Prato et al v. Hacienda Del Mar, LLC
Filing
156
OPINION AND ORDER granting in part and denying in part 129 Motion for attorney fees; denying 133 Motion for Hearing. The request for attorney's fees is granted in part, the request for costs is granted in part, and the request for interest is granted. The Clerk shall enter an amended judgment in favor of defendant and against plaintiffs as stated in the Opinion and Order. Signed by Judge John E. Steele on 8/31/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GARY PRATO; JOANNE C. MCMURRAY,
Plaintiffs,
vs.
Case No.
HACIENDA DEL MAR, LLC a
Limited Liability Company,
2:08-cv-883-FtM-29SPC
Florida
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion for
Attorneys’ Fees, Costs and Interest (Doc. #129) filed on March 14,
2011.
Plaintiffs filed a Verified Objection and Reply and Request
to Conduct Hearing on Same (Doc. #133) and defendant filed a Reply
to Plaintiffs’ Response (Doc. #150).
I.
The original Complaint (Doc. #1) was filed based on the
presence of a federal question, specifically the Interstate Land
Sales Full Disclosure Act (ILSFDA).
Complaint
(Doc.
#9)
and
Plaintiffs filed an Amended
subsequently
filed
a
Second
Amended
Complaint (Doc. #26), which became the operative pleading in this
case.
In addition to the federal claim, plaintiffs sought relief
pursuant to the Florida Deceptive and Unfair Trade Practices Act
(FDUPTA), for fraud in the inducement, for a violation of the
Florida Condominium Act (FCA), and for breach of contract.
In
response, defendant filed a Counterclaim (Doc. #28, p. 4) for
breach of contract.
On January 18, 2011, the Court issued an Opinion and Order
(Doc. #84) granting in part and denying in part defendant’s Motion
for Partial Summary Judgment as to Counts I and II (Doc. #37) of
the Second Amended Complaint.
The motion was granted with respect
to violations of the disclosure requirements under ILSFDA, but
denied as to the anti-fraud provisions of the same statute.
The
case proceeded to trial, and the jury returned a verdict in favor
of defendant, responding to a single question that defendant was
entitled to the $353,549.00 in deposits.
(Doc. #123.)
Judgment
was entered in favor of defendant on all counts in the Second
Amended Complaint and in favor of defendant on the Counterclaim as
to the $353,549.00.
(Doc. #128.)
II.
A.
Entitlement to Attorney Fees and Costs
Absent
statutory
authority
or
an
enforceable
contract,
attorney fees by even a “prevailing party” are ordinarily not
recoverable under the “American Rule.”
Alyeska Pipeline Serv. Co.
v. Wilderness Soc’y, 421 U.S. 240, 257 (1975); Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S.
598, 602 (2001); Kreager v. Solomon & Flanagan, P.A., 775 F.2d
1541, 1542 (11th Cir. 1985).
A party is considered a “prevailing
party” if “they succeed on any significant issue in litigation
-2-
which achieves some of the benefit the parties sought in bringing
suit.”
omitted).
Farrar v. Hobby, 506 U.S. 103, 109 (1992) (citations
There must be some change in the legal relationship and
some relief on the merits of the claim achieved, with a resulting
enforceable judgment.
(1)
Id. at 111.
ILSFDA:
Title 15, United States Code, Section 1709(c), provides that
“[t]he amount recoverable in a suit authorized by this section may
include, in addition to matters specified in subsections (a) and
(b) of this section, interest, court costs, and reasonable amounts
for attorneys’ fees, independent appraisers’ fees, and travel to
and from the lot.”
An award of fees, interest, and costs is within
the Court’s sound discretion.
Stein v. Paradigm Mirasol, LLC,
2:07-cv-71-FTM-29DNF, 2009 WL 32887, at *1 (M.D. Fla. Jan. 6,
2009); Bacolitsas v. 86th & 3rd Owner, LLC, 2010 WL 5299867, at *1
(S.D.N.Y. 2010). While a prevailing plaintiff may therefore obtain
an award of such attorney fees and costs, there is no provision for
such an award to a prevailing defendant.
Kamel v. Kenco/The Oaks
at Boca Raton, LP, No. 07-80905-CIV, 2008 WL 3471594, at *1 (S.D.
Fla. Aug. 11, 2008)(Section 1709(a) authorizes a “purchaser or
lessee” to bring an action against the developer).
