Grasso v. Grasso
| Decision Date | 15 December 2016 |
| Docket Number | Case No. 8:13-cv-3186-T-33AEP |
| Parties | OLGA T. GRASSO, Plaintiff, v. MICHELLE GRASSO, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court upon consideration of Plaintiff Olga T. Grasso's Motion for Attorney's Fees, Costs, and Prejudgment Interest (Doc. # 187), as well as Defendant Teresa Grasso's Motion for Entitlement to Attorney's Fees (Doc. # 191). Both Motions were referred to the Honorable Anthony E. Porcelli, United States Magistrate Judge. (Doc. # 192). After extensive briefing (Doc. ## 193, 195, 205, 206, 211, 212), Judge Porcelli entered his Report and Recommendation on October 21, 2016, (Doc. # 214).
In his Report and Recommendation, Judge Porcelli recommends that Olga's1 Motion be granted in part; that Olga be awarded $110,789.37 in attorney's fees and $9,830.77 incosts; that Olga be ordered to submit a calculation of the amount of prejudgment interest to which she is entitled within 10 days of the undersigned's ruling; and that Teresa's Motion be denied. (Id. at 19). Olga filed an objection to the Report and Recommendation on November 4, 2016. (Doc. # 215). Defendants Michelle Grasso and Teresa filed a reply to Olga's objection on November 22, 2016. (Doc. # 218). For the reasons that follow, the Court overrules Olga's objection; accepts the Report and Recommendation, albeit for slightly different reasons than those articulated by Judge Porcelli; grants Olga's Motion in part; denies Teresa's Motion; and awards $120,620.14, representing $110,789.37 in attorney's fees and $9,830.77 in costs, to Olga.
Following the death of her husband, Olga moved to Oklahoma in order to stay with one of her sons, Joseph Jr. Grasso and his family. (Doc. # 185 at 3). While living in Oklahoma, Olga executed several estate planning documents; namely, a durable power of attorney, a revocable trust, a second revocable trust, and another durable power of attorney. (Id. at 5-6). Joe Jr. then died and, shortly thereafter, Olga's trust was amended so that it became irrevocable. (Id. at 6). After Joe Jr.'s passing, Olgareturned to Florida. (Id. at 7). While in Florida, Olga retained counsel and sought to have the estate planning documents she executed in Oklahoma terminated. (Id. at 7-8).
Olga filed suit against Margaret, her daughter-in-law via marriage to Joe Jr., and Michelle, her granddaughter and Joe Jr.'s daughter, on February 23, 2011, in the Sixth Judicial Circuit in and for Pinellas County, Florida. (Id. at 8). That litigation resulted in the termination of the trust created while Olga lived in Oklahoma. (Id.). The trial court in that litigation also entered an award of attorney's fees against Margaret and Michelle, in their individual capacities, which Margaret and Michelle appealed. (Id.).
In between the filing of Margaret and Michelle's appeal to the Second District Court of Appeal and the Second District Court of Appeal's decision, Olga filed a second action in state court, this time against Michelle and Teresa (another granddaughter of hers), on July 16, 2013. (Id.; Doc. # 1-1). Michelle and Teresa timely removed the second-filed action to this Court on the basis of diversity jurisdiction. (Doc. # 1). The case was stayed and administratively closed pending resolution of the state court proceedings (i.e., the appeal in the first-filed action). (Doc. # 26). On August 5, 2014, the parties filed a Joint Status Report indicating theproceedings in the Second District Court of Appeal had concluded. (Doc. # 29). The Second District Court of Appeal reversed the trial court's award of attorney's fees against Margaret and Michelle, reasoning they had not been parties to the first-filed suit in their individual capacities. (Doc. # 185 at 9). This Court then reopened the instant case. (Doc. # 35).
Olga filed an Amended Complaint on December 3, 2014. (Doc. # 62). The Amended Complaint asserted five counts: Exploitation of the Elderly2 (Count I); Civil Remedy for Exploitation of an Elderly Person (Count II); Breach of Fiduciary Duty (Count III); Constructive Fraud (Count IV); and Replevin (Count V). (Id.). Michelle and Teresa filed their Answer on December 31, 2014. (Doc. # 63).
