Solomons One, LLC v. Donnelly

Filing 16

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 4/12/2016. (kw2s, Deputy Clerk)(c/m 4.13.16)

FilED
US. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

SOLOMONS

ONE, LLC,
Debtor-Appellee,

v.
V. CHARLES DONNELLY, pro se
Appellant.

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MEMORANDUM

DISTRICT

OF t1ARYLANO

10 Ib APR I 2 P

[I:

Civil No. PJM 15-1057

OPINION

This case is on appeal from an Order of the United States Bankruptcy Court for this
District. See Solo/llons One. LLC v. Donnelly. el al. (In re Solo/llons One. LLC). Ch. 11 Case No.
13-24475, Adv. No. 13-580 (Bankr. D. Md.). Debtor-Appellee Solomons One. LLC (Solomons
One) tiled a Complaint against Appellant V. Charles Donnelly (Donnelly), seeking in part to
recover damages from Donnelly for wi IIfill violations of the automatic bankruptcy stay. The
Bankruptcy Court entered a Memorandum and Order granting summary judgment to Solomons
One on this claim, then held a separate one-day bench trial on the calculation of appropriate
damages - i.e., for attorney's fees and punitive damages. After the one-day trial. the Bankruptcy
Court entered a Memorandum
$40,092.00

in attorney's

and Order concluding

that Solomons One was entitled to

fees plus interest, but denying its request for punitive damages.

Donnelly has appealed the Bankruptcy Court's Judgment awarding $40,092.00 to Solol11ons One
in attorney's
AFFIRMED.

fees. For the reasons that follow, the decision of the Bankruptcy

Court is

5q

I.
Solomons One is a limited liability company formed in 2005 under Maryland law. App.
572, ECF No. 8-1 - 8-14. It has six members: Dr. Alfred Greenberg and Halina Greenberg (the
Greenbergs), Christine McNelis (McNclis), Catherine Erickson-File (Erickson-File),

Deborah

Stelfen (Steffen) and Donnelly. Jd. It was formed to acquire, purchase, lease, sell, and develop
property located at 14538 Solomons Island Road, in Solomons One, Maryland (the Property) in
order to build a commercial pier. Jd. 1038. In August 2005, Solomons One entered into a joint
venture agreement with McNelis and purchased the Property. Jd.
In March 2012, Solomons One and Donnelly, who owns the land adjacent to the
Property, submitted a joint application to the State of Maryland and Calvert County, Maryland,
to build a commercial pier. Jd. 1040. At the time, Donnelly, a Maryland attorney, was also
serving as counsel for Solomons One. Jd. 94-95. The State of Maryland and the Calvert County
Board of Commissioners denied the application. Jd. 95. Solomons One appealed to the Calvert
County Board of Appeals.l Jd.
A. The Pier Rights Litigation
While the appeal of the application decision was pending before the Calvert County
Board of Appeals, Solomons One, Donnelly (who was still serving as Solomons One's counsel),
and other plaintiffs commenced litigation in the Circuit Court for Calvert County, asserting the
existence of their rights to build the commercial pier (the Pier Rights Litigation). Jd. 96. On July
12, 2013, alter a hearing on the plaintiffs' motion for summary judgment

in the Pier Rights

Litigation, the Circuit Court entered judgment in favor of Solomons One, Donnelly, and the
other plaintiffs, declaring that they had contractual rights to construct piers on the Patuxent River
On September 26, 2012, the Calvert County Board of Appeals determined that Solomons One and
Donnelly had a contractual right to build a pier, thus reversing the decision of the State and the County.
App.95-96.
1

2

and that the State and Calvert County's denial of their joint application constituted a breach of
their contractual rights. Id. 70-73.
At some point during the Pier Rights Litigation, Donnelly and Steffen executed an
assignment dated December 4, 2012 (the Assignment).

Id. 485-88; 572. The Assignment

purportedly assigned certain contract and pier rights from Solomons One to Donnelly, who not
only drafted the Assignment, but executed it both in his capacity as member of Solomons One
and as its attorney. Id. 485-88. The Assignment also transferred to Donnelly, as trustee, the
litigation rights necessary to enforce the contract and pier rights. Id. The Assignment further
provided that Donnelly was expressly assured of receiving the tirst proceeds from the Pier Rights
Litigation to apply toward his fees. Id.
In late April or early May 2013, members of Solomons One other than Donnelly and
Steffen discovered the Assignment.

On May 17, 2013, all the members of Solomons One

(including Donnelly) held a meeting, and by a majority vote terminated Donnelly as Solomons
One's attorney. Id. 97; 572. The day prior to the meeting, however, Donnelly had recorded the
Assignment without disclosing as such to the other members. Id. 98.
At another meeting held on August 21, 2013, a majority of the Solomons One Board
voted to tile a Chapter II bankruptcy petition. Id. 573. Donnelly attended the meeting and voted
against the action, but on August 23, 2013, Solomons One tiled a Chapter II Petition in the
Bankruptcy Court. Id. 573.
Despite the fact that the bankruptcy petition had been tiled, on September 3, 2013
Donnelly tiled a Notice to Substitute V. Charles Donnelly [himselfj, Trustee, as the Proper Party
Plaintiff instead of Solomons One, LLC (the Substitution Notice) in the Pier Rights Litigation.
Id. 441-46, 573. The Substitution Notice sought to effectively remove Solomons One, LLC - by

3

now a Chapter II debtor - from the Pier Rights Litigation and to insert Donnelly in its place. fd.
On September

13, 2013, Solomons

One's

new counsel, attorneys

from the law firm of

Whiteford, Taylor & Preston, LLP, informed Donnelly by letter that the Substitution Notice and
underlying Assignment constituted violations of the automatic bankruptcy stay and requested his
cooperation.

fd.

573. Despite

their efforts,

Donnelly

failed to withdraw

the Notice of

Substitution. /d.
In response, on September 30, 2013, Solomons One filed a Motion to Strike Appearance
of V. Charles Donnelly as Counsel for Plaintiff Solomons One, LLC and as Substituted Party in
Place of Solomons One, LLC (the Motion to Strike Donnelly's Appearance). /d. 447-88, 573. On
September

30, 2013, Donnelly

filed an opposition

to the Motion to Strike Donnelly's

Appearance and filed his own motion to strike Whiteford, Taylor & Preston LLP as Solomons
One's

counsel

in the Pier Rights Litigation

(the Motion to Strike Whiteford,

Taylor's

Appearance). fd. 573. Solomons One filed a Combined Reply and Opposition on October 11,
2013. !d. The Circuit Court held a hearing on the Motion to Strike Donnelly's Appearance and
various other pleadings on October 16.2013. fd. Donnelly attended the hearing and argued that
the Assignment was valid and that he was still proper counsel for Solomons One. fd.
B. The Bankruptcy Adversary

Proceeding

On October 4, 2013, Solomons One tiled a Complaint against Donnelly and Solomons
One Board Member Steffen, initiating the Adversary Proceeding from which this Appeal arises.
!d. 18-84. In its Complaint, Solomons One sought, among other things, to recover damages from
Donnelly and StetTen for willful violations of the automatic bankruptcy stay, Count 8 of the
Adversary Complaint (Count 8). fd. 35-36. In the course of the Adversary Proceeding, Donnelly
and Steffen filed a Motion to Dismiss and Solomons One filed an Opposition to the Motion to

4

Dismiss and a Motion for Partial Summary Judgment on Count 8. Jd. 1-17. The parties therealter
filed various responses. Jd.
On July 7, 2014, the Bankruptcy Court entered a Memorandum

and Order Granting

Partial Summary Judgment on Count 8 to Solomons One. Jd. 92-103. In the Memorandum, the
Bankruptcy Court concluded that Donnelly had willfully violated the automatic bankruptcy stay
when he tiled the Notice. Jd. at 101-02. In particular, the Bankruptcy Court concluded that
"Donnelly knew of the bankruptcy filing when he filed the Substitution Notice" and "that the
filing of the Notice [was] an intentional act." Jd. at 100. Further, the Bankruptcy Court
determined that, because certain "filings and arguments have not been put in the record," it
would set in for trial the issue of whether Donnelly further violated the automatic bankruptcy
stay by opposing the Motion to Strike and by appearing and arguing at the hearing thereon. Jd.
102. The Bankruptcy Court also set for determination the issue of damages, including attorney's
fees and punitive damages. Jd. 102-03.
The Bankruptcy Court held a one-day trial on these remaining issues on December 10,
2014. Jd. 296-410. At trial and over Donnelly's objection, the Bankruptcy Court admitted into
evidence the time records of Solomons One's counsel for time expended related to Donnelly's
violations of the automatic stay. Jd. 331-33. The Bankruptcy Court also granted Solomons One's
request for time to submit a supplemental bill to include time expended on the pre-trial and trial
matters in the adversary proceeding. Jd. 380-81. Accordingly, on December 15,2014, Solomons
One filed a Line Filing (i) Updated Time Records of Whiteford, Taylor & Preston, LLP, as
Counsel for the Debtor, for Services Rendered and Expenses Incurred Defending V. Charles
Donnelly's

Violations of the Automatic Stay and Prosecuting Count Eight of the Adversary

Complaint with Respect Thereto; and (ii) the Declaration of Susan JatTe Roberts in Support of an

5

Award of Damages on Count Eight of the Adversary Complaint (Roberts Declaration). Id. 52139. Due to an error in the time records submitted, Solomons One tiled a corrected tinal
accounting of the amount of expenses on December 16, 2014 (December 16 Filing). Id. 545-60.
Shortly thereafter, Donnelly moved to strike the Roberts Declaration and the December 16 Filing
(Motion to Strike the Roberts Declaration and December 16 Filing). Id. 563-69.
On March 27, 2015, the Bankruptcy Court entered a Memorandum and Order resolving
the remaining issue of damages. Id. 570-85. First, it reasoned that "it need not resolve the[]
questions" of "whether [Donnelly] violated the automatic stay by opposing the Motion to Strike
[Donnelly's Appearance] or by participating in the hearing on that motion." Id. 574. Given that
the Bankruptcy Court had previously "concluded that [Donnelly] willfully violated the automatic
stay by filing the Substitution Notice," all other expenses incurred as a result of that Substitution
should be included in the attorney's fees calculation because the expenses for these tasks were
"necessary to rectify the harm caused by [Donnelly's] violation of the stay."' Id. 574-75. The
Court therefore concluded that Solomons One was "entitled to an award of reasonable attorneys'
fees for preparing and sending the September 13, 2013 letter, tiling the Motion to Strike, filing
the Combined Reply and Opposition, attending the October 16, 2013 hearing in the Circuit
Court, and pursuing its recovery of fees and damages in Count 8 of this proceeding." Id. 575.
Second, the Bankruptcy Court addressed the issue of damages. As for the attorney's fees,
the Bankruptcy Court noted that it had to detennine that those costs had been "reasonably
incurred as a result of the violation of the automatic stay."' Id. 577 (quoting In re Grine, 439 B.R.
461, 471 (Bankr. N.D. Ohio 2010)). Applying the lodestar method, the Bankruptcy Court
"scrutiniz[ed]

the billing entries" of Solomons One's counsel and "comb[ed]

through the

chronological entries" to determine the "fees [that] are reasonable" for certain categories of tasks

6

(e.g., researching and preparing the Motion to Strike, preparing for and attending the October 16,
2013 hearing on the Motion to Strike and related pleadings, researching and preparing for
Solomons One's Motion for Partial Summary Judgment on Count 8 for the stay violations, etc.).
/d. 579.82. The Bankruptcy Court determined that "the services performed by counsel were
reasonably incurred in rectifying Donnelly's
Solomons One $40,092.00 in attorney's

violation of the automatic stay" and awarded

fees. /d. 582. The Bankruptcy Court did not grant

Solomons One's request for punitive damages.2 /d. 582-83.
Finally, the Bankruptcy

Court addressed

Donnelly's

Motion to Strike the Roberts

Declaration and December 16 Filing. The Bankruptcy Court noted that Solomons One had
submitted its amended final bill and the affidavit of Susan Jaffe Roberts with its approval. /d.
584. The Bankruptcy Court thus decided not to strike the affidavit or the supplemental bills filed
because Donnelly "had ample opportunity to raise any objection to the supplemental information
or ask for a further hearing, but has not done

SO.'.3

/d. 584.

On March 30, 2015, the Bankruptcy Court entered a Judgment in favor of Solomons One
and against Donnelly in the amount of $40,092.00 plus interest at the federal rate per annum (the
Judgment). /d. 586-87. On April 13,2015, this Appeal followed. ECF No.1.
II.
On appeal, Donnelly does not contest the Bankruptcy Court.s conclusion that he willfully
violated the automatic stay. Rather, he argues that (I) the Bankruptcy Court abused its discretion
in its determination of "the reasonableness and/or necessity of the [attorney's] fees [award]."
Appellant's Br. 7, (2) that it "abused its discretion when it relied upon pleadings filed in the case,
The Bankruptcy Court explained, however, that the punitive damages claim was "certainly not without
merit," given that Donnelly's actions were "highly questionable." App. 582-83.
. In a later ruling on Donnelly's Motion to Stay Judgment Pending Appeal, the Bankruptcy Court also
1
noted that. with respect to the Roberts Declaration, "The simple fact is that the court did not take into
consideration any material information from the affidavit in determining the award" App. 1460.
2

7

but not entered into the record" - i.e., the Roberts Declaration
the attorney's
Solomons

id., and (3) that it erred in relying on a pretrial memorandum

fee request,

One in awarding

In response,

Solomons

Solomons

in concluding

violations

were fair and reasonable.

post-trial

filing of the Roberts
any objection

Declaration
Donnelly

waived

filed by

Court

properly

exercised

that both the hourly rates and the hours spent to address Donnelly's
Appellee's

Declaration

by Donnelly

in its attorney's

Br. 7. Further,

was explicitly

Solomons

authorized

at trial, and in any event,

the issue of whether

fees calculation

One contends

Solomons

Court properly

by failing to support

its
stay

that the

by the Bankruptcy

consideration

Id. 7-8. And finally,

the Bankruptcy

of

id. I.

that the Bankruptcy

was not an abuse of discretion.

memorandum
argument.

One $40,092.00,

One asserts

discretion

without

- to assess the reasonableness

Court

of the Roberts
One asserts

considered

that

the pretrial

this contention

with any

Id. 34-35.
III.

This Court has jurisdiction
An appellate

over this Appeal pursuant to 28 U.S.c.

court "review[s]

v. SOll/hpeak In/erac/iw

an award of attorneys'

S

158(a)( I ).4

fees for abuse of discretion."

Jones

Corp: of Delaware, 777 F.3d 658, 675 (4th Cir. 2015) (citing Rohinson

v. Eqll!fax In/i). Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009».

In doing so, an appellate

court

As noted in Part I, supra, Solomons One initially field an eight-count Complaint against Donnelly and
Steffen related to their conduct in the Pier Rights Litigation. On March 4, 2014, the Bankruptcy Court
granted summary judgment to Solomons One on Count I and dismissed Counts 2, 3, and 4 of the
Complaint (without prejudice) as moot. App. 1054-55. On July 7, 2014, the Bankruptcy Court entered a
Memorandum and Order abstaining from hearing Counts 5, 6, and 7 of the Complaint. Id. 85-91. The
Bankruptcy Court's subsequent entry of the Order Granting Partial Summary Judgment on Count 8,
which concerned Donnelly's violations of the automatic stay, id. 92-103, therefore "end(ed] the litigation
on the merits and le[ft] nothing for the court to do but execute the judgment." Uniled Siaies v. Modanlo,
762 F.3d 403, 409 (4th Cir. 2014) (quoting Blidinich v. Beclon Dickinson & Co., 486 U.S. 196, 199
(1988)). On April 13, 2015, the Bankruptcy Court entered its Judgment in favor of Solomons One,
awarding attorney's fees in the amount of $40,092.00, App. 586-87, which Donnelly appeals. This Court
therefore has jurisdiction to hear Donnelly's Appeal under 28 U.S.c. S 158(a)(I), which provides that
"district courts of the United States shall have jurisdiction to hear appeals ... from final judgments,
orders, and decrees" of bankruptcy courts.
4

8

must be mindful that its "review of the record, no matter how careful, cannot substitute for the
[trial court's] close and intimate knowledge of the efforts expended and the value of the services
rendered." Jones, 777 F.3d at 675 (internal citations and quotations omitted). As such, an
appellate court may "only reverse such an award if the [trial court] is clearly wrong or has
committed an error of law." Id. (quoting McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013)). As
the Fourth Circuit has explained,
circumscribed."

