Filing # 33419694 E-Filed 10/19/2015 06:56:11 PM IN THE CIRCUIT COURT OF THE 11"! JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA, DORA PUIG, individually, GENERAL JURISDICTION DIVISION ‘THE PUIG GROUP, INC., and DORA PUIG, PA, Case No: 06-8787 CA 32 Plaintifis, vs. PADC MARKETING, LL a Florida Limited Liability Company, COLLINS AVENUE ASSOCIATES LLC, a Florida Limited Liability Company, and R. DONAHUE PEEBLES, individually, Defendants / PLAINTIFFS’ MOTION FOR ENTITLEMENT FOR ATTORNEYS’ FEES AND. MULTIPLIER AGAINST DEFENDANT COLLINS AVENUE ASSOCIATES, LLC. Plaintiffs, DORA PUIG, THE PUIG GROUP and DORA PUIG, P.A., hereby request that this Court enter an award of attorneys’ fees, and a fee multiplier and incurred in this action against Defendant COLLINS AVENUE ASSOCIATES, LLC. (“Collins Avenue”), on the following grounds 1. Inthe Final Judgment entered in the instant action on September 17, 2015, the Court stated that it reserved jurisdiction to determine the entitlement to and the amount of attomey’s fees and costs due to Plaintiff, 2, Because Plaintifi’s prevailed in the instant case, they are entitled to be compensated for their fees and costs in an amount to be determined by the trial court, pursuant to §448,08, Fla Stat.; Several contract provisions between the parties,and pursuant to Florida Statutes Section 157.105. 3, Moreover, Plaintiffs will be seeking a multiplier if the Court grants entitlement. Florida courts have applied a contingency fee multiplier to the lodestar amount, the number of hours multiplied by a reasonable billing rate, in tort and contract cases where it is shown that there was significant risk of nonpayment, among other factors. If a court finds that a multiplier should be applied, it assigns a multiplier as follows. if the court determines that success was more likely then not at the outset, it may apply a multiplier of 1 to 1.5; if the court determines that the likelihood of success ‘was approximately even at the outset, the trial judge may apply a multiplier of 1.5 to 2.0; and if the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5." Standard Guar, Ins. Co. v. Quanstrom, 555 So. 24 828, 834 (Fla. 1990), 4, In tort and contract cases, Florida Courts have held that the trial court should consider the following factors in determining whether a multiplier is necessary, (1) Whether the relevant market requires a contingency fee multiplier to obtain ‘competent counsel; (2) Whether the attomey was able to mitigate the risk of nonpayment in any way, and (3) Whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client Id. 5. In addition to the background as to the contractual and other foundations for an award of attomey’s fees owed to Plaintiffs, each method/mode of recovery is considered individually below. BACKGROUND AS TO ATTORNEYS FEES AND PLAINTIFFS’ ENTITLEMENT AS TO SAME 6, In 2000, Puig was hired by Defendant R. Donahue Peebles (“Peebles”) under an oral agreement to act as the Sales and Marketing Director for The Bath Club. Puig Aff.,3. After 2months of negotiating, Peebles and Puig formalized their understanding through a written employment agreement which paid Puig an annual salary and a 1% override on the sale of “all Units at the Bath Club”. Jd, See also Amended Complaint, Exhibit 1 7. Some two years later, Peebles requested that Puig voluntarily assign her employment contract from Collins Avenue, the “owner-developer” to a newly created shell company, the now-bankrupt defendant, PADC. In the process, Peebles withheld hundreds of thousands of dollars from Puig, representing previously earned pre-sale bonuses as a bargaining chip. Puig would not agree to the assignment and requested release of Collins Avenue. Instead, Puig demanded that Collins Avenue “guaranty” PADC’s obligation to pay any and all of her compensation as a condition to signing any assignment. 