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 VILLAGE CONDOMINIUM ASSOCIATION AT PALM BEACH, INC., Petitioner, Fee Case No v. Rel. Case No MORTON GREEN, Respondent. / NOTICE OF REASSIGNMENT OF ARBITRATOR AND FINAL ORDER ON ATTORNEY S FEES AND COSTS The undersigned hereby gives notice that this case has been reassigned. Therefore, all future pleadings and other communications should be directed to the attention of the undersigned. On May 16, 2016, Petitioner, Village Condominium Association at Palm Beach, Inc. (the Association), located in Palm Beach County, Florida, filed a motion to recover attorney s fees and costs. An Order Permitting Response was entered on May 17, An Order requiring the Association to file an amended motion was entered on August 29, On September 12, 2016, the Association filed an Amended Motion for Prevailing Party Attorneys Fees and Costs with a Notice of Filing Affidavits in Support of Petitioner s Amended Motion for Prevailing Party Attorney s Fees and Costs. The Association seeks to recover $17, in attorney s fees and $5, in costs. Page 1 of 13

2 As of the date of entry of this Final Order, Respondent Morton Green has filed no response to the Association s original or amended motions. This Final Order is entered accordingly. Procedural History of Underlying Case On June 1, 2015, Village Condominium Association at Palm Beach, lnc. filed a petition for non-binding arbitration naming Morton Green as Respondent. An Order Requiring Answer was entered on June 10, A default was inadvertently entered against Respondent on July 13, The default was vacated on July 27, 2015, after it was discovered that Respondent had filed an answer to the petition on June 22, 2015, which had not been placed in the file. The petition alleged that Respondent owns a unit in the condominium and that Respondent was hoarding large amounts of food in the unit and on the back patio. The petition also alleged that Respondent s food hoarding was causing or contributing to a rat infestation throughout the condominium building. Respondent, who represented himself pro se in the matter, filed an Answer to the petition, describing the actions he had taken in January and February of 2015 to remediate the conditions in his unit. A case management conference was held on August 10, On August 12, 2015, an Order was entered requiring Respondent to allow the Association access to the unit to determine if the allegedly unsanitary and hazardous conditions had been remediated. The Association filed a Stipulation for Substitution of Counsel on August 28, 2015, and a Status Report on August 31, The Status Report indicated that Respondent had made some ongoing efforts to correct the unsanitary conditions in the Unit, but that copious amounts of food still remained Page 2 of 13

3 and presented health and safety concerns for the condominium building and its occupants. Respondent filed nothing to rebut the content of the Status Report. The Association was directed to file a second Status Report by December 17, 2015, indicating whether the matter had been rendered moot. The Association filed a Status Report on December 21, 2015, stating that on December 14, 2015, representatives of the Association had been given access to the Unit by Respondent to inspect its condition. According to the Status Report, conditions in the unit remained unabated and Respondent refused to permit or facilitate access to the attic (which was blocked by piles of accumulated items) to inspect for a rodent infestation. Respondent filed nothing to rebut the content of the Status Report. On February 12, 2016, a Notice of Reassignment of Arbitrator and Order Requiring Filing were entered. On February 22, 2016, Respondent filed a response to the Order. On February 29, 2016, the Association filed a Motion for Summary Disposition. On March 1, 2016, the Association filed a motion for clarification of the Order entered on February 12, On March 3, 2016, the Association filed an affidavit in support of its Motion for Summary Disposition. On March 9, 2016, a Second Order Requiring Filing was entered. On March 23, 2016, the Association filed a Motion for Summary Disposition. On March 31, 2016, a Summary Final Order was entered granting the Association its 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 Page 3 of 13

4 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 the Summary Final Order, the Association was granted the relief it sought in the petition; therefore, the Association is the prevailing party in this case. Consequently, the Association will be awarded its reasonable fees and costs pursuant to the statute and Rule 61B , Florida Administrative Code. The only remaining issue to be decided by the arbitrator is the reasonableness of the attorney s fees and costs claimed by the Association. Attorney s Fees and Costs 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 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 R. Regulating Fla. Bar 4-1.5, [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. Page 4 of 13