this abusc of discretion standard of rcview is "sharply

Robinson, 560 F.3d at 243; see also Best Med. In! 'I. Inc. v. Eckert & Ziegler

Nuclilec GmbH, 565 F. App'x 232, 236 (4th Cir. 2014) (stating that the standard of review of
awards of attorney's fees is "exceptionally deferential").
To the extent that an appellate court must review the decision of a trial court to consider
new or supplemental

evidence, it is well-established

that "[i]t is within the [trial court's]

discretion to reopen a case to admit new evidence." Levy v. Lexington Oy., S.c., 589 F.3d 708,
714 (4th Cir. 2009). Such a decision is therefore reviewed for abuse of discretion, and the
appellate court considers: "whether (I) the evidence sought to be introduced is especially
important and probative; (2) the moving party's explanation for failing to introduce the evidence
earlier is bona fide; and (3) reopening will cause undue prejudice to the nonmoving party," Id.
(citing Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 746 (1st Cir. 1995».

IV.
The Court addresses the arguments advanced by Donnelly.

A.
The first issue is whether the Bankruptcy Court, after hearing evidence in a one-day
bench trial, abused its discretion in its analysis of reasonable attorney's fees incurred as a result

9

of Donnelly's willful violations of the automatic stay. The Court concludes that the Bankruptcy
Court did not abuse its discretion.
It is "well cstablished in the Fourth Circuit that attorney's

fees are evaluated by the

lodestar method, under which various factors are applied to determine thc attorney's reasonable
rate and the reasonable number of hours." Boleman Law Firm. P.e. v. Uniled Siale Tr., 355 B.R.
548, 552 (E.D. Va. 2006) (citing EEOC v. Servo News Co., 898 F.2d 958 (4th Cir. 1990)). In
applying this method, a court must consider twelve factors5 as enumerated in Johnson v. Ga.
Highway Express. Inc., 488 F.2d 714,717-19

(5th Cir. 1974), abrogaled on olher grounds by

Blanchard v. Bergeron. el 01., 489 U.S. 87 (1989), and adopted by the Fourth Circuit in Barber v.
Kimbrell's. Inc., 577 F.2d 216, 226 (4th Cir. 1978). The court "is not required to adopt the
number of hours submitted by an attorney in his fee application, but may make an independent
determination of the reasonableness of the hours devoted to the case:' Boleman, 355 B.R. at 553
(internal citations and quotations omitted). Further, while the "burden rests with thc fee applicant
to establish the reasonableness of the requested rate," Pyler v. Evall, 902 F.2d 273, 277 (4th Cir.
1990), absent

sufficient

documentation

to prove reasonableness,

a court may in some

circumstances rely on its own knowledge of the market to establish reasonableness, especially
with respect to bankruptcy courts, which have developed "expertise" on attorney's fees issues,
see In re BOlero-Paramo, 483 Fed. App'x 779, 788-89 (4th Cir. 2012).

5 These factors are: "( 1) the time and labor expended; (2) the novelty and ditliculty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity
costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations
at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the
amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney;
(10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and client; and (12) attorneys' fees awards in
similar cases." Sen'. News Co., 898 F.2d at 965 (quoting Barber V. Kimbrell's. fIlC., 577 F.2d 216, 226
n. 28 (4th Cir. 1978)).

10

Here, the Bankruptcy
the attorney's
attorney's

fees award.

caused by or reasonably

Id. (quoting

incurred

Id. 577. In its Memorandum,

fees and costs claimed as damages,

been proximately
stay."

Court applied the well-established

and

supplemental

evidence

incurred

at

the

filed by Solomons

amount of evidence

One had to take to defend against Donnelly's
The Bankruptcy

category

Court then categorized

stay violations
one-by-one.

trial

concerning

One on December
already

of the automatic

Court considered
attorney's

the

fees,6

the

15, 2014 and December

16,

in the record about the actions

automatic

must have

what costs were reasonably

stay, the Bankruptcy

bench

for calculating

or post-litigation,

as a result of the violation

stay violations.'

