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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: MOTION FOR ATTORNEYS FEES & COSTS HADASSAH ST. HUBERT, Petitioner, v. Fee Case No Rel. Case No CARMEL AT THE CALIFORNIA CLUB CONDOMINIUM 29 ASSOCIATION, INC., Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On December 21, 2016, Hadassah St. Hubert (Petitioner) filed a Motion For Attorney s Fees and Costs seeking an award of $6, in attorney s fees and costs. By order dated December 22, 2016, Carmel At The California Club Condominium 29 Association, Inc. (the Association) was directed to file a response to Petitioner s motion within 20 days of the date of the order. The Association is the legal entity responsible for the operation of Carmel At The California Club Condominium 29 located in Miami Dade County, Florida. The undersigned withheld ruling on Petitioner s fees motion until an order could be issued in the underlying case addressing a communication filed on December 6, 2016, on behalf of Respondent. By order dated February 6, 2017, the undersigned addressed the communication placing Respondent on notice that the Final Order On Default entered in the underlying case would not be vacated and remained in effect. The order further permitted the Association until February 13, 2017, to file a response to Petitioner s fees motion. As of the date this order, the Association has not filed a response. 1

2 Underlying Case History This fees case arises from arbitration case number In the underlying case, the petition alleged that the Association had failed to allow Petitioner access to its official records in response to a written request made on July 14, A Final Order On Default was entered in the underlying case granting Petitioner her requested relief. 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 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)). A Final Order On Default was entered in the underlying case granting Petitioner his requested relief. Therefore, Petitioner is the prevailing party in the underlying case and is entitled to recover her reasonable attorney s fees and costs. Attorney s Fees The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by 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 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

3 (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 Rule 61B , Florida Administrative Code. Petitioner seeks reimbursement for the legal services by Faudlin Pierre at the rate of $ an hour. Mr. Pierre has been practicing law for 8 years. The claimed hourly rate is excessive. Considering the above factors, a more reasonable hourly rate is $ per hour. See Martinez v. Bonnie Vie Management Association, Inc., Arb. Case No , Amended Final Order On Respondent s Motion For Attorney s Fees And Costs (October 19, 2016). Petitioner s motion requests that she be reimbursed for hours expended by Mr. Pierre. However, the itemized accounting of time stated in Mr. Pierre s affidavit attached to the motion indicates that Mr. Pierre expended hours. It will be presumed that the fees motion contains a scrivener s error. The claimed amount of time is excessive. 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, attorney s fees incurred prior to the drafting and filing of the petition for arbitration are not fees incurred in the arbitration proceeding and are therefore not awarded. The Landings Of Tampa Condo Ass n, Inc. v. Fisher, Final Order on Motion for Attorney s Fees and Costs (March 5, 2012). The 3

4 time claimed by the petitioner includes 2.39 hours that were incurred prior to Petitioner making his written request to access the Association s official records. Petitioner will not be reimbursed for this time, because it was not incurred during the arbitration proceeding. Petitioner seeks reimbursement for 6.37 hours expended by Mr. Pierre drafting the fees motion. 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, for which 1.0 hour is reasonable. The Tides At Pelican Landing Condo Ass n, Inc. v. America Street LTD, Arb. Case No , Final Order On Motion For Attorney s Fees and Costs (August 29, 2016). Therefore, 5.37 hours will be deducted from Mr. Pierre s time. After considering the above factors, the undersigned finds that the remaining time expended by Petitioner s attorney is reasonable. Therefore, Petitioner is awarded 5.12 hours at the rate of $ per hour for a total of $1, Paralegal Fees Petitioner s motion indicates that Minora Pamphile, a paralegal, worked on her case expending 2.0 hours. Petitioner seeks reimbursement for paralegal services at the rate of $ per hour. Paralegal services may be compensable as part of an attorney's charges when it is demonstrated that the paralegal performed non-clerical, meaningful legal work, the paralegal services reduced billable time of attorneys, and the rate for the paralegal services is demonstrated to be reasonable. Estes, et al. v. Lido of Pinellas Condo Ass n, Inc., Arb. Fees Case No F, Final Order on Attorney's Fees (May 31, 1995). Ms. Pamphile s affidavit attached to Petitioner s motion states that she earned bachelor s degree in political science in 2013 and a paralegal certificate in Ms. 4

5 Pamphile s affidavit further states that she spent 1.0 hour researching this matter and 1.0 hour assisting Mr. Pierre with the drafting the fees motion. A reasonable rate for a paralegal with Ms. Pamphile s experience is $75.00 an hour. Bellview Biltmore Villas-Bayshore II Condo Ass n, Inc. v. Bowes, Final Order On Motion For Attorney s Fees And Costs (December 22, 2016). Ms. Pamphile s efforts consisted of legal work. However, the 1.0 hour she spent assisting Mr. Pierre with the drafting of the fees motion will not be awarded as it appears to be duplicative of those services rendered by Mr. Pierre. Pheasant Run At Rosemont Condo Ass n, Inc. v. Bryan, Arb. Case No , Final Order Granting, In Part, Respondent s Motion For Attorney s Fees And Costs (November 30, 2012). The remaining hour is awarded at the rate of $75.00 per hour. Costs Petitioner claims costs consisting of $50.00 for the arbitration filing fee and $6.45 for the cost mailing the petition. The filing fee was a necessary cost, and therefore, is awarded. Costs for mail 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, Number Two, Inc. v. Bleau Fontaine Community Ass n, Inc., Arb. No , Final Order on Attorney s Fees (January 26, 2001). Therefore, Petitioner will not be awarded the cost of postage. Based upon the foregoing, it is ORDERED: Within thirty days of the date of this order, the Association shall pay Petitioner $1, for reimbursement of attorney s fees and costs incurred by Petitioner in the underlying case. 5

6 DONE AND ORDERED this 23 rd day of February, 2017, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida Telephone: ; 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. 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 23 rd day of February 2017: Faudlin Pierre, Esq NE 1st Ct Miami, FL Attorney for Petitioner Alice Fincher Registered Agent for: Carmel at the California Club Condominium 29 Association, Inc. 903 Northeast 199 th Street Unit 106 Miami, FL Patricia Morales 903 Northeast 199 th Street Unit 201 Miami, FL Courtesy Copy James W. Earl, Arbitrator 6