Grubb & Ellis v. Gaedeke Holdings Ltd , 218 F. App'x 390 ( 2007 )


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  •                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 07a0141n.06
    Filed: February 20, 2007
    No. 06-5107
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    GRUBB & ELLIS/CENTENNIAL, INC.,                         )
    )        ON APPEAL FROM THE
    Plaintiff-Appellee,                              )        UNITED STATES DISTRICT
    )        COURT FOR THE MIDDLE
    v.                                                      )        DISTRICT OF TENNESSEE
    )
    GAEDEKE HOLDINGS, LTD. and GAEDEKE                      )                           OPINION
    LANDERS, LLC,                                           )
    )
    Defendants-Appellants.
    BEFORE:        KENNEDY, COLE and COOK, Circuit Judges.
    R. GUY COLE, JR., Circuit Judge. Defendants-Appellants Gaedeke Holdings, Ltd. and
    Gaedeke Landers, LLC (collectively “Gaedeke”) appeal the judgment of the district court granting
    Plaintiff-Appellee Grubb & Ellis/Centennial, Inc. (“Grubb & Ellis”) summary judgment on Grubb
    & Ellis’s claim that Gaedeke owed Grubb & Ellis a commission stemming from Gaedeke’s
    execution of a lease agreement with non-party Bridgestone/Firestone, Inc. (“Bridgestone”). Gaedeke
    further appeals the district court’s award of pre-judgment interest and attorneys’ fees to Grubb &
    Ellis. For the reasons that follow, we AFFIRM the judgment of the district court.
    I. BACKGROUND
    A.     Facts
    Gaedeke Landers, LLC, now known as Gaedeke Group, LLC, is the property manager for the
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    Highland Ridge Office Park, which is located near the Nashville, Tennessee airport. The Highland
    Ridge Office Park consists of five premium buildings. The individual buildings are numbered I
    through IV (e.g., “Highland Ridge I”), except for the fifth and largest building, called “The Tower.”
    Gaedeke Holdings, Ltd. owns Highland Ridge III, Highland Ridge IV, and The Tower.
    In March 2001, Gaedeke engaged Grubb & Ellis to provide leasing-brokerage services for
    Gaedeke’s Highland Ridge buildings. Gaedeke executed separate agreements with Grubb & Ellis
    for each of Gaedeke’s Highland Ridge buildings; Gaedeke drafted each agreement. The Agreement
    at issue here covered The Tower. Paragraph 9.1 specified that as a broker, Grubb & Ellis would have
    the following duties:
    Broker agrees to take all actions reasonable [sic] necessary to lease
    the property with due diligence. These actions shall include, but shall
    not be limited to, (a) staffing an on-site leasing office (to be provided
    by Owner, at no cost to Broker) with a licensed agent acceptable to
    Owner, in Owner’s discretion, (b) preparing (or causing to be
    prepared) promotional materials regarding the Building, (c)
    cooperating with outside brokers who represent Tenants, (d)
    presenting to Owner all lease proposals submitted by or to Tenants
    and Cooperating Brokers, and (e) aiding Owner and its
    representatives in preparations of plans and specifications and
    negotiating and executing leases, and other documents necessary for
    the leasing of the Building. In addition, within twenty-one (21) days
    following the execution of this Agreement, Broker shall prepare and
    submit to Owner, for Owner’s review and approval, a detailed
    marketing plan for the Building.
    Under paragraph 8.4 of the Agreement, Gaedeke agreed to pay Grubb & Ellis commissions
    as follows:
    Owner further agrees to pay Broker a commission in accordance to
    the schedule, if, within ninety calendar days (90) after the expiration
    of the termination of the Term the property is leased to, or
    -2-
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    negotiations continue or resume leading to the execution of a lease
    with any person or entity with whom Broker has negotiated (either
    directly or through another broker or agent) or to whom the Property
    has been submitted prior to the expiration of the Term.
    Paragraph 6 of the Agreement further called for Gaedeke to refer “any and all offers and
    inquiries by prospective tenants” to Grubb & Ellis. Under paragraph 7, however, Gaedeke reserved
    the right to preempt Grubb & Ellis and negotiate directly with tenants. If Gaedeke exercised its right
    to deal directly with prospective tenants, Grubb & Ellis was still entitled to the commission it would
    have earned had Gaedeke not preempted Grubb & Ellis. In substance, these provisions state:
    Agreement to Refer to Offers and Inquiries. On and after the
    effective date hereof, and thereafter during the term of this
    Agreement, Owner agrees to refer to Broker any and all offers and
    inquiries by prospective tenants (each of which being hereinafter
    sometimes referred to as a “Tenant”) and/or by cooperating, third
    party brokers (each of which being hereinafter sometimes referred to
    as a “Cooperating Broker”) for space in the Building, and Broker
    agrees to diligently investigate and develop such offers or inquiries,
    to canvass, solicit and otherwise employ its best efforts and services
    to lease space in the Building.