Defendant does
not claim entitlement to an award of attorney fees and costs under
this statute.
(Doc. #129.)
-3-
(2) FDUPTA:
Defendant
claims
pursuant to FDUPTA.
entitlement
to
attorney
(Doc. #129, pp. 4-5.)
fees
and
costs
Under Florida Statute
§ 501.2105, a “prevailing party, after judgment in the trial court
and exhaustion of all appeals, if any, may receive his or her
reasonable attorney’s fees and costs from the nonprevailing party.”
A prevailing defendant may receive an award of such attorney fees
and costs. Mandel v. Decorator’s Mart Inc. of Deerfield Beach, 965
So. 2d 311 (Fla. 4th DCA 2007); Humane Soc. of Broward County, Inc.
v. Fla. Humane Soc., 951 So. 2d 966, 971-972 (Fla. 4th DCA 2007).
The decision to award fees is within the Court’s discretion, and
factors to consider include, but are not limited to:
(1) the scope and history of the litigation;
(2) the ability of the opposing party to satisfy an award
of fees;
(3) whether an award of fees against the opposing party
would deter others from acting in similar circumstances;
(4) the merits of the respective positions-including the
degree of the opposing party's culpability or bad faith;
(5) whether the claim brought was not in subjective bad
faith but frivolous, unreasonable, groundless;
(6) whether the defense raised a defense mainly to
frustrate or stall;
(7) whether the claim brought was to resolve
significant legal question under FDUTPA law.
a
Humane Soc. of Broward County, Inc., 951 So. 2d at 971-972.
The
FDUTPA fee shifting provision is substantive law which does not
-4-
conflict with any federal law.
Horowitch v. Diamond Aircraft
Indus., Inc., 645 F.3d 1254, 1259 (11th Cir. 2011).
Applying the seven factors under Humane Soc., as applicable:
(1) the litigation in this case was extensive, contentious, and
trial lasted 6 days; (2) finding no evidence to the contrary, the
nonprevailing parties possess the ability to satisfy the award of
fees; (3) deterrence is not a relevant factor in this case; (4) the
case was not resolved on summary judgment and required a jury to
determine the merits, with no evidence of bad faith; (5) the claims
were not frivolous or unreasonable; (6) the defense was clearly not
raised
to
stall
nonprevailing
or
frustrate
parties’
as
claims;
it
and
directly
(7)
significant in the overall litigation.
the
related
FDUTPA
to
the
issue
was
The Court concludes that
defendant is entitled to reasonable attorney fees and costs under
this statute.
(3)
FCA:
Defendant claims entitlement to an award of attorney fees
pursuant to the FCA.
(Doc. #129, p. 4.)
Under Florida Statute
Section 718.506(2), “[i]n any action for relief under this section
or under § 718.503, the prevailing party shall be entitled to
recover reasonable attorney’s fees.”
The Second Amended Complaint
alleged a violation of Fla. Stat. § 718.503 (Doc. #26, ¶51), and
defendant was the prevailing party as to this claim.
-5-
Therefore
defendant is entitled to recover reasonable attorney fees under
this statute.
(4) Fraud in the Inducement:
Defendant does not request attorney fees or costs as the
prevailing party on the fraud in the inducement claim.
(Doc.
#129.)
(5)
Breach of Contract:
Defendant
claims
entitlement
pursuant to the contracts.
to
attorney
fees
and
costs
The parties entered into Purchase
Contracts for the purchase of two condominium units, and both
contracts are subject to Florida law.
Under paragraph 7 of the
Purchase Contracts, “[i]f any litigation or legal action arises out
of this Contract, the prevailing party shall be entitled to recover
reasonable attorneys’ fees and costs.” (Doc. #26-2, #26-3.) Under
the Purchase
Contracts,
a
prevailing
party
in
the
breach
contract claim is entitled to attorney’s fees and costs.
of
See
Hutchinson v. Hutchinson, 687 So. 2d 912, 913 (Fla. 4th DCA
1997)(“Where a contract provides attorney’s fees for a prevailing
party, the trial judge is without discretion to decline to enforce
the provision.”).
Defendant is the prevailing party on the breach
of contract claim contained in the Second Amended Complaint and on
the Counterclaim.
The
Court
finds
defendant
is
entitled
reasonable attorney fees and costs under the contract.
