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 Westchester Lake Condominium Association, Inc., Petitioner, v. Fee Case No Rel. Case No Valerie Reynolds, Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On April 4, 2016, Westchester Lake Condominium Association, Inc. (the Association) filed its Motion for Award of Attorneys Fees and Costs. The motion seeks to recover from Valerie Reynolds (Respondent) attorney s fees, paralegal fees and costs, in the total amount of $4, The Association is the legal entity responsible for the operation of Westchester Lake Condominium located in Pinellas County, Florida. On April 6, 2016, an Order Permitting Response was entered. As of the date of the Order entered herein, Respondent has not filed a response. This Order is entered accordingly. Conclusions A. Prevailing Party 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 Page 1 of 7

2 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, 809 (Fla. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Association has prevailed in this case. Therefore, the Association is entitled to recover reasonable attorney s fees and costs. B. Attorney s Fees The next issue to be decided is the reasonableness of the attorney s fees and costs 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 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. 1. Hourly Rate The Association seeks compensation for the legal services of Adam C. Gurley, Page 2 of 7

3 Esq., at the hourly rate of $ The Florida Bar website shows that Attorney Gurley was admitted to practice in Florida in October, 2014, therefore he had been practicing for approximately one (1) year and four (4) months while the case was pending. The hourly rate charged by Attorney Gurley is excessive, and a reasonable hourly rate for an attorney with like years of experience practicing law in Florida is $ See, e.g., 2295 South Ocean Blvd. Corp. v. Barash, Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (June 12, 2015). 2. Attorney Hours The Association claims a total of hours of attorney time. Not all of the hours can be awarded. As a preliminary matter, it has always been held that with the exception of preparing the pre-arbitration demand letter required by Section , Florida Statutes, for which one hour is typically awarded, attorney s fees incurred prior to the drafting of the petition for arbitration are not fees incurred in the arbitration proceeding, and therefore, they are not awarded. Desy v. River Key Condo. Ass n, Inc., Arb. Case No F, Final Order on Motion for Attorney s Fees and Costs (May 20, 1993) (fees incurred prior to the drafting and filing of the petition are not recoverable in the arbitration proceeding). Because the petition was composed of multiple violations, 2.1 hours will be awarded for drafting and filing the petition, and 0.8 hours will be awarded for the pre-arbitration notice. An Amended Petition was ordered because the petition as originally filed contained various defects and omissions. No attorney time will be awarded for preparation of the Amended Petition because the defects and omissions in the petition as originally filed were Page 3 of 7

4 those of the drafter. Therefore, 1.60 hours will be deducted for this reason. Counsel for the Association expended 0.60 hours drafting and filing its Request for Entry of Default. Such a request is not authorized in the rules. In any event, such a request is unnecessary, because orders of default are entered routinely without such a request. See, Kussoy v. The Sterling Villages of Palm Beach Lakes Condo. Ass n, Inc., Arb. Fee Case No , Final Order Awarding Fees (Feb. 29, 2012)(applying principle to motions for summary disposition). Therefore, this time will not be awarded. Petitioner will not be reimbursed for the time spent after entry of the final order, except for time spent preparing the motion for attorney s fees and costs. Sunrise Landing Condo. Ass n of Brevard, Inc. v. Wilson, Arb. Case No , Final Order on Attorney s Fees and Costs (May 9, 2006). One (1) hour will be awarded for preparation of the motion and affidavits. Given all of the foregoing, Petitioner will be awarded 4.95 hours for the efforts of Attorney Gurley at the hourly rate of $150.00, for a total of $ C. Paralegal Fees The Association seeks compensation for 1.6 hours of paralegal services of Cheryl Morrell at a rate of $95.00 per hour. Paralegal services are compensable where services are provided under the supervision of a licensed attorney and are non-clerical, meaningful legal work. Estes v. Lido of Pinellas Condo. Ass n, Inc., Arb. Case No F, Final Order on Attorney s Fees (May 31, 1995). The affidavit of Cheryl Morrell properly identifies her as a paralegal and includes her qualifications 1 which are 1 Paralegal Morrell s affidavit indicates that she has been a paralegal for approximately 10 years and a Florida Registered Paralegal for six and one-half years, with a focus in community association law for approximately two and one half years. Page 4 of 7

