Indeck Power Equipment Company v. Ashley Energy LLC
CourtCourt of Appeals for the Seventh Circuit
Date FiledOctober 27, 2026
Docket26-1390
JudgeRipple
StatusPublished
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Full Opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 26-1390
INDECK POWER EQUIPMENT COMPANY,
Plaintiff-Appellant,
v.
ASHLEY ENERGY LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-01353 — LaShonda A. Hunt, Judge.
____________________
ARGUED SEPTEMBER 18, 2026 — DECIDED OCTOBER 27, 2026
____________________
Before EASTERBROOK, RIPPLE, and KOLAR, Circuit Judges.
RIPPLE, Circuit Judge. Indeck Power Equipment Co. (“In-
deck”) filed this action against Ashley Power LLC (“Ashley”),
claiming that Ashley had breached the parties’ lease agree-
ment by damaging a boiler leased from Indeck. 1 After
1 Ashley had previously filed an action against Indeck in Missouri state
court, seeking recission of the lease between Indeck and Ashley. Ashley’s
claims were dismissed on August 25, 2021, because the lease contained a
2 No. 26-1390
discovery, the district court conducted a five-day trial, and
the jury returned a verdict for Ashley. In response to specific
questions, 2 the jury responded that Indeck had performed its
obligations under the contract and that Ashley had breached.
But, the jury also responded that Indeck had failed to show
that it had sustained damage because of Ashley’s breach. In-
deck then filed a motion for a new trial, submitting that the
jury’s verdict was against the manifest weight of the evidence
and constituted an impermissible compromise verdict. In-
deck also submitted a petition for fees and costs. The district
court denied both requests. Indeck then filed this timely ap-
peal.
For the reasons set forth in this opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A. Facts
In 2019, Ashley—an energy company servicing the
St. Louis, Missouri area—experienced severe flooding in its
plant, which caused damage to various equipment and
threatened the company’s ability to generate heat and steam
for its customers. To maintain production, Ashley needed to
rent boilers. Therefore, it contacted Indeck, a company which
sells and leases boilers and other related equipment.
forum selection clause designating the federal and state courts of Cook
County, Illinois.
2 See Fed. R. Civ. P. 49(b).
No. 26-1390 3
Boilers supply steam to industrial and commercial build-
ings by heating large amounts of water. When water flowing
into a boiler contains high quantities of certain minerals—re-
ferred to as high total hardness—a boiler will develop scale
and cease to function properly. Water treatment trailers filter
and soften the water flowing into boilers to avoid this mineral
buildup. The American Boiler Manufacturers Association
(“ABMA”) and American Society of Mechanical Engineers
(“ASME”) recommend that a boiler take in water with a hard-
ness of 0.3 parts per million or less. Further, they suggest
boiler operators check total hardness of feed water three times
per day.
In January 2020, Indeck and Ashley executed a lease for a
75,000 pound per hour boiler and related equipment. Specifi-
cally, this agreement required Indeck to provide, in part, a
“like-new” boiler and a new water treatment trailer. Ashley
undertook, among other requirements, to operate and to
maintain the equipment consistent with sound boiler indus-
try practices, to follow ABMA operation guidelines, and to
pay the cost of all repairs and replacements. The lease also in-
cluded indemnity and fee-shifting provisions.
Once the equipment arrived in early 2020, Indeck’s service
technician started the boiler and trained Ashley operators.
During this start-up period, the system’s flowmeters malfunc-
tioned. Flowmeters measure how much water enters the
equipment and are crucial to maintaining proper water hard-
ness. About a week after start-up was complete, Ashley em-
ployees continued to notice problems and identified hard wa-
ter being sent to the boiler. At that point, Indeck’s technician
instructed Ashley employees to clean the flowmeters.