-6-
to
(6) Allocation Among Claims:
Plaintiffs argue that defendant has “failed to specifically
allocate
its
billing
attorneys’ fees”.
records
for
(Doc. #133, ¶ 10.)
not required in this case.
the
claims
that
authorize
The Court finds that this is
Defendant is entitled to attorney’s
fees under all counts except ILSFDA and fraud in the inducement,
and those particular claims are clearly intertwined with the other
claims.
See Mandel, 965 So. 2d at 314-15 (FDUPTA takes a broad
view of compensable attorney time); Anglia Jacs & Co., Inc. v.
Dubin, 830 So. 2d 169, 172 (Fla. 4th DCA 2002)(“where the claims
involve a ‘common core’ of facts and are based on ‘related legal
theories,’ a full fee may be awarded unless it can be shown that
the attorneys spent a separate and distinct amount of time on
counts as to which no attorney’s fees were sought.”); Hensley v.
Eckerhart, 461 U.S. 424, 435 (1983)(“the district court should
focus on the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the
litigation.”).
The Court finds that defendant is entitled to
attorney’s fees and costs of the litigation for the entire case.
B.
Amount of Attorney Fees and Costs
A reasonable attorney fee is calculated by multiplying the
number of hours reasonably expended by the reasonable hourly rate.
Hensley, 461 U.S. at 433.
A reasonable hourly rate is “the
prevailing market rate in the relevant legal community for similar
-7-
services by lawyers of reasonably comparable skills, experience,
and reputation.”
Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988).
(1) Reasonable Hourly Rate:
The Sworn Affidavit of Attorney of Samuel B. Zabek provides
that the billing for attorney and paralegal time is “reasonable,
usual and customary and consistent with similar billings in the
Eleventh Circuit and Middle District of Florida.”
(Doc. #129-1.)
Counsel uses the Orlando market as a basis for determining hourly
fees, Doc. #129, p. 8, however the applicable prevailing market in
this case is the Fort Myers area.
Counsel does not provide an
affidavit
area
by
an
attorney
in
the
regarding
the
general
reasonableness of the fee request or the proposed hourly rates.
In the motion, Mr. Zabek states that lead counsel has been
litigating and trying cases as lead counsel since 2002 “in a
variety of complex cases in both State and federal courts”, and
that co-counsel “has substantial trial experience.”
pp. 11-12.)
(Doc. #129,
This information is not contained in the Affidavit or
elaborated upon.
For example, Mr. Zabek does not state what type
of complex cases he has litigated, there is no detail regarding cocounsel Mr. Tiseo’s “substantial” experience, or what relevant
experience
counsel
each
possess
to
this
case,
or
what
their
individual customary hourly rates might otherwise be outside of the
Middle District of Florida. Mr. Zabek also does not state anything
-8-
with regard to the experience of the paralegal or whether the
paralegal is properly certified.
evidence,
the
hourly
rates
In this case, with no supporting
will
be
reduced.
Based
on
the
prevailing market rates in the Fort Myers area and assuming at
least minimal trial experience based on counsel’s conduct during
trial before the undersigned and the statements in the motion, the
Court will permit an hourly rate of $250.00 an hour for both Mr.
Zabek and Mr. Tiseo.
The paralegal’s billed hours will not be
accepted and will be eliminated as unsupported.
The Court finds that the pre-litigation preparation in this
case
is
appropriately
billed.
The
hours
were
expended
in
anticipation of a legal action and the parties’ contractual clause
simply provides for attorney’s fees arising out of litigation or
legal action.
Therefore, the Court finds that the hours may be
considered.
Plaintiffs
argue
that
they
should
not
defendant’s decision not to use local counsel.
bear
the
cost
of
(Doc. #133, ¶ 20.)
The Court would agree, and it has not authorized a higher rate for
Illinois counsel.
However, the Court finds no reason to penalize
defendant for utilizing more than one attorney, much as plaintiffs
elected to do in this case.
See Johnson v. Univ. College of Univ.
of Ala. in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983)(“An
award for time spent by two or more attorneys is proper as long as
-9-
it reflects the distinct contribution of each lawyer to the case
and the customary practice of multiple-lawyer litigation.”).
The argument that no contractual agreement with the client has
been produced demonstrating that the fees requested are not in
excess of what was charged to the client is rejected.
