Bart Enterprises, LLC. v. Sapphire Bay Condominiums West

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

BART ENTERPRISES LLC )

3 CASE NO ST 2020 CV 00075 Plaintiff, ) v ) ACTION FOR BREACH ) OF CONTRACT SAPPHIRE BAY CONDOMINIUMS WEST )

Defendant ; 2024 VI Super llU ) MEMORANDUM OPINION

1H THIS MATTER is before the Court on Defendant Sapphire Bay Condominiums West’s

(Sapphire Bay) Manon for Decxszon on Petxtzons for Attorney 5 Fees filed on February 12, 2024

The motion addresses two outstanding petitions for attomey’s fees with the first being filed on

December 28, 2022, for fees requested at the trial level after the dismissal of the complaint on

September 23, 2022 The latter petition filed on December 5, 2023, pertains to fees incurred at

the appellate level after the Supreme Court of the Virgin Islands affirmed the trial court’s

dismissal

1|2 In the first petition, Sapphire Bay seeks fees from Plaintiff Bart Enterprises, LLC (Bart) in

the amount of $31, 982 00 To support this request, Sapphire Bay submitted the Aflirmatzon of

Lzsa Komaves m Support ofAttorney 3 Fee Petition and (J Daryl Dodson’s) Aflirmatton m

Support ofAttorney 3 Fee Petition along with a 6 page (combined) client itemized listing

describing work performed by two law firms, including time spent on different tasks, dates, and

the hourly billing charges Legal services provided commenced on January 23, 2020, and ended

on March 26, 2023 Those services were provided by Dudley Newman Feuerzeig LLP (Lisa

Michelle Komives, Esq ) and Moore Dodson Russell & Wilhite, P C (J Daryl Dodson, Esq) Bart Enterprises LLC v Sapphire Bay Condominiums West 2024 VI Super llU Memorandum Optmon Page 2

over the course of this action For their services rendered, Attorney Komives charged $355 per

hour while Attorney Dodson charged an hourly fee of $400 A Stipulation for Substitution of

Counsel and Notice of Appearance were filed by Attorney Dodson on January 3, 2022 In the

second petition, all services were rendered by Attorney Dodson and to support that petition, he

filed a similar affirmation and a 2 page itemized listing categorized in the same manner as the

other client summary for work performed and charges Here, Attorney Dodson is requesting fees

in the amount of $6,880

I BACKGROUND

1B On February 13, 2020, Peter R Najawicz, project manager of Bart, who is not a licensed

attorney in the Virgin Islands, filed a complaint signed by him The Court ordered Bart to retain

counsel to prevent any further unauthorized practice of law pursuant to Title 4 V I C § 4431 On

June 2, 2020, Robert L King, Esq entered a notice of appearance but neither corrected nor

sought to amend the defective complaint On December 10, 2021, Attorney King moved to

withdraw fi’om the case and the motion was granted on December 17, 2021 On September 1,

2022, Kye Walker, Esq filed a notice of appearance on behalf of Bart, but did not respond to any

of the court orders nor any of the motions filed by the Defendant Although counsel was twice

retained, Bart never corrected or amended the complaint After several motions filed by the

Defendant and court orders being issued, the complaint was dismissed on September 23, 2022

' Title 4 V I C § 443 provides the following Except as otherwise provided by law or rule the unauthorized practice of law shall be deemed to mean the doing of any act by a person who is not a member in good standing of the Virgin Islands Bar Association for another person usually done by attorneys at law in the course of their profession and shall include but not be limited to acting as the attorney at law, or representative of fu'm or corporation, before any court the preparation and/or filing of pleadings or other legal papers incident to any action or other proceeding of any kind before or to be brought before the same

2 Bart Enterprises LLC v Sapphzre Bay Condommzums West 2024 VI Super 1 1U Memorandum Opinion Page 3

114 On October 19 2022 Bart promptly appealed the decision to the Supreme Court of the

Virgin Islands, which affirmed the dismissal on November 21, 2023 On January 11, 2024, the

Mandate of the Supreme Court was entered and this matter was remanded back to the Superior

Court The only outstanding matters are the petitions for attorney’s fees Pursuant to V I R

APP P 30(b), it is for this Court to also determine what, if any, is an appropriate award for

attomey’s fees incurred on appeal The Defendant filed both petitions in a timely manner and

considen'ng the deadlines for responses have passed and Plaintiff has failed to file an opposition

or response to either petition to date, the Count will grant the petitions, in part, as it finds the fees

to be reasonable

{5 Title 5 V I C § 541 enumerates the allowable costs and attomey’s fees in civil matters 2 In

relevant part, the statute states

(a) Costs which may be allowed in a civil action include

(6) Attorney's fees as provided in subsection (b) of this section

(b) The measure and mode of compensation of attorneys shall be left to the agreement, express or implied, of the parties; but there shall be allowed to the prevailing party in the judgment such sums as the court in its discretion may fix by way of indemnity for his attorney's fees in maintaining the action or defenses thereto; provided, however, the award of attorney's fees in personal injury cases is prohibited unless the court finds that the complaint filed or the defense is frivolous

