In re Moody & Sons, Inc.

473 B.R. 828, 23 Fla. L. Weekly Fed. B 382, 2012 WL 1710525, 2012 Bankr. LEXIS 2161
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedMay 16, 2012
DocketNo. 3:09-bk-6247-JAF
StatusPublished

This text of 473 B.R. 828 (In re Moody & Sons, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Moody & Sons, Inc., 473 B.R. 828, 23 Fla. L. Weekly Fed. B 382, 2012 WL 1710525, 2012 Bankr. LEXIS 2161 (Fla. 2012).

Opinion

[830]*830 FINDINGS OF FACT AND CONCLUSIONS OF LAW

JERRY A. FUNK, Bankruptcy Judge.

This Case is before the Court on the Application For Payment of Administrative Claim in the Amount of $750,000 (Doc. 737, the “Application”), filed by Gerald Dake & Associates, Inc. The Court held a hearing on February 17, 2012 and took the matter under advisement. In lieu of oral argument, the Court directed the parties to submit memoranda in support of their respective positions. Upon the evidence presented at trial, and the memoranda of the parties (Docs. 1099, 1100), the Court makes the following Findings of Fact and Conclusions of Law pursuant to Bankruptcy Rule 7052. The transcript of the underlying trial proceedings (Doc. 1091) will hereinafter be referred to as “Tr.” followed by the appropriate page number. For the reasons provided herein, the Application (Doc. 737) will be denied in part.

FINDINGS OF FACTS

Gerald Dake & Associates, Inc. (hereinafter, “Dake”) is a real estate development firm that provides consultation services to develop, market, and sell commercial real estate. Moody & Sons, Inc. (hereinafter, the “Debtor”) owns a large parcel of land on the intracoastal waterway in Jacksonville, Florida, commonly referred to as the “Bellinger Property.” Even though the Bellinger Property (hereinafter, the “Property”) is in a prime location, its use has been (and remains to be) that of an industrial shipyard.

On or about May 1, 2007, the Debtor entered into a Consulting and Marketing Agreement with Dake to sell the Property (Debtor’s Ex. 1, the “Agreement”). In addition to serving as the listing broker for the sale of the Property, Dake was charged with facilitating a change in the Property’s land use classification, and with clearing several title issues with the State of Florida (Debtor’s Ex. I).1 Specifically, the Agreement provided that Dake’s “Consulting Services” included: (1) site plan development; (2) coordination with engineers and other professionals with respect to advantageous development use of the Property; (3) coordination and acting as a liaison with governmental agencies with respect to land use matters; (4) assistance with securing rezoning for the Property as a multi-unit residential/commercial complex with a marina; and (5) development of marketing materials and strategies for the sale of the Property (Debtor’s Ex. 1 at 6-7; Doc. 170-1 at 7-8).

In consideration for Dake’s “Consulting Services,” the Agreement provided that Dake was to receive a sliding-scale commission fee upon the sale of the Property (Debtor’s Ex. 1 at 3). A “Sale” of the Property is defined in the Agreement as a transfer of deed from the Debtor to another entity (Debtor’s Ex. 1 at 4). The Agreement additionally contained an “Early Termination Fee” provision which provided:

In the event that Moody [the Debtor] and Dake agree to terminate this Agreement prior to a sale of the property, Moody shall pay Consultant [Dake] an aggregate early termination fee equal to $750,000 unless Moody terminates this Agreement due to the Consultant’s failure or refusal to perform [its] respective [831]*831duties hereunder (after thirty days notice and opportunity to cure) in which case no amount will be payable by Moody to the Consultant.

(Debtor’s Ex. 1 at 4).

Since changing the land use classification for the Property and clearing title with the State of Florida were complex and lengthy processes, Dake recommended that the Debtor retain the services of attorneys Paul M. Harden and Miguel Colla-zo (Tr. 28-29). In August 2006, Mr. Harden filed an Application for Semi-Annual Land Use Amendment to the Future Land Use Map (“FLUM”) Series — 2010 Comprehensive Plan for the Bellinger Property. Pursuant to the application, Mr. Harden requested a 2010 Comprehensive Plan FLUM designation for the Bellinger Property as Community General Commercial, and a Zoning District Designation of Planned Urban Development (“PUD”). On May 14, 2007, the Council of the City of Jacksonville adopted: (1) Ordinance 2007-355-E changing the FLUM for the Bel-linger Property from WD-WR to Community General Commercial; and (2) Ordinance 2007-356-E changing the zoning to PUD (Dake Ex. 3 at 15). On July 9, 2007, the Department of Community Affairs (“DCA”), a State Land Planning Agency, issued a notice and statement of intent, alleging Ordinance 2007-355-E was not in compliance with Florida Statutes and that the FLUM amendment conflicted with policies of the State Comprehensive Plan (id). On August 1, 2007, the DCA filed a petition for an administrative hearing; whereupon, extensive administrative proceedings ensued (see id. at 16-17).

On June 10, 2009, the State of Florida Administration Commission directed the City of Jacksonville to take remedial actions to bring the FLUM amendment into compliance with the Florida Statutes (id. at 26-30). The Administrative Commission also approved the rezoning, land use change, and redevelopment of the Belling-er Property, subject to the City of Jacksonville adopting specific provisions into the comprehensive plan through remedial action (id.).

As the aforementioned lengthy process was nearing completion, on July 28, 2009, the Debtor filed a petition for protection under Chapter 11 of the Bankruptcy Code. Shortly thereafter, on August 14, 2009, the Debtor filed an application to employ the law firm of Hopping Green & Sams, P.A. as special counsel pursuant to 11 U.S.C. § 327(e) (Doc. 58).2 In the application, the Debtor stated it estimated the re-zoning of the Property to mixed commercial and residential use would increase the value of the property by $5,000,000 to $10,000,000 (Doc. 58 at 3). In its Order authorizing the retention of Hopping Green & Sams, P.A. as special counsel, the Court provided that all compensation for services rendered and costs expended “shall be determined by the Court upon application in accordance with § 330 of the Bankruptcy Code” (Doe. 104 at 2).3

Similarly, on August 18, 2009, the Debt- or filed an application to employ attorney Paul M. Harden as special counsel pursuant to 11 U.S.C. § 327(e) (Doc. 69). In the application to employ Mr. Harden, the Debtor stated it estimated the re-zoning of the Property to mixed commercial and residential use would increase the value of the property by $5,000,000 to $10,000,000 (Doc. 69 at 3). The application provided that the contracted fee arrangement between [832]*832Mr. Harden and the Debtor was $250,000 (Doe. 69 at 6). In its Order authorizing the retention of Mr. Harden as special counsel, the Court provided that it did not endorse or approve the proposed $250,000 fee arrangement, supra, but rather, all compensation for services rendered and costs advanced by Mr. Harden were “[to] be determined by the Court upon application in accordance with § 330 of the Bankruptcy Code” (Doc. 103 at 2).4

On August 25, 2009, approximately thirty (30) days after the Petition Date, following a settlement of issues with the DCA, the City of Jacksonville adopted Ordinance 2009-621 to effectuate the remedial FLUM Amendment in accordance with the June 10, 2009 order of the Administrative Commission, supra.

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473 B.R. 828, 23 Fla. L. Weekly Fed. B 382, 2012 WL 1710525, 2012 Bankr. LEXIS 2161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-moody-sons-inc-flmb-2012.