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 JUNO BEACH CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Fee Case No Rel. Case No PHILLIP ABOOD, Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On April 15, 2010, Juno Beach Bay Condominium Association, Inc. (Association), the legal entity responsible for the operation of the Juno Beach Condominium located in Palm Beach County, Florida, moved for an award of $33, in attorney s fees, $ in paralegal fees and $1, in costs for a total of $34, On May 10, 2010, an Order Requiring Amended Motion for Award of Attorney s Fees and Costs was entered. On May 20, 2010, the Association filed an Amended Motion to Tax Costs and Attorney s Fees without attachments and a motion for an extension of time to file the attachments. The motion for extension of time was granted. By order entered May 26, 2010, Phillip Abood (Respondent) was directed to file a response within twenty (20) days of the date of the order. To date, Respondent has not filed a response. This order is entered accordingly. 1

2 Facts This fees case arises from arbitration case number On February 5, 2010, an Order Striking Respondent s Answer and Entering Default and Final Order on Default was entered in the underlying case. The final order granted the Association its requested relief - Respondent must comply with the Declaration by having his Unit occupied by at least one (1) person who has attained the age of 55 years. On February 9, 2010, four days after the final order was entered, Respondent filed a Motion for Immediate Dismissal. On February 10, 2010, a Notice of Communication and Order was entered treating Respondent s motion as a motion for rehearing pursuant to Rule 61B , Fla. Admin. Code, and permitting the Association to respond to Respondent s motion. Respondent s motion stated that Respondent had quitclaimed the unit to Ghattis Aouad on January 7, 2010; the motion was accompanied by a recorded quitclaim deed showing the transfer. On February 22, 2010, the Association filed a Response to Motion for Rehearing and Alternatively, Motion for Entitlement to Attorney s Fees and Costs. On March 4, 2010, an Order Granting Respondent s Motion for Rehearing and Entering Final Order of Dismissal as Moot was entered. The Order vacated the February 5, 2010 Order and dismissed the case as moot. 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 2

3 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)). Where the underlying case is rendered moot due to the respondent s compliance, the petitioner is presumed to be the prevailing party for the purpose of awarding costs and attorney s fees if the respondent s compliance was motivated by the filing and receipt of the petition. Rule 61B (7), Florida Administrative Code. See The Diplomat Apartment Association v. Johnson, Arb. Case No , Final Order on Attorney s Fees and Costs( May 23, 2006) see also Bermuda Cays Condo. Ass n, Inc. v. Baker, Arb. Case No , Final Order on Attorney s Fees (March 12, 1999), Boca Terrace Condo. Ass n., Inc. v. Grecco, Arb. Case No , Final Order on Attorney s Fees (September 14, 1998). In 51 Island Way Condo. Ass n, Inc. v. Williams, 458 So. 2d 364 (Fla. 2d DCA 1984), the Willliams sold to a third party a one-third interest in the unit. The Association filed suit complaining that the Williams did not comply with the declaration of condominium procedurally and substantively in making the conveyance. Immediately before the bench trial was to begin, the Williams moved to dismiss the case as moot because the third party reconveyed their interest by quitclaim deed back to the Williams. The trial court dismissed the case as moot by the Williams voluntary actions. The trial court also directed that each party bear the expense of its attorney s fees and costs. On appeal the Association sought attorney s fees as the prevailing party pursuant to sections and , Fla Stat. (1981) and the declaration of condominium, arguing that the Williams conduct necessitated the lawsuit and that their 3

4 eleventh hour voluntary reconveyance was a tacit acknowledgement that the association s position would have prevailed at trial. The Williams argued that the reconveyance was not an admission that the association was correct. The District Court of Appeal ruled: Id. at 366. The association herein was compelled to bring suit for relief, prepare for trial, and had to participate up to the point of engaging in litigation. Appellees had maintained certain affirmative defenses and a counterclaim for a period of almost a year. Rather than act on an earlier date, they made their oral motion of dismissal on the day of trial, evincing their deliberate choice not to contest the association's position. One clear result of their timing was to seek to avoid the possible imposition of the association's costs and attorney's fees. Yet, in essence, the association had prevailed because the effect of appellees' reconveyance was to accede to the association's request for relief. Thus, we hold that the association was entitled to attorney's fees under the applicable statute and declaration provision. The district court of appeal in 51 Island Way distinguished the case of Del Valle v. Biltmore II Condo. Ass n, Inc. 411 So. 2d 1356 (Fla. 3d DCA 1982), relied on by the trial court. In Del Valle, the Association filed suit claiming the unit owner violated the declaration provision prohibiting a child under 12 years of age from permanently residing in the condominium. During the trial, the unit owner moved to dismiss the case as moot, because the child already had moved from the unit. The trial court granted the dismissal and awarded attorney s fees to the association. The Third District Court of Appeal reversed, finding that neither party prevailed. The third district, relying on evidence before the trial court that the child moved because of the separation of the parents rather than because of the lawsuit, found that the dismissal for mootness was not related to the merits of the case, and if the unit owner had the opportunity to litigate 4

