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Angela Dipilato, Individually v. Rudd & Diamond

February 24, 2012

ANGELA DIPILATO, INDIVIDUALLY, PLAINTIFF,
v.
RUDD & DIAMOND, P.A., A FLORIDA CORPORATION, PETER A. DIAMOND, INDIVIDUALLY, MICHAEL RUDD, INDIVIDUALLY, OCEAN 4660, LLC, A FLORIDA LIMITED LIABILITY COMPANY, COMERICA BANK, A MICHIGAN CORPORATION, AND REMO POLSELLI, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Seltzer

ORDER GRANTING DEFENDANT'S MOTION FOR ATTORNEY'S FEES

THIS CAUSE is before the Court upon Defendant Ocean 4660, LLC's Motion for Attorney's Fees [DE 129], Plaintiff's Opposition [DE 137], and Defendant Ocean 4660's Reply [DE 139]. The Court has carefully considered the motion, response and reply, and is otherwise fully advised in the premises.

I. BACKGROUND

On September 26, 2011, Defendant Ocean 4660 filed an emergency motion to discharge a lis pendens on the property, or in the alternative to request the posting of a bond [DE 100]. According to the affidavit of Hanna Karcho, the sole member of Defendant Ocean 4660, LLC, Plaintiff filed a Notice of Lis Pendens against the property at 4658-4660 North Ocean Drive, Lauderdale-by-the-Sea, Florida, with the Broward County Clerk on January 21, 2011. Affidavit of Owner, ¶10 [DE 101-1]. On September 2, 2011, Defendant Ocean 4660 entered into an agreement to sell the property at issue to a non-party for $13,250,000. Id. at ¶ 7. The agreement provided for a 60 day period to resolve any title issues. The purchaser identified the Lis Pendens filed by Plaintiff as one of those issues. Id. at ¶ 11.

The Court set a hearing on Defendant Ocean 4660's discharge motion for October 7, 2011. Plaintiff opposed the motion and sought a continuance of the hearing [DE 106]. Given the exigent nature of the requested relief, the Court denied the motion to continue [DE 107]. Plaintiff did not appear at the hearing [DE 108]. After hearing the argument of Defendant and asking several questions, the Court granted the motion to discharge the lien [DE 109]. The next business day, Plaintiff filed a Notice of Interlocutory Appeal [DE 111]. Defendant moved the Court to require Plaintiff to post a supersedeas bond [DE 114]. The Court applied Florida law and concluded that it was appropriate to require Plaintiff to post a bond to cover the potential damages if her failure to discharge the lis pendens caused the contracted for sale of the subject property not to close [DE 119]. The amount of the bond was set at the amount of the contracted price for the property ($13,250,000). Plaintiff did not post a bond. The Court of Appeals dismissal of the Notice of Appeal was received by this Court on November 29, 2011 [DE 125].

On December 5, 2011, Defendant Ocean 4660 moved for attorney's fees under Local Rule 7.3(a) and under Fla. Stat. § 48.23(3) for the time spent seeking dissolution of the lis pendens. On December 27, 2011, a few days after the deadline to respond, Plaintiff sought a 30 day extension of time [DE 133]. The Court granted this request and extended the deadline until January 27, 2012. On January 30, 2012, Plaintiff filed almost the exact same motion seeking another 30 days. The Court granted an extension until February 9, 2012. Plaintiff's response was not filed with the Clerk of Court until Monday, February 13, 2012. Despite the response being late, the Court has considered Plaintiff's arguments in opposition to the motion.

II. DISCUSSION

A. Entitlement to Fees

Ocean 4660 seeks fees pursuant to Florida Statutes § 48.23(3) and S & T Builders v. Globe Properties, Inc., 944 So.2d 302 (Fla. 2006). As noted in a prior order granting the motion to dissolve the lis pendens, a federal court has the authority under Fla. Stat. § 48.23(3) to discharge a lien. Beefy King Int'l, Inc. v. Veigle, 464 F.2d 1102, 1104 (5th Cir. 1972).*fn1 See Order Granting Emergency Motion to Discharge Lis Pendens [DE 109], 2011 WL 4738117 (S.D. Fla. October 7, 2011). Plaintiff contends that Florida law only authorizes an award of fees if a lis pendens bond exists, citing to Wagner v. Birham, 460 So. 2d 463 (Fla. Dist. Ct. App. 1984), for the proposition that there is no statutory authority for an award of attorney's fees in discharging a lis pendens. Defendant correctly argues in reply that Wagner was disapproved in S&T Builders. Florida courts now recognize that such fees can be awarded. McMillan/Miami, LLC v. Krystal Capital Managers, LLC, 1 So. 3d 312, 314 (Fla. Dist. Ct. App. 2009). This Court therefore concludes that Florida law allows attorney's fees to a party that successfully obtains dissolution of a lis pendens, and that this federal court can enforce Florida law in this action.

Plaintiff next argues that Defendant has failed to comply with certain procedural requirements for its motion for fees, including lack of verification as required by Local Rule 7.3(a)(7). Plaintiff contends that such verification requires a formal declaration in the presence of an authorized officer. In reply, Defendant argues that its verification complies with 28 U.S.C. § 1746, which states that wherever any rule requires a matter to be supported by a sworn verification in writing, "such matter may, with like force and effect, be supported. . . by the unsworn . . . verification. . . in writing of such person which is subscribed by him as true under penalty of perjury, and dated. . . ." Section 1746 then gives the form of such verification, which Defendant has complied with in this action. See Motion at p. 7 [DE 129]. The Court agrees with Defendant that the provided verification complies with Local Rule 7.3(a)(7).*fn2

Plaintiff also contends that Defendant failed to comply with Local Rule 7.3(a)(8) and 7.3(b) by not sufficiently attempting a good faith effort to resolve the motion with the opposing side. In reply, Defendant notes that prior to filing of the motion it notified and served Plaintiff with the motion by mail on November 7, 2011, as required by Local Rule 7.3(b). Exhibit B to Motion [DE 129-2]. The cover letter to the copy mailed to Plaintiff requested that Plaintiff contact Defendant's counsel in an effort to resolve the matter. In her opposition, Plaintiff does not contend that she attempted to contact Defendant's counsel. This inaction cannot be used to suggest that Defendant failed to comply with the Local Rule requirements of notice and pre-filing conference.

Finally, Plaintiff contends that fees should be denied because Defendant failed to mention a request for attorney's fees in the caption of its Motion to Vacate Lis Pendens, citing to Certex USA v. Vidal, Case No. 09-61818 [DE 116/117]. Defendant correctly notes that it did request attorney's fees in its motion to vacate [DE 100, ¶ 13].

The Court has reviewed the final order in Certex USA v. Vidal and finds nothing to support Plaintiff's argument that an attorney's fees request must be in the caption of a motion to vacate a lis pendens. The requested relief was contained in the body of the motion to vacate the lis pendens and a later ...


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