UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
U.S. BANK TRUST NATIONAL
ASSOCIATION, By and Through
Metropolitan Bank and Trust,
Plaintiff-Appellant,
v.
VENICE MD LLC, a Georgia liability
company; HAGERSTOWN MARYLAND,
LLC, a New Jersey limited liability
company,
Defendants-Appellees, No. 02-2340
and
NIELSEN ENTERPRISES MD, LLC, a
Maryland limited liability company;
COMPASS CAPITAL CORPORATION;
BARRY C. SMITH; BRIAN K. NIELSEN;
TERESA R. NIELSEN; ANDREW E.
SHAPIRO,
Defendants.
2 U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC
U.S. BANK TRUST NATIONAL
ASSOCIATION, By and Through
Metropolitan Bank and Trust,
Plaintiff-Appellee,
v.
VENICE MD LLC, a Georgia liability
company; HAGERSTOWN MARYLAND,
LLC, a New Jersey limited liability
company,
Defendants-Appellants, No. 02-2368
and
NIELSEN ENTERPRISES MD, LLC, a
Maryland limited liability company;
COMPASS CAPITAL CORPORATION;
BARRY C. SMITH; BRIAN K. NIELSEN;
TERESA R. NIELSEN; ANDREW E.
SHAPIRO,
Defendants.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(CA-99-753-L)
Argued: October 28, 2003
Decided: March 18, 2004
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC 3
COUNSEL
ARGUED: Lawrence Jay Gebhardt, GEBHARDT & SMITH, L.L.P.,
Baltimore, Maryland, for Appellant. Charles Kevin Kobbe, PIPER
RUDNICK, L.L.P., Baltimore, Maryland, for Appellees. ON BRIEF:
Dale S. Betterton, GEBHARDT & SMITH, L.L.P., Baltimore, Mary-
land, for Appellant. Jeffrey D. Herschman, PIPER RUDNICK,
L.L.P., Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Metropolitan Bank and Trust ("Metropolitan") sued Venice, MD,
Venice LLC, and Hagerstown Maryland LLC (collectively, the
"Landlord") for taking wrongful possession of the Venice Inn, a hotel
and restaurant operation in Hagerstown, Maryland. Metropolitan,
which possessed a security interest in the personal property of the Inn,
claimed that the Landlord wrongfully took possession of the Inn and
disposed of the Inn’s personal property for a period of several months.
Metropolitan sought damages for conversion equal to the gross reve-
nues of the Inn during the Landlord’s possession, along with attorney
fees and costs. After a bench trial, the district court awarded damages
to Metropolitan for the Landlord’s trespass with respect to the Venice
Inn personal property, but denied Metropolitan the value of the gross
revenues of the Inn during the Landlord’s possession. It also denied
Metropolitan an award of attorney fees and ruled that each side
should bear its own costs. Metropolitan appeals the denial of gross
revenues, attorney fees, and costs. We affirm the denial of gross reve-
nues and attorney fees to Metropolitan, but we remand for further
consideration of the costs issue. The Landlord cross-appeals, arguing
that the district court applied the incorrect measure of damages for
trespass under Maryland law. Because there was no error in the ulti-
4 U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC
mate determination of damages awarded to Metropolitan, we affirm
on the cross-appeal.
I.
A complete statement of the facts appears in the district court’s
opinion issued after the bench trial. U.S. Bank Trust Nat’l Assoc. v.
Nielsen Enter. MD, 232 F. Supp. 2d 500 (D.Md. 2002). In the interest
of brevity, we repeat only the facts that are relevant to the appeal.
This case arose from the purchase and operation of the Venice Inn,
a hotel and restaurant complex in Hagerstown, Maryland. Brian K.
Nielsen purchased the Venice Inn in April 1988 for $8.5 million.
Nielsen thereafter formed Nielsen Enterprises Md. LLC to own and
operate the Venice Inn, and he formed Nielsen Enterprises LLC to
manage the hotel’s liquor license. (Nielsen, Nielsen Enterprises Md.