4 No. 26-1390
In April 2020, Ashley returned the boiler. An Indeck sales-
person noted that the “rental equipment operated fine” but
that he hoped the Indeck team could “learn from these short-
comings and not repeat our mistakes moving forward.” 3 No-
tably, he described the boiler start-up as a “fiasco” and ex-
plained that he was unsure if Ashley would be a repeat cus-
tomer. 4
Following the return of the boiler, Indeck inspected the
equipment and noticed a large amount of scale and debris. On
April 14, 2020, Indeck notified Ashley of this situation. Indeck
then attempted to clean the tank using hydroblasting tech-
niques but refused to employ detailed chemical cleaning.
These efforts proved unsuccessful and, after Ashley refused
to help, Indeck filed this action.
B. Proceedings in the District Court 5
At trial, Indeck sought $3,005,118 for replacement of the
boiler, costs, thirty months of continuing rent, storage
charges, and interest. The jury heard testimony from execu-
tives of both Indeck and Ashley as well as company employ-
ees, who described the problematic start-up and the various
attempts to clean the boiler. Additionally, the president of
Wabash Power Equipment Company (“Wabash”) testified
that his company had also rented a boiler to Ashley during
the same period but that this boiler was not damaged. Fur-
ther, the parties presented expert testimony concerning
3 R.192-5 at 1.
4 Id.
5 The jurisdiction of the district court was predicated on 28 U.S.C. § 1332.
No. 26-1390 5
possible causes of boiler scale, available cleaning methods,
and the extent to which the Indeck boiler was damaged.
The district court instructed the jury that, to prevail on its
allegations, Indeck had to prove: (1) the existence of a valid
and enforceable contract; (2) performance by Indeck; (3) ma-
terial breach by Ashley; and (4) damages to Indeck resulting
from Ashley’s breach. 6 The instructions continued by specifi-
cally describing each of the remaining elements. Of particular
note, Instruction No. 17 concerned Indeck’s performance and,
with respect to Indeck’s obligations, required a jury to find, in
part, that Indeck delivered a “like-new” boiler and a new wa-
ter treatment trailer, and that it provided a service technician
“to supervise the initial start-up by Ashley’s operators and
train Ashley’s operating personnel.” 7 Instruction No. 17 de-
fined “substantially performed” as:
[T]he honest and faithful performance of the
contract in its material and substantial parts,
with no willful departure from, or omission of,
the essential elements of the contract. Indeck
satisfied this standard if its performance did not
defeat the objectives of the parties in making the
agreement. 8
6 The parties agreed that the lease was a valid and enforceable contract.
7 R.188 at 17.
8 Id.
6 No. 26-1390
Instruction No. 18 addressed Ashley’s alleged breach and
described seven distinct obligations Ashley needed to meet.
The instructions specified that Ashley was required to:
[O]perate and store the boiler and/or the trailer
in a careful and proper manner; promptly notify
Indeck if the equipment required any mainte-
nance or repair; return the boiler and the trailer
in the same condition as when received from In-
deck, ordinary wear and tear excepted; use only
duly trained and qualified operators to operate
and maintain the boiler and/or the trailer con-
sistent with customary and sound boiler indus-
try practice; maintain ABMA boiler water
guidelines during boiler operation, hot stand-by
or layup conditions; pay Indeck the cost of all
repairs and replacement parts regardless of the
cause or type of damage or wear, other than
those resulting from ordinary wear and tear;
and pay Indeck continued rental payments un-
der the contract until such time as the boiler
and/or the trailer was repaired or replaced. 9
The Instruction went on to note that “Ashley claims it did
not breach the contract because it properly operated and
maintained the boiler and trailer and, notwithstanding Ash-
ley’s own contract obligations and agreement, any damage to
the boiler was a result of Indeck failing to perform its contrac-
tual obligation.” 10
9 Id. at 18.
10 Id.
No. 26-1390 7
Finally, Instruction No. 19 addressed whether Indeck was
damaged by Ashley’s breach:
If you find in favor of Indeck, you must then de-
cide how much money, if any, would fairly
compensate Indeck for Ashley’s breach of con-
tract. Indeck has the burden of proving, by a
preponderance of the evidence, each element of
damages claimed and that the damages oc-
curred as a direct and natural result of Ashley’s
breach. In calculating Indeck’s damages, you
should determine that sum of money that will
put Indeck in as good a position as it would
have been in if both Indeck and Ashley had per-
formed all of their promises under the con-
tract. 11
The jury returned its verdict a few hours after close of ar-
guments. It found that Indeck performed its obligations un-
der the contract (“Verdict Question 1A”) and that Ashley
breached (“Verdict Question 1B”). However, it failed to find
sufficient evidence that Indeck sustained damage as a result
of Ashley’s breach (“Verdict Question 1C”). 12
Indeck then filed a motion for new trial, arguing that the
verdict was a compromise verdict and against the manifest
weight of the evidence. The district court denied the motion,
characterizing Indeck’s position as “untenable” and noting
that “a finding that Plaintiff performed under the contract …
does not necessarily mean that the jury also found that any
11 Id. at 19.
12 R.193.
8 No. 26-1390
damage was caused by Defendant or even constituted dam-
age beyond normal wear and tear.” 13 The court then offered
“several rational explanations for the jury’s determination.” 14
It suggested the jury may have found Indeck “simply did not
prove that any damage ‘occurred as a direct and natural result
of [Ashley’s] breach.’” 15 It noted that there was sufficient evi-
dence that problems with flowmeters during the boiler start-
up, and the decisions of Indeck’s technician, caused the dam-
age. 16 The court also identified sufficient evidence to support
a conclusion that any scale buildup “did not constitute dam-
age at all and/or was considered normal wear and tear.” 17
Indeck also filed a petition for attorneys’ and experts’ fees
and costs, asking for approximately $1,122,879. It submitted
that the language of the lease’s fee provision allowed for a re-
covery of attorneys’ fees because the jury had found that Ash-
ley breached. The district court disagreed, recognizing that
Indeck did not establish to the jury’s satisfaction the most sig-
nificant element of its cause of action and consequently was
awarded no damages. The court also noted that Indeck pre-
sented no case law involving “a non-prevailing party obtain-
ing an award of fees and costs after having lost at trial.” 18
13 R.220 at 23.
14 Id. at 25.
15 Id.
16 Id.
17 Id. at 26.
18 Id. at 32.
No. 26-1390 9
Indeck timely filed this appeal, challenging the denial of
its motion for a new trial and the petition for fees and costs. 19
II
DISCUSSION
A
We begin our consideration of Indeck’s position by setting
forth the basic principles that must guide our analysis. “As a
rule civil juries must return consistent verdicts.” Deloughery v.
City of Chicago, 422 F.3d 611, 617 (7th Cir. 2005) (quoting Will
v. Comprehensive Acct. Corp., 776 F.2d 665, 676 (7th Cir. 1985)).
“We recognize that when jury verdicts are logically incompat-
ible, thereby indicating that the jury was confused or abused
its power, the district court errs when it fails to order a new
trial.” Stone v. City of Chicago, 738 F.2d 896, 899 (7th Cir. 1984);
see also Fed. R. Civ. P. 49(b), 59(a)(1)(A). That said, “[a] new
trial based on inconsistent verdicts is warranted only when a
jury’s verdict cannot be reconciled with the evidence at trial.”
Fox v. Hayes, 600 F.3d 819, 844 (7th Cir. 2010). Indeed, “[a]ny
plausible explanation for the verdict precludes reversal.” Id.
Also, “[a] new trial is appropriate if the jury’s verdict is
against the manifest weight of the evidence or if the trial was
in some way unfair to the moving party.” Martinez v. City of
Chicago, 900 F.3d 838, 844 (7th Cir. 2018) (citation and quota-
tions omitted). This principle sets a high bar because “it is
uniquely the function of the jury to sift through conflicting
evidence, and on appellate review this court will not reweigh
evidence as long as there is a reasonable basis on record to
support the jury’s verdict.” Stone, 738 F.2d at 900; see also
19 Our jurisdiction is predicated on 28 U.S.C. § 1291.
10 No. 26-1390
Latino v. Kaizer, 58 F.3d 310, 316 (7th Cir. 1995) (“The jury’s
verdict could only be disturbed under the narrowest of cir-
cumstances[.]”).