8. Afier approximately fourteen (14) months of negotiating, Collins Avenue, through the consent and knowledge of Peebles and his new funding source, Credit Suisse and its subsidiary Donaldson, Lufkin, & Jenrette (“DL”), approved and consented to being responsible for Puig’s compensation in the event that PADC failed to pay her. On March 7, 2003, the parties reached an agreement related to the assignment and executed the following four agreements: (1) Assignment and Assumption of Puig Contract between Collins Avenue and PADC (the “Assignment”); See Exhibit 3 of Amended Complaint (2) Amendment to No. 1 to Agreement between PADC and Puig, amending the contract (the “Amendment”); See Exhibit 5 of Amended Complaint (3) Joinder of Collins Avenue, executed by Collins Avenue, Bath Club Capital Partners, and PADC/Bath Club Holdings, LLC to acknowledge thatit is to be bound by the Amendment No. | to the contract, wit! Collins Avenue bound to its payment obligations to Puig (“Soinder”), See Exhibit 6 of Amended Complaint and (4) Acknowledgement and Release, signed by Puig to release Collins Avenue from certain obligations under the Amendment, except as to Collins Avenue’s obligations to Puig 3regarding her ability to obtain payment for fees owed to her from Collins Avenue (“Release”). See Exhibit 4 of Amended Complaint 9. Paragraph 4 of the Assignment, which Peebles signed on behalf of Col and PADC, contains the following language, preserving Puig’s right to collect from Collins Avenue: Notwithstanding Section 3 above, Puig shall be an intended third-party beneficiary of the provisions of Paragraph 4 of the Sales and Marketing Agreement, which shall not be amended, supplemented, terminated, or otherwise changed, in a manner which is mate and adverse to Puig’ ability to obtain payment of fees owed under the Puig Contract, without the prior written consent of Puig 10. Similarly, Paragraph 4 of the Sales and Marketing Agreement, which was signed sometime when the Puig Agreements were executed by Collins Avenue and PADC, butback dated to April 26, 2002, states During the term of this Agreement, subject to the terms and conditions of agreement, Owner [Collins Avenue] shall pay directly to Agent [PADC], for its services rendered pursuant to this Agreement in connection with Units sold prior to the date hereof or during the term of this Agreement pursuant to Purchase agreements entered into prior to the date hereof or during the tem of this Agreement . .. an amount (the Commission) equal to : (i) if no Outside Broker (as hereinafter defined) is the procuring cause of'a particular Unit sale, five and one- half percent (5.5%) of the Net Purchase Price (as hereinafter defined) for such Unit, allocated as follows’ (x) 3.25% to Agent; (y) 1% to Sales Manager (as defined below [Dora Puig]); and (2) 1.25% to the individual sales agent for such Unit employed by Agent as part of its Sales Staff who procured such sale. .. See Exhibit 2 of Amended Complaint. 11. A review of the Release signed by Puig dated as of April 26, 2002 in favor of Collins Avenue, states the parties agree the release applies to claims arising from the Puig Contract, “except to the extent of any rights of Puig under Section 4 of the foregoing Amended and Restated Assignment and Assumption of Puig Contract.” 12 All parties ratified and consented to Collins Avenue guaranteeing PADC’s performance with the following language contained in the Amendment: 4ML A new Section 13 of the Agreement is added as follows: 13, ASSIGNMENT AND ASSUMPTION OF AGREEMENT TO PADC Simultaneously herewith (a) Puig will execute and deliver to Collins Avenue the Acknowledgement and Release set forth in that certain Assignment and Assumption of Puig contract, between Collins Avenue and Developer, a copy of which is attached hereto as Exhibit “B"; and (b) Collins Avenue shall execute and deliver to Puig its joinder in this Agreement, as set forth below, to evidence and agree that Puig is an intended third-party beneficiary of the provisions of Paragraph 4 of the Sales and Marketing Agreement. In no event shall joinder of Collins Avenue in any way bind or obligate it under this Agreement, other than to the extent expressly set forth therein, 13. Similarly, the Joinder signed by Collins Avenue expressly binds it and obligates it to pay Puig her compensation including a 1% override on all sales of Units at the Bath Club pursuant to Paragraph 4 of the Sales and Marketing Agreement between Puig and PADC. The Joinder was signed by Peebles under the three layers of corporate entities that make up Collins Avenue. The other three documents, the Release, Amendment and Joinder, also contain similar language reiterating Puig’s right to collect from Collins Avenue. Importantly, on appeal of an order in the instant case, the Third District Court also found, consistent with the documents that “Col s Avenue guaranteed PADC’s obligation to Pt ” See Puig v. PADC Marketing, LLC, 26 So. 34.45, 47 (Fla. 3d DCA 2009), 14, This Court will recall that up until January 19, 2014, all of the Defendants, Collins Avenue, R. Donahue Peebles (“Peebles”) and PADC disputed that Puig was authorized to sell resales and/or that her contract entitled her to any additional compensation for selling approximately $42 million of resales and assignments, 15, Asa result, since May 2006, the Plaintiffs have been trying to show that 1) Peebles requested and authorized Puig and the sales persons to sell resales at the project, and 2) Peebles represented to Puig and the sales persons that they each would receive a 1% override on each 5closed resale transaction. Moreover, in response to the Defendant's claims that Collins Avenue ‘was not responsible to pay Puig if PADC failed to do so, Plaintiffs were trying to show through evidence that it was represented to Puig by Peebles, his lawyer, Howard Vogel and Michelle Kohler (an officer of Collins Avenue) that Collins Avenue would remain liable to Puig if PADC failed to timely pay Puig her compensation including her salary, her override, her earned bonuses and expenses. 16, Atthe trial of this matter, Plaintiffs were going to present evidence proving all of the above. Asa result of the recent recanting of Defendant's positions, the Plaintiffs seek this Court to enforce the terms of the contract between PADC and Puig dated March 7, 2003 (the “Puig Employment Contract” ) which Colli ined”! and the third-party beneficiary contract between PADC and Collins Avenue dated April 26, 2002 (the “Collins Avenue-PADC Contract”) wherein Collins Avenue promised to pay directly to the employees any and all compensation and benefits (1% override, salary, expenses, bonuses) owed to Sales Manager, defined as Puig, if PADC failed to do so. 17. If the Defendant had not stipulated to all of the now undisputed facts, Plaintiffs would have been to prove that: 1) “resales” were covered and earned a 1% override under the Puig Employment Contract and under paragraph 4 of the Collins Avenue-PADC Contract; and, 2) the “intent” of the third party beneficiary agreement was to provide Puig the remedy of seeking payment of any owed compensation sums due to her from Collins Avenue if PADC failed to do so. 18. However, given the stipulated facts by the Defendant that Puig is entitled toa 1% override for the 23 resale/assignment transaction and that these transactions are actually covered ' See Joinder dated March 7, 2003 signed by R. Donahue Peebles on behalf of Collins Avenue. 6by Collins Avenue-PADC Contract (as joined by Collins Avenue) and authorized by PADC and Collins Avenue, itis the Plaintiffs’ position that itis entitled to ajudgment against Collins Avenue according to the clear and unambiguous contractual terms. 19. In the Collins Avenue-PADC Contract, Collins Avenue promised that “in connection with Agent’s [PADC] efforts to obtain any such release from employees of Collins Avenue, Owner [Collins Avenue] will agree, pursuant to language reasonably acceptable to Owner, to allow the applicable Employee to be a third-party beneficiary of amounts payable by Owner to Agent under this Agreement that are allocated solely to such Employee in respect of Commissions.” Collins Avenue-PADC Contract - Paragraph 4(i) 20. Consistent with Collins Avenue promise to remain responsible to the Employees for contractual sums not paid by PADC, it is undisputed that pursuant to the unambiguous and clear terms of the Collins Avenue-PADC Contract, Collins Avenue promised to remain responsible to the Employees and the Sale Manager for any and all unpaid salaries, expenses and costs, overrides, commissions and “bonuses” if PADC fails to do so. 21. Paragraph 4 of Collins Avenue-PADC Agreement, which is specifically referenced in the joinder by Collins Avenue of the Puig Employment Contract, states the following: 22. Collins Avenue shall not be obligated to pay PADC any more with respect to the Sales Manager or the individual sales agents than PADC is obligated to pay either the Sales Manager or the individual sales agents, as the case may be See Collins Avenue-PADC Contract fff 4(a), 5(0) 23. Collins Avenue shall pay PADC directly, for its services, rendered pursuant to this Agreement in connection with the sale of units at the Bath Club both prior to and during the term of this Agreement, a commission for the sale of each unit, with Puig identified as receiving a 1% override on the sale of these units, Id. 124, Collins Avenue agreed to reimburse PADC for salary and benefits paid to the sales staff employed by PADC and specifically identifies Puig as the Sales Manager. See Collins Avenue-PADC Contract §] 4(c), S(a). 