LLC and Nielsen Enterprises LLC will be referred to collectively as
"Nielsen" or the "Tenant.") As part of the financing of the purchase,
the Landlord advanced $2.5 million for the purchase of the real estate
which was then leased to Nielsen pursuant to a 98-year unsu-
bordinated Ground Lease (the "Ground Lease"). Compass Capital
Corporation, a mortgage broker, extended a $5.9 million loan to Niel-
sen that was secured by a lien on the leasehold estate and on the Inn’s
personal property. Metropolitan purchased the loan and became the
leasehold mortgagee, making it the actual lender of the $5.9 million.
In addition to the Ground Lease, the primary agreements relevant
to this appeal are the Leasehold Deed of Trust, the Security Agree-
ment, and the Financing Statement. The Leasehold Deed of Trust
granted a lien in the leasehold estate under the Ground Lease and pro-
hibited the Tenant from modifying or terminating the Ground Lease
without Metropolitan’s prior written consent. Section 34.3 of the
Ground Lease "assign[ed] to the lender [Metropolitan] all of its right,
title and interest as tenant under the Ground Lease." The Security
Agreement gave Metropolitan an interest in (among other things) all
existing and after acquired inventory, accounts, general intangibles,
chattel paper, equipment and fixtures, and the proceeds thereof; the
Financing Statement simply perfected this security interest. Sec-
tions 17 and 20 of the Security Agreement authorized Metropolitan to
take immediate possession of the Inn collateral and collect all
U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC 5
accounts receivable upon default. Metropolitan therefore held a lease-
hold deed of trust on the Ground Lease and a first priority security
interest in all personal property from the Venice Inn.
In December 1998 Nielsen defaulted on its loan payments to Met-
ropolitan. On January 22, 1999, Metropolitan issued a default notice
to Nielsen. In February 1999 Nielsen defaulted also on its monthly
rental payments to the Landlord, prompting the Landlord to issue a
default notice to Nielsen, with a copy to Metropolitan. Under the
terms of the Ground Lease, the last day to cure the default in rental
payments was March 9, 1999. On March 10 Metropolitan forwarded
the cure payment to the Landlord, which was received on March 11.
The Landlord rejected the cure payment as untimely, terminated the
Ground Lease, took possession, and assumed operation of the Venice
Inn. Upon taking possession of the Inn, the Landlord discovered
numerous delinquent tax bills and expired licenses and spent more
than $70,000 to bring the Inn into compliance. The Landlord operated
the Venice Inn through October 1, 1999, when the Landlord, the Ten-
ant, and Metropolitan entered into a partial settlement; the Landlord
reinstated the Ground Lease and gave possession of the hotel and per-
sonal property to Metropolitan in exchange for payment of back rent,
taxes, and insurance premiums.
In its complaint Metropolitan asserted various legal and equitable
claims against the Landlord for wrongful possession of the Venice
Inn’s personal property. Metropolitan sought (among other things) the
gross revenues of the Venice Inn for the period of March through
October 1999, fair rental value of the furniture and other equipment
over the period of the Landlord’s possession, and damages for breach
of quiet enjoyment. The district court determined that Metropolitan’s
cure payment on March 11 was timely and that the Landlord’s posses-
sion of the Inn was wrongful. Maryland recognizes the statutory right
to redemption, which allows a tenant to cure a rental payment default
at any time prior to the enforcement of an eviction order. Md. Code
Ann., Real Prop. § 8-401(e) (1996). According to the district court,
because the Leasehold Deed of Trust assigned to Metropolitan all the
rights that Nielsen held under the Ground Lease, Metropolitan had the
right of redemption, which it exercised on March 11. Consequently,
the district court determined that the Landlord breached the covenant
of quiet enjoyment and various other provisions of the Ground Lease
6 U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC
and that the Landlord’s possession of Metropolitan’s collateral was a
trespass. The district court awarded Metropolitan the fair rental value
of its collateral during the Landlord’s possession. It denied Metropoli-
tan’s claim to the gross revenues of the Inn, its equitable claims, and
its request for attorney fees. Finally, the court directed that each side
bear its own costs. Metropolitan appeals, and the Landlord cross-
appeals.
II.
A.
Metropolitan first challenges the district court’s failure to award it
the Inn’s gross revenues from March 10, 1999, to September 30,
1999, which total $1,167,288. As Metropolitan notes, the Security
Agreement gives it, as the lender, a security interest in the following
property: all inventory, accounts, general intangibles, chattel paper,
equipment and fixtures, either presently owned or later acquired,
along with proceeds thereof. Security Agreement, ¶¶ 1(A)-(E). All of
these items, along with their proceeds, were Metropolitan’s collateral
for the loan. In the event that Nielsen defaulted on its payments, Met-
ropolitan had the right to demand its collateral and had all of "the
rights and remedies of a secured party under the Maryland Uniform
Commercial Code." Security Agreement, ¶ 20. Because the district
court determined that the Landlord was in wrongful possession of the
Inn, Metropolitan argues that the Landlord also wrongfully disposed
of its collateral in the course of the Landlord’s operation of the Inn.
Under Maryland’s version of the Uniform Commercial Code (the
"U.C.C."), whenever there is a sale, lease, exchange, or other disposi-
tion of collateral, the creditor’s security interest continues in the col-
lateral’s identifiable proceeds. Md. Code Ann., Com. Law § 9-315(a)
(2002); U.C.C. § 9-306 (2002). Thus, because Metropolitan possessed
a security interest in the inventory, accounts, general intangibles,
equipment and fixtures, along with proceeds thereof, it contends that
"[w]hen the Landlord collected a receivable . . . or sold inventory,
such as the food and liquor on hand . . . and used the money received
to generate new receivables or acquire new inventory, Metropolitan’s
security interest attached to the entirety of all of the new receivables
and all of the new inventory, even if the proceeds of the old receiv-
U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC 7
able or inventory constituted only a small portion of the new." Appel-
lant’s Reply Br. 16. Metropolitan therefore claims that it is entitled to
the identifiable proceeds of the disposition of its collateral, as well as
the proceeds of these proceeds. Metropolitan equates these proceeds,
in their entirety, with the gross revenues of the Venice Inn during the
Landlord’s operation.
The district court denied gross revenues to Metropolitan primarily
because it determined that the Landlord engaged in a "use" rather than
a "disposition" of the collateral and that only disposition entitles a
secured creditor to proceeds. Nielsen, 232 F. Supp. 2d at 530-31. The
court reasoned that "[r]evenues are treated as proceeds only if there
is some permanent disposition of the property, more than the mere use
of property to provide hospitality to guests." Id. at 531 (internal quo-
tation marks omitted). It further noted that "had the Landlord not used
the revenues to keep the hotel running, the proceeds would have
stopped abruptly." Id. We agree with the district court’s determination
that most of Metropolitan’s collateral was used, not disposed of, and
we further conclude that even where collateral was disposed of, the
Inn’s revenues are not identifiable proceeds of that disposition.
The Security Agreement does not claim the Inn’s revenues directly
as collateral. Metropolitan is therefore entitled to the revenues only
if they constitute identifiable proceeds of a disposition of its collat-
eral. Cf. In re Schaumberg Hotel Owner L.P., 1989 WL 359490, *10
(Bankr. N.D. Ill) (concluding that security agreement covered hotel
revenues where it specified a security interest in "all rents, income,
profits, revenues, royalties, bonuses, rights, accounts, including
accounts receivable, contract rights, general intangibles and benefits
and guarantees under any and all leases or tenancies"). Although the
term "disposition" is to be construed broadly, a "disposition" must, at
a minimum, cause a transfer of property. See Ronald A. Anderson,
Uniform Commercial Code § 9-306 (3d ed. 1999). For instance, cash
dividends are not proceeds of common stock because the distribution
of a dividend is not a disposition of stock. In re Hastie, 2 F.3d 1042
(10th Cir. 1993).
A critical factor in identifying a disposition is whether another
asset has been acquired as a substitute for the one purportedly dis-
posed of. See id. at 1045. Where, as here, a creditor holds a security
8 U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC
interest in a hotel’s personal property, the hotel’s revenues are gener-
ated mostly from using that property. See, e.g., In re Green Corp, 154
B.R. 819, 825 (Bankr. D. Me. 1993) (holding that hotel revenues are
not proceeds because they are not generated from the sale of the
underlying collateral); In re Corpus Christie Hotel Partners, Ltd., 133
B.R. 850, 855-56 (Bankr. D. Tex. 1991). When the Landlord relin-
quished possession of the Venice Inn, most of the secured property
remained intact; it had not been sold or substituted for other items. Of
course, without a permanent disposition of collateral, Metropolitan
cannot claim entitlement to proceeds of its collateral.