5 his defense, the unit owner could well have prevailed. Distinguishing the holding in Del Valle, the district court in 51 Island Way said, Unlike Del Valle, there is nothing in this record which suggests that appellees' motion to dismiss was not related to the merits of this case. The case was rendered moot by a volitional act of the appellees, rather than a circumstance beyond their control. By transferring their condominium interest, appellees avoided challenging the association's position but provided the relief it sought. The case at hand is analogous to 51 Island Way and not to Del Valle. Like 51 Island Way, when the final hearing was fast approaching and Respondent was required to respond to discovery, Respondent quitclaimed the unit to another. Then, rather than notifying the Association and the arbitrator immediately when the unit had been quitclaimed, Respondent waited more than a month. Indeed, it was only after the original final order was entered that Respondent moved for a dismissal on the basis that title to the unit had been conveyed. Respondent has filed nothing to rebut the presumption under the arbitration rule and cases cited above that Respondent s compliance was motivated by the filing and receipt of the petition, therefore the Association is the prevailing party. Like 51 Island Way, this arbitration case was rendered moot by the volitional act of Respondent rather than a circumstance beyond Respondent s control, and by transferring the unit, Respondent has avoided challenging the Association s position but provided the relief sought. Further, there is arbitration precedent in support of finding the Association is the prevailing party and entitled to attorney s fees and costs in the case at hand. In Jamestown Condo. Ass n, Inc. v. Brackett, Arb. Fee Case No , Final 5

6 Order on Motion for Attorney s Fees and Costs (Sept. 13, 2004), the arbitrator, citing 51 Island Way, found the association was the prevailing party and awarded attorney s fees and costs to the Association, even though the respondent sold the unit thereby curing the alleged violation. The arbitrator determined there was no showing that the sale of the respondent s unit was unrelated to the arbitration proceeding. Accord The Verandas on the Gulf Condo. Ass n, Inc. v. Rudz, Arb. Fee Case No , Final Order on Motion for Costs and Attorney s Fees (April 22, 2005); The Waverly at South Beach Condo. Ass n, Inc. v. McCarthy, Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (April 18, 2006). B. Attorney s Fees and Costs 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 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 6

7 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 legal services as follows: Attorney Years Practicing Law in Hourly Rate Florida John R. Sheppard, Esq $ Mark G. Keegan, Esq $ Brian M. Becher, Esq $ Chris A. Draper, Esq $ Mark J. Stempler, Esq. 1 4 $ Jay Steven Levine, Esq $ $ $ Christopher A. Sajdera, Esq $ $ Jonathan S. Morris, Esq $ $ Brennan E. Grogan, Esq. 2 Less than 1 year [9 months] $ Each attorney listed above filed an affidavit attesting to the above. Below, for each attorney, are the years of experience when the date of admission as shown on the Florida Bar website is used to calculate the number of years of experience for each attorney during the period when the underlying case was pending and the particular attorney last worked on the case: Attorney Date of Admission to Florida Bar Years Practicing Law in Florida When Attorney Last Worked on Case John R. Sheppard, Esq. Oct Mark G. Keegan, Esq. Sept Brian M. Becher, Esq. Jan Attorney with the law firm of Becker & Poliakoff, P.A. The firm represented the Association from April 24, 2007 until April 14, Attorney with the law firm of Jay Steven Levine Law Group. The firm represented the Association from April 14, 2009 to the present. 7

