Agnone et al v. Camden County, Georgia et al

Filing 125

ORDER ADOPTING REPORT AND RECOMMENDATIONS 123 . Motion for Class Representative Service Awards and Class Counsel Attorney's Fees and Expenses 96 is denied as moot. Motion for Final Approval of Class Settlement, Amended Request for Attorney s' Fees and Service Awards, as supplemented, and Petition for Approval of Qualified Settlement Fund 110 , 111 , 112 , 117 are granted. The Court finally certifies the class action, finally approves the class settlement. Signed by Judge Lisa G. Wood on 4/10/19. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

STEPHEN AGNONE & ENZO AGNONE;
DOUGLAS & CYNTHIA PORCELLI;
BRIDGE POINTE AT JEKYLL SOUND

COMMUNITY ASSOCIATION,INC., et al.
Plaintiffs,
V.

CAMDEN COUNTY,GEORGIA; WILLIS R.
KEENE,JR.; JIMMY STARLINE; CHUCK
CLARK;TONY SHEPPARD; GARY
BLOUNT;DAVID L. RAINER; KATHERINE
NISI ZELL; CHARLENE SEARS; STEPHEN
L. BERRY;STEPHEN L. HOWARD;O.
BRENT GREEN; JOHN MCDILL;DAVID
KEATING;SCOTT BRAZELL; LEXON
INSURANCE COMPANY;THOMAS A.
DIERUF;DAVID E. CAMPBELL;JEKYLL
SOUND DEVELOPMENT COMPANY,LLC;
and CAMDEN COUNTY DEVELOPMENT,
LLC,

Civil Action No:
2:14-cv-00024-LGW-BKE

Defendants.
FINAL ORDER

After a careful, de novo review of the record, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which no objections have been filed. Accordingly, the
Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion,
DENIES AS MOOT the original Request for Class Representative Service Awards and Class
Counsel Attorneys' Fees and Expenses Pursuant to Fed. R. Civ. P. 23(h) and Fed. R. Civ. P.
54(d)(2), (Doc. 96), GRANTS the Motion for Final Approval of Class Settlement, Amended

Request for Attorneys' Fees and Service Awards, as supplemented, and Petition for Approval of

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Qualified Settlement Fund,(Docs. 110, 111, 112 & 117), FINALLY CERTIFIES the class
action, FINALLY APPROVES the class settlement, and finds and orders as follows:
A.

Notice to the Settlement Class Members has been provided as directed by this

Court in the Preliminary Approval Order, and such Notice constituted the best notice practicable,
including, but not limited to, the forms of notice and methods ofidentifying and providing notice
to the Settlement Class Members, and satisfied the requirements of Rule 23 and due process, and
all other applicable laws.

B.

The Settlement Class, as set forth above and in the Preliminary Approval Order,is

finally certified as a non-opt out class pursuant to Rule 23(b)(1) and 23(b)(2).
All persons or entities who hold legal or equitable title as ofthe date ofpreliminary
approval of the Class Action Settlement to any Unit or Parcel in the Bridge Pointe
at Jekyll Sound Subdivision and any transferees of any Unit or Parcel following
preliminary approval ofthe Class Action Settlement, except for BPJS Investments,
LLC; Robert Steven Williams, Sr.; Robert Steven Williams, Jr.; and any related
entities or persons, as these entities are obligated to release any and all claims
against Lexon Insurance Company and any related entities or persons (together the
"Lot Owners").

The Settlement Class meets all ofthe requirements of Fed. R. Civ. P. 23(a),(b)(1) and (b)(2).
C.

The final certification of the Settlement Class is for settlement purposes only and

shall not constitute, nor be construed as, evidence or an admission on the part of the Defendants

that this Action, or any other proposed or certified class action, is appropriate for class treatment
pursuant to the Federal Rules of Civil Procedure or any other class action statute or rule.

D.

If any appeal is taken firom the Final Order and the approval of the Settlement is

not upheld on appeal, or the Settlement Agreement is terminated pursuant to its terms, the
Settlement Class shall be decertified, the Settlement Agreement and all negotiations, proceedings

and documents prepared, and statements made in connection with the Settlement shall be without
prejudice to any Party, and shall not be deemed or construed to be an admission or confession by
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any Party of any fact, matter, issue or proposition of law; all Parties shall stand in the same

procedural posture as ifthe Settlement Agreement had not been negotiated, made,signed or filed
with the Court; and the Final Order, any judgment, any dismissal with prejudice, and other order
entered in connection with the Settlement and releases delivered in connection with the Settlement

shall be vacated and treated as if they are null and void, notwithstanding the principles of res

judicata, collateral estoppel, or claim preclusion. Jurisdiction is reserved, without affecting the
finality of the Final Order, to allow the Court to vacate the Final Order in the event approval of
the Settlement is not upheld on appeal or the Settlement Agreement is terminated pursuant to its
terms.