Thereafter, Michelle and Teresa moved for partial summary judgment. (Doc. # 92). The Court denied the motion for partial summary judgment as to Olga's claim to attorney's fees arising from the first-filed action and as to Count I,but granted the motion for partial summary judgment as to Count III. (Doc. # 119). And, on the morning of trial, Olga orally moved to dismiss Count V, which the Court granted. (Doc. ## 157, 158, 159).
Trial proceeded as to the remaining Counts. (Doc. ## 153, 160, 161, 162, 164, 165). Michelle and Teresa moved for judgment as a matter of law at the close of Olga's case and they renewed their motion at the close of their case; the Court deferred ruling and submitted the case to the jury. (Doc. # 185 at 10). The jury returned a verdict on December 21, 2015. (Doc. # 167). Specifically, the jury found in favor of Olga, and against Michelle and Teresa, as to Olga's claim for exploitation under the Adult Protective Services Act (Count I). (Id. at 1-3). The jury awarded $127,669.64 to Olga against Michelle and $31,917.41 to Olga against Teresa. (Id. at 2-3). As to the remaining claims, the jury found in favor of Michelle and Teresa, and against Olga. (Id. at 4-9). After additional briefing (Doc. ## 163, 176, 179, 182), the Court denied Michelle and Teresa's motion for judgment as a matter of law. (Doc. # 185). Judgment was entered in accordance with the jury's verdict on March 31, 2016. (Doc. # 186).
Olga then filed her Motion for Attorney's Fees, Costs, and Prejudgment Interest (Doc. # 187), on April 14, 2016.Teresa filed her Motion for Entitlement to Attorney's Fees (Doc. # 191), on the same day. Both Motions were referred to Judge Porcelli. (Doc. # 192). And, on May 3, 2016, Michelle appealed the Court's judgment. (Doc. # 196). While Michelle's appeal was pending, the parties extensively briefed their positions with respect to the Motions for fees and costs. (Doc. ## 193, 195, 205, 206, 211, 212).
Michelle voluntarily dismissed her appeal with prejudice on June 24, 2016. (Doc. # 213). Judge Porcelli subsequently entered the pending Report and Recommendation on October 21, 2016. (Doc. # 214). Judge Porcelli recommends that Olga's Motion be granted in part; that Olga be awarded $110,789.37 in attorney's fees and $9,830.77 in costs; that Olga be ordered to submit a calculation of the amount of prejudgment interest to which she is entitled within 10 days of the undersigned's ruling; and that Teresa's Motion be denied. (Id. at 19). Olga filed an objection to the Report and Recommendation on November 4, 2016. (Doc. # 215). Michelle and Teresa filed a reply to Olga's objection on November 22, 2016. (Doc. # 218). The matters under review are now ripe for consideration.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's Report and Recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). In the absence of specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(C). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994) (Table).
When jurisdiction is based on 28 U.S.C. § 1332, motions for attorney's fees are governed by the law of the state in which the federal court sits. Hegel v. First Liberty Ins. Corp., No. 8:12-cv-1161-T-17MAP, 2014 WL 5473185, at *2 (M.D. Fla. Oct. 23, 2014) (citing Ins. Co. of N. Am. v. Lexow, 937 F.2d 569, 572 (11th Cir. 1991)); Kearney v. Auto-Owners Ins.Co., 713 F. Supp. 2d 1369, 1373 (M.D. Fla. 2010). Count I of Olga's Amended Complaint was brought under Section 415.1111, Fla. Stat., which provides:
Because the jury returned a verdict in favor of Olga as to Count I, but not as to Counts II and IV, the Court must first decide who the prevailing party is before calculating the amount of fees to be awarded. In addition, the Court must also address the factors used in awarding fees prior to determining the amount to be awarded.
"[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney's fees." River Bridge v. Am. Somax Ventures, 76 So. 3d 986, 989 (Fla. 4th DCA 2011) (quoting Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 810 (Fla. 1992)) (alteration in original). In a multi-count complaint, where the counts are Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002). "[C]laims are separate and distinct when they could support an independent action . . . ." Avatar Dev. Corp. v. DePani Constr., Inc., 883 So. 2d 344, 346 (Fla. 4th DCA 2004) ().
Judge Porcelli found Counts I, II, III, and IV to be alternative legal...
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