    Owner’s Reservation to Preempt Broker. The Owner reserves the
    right to preempt the Broker and deal directly with a Tenant with the
    understanding that should Owner exercise said right the commission
    otherwise payable under this Agreement will be payable.
    In October 2001, Bridgestone contacted Gaedeke and proposed that Gaedeke buy
    Bridgestone’s buildings and in exchange, Bridgestone would lease offices from Gaedeke in The
    Tower. Per paragraph 6 of the Agreement, Gaedeke referred Bridgestone’s inquiry to Barry Smith,
    its broker at Grubb & Ellis. Later the same month, Bridgestone’s broker, Joseph Cherry, asked
    Gaedeke to negotiate directly with Bridgestone, rather than through Grubb & Ellis. Gaedeke agreed
    -3-
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    and informed Grubb & Ellis that it would handle the negotiations with Bridgestone but that it would
    still need Smith to work “behind the scenes” to support Gaedeke’s efforts.
    Early on, Gaedeke rejected Bridgestone’s proposal of buying Bridgestone’s buildings.
    Bridgestone then asked Gaedeke to prepare a proposal for Bridgestone’s review, in which
    Bridgestone would lease approximately 140,000 square feet in The Tower, and renew and expand
    its existing space in Highland Ridge I. Gaedeke sent this proposal to Smith and asked for his
    analysis. Smith and Gaedeke agreed that Smith would prepare that portion of the proposal involving
    the extension and expansion of the lease at Highland Ridge I and Gaedeke would prepare that portion
    dealing with The Tower.
    On November 30, 2001, Smith informed Gaedeke that he was leaving his position with
    Grubb & Ellis effective December 6, 2001. Although Smith assured Gaedeke that he would continue
    to be available to support Gaedeke’s negotiations with Bridgestone, Smith failed to keep this promise
    after his departure from Grubb & Ellis.
    On January 3, 2002, Gaedeke sent Grubb & Ellis a letter in which Gaedeke notified Grubb
    & Ellis of its intent to terminate the Agreement “pursuant to paragraph 3.” The letter served as the
    30-days advance notice required by the Agreement, so the termination became effective on February
    2, 2002. In the letter, Gaedeke explained that although it had “enjoyed [its] collaboration with Grubb
    & Ellis,” it felt that its relationship had been with Smith, and in light of Smith’s departure, Gaedeke
    intended to interview a new leasing team. Gaedeke invited Grubb & Ellis to submit a list of all the
    leasing projects that Grubb & Ellis was currently working on and that, consistent with the
    Agreement, Gaedeke would give Grubb & Ellis “a 90-day window after the termination is in effect
    -4-
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    to close those deals and be paid exclusively.” Gaedeke further indicated that it would give Grubb
    & Ellis an opportunity to put forward a new Grubb & Ellis leasing team “within the next couple of
    weeks.”
    Grubb & Ellis responded on January 16, 2002. In its letter, Grubb & Ellis expressed regret
    at Gaedeke’s decision and confirmed that it “would like to present our qualifications to secure the
    listing going forward.” In a letter dated January 30, 2002, Grubb & Ellis provided Gaedeke with a
    list of all the prospective tenants it had worked with, such that, if Gaedeke consummated leases with
    any of them, Grubb & Ellis would be entitled to a commission. The list included ten prospective
    tenants, including Bridgestone. Grubb & Ellis closed the letter by saying that “[i]t was my hope that
    you would have given us the opportunity to continue our relationship.”
    Gaedeke responded the next day, January 31, 2002, and confirmed that it would honor its
    obligation to pay commissions to Grubb & Ellis if lease agreements with any of the ten prospective
    tenants closed within ninety days of the termination of the Agreement. Thus, Gaedeke’s view was
    that the Agreement did not require it to pay any commissions to Grubb & Ellis for leases that were
    executed after May 3, 2002, the expiration of the ninety-day window.
