Taylor Indus. Constr., Inc. v. Westfield Ins. Co.
| Decision Date | 15 April 2020 |
| Docket Number | Case No. 8:16-cv-2960-T-SPF |
| Parties | TAYLOR INDUSTRIAL CONSTRUCTION, INC., a Florida corporation, Plaintiff, v. WESTFIELD INSURANCE COMPANY, an Ohio corporation, Defendant. SLONE ASSOCIATES, INC. a Georgia corporation, Counter-Plaintiff, v. TAYLOR INDUSTRIAL CONSTRUCTION, INC., a Florida corporation, Counter-Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This is an action by a sub-subcontractor, Plaintiff Taylor Industrial Construction, Inc. ("Taylor"), to recover on a construction lien, which was bonded off, against Defendant Westfield Insurance Company ("Westfield") as surety and, in which, the general contractor, Slone Associates, Inc. ("Slone"), filed a third-party intervenor complaint against Taylor for fraudulent claim of lien. This Court entered granted summary judgment in favor of Taylor and against Slone and Westfield (collectively "Defendants") (Doc. 158) and judgment was entered in favor of Taylor and against Westfield in the amount of $174,340.99 and in favor of Taylor and against Slone (Docs. 159 &160). This cause is now before the Court for consideration of Taylor's Motion for Fees and Costs Against Westfield and Slone (Doc. 161), Taylor's Supplemental Motion for Fees and Costs Against Westfield and Slone (Doc. 176), Defendants' Omnibus Response in Opposition thereto (Doc. 181), Taylor's Reply (Doc. 188), and Defendants' Sur-Reply (Doc. 193) as well as Taylor's related Motion to Require Additional Security (Doc. 166), Defendants' Response in Opposition thereto (Doc. 172), and Taylor's Reply (Doc. 180).
This construction-litigation dispute over payment for welding steel reinforcement joints to the ceiling area of a WalMart distribution center (the "Project") in Brooksville, Florida, involves a general contractor, a subcontractor, sub-subcontractors, and a surety. On or about May 9, 2016, Slone was hired to provide construction-related services and materials for the Project under a prime contract (the "Prime Contract") with Wal-Mart. Doc. 28 at ¶ 11. In conjunction with the Prime Contract, Slone entered into a subcontract with Daniels Welding Services, Inc. ("Daniels") to perform certain roof joist reinforcement work at the Project in exchange for Slone's payment of the total contract price of $555,769.00 to Daniels. Id. at ¶ 12. Taylor was hired by Daniels to replace a prior sub-subcontractor, Suwanee Iron Works, that Daniels terminated for poor performance. On or around June 25, 2016, Taylor began performing welding work as a sub-subcontractor. Doc. 1 at ¶ 15. On July 8, 2016, Taylor and Daniels reduced the sub-subcontract to writing. The Daniels/Taylor sub-subcontract was originally a fixed price contract in the amount of $194,400.00 (the "Agreement"). See Doc. 1-4. Daniels and Taylor then entered into a change order (the"Change Order") for compensation to be calculated instead on a time and materials basis.1 Id. Under the Change Order, Daniels agreed to pay Taylor $60.00 per hour for its work, which included "all overhead and profit." Id.
In late July 2016, Daniels notified Slone of its intent to discontinue working on the Project. Shortly thereafter, Taylor received a similar notice from Daniels. Taylor responded in writing that unless termination was properly made under the express terms of the Contract, Taylor intended to continue to perform. Taylor then contacted Slone and asked to be kept on the Project, but Slone informed Taylor that it had already hired another welding company, Champco, Inc., to complete the work. As a result, Taylor left the Project on July 26, 2016.
Taylor, having not been paid by Daniels for its work, filed a construction lien (the "Claim of Lien" or "Lien") on August 22, 2016. On September 29, 2016, Slone bonded off Taylor's Lien with a lien transfer bond (the "Bond") with Slone as principal and Westfield as surety, removing Taylor's Claim of Lien from the property and transferring the Lien to the Bond pursuant to Florida Statute § 713.24.