5 1. Hourly Rate The Association seeks to recover $7, for legal services provided by the law firm of Kay Bender Rembaum, PLLC. Affidavits provided by counsel state that these services were provided by three attorneys, in the amounts of: $4, for 19.2 hours of the legal services of Jonathon J. Rohacek, Esquire, at the rate of $ per hour; $2, for 7.0 hours of the legal services of Gerard S. Collins, Esquire, at the rate of $ per hour and 1.4 hours of the legal services of Attorney Collins at the rate of $ per hour; and $ for 1.6 hours of the legal services of Jeffrey A. Rembaum, Esquire, at the rate of $ per hour. Additionally, the Association seeks to recover $10, for legal services provided by the Association s former law firm, Becker and Poliakoff, P.A. An affidavit provided by counsel states that these services were provided by Marilyn J. Perez- Martinez, Esquire, and by a paralegal named Sharon Ludovico. The affidavit of counsel states that Attorney Perez-Martinez provided 28.3 hours of legal services at the rate of $ per hour and 4.9 hours at $ per hour. The Association submitted for review affidavits from counsel that explain the amount of attorney s fees and costs sought. Attorney Rohacek had been licensed to practice law in the State of Florida for approximately one (1) year at the time his services were rendered in this case. After considering the above factors, the undersigned finds that a rate of $ per hour is reasonable for a lawyer with approximately 1 year of experience. See, e.g., Steinmauer Fund V, LLC v. West View Villas Condo. Ass n, Inc., Arb. Fee Case No , Final Order on Attorney s Fees and Costs (August 18, 2016). Page 5 of 13

6 Attorney Collins had been licensed to practice law in the State of Florida for approximately ten (10) years at the time his services were rendered in this case, but had also been admitted to practice law in the States of Connecticut and Massachusetts since 1997, for a total of about eighteen (18) years. Attorney Rembaum had been licensed to practice law in the State of Florida for approximately twenty (20) years at the time his services were rendered in this case. Attorney Perez-Martinez had been licensed to practice law in the State of Florida for approximately fourteen (14) years at the time her services were rendered in this case. After considering the above factors, the undersigned finds that a rate of $ per hour is reasonable for a lawyer with approximately years of experience. See, e.g., Cypress Reach at Palm Aire One Condo. Ass n, Inc. v. Saccoccio, Arb. Fee Case No , Final Order on Attorney s Fees and Costs (September 30, 2016); The Tides at Pelican Landing Condo. Ass n, Inc. v. America Street Ltd., Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (August 29, 2016). Therefore, the rate of $ per hour will be applied to work performed by Attorneys Collins, Rembaum, and Perez-Martinez. 2. Number of Hours The affidavits and timesheets reflect that the Association seeks reimbursement for a total of 62.4 hours of legal services in this case. Not all of these hours can be awarded. The timesheets reflect that Attorney Rohacek expended 19.2 hours on this case. Not all of these hours can be awarded. The timesheets reflect that between December 31, 2015, and March 4, 2016, Page 6 of 13