    According to Gaedeke, its lease negotiations with Bridgestone regarding the two-part
    proposal ceased on March 20, 2002.         Apparently, the negotiations came to a halt because
    Bridgestone entered into negotiations with another commercial property owner that would enable
    Bridgestone to locate all of its offices in a single building, something the two-building negotiations
    with Gaedeke did not contemplate.
    Beginning on May 15, 2002, however, Bridgestone resumed negotiations with Gaedeke after
    -5-
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    Bridgestone’s negotiations with the other commercial landlord cratered.           At this juncture,
    Bridgestone informed Gaedeke that its leasing needs had changed. Bridgestone now sought to lease
    approximately 65,000 square feet in The Tower and sub-lease 134,000 square feet of space in The
    Tower from the Tennessee Valley Authority (“TVA”), which was already a Gaedeke tenant.
    Although Gaedeke regarded this as a less desirable arrangement because Gaedeke would lose TVA
    as a tenant and increase the amount of space it was leasing by only 65,000, Gaedeke prepared a
    proposal reflecting this request and sent it to Bridgestone for review. Thereafter, Gaedeke and
    Bridgestone only negotiated over the 65,000 square feet of space in The Tower, and Bridgestone
    negotiated with the TVA about obtaining a sub-lease of the TVA’s 134,00 square feet in The Tower.
    A letter of intent was signed on July 3, 2002, and the final lease was executed on September 6, 2002.
    After the lease was executed, Gaedeke paid a total commission of 5.5 percent of the base rent
    during the initial term of the lease, including 4 percent to Bridgestone’s broker, Cherry, and 1.5
    percent to itself. The 1.5 percent commission equals $270,254.46. Grubb & Ellis concedes that it
    would have been reasonable to pay Cherry a 4 percent commission, but it contends that it is entitled
    to the 1.5 percent commission that Gaedeke paid to itself.
    B.     Procedural History
    Grubb & Ellis filed its complaint in Tennessee state court on December 10, 2002. Gaedeke
    timely removed the case to federal court based on diversity jurisdiction.
    The parties cross-moved for summary judgment. The district court held that under Tennessee
    law, Grubb & Ellis was not entitled to a commission because it was not the “procuring cause” of the
    lease transaction between Gaedeke and Bridgestone. The district court thus granted summary
    -6-
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    judgment for Gaedeke. Grubb & Ellis appealed and this Court reversed and remanded on March 30,
    2005. See Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd., 
    401 F.3d 770
    (6th Cir. 2005)
    (“Grubb & Ellis I”).
    On remand, the parties again brought cross-motions for summary judgment. The district
    court granted Grubb & Ellis’s motion, concluding that Grubb & Ellis was entitled to a commission
    under the Agreement. The parties then separately briefed the issue of how much money Grubb &
    Ellis was owed. Grubb & Ellis also filed a motion for attorneys’ fees and expenses. On December
    12, 2005, the magistrate judge issued a Report and Recommendation awarding Grubb & Ellis a
    commission of $270,254.46, pre-judgment interest of $49,634.21, attorneys’ fees of $103,309.50,
    and expenses of $5,944.06. The district judge entered an order on January 6, 2006, overruling the
    parties’ objections to the magistrate judge’s Report and Recommendation, and adopting the Report
    and Recommendation in full. Thereafter, on January 13, 2006, Gaedeke filed a notice of appeal,
    arguing that the district court erred in granting summary judgment for Grubb & Ellis, and in granting
    and calculating the amount of attorneys’ fees and pre-judgment interest owed Grubb & Ellis.
    II. DISCUSSION
    A.     The Summary Judgment Order
    1.      Standard of Review
    A grant of summary judgment is reviewed de novo using the same legal standard employed
    by the district court. Wojzik v. City of Romulus, 
    257 F.3d 600
    , 608 (6th Cir. 2001). Summary
    judgment is appropriate where the record shows that “there is no genuine issue as to any material fact
    and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
    -7-
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    movant has the burden of proving the absence of any genuine issues of material fact. Celotex Corp.
    v. Catrett, 
    477 U.S. 317
    , 325 (1986). In determining whether the movant has met its burden, the
    Court views the evidence in the light most favorable to the nonmoving party. Matsushita Elec.
    Indus. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986). To show the existence of a genuine
    factual issue, the nonmoving party must demonstrate that “there is sufficient evidence favoring the
    nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 249 (1986).
