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, ) Vv. ) ACTION FOR BREACH ) OF CONTRACT SAPPHIRE BAY CONDOMINIUMS WEST, ) ) Defendant. ) 2024 V.I. 11U ) MEMORANDUM OPINION 41. THIS MATTER is before the Court on Defendant Sapphire Bay Condominiums West’s (Sapphire Bay) Motion for Decision on Petitions for Attorney's Fees filed on February 12, 2024. The motion addresses two outstanding petitions for attorney’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. 4/2. 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 Affirmation of Lisa Komives in Support of Attorney’s Fee Petition and (J. Daryl Dodson’s) Affirmation in Support of Attorney's 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 Kémives, Esq.) and Moore Dodson Russell & Wilhite, P.C. (J. Daryl Dodson, Esq.) Bart Enterprises, LLC v. Sapphire Bay Condominiums West 20 VE 11U Memorandum Opinion 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 initio as a nullity. 11. 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 attorney’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 412. In support of the motion, Lisa Michelle Kémives, 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 alia, that Atty Kémives 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 the paralegal, Daisy R. Williams, all work on this summary was completed by Attorney K6mives. The work commenced on January 23, 2020, and Attorney Kémives’ portion was completed on December 14, 2021. Attorney Kémives’ 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 $17,342 in ’ Bart Enterprises, LLC v. Sapphire Bay Condominiums West 20V.L1LU Memorandum Opinion Page 7 fees and no costs. 13. 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, the date it was performed, the amount of time spent on each task, and the dollar amount assessed per task. Counsel also filed approximately eight affidavits of 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. 414. 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 alia, 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. 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 4 Bart Enterprises, LLC v. Sapphire Bay Condominiums West 20V.E.11U Memorandum Opinion Page & 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 Rigging & Erecting, Inc. v. Virgin Islands Water & Power Auth., 76 VI. 480, 2022 WL 843385, 2022 V.1. 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 4.16. The normal market rate for attorneys in the Virgin Islands is $200 to $400 depending upon the experience of the attorney.'* Some Virgin Islands courts have held that rates between $300 to $350 per hour to be reasonable rates for partners.'* The Third Circuit has stated that when attorney’s fees are awarded, the current market rate must be used.'® As stated, having reviewed the affidavits submitted by the Defendant 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. 3. The Amount Involved in the Controversy & Results Obtained 17. In this matter, the Defendant has received the full benefit of a dismissal of the action in its 4 Diamond Crest Ltd. v. FNA Serv. Station, Inc., 2006 WL 8418818, at *5 (V.I. Super. June 14, 2006). 'S Yearwood Enterprises, Inc. v. Antilles Gas Corp. 2017 WL 6316625, at *3 (V.1. 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). '© Berne Corp. v. Government of the Virgin Islands, 2010 WL 3927703, *5n.1 (DVI Set. 30, 2010) (quoting Lanni v. New Jersey, 259 F.3d 146, 149 (3d. Cir. 2001)). Bart Enterprises, LLC v. Sapphire Bay Condominiums West 20VE HU Memorandum Opinion Page 9 entirety as the complaint was deemed a legal nullity. There was no opposing argument to present other than, if anything, to correct the defect 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 #18. 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. 419. 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.”'? On Attorney Kémives’ summary, the court will deny compensation for the duplicate entry on February 11, 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 drafting 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-attorney staff is reduced as normal overhead costs associated with running a business.'® Thus, these are non-compensable costs and an additional $160 will be deducted. 17 Poleon at *2. '8 Rainey v. Hermon, 55 V.1. 875, 879 (V. 1. 2011) Bart Enterprises, LLC v. Sapphire Bay Condominiums West 20VE LU Memorandum Opinion Page 10 IV. CONCLUSION 4720. 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 Ch NRL LG Oat ee ie Y. Dated: February Ae 2024 Ren Gt bs Carty or enior Sitting Judge of the § Court of he Virgin Islands ATTEST Tamara Charles Clerk of Court By Donna D. Donovan Court Clerk Supervisor / / 10