5 prerequisites to awarding time for paralegal services. However, the Association cannot recover for time expended by the paralegal on secretarial or clerical work. See Winfield Gardens South Condo. Ass'n, Inc. v. Brown, Arb. Fee Case No , (March 9, 2005), Final Order on Attorney s Fees and Costs (March 9, 2005); Loveland v. Harbor Towers and Marina Condo Ass n, Inc., Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (Jan. 28, 2005). The timesheets filed with the motion only show 0.20 hours were expended by Paralegal Morrell, but they were after the drafting of the motion for fees and costs and were only clerical in nature. Therefore, no hours are awarded for the efforts of Paralegal Morrell. 2 The Association seeks reimbursement for hours expended by Malinda Magaziner as a paralegal at an hourly rate of $ In her signed affidavit, Ms. Magaziner identified herself as a Legal Assistant rather than as a paralegal, and she did not provide any qualifications other than having acted as a legal assistant for approximately three years, with a focus in community association law for approximately one year. Fees for the work of paralegals cannot be awarded where the motion fails to identify the paralegal and provide the paralegal s qualifications. Seminole-on-the-Green, Cavalier Bldg. One Ass n, Inc. v. Jackson, Arb. Case No , Final Order on Petitioner s Motion for Award of Costs and Attorney s Fees (Feb. 7, 2007). Therefore, no fees can be awarded for the services of Ms. Magaziner. 3 Given all of the foregoing, 2 The affidavit of Paralegal Morrell states that Lindsey Richards was a legal assistant in the instant matter, but she is no longer employed by the firm. The motion and filings do not include the affidavit of Lindsey Richards or provide an explanation for why an affidavit could not be obtained, therefore no time can be awarded for the efforts of Lindsey Richards. The issue of fees for the efforts of Lindsey Richards similarly was addressed in Fairway Village Residents Ass n, Inc. v. Sullivan, Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (Oct. 30, 2015). 3 The issue of fees for the efforts of Malinda Magaziner similarly was addressed in Fairway Village Residents Ass n, Inc. v. Sullivan, Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (Oct. 30, 2015). Page 5 of 7

6 no paralegal fees can be awarded. D. Costs The Association seeks recovery of the following costs: $50.00 for the filing fee; $ for copying and postage; 4 and $50.00 for outside counsel s review of the file and execution of an affidavit of reasonable fees. The filing fee is a recoverable cost and will be awarded. Pursuant to the Statewide Uniform Guidelines for Taxation of Costs, the costs of copies of documents filed with the court which are reasonably necessary to assist the court in reaching a conclusion are recoverable. 5 However, the Association has failed to describe sufficiently the nature of the copies for which it seeks reimbursement, and for this reason, the arbitrator cannot determine if the copies are a recoverable cost. Therefore, the Association will not be awarded any costs for copies. Costs for postage and messenger services are not recoverable, as they are routine overhead expenses that should be incorporated into the attorney s hourly rate. See Barrera, individually and Bleau Fontaine Condo. No. Two, Inc. v. Bleau Fontaine Community Ass n., Inc., Arb. Case No , Final Order on Attorney s Fees (Jan. 26, 2001); Mitchell v. Osceola Farms Co., 574 So. 2d 1162 (Fla. 4th DCA 1991); Griffith v. Griffith, 941 So. 2d 1285 (Fla. 4th DCA 2006). Thus, the Association will not be awarded the cost of postage. Outside counsel s review of the file and execution of an affidavit of reasonable fees is not required by any rule governing this proceeding, and such an affidavit was not ordered by the undersigned. Therefore, this cost will not be awarded. Accordingly, it is 4 The Association did not separate copy costs from postage. Page 6 of 7

7 ORDERED: Within thirty (30) days of the date of this Final Order, Respondent shall reimburse the Association s attorney s fees in the amount of $ and costs in the amount of $50.00, for a total of $ Florida. DONE AND ORDERED this 17 th day of May, 2016, at Tallahassee, Leon County, Glenn Lang, Senior Attorney Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Phone (850) ; FAX: (850) 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, postage pre-paid, to the following persons on this 17 th day of May 2016: Adam C. Gurley, Esq. Rabin Parker, P.A U.S. 19 North, Suite 301 Clearwater, Florida for Petitioner Valerie Reynolds 2836 Countryside Boulevard Unit 124 Clearwater, Florida Respondent Glenn Lang, Senior Attorney 5 For example, in an arbitration case the copies of the condominium documents required to be provided with the petition are recoverable if they are sufficiently described in the request for costs. Page 7 of 7