25. Collins Avenue agreed to reimburse PADC for any and all bonuses, up to $400,000, owed to Puig. See Collins Avenue-PADC Contract § 4(g) 26. Collins Avenue agreed to pay directly all reasonable, documented, ut of pocket expenses incurred by or on behalf of the Agent during the term of the Agreement relating solely to the marketing and sale of the Units (including without limitations, all third party out of pocket expenses for printing and circulation costs, public relations marketing end community relations, and the cost for telephone, facsimile, and courier services. and the salaries, benefits and costs of the Sales Staff, Administrative Staff and Sales Manager. See Collins Avenue-PADC 5(a). tract 27. Collins Avenue agreed to name Puig as anamed insured on policies of liability insurance at no cost to PADC or Puig. See Collins Avenue-PADC Contract $15 28, Collin Avenue stipulated that PADC has breached the agreement with Puig by failing to timely pay her the eamed 1% override and by filing for bankruptcy. Thus, itis undisputed that PADC has defaulted in iis obligation to pay Puig the owed compensationioverride which would be a material breach of the Puig Employment Contact, as well as Paragraph 4 of the Collins Avenue-PADC Contract 29. In the event of a default by PADC, paragraph 8 of the Collins Avenue-PADC Contract states: “Ifthis Agreement is terminated pursuant to 8(a) by any reason of Agent’s [PADC] default, or otherwise for “cause” involving Agent other than Agent’s failure to achieve any and all of the Sales Target Thresholds, the Commissions payable to Agent shall, with the respect to any Purchase Agreement executed after the effective date of such a termination, be limited to the amount that Agent is obligated to pay Sales Manager or any 8individual sales agents (but in no event shall such amount be greater than the amount, if any, that Owner would be required to pay under this Paragraph 8(c) in respect of the Sales Manager and/or such individual sales agent, as applicable, were it not for this sentence and the amount, if payable pursuant to this sentence shall be payable when such amount would have been payable by Owner under Paragraph 8(c) were it not for this sentence).” See Collins Avenue-PADC Contract $ 8(¢). 30. Moreover, in the Joinder, Collins Avenue agreed that Paragraph 4 of the Collins Avenue-PADC Contract which controls “compensation” to Puig “shall not be amended supplemented, terminated or otherwise changed, in a manner which is material and adverse to Puig’s ability to obtain payment of fees owed to under the Agreement, as modified by this Amendment, without prior consent of Puig.” THE VARIOUS VEHICLES THROUGH WHICH AN AWARD OF ATTORNEYS FEES AND COSTS IS APPROPRIATE, 31, Aspreviously set forth above, Plaintiffs have separate avenues from which they can recover their attorney’s fees: 1) §448.08, Fla, Stat, 2) Paragraphs 7(c)(1) and 27 of the December 18, 2000 contract between Collins Avenue Associates, LLC and Plainti 3) Florida Statutes Section 57.105, The Statute ~ Fla Stat Sec. 448.08 52. Section 448.08, Fla. Stat., provides that “[t]he court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney's fee.” 33. In the Amended Order on the Motion for Final Judgment (herein the “Collins Judgment”), the Court at {7 states that “[iJt is undisputed that the clear and unambiguous tenns of the Puig Employment Agreement provided that Defendant PADC shall pay Plaintiffs an annual 9salary and “an override of 1% of the Net Sales Price of each Unit sold...it is undisputed that Defendant PADC never paid the Plaintiffs the override commission as to resales and therefore breached the Puig Employment Agreement.” 34. Collins Avenue agreed to the Joinder of the Contract between PADC and Puig. It is undisputed and admitted that PADC has breached its contract with Puig by failing to pay Puig on the 23 resale and assignment closed transactions. By stipulating that the Puig Employment Contract obligated PADC to pay Puig the 1% override on the 23 resales and assignments, Collins Avenue is liable as a matter of law for the breach of PADC pursuant to the Joinder. 