STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION WIN-WIN REAL ESTATE INVESTMENT Group, LLC; DEREK LOPEZ; and HOWARD FOX, Petitioners, Fee Case No. 2016-04-5911 v. Rel. Case No. 2016-00-6300 THE HAMPTONS AT METROWEST CONDOMINIUM ASSOCIATION, INC., Respondent. FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS / On September 30, 2016, The Hamptons at Metrowest Condominium Association, Inc., (Association), the legal entity responsible for the operation of the The Hamptons at Metrowest Condominium, located in Orange County, Florida, moved for an award of $2,736.00 in attorney s fees and costs. By order entered on October 3, 2016, Respondents were directed to file a response to the Association s motion. On October 6, 2016 and October 7, 2016, Petitioner Howard Fox filed responses in opposition. On October 25, 2016, Petitioners Win-Win Real Estate Investment Group, LLC and Derek Lopez filed a Notice of Settlement which alleges that they settled with the Association, but the Association had not settled with Mr. Fox. Relevant Procedural History This fees case arises from arbitration case number 2016-00-6300. On May 6, 2016, Petitioners filed an amended petition for arbitration naming the Association as Respondent. The amended petition alleges an election dispute. On June 27, 2016, the Association filed a motion in opposition to the petition on various grounds including lack Page 1 of 5
of proper pre-arbitration notice. On June 30, 2016, Petitioners filed a response. On August 16, 2016, the arbitrator entered a final order of dismissal for lack of prearbitration notice granting the Association s motion. 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)). An adjudication on the merits is not necessary in order to for a party to be entitled to attorney's fees. Baratta v. Valley Oak Homeowners' Ass'n at the Vineyards, Inc., 891 So. 2d 1063 (Fla. 2d DCA 2004). A respondent is considered to be the prevailing party where the arbitrator had subject matter jurisdiction over the dispute and the respondent obtained dismissal of the petition because the condition precedent of the petitioner failing to provide proper pre-arbitration notice prior to filing the petition had not be met. LaCroze v. The Sterling Villages of Palm Beach Lakes Condominium Ass n, Inc., Arb. Fee Case No. 2013-04-2066, Final Order on Respondent s Motion for Attorney s Fees and Costs (October 22, 2013). The Association was required to defend the petition and did so successfully. Therefore, the Association is found to be the prevailing party in this matter and is entitled to recover its reasonable attorney's fees and costs. In his response, Mr. Fox argues he should not be held responsible for the Association s fees. Non-prevailing parties are jointly and severally liable for the Page 2 of 5
assessment of an award of attorney s fees and costs. Newth Gardens Ass n, Inc., v. Tokarz, Arb. Fee Case No. 2014-04-7120, Order on Petitioner s Motion for Award of Reasonable Attorney s Fees and Costs (July 14, 2015). Therefore, Mr. Fox is joint and severally liable for the entire award of 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 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. The Association seeks reimbursement for 11.4 hours of legal services by Scott Newsom, Esq., at the rate of $240.00 per hour. Mr. Newsom has been practicing law in excess of 18 years. The undersigned finds $240.00 per hour to be a reasonable rate considering Mr. Newsom's experience and the nature of this case. The Association is seeking 4.9 hours for Mr. Newsom s time spent after the final Page 3 of 5
order was issued. Not including the 0.7 hours for reviewing Petitioners motion for rehearing, the Association will not be reimbursed for the time spent after entry of the 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). The remaining number of hours is reasonable and will be awarded. The foregoing results in 8.2 hours of attorney time that will be awarded. Therefore, attorney's fees in the amount of $1,968.00 will be awarded. The Association has not requested reimbursement of costs. Based on the foregoing, it is ORDERED: Within thirty (30) days of the date of this order, Petitioners shall reimburse the Association s attorney s fees and costs in the amount of $1,968.50. Liability for this sum among the respondents is joint and several. 1 DONE AND ORDERED this 10th day of November, 2016, 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. 1 This amount should be reduced by any amount already paid to the Association by any of the Petitioners. Page 4 of 5
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 November, 2016, to: Samuel B. Weissman, Esq. Nishad Khan P.L. 617 East Colonial Drive Orlando, FL 32903 Attorney for Petitioners Derek Lopez and Win-Win Real Estate Investment Group, LLC Howard A. Fox 3384 Corona Village Way #305 Orlando, FL 32835 Petitioner Scott Newsome, Esq. 1560 Orange Ave. Ste 500 Winter Park, FL 32789-5552 Attorney for Respondent Terri Leigh Jones, Arbitrator Page 5 of 5