Counsel
states that defendant was charged on an hourly basis, and that the
tasks in the affidavit were for work that would normally be billed
to a paying client.
(2)
(Doc. #129, pp. 11, 17.)
This is sufficient.
Reasonable Number of Hours:
In determining the reasonable amount of hours, the Court may
conduct an hour-by-hour analysis or it may reduce the requested
hours across the board.
Bivins v. Wrap It Up, Inc., 548 F.3d 1348,
1350 (11th Cir. 2008).
The Court has reviewed the billing records, along with the
specific
objections
outlined
in
plaintiffs’
Exhibit
A,
and
determined that a reduction for some attorney hours is appropriate.
As to Mr. Zabek, the Court finds that the following 29.65 hours
should be eliminated:
DATE:
HOURS
REQUESTED:
REDUCED
TO:
BASIS FOR REDUCTION:
7/10/2008 4.50
3.50
Vague
as
correspondence
4.50 hours
8/19/2008 3.75
2.00
excessive
description
8/7/2009
00.00
administrative
excessive time
1.00
-10-
to
why
required
based
on
task;
8/14/2009
2.00
1.00
“Prepare
and
file”
administrative task
2/11/2010 2.00
00.00
vague
as
to
“pleadings” drafted
2/12/2010 3.00
2.00
“Draft pleadings” portion
is vague
3/16/2010
2.75
00.00
“Review
pleadings
research” is vague
non-specific
3/27/2010
3.00
2.00
Vague as to what “case
matters” being researched
3/31/2010
1.00
00.00
Vague as to what “issues
and
claims”
being
researched
6/15/2010 8.75
6.75
excessive in light of time
spent on 6/14/2010
7/6/2010
1.00
00.00
review after motion filed
is vague
8/11/2010
1.75
00.00
vague as to what pleadings
reviewed and researched
8/22/2010 3.00
00.00
research
and
drafting
motion previously filed
8/23/2010
7.00
6.00
continued
research
and
drafting
of
motion
previously filed
8/24/2010
5.00
4.00
“draft pleadings” vague
8/25/2010
7.50
3.50
Travel
time
excluded;
supplemental motion for
summary
judgment
previously filed
9/13/2010
0.50
0.10
excessive, Endorsed Order
1/30/2011 4.00
1.00
vague and unclear as to
who
re s p o n d e n t
of
correspondence
is,
and
what “documents” prepared
-11-
what
and
and
TOTAL:
61.50
31.85
29.65 (difference)
After eliminating 29.65 hours for the reasons stated above, and
eliminating the 70.50 hours for the paralegal, the Court finds that
449.10 hours are properly billable for Mr. Zabek at a rate of
$250.00 and for a total of $112,275.00.
As to Mr. Tiseo, the Court
finds that 19.3 hours should be eliminated:
DATE:
HOURS
REQUESTED:
REDUCED
TO:
BASIS FOR REDUCTION:
02/23/2009
0.20
00.00
communication
between
counsel for same client
will
be
eliminated
as
excessive
02/23/2009
0.30
0.10
duplicate
communication
counsel
entry;
with
co-
04/08/2009
0.20
00.00
communication
counsel
with
co-
06/03/2010
0.20
00.00
communication
counsel
with
co-
06/17/2010
0.20
00.00
communication
counsel
with
co-
08/16/2010
6.20
4.20
reduce for travel time
08/19/2010
0.20
00.00
communication
counsel
08/23/2010
4.00
3.00
reduce for travel time
08/25/2010
4.80
2.80
reduce for travel time
09/13/2010
0.30
0.20
reduce
for
communication
09/30/2010
2.50
0.50
reduce for travel time
-12-
with
co-
co-counsel
10/04/2010
0.20
00.00
communication
counsel
with
co-
10/13/2010
0.30
00.00
communication
counsel
with
co-
10/15/2010
0.30
0.20
excessive,
review
filing by co-counsel
of
10/18/2010
0.30
0.20
partial
entry
communicating
with
counsel
for
co-
11/03/2010
0.20
00.00
excessive, review of cocounsel’s availability
11/11/2010
6.00
4.00
reduce for travel time
01/10/2011
0.20
0.10
includes
communicating
with co-counsel
01/11/2011
0.20
0.10
includes
communicating
with
co-counsel
and
duplicate
01/12/2011
0.20
0.10
communicating
counsel
01/13/2011
0.20
0.10
includes
communicating
with co-counsel
01/13/2011
0.20
00.00
non-specific
telephone
call with co-counsel
01/13/2011
0.20
0.10
excessive
01/18/2011
3.20
1.00
travel time excluded
01/27/2011
1.80
00.00
paralegal
time
administrative tasks
and
02/03/2011
0.20
0.10
communicating
counsel
with
co-
02/19/2011
0.20
0.10
communicating
counsel
with
co-
02/21/2011
0.30
0.10
communicating
counsel
with
co-
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with
co-
02/22/2011
1.50
1.20
partial communicating with
co-counsel
02/23/2011
9.50
9.00
reduce for travel time
02/24/2011
0.50
0.30
communicating
counsel
02/24/2011
9.50
9.00
reduce for travel time
02/25/2011
9.30
8.8
reduce for travel time
02/28/2011
10.00
9.5
reduce for travel time
03/01/2011
8.70
8.2
reduce for travel time
TOTAL:
82.3
63
19.3 (difference)
with
co-
With the reduction of hours for Mr. Tiseo, the Court finds that
117.9 hours are appropriately billed at a rate of $250.00 an hour
for a total of $29,475.00.