Solomons

Id. 577-82.

the types of work billed in relation to Donnelly" s

into eight sets of tasks, addressing

Id. 579-82.

method

its analysis by noting that "the

whether pre-litigation

of the automatic

introduced

billing entries

2014,7 and the extensive

automatic

it prefaced

In re Grine, 439 B.R. at 471). In assessing

as a result of the violation

testimony

lodestar

In "scrutiz[ing]

the billing

the billing
entries"

entries

for each task

and "comput[ing]

the

At the bench trial, Solomons Onc called Erickson-File, one of its members, as a witness on the issue of
damages - i.e., attomey's fees. She testified that Donnelly's actions required Solomons One to incur
significant legal fees, both in defending against Donnelly's actions and in prosecuting the stay violations
in Bankruptcy Court. See App. 328-30. Erickson-File confirmed that she was aware of the work that
Solomons One's bankruptcy attomeys at Whiteford, Taylor & Preston had performed in connection with
Donnelly's stay violations, and that she had reviewed the billing records for that work. Id. 330-31. At that
point, the billing records from Whiteford, Taylor & Preston were entered into the record. Over Donnelly's
objection, the billing records were admitted by the Bankruptcy Court "as a document which reflects the
time and fees that the debtor's attorneys are seeking for representing the debtor in connection with" the
automatic stay violations. Id. 333.
J Donnelly separately argues that the Bankruptcy Court's consideration of the Roberts Declaration (filed
along with the supplemental billing entries on December J 5, 2014) constituted an abuse of discretion. The
Court will address this issue in Part IV.B, infra.
g It is also worth noting, as Solomons One argues, that even prior to the bench trial, the record itself
reflected the extensive work undertaken by Solomons One's attomeys to defend against Donnelly's
violations of the automatic stay. Reviewing the docket, it is apparent that Solomons One's attorneys had
to research and prepare the adversary Complaint, App. 18-84, 581; defend against Donnelly's Motion to
Dismiss the Adversary Complaint, or, in the Altemative, Motion for Summary Judgment, id. 581;
research and prepare Solomon's One's Motion for Partial Summary Judgment on Count 8, ill.; prepare for
and attend a hearing on dismissal and summary judgment motions in the adversary proceeding, id. 582;
and prepare for and attend the bench trial, id.
6

II

amount billed per task," the Bankruptcy Court "arrived at a blended rate" of $433.89 per hour,
"which is to say $40,092.00 divided by 92.40 hours [the total amount billed for the automatic
stay violation tasks, as retlected in the December 16 Filing]." /d. 579. It concluded that the
number of hours, expended at this blended rate across all tasks, were "reasonable and necessary."
Id 579-82.
Having reviewed the Memorandum and record in this case, the Court concludes that the
Bankruptcy Court did not abuse its discretion in conducting the above analysis and awarding
$40,092.00 in attorney's fees to Solomons One. Indeed, it is clear from the Bankruptcy Court"s
thorough analysis that it did not blindly accept the billing entries submitted by Solomons One"s
counsel. Instead, it interrogated the entries line by line, analyzing the hours and fees spent on
each category of tasks before concluding that the amounts were reasonable and necessary. The
Bankruptcy Court was not "clearly wrong," nor has it "committed an error of law." See Jones,
777 F.3d at 675. The Court therefore sees no grounds by which to reverse the Bankruptcy
Court's award, which the lower court clearly based on its "close and intimate knowledge of the
efforts expended and the value of the services rendered." See id.
Donnelly nevertheless contends that the fee award was made in error because Solomons
One failed to present evidence at trial to prove the "reasonableness"
submitted to the Court in the billing entries. Appellant's

of the work and fees

Br. 18-23. Donnelly asserts that

Solomons One should have called an expert witness, such as an accountant or an independent
lawyer who could testify as to the "reasonableness"

of the fees at issue. /d. 21. Without

testimony as to reasonableness, Donnelly says, the Bankruptcy Court failed to satisfy a critical
"tirst step" in its calculation of the appropriate award of attorney's fees. /d. 23.

12

The Court rejects this argument.
reasonableness and ...

A court "is itself an expert on the question of

may form an independent judgment either with or without the aid of

witnesses as to value." Beyond Sys .. Inc. v. World Ave. USA. LLC, No. CIV.A. PJM-08-921,
201 I WL 3419565, at *4 (D. Md. Aug. 1,201 I) (quoting Campbell v. Green, 112 F.2d 143, 144
(5th Cir. 1940»; see also CoStar Group, Inc. v. LoopNe/, Inc., 106 F. Supp. 2d 780, 788 (D. Md.
2000) (citing cases holding that a trial-level judge may rely on its own knowledge to establish the
reasonableness

of attorney's

rates). Further, despite Donnelly's

contention to the contrary,

Solomons One's "'failure to include affidavits from independent counsel [as to this issue] is not
fatal." Hairs/on v. Prince George

'.I'

Cly., No. CIV.A. PJM-09-343 1,201 I WL 6000757, at *3 (D.

