’s motion for summary judgment on this issue, later vacated that judgment and adopted Sam’s argument that attorney’s fees are generally not awarded. More specifically, it concluded that, when ¹⁰⁵ subsections (B) and (D) of the lease were read together, Wells Fargo could only receive attorney’s fees when it attempted to “obtain possession of the demised premises” after default. Because Wells Fargo did not seek to re-enter the premises at the Diamond Point Sam’s store, these provisions are inapplicable.

We disagree. The reasonable attorney’s fees referenced in subsection (B) discuss Sam’s liability for such fees after default and the right of the landlord, or Wells Fargo to be substituted in the position of the landlord and to seek counsel fees “in connection with obtaining possession of the demised premises and in connection with any reletting.” The general rule that bars attorney’s fees can be altered with the specific language contained in the lease. It is apparent that Wells Fargo intended to expressly provide for the collection of attorney’s fees. The statement within the lease noting that the tenant would be liable for all reasonable attorney’s fees comports with the well-settled rule that, under the American Rule, attorney’s fees and expenses cannot be recovered by the prevailing party in an action, unless the specific contract provisions such as the lease in the case at bar, permit such recovery.

As a result, we are satisfied that the court erred in ruling that Sam’s was not liable for attorney’s fees. Wells Fargo directs the Court to section 20(D) of the lease for the proposition that Sam’s is liable for all reasonable attorneys’ fees that Wells Fargo incurs in exercising its remedies under the default section of the lease. We agree. Contrary to Sam’s assertion, section 20(D) does not subsume 20(A).

It is a remedy for Wells Fargo under the Default provision of the lease. c. Attorney’s Fees from Sam’s/WalMart and Diamond Point After conducting an evidentiary hearing to consider Wells Fargo’s request for attorney’s fees, the court vacated a prior judgment and granted summary judgment to Sam’s and Wal-Mart, ruling that they were not liable for attorney’s fees. The court also found that Diamond Point was not liable for ¹⁰⁶ attorney’s fees. Wells Fargo assigns error to these judgments.

We disagree with the court’s ruling. An action tried below without a jury will be reviewed “on both the law and the evidence.” Md. Rule 8-131(c) (2006). Pursuant to Rule 8-131(c), we “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Id. In Maxima Corp., supra, we explained: In circumstances in which attorneys’ fees are awarded based on a contractual right, the losing party is “entitled to have the amount of fees and expenses proven with the certainty and under the standards ordinarily applicable for proof of contractual damages.” Bankers [and Shippers Ins.

Co. of N.Y. v. Electro Enters., Inc.], 287 Md. [641] at 661, 415 A.2d 278 [ (1980) ]. In Bankers, the Court of Appeals reversed the trial court’s award of only 30 percent of the total attorneys’ fees sought. The Court remarked that: the informal hearing conducted by the trial court neither required any real proof of the amount of the fees and expenses claimed nor provided Bankers with a realistic opportunity to challenge those fees and expenses____ Instead, the parties merely submitted, prior to the hearing, informal fee and expense petitions and made short, oral representations at the hearing of the amounts claimed. On remand, there should be a proper trial regarding the damages incurred____ Id. at 661-62, 415 A.2d 278 .

Other jurisdictions have delineated the detail required and the quantum of information that the prevailing party must provide. The overwhelming authority holds that (a) the party seeking the fees, whether for him/herself or on behalf of a client, always bears the burden of presenting evidence sufficient for a trial court to render a judgment as to their reasonableness; (b) an appropriate fee is always reasonable charges for the services rendered; (c) a fee is not justified by a mere compilation of hours multiplied by ¹⁰⁷ fixed hourly rates or bills issued to the client; (d) a request for fees must specify the services performed, by whom they were performed, the time expended thereon, and the hourly rates charged; (e) it is incumbent upon the party seeking recovery to present detailed records that contain the relevant facts and computations undergirding the computation of charges; (f) without such records, the reasonableness, vel non, of the fees can be determined only by conjecture or opinion of the attorney seeking the fees and would therefore not be supported by competent evidence. Kaiser v. MEPC American Properties, Inc., 164 Ill.App.3d 978 , 115 Ill.Dec. 899, 902-03 , 518 N.E.2d 424, 427-28 (1987) (collecting Illinois case law for the foregoing propositions). Accord Kinsey v. Preeson, 746 P.2d 542, 552 (Col.[Colo.]1987) (trial court’s findings regarding award of attorneys’ fees were insufficient where determination of reasonableness was based on an affidavit submitted after trial and no opportunity was provided to challenge the affidavit); Sperber v. Penn Cent.

Corp., 150 A.D.2d 356 , 540 N.Y.S.2d 877, 878 (1989) (absent evidence regarding specifics as to the time and labor required, the record was insufficient to determine reasonable attorneys’ fees); see also Bosch Die Casting, Co. v. Lunt Mfg. Co., 236 Ill.App.3d 18 , 177 Ill.Dec. 476, 482-83 , 603 N.E.2d 546, 552-53 (Ill.App.Ct.1992). Once presented with these facts, the trial court must still evaluate the reasonableness of the fees. Again, the burden is on the party seeking recovery to provide the evidence necessary for the fact finder to evaluate the reasonableness of the fees.

Maryland courts consider a variety of factors including, but not limited to, those delineated in Md.Rule 1.5. Those factors are: “(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; “(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; ¹⁰⁸ “(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.” Maxima Corp., 100 Md.App. at 453-55 , 641 A.2d 977 (footnote omitted)(emphasis in original). Wells Fargo presented testimonial and documentary evidence of its attorney’s fees in litigation against Sam’s, WalMart and Diamond Point. Its lead counsel testified that the bills showed allocations of expenses to cross-appellants, while also explaining that, during the organization of the bills, Wells Fargo decided not to present a line-by-line analysis of each time and expense entry.

At oral argument before a panel of this Court, Wells Fargo’s counsel intimated that it would require 8,000 opinions and judgment calls whether the charges were to Sam’s or Diamond Point because they are not “black and white.” Wells Fargo’s counsel would be required to go through the billings to make such a detérmination because there are multiple parties. Counsel for Wells Fargo reasoned that a line-by-line analysis would have been too time-consuming and costly. The court, however, found it “impossible” to fully consider Wells Fargo’s fee request without a line-by-line analysis and, therefore, denied counsel fees. Although Wells Fargo failed to properly provide a line-by-line itemization in its billing submitted to the court, the proper remedy is not for the court to deny all of the counsel fees requested.

The complexity of this case is evident. Wells Fargo has successfully argued that the Diamond Point entities, Sam’s Club and Wal-Mart have committed breaches of the subject lease and mortgage agreements. Counsel for Wells Fargo brought suit against the cross-appellants based upon several ¹⁰⁹ legal principles—breach of contract, fraud, misrepresentation and waste—and spent considerable time in presenting the cases against Sam’s, Wal-Mart and Diamond Point. What