STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Lizzette Reyes, Petitioner, v. Fee Case No. 2016-00-8297 Rel. Case No. 2015-04-9159 Tempo Condominium Association, Inc., Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On February 16, 2016, Lizzette Reyes (Petitioner) filed her Motion for Attorney s Fees and Costs. The motion seeks to recover attorney s fees and costs from Tempo Condominium Association, Inc. (the Association) in the total amount of $6,770.00. The Association is the legal entity responsible for the operation of Tempo Condominium located in Miami-Dade County, Florida. On February 24, 2016, an Order Permitting Response was entered. On March 1, 2016, the Association filed its Response to Petitioner s, Lizzette Reyes[ ], Motion for Attorney s Fees and Costs. On March 4, 2016, Petitioner filed her Reply to Motion for Attorney s Fees and Costs. Findings This fee case arises from arbitration case number 2015-04-9159. In the underlying case, Petitioner alleged that the Association failed to provide access timely to certain official records of the Association. On January 7, 2016, a Summary Final Order Page 1 of 6
was entered determining that Petitioner was entitled to $500.00 as damages pursuant to Section 718.111(12)(c), Florida Statutes, and to make available immediately all the official records requested by Petitioner, and at all times in the future, make available official records requested by Petitioner in accordance with the statute. Conclusions A. Prevailing Party Pursuant to section 718.1255(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). As requested in the petition, statutory damages were awarded to Petitioner. Therefore, Petitioner is determined to be the prevailing party, and is entitled to reimbursement for 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 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 Page 2 of 6
(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 1150-51. 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 1150. The factors for determining a reasonable attorney s fee set forth in Rule 4-1.5 are basically the same as the factors set forth in Rule 61B-45.048, Florida Administrative Code. 1. Hourly Rate Petitioner seeks compensation for the legal services of Michael T. Ross, Esq., at the rate of $300.00 per hour. The Florida Bar website shows that Attorney Ross was admitted to practice in Florida on September 23, 2011. Thus, Attorney Ross had been practicing in Florida for four (4) years while the underlying case was pending. After considering the above factors, the undersigned finds that the hourly rate charged is excessive. A reasonable hourly rate for an attorney with like years of experience in the practice of law is $175.00 per hour and falls within the range of fees charged in the locality for similar legal services. See, e.g., Jade Residences at Brickell Bay Condo. Ass n, Inc. v. Espejo, Arb. Fee Case No. 2010-00-1659, Final Order on Motion for Attorney s Fees (March 12, 2010); Hurtado v. Bal-Bridge South, Inc., Arb. Fee Case No. 2014-04-6312, Final Order on Attorney s Fees and Costs (Jan. 14, 2015). 2. Attorney Hours Petitioner seeks reimbursement for 22.4 hours of time expended by Attorney Ross. Not all of the hours can be awarded. Page 3 of 6
As a preliminary matter, it has always been held that with the exception of preparing the pre-arbitration demand letter required by Section 718.1255, 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 are therefore not awarded. Desy v. River Key Condo. Ass n, Inc., Arb. Case No. 93-0082F, 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). Petitioner has included in counsel s timesheets for Attorney Ross 4.7 hours that must be deducted for this reason. Stevens v. Cricket Club Condo. Assn., Inc., Arb. Fee Case No. 2005-02-6340 Final Order on Motions for Attorney s Fees (July 29, 2005). Petitioner seeks 5.5 hours for researching and drafting a response to the Association s Motion to Dismiss and a Motion for Summary Final Order, neither of which was ever filed. No time can be awarded for work on motions that are not filed. 1 Winfield Gardens South Condo. Ass n, Inc. v. Brown, Arb. Fee Case No. 2005-00-5739. Final Order on Attorney s Fees and Costs (March 9, 2005). Further, with respect to researching and drafting a Motion for Summary Final Order, such a motion is not authorized in the rules. In any event, such a motion is unnecessary, because final orders are entered routinely without such a motion. See, e.g., The Victoria Condo. Ass n of Dunedin, Inc. v. Ramquist, Arb. Fee Case No. 2013-04-6268, Final Order on Motion for Attorney s Fees and Costs (Jan. 22, 2014)(citation omitted). 1 Additionally, with respect to work on a response to the Association s Motion to Dismiss, the time for filing a response expired well before the Summary Final Order was entered. See Fla. Admin. Code R. 61B- 45.011(1). Page 4 of 6
Finally, Petitioner seeks reimbursement for time spent preparing and submitting a records request to the Association while the instant arbitration case was pending. The undersigned did not order such a records request, therefore the time expended in doing so will not be awarded. Given all of the foregoing, Petitioner will be awarded 9.4 hours of attorney time at $175.00 per hour, for a total attorney s fees award of $1,645.00. C. Costs Petitioner seeks to recover the cost of the $50.00 filing fee. The filing fee is a recoverable cost and will be awarded. Petitioner seeks to recover her pro rata share of assessments levied by the Association to fund the litigation of the instant case. Such recovery can and has been awarded, and will be awarded in the instant case. See Sherry v. Surf Dwellers Owners Ass n, Inc., Arb. Fee Case No. 2014-04-2541, Final Order on Motion for Costs (Dec. 9, 2014); Clayton v. Atlantis Sherbrook Villas East Condo. Ass n, Inc., Arb. Fee Case No. 2007-01-8221, Final Order on Motion for Attorney s Fees and Costs (Sept. 17, 2007). Accordingly, it is ORDERED: Within thirty (30) days of the date of this Final Order, the Association shall: 1. Reimburse Petitioner a grand total award of $1,695.00, which includes attorney s fees in the amount of $1,645.00 and costs in the amount of $50.00; and 2. Either: a. Reimburse Petitioner for her pro rata share of all fees and costs incurred by the Association in connection with these arbitration proceedings; or b. Not seek to recover from Petitioner through assessments or otherwise, Page 5 of 6
Petitioner s pro rata share of all fees and costs incurred by the Association in connection with these arbitration proceedings. Florida. DONE AND ORDERED this 26 th day of April, 2016, at Tallahassee, Leon County, Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Telephone: (850) 414-6867 Facsimile: (850) 487-0870 Trial de Novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, 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 26 th day of April, 2016: Michael T. Ross, Esq. Law Office of Michael T. Ross, P.A. 8950 SW 74 th Court Suite 2201 Miami, FL 33156 Attorney for Petitioner Baldy Martinez, Esq. Baldy Martinez, P.A. 1999 SW 27 Ave. 2 nd Floor Miami, FL 33145 Attorney for Respondent Glenn Lang, Arbitrator Page 6 of 6