T6 The decision to award costs or attorney’s fees is entirely within the discretion of the court 3

2 See alsoV l R Civ P 54(d) 3 Pollara v Oceanwew Investment Holding LLC 2015 WL 4735205 at *1 (D V I May 21 20l5) citing Addie v Kjaer 2014 U S Dist LEXIS B4500 at *8 (D V! Sept 24 2014)

3 Bar! Enterprtses LLC v Sapphire Bay Condominiums West 2024 VI Super 1 1U Memorandum Opimon Page 4

An award of attomey’s fees under Title 5 V I C § 541(b) is a matter ofjudicial discretion “ The

court determines the amount the prevailing party should receive in attorney’s fees and costs in

the Virgin Islands 5 The award of attomey’s fees and costs goes to the “prevailing party as

provided under § 541(b), however, the amount awarded is dependent upon several factors A

prevailing party is a party that succeeded on any significant issue in litigation which achieves

some of the benefit the parties sought in bringing suit 6

A Reasonable Attorneys’ Fees

‘17 The decision to award the attomey’s fees and costs and provide the amount is left up to the

court upon the submission of sufficient explanation 7 To detennine the lodestar amount, the

court considers the number of hours reasonably expended on work multiplied by a reasonable

hourly rate The court determines what is reasonable based on the following factors 1) time and

labor required, 2 ) the novelty and difficulty of the questions involved, 3 ) the skill requisite to

perform the legal service properly, 4 ) the fee customarily charged in the locality for similar legal

services, 5 ) the amount involved in the controversy and the results obtained; 6) the experience,

reputation, and ability of the lawyer or lawyers performing the services, and 7 ) whether the fee

is fixed or contingent a To determine attorney’s fees, the Court should undertake a two step

inquiry when examining the reasonableness of attorneys’ fees 9 First, the Court determines

whether the hours billed were ‘reasonably expended ’ Second, the Court determines whether the

‘ Collins v Government ofthe Virgin Islands 366 F 2d 279 5 V I 622 1966 U S App LEXIS 4973 (3d Cir V I

5 '11'9it6lg)5 V I C §54l(a) & (b) 6 Trailer Marine Transp Corp v Charley s Truckmg Inc , 20 V I 286, at *2 (Terr V I Mar 15, 1984) 7 Mahabtrv Heirs ofGeorge 63 VI 651 668 (VI 2015) 8 Isaacv Crichlow 2016 WL 5468371 at *1 (VI Super Ct Sept 29 2016) 9 ggxirgfnn v Virgin Islands Water & PowerAuthortty 2016 U S Dist LEXIS 57604 at ‘3 (D V I Apri127

4 Bart Enterprises LLC v Sapphire Bay Condomtmums West 2024 VI Super llU Memorandum 0pmzon Page 5

hourly rate sought is reasonable in compan'son to the prevailing market rates in the relevant

community for similar services by lawyers of reasonably comparable skill, experience, and

reputation '0

B Itemized Reductions Warranted for Duplicative, Unreasonable, or lnsufficiently Detailed Billing or Non Recoverable Costs

18 Section 541 only permits the recovery of certain costs Cost for paralegals or assistants are

not included Computer legal research charges and copying costs are general overhead expenses

that are not compensable costs under §541 “ “[A] court may, as needed, remove duplicative,

disproportionate, or superfluous charges or services "2 Even though a client may use multiple

attorneys, the court may, as needed, reduce the amount in attomey’s fees when multiple lawyers

put in duplicative effort regarding the same issue '3

III LEGAL DISCUSSION

$9 This action arises out of an agreement entered into on August 15, 2018, for a construction

project at Parcel No 11 Smith Bay, St Thomas, Virgin Islands Bart was contracted to re roof

four buildings at Sapphire Bay The complaint was improperly filed on February 13, 2020, by

Bart seeking an outstanding debt in the amount of $265,296 98 for an alleged breach of contract

by Sapphire Bay Sapphire Bay filed a counterclaim on August 19, 2021, demanding the sum of

$115,890 22 due to monies spent on remedying Bart’s allegedly defective work

1110 All claims brought by Bart were dismissed on September 23, 2022 by the Court and the

'0 Baumann at ‘4 See also Heme Carp Government ofthe Virgin Islands, No 00 141 2012 U S Dist LEXIS 13128 [WL] at ’10 (D VI Feb 3 2012) ” Royv Poleon 2018 VI LEXIS 136 ‘7 (VI Super Ct Dec 14 2018) See also TitleS V I C §54l '2 PoIeon at 6 3 Marcher v Nash 40 V I 256 263 (D V I 1998)