E.

The Settlement, as set forth in the Settlement Agreement, is in all respects fair,

reasonable, and adequate, and in the best interests of the Settlement Class Members, and is

approved in all respects in accordance with Rule 23 and applicable law. The Parties shall comply
with the terms ofthe Settlement Agreement, which is incorporated herein by reference. There was
no fraud or collusion behind the Settlement. Absent the Settlement, the Parties and the Court

would incur further substantial time and expense over a long period oflitigation and any appeals.

Sufficient investigation and discovery were conducted, both informally and by formal

confirmatory discovery, in order to make an informed and reasoned decision regarding the
Settlement. Class Representatives faced substantial risk in the Action that could have resulted in
the Settlement Class receiving nothing. The realistic range for this case is anywhere from no
relief at all, and therefore no infirastructure improvements in the Subdivision, to the face amount

of the Bonds plus attorneys' fees and litigation costs. Class Counsel, who have substantial

experience with complex litigation, are ofthe opinion that the Settlement is fair, reasonable, and

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adequate. The Settlement provides substantial benefits for the Settlement Class which are fair,
reasonable, and adequate.
F.

The Settlement shall not constitute an admission or finding of liability or

wrongdoing on the part of the Lexon Defendants, Class Representatives, or Settlement Class
Members.

G.

Attorneys Robert Aitkens, John Sparks and their respective firms are appointed

finally and recognized as having acted as Class Counsel for the Settlement Class. The Court is
familiar with the efforts by Class Counsel in this action and finds they have vigorously

investigated and pursued this litigation on behalfofthe Class Representatives and the Settlement
Class. Class Counsel have, at all times, fairly and adequately represented Class Representatives

and the Settlement Class; diligently and competently performed all their duties owed to Class
Representatives and the Settlement Class; and considered and pursued the appropriate avenues of
relieffor Class Representatives and the Settlement Class.
H.

The Court has carefully reviewed, weighed, and considered Class Counsels'

Amended Request for Class Representatives' Service Awards and Class Counsel Attomeys' Fees
and Expenses Pursuant to Fed. R. Civ. P. 23(h) and Fed. R. Civ. P. 54(d)(2) and Supplemental
Request for Class Counsel Attorneys' Fees and Expenses,(Docs. Ill, 117), and the arguments
and evidence presented relative to said motions. The Settling Parties report they did not discuss
the payment of attorneys' fees, costs, expenses, and a Service Award to Class Representatives,
until after the substantive terms of the Settlement had been agreed upon. The Court has
considered,inter alia: the benefit conferred on the Class,the complexity ofthe issues,the duration

of the case, the risks to which Class Counsel were exposed, the experience, reputation, and skill
of the attomeys involved, awards in similar cases, time and labor required, the lodestar, other

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sources of payment and reaction of Class Members. The Final Class Counsel Attorneys' Fees

and Expenses, and Service Awards sought are to be paid from the Final Settlement Fund. Based
on the foregoing,the Court hereby grants the Amended Request for Class Representatives Service
Awards and Class Counsel Attorneys' Fees and Expenses Pursuant to Fed. R. Civ. P. 23(h) and
Fed. R. Civ. P. 54(d)(2) as amended by the Supplemental Request for Class Counsel Attorneys'

Fees and Expenses, and awards Class Counsels' Final Class Counsel Attorneys' Fees and

Expenses in the amount of $344,449.42, which shall be paid from the Final Settlement Fund as
provided in the Settlement Agreement and as directed below. The original Request for Class
Representatives Service Awards and Class Counsel Attorneys' Fees and Expenses Pursuant to
Fed. R. Civ. P. 23(h)and Fed. R. Civ. P. 54(d)(2) is denied as moot. (Doc. 96).

I.

Douglas Porcelli, Joseph Moronese, Jr., and Richard Mumford are finally

appointed and recognized as having acted as Class Representatives for the Settlement Class. Class
Counsel has also requested the payment of Service Awards to the Class Representatives in the
amount of$5,000 each for their time and efforts spent in pursuit ofthis litigation. The Court finds
a Service Award in the amount of$5,000 for each ofthe Class Representatives is fair, reasonable,

and adequate under the circumstances. Accordingly, the Court hereby grants Class Counsel's
motion for a Service Award in the amount of$5,000 each for Class Representatives Porcelli and

Mumford, which shall be paid from the Settlement Fund per the terms of the Settlement

Agreement. Class Representative Joseph Moronese, Jr. has declined a Service Award.
J.

