STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Steve Greye and Dawn Mackenzie, Petitioners, v. Fee Case No. 2005-00-9688 Rel. Case No. 2004-04-6686 Alpine Woods Association, Inc., Respondent. FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS Comes now, the undersigned arbitrator, and issues this final order as follows: / On February 17, 2005, Alpine Woods Association, Inc. (respondent/association) filed a motion for attorney s fees and costs, seeking an award of $9,565.00 in attorney s fees and $4,622.47 in costs, totaling $14,187.47. 1 The fees and costs were incurred in arbitration case number 2004-04-6686, in which a summary final order was entered on January 7, 2005, denying the relief requested by the petitioners and certifying the removal of Steve Greye and Dawn Mackenzie from the board of directors. On February 15, 2005, counsel for the petitioners advised the arbitrator that the petitioners had filed a complaint for trial de novo with the circuit court for Broward County involving the same issues addressed in the underlying arbitration case. Accordingly, the fee proceeding was abated on 1 Counsel for the association appears to request 2.00 additional hours for receipt and response to motion and correspondence, as such hours appear subjective and are not incurred in the arbitration proceeding, they are not awarded. 1
March 2, 2005, pursuant to rule 61B-45.048(6), Florida Administrative Code. On July 26, 2005, the respondent filed a motion to lift stay and reopen the fee proceeding based on the trial court ruling in favor of the association in the trial de novo proceeding. In response thereto, the arbitrator reopened the fee proceeding on August 1, 2005, and permitted the petitioners to file a response to the association s motion for fees and costs. On August 22, 2005, the petitioners filed a response to the association s motion arguing that certain time entries should be denied as impermissible under section 718.112(2)(j), Florida Statutes, as duplicative or as excessive. The petitioners response further objects to the costs requested by the association as not awardable under the Statewide Uniform Guidelines. The association filed a response to the petitioners allegations on September 2, 2005. 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)). The relief requested by the petitioners was denied and the recall initiated against the petitioners was certified. Therefore, the association prevailed in this action and is entitled to an award of attorney s fees, subject to the reductions set forth below. The next issue to determine 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 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 2
the litigation by a reasonable hourly rate for the service 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. Robert L. Kaye, Esquire, charged the association $200.00 per hour for legal services rendered in this matter, and Michael S. Bender, Esquire, and Deborah S. Sugarman, Esquire, each charged the association $175.00 per hour. Mr. Kaye has been practicing law for eighteen (18) years, Mr. Bender for ten (10) years and Ms. Sugarman for twelve (12) years. All three attorneys have sufficient experience in condominium law; the requested rates do not exceed the amount customarily awarded for representation in similar arbitration proceedings by attorneys with similar experience. Thus, the association will be compensated at the rates of $200.00 and $175.00 per hour for counsels legal services. The association seeks reimbursement for 53.20 hours for activities performed by legal counsel in this matter. Pursuant to section 718.1255(4)(k), Florida Statutes, the prevailing party in an arbitration proceeding shall be awarded costs and reasonable attorney s fees. When considering the complexity of the issues presented in this matter and reviewing the billing statement and the pleadings submitted in the underlying arbitration proceeding, the undersigned finds that the hours requested for legal services rendered in this proceeding are excessive and shall be reduced accordingly. See Atlantic Cloisters Association, Inc. v. Courteau, Arb. Case No. 2004-02-0460, Final Order on Motion for Attorney s Fees and Costs (July 30, 2004)(where the arbitrator determined that 88.70 hours for legal services rendered in an arbitration proceeding were excessive, 50.00 hours were deemed reasonable when considering the complexity of the disputed issues 3
and the number of pleadings submitted in the case). Based on the foregoing, the arbitrator hereby finds that a reasonable award for attorney s fees for the successful litigation of this proceeding is a total of 40.00 hours, of which 35.00 hours are designated for legal services provided by Mr. Bender and Ms. Sugarman and 5.00 hours for Mr. Kaye s services. 2 Thus, the association is awarded $7,125.00 in attorney s fees. Additionally, the association seeks compensation for $4,488.47 for loss of operating costs for monies allegedly absconded from association funds and used to pay attorney Sullivan for legal services and $134.00 for facsimile charges. The alleged loss of operating costs is not a cost expended in the defense of the arbitration case. Further, it raises an issue outside the jurisdiction of the arbitrator and cannot be awarded. 3 Facsimile costs are ordinary office expenses factored into an attorney s hourly rate, rather than separately recoverable costs, and are not awarded. Accordingly, no costs are awarded to the association. It is therefore ORDERED: 1. The motion for attorney s fees and costs is GRANTED, in part. 2 In counsels billing statement, the hours designated for Mr. Kaye s services were far outnumbered by the entries designated for Mr. Bender and Ms. Sugarman. 3 Pursuant to 718.1255, Florida Statutes, a dispute involving an alleged breach of fiduciary duty is not eligible for arbitration. See Bumpus v. Harbor Point Condominium Association, Inc., Arb. Case No. 99-0616, Order on Jurisdiction (March 24, 1999)(disputes subject to arbitration exclude any disagreement that primarily involves an alleged breach of fiduciary duty by one or more directors). 4
2. Within thirty (30) days of the date of entry of this order, Steve Greye and Dawn Mackenzie (petitioners) shall pay the sum of $7,125.00 to Alpine Woods Association, Inc. (respondent). DONE AND ORDERED this 20 th day of September 2005, at Tallahassee, Leon County, Florida. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1029 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 20 th day of September 2005: Karen M. Sullivan, Esq. Ferdinand & Sullivan, P.A. 100 West Cypress Creek Road Suite 910 Fort Lauderdale, Florida 33309 Deborah S. Sugarman, Esq. Michael S. Bender, Esq. Robert Kaye & Associates, P.A. 6261 Northwest 6 th Way Suite 103 Fort Lauderdale, Florida 33309 Melissa Mnookin, Arbitrator 5
Right to Appeal As provided by section 718.1255, F.S., this final order may be appealed by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. 6