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IN THE SUPREME COURT OF THE VIRGIN ISLANDS VIOLET SEWER MAHABIR ) S Ct Civ No 2014 0025 Appellant/Plaintiff ) Re Super Ct Civ N0 23I/2009 (SW) ) v ) ) HEIRS OF JAMES WELLINGTON ) GEORGE ANNA MARIA GEORGE born ) Wilson, EMILE ROBERTS born George, ) Al FRED VICTOR LAMBERTUS, ) WILLIAM D GEORGE, included but not ) limited to Heirs of BEULAH BATTISTE ) Heirs of EARL CHRISTIAN, Heirs of ) MONROVIA GEORGE WELLS ) CARMEN REYES MARY FLORES and ) anyone else claiming any right, title, estate, ) lien, or interest in Parcel No 6ab Estate ) Hansen Bay A, East End Quarter, St John, ) Virgin Islands, as shown on PWD No A9 ) 282 T80 ) Appelleestefendants ) ) 0n Appeal from the Supenor Court of the Virgin Islands Division of St Thomas & St John Superior Court Judge Hon Michael C Dunston Considered December 16, 2014 Filed Decemberéz 2021 Cite as 2021 V122 BEFORE RHYS S HODGE, Chief Justice, MARIA M CABRET, Associate Justice, and IVE ARLINGTON SWAN Associate Justice APPEARANCES Susan B Moorehead, Esq Smock & Moorehead St Thomas U S V I Attorneyfor Appellant Karl R Percell, Esq The Percell Legal Group, P C Heirs ofJames Wellington George Heirs ofMonrovza George Wells, and Carmen Reyes, Mal ia T Hodge, Esq Hodge 6’. Hodge St Thomas U S VI Attorneyfor Appellees Martha George and Wilmar Corporation OPINION OF THE COURT CABRET, Associate Justice 1] I In our previous opinion entered in this matter, we considered Violet Sewer Mahabir’s appeal from orders of the Superior Court dismissing her claim of exclusive title to a property on St John through adverse possession and ordering her to pay attorney's fees to the opposing patties ‘ In that opinion, we affirmed the Superior Comt’s holding that Mahabir failed to establish adverse possession However, we remanded the record for the trial court to clarify its reasoning as to its awards of attomey’s fees In response, on March 21, 2019, the Superior Court entered a memorandum ofdecision regarding attorney’s fees and costs, explaining its rulings in that respect 1| 2 Because we remanded only the record in this matter for clarification of the trial court’s decisions to award attomey’s fees and costs, and did not remand the case in its entirety, we retain jurisdiction over this appeal from the Superior Court’s April 8, 2014, orders awarding attomey’s fees and costs under Title 4, Section 32(a) of the Virgin Islands Code See Hodge v Bluebeard's Castle Inc 62 V I 671 , 684 (V I 2015) (“In a record remand, jurisdiction over the case remains with [the appellate] court, but the record [alone] is returned to the trial court ”) (citation omitted) We review the Superior Court’s rulings with respect to attomey’s fees and costs for abuse of discretion See In re Guardianship ofSmith, 58 V I 446, 449 (V I 2013) (“This Court reviews the Superior Court's ruling on a motion for attorney's fees and costs for abuse of discretion [but] [t]o the extent the review implicates an interpretation of law, however, we review that interpretation de novo ”) (citation omitted) As we previously noted Mahabir argues on appeal that the Superior Court should have reduced the attorney's fees further or outright denied them because this case involved a “bona fide land dispute ” With regard to Wilmar Corporation's motion, Mahabir argues that the Superior Court should have excluded $2,438 in fees related to settlement negotiations, $11,600 related to Wilmar Corporation's failed summary judgment motion, $1,137 50 related to issues raised by other parties, and $575 charged for attorney work unrelated to the litigation With regard to the motion by the Heirs of George, Mahabir argues that the Superior Court should have excluded $2,825 in fees that pre dated the filing of the complaint, $1,150 in fees not related to the litigation, $2,125 in fees related to settlement negotiations, and an unspecified amount for unidentified “excessive” and “vague” fee requests Mahabir v Hezrs ofGeorge, 63 V I 651, 667 (V I 2015) For the reasons discussed below, we conclude that the Superior Court abused its discretion in fixing its award of attorney’s fees and costs, though not in any of the ways argued by Mahabir Nevertheless, because the court’s errors benefited, rather than prejudiced Mahabir, and because neither William George’s successor in interest, Wilmar Corporation nor the heirs ofGeorge filed a cross appeal in this matter, we affirm the Superior Court’s opinions and orders dated April 8, 2014, awarding attomey’s fees and costs I Discretion to Award Attorney’s Fees Pursuant to 5 V I C § 541 $1 3 In its March 21, 2019 opinion explaining its April 8, 2014, orders, the Superior Court opined that it possessed exceptionally broad discretion in determining whether to award attomey’s fees under title 5 section 541 of the Virgin Islands Code First, the court asserted, Without any citation to relevant authority, that its determination of the amount ofattorney’s fees that should be awarded under 5 V I C § 541(b) is governed by the eight factors set forth in Supreme Court Rule 21 l l 5(a) The Superior Court further stated that it considered several additional factors in shapmg defense ” 1| 4 Section 541(b) provides that the court “may” award attorney’s fees “in its discretion,” but offers no further guidance as to how that