35. Pursuant to Paragraph 4 of the Collins Avenue-PADC Agreement, Collins Avenue remained responsible for all owed commissions, salary, bonuses, expenses and costs owed to Puig, Moreover, it clearly states that PADC materially breaches the Collins Avenue-PADC Contract if PADC fails 10 immediately pay PUIG her compensation paid to it by Developer for the sale of units, now stipulated to include the 23 resale transactions including the 10 assignments consented to by Collins Avenue. It is undisputed that PADC failed to pay Puig the owed sums for the 23 resale transactions, 36. Asa result of acertain Assignment and Assumption that was executed, the Ci held that Defendant Collins became liable for wages and commissions owed to Plaintiffs. See 49 of the Collins Judgment, stating that “Defendant Collins still remained obligated to pay Plaintiffs because it is undisputed that Defendant PADC never paid the third party beneficiary Plaintiffs [Sales Manager] their 1% override commission on the resale” properties.” The Court additionally states in $12 that “Defendant Collins is liable for the 1% override commission in resales of condominium units due the Plaintiffs [Sales Manager].”” 37. Florida law is clear that under Fla. Stat. Sec. 448.08, unpaid commissions are 10considered wages for purposes of said statute, See D.G.D., Inc. v. Berkowitz, 605 So, 24 496 (Fla. 3d DCA 1992) (“stating that unpaid commissions are considered wages for purposes of S 448.08"), Ocean Club Cmty. Ass'n v. Curtis, 935 So, 2d 513 (Fla, 3d DCA 2006) (citing toD.G.D., Inc, for the same proposition); Hingson v. MMI of Florida, Inc.,8 So. 3d 398 (Fla, 2d DCA 2009) (stating same), See also, Gulf Solar, Inc. v. Westfall, 447 So. 2d 363, 367 (Fla. 2d DCA 1984) (stating that the definition of “wages” in Black’s Law Dictionary 1416 (Sth ed. 1979) should be used in construing the term “wages” as used in section 448,08; Black's Law Dictionary provides, in part, that the term “wages “should be broadly defined and includes not only periodic monetary earings but all compensation for services rendered without regard to manner in which such compensation is computed”). 38. As such, it is clear from the Judgment against Collins Avenue that Plaintiffs are entitled to attomey’s fees under the aforementioned statute against Collins Avenue, her original employer, who agreed to pay any and all compensation owed to Plaintiff, The Contract 39, _Plaintiffsare similarly entitled to their fees and costs as the prevailing party in this action under the Agreement(s) at issue. 40. It is undisputed that Puig was the intended and express third-party beneficiary of the Collins Avenue-PADC Contract. As mentioned above, by virtue of Collins Avenue’s contractual Joinder of the Puig Employment Agreement and Collins Avenue specifically identifying Puig as an intended third-party beneficiary to Paragraph 4 of the Collins Avenue PADC Contract, Collins Avenue promised to pay Puig in the event that PADC did not fulfill its obligations to Puig under the Puig Employment Agreement and Paragraph 4 of the Collins Avenue-PADC u41. PADC did in fact fail to perform its obligations when it did not compensate Puig for the 1% override applied to resale commission. Asa result, Collins Avenue as Promisoris liable to Puig for the failed obligations of the Promisee, PADC, based on the plain language of the Contract between PADC and Collins Avenue, Collins Avenue’s subsequent joining in the Agreement between PADC and Puig, and Collins Avenue identifying Puig as an intended third- party beneficiary. 42, Ibis well estat ed in Florida, regarding third-party contracts, that “a third person for whose benefit a contract has been made may maintain an action thereon.” Crabiree v. Aetna Cas. And Sur. Co., 438 So. 2d 102, 105 (Fla. Ist DCA 1983); see also Riverview Condominium Corp. v. Campagna Const, Co., 406 So. 24 101, 102 (Fla. 3d DCA 1981). The Florida Supreme Court has also said that, “when a contract shows that it was intended to be for the benefit of a third party, such third party may ... sue thereon ... [T]he test is ... that the parties to the contract intended that a third person should be benefitted by the contract, It is the undertaking on the part of the promisor, as a consideration to the promise, to benefit the third person that gives rise to a cause of action by the beneficiary against the promisor, resting upon the contract itself. Marianna Lime Prods. Co. v. McKay, 109 Fla. 275, 