    2.      Tennessee Contract-Law Principles
    The Agreement between the parties calls for it to be interpreted according to Tennessee
    principles of contract law. In interpreting contracts, Tennessee law requires courts to “ascertain the
    intention of the parties based upon the usual, natural, and ordinary meaning of the contractual
    language.” Guiliano v. CLEO, Inc., 
    995 S.W.2d 88
    , 95 (Tenn. 1999). “If a contract’s language is
    clear and unambiguous, then the literal meaning of the language controls the outcome of the contract
    dispute.” Teter v. Republic Parking Sys., 
    181 S.W.3d 330
    , 342 (Tenn. 2005). “The courts do not
    concern themselves with the wisdom or folly of a contract . . . and are not at liberty to relieve parties
    from contractual obligations simply because these obligations later prove to be burdensome or
    unwise.” Tenn. Div. of the United Daughters of the Confederacy v. Vanderbilt Univ., 
    174 S.W.3d 98
    , 118 (Tenn. Ct. App. 2005) (internal citations omitted). Courts “will not make a new contract for
    parties who have spoken for themselves.” Id.; see also Braden v. Strong, No. M2004-02369-COA-
    R3-CV, 2006 Tenn. App. LEXIS 104, *31 (Tenn. Ct. App. Feb. 16, 2006) (stating that courts cannot
    rewrite contracts for the parties “but can only enforce the contract which the parties themselves have
    -8-
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    made”).
    3.      Paragraph 8.4 of the Agreement Controls the Resolution of the Parties’ Dispute
    This case involves a straightforward contract dispute. Paragraph 8.4 of the Agreement says
    that Gaedeke will pay Grubb & Ellis a commission if, within ninety days of the Agreement’s
    termination, “the property is leased to, or negotiations continue or resume leading to the execution
    of a lease with any person or entity with whom [Grubb & Ellis] has negotiated.” These are the only
    requirements to fulfillment of paragraph 8.4. Moreover, the contractual language does not admit of
    any exceptions permitting Gaedeke to withhold the payment of a commission, provided that the
    foregoing requirements are satisfied. See Grubb & Ellis 
    I, 401 F.3d at 774
    (referring to paragraph
    8.4 and commenting that “[t]he relevant terms of the contract between Gaedeke and Grubb & Ellis
    leave little room for interpretation regarding the right to a commission after the agreement has
    ended”).
    There is no dispute that while the contract was in force, Grubb & Ellis negotiated with
    Bridgestone, first directly and then in support of Gaedeke’s efforts. There is no dispute that Gaedeke
    negotiated with Bridgestone during the ninety-day post-termination period, which expired on May
    3, 2002. Finally, there is no dispute that Gaedeke successfully executed a lease with Bridgestone on
    September 6, 2002.
    Based on these uncontroverted facts, and the plain language of the Agreement, the district
    court correctly concluded that Grubb & Ellis is entitled to a commission on the lease transaction
    between Gaedeke and Bridgestone.
    4.      Gaedeke’s Challenges to the District Court’s Order
    -9-
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    Gaedeke raises several assignments of error, none of which has merit. Each of Gaedeke’s
    arguments are discussed in turn.
    a)      Gaedeke is Not Relieved of its Obligation to Pay Grubb & Ellis by Virtue of Grubb
    & Ellis’s Purported Breach of the Agreement
    As an initial matter, Gaedeke argues that Grubb & Ellis breached its duties under paragraphs
    6, 8.1, and 9.1 of the Agreement and that therefore, under Tennessee law, Grubb & Ellis forfeited
    its right to a commission. These provisions specify the brokerage services that Grubb & Ellis was
    obliged to provide. Under paragraph 6.1, Grubb & Ellis agreed to market Gaedeke’s rental property
    to prospective tenants: “Broker agrees to diligently investigate and develop such offers or inquiries,
    to canvass, solicit and otherwise employ its best efforts and services to lease space in the Building.”
    Paragraph 8.1 conditions Grubb & Ellis’s receipt of a commission on Grubb & Ellis’s “agreement
    to professionally use its best efforts to lease space in the Building.” Paragraph 9.1 enumerated
    Grubb & Ellis’s specific duties, including, among other things, staffing an on-site leasing office with
    a licensed agent; preparing promotional materials; working with outside brokers who represented
    prospective tenants; presenting Gaedeke with lease proposals submitted by prospective tenants; and
    assisting Gaedeke in negotiating and executing leases.
    According to Gaedeke, once Smith separated from Grubb & Ellis, Grubb & Ellis failed to
    perform any of its brokerage duties under the Agreement with respect to Bridgestone and other
    prospective tenants. As a result, Gaedeke was not able to draw on Smith’s expertise and assistance
    and Gaedeke was left in a materially worse negotiating posture relative to Bridgestone than it would
    have been in had Smith remained at Grubb & Ellis.
