Developers Surety & Indemnity Co. v. Lewis Walker Roofing et al

Filing 38

ORDER sustaining, in part, and overruling, in part, 34 Plaintiff's Objections; adopting remainder of 33 Report and Recommendation; granting, in part, and denying, in part, 20 Plaintiff's Motion for Summary Judgment; deferring ruling on 29 Plaintiff's Motion for Default Judgment. This matter will proceed to a bench trial on November 3, 2016, at 10:00 a.m. Signed by Judge Marcia Morales Howard on 9/26/2016. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DEVELOPERS SURETY &
INDEMNITY CO.,
Plaintiff,
Case No. 3:15-cv-655-J-34PDB
vs.
LEWIS WALKER ROOFING, a Florida
Corporation, LEWIS G. WALKER, and
HEATHER C. WALKER,
Defendants.
/
ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Doc. 33;
Report), entered by the Honorable Patricia D. Barksdale, United States Magistrate Judge,
on July 25, 2016. In the Report, Judge Barksdale recommends that the Court grant in part
and deny in part Plaintiff Developers Surety & Indemnity Co.’s (Developers) motion for
summary judgment against Defendants Lewis G. Walker and Heather C. Walker
(collectively, Walkers), and deny without prejudice Developers’ motion for default judgment
against Lewis Walker Roofing (LWR). See Report at 28–29; see also Plaintiff’s Motion for
Summary Judgment and Incorporated Statement of Material Facts and Memorandum of
Law in Support (Doc. 20; Motion for Summary Judgment), filed on September 14, 2015;
Plaintiff’s Motion for Default Judgment and Memorandum of Law in Support (Doc. 29;
Motion for Default Judgment), filed on February 3, 2016. Developers filed objections to the
Report on August 8, 2016; no Defendant responded to the objections. See Plaintiff’s
Objections to Magistrate’s Report and Recommendation (Doc. 34; Objections).

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On

September 22, 2016, the Court conducted a hearing on the Motions at which counsel for
Developers, Lewis Walker, and Heather Walker were present.
The Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). If no specific
objections to findings of fact are filed, the district court is not required to conduct a de novo
review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993);
see also 28 U.S.C. § 636(b)(1). However, the district court must review legal conclusions
de novo. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994);
United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at *1 (M.D. Fla. May
14, 2007).
Upon independent review and for the reasons stated in the Magistrate Judge’s
Report, the Court will adopt in part and decline to adopt in part the Magistrate Judge’s
recommended resolution of the Motion for Summary Judgment. Specifically, the Court will
adopt the Report to the extent that the Court will treat the following facts as undisputed for
the remainder of the action: (1) the Walkers breached the indemnity agreement; (2)
Developers incurred resulting losses; (3) there are facts for which there is coverage; (4)
the amounts paid by Developers to bond claimants ($498,747.97) and to LWR
($82,041.33) are reasonable; and (5) Developers received $652,024.15 through the state
court litigation in Georgia. The Court further adopts the Magistrate Judge’s determination
that, viewing the facts in the light most favorable to Defendants, Developers has not
established that the amounts requested attributable to Qualex and counsel’s attorney’s
fees and costs are reasonable. In reaching this conclusion, the Court declines to adopt
the Magistrate Judge’s discussion of Developers’ counsel’s incremental billing practice, as

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Developers had no opportunity to respond to that discussion and the Court finds it
unnecessary to its ultimate decision.

Additionally, the Court declines to adopt the

Magistrate Judge’s recommendation that the Court deny the Motion for Default Judgment.
Instead, the Court will defer ruling on the Motion for Default Judgment until the final
resolution of the total amount due to Developers.
Accordingly, it is ORDERED:
1.

Plaintiff’s Objections to Magistrate’s Report and Recommendation (Doc. 34)

are SUSTAINED in part, and OVERRULED in part, as follows:
a. With respect to the discussion of the attorney’s incremental billing
practices and the recommendation to deny Plaintiff’s Motion for Default
Judgment and Memorandum of Law in Support (Doc. 29), the Objections
are SUSTAINED in that the Court declines to adopt those portions of the
Report and Recommendation.
b. In all other respects, the Objections are overruled and the remainder of
the Report and Recommendation is ADOPTED as the opinion of the
Court with regard to Plaintiff’s Motion for Summary Judgment and
Incorporated Statement of Material Facts and Memorandum of Law in
Support (Doc. 20).
2. Plaintiff’s Motion for Summary Judgment and Incorporated Statement of Material
Facts and Memorandum of Law in Support (Doc. 20) is GRANTED in part such
that the following facts will be treated as undisputed for the remainder of the
action: (1) Defendants breached the indemnity agreement; (2) Developers
incurred losses resulting from such breach; (3) Developers made payments to

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bond claimants ($498,747.97) and to LWR ($82,041.33), which are due to be
reimbursed to Developers; (4) the amount of losses incurred by Developers was
reduced by the Georgia state court recovery ($652,024.15); (5) Developers is
entitled to be reimbursed for its reasonable attorney’s fees and costs and
consulting fees.
3. Plaintiff’s Motion for Summary Judgment and Incorporated Statement of Material
Facts and Memorandum of Law in Support (Doc. 20) is DENIED in part such
that the issue of the amount of reasonable attorney’s fees and costs and
consulting fees remains to be resolved.
4. The Court will defer ruling on Plaintiff’s Motion for Default Judgment and
Memorandum of Law in Support (Doc. 29) pending resolution of the total amount
due to Developers.
5. This matter will proceed to a bench trial on November 3, 2016, at 10:00 a.m.
DONE AND ORDERED in Jacksonville, Florida, this 26th day of September, 2016.

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Copies to:
Counsel of Record
Pro Se Parties

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