STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION THE PRESERVE AT WALNUT CREEK CONDOMINIUM ASSOCIATION, Petitioner, v. Fees Case No Rel. Case No ANTONIO and DANIELA GALVAO, Respondents. / FINAL ORDER ON ATTORNEY S FEES A Summary Final Order was entered in the underlying case, Arb. Case No , on November 15, The final order granted the relief sought by the petitioner, an order directing the respondents to remove their satellite dish from the common elements. The petitioner filed a motion for award of attorney s fees on November 22, 2004, and the respondents filed a response to the motion on December 29, The petitioner seeks an award of $5, in attorney s fees based on the attorney s affidavit stating that he had practiced in the area of condominium law since 1989, that he has been licensed to practice in New York for 30 years, that he expended 24.4 hours in connection with this matter at a rate of $ per hour for a total of $5, Petitioner has also requested reimbursement for costs in the amount of $ Counsel for the respondents was unaware that a motion had been filed until receipt of the Order Permitting Response. Apparently, the copy of the motion sent to the respondents had been lost in the mail; respondents received a copy of the motion on December 29,

2 Pursuant to Section (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 (Fla. 1992). In this case, a summary final order was entered granting the relief requested by the petitioner. Therefore, the petitioner is the prevailing party and is entitled to recover its costs and attorney s fees. The only issue to be decided in this proceeding is the reasonableness of the attorney s fees and costs claimed by the petitioner. In Florida Patient s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985), the Supreme Court articulate[d] specific guidelines to be followed in setting attorney s fees and adopted the federal lodestar approach as a suitable foundation for an objective structure for setting reasonable fee awards. The lodestar figure is determined 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. Id. at 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 The factors for determining a reasonable attorney s fee set forth in Rule are basically the same as the factors set forth in Rule 61B , Fla. Admin. Code. The petitioner seeks compensation for the services of Steven A. Fein, Esquire, at the rate of $ an hour. Mr. Fein was admitted to practice law in Florida in April of 2

3 1989, and has practiced condominium law since that time. Before being admitted to practice in Florida, Mr. Fein practiced law approximately 14 years in New York. A fee of $ per hour is quite high, even for an attorney with 16 years of practice in condominium law in Florida, especially when there is no supporting affidavit attesting to the reasonableness of the hourly fee and Mr. Fein s affidavit did not indicate whether the hourly fee is within the range of fees customarily charged in the locality for doing similar legal work. Rule 61B (7)(c), Fla. Admin. Code, states that a factor to be considered in determining the reasonableness of the fee is [t]he fee customarily charged in the locality for similar legal services. The requested rate is on the high side of the amounts awarded for representation in similar arbitration proceedings by attorneys with similar experience. In 5825 Corinthian Condominium Association, Inc. v. Garcia, Arb. Case No , Final Order on Motion for Award of Attorney s Fees and Costs, (October 6, 2004), the arbitrator held that $ per hour for legal service rendered by Mr. Fein in 2003 and 2004 did not exceed the amount customarily awarded for representation in similar arbitration proceedings by attorneys with similar experience. 2 In Doral House Condominium Association, Inc., v. Astudillo, Arb. Case No , Final Order on Motion for Attorney s Fees and Costs (October 4, 2004), a reasonable rate for an attorney 2 The petitioner only requested $ per hour in legal fees in that case. 3