discretion should be exercised However, this does not mean that the court’s discretion is unlimited, or that the court is permitted to consider, on an ad hoc basis any and all factors it may deem relevant First it is inapprOpriate for the Superior Court to consider all eight of the Rule 211 1 5(a) factors when considering a motion for attorney’s fees under section 541(b) Rule 21 l 1 5(a) is a rule ofprofessional conduct that prohibits a lawyer from charging or collecting an unreasonable fee, and we agree with those courts holding that the factors that guide a detennination of whether a fee is so unreasonable so as to justify professional discipline are not the same as those that determine what fees should be awarded pursuant to a fee shifting statute See Monmouth Meadows Homeowners Ass n Inc v Hamilton, 7 A 3d 1, 6 7 (Md 2010) (holding that although there may be some overlap, the factors listed in Rule 1 5(a) of the Maryland Rules of Professional Conduct should be used to determine whether to award attorney’s fees under a contract, while a different set of factors should govern the calculation of attorney’s fees under a fee shifting statute), see also Lmdy Bros Builders Inc v American Radiator & Standard Sanitary Corp 487 F 2d 161 168 (3d Cir 1973) (adopting a four factor lodestar test to govern attorney’s fee awards under fee shifiing statutes) 2 Importantly, while we have previously considered the Rule 211 l 5(a) factors, we have never applied those factors in the context of a motion brought pursuant to section 541(b), rather, we only consldered the factors when determining the reasonableness of a contingent fee in a case where a settlement on behalf of a 2 However, a ‘vast majority ofcourts of appeals now permit or direct courts to use the percentage method in common fund cases” instead of the lodestar method Americas Mining Corp v Therlault 51 A 3d 1213, 1254 (Del 2012) minor child needed to be approved by the court, see Roms v Two/Morrow Ideas Enterprzses Inc , 53 V I 684 (V I 2010), and in a breach ofcontract case where an attorney sued a client for unpaid attorney’s fees, see Ramey v Hermon, 55 V I 875 (V I 2011) $1 5 Instead, we conclude that the appropriate rules to govern the exercise of the court’s discretion to award attomey’s fees under § 541(b) are those outlined by the Supreme Court of the United States in Perdue v KennyA ex rel Wmn, 559 U S 542 (2010), Pennsylvama v Delaware Valley szens Counczlfor Clean Azr 478 U S 546 (1986) Blum v Stenson 465 U S 886 (1984) and related decisions, interpreting a substantially similar federal statute, 42 U S C § 1988, which provides that “the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs ” In these decisions the Supreme Court has acknowledged that while the statutory language grants courts a certain level ofdiscretion, that discretion is not unlimited Thus, the Court has generally rejected the approach set forth in Johnson v Georgta Hzghway Express Inc , 488 F 2d 714 (5th Cir 1974), which permitted consideration of twelve highly subjective factors, including the eight factors found in ABA Model Rule ofProfessional Conduct 1 5(a), upon which Supreme Court Rule 211 1 5(a) was based Rather, the United States Supreme Court adopted the method utilized in Lindy Brothers Builders Inc ofPhlladelphza v Amerlcan Radiator & Standard Sanitary Corp 487 F 2d 161 (3d Cir 1973) and held that the calculation ofattorney 8 fees under a fee shifting statute must rely on objective criteria See Perdue 559 U S at 551 52 (explaining that the “lodestar” method pioneered in Lindy Bros has “become the guiding light of our fee shifiing jurisprudence” because, among other reasons, “unlike the Johnson approach, the lodestar calculation is ‘objective,’ and thus cabins the discretion ofuialjudges, permits meaningful judlcial review, and produces reasonably predictable results”) (internal citations omitted) number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate, calculated according to the prevailing market rates in the relevant community Blum, 465 U S at 895 Hensley v Eckerhart 461 U S 424 433 (1983) Importantly ‘the figure resulting from this calculation is more than a mere ‘rough guess’ or initial approximation of the final award to be made,” but rather “‘the resulting product is presumed to be the reasonable fee’ to which counsel is entitled Delaware Valley Citizens Counczl 478 U S at 564 (quoting Blum 465 U S at 897) "The value of an attorney's time generally is reflected in his normal billing rate " Esnen v Chrzstzan 507 F 2d 61 63 (3d Cir 1975) quoting Lindy Bros 487 at 167' Del Valley Citizens Counczl, 478 U S at 564 ("[when] the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee" to which counsel is entitled) (quoting Blum, 465 U S at 897) The court must then evaluate the attomey’s experience and skill and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation Blum, 465 U S at 895 n 11 While in “rare” or “exceptional” cases an upward or downward adjustment may be warranted such as “where the method used in determining the hourly rate employed in the lodesta: litigation does not adequately measure the attorney’s true market value,” “when an attorney agrees to represent [a] plaintiff who cannot afford to pay the attorney” and “understands that no reimbursement is likely to be received