    - 10 -
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    Gaedeke argues that it cannot be held liable for the commission because Grubb & Ellis
    committed the first material breach of the contract. Gaedeke supports its argument by citing to
    section 237 of the Restatement (Second) of Contracts, which says that “[a] material failure of
    performance . . . prevents performance of those duties from becoming due, at least temporarily, and
    it discharges those duties if it has not been cured during the time in which performance can occur.”
    Even if Grubb & Ellis breached the Agreement, Gaedeke is still required to pay the
    commission. As the district court correctly concluded, paragraph 8.4 in no way conditions receipt
    of the commission upon Grubb & Ellis’s performance of its duties under the contract. Had Gaedeke
    intended to ensure that Grubb & Ellis could not recover a commission if Grubb & Ellis committed
    a material breach of the contract, Gaedeke could have drafted paragraph 8.4 to reflect this intention.
    See 
    Giuliano, 995 S.W.2d at 95
    . Gaedeke did not do so, either expressly or implicitly, and this
    Court is powerless to insert a contractual term into the Agreement, which the plain language of the
    Agreement forecloses. Braden, 2006 Tenn. App. LEXIS at *31.
    Furthermore, Gaedeke’s allegations of a breach are not supported by the record. Gaedeke
    never notified Grubb & Ellis that it believed Grubb & Ellis had breached the Agreement, nor did it
    give Grubb & Ellis an opportunity to correct that breach. When Gaedeke informed Grubb & Ellis
    that it was terminating the Agreement, it stated that it had enjoyed [its] collaboration with Grubb &
    Ellis,” and that it would give Grubb & Ellis an opportunity to present a new leasing team in Smith’s
    stead within a few weeks. Neither of these statements is consistent with the view that Grubb & Ellis
    failed to perform under the Agreement. Similarly, although Grubb & Ellis characterizes Smith as
    having abdicated his responsibilities to continue to support Gaedeke’s negotiations with Bridgestone,
    - 11 -
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    Gaedeke apparently went to great pains to persuade Smith to continue handling Gaedeke’s brokerage
    needs by either coming to work directly for Gaedeke as a Gaedeke broker, or by affiliating with
    another brokerage house of national repute and taking the Gaedeke account there. In short, the
    record no where reflects contemporaneous charges of breach that Gaedeke now levels against Grubb
    & Ellis.
    Finally, because Grubb & Ellis’s purported breach of the Agreement does not relieve
    Gaedeke of paying a commission, Gaedeke’s argument that Grubb & Ellis may only recover in
    quantum meruit, i.e., for the value of the work Grubb & Ellis actually performed, is meritless.
    b)      Paragraph 7 Does Not Exempt Gaedeke from Paying Grubb & Ellis a Commission
    Gaedeke next argues that it is not required to pay a commission to Grubb & Ellis because
    Bridgestone insisted upon dealing directly with Gaedeke. Gaedeke acknowledges that paragraph 7
    of the Agreement preserves Grubb & Ellis’s right to a commission even where Gaedeke conducts
    negotiations directly with the prospective tenant. Nonetheless, Gaedeke claims that Grubb & Ellis
    is only entitled to the protection of this provision where Gaedeke intercedes in the negotiations of
    its own volition, not where Gaedeke is drawn into the negotiations by the insistence of the
    prospective tenant.
    This argument borders on the frivolous. The plain language of paragraph 7 does not make
    the distinction that Gaedeke urges upon this Court. Moreover, Bridgestone is not a party to the
    Agreement. Bridgestone could not exercise the right of Gaedeke to preempt Grubb & Ellis in the
    negotiations; only Grubb & Ellis could do that.
    c)      Gaedeke’s Lease with Bridgestone Did Not Result from New Negotiations
    - 12 -
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    Gaedeke next contends that the lease with Bridgestone resulted from totally separate
    negotiations that did not commence until the ninety-day post-termination period had expired. As
    proof, Gaedeke argues that the terms of the executed lease were substantively different from those
    discussed while the Agreement was in effect and during the post-termination period: Whereas the
    initial negotiations centered on Gaedeke’s purchasing Bridgestone’s buildings and Bridgestone
    renewing and expanding its lease in Highland Ridge I, the terms of the July 3, 2002 letter of intent
    executed by Gaedeke and Bridgestone instead entailed Bridgestone’s leasing space exclusively in
    The Tower and arranging a sub-lease with the TVA. Thus, according to Gaedeke, the lease that was
    ultimately agreed to had nothing to do with the negotiations that were underway during the pendency
    of the Agreement and during the post-termination period.
