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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX ALESTER GARVEY, Petitioner, V. THE ESTATE OF JAMES MOORHEAD and all persons and entities claiming an interest in Plot No.44 Estate White Lady, Respondents. MEMORANDUM oprNroN and oRDER AWARDING cosrs THIS MATTER is before the court on Petitioner Alester Garvey's Motion for costs and Attorney's Fees (Motion), filed lune 27,2016; Respondent's Response and opposition thereto (Response), filed July 8, 2016; and Petitioner's Reply thereto (Reply), filed July lg, 2016.r No notice of appeal from the court's May 27,2016 Memorandum opinion and Judgment order has been filed' such that Petitioner's Motion is ripe for determination. For the reasons that follow, Petitioner's Motion will be granted in part. LEGAL STANDARI) In a civil action, aparty in whose favor a decision and judgment are rendered may recover reasonable costs and attorney's fees pursuant to 5 v.I.c. $$ 541-547 . Terrell v. coral world, 55 v'I' 580' 584 (v'I' 2011)' Pursuant to 5 v.I'c. g 541(a), a prevailing party may recover costs, including attorney's fees, which "[a]wards of attorney,s fees under section 541(b) are a matter withinthediscretionofthe '.. court." creative Mindsv. Reef Broadcasting,2014y-l.LExIS g2, *1 (V.I. Super. Ct.20t4) (quoting 5 V.LC. g 541(b)). ) )) crvll, NO. SX_13_CV_210 )) acuoN TO QUrET TrTLE ) ) ) Costs which may be allowed in a civil action pursuant of officers, witnesses, and jurors; (2) necessary expenses to Section 5al @) include: (l) fees of taking depositions which are I By Memorandum opinion entered May 27 ,2016, Petitioner was granted a period of 2l days thereafter within which to seek an award of costs by submissio, oihi, iiemized A;;%;'irdemnification. p"iiti*.. filed a Motion for Additional Time on June 10, 2016 and a Renewed Motion roi aJaitionur Time oi li,, ii, ior6. The courr granted both motions, allowing Petitioner until rune js ,2016 to nte. petitionli,s June 27, 2ol6M;;;, was timely. on July 6'2016' Respondent filed a Motion to Strike Petitioner's uotio, ioi Costs and Attorney,s r"., u, untimely. By letter filed July 25' 2016' counsel-for Respondent explained that he did r;;receive notice of petitioner,s second motion requesting or the court's order granting Petitioner additional time. The court's electronic aoc[eting system similarly does not show entry of the secoid otaL gruniing Petitioner additionai time. Thus, Respondent,s Motion to Strike is ffTitf:fr:ot' The court declinet to nnitt ut Rispondent ntea ttre rvrotion to strike i, uui aitr,, as petitioner urges H MEMORANDUMOPINION and ORDER AWARDING COSTS larvey.,v. Estate of Moorhead, SX_tSii_'ZtO reasonably necessary in the action; (3) expenses ofpublication of the summons or notices, and the postage when they are served by mail; (4) compensation of a master as provided in Rule 53 of the Federal Rules ofcivil Procedure; (5) necessary expense ofcopying any public record, book, or document used as evidence on the trial; and (6) attomey's fees as provided in subsection (b). "[T]he amount of attorney's fees to be awarded to the prevailing party ... is intended to be an indemnification" ' for the fair and reasonabre portion of his attorney,s fees incurred in the prosecution or defense of an action, and not the whole amount charged by the attorney. Therefore, the normal award under section 541 is often only a minor fraction of what an attorney may reasonably have charged a client for the services involved in the litigation.,, In re Estate of Moses, 2013 Y 'r' LEXIS 86, *2-3 (v'I' super . ct. 2013) (internal quotations and citations omitted). The virgin Islands Rules of Professional conduct speak to the issue of the reasonableness of attorney's fees, as follows: The factors to be considered in-cletermining the reasonableness of a fee include the following: (l) the time and ]-abor ."quii"J,-tie novelty and difficulty of the questions involved, and the skill requisit" to plrrorm the legal service properly; (2) the likelihood, if apparent to the client, tirut tt. acceptance of the particular employment will preclude other employment uy trr. g*yei; (3) the fee'customarily charged in the locality for similar.l"q; ;;;r,'i+) ,rr. amount involved and the results obtained; (5) the time .linitalionl imnlsed by the clienr or by the circumstances; (6) the nature and length "itrr" i-r"ssional retationstrip with the client; (7) the experience, reputation, and uuitity of the lawyer or lawyers performing the services; and (g) whethei trr" r""i. fixed or contingent. VISCR 2II.I.5 By 5 v'I'c' $ 543(b), a party seeking an award of a bill of costs "shall attach thereto an affidavit" ' that