Md. Nov. 29, 201 I). Courts have recognized that bankruptcy courts, which assess attorney's fees
applications

on a frequent basis, are "'particularly qualified" to determine the fairness and

reasonableness of attorney's fees. See Bo/ero-Paramo, 483 F. App'x at 789 (noting that "because
nearly every case on a bankruptcy court's docket involves reviewing attorneys' fees and costs in
the community,

we find that bankruptcy courts are, in certain circumstances,

particularly

qualified to determine the reasonableness of fees based on their own expertise"). It was therefore
not an abuse of discretion for the Bankruptcy Court to independently conclude that the amount
billed by Whiteford, Taylor & Preston in connection with Donnelly's willful stay violation was
reasonable.
Donnelly also seems to suggest that the Bankruptcy Court should have credited his
testimony at trial that the attorneys for Whiteford, Taylor & Preston were "'excessive" in their
response to the automatic stay violations, incurring "unreasonable" and "'unnecessary" fees. See
Appellant's Br. 23-33. He claims that "'[a] straightforward response to the procedural Notice of
Substitution of Proper Party in the Circuit Court Action or a motion for appropriate relief ...

13

would have sufticed." Appellant's
frankly, disingenuous.

Br. 24-25. The Court finds this argument meritless and,

In reviewing the record, Donnelly's

0\\11

conduct clearly invited the

response by Whiteford, Taylor & Preston: Donnelly drafted and executed the Assignment, filed
the Notice of Substitution, and despite receiving a letter asking for a withdrawal of the Notice of
Substitution, chose to continue his own aggressive litigation strategy thus "requiring [Solomons
One] to pursue legal action." App. 573. The Court agrees with the Bankruptcy Court that
id. 582, and accordingly, that the response of

Donnelly's conduct was "highly questionable,"

Solomons One's attorneys was not unreasonable or excessive.
For the above reasons, the Bankruptcy Court's analysis and calculation of reasonable
attorney's fees was not "clearly wrong" and therefore will not be reversed. See Best AId. fn! 'I,
fnc., 565 F. App'x at 236.

B.
A related issue raised by Donnelly is whether the Bankruptcy Court abused its discretion
in admitting the Roberts Declaration into evidence post-trial. The Court again concludes that the
Bankruptcy Court did not abuse its discretion.
As noted above, Solomons One submitted the Roberts Declaration as a part of its Line
Filing on December

15, 2014. App. 521-39. The Roberts Declaration

was submitted

by

Solomons One in response to an exchange between the Bankruptcy Court and Solomons One's
counsel at the bench trial. In this exchange, the Bankruptcy Court asked Solomons One's counsel
for clarification on interpreting certain "general" billing entries, billing entries for time spent in
which the description did not specifically mention the stay violations, and specifically how to
determine what tasks were performed in connection with these entries. App. 380. Solomons
One's counsel, Alan Lazerow, Esquire, could not answer all of the Bankruptcy Court's questions

14

because "admittedly, as an associate, [he was] not as involved in the billing as the partners." ld.
381. Mr. Lazerow, however, proposed tiling a memorandum clarifying the way that fees were
calculated in addition to tiling a supplemental

billing statement, which would include fees

incurred in preparation for the bench trial. /d. 380-81. The Bankruptcy Court agreed to the
additional filing, and Donnelly stated no objection to it during the hearing. /d.
Solomons One filed the eleven-paragraph Roberts Declaration on December 15, 2014./d.
535-39. Paragraphs 8 through II note that "[g]eneral billing references to research, drafting and
preparation"

which did not specitically mention the stay violations were for the most part

excluded from the billing entries with a few limited exceptions, which were explained. /d. 53839. These paragraphs thus resolved the questions raised by the Bankruptcy Court during the
hearing. The other seven paragraphs of the Roberts Declaration contain merely procedural facts
which were already established at trial or could be readily adduced from the docket. /d. 535-37.
Donnelly