4 who had practiced law since 1992 and had experience in condominium law was found to be $ an hour, whereas attorneys with less experience were awarded $ an hour. In Royal Arms Condominium Association, Inc, v. Voutour, Arb. Case No , Final Order on Motion for Award of Attorney s Fees and Costs (November 4, 2004), the arbitrator rejected the requested blended rate of $ for the attorneys representing the prevailing party and awarded instead $ per hour. As would be expected, hourly fees awarded to attorneys with greater experience and expertise in condominium and community law have been higher than the average fee. In The Fountains of Palm Beach Condominium, Inc., No. 9 v. Meisner, Arb. Case Nos and , Final Order on Motion for Costs and Attorney s Fees (February 2, 2005), the arbitrator found that a fee of $ an hour was quite reasonable for an attorney who had practiced 32 years and had expertise in the area of condominium law. In Loveland v. Harbor Towers and Marina Condominium Association, Inc., Arb. Case No , Final Order on Motion for Attorney s fees and Costs (January 28, 2005), the arbitrator noted that hourly rates for the services of an attorney will increase with experience and that hourly fees of $ and $ have been determined as reasonable rates for practitioners with 17 or more years of experience. In Unit Owners Voting for Recall v. Coral Ridge East Condominium Association, Inc., Arb. Case No , Final Order on Motion for Attorney s Fees and Costs (October 13, 2004), the arbitrator found that a fee of $ per hour was reasonable for an attorney who had 20 years of experience and practiced condominium law. In this case, petitioner s attorney has been practicing in Florida for less than 16 4

5 years; however, that time has been spent in condominium law, and he has been an attorney for a total of 30 years. Therefore, a reasonable fee for counsel for the petitioner is $ an hour. 3 The petition for arbitration in this case was filed on August 19, It requested an order requiring the respondents to remove their satellite dish from the common elements. It primarily recited portions of the declaration of condominium, one of which was misquoted. It was a routine petition, and although it was sufficient, it certainly was not extraordinary. Indeed, although the declaration, which was quoted in the petition, stated that only satellite dishes protected by federal law would be allowed, the petition did not cite relevant federal law or indicate what satellite dishes were protected under federal law. In Ensenada Condominium Association, Inc. v. Chavez, Arb. Case No , Final Order On Attorney s Fees (May 26, 1998), when counsel for petitioner claimed two hours to prepare the petition and send a letter to his client, the arbitrator reduced the time to one (1) hour, noting the simplicity of the case. See also La Mirage of Harbor Village Condo. Ass n, Inc. v. Ortwein, Arb. Case , Final Order on Petitioner s Motion for Costs and Attorney s Fees (June 30, 1994)(total of 2.5 hours for preparation of petition reduced to 1 hour for routine 3 In The King Cole Condo. Ass n, Inc. v. Wayne, Arb. Case , Final Order on Motion for Attorney s Fees and Costs (November 7, 2003), counsel for petitioner was awarded $195 per hour. 5

6 petition). In The Circle Villas Condominium Association, Inc. v. Thompson, Arb. Case No F, Final Order on Petitioner s Motion for Attorney s Fees and Costs (February 14, 1994), the arbitrator found that 1.5 hours of time was sufficient to prepare a petition for arbitration that contained only one count and was quite routine. In Eastfield Slopes Condominium Association, Inc. v. Velez, Arb. Case No , Final Order on Motion for Attorney s Fees (October 21, 1998), the arbitrator found that 3.5 hours for drafting the petition, which involves no novel issues or factually or legally complex issues was excessive, and that a reasonable amount of time for the task was two (2) hours. In Egret Point Condominium Association, Inc. v. Luciano, Arb Case No , Final Order on Motion for Attorney s Fees (October 20, 1999), the arbitrator found that 2.9 hours for the preparation of the petition in that particular case, which involved the application of federal law, was reasonable. In Glenwood Estates, Inc. v. Reynolds, Arb. Case No , Final Order on Attorney s Fees and Costs (April 25, 2003), reimbursement was requested for 8.9 hours of time expended by an attorney and a paralegal on the drafting and filing of the petition for arbitration. The arbitrator found the time expended was excessive where the issues were not novel or complex, and awarded four (4) hours of combined attorney and paralegal time. The combined calculation was the equivalent of 2.7 hours of the attorney s time. In this case petitioner seeks reimbursement for 4.5 hours of time for the preparation of the petition for arbitration. That is an excessive amount of time for a routine petition. Therefore, the petitioner will be reimbursed for two and a half (2.5) hours of legal services for the preparation of the petition for arbitration and related activities occurring on August 11 and 12, 2004, rather than the 4.5 hours requested. 6

