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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN IN THE MATTER OF THE ESTATE OF ) ) PROBATE NO.: ST-10-PB-8 ARIEL MELCHIOR, JR., ) ) Deceased. ) ) MEMORANDUM OPINION THIS MATTER is before the Court on Motion for Reconsideration of Order on Attorney’s Fees (“Motion for Reconsideration”) filed on May 16, 2012 by Counsel for the Estate of Ariel Melchior, Jr. (“the Estate”). Previously, Counsel filed a Motion for Interim Attorney’s Fees requesting a payment of twenty-two thousand dollars and 00/100 ($22,000.00) out of the total fees and costs of forty-four thousand five hundred eighty-three dollars and 47/100 ($44,583.47). In its April 19, 2012 Order, the Court found the fees and costs in this Probate matter to be unreasonable and reduced the total fees to twelve thousand dollars and 00/100 ($12,000.00) and the costs to three hundred sixty-eight dollars and 47/100 ($368.47) “for the full and complete administration of this Estate.”’ The Order approved the immediate payment of eight thousand dollars and 00/100 ($8,000.00) to Counsel, leaving a balance of four thousand three hundred sixty-eight dollars and 47/100 ($4,368.47) to be paid at such time that the Estate is closed. DISCUSSION The time limit to file a motion for reconsideration is determined by one of two court rules: Local Rule of Civil Procedure 7.3 or Federal Rule of Civil Procedure 60(b). 2 Which rule applies depends on the language used in the motion, regardless of which rule the moving party relies upon. “[T]he function of the motion, not the caption, dictates which rule applies.” The Court may rely on LRCi 7.3 under Superior Court Rule 7, which states “[t]he practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by the Rules of the District Court [and] the Federal Rules of Civil Procedure..." Under this rule, a party must file a motion for reconsideration within ten days.° Such motions must state that a previous order should be "Mag. Ct. Order dated April 19, 2012, pg. 2. ? Lucan Corp. v. Robert L. Merwin & Co., 2008 V.I. Supreme LEXIS 19 (2008). 3 Smith v. Evans, 853 F.2d 155, 158 (3d Cir.1988). “Super. Ct. R. 7. > LRCi 7.3. Estate of Melchior ST-10-PB-8 Memorandum Opinion reconsidered because of: (1) intervening change in controlling law; (2) availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice.° Should the Court come under Federal Rule of Civil Procedure 60(b), the party has a “reasonable time” to file the motion.’ In order for the Court to consider a motion for reconsideration under FRCP 60(b), the moving party must provide evidence that the party is requesting extraordinary relief outside of the purview of LRCi 7.3.5 FRCP 60(b) provides, in pertinent part, “[o]n motion . . . the court may relieve a party . . . from a final judgment, order, or "9 proceeding for... any other reason justifying relief from the operation of the judgmen I. Ten Day Rule Applies to Motion Filed Under LRCi 7.3 The Motion for Reconsideration now before the Court expressly relied on LRCi 7.3. While not dispositive, Counsel further argues that failing to reconsider this Court’s April 19, 2012 Order would “result in manifest injustice.” Lastly, Counsel claims that the Court only considered documents in the Estate’s probate file and did not consider any work that Counsel performed in addition to documents filed with the Court. Based on the foregoing, the Court must conclude that Counsel’s motion is framed under LRCi 7.3 and will, therefore, apply the ten (10) day filing requirement. The Motion for Reconsideration was filed on May 16, 2012, more than the ten days after the Court’s Order.'!° The Court may consider a motion filed late under this rule for “good cause shown.”'’ Counsel suggests that “good cause” exists because he did not receive the April 19, 2012 Order until May 1, 2012. However, even if the ten day time limit were tolled and did not begin until May 1, 2012, the Motion would still be late, as it was not filed within ten days from that date. Therefore, “good cause” for the late filing has not been established and the Court need not consider the Motion. Il. Even if the Court Found Good Cause, the Motion for Reconsideration would be Denied Even if the Court found good cause, the April 19, 2012 Order should not be vacated. Counsel argues that the April 19, 2012 Order should be vacated and his fee increased because: ° Id. Id. ® Lucan Corp, 2008 V.1. Supreme. * Fed.R.Civ.P. 60(b). "© Counsel asserts that the time limit is both fourteen and ten days in its motion; the ten day time limit, as already stated, is correct. " LRCi 7.3. Estate of Melchior ST-10-PB-8 Memorandum Opinion (1) the Order did not “provide a factual basis for the Court’s reduction of 75%” of the attorney’s fees,!? and (2) the result of the Order created manifest injustice under LCRi 7.3. Neither argument is persuasive. A. Factual Basis for the Reduction in Fees: Reasonableness of the Fee Courts of the Virgin Islands apply a number of factors in deciding whether attorney’s fees are reasonable. Traditionally, Courts relied on the amount of the estate in determining the amount of the fee.'? The Supreme Court of the Virgin Islands noted that “[i]t has long since been established that attorneys’ fees . . . are subject to the reasonableness standard of Model Rule 1.5(a) and its counterpart in the ABA Code of Prof. Resp., DR 2-106(A), (B).”'* Rule 1.5(a) states: A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. ABA Model R. Prof. Cond. 1.5(a). The Court will apply each factor to the present probate proceeding. 1. The Time and Labor Required, the Novelty and Difficulty of the Questions Involved, and the Skill Required to Perform the Legal Service Properly. In this Court’s April 19, 2012 Order, the Court discussed this multi-part factor of the 5 Model Rules in determining the reasonableness of the fee.'° Since the date of that opinion, Counsel has not provided any additional evidence to convince the Court that the time and labor 2 Counsel for Estate, Mtn. to Recon., pg. 4. '3 In the Matter of the Estate of David Vialet, 24 V.1. 16, 24 (1998) (finding this standard to be unreasonable and inequitable). '4 Rainey v. Hermon, 2011 V.1. Supreme LEXIS (2011) (quoting Christian v. Gordon, 43 V.1. 179, 184 (V.L Terr. Ct. 2001). 'S (1) the Decedent was testate; (2) there were no objections to the appointment of the Executrix; (3) no issues concerning the validity of the will were raised; (4) all heirs executed consent and waiver forms; (5) no real estate was sold; (6) no collateral or direct litigation arose after the petition was filed; (7) the Estate was opened and prosecuted to final account within nineteen months; (8) four quarterly accountings were filed; (9) there were no significant changes in income or expenditures during any quarter; and (10) there were no claims filed; Estate of Melchior ST-10-PB-8 Memorandum Opinion required was any more than would be expended in simple a probate matter; has not provided evidence to convince the Court that the Estate involved novel or difficult questions; and has not provided evidence to show that the skill required to perform duties in the Estate were greater than a normal probate estate. 2. The Likelihood, if Apparent to the Client, that the Acceptance of the Particular Employment will Preclude Other Employment by the Lawyer Based on the findings in Section ].A.1., the Court finds that the acceptance of this probate estate would not preclude additional employment by Counsel. 3. The Fee Customarily Charged in the Locality for Similar Legal Services The Probate of this matter began in 2010, and the customary fees for such services have not changed since that time. The Court finds that “[t]his was not a proceeding in which there was any controversy; it was not an adversarial proceeding, but the run-of-the-mill probate *16 where the work that was accomplished simply does not match the hours and proceeding... fees claimed. While the hourly fee is customary in this proceeding, the Court finds that the amount of hours spent on this case by Associates and Partners of the firm is unreasonable. 4. The Amount Involved and the Results Obtained Again, the Court cannot look at the amounts involved in deciding whether a fee is reasonable. !” Therefore, the Court addresses the results obtained. Although not yet closed, this matter has proceeded within a reasonable amount of time and Counsel has provided zealous representation to the client. 