argues on appeal that the Roberts Declaration

constituted

the "missing

testimony" required at the bench trial on the issue of "proof of the reasonableness and necessity
of the attorney's fees claimed as damages" Appellant's Br. 34. In Donnelly's view, the Roberts
Declaration constitutes a "post-hearing attempt to cure the lack of evidence presented at trial" on
the issue of reasonableness

and necessity, and the Bankruptcy

Court's

acceptance

of the

Declaration as evidence of "reasonableness and necessity" was improper and highly prejudicial
because Donnelly did not have the opportunity to cross-examine Roberts as a witness. /d. 34-35.
The Court disagrees.
As explained

in the Memorandum,

the Bankruptcy

Court authorized

the post-trial

submissions, including the Roberts Declaration, during the bench trial. App. 583-84. Donnelly
failed to object to the supplemental filings at any point during the exchange between the Court

15

and Mr. Lazerow on this issue. Aller Solomons One submitted the Roberts Declaration,
Donnelly filed a Motion to Strike the Roberts Declaration and December 16 Filing, but asked for
no other relief (such as, for example, a further hearing on the updated billing statements or an
opportunity to cross-examine

Roberts). Id. 584. The Court sees no error in the Bankruptcy

Court's consideration of the Roberts Declaration, given Donnelly's failure to raise an objection
to the supplemental information when it was permitted at the bench trial, or take appropriate
steps to ask for further information from Solomons One's counsel. In this respect, the Court does
not consider the Bankruptcy Court's consideration of the Roberts Declaration to have created
"undue prejudice" to Donnelly. See Levy, 589 F.3d at 714.
Moreover,

the Roberts

Declaration

does not contain any assertions

or arguments

regarding the reasonableness and necessity of the fees listed on the billing statements, despite
Donnelly's contention to the contrary. See generally App. 535-39. That this testimony was a key
piece of evidence on reasonableness is simply not true. See Appellee's Br. 31. And even if it did
contain such testimony, the Bankruptcy Court engaged in its own independent assessment of
reasonableness, as explained at length in Part IV.A, supra. Indeed, it employed its expertise on
issues of attorney's fees without the need for additional evidence from Solomons One other than
the billing entries and the established record of the steps taken to defend against Donnelly's stay
violations.

The Court thus finds the notion that the Roberts Declaration

was "especially

important or probative," see LeIY, 589 F.3d at 714, dubious, at best.
For the above reasons, the Bankruptcy Court's decision to consider the post-trial Roberts
Declaration was not an abuse of discretion.

16

c.
The third and final issue Donnelly raises on appeal is whether the Bankruptcy Court erred
in "relying on" Solomons One's pretrial memorandum in its detern1ination of reasonable and
necessary attorney's fees. The Court easily disposes of this issue.
First, although listed as an "issue" for the Court's consideration in the first page of his
opening brief, Appellant's

Br. 1, Donnelly does not present any argument in support of his

position in his brief or other papers. Solomons One asserts that Donnelly's

failure to do so

constitutes a waiver of the issue, and the Court agrees. See Fed. R. App. P. 28(a) (listing the
requirements for an appellate brief, which include a statement of the issues and argument for
each issue); KosI v. Kozakiewicz, I F.3d 176, 182 (3d Cir. 1993) ("It is well settled that if an
appellant fails to comply with [Fed. R. App. P. 28(a)] on a particular issue, the appellant
normally has abandoned and waived that issue on appeal and it need not be addressed by the
court of appeals.") (internal citations omitted); United Slales v. Brown, 404 F. App'x 665, 666
n.1 (3d Cir. 2010) ("Because an appellant's

failure to present legal argument in support of an

issue constitutes a waiver of that issue on appeal, we do not address the unargued question listed
in the "Questions Presented for Review.").
Second, even if not waived, any argument on this issue would be meritless. The record
contains

no evidence

memorandum

that the

Bankruptcy

in awarding attorney's

Court

considered

Solomons

One's

pretrial

fees. The Court therefore does not see any grounds on

which to conclude that the Bankruptcy Court could have abused its discretion with respect to the
pretrial memorandum.

17

v.
For the foregoing reasons, the Judgment of the Bankruptcy Court awarding Solomons

A separate Order will ISSUE.

lsI
PE ER J. MESSITTE
ST TES DISTRICT JUDGE

V

APri~_, 016
2

18