Sewell et al v. D'Alessandro & Woodyard, Inc. et al

Filing 492

FINAL ORDER APPROVING SETTLEMENT AGREEMENT, ATTORNEY FEES AND COSTS granting 487 Motion for attorney fees and Becker & Poliakoff, P.A. is awarded $1,080,000.00 in attorneys' fees and $50,000.00 in costs and expenses; granting 489 M otion for judgment, approval of settlement, and class certification as set forth in the Order. The Clerk shall enter judgment incorporating the terms of the Settlement Agreement and pursuant to this Final Order Approving Settlement Agreement, Attorney Fees and Costs, dismiss this case with prejudice, terminate all deadlines and motions, and close the file. Signed by Judge John E. Steele on 12/6/2011. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RANDOLPH SEWELL, DAPHNE SEWELL,
MOSES
ESHKENAZI
and
THERESE
ESHKENAZI,
individually
and
on
behalf of all others similarly
situated,
Plaintiffs,
vs.

Case No. 2:07-cv-343-FtM-29SPC

D'ALESSANDRO & WOODYARD, INC., a
Florida for profit corporation;
GATES, D'ALESSANDRO & WOODYARD, LLC,
a Florida limited liability company;
K. HOVNANIAN FIRST HOMES, LLC, a
Florida limited liability company;
FIRST HOME BUILDERS OF FLORIDA, a
Florida general partnership; FIRST
HOME BUILDERS OF FLORIDA I, LLC, a
Florida limited liability company;
JAN
BAILLARGEON,
as
Personal
Representative of the Estate of
Frank D'Alessandro, deceased; SAMIR
CABRERA,
an
individual;
HONORA
KREITNER, an individual; BRUCE A.
ROBB, an individual; and PATRICK
LOGUE, an individual,
Defendants.
___________________________________

FINAL ORDER APPROVING SETTLEMENT AGREEMENT, ATTORNEY FEES AND COSTS
This matter comes before the Court on the Joint Motion for Entry
of Final Judgment Approving the Settlement and Certifying the Class
filed on November 29, 2011 (Doc. #489) (“Joint Motion”) and Class
Counsel's Motion for Attorneys' Fees and Expenses filed on November
28, 2011 (Doc. #487).

The Parties seek final Class Certification and

final approval of the Class Action Settlement Agreement (Doc. #479-1),
filed on October 12, 2011, together with Exhibits annexed thereto
setting forth terms and conditions of the settlement and the dismissal
of this case (“Settlement Agreement”), and the award of attorney fees
and costs.
2011.

The Court held a hearing on the motions on December 6,

For the reasons set forth below, both motions are granted.

This Final Order Approving Settlement Agreement, Attorney Fees
and Costs will incorporate the Settlement Agreement's definitions by
reference, and all terms used herein shall have the meanings set forth
in the Settlement Agreement.
This Court has jurisdiction over the subject matter of the Action
and over all parties to the Action, including all Class Members.
October

18,

2011,

pursuant

to

Fed.

R.

Civ.

P.

23,

this

On

Court

conditionally certified a Class of all persons who purchased one or
more real properties for investment purposes from First Home Builders
of Florida either in Cape Coral or Lehigh Acres, Florida, between
September 1, 2003, and July 31, 2005, who suffered a monetary loss on
their Properties, and who do not Opt-Out (Doc. #484).

The Notice of

Class Action Settlement, Fairness Hearing and Right to Appear (the
“Notice”) given to the Class was reasonable because it was the best
notice practicable under the circumstances, including the individual
notice to all Class members who could be identified through reasonable
effort, and the Notice fully satisfied the requirements of Fed. R.
2

Civ. P. 23 and the requirements of due process.

As of the deadline

set by this Court in its preliminary approval order (Doc. #484), no
Class Member has sought exclusion from the Class and only one class
member (Doc. #486) and one non-member of the settling class (Doc.
#490) objected to the Settlement.