5 Bar! Enterprises LLC v Sapphire Bay Condommlums West 2024 VI Super 1 1U Memorandum Opzmon Page 6

Supreme Court of the Virgin Islands subsequently affirmed the decision on appeal on November

21, 2023 This Court having read the Opinion recognizes the matter should have been dismissed

ab zmtlo as a nullity

1111 To date, both petitions for attorney’s fees remain unopposed and the deadlines for Plaintiff

to have responded passed Upon review of the petitions, this Court has determined that

Defendant, as the prevailing party, should be awarded reasonable attomey’s fees There were no

requests for costs Despite the complaint being a legal nullity, Plaintiff failed to correct the

defect, failed to respond to orders and then, only upon dismissal, filed an appeal

A Reasonable Attorney’s Fees

1 Time, Labor, and Skill Required, Novelty or Difficulty of Issues

1112 In support of the motion, Lisa Michelle Komives, Esq , a partner of Dudley Newman

Feuerzeig LLP, submitted an affirmation and a 2 page itemized summary listing the brief

description of the work performed, the date it was performed, the amount of time spent on each

task, the hourly rate, and the dollar amount assessed per task The affirmation provides, inter

aha, that Atty Komives had been practicing law for almost 20 years up to the resolution of this

case with greater concentration in civil defense litigation, primarily business and commercial

cases With the exception of three tasks performed by paralegal Daisy R Williams, all work on

this summary was completed by Attorney Komives The work commenced on January 23, 2020,

and Attorney Komives’ portion was completed on December 14, 2021 Attorney Komives’ rate

was billed at $355 per hour during the entire work period while Ms Williams tasks were billed at

$160 per hour The total billable hours are 49 40 with the sum of $1 7,342 in fees and no costs

6 Bart Enterprises LLC v Sapphire Bay Condominiums West 2024 v1 Super 1 1U Memorandum 0mm Page 7

1113 In further support of the petition is the affirmation of J Daryl Dodson, Esq , a shareholder

in the firm of Moore Dodson Russell & Wilhite LLP, and a 4 page client summary listing work

completed at the trial level The summary shows the brief description of the work performed,

date of performance, the amount of time spent on each task, and the dollar amount assessed per

task Counsel also filed approximately eight affidavits from fellow bar members reflecting their

fees charged in other cases ranging from $300 to $450 per hour; and two Superior Court opinions

supporting the requested fees Although Attorney Dodson was substituted in on January 3, 2022,

his portion of work at the trial level started on September 27, 2021, and was completed on March

26 2023 at the appellate level

1114 Attorney Dodson also submitted a 2 page itemized summary describing work performed to

defend the action on appeal All work on the summaries were completed by Attorney Dodson

and billed at $400 per hour with the billable hours amounting to 37 80 hours for a sum of

$14,640 in fees and, on appeal, 18 2 hours at $6,880 The supporting affirmation provides, Inter

aha, Atty Dodson had been practicing law in the Virgin Islands for almost four decades with a

concentration in civil defense litigation Total fees requested for services rendered between both

firms is $38,862

1[15 Due to the case being dismissed at a very early stage, there was no discovery, no

depositions taken, or extensive motion practice Although a proper complaint was never filed,

this Court allowed the Plaintiff, on more than one occasion, the opportunity to correct the

defective filing which prompted several motions from the Defendant This was a breach of

contract action and although the attorneys were not required to understand or research any

7 Bart Enterprises LLC v Sapphire Bay Condommiums West 2024 VI Super llU Memorandum Opinion Page 8

in depth legal concepts, complex issues or multiple claims, and neither was there any protracted

litigation or the need for particularly difficult work, both firms vigorously defended the claims

brought forth which generated adequate research and several filings at the inception The issues

were neither novel, difficult, nor complex However, the Court does find that it took diligent

research by the Defendant to come to rely on Murphy Rzggmg & Erecting Inc v Vzrgm Islands

