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 ANTHONY MAROTTA, v. Petitioner, Fee Case No Rel. Case No VILLAGE GARDEN CONDOMINIUM ASSOCIATION, INC., Respondent. / FINAL ORDER ON RESPONDENT'S MOTION FOR ATTORNEY'S FEES This fee case arose from a petition filed by unit owner Anthony Marotta (Petitioner), against Village Garden Condominium Association, Inc., (the Association or Respondent) on August 14, 2012, alleging that the Association willfully failed to timely respond to Petitioner s two requests to inspect the Association s official records. As relief, Petitioner requested the payment of $ in damages as authorized by section (12)(c), Florida Statutes. 1 The Association is requesting reimbursement for legal fees in the amount of $2, No costs were requested. The Association is located in Palm Beach, County. Relevant Procedural History The petition was filed on August 14, 2012 and after receiving an extension of time, was answered by the Association on October 9, The undersigned issued an order 1 At $50 per day for a maximum of 10 days the first late response was mailed by the Association on February 22, 2011, for a total of 7 days and $ The second records request was delayed by 30 days for the maximum amount of damages of $

2 on October 11, 2012 to Petitioner to reply to the answer and he did so on October 24, A Summary Final Order in favor of the Association was issued on November 26, Petitioner had not prevailed on either of his allegations that the Association had failed to provide records as required by law. On January 10, 2013, the Association filed its motion for attorney's fees and Petitioner responded thereto on January 30, 2013, opposing the length of time reflected on counsel's timesheet for specific activities and urging the undersigned to reduce the Association's request that it be reimbursed for fees at the hourly rate of $ Petitioner did not oppose the Association being designated the prevailing party so that issue need not be considered. The Association is the prevailing party. Conclusions of Law Attorney's Fees Analysis With regard to the reasonableness of the attorney s fees claimed by the Association, 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 a lodestar figure by multiplying the number of 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 attorney s fees, the criteria set forth in Rule 4-1.5, Rules Regulating the Florida Bar, Rules of Professional Conduct [then 2

3 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 , Florida Administrative Code. Hourly Rate Respondent, the Association, provided an affidavit of its attorney, Edward A. Dicker, who according to the affidavit, was admitted to practice by the Florida Bar in 1976 and has been practicing law continuously since that date. The affidavit said that since 1982, Mr. Dicker has practiced exclusively in the area of community association law and the Association was seeking reimbursement for Mr. Dicker at $ After considering the previously outlined factors, the undersigned finds that the rate requested of $ an hour for an attorney in Palm Beach County, who has been practicing law for 37 years, is reasonable. Citation Way Condominium Association, Inc. v. Shen, Fee Case No , Final Order Awarding Attorney's Fees and Costs (June 14, 2012)($ an hour reasonable for an attorney practicing 14 years). Petitioner's Opposition to Time Entries Petitioner objects to being held liable for fees primarily based on the length of time being attributed to activities conducted by Mr. Dicker such as: conference calls between the Association and its counsel that consume 0.2 hours or more; 0.5 hours for letters written by Mr. Dicker to Petitioner's attorney, Mr. Bernstein, which were not initiated or in response to a letter written by Mr. Bernstein; telephone calls placed by Mr. Dicker to Mr. Bernstein which were not in response to calls originally initiated by his attorney; 0.1 hours being charged for a review of his attorney, Mr. Bernstein's 3

4 making a settlement offer which was solicited by Mr. Dicker; 0.1 hours for responding to his attorney's ; 0.5 hours for review of the petition, the attached exhibits and the order requiring answer; and being subjected to fees for time taken by Mr. Dicker to update the Association. In a second pleading responding to the motion for fees, Petitioner objected to the award of fees because the Association included with its reply to Petitioner's objections, confidential negotiation communications between the parties allegedly in violation of section , Florida Statutes. None of these objections is meritorious. Settlement Negotiations Petitioner's contention that fees should be denied because the Association disclosed information from unsuccessful settlement negotiations between the parties is based upon Section , Florida Statutes which states: "Evidence of an offer to compromise a claim which was disputed as to validity or amount... is inadmissible to prove liability or absence of liability for the claim or its value." Under Florida's Evidence Code, evidence which is inadmissible for one purpose may be admissible when offered for a different purpose, such as bias or prejudice. Saleeby v. Rocky Elson Construction, Inc., 3 So. 3d 1078, 1090 (Fla. 2009) (citing, Reichenbach v. Smith, 528 F. 2d 1072, 1075 (5 th Cir. 1976)(this rule does not require exclusion of the evidence to negate a contention of undue delay and proving an effort to obstruct a criminal investigation or prosecution)). Petitioner's reliance on section is misplaced. Liability or the absence thereof, is not the subject of a motion for attorney's fees. Here, there is no dispute that the Association is the prevailing party and by law is entitled to the award of reasonable attorney's fees. Neither is the value of the petitioner's claim an issue. The amount of 4