7 Additionally, the petitioner will receive only 0.1 hour for reviewing the Order Requiring Answer and issuing a status report to the client rather than the 0.5 hours requested. An attorney for a petitioner, who has extensive experience in condominium law and has participated in several arbitration cases, needs only a minute or two to glance through the Order Requiring Answer to determine whether any changes have been made in the standard order directed to the respondents. See Egret Point Condo. Ass n, Inc. v. Luciano, Arb Case No , Final Order on Motion for Attorney s Fees (October 20, 1999)(petitioner would not be reimbursed for any time spent on the review and transmittal to the client of the standard Order Requiring Answer). Further, the 12.2 hours expended from October 12 through October 28, 2004, researching the federal law and preparing the motion for summary disposition will not be fully reimbursed. The order of the arbitrator on October 6, 2004, advised the parties that this case appeared appropriate for summary disposition and afforded the parties an opportunity to submit a request for official notice of any federal laws, regulations, or administrative decisions they considered pertinent to the issues. The arbitrator s order cited some arbitration cases that addressed the Federal Telecommunications Act of 1996 and 47 CFR as they related to the placement of satellite dishes at condominiums. The order noted that the issue in the case appeared to be whether the respondent s satellite dish was located on a limited common element and stated that the provisions of the declaration would be determinative of that issue. There was no need for any extensive research into federal law or a motion for summary disposition. However, some of the time spent by counsel for petitioner in obtaining the pertinent federal law and regulations and in preparing the motion for summary disposition was 7

8 reasonable and helpful. Therefore, petitioner will be reimbursed for 5 hours, rather than the 12.2 hours requested, for legal services from October 12, 2004, through October 28, The remainder of the time requested by counsel for petitioner appears reasonable considering the arguments presented by respondents in the underlying case. According to section , Florida Statutes, the prevailing party in an arbitration proceeding is entitled to an award of its reasonable attorney s fees. As the prevailing party, the petitioner is entitled to have the respondent pay the reasonable attorney s fees and costs incurred in the arbitration proceeding. It has been determined that 14.8 hours were reasonably expended by counsel to pursue this case to a successful completion against the respondents. Therefore, the petitioner is entitled to be reimbursed for 14.8 hours of legal fees at $ per hour or a total of $2, Petitioner is also entitled to be reimbursed for the $50.00 filing fee. The other costs expended by counsel for petitioner, photocopying and mailing, are not reimbursable as costs. Respondents have requested that the award of attorney s fees come with a schedule of payments, noting that the respondents are expecting the birth of a child this month and that the award of fees would result in a severe financial hardship. Although the condominium association may accommodate the respondents by setting up a payment schedule, as many do if they are financially able, the arbitrator s function is to determine and award reasonable attorney s fees and costs to the prevailing party. Had the parties entered into a settlement of the attorney s fees and agreed to a payment 8

9 schedule, the arbitrator could incorporate that agreement into a final order on the motion for fees and costs. However, respondents have failed to provide any authority for an arbitrator to award attorney s fees on a payment schedule when it is not part of a settlement agreement. Therefore, based on the foregoing, it is ORDERED: The respondent shall, within 30 days, pay to the petitioner the total amount of $3,010.00, which represents reimbursement for 14.8 hours of attorney s fees at a rate of $200 an hour ($2,960) and $50 in costs. DONE AND ORDERED this 23rd day of February, 2005, at Tallahassee, Leon County, Florida. Diane A. Grubbs, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Certificate of Service I hereby certify that a true and correct copy of the foregoing Final Order on Attorney s Fees has been sent by U.S. Mail to the following persons on this 23rd day of February, 2005: Steven A. Fein, Esquire Fein & Meloni 900 South State Road 7 Plantation, Florida John M. Kotzker, Esq. Kotzker/Shamy, P.L. 9

10 2724 W. Atlantic Blvd. Pompano Beach, Florida Diane A. Grubbs, Arbitrator Right to Appeal As provided by section , F.S., a party who is adversely affected by this final order may, within 30 days of the entry and mailing of this final order, file a complaint for a trial de novo in a court of competent jurisdiction in the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. 10