7 Attorney Rohacek expended 8.90 hours preparing two motions for summary disposition. Rule 61B , Florida Administrative Code, provides that any dispute which does not involve a disputed issue of material fact as shown by the answer, prehearing stipulation, or otherwise, shall be disposed of by summary final order. The rule contains no provision for motions for summary disposition. Additionally, in an Order Requiring Filing entered on February 12, 2016, the arbitrator had directed the Association to simply file a specific statement clarifying the relief it was requesting. Therefore, the Association will not be awarded for the 8.90 hours expended on the unnecessary endeavor of preparing two motions for summary disposition. According to Attorney Rohacek s timesheets, he spent 5.90 hours after the entry of the Summary Final Order. Prior arbitration case law generally limits reimbursement after the final order to 1.0 hour for the preparation of the motion and affidavits for attorney s fees and costs. Jade Residences at Brickell Bay Condominium Association, Inc. v. Miguel Espejo, Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (March 12, 2010). The Association will be awarded 1.0 hour for time spent preparing the motion for fees and costs but will not be awarded for the remaining 4.90 hours claimed after the entry of the final order of dismissal. The Association will, therefore, be awarded for a total of 5.4 hours at the rate of $ per hour for the services of Attorney Rohacek. The timesheets reflect that Attorney Collins expended 8.4 hours on this case. Not all of these hours can be awarded. First, the timesheet submitted by Attorney Collins reflects that between August 18 and 30, 2015, he spent 3.9 hours acquainting himself with the case after receiving it from the law firm of Becker and Poliakoff, P.A. Page 7 of 13

8 Where an association decides to change law firms while a case is ongoing, the costs associated with bringing the new law firm up to speed on the case are more appropriately borne by the client, and these hours will be deducted. Further, on August 31, 2015, January 6, 2016, March 22, 2016, and April 19, 2016, the timesheet lists activities that are duplicative of work performed by Attorney Rohacek during the same time period. For this reason, 1.6 hours expended on duplicate activities will be deducted. The remaining 2.9 hours are reasonable and will be awarded at the rate of $ per hour. The timesheets reflect that Attorney Rembaum expended 1.6 hours on this case. The hours are reasonable and will be awarded at the rate of $ per hour, for a total of $ The timesheets reflect that Attorney Perez-Martinez expended hours on this case. Not all of these hours can be awarded. The timesheets of Attorney Perez-Martinez indicate that hours were expended prior to the filing of the petition for arbitration. The timesheets utilize a block billing method where numerous activities are aggregated together and the time allocated to each individual activity is not recorded. It is impossible to determine from the timesheet how much time was allocated to drafting the petition for arbitration and the pre-arbitration notice letter. One method for addressing the recovery of attorney s fees when block billing has been utilized is to simply count the number of tasks listed in a particular entry and assume an equal amount of time was devoted to each task. Another method is to estimate the amount of time it would take an experienced attorney who specializes in community association law to draft a single-issue petition dealing with a fairly common Page 8 of 13

9 violation of a condominium s governing documents. The undersigned will use the second method. 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. Desy v. River Key Condominium Association, 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). Therefore, a one (1) hour will be awarded for drafting the pre-arbitration notice letter and four (4) hours will be awarded for drafting and filing the petition for arbitration. The remaining pre-petition hours will be deducted. Of the remaining hours expended by Attorney Perez-Martinez, the timesheet entries for June 6, 10, 16, and 18; July 2, 3, 7, 8, and 31; and August 3, 11, and 13, 2015, list activities that do not appear directly linked to furtherance of the arbitration case. 1 Counsel for the Association probably expended time pursuing any and all potential remedies for the problem of hoarding within the condominium. However, only those hours directly expended on the arbitration case can be awarded. The Preserve at Lansbrook Ass n, Inc. v. Barrett, Arb. Fee Case No , Final Order on Motion to Tax Attorney s Fees and Costs (June 13, 2014). Therefore, 1 A few examples are: analysis of demand from Lacki s attorney, Greg Scott.analysis of correspondence from Sandra Durso, owner. analysis of correspondence from Greg Scott, counsel for Lacki.analysis of correspondence from Sherman Langer, Association, regarding disclosure of information.receipt and analysis of facsimile from Florida Department of Children and Families regarding an investigation involving Morton Green.conference with Greg Patient, Adult Protective Investigator with DCF regarding Morton Green. Page 9 of 13

