STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION WATER GLADES 300 CONDOMINIUM ASSOCIATION, INC., Petitioner, Fee Case No. 2017-01-5431 v. Rel. Case No. 2017-00-6879 ALGORA INTERNATIONAL, INC., Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On March 28, 2017, Water Glades 300 Condominium Association, Inc., (Association), the legal entity responsible for the operation of the Water Glades 300 Condominium, located in Palm Beach County, Florida, moved for an award of $12,632.50 in attorney s fees and costs. By order entered on March 31, 2017, Algora International, Inc. (Respondent) was directed to file a response to the Association s motion. On April 6, 2017, Respondent filed a response. Relevant Procedural History This fees case arises from arbitration case number 2017-00-6879. The Association s petition alleged that Respondent was preventing access to its unit and thereby preventing the Association from installing mass notification and emergency communication speakers (alarm speakers), which are components to the Association s new fire alarm system, in the unit s two bedrooms. The Association also filed a motion for emergency relief or temporary injunction and a request for expedited determination Page 1 of 6
of jurisdiction. On March 1, 2017, Respondent filed an answer. On March 6, 2017, the arbitrator entered a summary final order granting the Association s requested 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 in the final summary order the Association was granted the relief it requested, 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 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 Page 2 of 6
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 compensation for legal services provided by three attorneys and one paralegal. However, two of the attorneys, Allen M. Levine and Marilyn Perez- Martinez did not file separate affidavits with their signatures. Rule 61B-45.048(2)(c), Florida Administrative Code provides: [T]he motion for costs and attorney s fees shall include an affidavit by the attorney who performed the work that states, the number of years the attorney has been practicing law, indicates each activity for which compensation is sought and states the time spent on each activity. Therefore, the Association will not be awarded fees for the time entries for Allen M. Levine and Marilyn Perez-Martinez. See Skip Drish v. Ivy lake Estates Ass n, Inc., Arb. Fee Case No. 2009-01-1786, Final Order on Attorney s Fees and Costs (April 13, 2009); Domaine Delray Condo. Ass n, Inc. v. Koylan, Arb. Fee Case No. 2012-01-6193, Final Order on Motion to Tax Costs and Attorney s Fees (May 17, 2010). St. George Condo. Ass n, Inc., v. Henry, Arb. Fee Case 09-02-2031, Final Order on Motion for Attorney s Fee and Costs (August 04, 2009)(Petitioner's motion and accompanying affidavit were not signed by the attorney who did the work). The Association s counsel, Robert I. Rubin, charged an hourly rate of $325.00 for 32.80 hours of work. Mr. Rubin has been practicing law in Florida for 23 years. The Page 3 of 6
undersigned finds the hourly rate of $275.00 reasonable. Number of Hours The Association is claiming it is entitled to be reimbursed for 32.80 hours expended by Mr. Rubin. The requested time is excessive. Before discussing the specifics of the Association s request, some general principles must be recognized. First, 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 and filing of the petition for arbitration are not fees incurred in the arbitration proceeding and are therefore not awarded. The Landings of Tampa Condo. Ass n, Inc. v. Fisher, Arb. Fee Case No. 2012-00-2838, Final Order on Attorney s Fees and Costs (March 6, 2012) (fees incurred prior to the drafting and filing of the petition are not recoverable in the arbitration proceeding). Second, Attorney time expended addressing matters not in arbitration will not be awarded. Juno Beach Condo. Ass n, Inc. v. Abood, Arb. Fees Case No. 2010-02-1673, Final Order on Motion for Attorney s Fees and Costs (July 21, 2010). Third, the motion for attorney s fees is rife with entries of attorney time spent in telephone calls, emails and conferences with the Association. Legal work that is necessitated by the client's own behavior should more properly be paid by the client than by the opposing party. Barratta v. Valley Oak Homeowners' Ass n at the Vineyards, Inc., 928 So. 2d 495, 499 (Fla. 2nd DCA 2006); See also Guthrie v. Guthrie, 357 So. 2d 247, 248 (Fla. 4th DCA 1978)(Work done that is not reasonably necessary but performed to indulge the eccentricities of the client should more properly be charged to the client rather than the opposing party). Finally, the Association will not be reimbursed for the time spent after entry of the Page 4 of 6
final order, except for time spent preparing the motion for attorney s fees for which 1.0 hour is reasonable. Sunrise Landing Condo. Ass n of Brevard, Inc. v. Wilson, Arb. Fee Case No. 2005-05-9040, Final Order on Attorney s Fees and Costs (May 9, 2006). After consideration of the above, and the fact that the Association only filed two pleadings simultaneously with the petition in the case, the Association will be awarded the following numbers of hours: For the pre-arbitration notice: For the petition: For the request for expedited jurisdiction: For the motion for emergency relief: For the motion for attorney s fees: 0.0 hours as none was requested 3.0 hours 0.7 hours 1.0 hour 1.0 hour Therefore, the Association will be awarded $1,567.50 in attorney s fees for 5.7 hours of work at a rate of $275.00 per hour. Paralegal Costs The Association seeks reimbursement for paralegal time billed at $175.00 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 v. Lido of Pinellas Condo. Assn., Inc., Arb. Fees Case No. 95-0421F, Final Order on Attorney's Fees (May 31, 1995). In the instant motion, there has not been the requisite showing, therefore no paralegal fees shall be awarded. Costs The Association seeks reimbursement of the $50.00 filing fee. The filing fee is a necessary expense, and is awarded. Page 5 of 6
Based on the foregoing, it is ORDERED: Within thirty (30) days of the date of this order, Respondent shall reimburse the Association s attorney s fees and costs in the amount of $1,617.50. DONE AND ORDERED this 10th day of April, 2017, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road 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 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 was mailed by U.S. mail, postage prepaid, this 10th day of April, 2017, to: Robert I. Rubin, Esq. Becker & Poliakoff, P.A. 625 N. Flagler Drive 7 th Floor West Palm Beach, FL 33401 Attorney for Petitioner Algora International, Inc. c/o Claudiu and Andrea Secara 5510 N. Ocean Drive, Unit 22-A Singer Island, FL 33404 Respondent Terri Leigh Jones, Arbitrator Page 6 of 6