After the reduction in hours, and with
the elimination of all paralegal hours, the Court finds that
defendant is entitled to $141,750.00 in attorney’s fees.
III.
Under Fed. R. Civ. P. 54(d), costs “should be allowed to the
prevailing party” unless the court provides otherwise.
Fed. R.
Civ. P. 54(d)(1). These include, for example, fees “for printed or
electronically recorded transcripts necessarily obtained for use in
the case.” 28 U.S.C. § 1920(2). Deposition costs “merely incurred
for convenience, to aid in thorough preparation, or for purposes of
investigation only,” are not recoverable.
EEOC v. W & O, Inc., 213
F.3d 600, 620 (11th Cir. 2000)(quoting Goodwall Constr. Co. v.
Beers Constr. Co., 824 F. Supp. 1044, 1066 (N.D. Ga. 1992), rev’d
-14-
on other grounds, 991 F.2d 751 (Fed. Cir. 1993)).
Depositions
submitted in support of summary judgment may also be taxed.
at 621.
Id.
In this case, although plaintiffs have not specifically
addressed the requested costs, defendants have not indicated why
the deposition costs were “necessarily obtained for use in the
cse”, no depositions were submitted in support of the motions for
summary judgment, and no receipts are attached to explain whose
depositions were taken.
Therefore, these costs will be denied.
Under the Court’s Case Management and Scheduling Order (Doc.
#32, p. 8, IV.F.) mediation costs may be taxed upon motion of the
prevailing party.
Additionally, the Magistrate Judge determined
that the parties were to split the cost of the mediator.
#62.)
(Doc.
Therefore, the Court will tax $1,120.00 against plaintiffs
for one-half the mediation fee of Philip N. Hammersley.
IV.
Defendant also seeks statutory pre-judgment interest pursuant
to Florida state law.
Plaintiffs did not respond to this issue.
Defendant was successful on the state law claims and suffered an
“actual, out-of-pocket-loss” entitling him to prejudgment interest.
Gilchrist Timber Co. v. ITT Rayonier Inc. 472 F.3d 1329, 1332 (11th
Cir. 2006).
The Court will permit the $41,174.00 in statutory
interest as requested in Exhibit A-2.
Accordingly, it is now
ORDERED:
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(Doc. #129-3.)
1. Defendant’s Motion for Attorneys’ Fees, Costs and Interest
(Doc. #129) is GRANTED in part and DENIED in part.
The request for
attorney’s fees is granted in part in the amount of $141,750.00;
the request for costs is granted in part and $1,120.00 in costs are
taxed against plaintiffs; and the request for interest is granted
in the amount of $41,174.00.
2.
Plaintiffs Request to Conduct Hearing (Doc. #133) is
DENIED.
3.
The Clerk shall enter an amended judgment in favor of
defendant and against plaintiffs as follows:
Verdict:
$353,549.00
Attorney Fees:
$141,750.00
Taxable Costs:
$
1,120.00
Partial Satisfaction: ($158,749.00)
Prejudgment Interest:
$ 41,174.00
Total:
$378,844.00
DONE AND ORDERED at Fort Myers, Florida, this
August, 2011.
Copies:
Counsel of record
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31st
day of
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