5. The Time Limitations Imposed by the Client or by the Circumstances It is well known that probate proceedings can, depending on the circumstances of the specific estate, be lengthy, and that it may take more than one or two years before the final adjudication. There is, however, no evidence in this case that the client had any expectations regarding the length of time this probate would take or that counsel made any representations to the client in that regard. Therefore, the Court finds that client expectations regarding the timeliness of the processing of this estate to be nonexistent. 6. The Nature and Length of the Professional Relationship with the Client Court’s in this jurisdiction have not specifically discussed this factor as it relates to attorney’s fees. This estate was filed approximately two years ago. It is assumed that the '© Vialet, 24 V.1. at 25. '? See footnote 3 of this Order. Estate of Melchior ST-10-PB-8 Memorandum Opinion professional relationship began at this time. Whether the Executrix, the heirs, and/or devisees and Counsel have had previous professional relationships is unknown and of little consequence in this Probate matter. 7. The Experience, Reputation, and Ability of the Lawyer or Lawyers Performing the Services. Attorney Moolenaar has practiced in this jurisdiction for many years and handled many estates. Indeed, much of her practice is probate. She maintains a good reputation among the citizens and members of the judiciary and Virgin Islands Bar. Given her experience, the Court gives weight to this factor in determining the reasonableness of the fees. 8. Whether the Fee is Fixed or Contingent This last factor does not apply in probate matters and the Court will not consider it.'® B. Manifest Injustice Relying on LRCi 7.3'°, Counsel further claims that manifest injustice will result if the fees in this case are not increased. Manifest injustice, however, must amount to more than “mere disagreement with the Court’s interpretation” of the law.”° In its April 19, 2012 Order, the Court identified ten reasons, based on the record, why the claimed fees in this case were unreasonable. Nonetheless, Counsel contends, without citation to any authority, that the Court’s failure to consider evidence outside of the record is clear error or amounts to manifest injustice. The Court is not persuaded. Furthermore, analysis under either of the factors listed in section II.A. or the factors on which the Court relied in its April 19, 2012 Order lead to the same conclusion; that the attorney’s fees claimed in this case are unreasonable. Lastly, the Court notes that it did not err in refusing to award attorney’s fees for future work to be done on the Estate.”' The Court may not award attorney’s fees to Counsel for work to be done in the future. “[A]ttorney’s fees are awarded on the basis of time spent on the case, not that which is anticipated and may not be realized.””* CONCLUSION The Court finds that Counsel’s Motion for Reconsideration was not timely filed under Local Rule of Civil Procedure 7.3 and that Counsel has not provided good cause to consider the '8 See Vialet, 24 V.I. at 26 (stating that the contingency element of attorney’s fees is inapplicable to probate proceedings). Previously, LRCi 7.4. ° Bostic v. AT&T of the Virgin Islands, 312 F.Supp.2d 731, 735, 45 V.I. 553, 559 (D.C.V.L 2004). ?! Counsel for the Estate requested attorney’s fees for thirty future hours to be worked. *2 Devcon International Corp. VI, et al. v. Reliance Insurance Co., et al., 2008 U.S. Dist. LEXIS 1087 (2008). Estate of Melchior ST-10-PB-8 Memorandum Opinion motion. Further, the Court finds that even if good cause was shown, the Court would not vacate the April 19, 2012 Order. In applying the test from Model Rule 1.5(a), the Court finds that it did not err in awarding Counsel twelve thousand dollars and 00/100 ($12,000.00) in attorney’s fees and three hundred sixty-eight dollars and 47/100 ($368.47) in costs. The Court’s previous Order regarding attorney’s fees in this case stated that no additional fees or costs would be released to Counsel until such time that the Estate is closed.”? The Estate is still open. An Order will be entered dismissing Counsel’s Motion for Reconsideration. Cn ALAN D. SMITH Magistrate of the Superior Court of the Virgin Islands DATED: October YA 2012 ATTEST: VENETIA H. VELAZQUEZ, ESQ. Clerk of the Co . BY__( Wl duel Z fOr sewn SPRAUVE Court Clerk Supervisor/Q (3// xo) pe) * Mag. Ct. Order dated April 19, 2012, pg. 2.