Here, the district court denied Indeck’s motion for a new
trial because it could discern multiple plausible explanations
for the jury’s verdict. We may reverse that determination
“only upon a showing that the district court abused its discre-
tion.” Am. Nat’l Bank & Tr. Co. of Chicago v. Reg’l Transp. Auth.,
125 F.3d 420, 431 (7th Cir. 1997) (citation omitted) (noting that,
in the context of an appeal based on an allegedly inconsistent
verdict, the abuse of discretion standard is a “heavy burden”
for an appellant); see also Outboard Marine Corp. v. Babcock In-
dus., Inc., 106 F.3d 182, 186 (7th Cir. 1997) (“The trial judge did
not consider the verdict unreasonable, and he had the ad-
vantage over us of having heard the evidence at first hand and
observed the jury. His judgment is therefore entitled to con-
siderable deference.”).
In its analysis, the district court identified two rationales
which, in its view, could explain the jury’s verdict. First, the
court determined that the verdict was consistent because the
jury could have found that Ashley did not cause any damage.
Second, it concluded that there was sufficient evidence for the
jury to find that the boiler was not damaged beyond ordinary
wear and tear. We agree that both rationales are supported by
sufficient evidence and are consistent with the jury’s other
findings and will now discuss each in turn.
No. 26-1390 11
1
Addressing the first of these rationales, the district court
determined that a jury could have found that Ashley did not
cause damage to the boiler. 20 As the court explained:
The jury could have found that Plaintiff did, in
fact, provide such equipment, but that it con-
tained defective components (i.e., flowmeter)
that caused any damage. Similarly, the jury
could have found that Plaintiff provided a tech-
nician to supervise start-up and train Defend-
ant’s personnel, but that the technician also did
things that caused any damage. 21
Indeck contests this determination, submitting that be-
cause the jury found that Indeck fully performed its obliga-
tions, the district court’s rationale was not possible.
We agree with the district court. On the record before it,
the jury was entitled to find that Indeck had provided a like-
new boiler, a new water treatment system, and a service tech-
nician. At the same time, it also could have found Indeck’s
own technical missteps during start-up caused damage to its
boiler.
The jury heard evidence that the boiler fully performed
and that “there was no material change in boiler perfor-
mance” while in use. 22 Further, Indeck provided a service
20 R.220 at 25 (this finding is “not inconsistent with the jury’s finding that
Plaintiff performed its obligation under the contract.”).
21 Id.
22 See R.237 at 1075:25–1076:21; see also R.192-5 at 1 (noting that after start-
up, the “rental equipment operated fine”).
12 No. 26-1390
technician who helped Ashley start up its boiler. These facts
support the jury’s finding, consonant with Instruction No. 17,
that Indeck substantially performed its contractual obliga-
tions. That said, the record also contains enough evidence to
support a finding that Indeck caused its own damage. First,
evidence showed there were problems with the system’s
flowmeters, which impacted the accuracy of water hardness
readings. Indeed, a senior engineer at Indeck opined that it
would have been “unethical” to rent the boiler had he known
about these defects. 23 And Indeck’s expert recognized that
any damage to the boiler likely occurred during the early
stages of the lease when the flowmeter defects were identi-
fied. Ashley also presented evidence that Indeck’s service
technician had failed to relay immediately to Indeck his con-
cerns about the flowmeters. Moreover, emails between In-
deck employees described the start up as a “fiasco” and noted
that “the overall results were underwhelming.” 24 Given the
evidence of system issues during the boiler’s start-up, along
with testimony that the boiler fully performed, a jury could
reasonably conclude that Indeck performed its obligations yet
caused its own damage.