Metropolitan’s contention that there was a disposition of its collat-
eral is more plausibly directed at two items in particular: the food and
beverage inventory and the accounts receivable. However, even
assuming some inventory and accounts were permanently disposed
of, this partial disposition of its collateral would not entitle Metropoli-
tan to the hotel’s revenues as proceeds. Chemical Bank v. Miller
Yacht Sales, 413 A.2d 619 (N. J. Super. 1980) (holding that larger
boat, acquired in transaction involving trade-in of smaller boat, was
not proceeds of smaller boat). The depletion of the hotel’s food and
beverage inventory did not generate revenue by direct sale, as would,
for example, selling groceries from a store. Hotel and restaurant
establishments are service-oriented businesses; customers pay not just
for the food itself, but also for the preparation, atmosphere, and ser-
vice. See, e.g., In re Inman, 95 B.R. 479, 480-81 (Bankr. W.D. Ky.
1988) (holding that even revenues generated by a fast food restaurant
are not proceeds from the sale of inventory).
We are similarly unpersuaded that the gross revenues are proceeds
of the Inn’s accounts receivable. Metropolitan is not simply seeking
to recover the accounts owed at the time of Nielsen’s default; rather,
it seeks all of the revenues generated during the Landlord’s posses-
sion on the theory that all such revenues are proceeds of the earlier
accounts. Appellant’s Br. 32. It is undisputed that the accounts receiv-
able were reinvested to maintain operation of the Inn and that the con-
tinued operation of the Inn generated gross revenue. However, the
connection between the accounts receivable at the time of the Land-
lord’s takeover and the gross revenues for the entire seven month
period of the Landlord’s possession is too diffuse to support the dras-
tic recovery that Metropolitan seeks. The Inn’s revenues were gener-
U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC 9
ated not from the disposition of any account or inventory, but from
an array of services provided and from use of the hotel’s rooms and
facilities. See In re Corpus Christi Hotel Partners, Ltd., 133 B.R. at
855; In re Green, 154 B.R. 819 (Bankr. D. Me. 1993). Because we
agree with other courts that "‘proceeds’. . . involve[s] some perma-
nent disposition of the property, more than the mere use of the prop-
erty to provide hospitality to guests," we conclude that the Inn’s gross
revenues are not identifiable proceeds of any disposition of Metropol-
itan’s collateral. In re Corpus Christi Hotel Partners, Ltd., 133 B.R.
at 855.
In short, Metropolitan could have negotiated and provided for a
security interest in the hotel revenues in its security agreement. It did
not, so Metropolitan can only recover such revenues if it establishes
that there was a permanent disposition of its collateral and that the
revenues are identifiable proceeds of that disposition. We conclude
that most of Metropolitan’s collateral was used, not disposed of, and
that whatever disposition of collateral did occur in the course of main-
taining the Inn’s operations does not entitle Metropolitan to the gross
revenues. We therefore agree with the district court’s determination
on this issue.
B.
Metropolitan next argues that the district court erred by not award-
ing it attorney fees as the "prevailing party" in a dispute over the
Ground Lease. Section 13.15 of the Ground Lease, the provision deal-
ing with fees, states:
[t]he unsuccessful party in any action or proceeding shall
pay for all costs, expenses and reasonable attorney’s fees
incurred by the prevailing party or its agents or both in
enforcing the covenants and agreements of this Lease. The
term ‘prevailing party’ as used herein shall include without
limitation a party who obtains legal counsel and brings an
action against the other party by reason of the other party’s
breach or default and obtains substantially the relief sought,
whether by compromise, settlement or judgment.
J.A. 273-74.
10 U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC
The district court denied Metropolitan’s request for attorney fees
because it determined that Metropolitan was not a "party" to the
Ground Lease. It reasoned that because Metropolitan did not assume
the burdens (including the obligation to pay rent) under the lease, it
could not obtain the benefit of the fee provision. The district court
further reasoned that because the fee provision could not be enforced
against Metropolitan, neither should Metropolitan be able to enforce
this provision against the Landlord.