such item is correct and has been necessarily incurred in the case and that the services for which fees have been charged were actually and necessarily performed.,, Here, Petitioner's Motion lacks the required supporting affidavit. Nonetheless, in light of counsel,s obligations of candor toward the tribunal (VISCR 211.3.3),the Motion will not be .,summarily denied" as urged by Respondent (Response, at 2) by this technical noncompliance. The substantive issues of the necessity of incurring the costs and of performing the services for which petitioner seeks an award are addressed herein. The prevailing party's bill of costs and affrdavit must be sufficiently detailed to permit the court to discern the actual, ,....rury-and reasonable expenses for essential services' " ' As needed, the court r"-o"L duplicative, disproportionate MEMORANDUM OPINION and ORDER AWARDING COSTS Garveyv. Estate of Moorhead; SX-13-CV-210 Page 3 of9 or superfluous charges or services and overhead costs. ... The court considers the number of hours prevailing counsel spent on the case and the value of those services at a reasonable hourly rate. Travel expenses not related to deposition, client meetings and conferences with co-counsel are not recoverable expenses under Section 541. Creative Minds,2014Y.I. LEXIS 82, *l-6 (internal citations and quotations omitted). In deciding whether to grant attorney's fees to the prevailing party, the Court must provide an "explanation of how it calculated a reasonable rate of attorney compensation [and] which hourly fee entries it was basing the award on.o' Mahabir v. Heirs of George,63 V.I. 651, 668 (V.I. 2015); see also Kalloo v. Estate of Smoll, 62 y .I. 57 I , 584 n. 1 I (V.L 201 5). DISCUSSION Petitioner seeks an award of $57,040 in attorney's fees md $796.79 in costs against Respondent Estate of James Moorhead. Petitioner has provided with his Motion a billing statement and argues that he should be awarded the entirety of the fees and costs presented in this "three year battle that was contested at every level." Motion, at2;Exhibits A, B. In her Response, Respondent cites Virgin Islands case law to emphasize thatthe award of attorney's fees to a prevailing party is intended to be an indemnification for the fair and reasonable portion of the fees incurred in the prosecution of her action, and not the whole amount charged. Response, at2-3. Respondent argues that the case did not even reach the stage of Respondent filing an answer to the Complaint and did not advance to discovery, but rather "was often delayed either by the Court's inaction, Petitioner's requests for extensions of time, stay of the proceedings, and Respondent's multiple attempts at settlement." Response, at 7-8. In her Response, Respondent details which of Petitioner's costs she deems to be allowable under 5 V.I.C. $541. In his Reply, Petitioner does not address the validity or the specifics of any of the costs and attorney's fees challenged by Respondent, but rather chastises Respondent for acting in "bad faith" throughout the course of the litigation. Reply, at 1-3. Petitioner simply states that Respondent's Response is without merit, concluding by stating: In this action, one need only look at the docket sheet, the attempts of the Estate to frustrate the reasonable application of accepted legal principles and the initial effort to resolve this matter amicably. Indeed all of the factors stated above all weigh in the petitioner's favor. The pleadings, motions and responses to the motions, along with the supporting documentation, provides a basis for this court to award the costs MEMORANDUM OPINION and ORDERAWARDING COSTS Garveyv. Estate of Moorhead; SX-(3-CV-210 Page 4 of9 and attorney's fees as submitted. There is no dispute that 5 V.LC. $ 541 (b) & (c) applies. Reply, at 5. The Court addresses separately the determination of allowable costs and attorney's fees. Costs Petitioner seeks reimbursement for costs incurred, other than attorney's fees, in the total amount of $796.79 for the six items listed on Exhibit B to the Motion, as follows: (l) Filing Fee Verihed Complaint by Petitioner $ 75.00 (2) Invoices Service ofProcess (2x) (3) Postal Costs and Seabome Packages (4) Copies and Binding OfficeMax (5) Travel American Airline to NYC (6) Car Rental NYC Both the filing fee ($75) and two invoices for service of process ($120), together with one waybill of Seaborne Airlines ($5) are credited as expenses allowable under 5 V.I.C. g 5a1(a)(1).2 Otherwise, the balance of postal costs ($24.92) as well as costs for copying and binding will be denied as general office overhead expenses. "[L]ocal courts have consistently held that expenditures for messenger services, photocopying, phone calls and other normal oTfice overhead expenses are not awardable pursuant to $ 541 ." Pedro v. Huggins, 53 V.I. 98, 106 (V.I. Super. Ct. 20 I 0 (citations omitted). Similarly, counsel's travel expenses to New York will be disallowed. Those expenses do not constitute "necessary expenses of taking depositions which were reasonably necessary in the action," permissible under $ 541(a)(2). Petitioner's only explanation is that "Respondent's recalcitrance caused the undersigned to have to travel to New York to interview the main witness." Reply, at2-3. 