This explanation also squares with the jury’s determina-
tion that, in accord with Instruction No. 18, Ashley breached
its obligations. The record supports a jury finding that Ashley
breached at least one of its seven possible obligations because
not all necessitated a finding that Ashley had caused damage
to the boiler. For example, the jury could have found that Ash-
ley failed to “maintain ABMA boiler water guidelines during
23 See R.236 at 689:16–691:22.
24 See R.192-5 at 1.
No. 26-1390 13
boiler operation.” 25 Although Indeck presented evidence that
Ashley failed to follow guidelines, the jury saw no evidence
that this failure would necessarily require a finding that Ash-
ley caused damage.
Indeck counters that the district court’s theory is not plau-
sible because the case was presented to the jury as a binary
choice: Either Indeck breached and caused damage, or Ashley
breached and caused damage. 26 Indeck invites our attention
to the language of the jury instructions to support this view. 27
Further, review of opening and closing arguments shows that
counsel for Ashley did present the flowmeter issues as evi-
dence that Indeck did not perform.
The jury was not precluded from evaluating the evidence
of record as it did. At bottom, its task was to evaluate all the
evidence submitted by the parties. It had to choose among the
competing inferences and the one it chose was certainly ra-
tional in light of the evidence presented. We evaluate a jury
25 R.188 at 18.
26 Indeck relies on Matthews v. Wis. Energy Corp., 642 F.3d 565 (7th Cir.
2011), for the contention that “[j]ury instructions are considered ‘both in
the context of the other instructions given and in light of the allegations of
the complaint, opening and closing arguments and the evidence of rec-
ord.’” Id. at 571 (citation and quotations omitted). But this case did not
consider whether a verdict was irreconcilably inconsistent. Rather, the
court in Matthews considered whether the district court gave proper jury
instructions. Id.
27 See R.188 at 18 (Jury Instruction No. 18 notes that “Ashley claims it did
not breach the contract because it properly operated and maintained the
boiler and trailer and, notwithstanding Ashley’s own contract obligations
and agreement, any damage to the boiler was a result of Indeck failing to
perform its contractual obligation.”).
14 No. 26-1390
verdict “against the evidence, rather than against the likeli-
hood that the jury arrived at the verdict by the ‘rational’ pro-
cess that a judge would employ.” Outboard, 106 F.3d at 186.
And “[a]ny plausible explanation for the verdict precludes re-
versal.” Fox, 600 F.3d at 844. Because the evidence of record
supports the conclusion that system defects caused the dam-
age, the district court did not abuse its discretion in accepting
it as a basis for its ruling.
2
The district court also identified a second plausible expla-
nation: that Indeck “simply did not sustain any damage from
[Ashley’s] breach.” 28 Indeck claims that this rationale was not
possible because the manifest weight of the evidence shows
that Indeck suffered at least “some” damage.
The district court certainly did not abuse its discretion in
choosing this alternate basis. 29 As the district court noted,
Ashley presented “compelling evidence” regarding the boiler
from Wabash. 30 This evidence concerned a similar boiler
which was used at the same time and with the same water as
Indeck’s boiler. Wabash’s president explained that the
28 R.220 at 25.
29 It is not uncommon for a jury to find a breach, but no damages. See, e.g.,
Prime Choice Servs., Inc. v. Schneider Logistics Transloading & Distrib., Inc.,
861 F.3d 633, 635 (7th Cir. 2017) (“[A] rational jury could find that a zero
damages award would … fairly compensate” the Plaintiff); TAS Distrib.
Co. v. Cummins Engine Co., 491 F.3d 625, 631 (7th Cir. 2007) (“Merely show-
ing that a contract has been breached without demonstrating actual dam-
age does not suffice, under Illinois law, to state a claim for breach of con-
tract.”).
30 R.220 at 26.
No. 26-1390 15
Wabash boiler was not damaged beyond ordinary wear and
tear. He further noted that it was cleaned using a $2,500 in-
spection fee assessed on all boiler orders. The jury also saw
comparison images of the Wabash boiler and Indeck boiler af-
ter they were used at the plant at the same time. And the evi-
dence confirmed that the Wabash boiler was also dirty. The
jury could have reviewed this evidence and concluded that
the Indeck boiler could easily have been cleaned in the same
way the Wabash boiler was cleaned. And it could have found
that such expense would only constitute ordinary wear and
tear.