    Once again, the plain language of the Agreement contradicts Gaedeke’s argument. Paragraph
    8.4 simply says that Grubb & Ellis is entitled to a commission if a lease is either executed within
    ninety days of the termination of the Agreement, or if negotiations “continue or resume leading to
    the execution of a lease” during this period. There is no dispute that the lease was executed after the
    ninety-day post-termination period but only a question as to whether the negotiations “continued”
    during this period. Even if Gaedeke is right that the negotiations stalled in mid-March 2002 and did
    not re-start until May, after the expiration of the ninety-day post-termination period, the negotiations
    that occurred during the post-termination period ultimately culminated in the execution of the lease.
    This is sufficient to entitle Grubb & Ellis to a commission. Moreover, paragraph 8.4 does not
    extinguish Grubb & Ellis’s right to a commission just because the negotiations altered in character
    - 13 -
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    or substance over time. Indeed, it would contradict the meaning of the word “negotiations,” which
    signifies trade-offs and compromise, if the Agreement conditioned the receipt of a commission upon
    the substance of the negotiations remaining static. See Merriam Webster’s Collegiate Dictionary,
    10th ed. (1995) (defining “negotiate” as “to arrange for or bring about through conference,
    discussion, and compromise”).
    In addition to the plain language of the Agreement not supporting Gaedeke’s “new”
    negotiations argument, the record does not substantiate it. The record shows that Gaedeke rejected
    the idea of purchasing Bridgestone’s buildings before the end of the ninety-day post-termination
    period. In fact, proposals circulated by Bridgestone and Gaedeke on January 21, 2002, February 15,
    2002, and March 12, 2002 make no mention of Gaedeke acquiring Bridgestone’s buildings.
    Similarly, discussions about Bridgestone entering into a sublease with the TVA first occurred during,
    not after, the expiration of the ninety-day post-termination period. In an email dated February 28,
    2002, Bridgestone broker Cherry asked Gaedeke to be prepared to discuss how much space
    Bridgestone could take over from the TVA. The TVA sublease is also referenced in emails dated
    April 19, 2002 and April 24, 2002. Thus, the facts simply do not support the proposition that the
    terms that ultimately comprised the executed lease did not surface until after the ninety-day post-
    termination period had run.
    d)      Paragraph 8.4 Does Not Contain a Time Limitation and There is no Basis Upon
    Which This Court Could Engraft Such a Limitation onto this Provision
    Gaedeke next argues that the district court’s ruling has the perverse consequence of enabling
    Grubb & Ellis to obtain a commission “into perpetuity.” Gaedeke asks this Court to read a
    - 14 -
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    reasonable time limitation into paragraph 8.4, such that if its lease with Bridgestone was not
    executed within this reasonable time, Grubb & Ellis would not be entitled to a commission.
    Conveniently, Gaedeke defines a “reasonable time” as ninety days.
    Gaedeke’s argument is unavailing. Its preferred reading of paragraph 8.4 defies that
    provision’s plain language, which, by its terms, sets no outside boundaries beyond which Grubb &
    Ellis is precluded from receiving a commission. To read a ninety-day limitation into paragraph 8.4
    would violate this Court’s duty to refrain from re-writing the parties’ contract and would eviscerate
    paragraph 8.4’s command that Grubb & Ellis is entitled to a commission so long as the negotiations
    “continue[d] or resume[d]” within ninety days of the Agreement’s termination.
    Confronted with a losing hand under the plain language of paragraph 8.4, Gaedeke cites to
    this Court’s interpretation in Grubb & Ellis I of the Tennessee Supreme Court’s memorandum
    opinion in Marx & Bensdorf, Inc. v. Hall as support. Grubb & Ellis I considered Marx & Bensdorf
    solely to determine whether Tennessee law required Grubb & Ellis to be a “procuring cause” of
    Gaedeke’s lease with Bridgestone in order to recover a commission. Grubb & Ellis I did not rule
    that contractual terms that allow brokers to collect commissions on deals consummated after the
    termination of the contract, and that do not impose any deadlines for doing so, are impermissible.
    Moreover, nothing in Marx & Bensdorf itself suggests that courts should modify contractual
    language to impute a reasonable time limitation into brokerage contracts that are silent with respect
    to how long after the expiration of the contract a broker is entitled to a commission.