147 So, 264, 265 (1933), Where the purpose and object of the contract was to obviate or protect the plaintiff from exactly thet which occurred, a plaint has standing as a third party beneficiary to bring a breach of contract claim against a promisor. Cooper v. IBI See. Service of Florida, Inc., 281 So. 2d 524 (Fla. 3 DCA 1973). Further, “[a] third party must establish that the contract either expressly creates rights for them as a third party or that the provisions of the contract primarily and directly benefit the third party or a class of persons which the party is a member. Beli v: Carlson Travel Group, Inc., 864 F, Supp. 2d 1302, 1312 (SD. Fla. 2011), Finally, to statea claim for breach ofa third-party beneficiary contract, a plaintif? 2must allege: (1) a contract between A and B, (2) the “clear” or “manifest” intent of A and B that the contract primarily and directly benefit the third-party, (3) breach of the contract by either A or B, and (4) damages 10 the third-party resulting from the breach. Jerme v. Church & Tower, Inc., 814 So, 2d 522, 524 (Fla. 4th DCA 2002) (quoting Carewta Trucking, Inc. v. Cheoy Lee Shipyards Lid., 647 So, 2d 1028, 1031 (Fla. 4th DCA 1994), 43. Here, Puig has proved her claim for breach of a third-party beneficiary contract as a matter of law based upon the undisputed facts of the case. Puig was not a party to the Contract between PADC and Collins Avenue. There was a clear intent expressed by both parties that Paragraph 4 of the Contract primarily and directly benefit Puig, in that Puig as Sales Manager, was to receive compensation for resales under the Contract. This intentis further evidenced by Collins Avenue subsequently joining in the Puig Employment Contract. This is sufficient to show intent because as the court in Belik stated, “[tJhe party's status as a third-party beneficiary may be established by pre-contract and post-contract actions of the parties.” Belik at 1312. Further, PADC materially breached the Collins Avenue-PADC Contract, when PADC failed to pay the 1% override earned on the 23 resales under the Collins Avenue-PADC Contract. Collins Avenue- PADC Contract, Paragraph 4. 44, Itis admitted that PADC’s filing for bankruptcy in 2009 was also a material breach of Paragraph 4 of the Collins Avenue-PADC Contract as well as the Puig Employment Agreement. 45. Asa direct result of PADC’s breach of Collins Avenue-PADC Contract, Puig has been damaged and has a direct claim against the promisor, Collins Avenue. There should be na doubt that the clear and unambiguous language of Paragraph 4 of the Collins Avenue-PADC Contract and Joinder signed by Collins Avenue to the Puig Employment Agreement, Collins 1BAvenue were entered into asa direct benefit of Puig and as such, Puig should be able to sue thereon the Promisor of those Agreements, Collins Avenue, 46. Any doubt was extinguished with Collins Avenue stipulating that Puig was authorized to sell resales and was entitled according to her assigned contract with PADC to receive 1% override on these transactions. Collins Avenue’s stipulation binds them to the resale transactions and requires it to pay Puig if PADC breaches its obligations to Puig just like it was required to do so with the developer units, the salary, the bonuses and the expenses, 47. Here, Puig was admittedly not paid by PADC for her owed compensation. As per her rights, she can seek recovery against Collins Avenue, the Promisor, for these owed sums. 48. Any claim that Collins Avenue is not required or is excused from its obligations under Paragraph 4 of the contract between PADC and Collins Avenue because Collins Avenue was not paying Puig on resales is belied by the intent of the agreement and the provi ing of the third-party beneficiary agreement and the undisputed fact that Collins Avenue consented to and was paid a 2% fee on the assignments sold by Puig and the sales team, an amount equal to $345,500. It is clear from the numerous paragraphs cited above that PADC was simply a flow through for the obligations of Collins Avenue. Collins Avenue agreed to pay Puig (and the other employees) all owed commissions, salary, expenses and bonuses to the extent PADC agreed to pay. Here, PADC and Collins Avenue stipulate that Puig was due these sums pursuant to paragraph 4 of the Collins Avenue-PADC Contract and based upon Collins Avenue agreeing to reimburse or pay directly sums owed to Puig if PADC