The Claims Administrator reports

over 600 claims have been filed as of the date of the hearing.
To approve a class action settlement agreement, the Court must
find that the settlement agreement is fair, reasonable and adequate
and is not the product of collusion between the parties.
American Home Shield Corp., No. 10-12496,

F.3d

Faught v.
, 2011 WL

5119115, *5 (11th Cir. Oct. 31, 2011); Leverso v. SouthTrust Bank of
Ala, 18 F.3d 1527, 1531 (11th Cir. 1994).

A district court considers

the following factors: “(1) the likelihood of success at trial; (2)
the range of possible recovery; (3) the range of possible recovery at
which

a

settlement

is

fair,

adequate,

and

reasonable;

(4)

the

anticipated complexity, expense, and duration of litigation; (5) the
opposition to the settlement; and (6) the stage of proceedings at
which the settlement was achieved.” Faught, at *5 (citation omitted).
The proponents of the settlement has the burden of developing a record
demonstrating that the settlement meets this standard. Id. at *4.
After reviewing the record, and being intimately familiar with
the course of this litigation, the Court finds that under all the
circumstances the Settlement Agreement is, in all respects, fair,
3

reasonable, and adequate to the Class.
factors

weigh

heavily

in

favor

of

All six of the relevant
the

settlement

agreement,

particularly with “the realization that compromise is the essence of
settlement.”
overrules

the

Leverso, 18 F.3d at 1531.
objection

of

the

one

class

The Court, therefore,
member.

The

Court

specifically finds that, given the circumstances of this case, the
objection that “recovery is insufficient based on the financial
condition of the Defendants” is both inaccurate and, standing alone,
an insufficient reason to disapprove the Settlement Agreement.

While

a non-class member is not authorized to file an objection, Fed. R.
Civ. P. 23(e)(5), the Court has also considered the termination date
of the class period and finds it to be reasonable under all the
circumstances.

The Court therefore approves the Settlement Agreement

under Fed. R. Civ. P. 23, and grants final certification of the Class
for purposes of settlement.
The Court approves of Randolph Sewell, Daphne Sewell, Moses
Eshkenazi, and Therese Eshkenazi serving as Class Representatives
pursuant to Fed. R. Civ. P. 23.

The Court also finds that during the

course of the Action, the Parties and their respective counsel at all
times complied with the requirements of Fed. R. Civ. P. 11, and that
the Representative Plaintiffs and Plaintiffs’ Counsel fairly and
adequately represented and protected the interests of the Class

4

Members.

There has been no collusion between the parties in reaching

the Settlement Agreement.
Becker & Poliakoff, P.A. is hereby approved to serve as Class
Counsel on behalf of the Class.

The Court further finds that Becker

& Poliakoff, P.A.’s Motion for Class Counsel Fees and Costs requests
a fair and reasonable percentage of the fund established for the
benefit of the class.

Because the percentage (30%) exceeds 25%, the

Court has considered the twelve factors set forth in Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), and finds
that each factor weighs in favor of the agreed-upon percentage.

The

Court hereby awards Becker & Poliakoff, P.A. attorneys’ fees of
$1,080,000.00. Finally, the Court finds that the $50,000 cap on costs
and expenses is reasonable.

The attorney fees and costs and expenses

will be paid from the Settlement Payment in accordance with Paragraph
3.5 of the Settlement Agreement.
The Court approves Rust Consulting, Inc. as Claims Administrator
pursuant to the Settlement Agreement.
Accordingly, it is now
ORDERED:
1.

The Joint Motion for Entry of Final Judgment, Approval of

Settlement and Class Certification (Doc. #489) is GRANTED as set forth
below:

5

(a) The Parties are hereby ordered to perform all acts necessary
to consummate and effectuate the Settlement Agreement in accordance
with its terms and conditions.
(b)

The Action and all its claims, including those of any and

all Releasors against any and all Releasees, are dismissed with
prejudice.
(c)

