STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION NEWPORT E CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Fee Case No Rel. Case No LIELA MONTAK and RICH MONTAK, Respondents. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On April 25, 2011, Newport E Condominium Association, Inc. (Association), located in Palm Beach County, Florida, filed a Motion for Attorney s fees and costs seeking an award of $ in attorney s fees and $60.54 in costs. By order entered on May 2, 2011, Liela Montak and Rich Montak (Respondents), were directed to file a response to the Association s motion within twenty (20) days of the date of the order. To date, no communication has been received from Respondents regarding the fees and costs requested by the petitioner. FINDINGS OF FACT 1. This fees case arises from arbitration case number , filed on January 18, 2011, in which the Association alleged the Respondents were improperly possessing two cats in their unit in violation of the condominium documents in violation of Article 9.6 of the Declaration of Condominium and Article 12.1(p) of the Bylaws. 2. On January 24, 2011, an Order Requiring Answer was entered. 1

2 3. On January 26, 2011, Respondent Liela Montak was duly served. 4. On March 4, 2011 an Order Requiring Service on Respondent Rich Montak was entered. 5. On March 8, 2011, Respondent Rick Montak was duly served. 6. On March 30, 2011, a Default was entered. 7. On April 13, 2011, a Final Order of Default was entered. CONCLUSIONS OF LAW Pursuant to section (4)(k), Florida Statutes, the prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorney s fees in an amount determined by the arbitrator. A party is a prevailing party if it succeeds on a significant issue in the arbitration and achieves some of the benefit sought in bringing the action. See Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla. 1992). In this case, Petitioner alleged Respondents were improperly possessing two cats in their unit in violation of the Declaration of Condominium and Bylaws. As relief, Petitioner sought an order requiring Respondents to permanently remove their two cats from their unit. As of the date of this order, no communication has been received by the arbitrator from Respondents to the Association s Motion for Fees. Accordingly, the Association is the prevailing party. The only issue to be decided by the arbitrator is the reasonableness of the attorney s fees claimed by the petitioner. In Florida Patient s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985), the Supreme Court adopted the federal lodestar approach as the foundation for setting reasonable fee awards. This approach requires the trial court to determine the lodestar figure by multiplying the number of 2

3 hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party s attorney. Fashion Tile & Marble v. Alpha One Construction, 532 So. 2d 1306 (Fla. 2d DCA 1988). In undertaking this analysis, the reasonableness of the hourly rate and the number of hours reasonably expended must be separately considered. See, Rowe, 472 So. 2d at In determining the reasonableness of the attorney s fees, the criteria set forth in Rule 4-1.5, Rules Regulating the Florida Bar, Rules of Professional Conduct [then Disciplinary Rule 2-106(b) of the Florida Bar Code of Professional Responsibility] should be applied. Id. At The factors for determining a reasonable attorney s fee set forth in Rule are basically the same as the factors set forth in rule 61B (7), Florida Administrative Code. The Association seeks reimbursement for the legal services by Michael D. Bogen, Esquire, in the amount of $300.00, as a flat fee. Mr. Bogen was admitted to practice law in the State of Florida on September 27, After considering the above factors and the pleadings filed in the related case and Rule 61B (7), Florida Administrative Code, the undersigned finds that a $ flat rate charge for the legal services provided in this case is reasonable. Therefore, the Association is awarded $ for the legal services of Mr. Bogen. The Association also seeks reimbursement of $40.00 for personal service of the petition on Respondent Rich Montak; $15.00 for Federal Express charges for the December 13, 2010 letter sent to Rich Montak; and $5.54 for the USPS certified letter, return receipt requested, sent to Liela Montak on August 30, The personal service on Rich Montak was ordered by the arbitrator is recoverable and will be awarded. The Association has failed to indentify why it was necessary to send items 3

4 express delivery and by Certified Mail, return receipt requested, rather than regular mail and, thus, will not be reimbursed for the $15.00 for Federal Express charges and the $5.54 USPS charge. Accordingly, the Association is awarded the sum of $40.00 for costs. Therefore, based on the foregoing, it is ORDERED: Respondents, Liela Montak and Rich Montak, shall, within 30 days of the date of this order, pay to the Association the total amount of $ which represents $ in attorneys fees and $40.00 in costs. DONE AND ORDERED this 2ne day of June, 2011, at Tallahassee, Leon County, Florida Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida FAX: Trial de novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. 4

5 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on 2 nd day of June, 2011: Michael D. Bogen, Esquire FAX: Glades Road Suite 354 Boca Raton, Florida Liela Montak 2790 Brag Street #604 Brooklyn, New York Liela Montak 83 Newport E Deerfield Beach, Florida Rich Montak 83 Newport E Deerfield Beach, Florida Tonya S. Chavis, Arbitrator 5