Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FISHMAN v. ESTATE OF WIRTZ

February 21, 1985

MARVIN L. FISHMAN, ET AL., PLAINTIFFS,
v.
ESTATE OF ARTHUR M. WIRTZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Roszkowski, District Judge.

ORDER

Before the court are defendants' (other than Atlanta Hockey, Inc.) and plaintiffs' motions to amend the judgment order entered November 21, 1984. Defendants seek a reduction in the amount of the judgment order based upon this court's June 28, 1984 findings of fact with respect to the parties' actual and likely arena costs, 594 F. Supp. 853. Plaintiffs' seek to increase the amount of the judgment order based upon certain mathematical errors in the computation of IBI's opportunity costs. In addition, plaintiffs' seek to correct certain typographical errors and amend the date from which post-judgment interest is to be calculated. For the reasons set forth herein, defendants' motion is denied and plaintiffs' motion is granted, in part, and denied, in part.

I. Defendants' Motion To Amend

A. Background

This court previously held that plaintiff, IBI, was entitled to recover any economic benefits it would have enjoyed as a result of owning and operating the Chicago NBA franchise. In determining any likely economic benefits IBI would have derived from ownership, this court held it was reasonable to consider defendant, CPSC's, actual experience in operating the franchise. With appropriate adjustments, this court concluded CPSC's actual experience would provide a "yardstick measure" of IBI's probable economic benefits from owning and operating the franchise.

Among the items considered by this court in determining the costs and expenses IBI would have incurred in owning and operating the franchise was the cost of renting an arena. After considering the parties' probable arena costs, this court concluded there would have been no substantial difference in the amount paid by the parties' for arena rental. Consequently, this court held arena expenses should not affect the yardstick measure of plaintiff, IBI's, damages.

Defendants contend this court's own findings of fact fail to support the decision not to adjust the yardstick measure of damages based upon arena costs. Instead, defendants' contend this court's findings of fact with respect to the parties' relative arena expenses require a substantial downward adjustment. Specifically, defendants point to the following findings of fact:

  1. "In the Spring and Summer of 1972, Elmer Rich,
  the president of CPBC, negotiated for a lease at
  the Chicago Stadium on behalf of IBI. At Marvin
  Fishman's instruction, Rich sought a lease with
  terms identical to the then current Bulls lease
  ("the Rich lease"). Fishman never asked Rich to
  negotiate any reduction in the Rich lease rent
  terms. He . . . was willing to take a ten year
  lease on the rental terms in the lease." (emphasis
  added).
  2. "Under the Rich lease terms, CPBC paid 15% of
  the first $600,000 in net receipts, two graduated
  payments on net receipts between $600,000 and
  $800,000, and 25% of all net receipts over
  $800,000."
  3. "[In return for a 16.9% equity position in the
  team], [Arthur] Wirtz . . . entered into a ten
  year lease [with CPSC], which provided for a ten
  year waiver of all rent on receipts between
  $1,250,000 and $1,750,000."
  4. ". . . [T]here is nothing in the record which
  demonstrates that the term of a Fishman lease of
  the Stadium would have been ten years. . . . Had a
  lease shorter than ten years been agreed to . . .
  it is quite possible that IBI would have
  experienced lower lease expenses than did CPSC. By
  1980 the Rosemont Horizon was available and IBI
  could have insisted on a lower (i.e. competitive)
  rental at the Chicago Stadium. The rental savings
  to IBI for the ensuing two seasons alone could have
  been between $370,000 and $500,000." (emphasis
  added).

Defendants contend the foregoing facts indicate IBI would have paid between $421,000 and $560,000 more in lease expenses between 1972-73 and 1981-82. Defendants' contention is based upon the fact that any rental savings brought about by the availability of the Rosemont Horizon in 1980-81 and 1981-82 (between $372,000 and $510,000) would have been more than offset by CPSC's superior leasing arrangement with the Chicago Stadium between 1972-73 and 1979-80 (a difference of $932,000 in favor of CPSC). Adding on the capital costs to IBI, defendants contend the yardstick damages should be, at a minimum, reduced between $584,000 and $601,000.

  Plaintiffs respond that the defendants have taken one example
of ". . . how IBI might have paid less rent than CPSC for the
1980, and 1981 seasons `alone'," and attempted to convert it
into a series of findings. Plaintiffs, relying upon this
court's finding that ". . . there is nothing in the record
which demonstrates that the term of a Fishman lease of the
Stadium would have been ten years," set forth several other
examples of leasing arrangements which might have resulted in
equal or lower lease payments by IBI. For example, plaintiffs
point out that:

   . . IBI could have entered a one year oral lease
  on the same terms as the prior `Rich' lease.
  Thereafter, IBI could have negotiated a four year
  lease on the same terms as the CPSC ten year
  lease; and then in 1978, using the leverage of the
  Horizon which was already under construction,
  could have negotiated a new ten year lease at the
  Stadium at a straight 15% (like the newest CPSC
  lease).

In addition, plaintiffs argue there are reasons other than the existence of the Horizon for believing IBI could have obtained an equal or lower lease arrangement. First, by charging IBI a higher amount than CPSC, plaintiffs contend ". . . Wirtz would have been breaching his fiduciary duty to [the Norris family, one half owners of the Stadium], by giving special lease terms to a tenant in which he held a personal ownership interest." Second, since defendant, Wirtz's, lease with CPSC was a means of extracting his "pound of flesh" for having "lined up the [NBA] votes to make [their] deal possible", plaintiffs contend IBI may have received even a more favorable lease than CPSC.

B. Discussion

It is unquestionably difficult to estimate the hypothetical costs and expenses of a party who was wrongfully denied the opportunity to own and operate a franchise. This is extraordinarily true when one of the key expenses, arena rental, was controlled by one of the principal wrongdoers. There is no way of determining exactly what would have transpired.

Plaintiffs are correct in arguing that this court's findings of fact cited simply one example of how the instant events might have transpired. This court did not find that IBI would enter into an eight or ten year lease to play in the Stadium. Moreover, this court did not find that IBI would negotiate a less favorable lease than CPSC. This court simply found that "[g]iven this uncertainty regarding whether IBI would ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.