The Parties shall bear their own costs, except as otherwise

provided in the Settlement Agreement.
(d)
Effective

In

accordance

Date,

the

with

Releasors

the

Settlement

shall

be

deemed

Agreement,
to

have,

on
and

the
by

operation of the Final Judgment shall have, fully, finally, and
forever released, relinquished, and discharged any and all claims,
demands, actions, causes of action or liability of any nature, whether
known or unknown, suspected or unsuspected, which the Releasors ever
had, based upon any violation alleged in the Complaint and/or any
other claim which was or could have been asserted in this Action, and
the Releasees shall be forever released and discharged from any and
all liability with respect to such claims; provided, however, that
nothing herein shall release the Parties, Class members, or Class
Counsel from their obligations under the Settlement Agreement.
(e)

The Settlement Agreement, and any act performed or document

executed under or in furtherance of the Settlement Agreement or any

6

negotiation,

discussion,

or

proceedings

in

connection

with

the

Settlement Agreement:
(1)

shall not be offered or received against any Releasee

for any reason, including, without limitation, as evidence of or
construed as or deemed to be evidence of any presumption, concession,
or admission by any Releasee with respect to the truth of any fact
alleged by any Releasor or the validity of any claim that had been or
could have been asserted in the Action or in any litigation, or the
deficiency of any defense that has been or could have been asserted in
the Action or in any litigation, or of any liability, negligence,
fault, or wrongdoing of any Releasee;
(2)

shall not be offered or received against any Releasee

as evidence of or construed as or deemed evidence of a presumption,
concession, or admission of any fault, misrepresentation, or omission
with respect to any statement or written document approved or made by
any Releasee, or against any Releasor as evidence of any infirmity in
the claims of Plaintiffs and the Class;
(3)
as

evidence

shall not be offered or received against any Releasee
of

or

construed

or

deemed

to

be

evidence

of

any

presumption, concession, or admission with respect to any liability,
negligence, fault, or wrongdoing, or in any way referred to for any
other

reason

as

against

any

of

7

the

Parties

to

the

Settlement

Agreement, in any other civil, criminal, or administrative action or
proceeding;
(4)

shall not be offered, received, or construed against

any Releasee as an admission or concession that the consideration to
be paid pursuant to the Settlement Agreement represents the amount
which could or would be recovered after trial;
(5)

shall

not

be

offered, construed,

or

received in

evidence as an admission, concession, or presumption against any
Plaintiffs or the Class that any of their claims are without merit or
that damages recoverable in the Action would not have exceeded the
Settlement Payment.

Any Releasee may file the Settlement Agreement

and/or this Order and Final Judgment in any other action that may be
brought against it in support of a defense or counterclaim based upon
principles of res judicata, collateral estoppel, release, good faith
settlement,

judgment,

bar

or

reduction,

or

any

theory

of

claim

preclusion or issue preclusion or similar defense or counterclaim; and
(6)

shall

not

be

offered, construed,

or

received in

evidence as an admission, concession, or presumption against any
Releasee that the certification of a class for purposes of litigation
was proper.
2.

Class Counsel’s Motion for Attorneys’ Fees and Costs (Doc.

#487) is GRANTED.

Becker & Poliakoff, P.A. is hereby awarded the sum

of $1,080,000.00 in attorneys’ fees and $50,000.00 in costs and
8

expenses, all to be paid from the Settlement Payment in accordance
with Paragraph 3.5 of the Settlement Agreement.
3.

Without affecting the finality of the Final Judgment in any

way, this Court hereby retains continuing jurisdiction over (a) this
Settlement Agreement’s implementation and any award or distribution of
the Settlement; and (b) all Parties for the purpose of construing,
enforcing, and administering the Settlement Agreement.
4.

The Court finds, under Rules 54(a) and (b) of the Federal

Rules of Civil Procedure, that the Final Judgment constitutes this
Action’s final adjudication on the merits and should be entered
forthwith.

The Clerk of the Court shall enter the Final Judgment

incorporating the terms of the Settlement Agreement and pursuant to
this Final Order Approving Settlement Agreement, Attorney Fees and
Costs, dismiss this case with prejudice, terminate all deadlines and
motions, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
December 2011.

Copies:

Counsel of Record

9

6th

day of