74 F.3d 1244
Robert I. SCISSORS; William H. Lippy; Thomas M. Blassie;
Orin S. Nieman; NCO Financial Corporation; South County
Properties, Inc., an Illinois Corporation, doing business as
South Plaza Ventures, Plaintiffs-Appellants,
v.
DRESS BARN, INC., Defendant-Appellee.
Robert I. SCISSORS; William H. Lippy; Thomas M. Blassie;
Orin S. Nieman; NCO Financial Corporation; South County
Properties, doing business as South Plaza Ventures, Inc., an
Illinois Corporation, Plaintiffs-Appellants,
v.
DRESS BARN, INC., Defendant-Appellee.
Nos. 95-1971, 95-2029.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 8, 1996.
Filed Jan. 12, 1996.
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.
Before RICHARD S. ARNOLD, Chief Judge, REAVLEY,* Senior Circuit Judge and Hansen, Circuit Judge.
REAVLEY, Circuit Judge.
In our previous opinion dated January 12, 1993, we reversed the district court's denial of SPV's claim for damages. We remanded the case with instruction to award SPV its back rent, interest and attorney's fees. The district court was to deduct from that recovery any amount to which Dress Barn might be entitled, under the facts and law, for reasons of occupancy or duty to mitigate.
The district court incorrectly awarded SPV its unpaid rent and prejudgment interest as of the date of its original judgment on September 13, 1991. Because this court held that SPV was entitled to recover the rent it was due as it became due, the district court should have awarded the full return to the end of the lease on June 30, 1993.
The parties stipulated the amount of rent and interest due to September 13, 1991. No complaint is made by Dress Barn of the holding by the district court that SPV was under no duty to mitigate damages by reletting.
We vacate the March 28, 1995 judgment and remand the case for recomputation of the award. The court is instructed to award SPV its rent to the end of the lease, with prejudgment interest to accrue until the date of this judgment on remand. SPV will also be entitled to its attorney's fees throughout the course of this litigation.
Vacated and Remanded.
The HONORABLE THOMAS M. REAVLEY, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation