STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION GERHARD KREBS, Petitioner, Fees Case No. 2013-04-0767 v. Rel. Case No. 2013-02-2515 DUNES CLUB ASSOCIATION, INC., Respondent. / FINAL ORDER ON ATTORNEY S FEES AND COSTS On September 27, 2013, Respondent Dunes Club Association, Inc. (the Association) filed a Motion for Attorney s Fees and Costs seeking $3,277.50 in attorney s fees, $22.50 in paralegal fees and $0.00 in costs, for services rendered in Martin County, Florida. On November 4, 2013, Petitioner filed a response to the motion for attorney s fees and costs. Findings of Fact 1. This fees case arises from arbitration case number 2013-02-2515. In the underlying case, Petitioner filed a petition for arbitration on May 21, 2013, alleging that the Association was denying the members of the Association the right to vote on a construction project approved by the Board of Directors. 2. Respondent was served with the petition via certified mail on May 31, 2013. On June 19, 2013, the Association filed an answer. On July 11, 2013, a case management conference was held. On July 26, 2013, Petitioner filed a supplement to his petition. On August 16, 2013, the Association filed a response to Petitioner s
supplement. On August 28, 2013, the arbitrator entered a summary final order denying Petitioner s request for relief. Conclusions of Law 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)). Because Petitioner was denied the relief he requested in the final order, the Association is the prevailing party in this case. Therefore, the Association is entitled to recover its reasonable attorney s fees and costs. B. Attorney s Fees and Costs The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by Respondent. 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 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-80.123, Florida Administrative Code. Hourly Rate The Association seeks compensation for legal services as follows: Attorney Bar Admission Hourly Rate Jacob E. Ensor, Esq. Admitted to Florida Bar 9-21-06 $225.00 Elizabeth P. Bonan, Esq. Admitted to Florida Bar 11-04-83 $275.00 Each attorney listed above filed an affidavit attesting to the above. Below, for each attorney, are the years of experience when the first date of admission to the bar noted above 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 Years Practicing Law Jacob E. Ensor, Esq. 7 Elizabeth P. Bonan, Esq. 30 After considering the above factors, the undersigned finds that a reasonable hourly rate for Mr. Ensor is $200.00 and for Ms. Bonan is $275.00 based upon the hourly rate for an attorney with like years of experience practicing law in the same location in Florida.
Number of Hours The Association seeks reimbursement for a total of 9.8 hours of Mr. Ensor s attorney time and 3.9 hours of Ms. Bonan s time. After a careful review of the record of the underlying case and the billing records attached to the affidavit, the undersigned finds that the claim of 9.8 hours for Mr. Ensor s time is reasonable. The total amount awarded for Mr. Ensor s time is $1,969.50. The Association seeks reimbursement for 2.0 hours of Ms. Bonan s attorney time before receipt of the petition. In an arbitration proceeding where the respondent prevails, only fees incurred beginning with preparation of the answer are considered incurred in the arbitration proceeding. Colonial Club Condominium Association, Section I, Inc., v Grunberg, Arb. Case No. 00-0913, Final Order on Motion for Costs and Attorney s Fees (August 31, 2011). These hours must be deducted. The remaining claim of 1.9 hours for Ms. Bonan s time is reasonable and is awarded, for a total of $522.50. Therefore, the Association will be awarded a total of $2,492.00 for attorney s fees. C. Paralegal Fees The Association seeks reimbursement for approximately 0.3 hours of paralegal time billed at $75.00 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. Assn., Inc., Arb. Case No. 95-0421F, Final Order on Attorney's Fees (May 31, 1995). The Association did not identify the paralegal or his or her training in order to justify any hourly rate. Therefore, the Association will not be awarded paralegal
time. The Tradewinds of Volusia, Inc. v. Oropeza Holdings, Inc., Arb. Fee Case No. 2013-00-3285, Final Order on Motion for Attorney s Fees and Costs(March 7, 2013). The Association did not request reimbursement of any costs. Based on the foregoing, it is ORDERED: Within thirty (30) days of the date of this order, Petitioner, Gerhard Krebs, shall reimburse the Association for its attorney s fees and costs in the amount of $2,492.00. DONE AND ORDERED this 4 th day of December, 2013, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Section Telephone: 850-414-6867 Section Facsimile: 850-487-0870 Trial de novo This decision shall be binding on the parties unless a complaint for trial de novo is filed within 30 days in accordance with 718.1255, Fla. Stat. (2009). 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 4th day of December, 2013, to: Gerhard Krebs 245 NE MacArthur Blvd. #10 Stuart, FL 34996 Petitioner Jacob E. Ensor, Esq. P.O. Box 2401 Stuart, FL 34995 Attorney for Respondent Terri Leigh Jones, Arbitrator