Attorney fees can be awarded under Maryland law only when
authorized by statute or contract. Hess Construction Co. v. Bd. of
Educ. of Prince George’s County, 669 A.2d 1352 (Md. 1996);
Reisterstown Plaza Assocs. v. General Nutrition Ctr., 597 A.2d 1049,
1054 (Md. Ct. Spec. App. 1991). Where, as here, an award is autho-
rized by a contract, attorney fees may only be awarded to the extent
provided by the contract and according to its terms. In ascertaining
the meaning of contractual provisions, we must construe the contract
in its entirety and give effect to each clause. Marsh v. Loffler Housing
Corp., 648 A.2d 1081, 1086 (Ct. Spec. App. Md. 1994).
Metropolitan claims that it was a prevailing party entitled to the
benefit of § 13.15 because, as a leasehold mortgagee and assignee of
the Ground Lease, it was a party to the Ground Lease. It relies on
§ 13.2 of the Ground Lease, which provides that the lease "shall be
binding upon, apply, and inure to the parties hereto and their respec-
tive heirs, executors, administrators, successors, and permitted
assigns." Metropolitan then argues that because the Leasehold Deed
of Trust assigned the Ground Lease to Metropolitan, it is, as a lease-
hold mortgagee, a "permitted assign." Finally, Metropolitan points to
its ability to avail itself of the debtor’s statutory right to redemption,
reasoning that because it had some of the rights of the Tenant, it
should also have the right to attorney fees under § 13.15 of the
Ground Lease.
We conclude that Metropolitan is not entitled to attorney fees both
because Metropolitan was not a "permitted assign" as contemplated
by § 13.2 and because the term "prevailing party" should be construed
as limited to signatories to the contract. Section 9.1 of the Ground
Lease, which addresses the conditions of assignment, gives the Ten-
ant the right to assign the lease or sublet the premises provided that
U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC 11
"(i) Landlord is given sixty (60) days prior written notice intent . . .
(iii) Tenant remains fully and primarily liable under all of the provi-
sions of the Lease, [and] (iv) the proposed assignee or sublessee shall
assume, in a writing acceptable to the Landlord and its counsel, all of
the obligations of Tenant hereunder." Although the Tenant did assign
Metropolitan its rights in the property in the Purchase Money Lease-
hold Deed of Trust and Security Agreement in exchange for the $5.9
million loan provided, this was not an assignment in accordance with
§ 9.1. Metropolitan concedes that it never assumed all of the obliga-
tions of the Tenant. Specifically, Metropolitan acknowledges that it
never assumed the duty to pay rent. This fact alone casts doubt on
whether Metropolitan should even be regarded as a "permitted assign"
under § 13.2.
Further, consideration of the other clauses in the Ground Lease
suggests that "prevailing party" refers only to signatory parties. For
instance, § 13.5, describing the relationship between the parties to the
Ground Lease, provides that "[t]he parties hereto shall always be as
Landlord and Tenant." Metropolitan never assumed the role of a ten-
ant, and so it should not be construed as a party. Finally, Article XIV
describes numerous rights of a leasehold mortgagee, including the
rights to cure and perform in order to prevent the termination of the
Tenant’s rights. § 14.3. No clause, however, mentions the right of a
leasehold mortgagee to recover attorney fees. Because the Ground
Lease explicitly provides the leasehold mortgagee with some rights
but not the right to recover attorney fees, we conclude that "prevailing
party" in § 13.15 refers only to the signatory parties to the contract—
Nielsen and the Landlord. Therefore, the district court did not err in
denying an award of attorney fees to Metropolitan.
C.
Metropolitan next challenges the district court’s determination that
each side bear its own costs. Federal Rule of Civil Procedure 54(d)(1)
provides that "costs other than attorneys’ fees shall be allowed as of
course to the prevailing party unless the court otherwise directs." Fed.
R. Civ. P. 54(d)(1). Metropolitan argues that because it received an
award of money damages against the Landlord while the Landlord
received no award, Metropolitan is the prevailing party and is pre-
sumptively entitled to an award of costs. Although Metropolitan
12 U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC
acknowledges that the rule vests the district court with discretion, it
points out that the prevailing party is presumptively entitled to costs
and that it is reversible error for the district court to deny costs with-
out explanation. We agree.
