STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION WESTWIND LAKES GARDEN HOMES CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Fee Case No. 2017-00-1777 Rel. Case No. 2016-02-0251 OLGA FABAT, Respondent. / ORDER ON PETITIONER S MOTION FOR ATTORNEY S FEES AND COSTS On January 9, 2017, Westwind Lakes Garden Homes Condominium Association, Inc. (the Association) moved for an award of $12,466.79 in attorney s fees and costs. The Association is the legal entity responsible for the operation of the Westwind Lakes Garden Homes Condominium located in Miami-Dade County, Florida. By order dated January 18, 2017, Respondent was directed to file a response to the Association s attorney s fees and costs motion within 20 days of the date the order. On February 6, 2017, Respondent s attorney filed a motion to withdraw as Respondent s legal counsel. By order dated February 8, 2017, the motion to withdraw was granted, and Respondent was directed to file a response to the Association s attorney s fees and costs motion in accordance with the order issued on January 18, 2017. As of the date this order, Respondent has not filed a response. Underlying Case History In the underlying case, the Association filed a petition alleging that Respondent had violated the Association s governing documents by, without prior approval, altering and replacing the tiles on the outside front portion of her unit. After a final hearing was 1
held, a final order was entered finding that Respondent had altered her front porch without having obtained the Association s approval as required by the Association s governing documents. The order further found that Respondent failed to prove any of the defenses she asserted. Respondent was ordered to submit a written application to the Association seeking approval of the tile she installed on the front porch of her unit. The order further provided that should the Association deny the application, Respondent was required to either remove the new tiles or install tiles that are approved by the Association. 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)). A final order was entered in the underlying case finding that Respondent had committed the violation alleged in the petition and granting the Association relief. Therefore, the Association is the prevailing party and entitled to recover its reasonable attorney s fees and costs. 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 2
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 Rule 61B-45.048, Florida Administrative Code. The Association s motion seeks reimbursement for attorney s fees in the amount of $12,307.50. However, the billing records attached to Mr. Perez s affidavit of attorney s fees indicate that the Association was billed $11,670.00 in attorney s fees. Furthermore, the motion states that Eric Perez, Esq. performed 57.5 hours of work at the rate $225.00 which would result in $12,977.50 in attorney s fees. As explained below, the reason for the discrepancies becomes evident upon examination of the billing records. The billing records indicate that four attorney s worked on the Association s case. The attorneys are identified by their initials, EP, JT, JHG and DRM. It is apparent that EP is Mr. Perez. However, the other three attorneys are not identified. The amount of time expended and hourly rate charged by each attorney are as follows: Attorney Number of Hours Rate Total EP 57.5 $225.00 $12,937.50 JT 3.1 $225.00 $697.50 JHG 0.3 $250.00 $75.00 DRM 0.4 $225.00 $90.00 3
Based upon the time logged for each attorney, the total amount of attorney fees is $13,800.00. However, the billing records indicate that the Association was billed $11,670.00. The billing records indicate that, as a courtesy, Mr. Perez s law firm waived the fees for 2.8 hours of work by Mr. Perez. In addition, the billing records indicate that on September 28, 2016, the law firm credited the Association with a $1,500.00 line item courtesy discount. When these discounts are applied, the total is reduced to $11,670.00, the amount that the time records indicate was billed to the Association. Section 718.1255(4)(k), Florida Statutes, provides that the prevailing party in an arbitration proceeding shall be awarded the reasonable attorney s fees in an amount determined by the arbitrator. The undersigned finds it reasonable to limit recovery of attorney s fees to the amount actually billed. Therefore, the amount of fees awarded will not exceed the amount billed to the Association. The Association seeks reimbursement for $12,307.50 in attorney s fees. Thus, it appears that the Association only seeks reimbursement for the efforts of Mr. Perez 1 at the rate of $225.00 while reducing the number of claimed hours by 2.8 hours as discussed above. 2 It is not clear how the $1,500.00 discount was applied to the attorney s fees. Therefore, the discount will be applied in its entirety to Mr. Perez s services. This results in a total fee for Mr. Perez of $10,807.00. Mr. Perez has been practicing law for two years. The effective hourly rate for Mr. Perez is $187.95 an hour. 3 After considering the above factors, the undersigned finds the hourly rate of $187.95 to be reasonable especially considering the difficulty of the case. 1 Mr. Perez is the only attorney who submitted an attorney s fees affidavit. No fees would have been awarded for the time expended by the other three attorneys listed in the time records. See Blossom Park Villas Condo. Ass n, Inc. v. Rosado, Arb. Case No. 2017-00-6752, Final Order On Motion For Attorney s Fees and Costs (March 10, 2017). 2 [(57.5-2.8) x 225 = 12,307.50] 3 10,807.00/57.5 = 187.95 4
After considering the above factors, the undersigned finds that $10,807.00 in attorney s fees is reasonable. The underlying case was zealously defended. Respondent asserted multiple defenses which required a final hearing to be held. Costs The Association seeks reimbursement for $159.27 in costs which includes the $50.00 arbitration filing fee and $109.27 described as Miscellaneous Expenses (i.e. photocopies, translation, etc.). 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 sufficiently describe the nature of the copies for which it seeks reimbursement, so that the arbitrator can determine if the copies are a recoverable cost. Therefore, the association will not be awarded any costs for its copies. The Association was required to file translations of multiple documents with the arbitrator. The translated documents were necessary to assist the arbitrator in reaching his final decision, and therefore, the translation cost would be taxable. However, Rule 61B-45.048(2)(d), Florida Administrative Code, provides that if an award of costs is sought, the party seeking the costs must submit receipts or other documents that provide evidence of the costs claimed. Because the Association has not provided receipts proving the cost claimed as required by the rule, the cost to translate documents will not award awarded. Based upon the foregoing, it is ORDERED: Within 30 days of the date this order Olga Fabat shall pay Westwind Lakes Garden Homes Condominium Association, Inc. $10,857.00 for reimbursement of 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. 5
attorney s fees and costs incurred by the Association in the underlying case. The filing fee is a necessary cost, and therefore, is awarded. Therefore, the Association is awarded a total of $50.00 in costs. Florida. DONE AND ORDERED this 14 th day of March, 2017, at Tallahassee, Leon County, James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida 32399-1030 Telephone: 850.414.6867; Fax: 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 14 th day of March, 2017: Erik A. Perez, Esq. Cuevas & Garcia, P.A. 7480 Bird Road Suite 600 Miami, Florida 33155 Attorney for Petitioner Olga Fabat 6696 SW 152 Place Unit 27-96 Miami, FL 33193 Respondent James W. Earl, Arbitrator 6