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Vega v. Autumnwood Homes, Inc.

United States District Court, E.D. Louisiana

November 7, 2017

ORLANDO VEGA
v.
AUTUMNWOOD HOMES, INC.

         SECTION: “J” (1)

          ORDER & REASONS NATURE OF MOTION AND RELIEF REQUESTED

          CARL J. BARBIER, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Autumnwood Homes, Inc.'s Motion for Attorney's Fees and Costs (Rec. Doc. 38) and an opposition thereto filed by Plaintiff Orlando Vega. (Rec. Doc. 39.) Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be DENIED.

         FACTS AND PROCEDURAL BACKGROUND

         On or about June 3, 2015, Plaintiff bought a home from Defendant for $335, 000.00, but later discovered that the City of New Orleans had refused to issue an occupancy permit to Defendant because the home had failed a City Inspection.[1]

         On January 28, 2016, Plaintiff filed suit in this Court against Defendant for a breach of the warranty against redhibitory defects, alleging that Defendant knew of the defects to the home but failed to declare them. Plaintiff sought rescission of the sale and return of his purchase price of $335, 000.00, as well as payment for other damages. On May 10, 2016, the Court granted Plaintiff's Ex Parte Motion for Entry of Judgment against the Defendant. (Rec. Doc. 38 at 1.) However, the Court later set aside the judgment due to faulty service and granted Plaintiff additional time for proper service. (Rec. Doc. 38.) Service was perfected on December 16, 2016. (Rec. Doc. 38.) On February 16, 2017, the Court granted Defendant's Motion to Dismiss for Failure to State a Claim in part and also granted Plaintiff additional time to amend his pleadings. (Rec. Doc. 32.) After Plaintiff failed to amend, Defendant filed a Motion for Involuntary Dismissal for Plaintiff's Failure to Amend Suit on April 18, 2017. (Rec. Doc. 33.) On May 12, 2017, the Court granted Plaintiff yet another extension of time (fourteen days) to amend his pleadings. (Rec. Doc. 34.) On June 9, 2017, after Plaintiff failed to amend, the Court, sua sponte, entered final judgment for Defendant and dismissed the Plaintiff's claims with prejudice. (Rec. Doc. 35.)

         Now, Defendant seeks attorney's fees in the amount of $8, 168.75, calculated at a rate of $175.00 per hour at 46 hours of work. (Rec. Doc. 38 at 4.) Plaintiff filed an opposition to the motion. (Rec. Doc. 39.) The motion is now before the Court on the briefs and without oral argument.

         PARTIES' ARGUMENTS

         Defendant argues that attorney's fees may properly be awarded because Defendant has specifically pled for attorney's fees in its answer, timely filed a motion pursuant to FRCP 54(d), and complied with FRCP 9(g). Defendant claims that it is entitled to attorney's fees pursuant to the Purchase Agreement between the parties.[2]Defendant also states that “the time and work done by Autumnwood's counsel was fully justifiable and proved to be consistent with the rules of court and the applicable law.” Plaintiff contends that Defendant is not entitled to attorney's fees. Plaintiff argues that under the “American Rule, ” parties may not receive attorney's fees unless they are provided for by a statute or contract. (Rec. Doc. 39 at 2.) Plaintiff states that he brought this lawsuit pursuant to the Act of Sale, yet Defendant is asking for attorney's fees pursuant to the Purchase Agreement. Further, Plaintiff argues that the Purchase Agreement was rendered moot when the parties perfected the sale via the Act of Sale.

         Plaintiff also argues that the amount of attorney's fees requested by Defendant, specifically, the 7.9 hours billed at $1, 387.50 for “legal research and preparation” for Defendant's Motion and Memo for Involuntary Dismissal for Plaintiff's Failure to Amend Suit (Rec. Doc. 33), are “clearly frivolous” and were incurred by counsel's “own fault.” Plaintiff explains that Defendant's motion was unnecessary because the Court, of its own volition, gave the Plaintiff time to amend his suit and stated it would automatically dismiss the suit if Plaintiff failed to amend. Finally, Plaintiff states that any amount it is required to pay for attorney's fees should be offset by the amount Plaintiff was required to spend in order to hire a special process server to serve Defendant with the complaint. Plaintiff claims he was forced to hire a special process server because Defendant refused to execute the waiver of service during several repeated attempts.

         DISCUSSION

         As a preliminary matter, the Court must determine whether Defendant's motion is properly before the Court. Attorney's fees are classified as “special damages” and must be specifically requested under Federal Rule of Civil Procedure 9(g). See e.g., Maidmore Realty Co., Inc. v. Maidmore Realty Co., Inc., 474 F.2d 840, 843 (3d Cir. 1973). FRCP 54(d)(2) further controls in motions for attorney's fees and states that “claim[s] for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” Unless a court or statute otherwise provides, the motion shall “be filed no later than 14 days after the entry of judgment” and should “specify the judgment and the statute rule, or other grounds entitling the movant to the award, ” as well as “state the amount sought or provide a fair estimate of it.” FRCP 54(d)(2)(i-iii). Here, Defendant has met the procedural requirements of FRCP 9(g) and 54(d)(2), therefore, Defendant's motion is properly before the Court.

         Attorney's fees may only be awarded if provided for by statute or contract. See, e.g. Rhodes v. Collier, 215 La. 754, 764 (1949) (“The ordinary rule is that attorneys' fees are not recoverable in a civil action in the absence of statute or contract.”); Health Educ. & Welfare Fed. Credit Union v. Peoples State Bank, 2011-672, pp. 5-6 (La.App. 3 Cir. 12/7/11); 83 So.3d 1055, 1058 (“Attorney fees are only recoverable when authorized by statute or contract.”).

         Defendant does not put forth any statute that would support an award of attorney's fees in this case. Instead, Defendant argues that it is entitled to attorney's fees pursuant to the Purchase Agreement between the parties. Plaintiff, on the other hand, argues that he brought this litigation pursuant to the Act of Sale. Thus, Plaintiff argues that ...


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