    For the foregoing reasons, we affirm the grant of summary judgment to Grubb & Ellis.
    B.     The Pre-Judgment Interest and Attorneys’ Fees Award
    - 15 -
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    In a Report and Recommendation dated December 22, 2005, the magistrate judge awarded
    Grubb & Ellis a commission of $270,254.46, pre-judgment interest of $49,634.21, and attorneys’
    fees and expenses of $109,253.56. In an order entered on January 6, 2006, the district judge adopted
    the magistrate judge’s recommendations.
    Gaedeke does not challenge the amount of the commission awarded to Grubb & Ellis.
    However, Gaedeke objects to the award of both pre-judgment interest and attorneys’ fees. Gaedeke
    further argues that to the extent these awards are authorized, they were improperly calculated below.
    1.      Standard of Review
    We review a district court’s decision to award pre-judgment interest for an abuse of
    discretion. Conte v. Gen. Housewares Corp., 
    215 F.3d 628
    , 633 (6th Cir. 2000). The abuse-of-
    discretion standard also applies to our review of the trial court’s grant of attorneys’ fees. Owner-
    Operator Indep. Drivers Ass’n v. Bissell, 
    210 F.3d 595
    , 597 (6th Cir. 2000). “[A]n abuse of
    discretion exists only when the court has the definite and firm conviction that the district court made
    a clear error of judgment in its conclusion upon weighing relevant factors.” Moon v. Unum
    Provident Corp., 
    461 F.3d 639
    , 643 (6th Cir. 2006).
    2.      Pre-Judgment Interest
    As an initial matter, Tennessee law supports the award of pre-judgment interest in the
    circumstances here.1 Under Tennessee Code Annotated section 47-14-109(b), pre-judgment interest
    1
    Gaedeke argues that to the extent pre-judgment interest may be ordered, it should be
    calculated according to the federal statute governing post-judgment interest. See 28 U.S.C. §
    1961 (2006). However, this statute is inapplicable because “[i]n a diversity case, state law
    governs the district court’s decision whether to award prejudgment interest . . .” Conte, 215 F.3d
    - 16 -
    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    is mandatory. This provision provides that “[l]iquidated and settled accounts, signed by the debtor,
    shall bear interest from the time they become due.” Here, the liquidation requirement is satisfied
    because “the amount of the debt is certain or can be made certain by mere computation.”
    Performance Sys., Inc. v. First Amer. Nat’l Bank, 
    554 S.W.2d 616
    , 618-19 (Tenn. 1977). Gaedeke
    does not dispute that the amount of the commission owed to Grubb & Ellis is $270,254.46.
    Moreover, there is no dispute that Gaedeke signed the Agreement. The requirements of Tennessee’s
    mandatory pre-judgment interest statute are therefore satisfied.
    In addition, Tennessee Code Annotated section 47-14-123 also enables Grubb & Ellis to
    collect pre-judgment interest. That provision says that “[p]rejudgment interest . . . may be awarded
    by courts or juries in accordance with the principles of equity at a rate not in excess of a maximum
    effective rate of ten percent (10%) per annum.”
    The magistrate judge concluded that equity supported the award of pre-judgment interest
    because “[t]he defendants paid a commission to themselves and thus had the benefit of those funds
    for the entire time leading up to the final decision of the District Judge in this matter.” See
    Rybarczyk v. TRW, Inc., 
    235 F.3d 975
    , 985 (6th Cir. 2000) (“We have long recognized that the
    district court may award prejudgment interest at its discretion in accordance with general equitable
    principles.”) (internal citation omitted). Although Grubb & Ellis urged the magistrate judge to apply
    a variable interest rate between 8 and 10 percent, the magistrate judge determined that 7 percent was
    a fair rate because it “approximat[ed] the interest the plaintiffs would have received had they been
    at 633.
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    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    paid.” 
    Id. at 986
    (noting that courts may apply the interest rate actually earned by the defendants on
    the money wrongfully withheld).
    Paragraph 8.2(a) of the Agreement specifies that Gaedeke would pay Grubb & Ellis half of
    the amount of the commission two weeks after Gaedeke received, among other things, a fully
    executed copy of the lease and the first month’s rent. Gaedeke was obligated to pay the balance of
    the commission two weeks after the tenant occupied the premises.