2 Fees ofofficers include filing fees charged by the Clerk ofthe Superior Court and Process Servers appointed by the Superior Court. See 4Y.I.C. S$ 516, 517. Respondent objects to "an initial charge in connection with service ofprocess upon the wrong party." Response, at 4. A review of the Court's file reflects that service was initially made on Respondent's counsel on June 25, 2013. Subsequently, the Administratrix of the Estate of James Moorhead was personally served on August 8,2013. The Court will award costs for both charges, necessitated by counsel's apparent refusal to accept service on behalf of his client; together with the one waybill presented delivering process to be served to the Process Server in St. Thomas. $ 120.00 $ 29.e2 $ 44.e6 $ 446.90 $ 79.8s MEMORANDUM OPINION and ORDER AWARDING COSTS Garveyv. Estate of Moorhead; SX-13-CI/-210 Page 5 of9 Accordingly, Petitioner is entitled to an award of indemnification for his costs incurred in the amount of $200, as itemized above. Hourlv Rate Petitioner seeks to recover attorney's fees based upon an hourly rate for Attomey Ronald Russell of $400. Petitioner does not support his contention that his hourly fee is appropriate for this jurisdiction or that the client agreed to be charged this hourly fee. "The prevailing party bears the initial burden of establishing that her requested hourly rates are in line with comparable market rates for legal services." Charlery v. STX Rx, Inc.,2011 U.S. Dist. LEXIS 101500, *4-5 (D.V.I. 201 1) (citations omitted). To meet this primafacie btxden, a prevailin gparty must produce satisfactory evidence that the requested rate charged is in line with rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. Id. Petitioner does not claim, and the Court does not find, that this matter involved complex or unusual legal issues requiring specialized training or skill. Rather, this real property title dispute "does not present a particularly novel or complex issue of law." Mqhabir v. George,2Ol4V.l. LEXIS 20, *2 (V.I. Super. Ct. 2014). Since Petitioner has failed to present any evidence to support the reasonableness of the attorney's fee hourly rate, the Court must exercise its discretion in fixing a reasonable hourly rate independent of any input from petitioner. Virgin Islands courts have had the opportunity to address the question of prevailing market rates of Virgin Islands attorneys over the past three years that this matter was pending. See e.g. Creative Minds, 2014 Y .1. LEXIS 82, * 6 ($27 5 hourly rate was reasonable); Mahabir, 2014 V .1. LEXIS 20, *2 (hourly rates of $325 for firm's experienced partners were "high compared to the customary and prevailing market rates for attorneys in the Virgin Islands"); Charlery,20l I U.S. Dist. LEXIS 101500, *5-6 (claimed hourly rates of $400 for partner and $300 for associate were reduced to $300 and $ 150 respectively); Interocean Ins. Agency v. Joseph, 2014 y .I. LEXIS 73, *10 (V.I. Super. Ct.2014) (hourly rate of $300.00 for out-of-court services accepted as fair and reasonable based upon attorney's experience and record).3 3 Respondent draws attention to the factthatPetitioner has submitted one bitling statement for the entire three year period the case was pending, stating: "There is no indication of a monthly billing statement, a client retainer strowin! MEMORANDUM OPINION and ORDER AWARDING COSTS Garveyv. Estate of Moorhead; SX-13-CV-210 Page 6 of9 Here, without any proffer of its reasonableness from Petitioner, the Court finds the claimed hourly rate of $400 to be excessive, and will assign as reasonable an hourl y rateof $300. Hours Exnended By statute, the prevailing party is entitled to an award, in the Court,s discretion, ,,of indemnity for his attorney's fees in maintaining the action." 