5 the award of fees does not involve a valuation of damages reflective of the value of the wrong committed, which is the 'value' referred to in section , but attorney's fees which are controlled by a formula which considers hourly rates for time expended by the attorney who represented the prevailing party. It is unclear how settlement negotiations could affect the undersigned's determination of what a reasonable hourly rate is or how much time devoted to any one task by the prevailing attorney is unreasonable. Petitioner's objection to the award of fees under this rationale is overruled. 2 Client Contact Attorneys are ethically required to keep their clients informed of the progress of their litigation. The Division encourages clients and their attorneys to keep in touch and fees for such contact will only be denied when the number and length of time are unreasonable or duplicate entries are made. The Ocean Monarch Condominium, Inc. v. Szczepanik, Arb. Fee Case Nos and , Final Order on Prevailing Party Determination and Denying Motion to Amend Final Order on the Award of Attorney's Fees and Costs (August 30, 2012). The length of the contacts with the Association never exceeded 0.50 hours which the undersigned finds reasonable. Silverman v. Golden Lakes Village Association, Inc., Golden Lakes Village Condominium Association "A", Inc. Arb. Fee Case No , Final Order on Motion for Award of Fees (June 20, 1996)(even though in some instances contact with the client occurred on an almost-daily basis, overall the average of frequency of such entries appears to be only two or three times a month, and given... the nature of the 2 The cases cited by Petitioner in support of this argument are unpersuasive and inapplicable. 5

6 case... the amounts claimed for client contact cannot be considered excessive). 3 See generally High Point of Del Ray West Section 1 Condominium Association, Inc. v. Brasgold, Lieba and Schwartz, Arb. Fee Case No , Final Order on Attorney's Fees (March 1996). The Association will be awarded fees for a reasonable amount of contacts with counsel. Hours Entered After Completion of the Arbitration The billing statement filed with the motion for attorney's fees does not contain an entry to substantiate any more than the one hour generally awarded for time spent after the entry of a final order. Jade Residences At Brickell Bay Condominium Association, Inc., v. Fees Case No Final Order on Motion for Attorney s Fees and Costs (March 12, 2010). Time Expended The affidavit of fees and timesheet submitted by the Association reflect Mr. Dicker worked a total of 9.8 hours on behalf of the Association. There are 25 entries on the timesheet of which 10, for a total of 3.2 hours, occurred after the Summary Final Order was issued on November 26, Accordingly, 3.2 hours will be deducted from the total hours requested which leaves 6.6 hours to be considered ( = 6.6). Between September 6, 2012 and the issuance of the Summary Final Order on November 26, 2012, counsel for the Association participated in conference calls with the Association or representatives thereof five times, writing or responding to s from the Association four times, and on s to and from and telephone calls with opposing counsel seven times. These entries are comingled on different dates without 3 The nature of the case was described as requiring much client input for purposes of preparation of the video, affidavit, and other supporting documents. 6

7 the delineation of time among each activity. Therefore, the undersigned will determine a reasonable award for these entries independent of those shown on the timesheet. The arbitration proceedings consumed 11 weeks. Five conferences calls with the client for periods averaging 0.25 hours or less are not unreasonable and these will be awarded at the rate of $250 per hour for a total of $ The same will be awarded for counsel responding to s from the Association, four entries at 0.25 per entry for a total of one hour at a rate of $ The seven telephone calls between the attorneys, which averaged less than one per week, will be awarded at the rate of 0.4 hours per call for a total of $ The remaining 2.25 hours for reviewing four orders, drafting the answer and the request for an extension of time will be awarded as will one hour for drafting and filing the motion for attorney's fees. Total attorney's fee award is $1, for 7.6 hours expended on defense of this action. 4 Respondent incurred no costs. Therefore, based on the foregoing, Petitioner shall pay to the Association within (30) thirty days of this order $1, as reimbursement for attorney's fees. DONE AND ORDERED this 13 th day of February 2013, at Tallahassee, Leon County, Florida. Leah Simms, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: (850) Facsimile: (850) Original request for fees was for $2,450 for 9.8 hours; deduction of 3.2 hours for time after entry of the final order leaving 6.6 hours; plus one for drafting the motion for fees and its accompanying affidavit, totals 7.6 hours at $ per hour. 7

8 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. 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 this 13 th day of February, 2013: John S. Bernstein, Esq. Tucker & Tighe, P.A. 800 E. Broward Blvd. Suite 710 Ft. Lauderdale, FL Attorney for Petitioner Edward Dicker Dicker, Krivok & Stoloff, P.A Australian Avenue South Ste. 400 West Palm Beach, FL Attorney for Respondent Leah A. Simms, Arbitrator 8