STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION VILLAGE OF PEPPERTREE CONDOMINIUM III ASSOCIATION, INC., Petitioner, Fees Case No. 2013-03-6282 v. Rel. Case No. 2013-02-2192 RUTH WEINBERG and HOWARD WEINBERG, Respondents. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On August 29, 2013, the Village of Peppertree Condominium III Association, Inc. (the Association), the legal entity responsible for the operation of Village of Peppertree Condominium III, located in Palm Beach County, Florida, moved for an award of $2,852.50 in attorney s fees and costs. By Order entered on September 6, 2013, Respondents Ruth Weinberg and Howard Weinberg were directed to file a response within twenty (20) days of the date of the Order. As of the date of this Final Order, Respondents have not filed any response or communication. This Final Order is entered accordingly. Findings This fees case arises from arbitration case number 2013-02-2192. In the underlying case, the Association filed a petition on May 20, 2013, alleging that Respondents, in violation of the Association s governing documents, failed to provide the Association with a key to their unit. The relief requested in the petition was an Order requiring Respondents to provide the Association with a key to their unit. On May 24, 1
2013, the arbitrator entered an Order Requiring Answer. Because the Order Requiring Answer and the enclosures were not successfully served on Respondents by certified mail, the arbitrator, on June 17, 2013, entered an Order Requiring Service by Petitioner. The Association subsequently filed affidavits demonstrating that Respondents were dulyserved in Munster, Indiana on June 28, 2013. Respondents did not file an answer, motion, or other communication with the office of the arbitrator. For Respondents failure to comply with the Order Requiring Answer and the arbitration rules of procedure, an order of default was entered against Respondents on July 25, 2013. On August 7, 2013, the Association filed a Suggestion of Mootness stating that, in response to the filing and service of the petition herein, Respondents had delivered a key to their unit to the Association. Therefore, the Association stated that the dispute was moot. Accordingly, on August 19, 2013, the arbitrator entered a Final Order of Dismissal, dismissing the underlying case as moot. 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)). In cases where there is no decision on the merits, such as in cases where a voluntary dismissal is entered, or cases that become moot, the prevailing party is determined by looking at the 2
facts of the case, particularly the timing of the event that caused the case to be dismissed. The Laurels at Margate Condominium Association, Inc., v. Slonecky, Final Order on Motion for Attorney s Fees, Arb. Case No. 93-0039F (July 28, 1994). Respondents provided the Association with a key to their unit only after the petition was filed and a copy of the petition and the Order Requiring Answer were served on them. The arbitrator finds that Respondents compliance with the Association s governing documents was motivated by the filing and receipt of the petition. As the underlying case was rendered moot due to Respondents compliance with the relief sought in the petition, the Association is presumed to be the prevailing party for the purpose of awarding costs and attorney s fees. Fla. Admin. Code R. 61B-45.048(7). Consequently, the Association will be awarded its reasonable fees and costs pursuant to Section 718.1255(4)(k), Florida Statutes, and Rule 61B-45.048, Florida Administrative Code. B. Attorney s Fees 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 3