The Court notes there were no objections to the Settlement, or any matters related

thereto or to the Class Representatives' Motion for Final Approval of Class Settlement, or their
Request for Class Representative Service Awards and Class Counsel Attorneys' Fees and
Expenses Pursuant to Fed. R. Civ. P. 23(h) and Fed. R. Civ. P. 54(d)(2).

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K.

The Court further orders that, within ten (10) business days of the entry of this

Final Order Approving the Class Action Settlement and the exhaustion of any appeal of such
Final Order("Final Approval Order"),the Lexon Defendants shall pay the Lexon Settlement Fund

Payment in the amount of$7,750,000.00 into the Registry ofthe Court for immediate transfer to
CRIS and the Registry ofthe Court shall pay from CRIS,within ten(10)days ofreceipt of written

request from Robert G. Aitkens of Aitkens & Aitkens, P.C., the following amounts to the
identified payees:(1) $10,000 for Class Representative Service Awards to Aitkens & Aitkens,
P.C. at 1827 Powers Ferry Road, Building One, Suite 100, Atlanta, Georgia 30339 for payment

to each of the two Class Representatives, respectively, in the amount of $5,000 each, and (2)
$246,725.23 for the portion ofthe Final Class Counsel Attorneys' Fees and Expenses payable to
Aitkens & Aitkens, P.C. to be mailed to 1827 Powers Ferry Road, Building One, Suite 100,

Atlanta, Georgia 30339,(3)$97,724.19 for the portion ofthe Final Class Counsel Attorneys' Fees
and Expenses payable to Austin & Sparks, P.C. to be mailed to 2974 Lookout Place, NE, Suite
200, Atlanta, Georgia 30305, and (4)the balance in CRIS,including all accrued interest thereon

to Fidelity Bank,the Escrow Agent,care ofMr. William W.Keith,Senior Vice President, Fidelity
Bank, Trust Services, 3490 Piedmont Road, NE, Suite 700, Atlanta, Georgia 30305, completing

payment ofthe Final Settlement Fund.

L.

The Court approves the Petition for Petitioner Qualified Settlement Fund, and the

escrow agreement attached thereto, and will issue a separate order regarding that Petition.

M.

Upon payment of the Lexon Settlement Fimd Payment into the Registry of the

Court each Settlement Class Member shall be deemed to have, and by operation of this Final

Order shall have, fully, finally, and forever released, relinquished, and discharged all claims
against each ofthe Lexon Defendants, as set forth in the Settlement Agreement. Upon payment

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of the Lexon Settlement Fund Payment into the Registry of the Court, each Settlement Class

Member shall be permanently barred and enjoined from asserting, commencing, prosecuting, or

continuing any of the claims against the Lexon Defendants as set forth in the Settlement
Agreement.

N.

By reason ofthe Settlement, and approval hereof, there is no just reason for delay

and this Final Order shall be deemed an appealable final order.
O.

The Action is hereby dismissed, with prejudice, as against all Defendants, on the

terms and conditions set forth in the Settlement Agreement and without costs to any party, except

as provided herein or in a separate order of the Court, in the Preliminary Approval Order, or in
the Settlement Agreement.

P.

Jurisdiction is reserved, without affecting the finality ofthe Final Order, over:

1.

Effectuating, enforcing, and administering the Settlement and the terms of

the Settlement Agreement, including but not limited to: (i) restoring all rights, claims, and
defenses, to their exact same status as immediately prior to execution of the Term Sheet, as

described in Paragraph 14 of the Settlement Agreement,(ii) altering, amending, or vacating the

Final Order and Judgment; and (iii) vacating the dismissal with prejudice, in the event approval
of the Settlement is not upheld on appeal or if the Settlement Agreement is terminated pursuant
to its terms; and

2.

Determining whether, in the event an appeal is taken from any aspect of

this Final Order, notice should be given at the appellant's expense to the Settlement Class

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Members apprising them of the pendency of the appeal and such other matters pertaining to the
Settlement Class as the Court may order.

SO ORDERED this j0 day of April, 2019.

.ISA GODBEY WOOD,JUDGE
TD STATES DISTRICT COURT

lUTHERN DISTRICT OF GEORGIA

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