# Frank R. Annunziato v. The Gan, Inc.

> Court of Appeals for the Second Circuit · June 26, 1984 · 744 F.2d 244

URL: https://www.frixlaw.com/law-library/cases/9472647

## Case

- **Full name:** Frank R. ANNUNZIATO, Et Al., Plaintiffs-Appellees, v. THE GAN, INC., Defendant-Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** June 26, 1984
- **Citations:** 744 F.2d 244; 1984 U.S. App. LEXIS 21073
- **Precedential status:** Published
- **Opinion:** Dissent by Oakes
- **Judges:** Amone, Lumbard, Oakes, Cardamone
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9472647

## Opinion text

OAKES, Circuit Judge
(dissenting).
I dissent, because I would vote to affirm essentially on Judge Burns’s opinion. As we said recently, “the latitude afforded trial courts in exercising ... discretion [in awarding fees] is narrowed by a presumption that successful civil rights litigants should recover an attorney’s fee unless special circumstances would render such an award unjust.” Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982).
I think it is clear that the appellees were the prevailing party in this case, notwithstanding the claims of appellants here. It is well-established that a plaintiff can be a prevailing party even if the case is settled. McCann v. Coughlin, 698 F.2d 112 (2d Cir.1983). Prevailing parties are those who succeed on “any significant issue,” Hensley v. Eckerhart, 461 U.S. 424 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983), and I think Judge Burns correctly determined that the appellees succeeded in winning by settlement almost exactly what they hoped to accomplish by litigation. If indeed The Gan made an offer to pay the $30,000 two days after the lawsuit was filed, as it suggests it did, the lawsuit was nevertheless the catalyst for the offer. Gagne v. Maher, 594 F.2d 336 (2d Cir.1979), aff'd, 448 U.S. 122 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980).
Concededly, the argument that it would be unjust to hold The Gan liable for fees in the peculiar circumstances of this case is more persuasive. It is true that The Gan agreed to pay $30,000 for the school, precisely the price that it initially offered the City for the building. It also appears that the reduction of the sale price to one dollar *255 was the idea of several aldermen, and not of the school, although without an actual trial below we cannot know this for sure. From The Gan’s point of view, it was caught in the position of defending the sale for nominal consideration by virtue of the appellees’ suit and the unilateral action of the City, not by anything it did.
Although there is considerable appeal to this argument, which the majority makes into a no-state-action determination, on balance I would nonetheless affirm. Even if we accept The Gan’s version of events, the school’s decision to fight the lawsuit which challenged the one dollar purchase agreement resulted in the plaintiffs’ expending time and money in pursuing their complaint; The Gan could have become a neutral stakeholder, but did not. Rather it chose to fight as hard as it could. Thus, it seems to me that The Gan effectively became a state actor by choice. As the trial court wrote:
The Gan could have adopted the neutral role of a stakeholder in this litigation but by actively defending the suit it exposed itself to an award of attorneys’ fees under 42 U.S.C. § 1988 in the event that plaintiffs prevailed. Since that event came to pass, defendant must bear the burden of its unsuccessful strategic decision.
Judge Burns’s decision to impose one-third of the total attorneys’ fees due the appellee on The Gan and the remaining two-thirds on the City seems to me to be eminently fair, and thus I would affirm.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472647. Public record. Not legal advice.