5 v.I.c. $ 541(b). petitioner avers that in order to achieve a favorable result in this matter, counsel dealt with three separate cases: the probate action of Estate of James Moorhead (ST-09-PB-106); Samuel Ottley v. Estate of Viola E. Bell, S' Ct' Civ No. 2013-0097, filing an amicus curiae brief in the Supreme Court on behalf of Alester Garvey and Lionel Lewis; and the instant case. Motio n, at l-2. In support of billing in this case for services expended in the probate action, petitioner states: "After it became apparent that the advocacy posture of the Estate of James Moorhead would be to challenge the fundamental facts of the sale, it became necessary to enter the probate action titled Estate of James Moorhead, Probate Case No. ST-09-PB-106 and file the necessary claims, notices, and other documents in that probate action to protect the claim of Alester Garvey.,,Motion, at2' As to the Ottley filing, Petitioner states: "When this court stayed this action pending resolution of the [Moorhead] probate matter, it became necessary to enter an appeal challenging the jurisdiction of the magistrate probate court. Therefore, Garvey was further obligated to file documents and become a litigant in... the appeal of Samuel Otttey v. Estate of Viola E. Bell, S.Ct. Civ No. 2013'0097 via the Amicus Brief of Alester Garvey and Lionel Lewis.,, Id. Respondent argues that any work presented on the billing statement for the Moorhead probate action and the Ottley amicus brief should be excluded from the allowable award and that cost awards in probate proceedings are governed by 15 V.I.C. $ 165. Response, at g-9.The Court agrees' Those services performed in connection with other actions were not ..attorney,s fees in maintaining the action." 5 V.I.C. $ 541(b). Therefore, the award will consider entries on the billing statement that reflect attorney's fees necessarily incurred in the prosecution of this action that are the agreed upon hourly, flat, or contingent fee, or payment by the client at any time during the billing period.,, Response, at 5. By statute, "The measure-an-d-fode of compensation of attorneys shall be left to the agreement, express or implied, of the parties'" 5 v'I'c. $ 541(b). Notwithstanding Petitioner's iailure to establish un/ugr""-.nt between attorney and client as to the amount and manner of compinsation due for legal services provided, the court exercises its discretion to award such fees as are deemed to have been necessarily iricurred in maintaining the action. MEMORANDUM OPINION and ORDER AWARDING COSTS Garveyv. Estate of Moorhead; SX-|3_CV_210 PageT of9 "of a type ordinarily necessary to secure the final result obtained from the litigation.,, Chapa, 2013 V.I. LEXIS 72,*1.4 Petitioner submits his billing statement to include atotal of 46.6 hours attributable to the two actions other than this action, which time will be disallowed. Petitioner presents claims for fees to include time entries totaling 8.05 hours during the three-month period prior to filing the action. That pre-litigation work will be disallowed as non- reimbursable fees not incurred to maintain the action. Petitioner seeks a total of 12.1 hours (the bulk of which was billed for sitting in an airplane) for travel to New York "to interview the main witness." Reply, at 3. petitioner offers no explanation why that interview could not have taken place by electronic correspondence or by telephone or video conference or some means other than face-to-face contact. The failure to justify that time spent as necessary to maintain the action requires that such time be disallowed. Petitioner's submission also includes charges for services that are clearly clerical in nature and are excluded as normal office overhead. The total of those hours is difficult to determine with precision because the bulk of Petitioner's presentation is "block billed," that is, numerous services of varying types are included in one global time period claimed. "Block billing... is not the ideal timekeeping method and lawyers who use it do so at their own peril. If a block entry is confusing or makes it difficult to allocate reasonable time to a specific task, the blame lies on the party seeking fees because they were in the best position to mitigate any confus ion.,, Charlery,20ll U'S' Dist' LEXIS 101500, * 14-15 (quotations and citations omitted). Clerical time to be excluded is determined to be in the amount of 13.6 hours. Accordingly, a total of g0.35 hours claimed will be disallowed completely. Further, an additional 10.85 hours was expended on Petitioner's Motion To Declare Purported Deed of Gift to James Moorhead Void (Motion re Deed of Gift). That motion focused a {su1!!, the dispute adjudicated in this matter could have been addressed in its entirety in the Moorhead probate action (sr-O9-PB-106), rendering this action unnecessary and all costs incurred herein superfluous. As Administratrix in the probate action' Respondent filed her inventory ofistate assets to include the real property subject ofthis action, 3:19 :o!c]ted claims against the estate. Such claimi are_ subject to adjudication in the probate action pursuant to 15 v'I'c' $ 395' Even if the determination of Petitioner's claim"of owneiship of a listed asset of the estate were deemed outside the Magistrate's jurisdiction, the parties, with the approval of thi presiding luage, could have consented to having the Magistrate conduct a-ll proceedings relative to Garvey's claim, including trial and entry ofjudgment in the probate action. 