On October 19, 2016, Taylor filed a one-count complaint against Westfield seeking to collect $175,453.36 (plus reasonable attorneys' fees, costs, and interest) on the Bond. Four months later, Slone moved to intervene, seeking to file an intervenor complaint against Taylor and third-party Daniels. Slone's complaint alleged a fraudulent lien claim against Taylor and five claims against Daniels. See Doc. 28. Daniels' motion to dismiss Slone's claims against it based on their subcontract's forum selection clause was granted by the Court, and Daniels is no longer a party in this case. See Doc. 72. Summary judgment was granted in Taylor's favor against Defendants on July 12, 2019. See Doc. 158. Final judgments were entered onJuly 15, 2019 (Docs. 159 & 160).
Defendants concede Taylor's entitlement to attorneys' fees and costs, which Taylor demanded pursuant to Florida Statutes §§ 713.29 and 713.31. See Doc. 167 (). The issues that remain to be resolved, therefore, are what constitutes a reasonable amount of attorneys' fees and whether Taylor is entitled to all the costs it seeks. The Court notes that the parties' framing of these issues was far from a model of clarity. For example, the amount of attorneys' fees sought by Taylor changed from $274,888.00 (Doc. 161) to $297,477.50 (Doc. 176) and finally settled at $285,346.75 (Doc. 188 at n.2). Similarly, costs sought by Taylor started at $23,816.10 (Doc. 161) but decreased to $23,167.92 when Taylor withdrew its demand for postage2 and a witness fee of $112.43 (Doc. 176 at 6) and ended up at $25,167.92 when Taylor then added an expert witness fee of $2,000 (Doc. 176 at 7). Likewise, Defendants' sequence of arguments regarding reasonableness of attorneys' fees switched back and forth from hourly rates to hours that should be deducted. See Doc. 181. In addition, Defendants initially argued that attorneys' fees awarded should be reduced to $182,004.25 (Doc. 181) and then revisedthat amount to $191,004.25 (Doc. 193 at 10) based on a "minimal inadvertent duplication" of some of Taylor's attorneys' fees write-offs being included in Defendants' objections (Doc. 193 at 2). The Court has sorted and addressed all the relevant issues below.
When a claim for fees is based on a state statute and is raised in a diversity case, a federal court must follow the substantive law of the state in making its determination. Trans Coastal Roofing Co., Inc. v. David Boland Inc., 309 F.3d 758, 760 (11th Cir. 2002). Florida has adopted the federal lodestar approach to the setting of a reasonable attorney's fee. Florida Patient's Comp. Fund v. Rowe, 472 So.2d 1145, 1150-51 (Fla. 1985). To calculate an award of attorneys' fees under the lodestar method, a court must multiply the reasonable hourly rate by the reasonable hours expended in the litigation. See Blum v. Stenson, 465 U.S. 886, 888 (1984) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). A final lodestar amount "embodies a presumptively reasonable fee." Yellow Pages Photos, Inc. v. Ziplocal, LP, 846 F.3d 1159, 1164 (11th Cir. 2017) (citation omitted).
Defendants assert that, under Florida law, an evidentiary hearing must be conducted to determine the amount of reasonable attorneys' fees absent waiver. Even under Florida law, however, an evidentiary hearing may not be required in every case. See Phillips v. Florida Comm'n on Human Relations, 846 So.2d 1221 (Fla. 5th DCA 2003) (); but see Nants v. Griffin, 783 So.2d 363, 365 (Fla. 5th DCA 2001) (). Regardless, under Eleventh Circuit law, a court is not required to hold an evidentiary hearing to decide a motion for attorney's fees. See Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (). To the extent that Florida law and federal law conflict on this point, federal law controls. See Schafler v. Fairway Park Condo. Ass'n, 324 F. Supp. 2d 1302, 1311 (S.D. Fla. 2004) (). Because the record is sufficiently clear, the Court finds an evidentiary hearing unnecessary.
A "reasonable hourly rate" consists of "the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Norman, 836 F.2d at 1299 (citations omitted). Plaintiff "bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates." Id. However, "[t]he court, either trial or appellate, is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value." Id. at 1303 (quotation omitted).
Taylor requests the following hourly rates for the following practitioners: (1) $450/hour for Michael C. Sasso, an attorney with 36 years of experience, and for David F. Tegeler, an attorney with 29 years of experience; (2) $300/hour for Michael A. Sasso, an attorney with 8 years of experience; (3) $250/hour for William Cochran, an associate attorney with 4 years of experience, Kevin McGavock, an associate attorney with 2 years of experience, and Christian Bonta, an associate attorney with 1 year of experience; (4) $125/hour for Kathy Devore and Wendy Gory, paralegals...
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