We have previously recognized a "presumption that costs are to be
awarded to the prevailing party." Cherry v. Champion Int’l Corp., 186
F.3d 442, 446 (4th Cir. 1999). The district court has discretion to deny
such an award, but in order to overcome the presumption, it must "ar-
ticulat[e] some good reason" for its denial. Id. at 446 (internal quota-
tion marks omitted). In essence, that reason must be that "there would
be an element of injustice in a presumptive cost award." Id. Among
the factors that justify denying an award of costs are "misconduct by
the prevailing party," "the losing party’s inability to pay," "[the]
excessiveness [of the costs] in a particular case, the limited value of
the prevailing party’s victory, or the closeness and difficulty of the
issues decided." Id. (internal quotation marks omitted). The district
court may have based its decision to deny costs on sufficient reasons;
however, it did not articulate those reasons. We have previously held
that "district courts may not depart from the ‘normal practice’ of
awarding fees to the prevailing party without first articulating some
good reason for doing so." Oak Hall Cap and Gown Co. v. Old
Dominion Freight Line, Inc., 899 F.2d 291, 296 (4th Cir. 1990). We
therefore vacate that portion of the district court’s October 18, 2002,
order that denied costs to Metropolitan and remand for reconsidera-
tion of that issue. On remand the district court should award costs to
Metropolitan or state reasons why costs should be denied.
D.
Finally, we consider the Landlord’s cross-appeal of the district
court’s determination of damages awarded to Metropolitan for the
Landlord’s trespass. The district court determined that the Landlord
had committed a trespass by its wrongful possession of the Inn per-
sonal property. The court explained that the "appropriate measure of
damages for this trespass [to chattel] is the fair rental value of these
items." Nielsen, 232 F. Supp. 2d at 531. It then assigned a monthly
rental value of $25,000, which, when multiplied by the number of
months that the Landlord was in wrongful possession of the Inn, "ap-
proaches the fair market sale value" of much of the Inn furniture. Id.
U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC 13
at 532. The Landlord argues that the appropriate measure of damages
for trespass to chattel is diminution in value. Because the district court
found that any diminution in value of the Inn personal property was
nominal, the Landlord contends that Metropolitan should have been
awarded only nominal damages.
Under Maryland law, "the measure of damages for trespass to a
chattel is the diminished value of the chattel which results from the
damage actually sustained from the time of the taking until the return
of the goods." Staub v. Staub, 376 A.2d 1129, 1133 (Ct. Spec. App.
Md. 1977). See also Diamond v. T. Rowe Price Assocs., Inc., 852 F.
Supp. 372, 410 (D. Md. 1994) (explaining that the "plaintiff cannot
recover monetary damages unless deprivation of the property causes
a loss"). In contrast, the "measure of damages for the conversion of
a chattel is the market value of the chattel at the time and place of
conversion plus interest to the date of judgment." Staub, 376 A.2d at
1133. However, in both trespass and conversion cases, "additional
damages adequate to compensate an owner for other injurious conse-
quences which result in a loss greater than the diminished or market
value . . . may be allowed." Staub, 376 A.2d at 1133.
The district court was under no obligation to limit its damage
award to the diminished value of the chattel as a result of the trespass.
Rather, it was authorized to apply an additional measure of damages
to compensate Metropolitan for the forced rental of its property. Had
the district court applied only a diminution in value measure, the
Landlord would have enjoyed a windfall, paying only nominal dam-
ages for wrongfully possessing items that would have cost between
$20,000 and $62,000 in monthly rental fees. Therefore, as an addi-
tional remedial measure, the district court apparently considered the
measure of damages for conversion in determining the damage award
for trespass. Although the district court should have first used diminu-
tion in value as the measure of damages and then, finding that inade-
quate, should have granted Metropolitan the fair rental value of its
property, we find no error in the ultimate result reached. We therefore
affirm the district court’s damage award to Metropolitan of $25,000
per month.
III.
For the reasons stated, we affirm the district court’s denial of gross
revenues and attorney fees to Metropolitan. We also affirm the district
14 U.S. BANK TRUST NATIONAL ASSOC. v. VENICE MD LLC
court’s determination to award Metropolitan the fair rental value of
the Venice Inn personal property. We vacate that portion of the dis-
trict court’s October 18, 2002, order denying costs to Metropolitan
and remand for reconsideration of that issue.
AFFIRMED IN PART AND
VACATED AND REMANDED IN PART