10 eight (8) hours will be deducted because these entries do not describe activities that are directly related to the arbitration case. The remaining hours are reasonable and will be awarded at the rate of $ per hour for the services of Attorney Perez- Martinez. In total, the Association will be awarded for hours at the rate of $ per hour for the services of Attorneys Collins, Rembaum, and Perez-Martinez, and 5.40 hours at the rate of $ per hour for the services of Attorney Rohacek. The Association will be awarded the total sum of $4, for attorney s fees. 3. Costs The affidavit of Jonathon J. Rohacek, Esquire, lists costs in the amounts of $5, for Pest Control and $51.00 for Facsimile Fees. The affidavit of Marilyn J. Perez-Martinez, Esquire, lists costs in the amount of $ for Legal Research, Copying Fees, and Postage Fees. None of the costs presented by either attorney are recoverable. The Summary Final Order issued on March 31, 2016, already addressed the costs of pest control services and this is not recoverable in an action to recover attorney s fees and legal costs. Costs for postage, facsimile transmissions, and messenger services are not recoverable, as they are routine overhead expenses that should be incorporated into the attorney's hourly rate. See, e.g., Savoy Owners Ass n, Inc., v. Candan, Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (April 21, 2010); 610 Island Way Condo. Ass n, Inc. v. Nelson, Arb. Fee Case No , Final Order Awarding Attorney s Fees and Costs (May 14, 2002); Mitchell v. Osceola Farms Page 10 of 13

11 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 facsimile and postage costs. Costs of copies of documents filed with the court which are reasonably necessary to assist the court in reaching a conclusion are awardable. However, the Association has not identified the copies as being filed with the Division and, therefore, will not be reimbursed for the copies. See Statewide Uniform Guidelines for the Taxation of Costs in Civil Actions. Thus, the Association will not be awarded copying costs. One of the timesheets attached to the affidavit of Marilyn J. Perez-Martinez, Esquire, lists under current costs Computerized Legal Research Westlaw. Prior arbitration cases have held that online research tools such as Lexis and Westlaw are ordinary overhead expenses that are not recoverable. See, e.g., The Oasis at Naples Condo. Ass n, Inc. v. Carter, Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (November 6, 2014); Moriarty v. Glades Golf & Country Club, Inc., Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (February 10, 2014). Thus, the Association will not be awarded costs for using Westlaw. C. Paralegal Fees The Association seeks reimbursement in the amount of $ for 5.6 hours of services performed by a paralegal at $ per hour. Legal assistant/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, and reduced billable time of attorneys, and the rate for the paralegal services is demonstrated to be Page 11 of 13

12 reasonable. Fiore at The Gardens Condo. v. Andersson, Arb. Case Nos and , Final Order on Attorney s Fees and Costs (March 15, 2012)(citing Estes v. Lido of Pinellas Condo. Ass n., Inc., Arb. Fee Case No F, Final Order on Attorney's Fees (May 31, 1995)). The Association did identify the paralegal by name, but provided no information about her training, experience, or other credentials in order to justify the hourly rate of $ Therefore, the Association will not be awarded paralegal time. See, e.g., Aaronian, III v. Coral Ridge East Condo. Ass n, Inc., Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (July 8, 2014); The Tradewinds of Volusia, Inc. v. Oropeza Holdings, Inc., Arb. Fee Case No , Final Order on Motion for Attorney's Fees and Costs (March 7, 2013). Based on the foregoing, it is ORDERED: Respondent, Morton Green, shall, within 30 days of the date of this Order, pay to Petitioner, Village Condominium Association at Palm Beach, Inc., the amount of $4, for attorney s fees. DONE AND ORDERED this 14 th day of November, 2016, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida Telephone (850) Facsimile (850) Page 12 of 13

13 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 14 th day of November, Jonathon J. Rohacek, Esq. Kaye Bender Rembaum, P.S Park Central Blvd. South Pompano Beach, FL Attorney for Petitioner Morton Green 145 Lake Nancy Lane, Unit 232 West Palm Beach, FL Respondent Leslie O. Anderson-Adams, Arbitrator Page 13 of 13