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 Two different attorneys and one paralegal worked on this case. First, the Association has provided an affidavit of Karl M. Scheuerman, Esq. that explains the amount of attorney s fees and costs sought. The Association seeks compensation for the legal services of Attorney Scheuerman at the rate of $275.00 per hour. Attorney Scheuerman had been practicing law in Florida since 1983, i.e., 30 years, while the case was pending. 1 After considering the above factors, the undersigned finds the hourly rate is reasonable. Second, the Association seeks an award of fees for the services of Steven Rappaport, Esq. However, the Association s motion does not contain an affidavit from Attorney Rappaport, which is required pursuant to Rule 61B-45.048(2), Florida Administrative Code. In pertinent part, the rule states that a motion for attorney s fees shall: (Emphasis supplied). (c) Include an affidavit by the attorney who performed the work that: 1. States the number of years in which the attorney has been practicing law, 2. Indicates each activity for which compensation is sought, and 3. States the time spent on each activity; 1 The website for the Florida Bar shows Attorney Scheuerman was admitted to practice in Florida in November 1982. 4
The rule requires separate affidavits from each attorney who performed the work. Therefore, as no affidavit was submitted by Attorney Rappaport, no fees will be awarded for his services. See Harvest Condo. Ass n., Inc. v. Jimenez, Arb. Fee Case No. 2013-02-5071, Final Order on Motion for Attorney s Fees and Costs (August 27, 2013). Third, the Association seeks compensation for the services of Maria Valerio, a paralegal, at the rate of $125.00 per hour. Ms. Valerio has been a licensed paralegal in Florida since 2009, and a certified legal assistant since 2000. The rate of $125.00 per hour is excessive and the arbitrator finds that a reasonable rate which falls within the range of fees charged in the locality for similar paralegal services is $75.00 per hour. See McClendon v. Beach Place of Treasure Island Condo. Ass n., Inc., Arb. Fee Case No. 2011-04-6013, Final Order on Attorney s Fees and Costs (January 13, 2012). 2. Attorney Hours The Association claims a total of 6.9 hours of attorney time for Attorney Scheuerman s services. However, a total of 0.8 hours must be deducted because 1.8 hours are claimed for preparing the motion for attorney s fees, and only 1 hour is reasonable. See, e.g., Sunrise Landing Condo. Ass n of Brevard, Inc. v. Wilson, Arb. Case No. 2005-05-9040, Final Order on Attorney s Fees and Costs (May 9, 2006); Hallandale Towers East, Inc. v. Bossi, Arb. Fee Case No. 2011-02-3492, Final Order on Motion for Award of Attorney s Fees (June 13, 2011); Manor Grove Village III Condo. Ass n, Inc. v. Thyfault, Arb. Case No. 94-0188F, Final Order Granting Petitioner s Motion for Attorney s Fees (June 15, 1994). The remainder of the requested hours, 6.1 hours, is reasonable. The Association is therefore awarded the sum of $1,677.50 for 6.1 hours of Attorney Scheuerman s time at $275.00 per hour. 5
The Association claims a total of 1 hour of time for the services of Maria Valerio, a paralegal. 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 v. Lido of Pinellas Condo. Ass n., Inc., Arb. Case No. 95-0421F, Final Order on Attorney's Fees (May 31, 1995). The Association s motion demonstrates that the work performed by Ms. Valerio is compensable under this standard. The Association is therefore awarded the sum of $75.00 for 1 hour of Ms. Valerio s services at $75.00 per hour. C. Costs The Association seeks costs of $330.00 as follows: $50.00 for the filing fee and $280.00 for service of process costs. The $50.00 filing fee is appropriate, and it is awarded. As to the service of process costs, because service by mail was unsuccessful, the Association was ordered to personally serve Respondents, who were served in the State of Indiana. Thus, the $280.00 for service of process costs is appropriate, and it is awarded. Based upon the foregoing, it is ORDERED: Respondents Ruth Weinberg and Howard Weinberg shall, within 30 days of the date of this Order, pay to the Association the total amount of $2,082.50 which represents reimbursement for $1,752.50 in attorney s fees and $330.00 in costs. DONE AND ORDERED this 19 th day of November, 2013, at Tallahassee, Leon 6
County, Florida. David R. Slaton, 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 to the following persons on this 19 th day of November, 2013: Karl M. Scheuerman, Esq. Sachs Sax Caplan 660 East Jefferson Street Suite 202 Tallahassee, FL 32301 Attorney for Petitioner Ruth Weinberg 1231 Tulip Lane Munster, IN 46321-3024 Respondent Howard Weinberg 1231 Tulip Lane Munster, IN 46321-3024 Respondent David R. Slaton, Arbitrator 7