until the successful resolutlon of the case,” Perdue, 559 U S at 554 55, or the party seeking an award of attorney’s fees fails to submit adequate documentation supporting the hours worked and rates claimed, Hensley, 461 U S at 433 factors such as the novelty of the issue and the experience or quality ofthe attorney are presumptively already reflected in the attomey’s hourly rate and the number of prevent “double counting ” Delaware Valley Cztzzens Council, 478 U S at 566 II Wilmar Corporation’s Attorney’s Fees and Costs3 11 7 Applying this standard, we conclude that the Superior Court abused its discretion when it substantially reduced the requested attorney’s fees for Wilma: Corporation’s counsel from $35,906 25 to $12,215 63 In its March 21, 2019, opinion explaining its April 8, 2014, orders, the Superior Court stated that it reduced the hourly rates for partners’ time from $350 to $250 and the hourly rate for associates from $250 to $100 because it concluded that the actual hourly rates were “high compared to the customary and prevailing market rates for attorneys in the Virgin Islands ” However, in her opposition to the attomey’s fees motion, Mahabir never contended that the $350 partner rate or the $250 associate rate were unreasonable or not consistent with prevailing market rates Moreover, in our September 25, 2015, opinion remanding the matter, we emphasized that determining a reasonable hourly rate requires “a case specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant’s counsel ” 63 V I at 667 n 8 In addition to reducing the rates sua sponte and thus depriving Wilmar Corporation of the opportunity to defend the propriety of its attorneys’ hourly rates the Superior Court failed to make any attempt at an inquiry to determine the prevailing market rates, instead only stating that it was its “impression” that these were the prevailing rates charged In fact, the record shows that the $100 hourly rate for associates used by the Superior Court is actually lower than the $125 3 Mahabir argues that the Superior Court “should have exercised its discretion to not award any fees” in this case and includes citations to various cases in which the District Court of the Virgin Islands declined to award any attomey’s fees to the prevailing party However, Mahabir does not argue and cites no authority in support of the proposition that the Superior Court erred in awarding some reasonable portion of fees to the Appellees, the undisputed prevailing parties in this action And a mere assertion that the Superior Court should have used its discretion differently is not equivalent to an argument that the court abused its discretion See 2 g , Shebelskxe v Brown 752 S E 2d 877, 881 82 (Va 2014) (observing that “when a decision is discretionary the court has a range of choice and its decision will hourly rate for court appointed Criminal Justice Act attorneys in the U S District Court that was in effect in 2011 4 Notably, “no fee is reasonable unless it would be adequate to induce other attorneys to represent similarly situated clients seeking relief comparable to that obtained in the case at hand ” Hensley, 461 U S at 449 1] 8 In her brief on appeal, Mahabir argues that the award of fees and costs to Wilmar Corporation should have been further reduced by $11,600 to exclude fees related to its motion for swmnary judgment because that motion was ultimately unsuccessful On remand, the Superior Court explained that “[b]ecause the motion was unsuccessful, the court agreed that some reduction in fees related to the motion was appropriate, but was not convinced that none of the time should be awarded merely because the arguments presented did not prevail at that stage of the proceedings, since Defendants ultimately prevailed ” Therefore, the court partially reduced, but did not completely exclude, the award of fees related to the motion 1] 9 In a case presenting multiple “distinctly different claims for relief that are based on different facts and legal theories,” it is true that “work on an unsuccessful claim cannot be deemed to have been “‘expended in pursuit of the ultimate result achieved,”’ and therefore hours devoted exclusively to working on that unsuccessful claim must not be included in calculating the fee awarded Hensley, 461 U S at 435 However, “the fee award should not be reduced simply because the plaintiff failed to prevail on every contention [or motion] raised in the lawsuit Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee The result is what “ Although these specific errors were not raised by the parties on appeal which is unsurprising given that Appellees did not file a cross appeal in order to provide guidance to the Superior Court, we exercise our discretion to reach these issues as they significantly impacted the Superior Court’s fee award and therefore affected the parties substantial rights See V 1 R App P 22(m) (‘ the Supreme Court, at its option, may notice an error not presented that affects matters ” Id In Grand Uman Supermarkets v HE Lockhart Management Inc , 2013 WL 163830, at *2 (D V I January 10 2013) (unpublished) the District Court of the Virgin Islands considered this same argument in fixing an award of attomey’s fees and costs under 5 V I C § 541 that a prevailing party should not be awarded fees for work