failed to pay, there should be no distinction in this ease when the commission/overrides flow through PADC and were not paid to Puig, Collins Avenue admits knowledge of these breaches and took no action to make sure PADC paid Puig. 1449. The Court’s Judgment against Collins Avenue found that Collins Avenue breached the Contract with the Plaintiffs 50. It also found that the Plaintiffs are entitled to attorney's fees under the applicable contractual provisions. “Plaintifis are also entitled to attorney's fees under Paragraph 27 of the Exclusive Sales and Marketing Agreement. This Court reserves jurisdiction to determine the amount of attomey’s fees and costs as to Count II.” 51, Paragraph 7(e)(1) of the December 18, 2000 coniract between Collins Avenue and Puig, provides that the prevailing party shall be entitled to “reasonable attomey’s fees and court costs through all appellate levels from the non-prevailing party(ies).” 52. Paragraph 27 of the Collins Avenue-PADC Agreement states (27) If cither party shall institute legal proceedings to enforce and of its rights hereunder, the party prevailing on the merits shall be entitled to recover from the other party reasonable attorney's fees and disbursements incurred in connection therewith, as well as interest on the amount payable by the non-prevailing party under the final non-appealable judgment in question, fiom the tenth (10") business day after the lesser of such judgment until the date upon which payment thereof is made, at an interest rate equal to the lesser of (i) fifteen percent (15%) per annum or (ji) the maximum amount or rate of interest permissible under applicable law. 53. Asa result, because Plaintiffs prevailed in this action and a judgment was entered as to all Defendants, this Court should enter an award of attorney’s fees and costs in favor of Plaintiffs and against Defendant Collins Avenue pursuant to paragraph 27 of the Collins Avenue- PADC Agreement and paragraph 7(e)(1) of the Puig Employment. 15‘The Sanctions Motion 54, On April 17, 2012, and after having complied with statutory condi nis precedent, Plaintiffs filed a Motion for Sanctions pursuant to Fla. Stat. Sec. 57.105 as a result of Defendants” frivolous and meritless arguments under Chapter 475 of the Florida Statutes, as well as due to the fact that Defendants attempted to (and ultimately did) set for hearing the previously twice-denied Amended Motion for Finel Summary Judgment that had been previously served on March 1, 2011 55. On October 23, 2013, this Court heard oral argument as 10 Defendants’ Motion for Rehearing of Their Amended Motion for Summary Judgment (herein “Defendants’ Motion”). The Coun considered the Defendants’ argument(s) under Chapter 475, rejecting same, The Court also rejected a litany of other argument from Defendants regarding their summary judgment efforts 56. On November 13, 2013, this Court entered an order denying Defendants’ Motion 57, Florida Statutes Section 57.105 states in pertinent part that Upon the court’s initiative or motion of any party, the court shall award a reasonable atiomey’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court. (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-exi: those material facts. ing law to 58. Thus, given the clearmandates of the statute, along with the frivolous and improper nature of Defendants’ Motion, defense, and continuous setting of the previously denied Motion, Plaintiffs are entitled to attorney’s fees under Fla. Stat. Sec. 57.105 as well. Multiplier 1659. If this Court finds entitlement, Plaintiff's seek a multiplier of its fixed amount of fees based upon 60, The Third District reiterated that in order to determine the amount of fees to award toa prevailing party in a contract action, “a trial court is required to use the lodestar approach and the eight factors required to be used in an attomey’s fees hearing, pursuant to Rule 4-1.5(a), Rules of Professional Conduct, and following Florida Patient's Compensation Fund v. Rowe, 472 S024 1145 (Fla, 1985) , as modified by Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). The trial court must determine the time spent, as well as a reasonable hourly rate for such representation, The trial court then may order a contingent risk multiplier depending on the trial court’s determination of the attomey’s likelihood of success at the onset of the case.” Sunshine State Ins. Co. v. Davide, 117 $0.34 