    Based on the foregoing, the magistrate judge calculated a 7 percent rate on half of the amount
    of the commission, i.e., $135,077.23 from October 14, 2002 (two weeks after Gaedeke received the
    executed lease) through March 19, 2003. The magistrate judge then calculated the 7 percent rate on
    the full commission amount, $270,154.46,2 from March 19, 2003 (two weeks after Bridgestone took
    possession of the premises) through the date of the district court’s judgment. This resulted in an
    accrued amount of pre-judgment interest of $49,634.21, which is less than the total award of
    $66,348.57, that Grubb & Ellis calculated based on a higher interest rate (eight to ten percent).
    Gaedeke contends that to the extent an interest award may be made here, the district judge
    erred by accepting the magistrate judge’s calculations. Gaedeke says that interest on the commission
    should not be deemed to have begun accruing until March 30, 2005, the date of this Court’s decision
    reversing the district court’s grant of summary judgment for Gaedeke. Gaedeke reasons that its
    position in defending the lawsuit was reasonable and that until this Court’s prior disposition
    2
    We note that the parties agree that the commission amount is $270,254.46. The
    magistrate judge, however, appears to have mistakenly calculated the amount of pre-judgment
    interest due to Grubb & Ellis based on a total commission of $270,154.46. The parties do not
    object to this mistake, and we therefore do not deal with it.
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    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    clarifying the state of the law with respect to the “procuring cause” issue, Gaedeke had prevailed.
    This argument does not warrant reversing the district court’s exercise of discretion in awarding pre-
    judgment interest. In recommending an interest award, the magistrate judge took “into account the
    fact that the defendants did have a reasonable basis for their claim, and in fact, initially prevailed in
    this matter.”
    Accordingly, we affirm the district court’s grant of pre-judgment interest to Grubb & Ellis.
    3.     Attorneys’ Fees
    Paragraph 15.4 of the Agreement provides that in a dispute over the meaning of the
    Agreement, the prevailing party “shall be entitled to recover” its attorneys’ fees. Paragraph 15.4
    states:
    In the event that a dispute arises between [Gaedeke] and [Grubb &
    Ellis] under the terms of this Agreement and such dispute results in
    judicial action, the prevailing party shall be entitled to recover as a
    part of such action its reasonable attorneys’ fees and court costs.
    Grubb & Ellis moved for $124,834 in attorneys’ fees and $5,944.06 in costs, for a total award
    of $130,778.06. Gaedeke argued, as it does on appeal, that Grubb & Ellis’s expenditure of 460
    billing hours litigating the case was excessive and that the billing rate for Grubb & Ellis’s attorneys
    is too high. Gaedeke points out that its counsel spent only 255 hours to prepare the same work
    product and charged a lesser hourly rate.
    The magistrate judge concluded that Grubb & Ellis was entitled to recover attorneys’ fees
    and costs given the Agreement’s authorization for such an award for a prevailing party. In
    considering what a fair and reasonable amount of attorneys’ fees would be, the magistrate judge took
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    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    into account the “excellent result” procured by Grubb & Ellis’s counsel, as well as the fact that “the
    attorney who is on the offense in a particular case will normally be required to expend more time
    than an attorney in a defensive posture.” However, in light of the substantial discrepancy in the
    amount of time that each party spent on the case (a difference of approximately 205 hours), the
    magistrate judge reduced the number of billable hours for which Grubb & Ellis could obtain
    attorneys’ fees from 460.35 to 375. The magistrate judge then assigned $270 as a reasonable hourly
    rate for Grubb & Ellis’s lead counsel and further calculated the hourly rates for the other Grubb &
    Ellis attorneys and paralegals who worked on the case.
    Thus, the magistrate judge followed this Court’s instructions for awarding attorneys’ fees in
    that he “calculate[d] the number of hours reasonably expended on the litigation multiplied by a
    reasonable hourly rate” and he considered the result obtained by Grubb & Ellis’s counsel in making
    these calculations. Jordan v. City of Cleveland, 
    464 F.3d 584
    , 602 (6th Cir. 2006). Moreover, given
    the magistrate judge’s careful review of the time records and affidavits submitted by both parties,
    and the magistrate judge’s greater familiarity with prevailing attorney billing rates in the Nashville
    market, we have no basis for concluding that the district judge abused his discretion in adopting the
    Report and Recommendation of the magistrate judge.
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM the judgment of the district court granting summary
    judgment to Grubb & Ellis and awarding Grubb & Ellis attorneys’ fees and pre-judgment interest.
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    No. 06-5107
    Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd. and Gaedeke Landers, LLC
    - 21 -