STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION OCEAN BAY CLUB CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Fee Case No. 2013-04-6770 Rel. Case No. 2013-03-7584 GREGORY L. VAN DER VEER, WILLIAM DESILVIO and VICTORIA DESILVIO Respondents. / FINAL ORDER ON MOTION FOR PREVAILING PARTY ATTORNEY S FEES COSTS On November 13, 2013, Ocean Bay Club Condominium Association, Inc. (the Association) located in Broward County, Florida moved for an award of $3,240.00 in attorney s fees and $64.56 in costs. By order dated November 11, 2013, Respondents were directed to file a response to the Association s motion within 20 days of the date of the order. On December 9, 2013, Gregor L. Van Der Veer filed a response. As of the date of this order, neither William DeSilvio nor Victoria DeSilvio has filed a response. This fees case arises from arbitration case 2013-03-7584. In the underlying case, the Association filed a petition alleging that Gregory L Van Der Veer owns unit 55 at the condominium which is occupied by tenants William DeSilvio and Victoria DeSilvio. The petition further alleged that the DeSilvios were keeping a motorbike at the unit in violation of section 8 of article XII of the Declaration of Condominium of Ocean Bay Club, a Condominium. By order dated October 24, 2013, the underlying case was Page 1 of 7
dismissed as moot after the Association confirmed that the motorbike at issue had been removed. 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)). 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. Fla. Admin. Code R. 61B-45.048(7). See The Diplomat Apartment Association v. Johnson, Arb. Case No. 2006-01-5487, Final Order on Attorney s Fees and Costs( May 23, 2006)(when the respondent provides the relief requested after receipt of the petition, resulting in the petition being dismissed as moot, Rule 61B-45.048(7), Fla. Admin. Code, creates a rebuttable presumption that the petitioner is the prevailing party). see also Bermuda Cays Condo. Ass n., Inc. v. Baker, Arb. Case No. 99-0074, Final Order on Attorney s Fees (March 12, 1999); Boca Terrace Condo. Ass n., Inc. v. Grecco, Arb. Case No. 98-4374, Final Order on Attorney s Fees (September 14, 1998). The Association alleges that Respondents removed the motorbike at issue after receipt of the petition. Respondents do not deny the allegation. This creates a Page 2 of 7
rebuttable presumption that the Association is the prevailing party. Because Respondents have not rebutted the presumption, the Association is deemed the prevailing party, and entitled to recover its reasonable attorney s fees and costs. The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by the association. 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-45.048, Florida Administrative Code. Attorney s Fees The Association seeks reimbursement for the legal services of Kerstin Henze, Esq., Gerard S. Collins, Esq. and Evelyn M. Greenstone, Esq. For each attorney, the requested hourly rate and number of years of experience at the time the underlying case was pending are as follows: Page 3 of 7
Attorney Hourly Rate Admitted to Fla. Bar Years of Experience Kerstin Henze $200.00 9/26/08 5 Gerard S. Collins $250.00 7/9/2004 9 Evelyn M. Greenstone $200.00 7/27/07 6 The requested hourly rates are excessive. After considering the above factors, reasonable hourly rates are as follows: Attorney Reasonable Hourly Rate 1 Kerstin Henz $175.00 Gerard S. Collins $225.00 Evelyn M. Greenstone $200.00 Attorney Time The Association seeks reimbursement for 2.30 hours of legal services by Kerstin Henz, Esq. 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). All of Ms. Henz s hours were incurred prior to the drafting the petition. However, her timesheet indicates that she spent one hour 1 Sunrise Lakes Condo. Apts., Phase 3, Inc. 2. V. Rollins, Final Order on Attorney s Fees and Costs (August 2, 2013). Page 4 of 7
preparing the Association s demand letter. Therefore, the Association will be awarded one hour at the rate of $175.00 per hour totaling $175.00. The Association seeks reimbursement for 1.20 hours of legal services by Gerald S. Collins, Esq. Mr. Collins timesheet includes 0.30 hours that must be deducted because the activity occurred prior to the drafting of the petition. Additionally, the Association will not be awarded 0.30 hours incurred on October 17, 2013, for Mr. Collins receipt of and review of notice of communication and order to show cause because such activities duplicate the activities claimed by Ms. Greenstone on the same date. The remaining time claimed for Mr. Collins efforts is reasonable, and the Association is awarded 0.6 hours at the rate of $225.00 per hour totaling $135.00. The association also seeks reimbursement for the 12.40 hours of legal services by Evelyn M. Greenstone, Esq. The Association will not be awarded 2.2 hours that were incurred prior to the drafting of the petition. Additionally, the Association will not be awarded 0.20 hours incurred on September 18, 2013, described in Ms. Greenstone s timesheet as Telephone call from attorney Tom Cubit Re: Greg Vanderveer s [sic] independent eviction action, because it is not clear how this activity relates to the underlying case. Finally, Ms. Greenstone s timesheet includes at least 3.1 hours for the review and preparation of the Association s motion for attorney s fees and costs and the related attorney affidavits. This amount of time is excessive and will be reduced by 2.1 hours. The remaining time claimed for Ms. Greenstone s efforts is reasonable, and the Association is awarded 8.1 hours at the rate of $200.00 per hour totaling $1,620.00. Page 5 of 7
Costs The Association seeks to recover $64.56 in costs consisting of $50.00 for the arbitration filing fee, $3.56 for a certified letter to Gregory L. Van Der Veer and $4.00 for a facsimile sent to the arbitrator. The filing fee is a necessary cost and awarded. However, the costs for the certified mail and facsimiles 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. 01-2223, Final Order on Attorney s Fees (January 26, 2001). Based upon the foregoing, it is ORDERED: Within thirty (30) days of the date this order, Respondents shall pay the Association $1,980.00 for reimbursement of attorney s fees and costs incurred by the Association in the underlying case. DONE AND ORDERED this 15 th day of January, 2014, at Tallahassee, Leon County, Florida. James W. Earl, 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 Page 6 of 7
Right To 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 to the following persons on this 15 th day of January, 2014: Evelyn M. Greenstone, Esq. Kaye Bender Rembaum, P.L. 1200 Park Central Boulevard South Pompano Beach, FL 33064 Attorney for Petitioner Gregory Van Der Veer 3170 North Federal Highway Unit# 100 Lighthouse Point, FL 33064 Respondent William DeSilvio 5555 North Ocean Boulevard Unit# 55 Lauderdale By The Sea, FL 33308 Respondent Victoria DeSilvio 5555 North Ocean Boulevard Unit# 55 Lauderdale By The Sea, FL 33308 Respondent James W. Earl, Arbitrator Page 7 of 7