on unsuccessful motions The court characterized this argument as a “misinterpretation of the relevant case law, which permits reduction of fees when a party succeeded on some clams or defenses but not others ” Id at *2 n 1 (emphasis added) (citing Gal! Capztal LLP v Seykota 2007 WL 4800135 at *3 (D V I Dec 20 2007) (unpublished) (noting that “where the prevailing party achieved only limited success, the court should award only that amount of fees that is reasonable in relation to the results obtained”) (internal quotation marks omitted» Because the defendant ultimately achieved success by obtaining a judgment in its favor, and because the legal work that contributed to that ultimate success including the filing of unsuccessful motions—was not frivolous, the District Court concluded that this work did not generate unnecessary fees and that a reduction for the fees incurred in performing the work was unwarranted Id Finding this reasoning persuasive, we conclude that Superior Court did not abuse its discretion by failing to wholly exclude from its calculation hours spent working on the unsuccessful motion On the contrary, the Superior Court abused its discretion in reducing, by any amount, the hours spent working on the summary judgment motion solely because Wilmar Corporation, though ultimately successfiil in its defense of the lawsuit, did not succeed at that particular stage of the litigation 5 III Heirs of George Attorney’s Fees and Costs 5 We need not considet Mahabir’s remaining arguments as to other billing entries which, according to her should have been excluded from the fee award $2,438 in fees claimed for work performed in connection with settlement negotiations $1,137 50 billed for work performed by Attorney Hodge related to Genevieve Marsh 3 motion to T 10 Turning to the Superior Court’s award of attorney’s fees to the Heirs of George, the Superior Court substantially reduced the Heirs’ hours not only because it found the hours unreasonable, but also because ‘the defense benefited from the certainty of payment” and Mahabir’s “claim had been brought in good faith and [she] should not be unduly punished for her attempt to assert her rights ” With respect to certainty ofpayment, again, that counsel for the Heirs was likely to be paid regardless of the result of the litigation is a factor already reflected in counsel’s $250 hourly billing rate, in that attorneys who are uncertain as to whether their client will pay their fees will typically charge a higher rate to account for the uncertainty that they will be compensated for their work See e g Bodme v Federal Kemper foe Assur Co , 138 B R 88 (M D Fla 1992) (recogni7ing “that contingent fee risk contribute[s] significantly to the relative hourly value of a successful claim”) And while the fact that Mahabir brought her claim in good faith may be relevant to determining whether attorney’s fees should be awarded as a sanction under Rule 1] of the Virgin Islands Rules of Civil Procedure, it is not a permissible factor to determine whether they should be awarded under section 541(b) This Court has already held that the Legislature enacted section 541(b) for the express purpose of abrogating the American Rule in all matters other than non frivolous personal injury cases, and that the statute “makes awards of attorney’s fees and costs in civil case the norm rather than the exception ” Hansen v Bryan, 68 V I 603, 614 (V I 2018) Moreover, this Court has already rejected the contention that attorney’s fees should be denied under section 541(b) because the matter involved an issue offirst impression, and in fact noted that matters where the outcome may be uncertain “are perhaps the cases where an attorney’s fee award when authorized is most needed ” Id Thus, we conclude that the Superior Court abused its discretion in reducing its fee award on this basis the filing ofthe complaint, $1 150 in fees not related to the litigation, and $2,125 in fees related to settlement negotiations In its memorandum of decision on remand, the court explained that in general, because the Heirs failed to file a reply to Mahabir’s opposition to the motion for fees, the court “did not have the benefit of an explanation of why the [c]ourt should not give credence to [Mahabir’s] arguments,” and therefore “ad0pted many of [Mahabir’s] criticisms of the billing statement and made her requested deductions,” including each of the above deductions requested by Mahabir Thus, the Superior Court did not abuse its discretion by failing to exclude these billing entries from its award as the court did, in fact, exclude each of these entries as unreasonable 6 IV Conclusion 1' 12 For the foregoing reasons, we conclude that the Superior Court abused its discretion in substantially reducing its award ofattomey’s fees to each defendant However, because the court’s errors benefited Mahabir, and because neither Wilmar Corporation nor the Heirs filed a cross appeal, the Superior Court’s April 8, 2014, opinions and orders awarding attorney’s fees are affirmed ,1 Dated thngof December 2021 BY THE COURT ’7.- ”L {1&le Associate Jus“I ATTEST VERONICA J HANDY ESQ Clerk of he Court By L 6 Mahabir also argues that the Superior Court should have further reduced its award by an unspecified amount for Deputy Cle k \ Dated §§\\ §5&\ g BOgfl