1142, 1144 (Fla.3d DCA 2013) citing fo Rowe, 472 So.2d at 61. In the first step of the lodestar process, the trial court is required to determine the number of hours reasonably expended on the litigation, which normally includes consideration of “the novelty and difficulty involved”. See Rowe (at 1150) and Quanstrom. The second step requires a determination of the reasonable hourly rate for the prevailing attorney. In establishing the rate, the factors which must be considered pursuant to Rule 4-1.5(a) include: {a) The time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (b) The likelihood that the acceptance of the particular employment wil preclude other ‘employment by the lawyer, {c) The fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature: 7{d) The significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results; (e) The time limitations imposed by the client or by the circumstances and, as between attomey and client, any additional or special time demands or requests of the attorney by the client; (8) The nature and length of the professional relationship with the client; (g) The experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and (h) Whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation 62. In Quanstrom, the Supreme Court reaffirmed the principals set forth in Rowe, including the code provisions, and directed that trial court should consider the following factors in determing whether a multiplier should be applied to the loadstar fee to the prevailing party award in a contract action: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the aitorney was able to mitigate the risk f nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially. the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client, The multiplier in Rowe was modified toa range of | to 2.5 as follows: if the court determines that success was more likely than not at the outset, it may apply a multiplier of 1 to 1.5, ifthe trial court determines that the likelihood of success was approximately even at the outset, the trial judge 18may apply a multiplier of 1.5 to 2.0; and if the trial court determines that success was unlikely the outset of the case, it may apply a multiplier of 2.0 to 2.S(emp. Added) (Quanstrom at $34) 63. In Sunshine State, the Third District affirmed the trial court’s award of atiomey’s fees which was approximately three times the amount recovered by Plaintiff and which included a multiplier of 2.0. That case involved an action against an insurer for breach of contract, bad faith and for confirmation of an appraisal award which was filed after the insurer unilaterally deducted depreciation from its payment of the appraisal award. 64, Here, the Defendants litigated their defenses from May 2006 until the stipulation on January 14, 2014 (and Peebles even after the jury verdict). As a result, if this Court finds an entitlement to fees as set forth above, Plaintiffs will be seeking at the hearing to fix the fees, a multiplier of 2.0 to 3.0 based upon the number of times the Defendants have moved for summary judgement and judgment on the pleadings based upon all the grounds rejected by this Court, WHEREFORE, Plaintiffs, DORA PUIG, THE PUIG GROUP and DORA PUIG, P.A., request the Court to enter an Order against Collins Avenue Associates, LLC. awarding entitlement of their attorneys” fees, costs, and any such other relief as the Court deems just and proper. Dated this 19" day of October, 2015 Respectfully submitted, SCHLESINGER & ASSOCIATES, P.A. 800 Brickell Avenue, Suite 1400 Miami, FL 33131 Phone: (305) 373-8993 Facsimile: (305) 373-8098 E-mail: mjs@misjd.com E-mail: hcorrea@mjsjd.com E-mail: jimenez@misjd.com E-mail: eservice@mjsid.om 19By:_/s/ Micl Schlesi MICHAEL J. SCHLESINGER Florida Bar No. 141852 HELOIZA A, CORREA Florida Bar No. 78124 ROBERT R. JIMENEZ, Florida Bar No. 72020 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served by E- mail this 19th day of October, 2015 to the following: Michael J. Higer, Esq mhiger@bergersingerman com Berger Singerman Ramon A. Abadin, Esq ramon.abadin@sedawicklaw com Sedgwick, LLP cana castellon@sedgwicklaw.com miofficeservices@sedawicklaw.com Geoliey B. Marks, Esq. ‘emarks@attyfla.com Billbrough & Marks, P.A. service@ attyila com ‘Hector J, Lombana, Esq. blombana@glhlawyers.com Gamba Lombana & Herrera By._/s/ Michael.J. Schlesinger MICHAEL J. SCHLESINGER 20 Seweswatn & Asscates, PA