8 Attorney Date of Admission to Florida Bar Years Practicing Law in Florida When Attorney Last Worked on Case Chris A. Draper, Esq. Feb Mark J. Stempler, Esq. Sept Jay Steven Levine, Esq. Nov Christopher A. Sajdera, Esq. Sept Jonathan S. Morris, Esq. April Brennan E. Grogan, Esq. Sept Less than 1 year With the exception of the $ hourly rate charged by Mr. Sheppard, which is found to be reasonable, the hourly rates charged are excessive. After considering the above factors, the undersigned finds that no more than the following is a reasonable hourly rate for each attorney based upon the hourly rate for an attorney with like years of experience practicing law in the same location in Florida: Brennan E. Grogan $150.00/hr.; Jonathan S. Morris $150.00/hr; Mark J. Stempler $175.00/hr.; Christopher A. Sajdera $175.00/hr.; Mark G. Keegan $185.00/hr.; Brian M. Becher $185.00/hr.; Chris A. Draper $200.00/hr.; and Jay Steven Levine $275.00/hr. 2. Number of Hours The table below shows the hours expended by each attorney as stated in each attorney s affidavit: Attorney Number of Hours Attested to by Attorney Affidavit John R. Sheppard, Esq. 2.8 Mark G. Keegan, Esq Brian M. Becher, Esq. 1.6 Chris A. Draper, Esq. 1.2 Mark J. Stempler, Esq Jay Steven Levine, Esq. Christopher A. Sajdera, Esq. 8 $250.00/hr. $260.00/hr. $280.00/hr. $225.00/hr. $245.00/hr. Total of hours

9 Attorney Number of Hours Attested to by Attorney Affidavit Jonathan S. Morris, Esq. 2.6 Brennan E. Grogan, Esq. 1.6 TOTAL Respondent vigorously defended his position. A final hearing was twice scheduled in this case entailing the necessary preparation, only to have Respondent move in another direction. 3 While the Association s attorneys worked diligently on this case and were faced with a vigorous defense and some novel issues, not all of the hours can be awarded. Attorney time expended in addressing matters not in arbitration will not be awarded, including time spent in addressing the Fair Housing complaint, during which time the arbitration case was administratively closed, and time spent in counsel s withdrawal from representation of the Association in the arbitration case. 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). Attorney time will not be awarded where the time entry does not identify specifically the relationship of the activity to the case. Attorney time also will not be awarded for duplicate efforts. Time spent in non-legal research will be awarded at a reduced hourly rate of $ Therefore, the following will be awarded for attorney s fees: Attorney Number of Hours Attorney Hourly Rate Amount John R. Sheppard, Esq. 2.8 $ $ Mark G. Keegan, Esq $ $4, After preparation for the first scheduled final hearing, Respondent filed a Fair Housing complaint which was unsuccessful. With respect to the second, Respondent refused to respond to reasonable discovery. 9

10 Attorney Number of Hours Attorney Hourly Rate Amount Brian M. Becher, Esq. 1.6 $ $ Chris A. Draper, Esq. 0.0 $ Mark J. Stempler, Esq $ $2, Jay Steven Levine, Esq $250.00/hr. $260.00/hr. $275.00/hr. $ $ $ Christopher A. Sajdera, Esq $ $9,446.75* Jonathan S. Morris, Esq $ $288.00* Brennan E. Grogan, Esq. 1.6 $ $ TOTAL $19, *Includes research hours calculated at the reduced rate of $85.00/hr., therefore simple multiplication of Number of Hours by Attorney Hourly Rate in the table will not equal Amount. 3. Paralegals Fees for the work of paralegals cannot be awarded where the motion for attorney s fees and costs failed to identify the paralegal in its billing records 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). Further, all of the paralegal time was expended in telephone calls scheduling meetings. The Association cannot recover for time expended by paralegals in such activities. See Winnfeld Gardens South Condo. Ass n, Inc. v. Brown, Arb. Case no , Final Order on Attorney s Fees and Costs (March 9, 2005); Loveland v. Harbor Towers and Marina Condo Ass n., Inc. Arb. Case No Costs The Association seeks recovery of the $50.00 filing fee. The filing fee is necessary expense and will be awarded. 10

11 The Association also seeks recovery of the cost of the following: postage, facsimile charges, charges for document delivery services and long distance telephone calls. These costs 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) ); Mitchell v. Osceola Farms Co., 574 So. 2d 1162 (Fla. 4th DCA 1991); Griffith v. Griffith, 941 So.2d 1285 (Fla. 4th DCA 2006). 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. 4 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 its copies. Based on the foregoing, it is ORDERED: Within thirty (30) days of the date of this order, Respondent shall reimburse the Association s attorney s fees and costs in the amount of $19, DONE AND ORDERED this 21 st day of July, 2010, at Tallahassee, Leon County, 11

12 Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: (850) Facsimile: (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 was mailed by U.S. mail, postage prepaid, this 21 st day of July, 2010, to: Jay Steven Levine, Esq. Christopher A. Sajdera, Esq. JAY STEVEN LEVINE LAW GROUP 2500 North Military Trail, Suite 283 Boca Raton, FL Phillip Abood c/o Build Masters, LC 1757 Banks Road Margate, FL Phillip Abood U.S. Highway One Unit 39 Juno Beach, FL Glenn Lang, Arbitrator 4 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. 12