4 v.r.C. $ 123(d). Instead oifilirrg any claim in prouate action thit commenced in December 2009, Garvey waited some three and a half years to initiite this separate quiet title action. MEMORANDUM OPINION and ORDER AWARDING COSTS Garveyv. Estate of Moorhead; SX-13-CV-210 Page 8 of9 on the fact that the power of attorney which ostensibly authorized that deed "specifically states that Ismael [sic] Lewis is given the authority to SELL two properties... there is full admission that the transfer was a GIFT instead of a SALE. The court is asked to review the Power of Attorney to confirm that Antonia Lewis only granted Ismael [sic] Lewis the right to SELL her properties.,, Motion re Deed of Gift, at l-2, emphasis in original. Yet, the determining factor awarding the property to Petitioner was unrelated to any perceived flaw in the power of attorney and Deed of Gift, but rather that Moorhead's unrecorded interest in the property by the Deed of Gift was void against Garvey as innocent purchaser in good faith for valuable consideration without knowledge of any interest of Moorhead pursuantto 28 V.I.C. g 124. Because the attorney time spent on that motion was largely unnecessary to the maintenance of the action, the Court will reduce by 50% the value of the time expended on that activity. Further, both Petitioner's Motion re Deed of Gift and Motion for Summary Judgment argue that he is entitled to judgment by virtue of an April 5,2OOl Warranty Deed purportedly conveying the subject property to Petitioner from Lionel Lewis, attorney in fact for his sister Antonia Lewis. By the Warranty Deed, Lionel Lewis is named "Grantor," who warrants that he is lawfully seized of the property, with no mention of the fact that the property was titled to Antonia Lewis or that he acted in a representative capacity pursuant to power of attorney. In fact, Antonia Lewis died in March 2000, presumably terminating the legal authority of Lionel Lewis to act on her behalf, and invalidatin g any attempted conveyance by the Warranty Deed executed more than a year after her death. As such, time expended on these arguments was unnecessary to the maintenance of the action, and the Court exercises its discretion to also reduce by S}%three hours of the time charged for preparation of Petitioner's Motion for Summary Judgment. Accordingly, a total of 13.g5 hours will be reduced to the rate of $150 per hour. By the Memorandum Opinion, Petitioner "is obligated for all property taxes and assessments against the property from the date of the Contract." Memorandum Opinion, entered May 27, 2016, at 8. Respondent has submitted proof by Exhibit B to her Reply to show that the Estate of Moorhead paid from 1996 to 2005 property taxes on Plot 44 Estate White Lady in the total amount of $4,999.64, including interest and attachment fees. Petitioner has not challenged the fact or amount of such payments, and the Court will credit that sum paid by Respondent against the award due Petitioner. MEMORANDUM OPINION and ORDER AV/ARDING COSTS Garveyv. Estate of Moorhead; SX-13-CV-210 Page 9 of9 CONCLUSION The Court finds that Petitioner is entitled to an award for reimbursement of costs in the amount of $200.00. The Court further finds that a reasonable rate for legal services provided in this matter is $300.00 per hour. After deducting 80.35 hours from the time presented by Petitioner, reducing by 50% the compensation due on another 13.85 hours, Petitioner is entitled to an award of indemnification for attorney's fees of 48.4 hours billed at $300 ($14,520) and an additional 13.85 hours billed at $150 ($2,077.50). Those awarded fees are offset by a credit due Respondent for the amount of property taxes paid ($4,999.64), such that the total award of attorney fees is in the arnount of $11 ,597.86. Accordingly, it is hereby ORDERED that Petitioner is entitled to an award for reimbursement of costs in this matter in the amount of $200.00. It is further ORDERED that Petitioner is entitled to an award of indemnification for attorney's fees incurred in the amount of $11,597.86. August I ,2016 ATTEST: ESTRELLA GEORGE Acting Clerk of the Court A. BRADY Judge of the Superior Courtr'