The jury also may have relied on the testimony of Ashley’s
expert, who found there was “no material change in boiler
performance” and noted that the condition of the boiler tubes
“would not have likely affected the performance of the
boiler.” 31 Further, the jury could have considered a report
finding that there was no metallurgical degradation in the
boiler tubes. Even if the jury determined some cleaning would
be required, they were entitled to find that such cleaning was
minimal and comparable to the cost of cleaning the Wabash
boiler.
Admittedly, there was significant evidence that Indeck’s
boiler suffered damage beyond ordinary wear and tear. Ash-
ley’s expert testified that it would cost between $70,000 and
$100,000 Canadian dollars (approximately $50,000 U.S.) to
clean the boiler. And during closing statements, Ashley’s
counsel noted that “if you're evaluating damages in this case,
which I would submit you shouldn't get there, the total
amount of damages that Indeck incurred should have been
31 See R.237 at 1075:25–1076:21.
16 No. 26-1390
$50,000. That's what it would have taken to clean it.” 32 Fur-
ther, Indeck challenges the strength of the Wabash boiler tes-
timony, attacking the witness’s credibility and the usefulness
of this evidence. But, “this court will not reweigh evidence as
long as there is a reasonable basis on record to support the
jury's verdict.” Stone, 738 F.2d at 900. Although it is true the
jury saw sufficient evidence to show Indeck suffered some
damage, there also was evidence that the boiler had not been
damaged beyond ordinary wear and tear. Indeck’s attempt to
relitigate its case on appeal does nothing to change these facts.
See Prime Choice Servs., Inc. v. Schneider Logistics Transloading
& Distrib., Inc., 861 F.3d 633, 635 (7th Cir. 2017) (“[T]o put it
more bluntly, the jury could find that [Plaintiff] deserved no
more.”).
The district court did not abuse its discretion by recogniz-
ing that there were multiple plausible explanations for the
jury’s verdict.
B
Indeck next contends that the district court abused its dis-
cretion by denying its petition for $1,122,879 in attorneys’ and
experts’ fees and costs incurred in connection with obtaining
dismissal of Ashley’s action in Missouri, dismissal of Ashley’s
counterclaims in this action, and the jury’s verdict finding that
Ashley breached the lease.
Illinois courts follow the American rule: “[A]bsent a stat-
ute or contractual provision, a successful litigant must bear
the burden of his or her own attorney’s fees.” Fednav Int’l Ltd.
v. Cont’l Ins. Co., 624 F.3d 834, 839 (7th Cir. 2010). But where
32 See R.237 at 1227:14–20.
No. 26-1390 17
the parties agree to a contractual fee-shifting provision, such
a provision must be enforced “strictly.” See Bright Horizons
Children’s Ctrs., LLC v. Riverway Midwest II, LLC, 403 Ill. App.
3d 234, 254 (2010). If such a provision is ambiguous, Illinois
courts seem to rely on the basic maxim “that attorney fees
may only be awarded to a prevailing party.” Powers v. Rock-
ford Stop-N-Go, Inc., 326 Ill. App. 3d 511, 516 (2001); see also
Bank of Am., N.A. v. Oberman, Tivoli & Pickert, Inc., 12 F. Supp.
3d 1092, 1101 (N.D. Ill. 2014) (recognizing that under Illinois
law “it would be unreasonable for the Court to award attor-
neys’ fees to a non-prevailing party”).
Indeck certainly is not a prevailing party in the traditional
sense. It did not prevail on any significant issue in this matter.
Indeed, beyond litigation expenses, the jury’s verdict “did lit-
tle more than maintain the status quo.” Powers, 326 Ill. App.