Water & Power Auth 76 V I 480 2022 WL 843385 2022 V I 5 (March 22 2022) resulting in

the dismissal Therefore, with the experience and effort applied to this case, the Court finds the

fees reasonable and within the customary charges of the Virgin Islands

2 Customary Charges of the Bar for Similar Services

1] 16 The normal market rate for attorneys in the Virgin Islands is $200 to $400 depending upon

the experience of the attorney '4 Some Virgin Islands courts have held that rates between $300

to $350 per hour to be reasonable rates for partners '5 The Third Circuit has stated that when

attorney’s fees are awarded, the current market rate must be used '6 As stated, having reviewed

the affidavits submitted by the Defendant the Court found those fees including up to $450 per

hour to be reasonable Here, this Court believes the charges of $355 and $400 per hour,

respectively, are reasonable for the skill and extensive amount of experience of the attorneys in

civil litigation

1‘ Diamond Crest Ltd v FNA Serv Station Inc 2006 WL 84188l8 at *5 (VI Super June 14 2006) '5 Yearwood Enterprises Inc v Antilles Gas Corp 2017 WL 6316625 at *3 (VI Super Ct Dec 5 2017) (Holding that $350 per hour was a reasonable rate because it is in line with the customary rates for attorneys in the Virgin Islands) 6 Heme Corp v Government ofthe Virgin Islands 2010 WL 3927703 *Sn 1 (DVI Set 30 20l0) (quoting Lanm v NewJersey 259 F 3d 146 149 (3d Cir 2001))

8 Bart Enterprises LLC v Sapphire Bay C ondommtums West 2024 V1 Super 1 1U Memorandum Opinion Page 9

3 The Amount Involved in the Controversy & Results Obtained

1117 In this matter, the Defendant has received the full benefit of a dismissal of the action in its

entirety as the complaint was deemed a legal nullity There was no opposing argument to

present other than, if anything, to correct the defective complaint which Plaintiff failed to do

With all claims against Sapphire Bay being dismissed Sapphire Bay is the prevailing party and

therefore entitled to reasonable fees

4 Experience, Reputation and ability of the lawyers, Fixed fee

118 Both counsel have provided their affirmations referencing their number of years of

experience particularly within this jurisdiction and which reflect they have a breadth of

experience and are knowledgeable in matters revolving breaches of construction contracts The

fixed fee rates for both firms are reasonable

B Itemized Reductions Entered for Duplicative Entries

1H9 The only applicable fees here are attorneys’ fees No other costs were requested “[A] court

may, as needed, remove duplicative, disproportionate, or superfluous charges or services ”'7 On

Attorney Komives’ summary, the court will deny compensation for the duplicate entry on

February 1 1, 2020 for the sum of $1 739 50 at 4 90 hours for drafting a letter to Bart regarding

breaches of construction contracts There are three other entries dated February 10, 12, and 14,

2020, regarding drafiing and revising the same letter for a total of 4 80 hours The Court will also

deduct fees for the paralegal Compensation for work performed by paralegals and non attomey

staff is reduced as normal overhead costs associated with running a business '3 Thus, these are

‘7 Poleon at *2 '8 Rameyv Hermon 55 VI 875 879 (V I 2011)

9 Bart Enterprtses LLC v Sapphzre Bay Condommmms West 2024 V] Super llU Memorandum Optmon Page 10

non compensable costs and an additional $160 will be deducted

IV CONCLUSION

1[20 Based on the above mentioned reasons, this Court will award attorneys’ fees to

Dudley Newman and Feuerzeig LLP in the amount of $15,442 50, and to the firm of

Moore Dodson Russell & Wilhite, P C, the sum of $21,520 for the total sum of $36,

962 50 An order of even date follows

Dated March A; 2024 (2 / Renee (/ bs Carty [g 6

Senior Sitting J e of the Supen'or Court of t irgin Islands ATTEST Ta ara Charles Cler f the Court 1 (

Do a D Donovan C rt Clerk Supervisoré/ /&R+

10 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

BART ENTERPRISES LLC ) ) CASE NO ST 2020 CV 00075 Plaintiff ) v ) ACTION FOR BREACH ) OF CONTRACT SAPPHIRE BAY CONDOMINIUMS WEST ) ) Defendant ) 2024 VI Super llU ) ORDER

Consistent with the Memorandum Opinion of even date, it is hereby

ORDERED that the Penman: for Attorney 3 Fees are GRANTED in part, and

Sapphire Bay is awarded attorney’s fees in the total sum of $36, 962 50, and it is further

ORDERED that Bart Enterprises LLC shall pay the sum of $15 442 50 in

attomeys’ fees to Dudley Newman Feuerzeig, LLP; and it is further

ORDERED that Bart Enterprises LLC shall pay the sum of $21 520 in attorney 5

fees to Moore Dodson Russell & Wilhite, P C ; and it is futther

ORDERED that interest shall accrue at the legal rate of 4% per annum from the

date of entry of this Order until paid in full, and it is fiarther

ORDERED that copies of this Order shall be distributed to J Daryl Dodson

Esquire, Lisa Michelle Komives, Esquire, an¢16e Walker, Esquire/

Dated March / 5 2024 f K )6 enee s Carty ATTEST Seni r Sitting Jud of the Superior Tam a Charles Court of the irgin Islands Clc ourt ( By M6 L“ ‘ Do D Donova Cou Clerk Supervisor Q/ 1 I&L‘}