3d at 518. As the district court observed, “although [Indeck]
obtained dismissal of [Ashley’s] original action in Missouri
and the counterclaims in this case, [Indeck] ultimately did not
succeed on the merits of its breach of contract claim.” 33
Indeck nevertheless contends that the district court
abused its discretion because it failed to focus on, and strictly
construe, the particular language of the lease’s fee-shifting
provision. In Indeck’s view, that provision redefines what it
33 R.220 at 33. See Raffel v. Medallion Kitchens of Minn., Inc., 139 F.3d 1142,
1147 (7th Cir. 1998) (holding that a “party can be considered a ‘prevailing
party’ for the purposes of awarding fees when he is successful on any sig-
nificant issue in the action and achieves some benefit in bringing suit”);
see also Powers v. Rockford Stop-N-Go, Inc., 326 Ill. App. 3d 511, 517–18 (2001)
(“[T]his issue was not significant relative to either the value of the remain-
ing claims, their complexity, or the time devoted to the other issues at
trial.”).
18 No. 26-1390
means to “prevail” under the contract. Specifically, Indeck
submits that Section 17 allows for an award of attorneys’ fees
whenever a “breach” is proven. That Section recites that “Les-
see further agrees that upon a default or breach” the lessee shall
pay reasonable attorneys’ fees incurred “with respect to the
repossession of the Equipment, enforcement, litigation or
breach of this Lease.” 34 Section 17 does not define “breach,”
and Indeck argues that we “must give the contractual lan-
guage its common and generally accepted meaning.” See Bank
of Am., 12 F. Supp. 3d at 1103. Indeck also invites our attention
to the dictionary definition of “breach” and notes that Section
17 specifically differentiates between “litigation” and
“breach,” indicating that “breach” must mean something dif-
ferent from “litigation.” See J.B. Esker & Sons, Inc. v. Cle-Pa’s
P’ship, 325 Ill. App. 3d 276, 285 (2001) (“Contract terms and
clauses should not be disregarded as surplusage, as it is pre-
sumed that language is not employed idly.”).
We believe Ashley’s counter argument is more persuasive.
Ashley replies that Section 17 explicitly requires attorneys’
fees be “reasonable.” 35 And, when assessing reasonableness,
“the degree of success obtained” is “the most critical factor.”
See Farrar v. Hobby, 506 U.S. 103, 114 (1992). Further, Ashley
submits that “associated words in a list should be assigned a
permissible meaning that makes them similar.” Gibson v.
Chubb Nat’l Ins. Co., 182 F.4th 519, 528 (7th Cir. 2026) (citation
and quotations omitted). “Breach” is listed with “enforce-
ment,” “repossession,” and “litigation.” These terms each
“describe a lessor vindicating its remedies against a default
34 R.194-2 at 4 (emphasis added).
35 Id.
No. 26-1390 19
lessee.” 36 Such vindication is impossible where the lessor fails
to prove all elements of its claim. Therefore, because Indeck
has failed to prove damages, the fee-shifting provision does
not apply.
Indeck also points to Section 13’s indemnification lan-
guage to support its claim to attorneys’ fees. Section 13 re-
quires Ashley to indemnify Indeck for “any and all loss or
damage caused by or to the Equipment” and “any and all
claims, cost, expenses (including attorneys’ and experts’ fees)
… arising from or related to this Lease[.]” 37 This provision
simply does not bear the weight that Indeck asks it to bear.
Indeck has failed to overcome the presumption in Powers that
the usual prevailing party rule cannot be easily abrogated.
Absent a showing of extraordinary circumstances, “it is a sim-
ple matter of contract interpretation (and common sense) that
a non-prevailing party would not be entitled to fees[.]” Blue
Book Servs. Inc. v. Amerihua Produce, 337 F. Supp. 3d 802, 810
(N.D. Ill. 2018).
In short, Indeck has identified no case law nor any textual
provisions which support its remarkable argument that it
should be awarded over a million dollars in fees after losing
at trial. The district court did not abuse its discretion.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
36 See Appellee’s Br. 36.
37 R.194-2 at 3.