THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
NO.: CA 02-5657 AW
INDIAN CREEK PHASE III-B, HOA, INC., a
Florida not-for-profit corporation,
GEORGE ANDRES, AND ANNA ANDRES, Husband and
ORDER AWARDING ATTORNEY'S FEES TO BARRY SILVER. ATTORNEY FOR GEORGE
ANDRES AND ANNA ANDRES
action came before the Court upon Attorney Barry Silver's motion for
attorney's fees for the representation of George Andres and Anna Andres in
this action which consisted of representation the case at the trial level
wherein the Court entered a summary judgment against the Andres, an appeal to
the Fourth District Court of Appeal which has directed the Court to determine
attorney's fees for the appellate work done in this case by Mr. Silver, and
based upon a reversal and remand and favorable conclusion for Mr. and Mrs.
Andres, for work done post appeal and up to the entry of this order. The
entitlement to fees at the trial level has been disputed all along including
up until the time of the Court's hearing which concluded on November 20, 2006.
The Court's earlier order determining entitlement did not end the issue.
Plaintiff continued to raise entitlement. All issues of entitlement are
resolved in favor of Defendants.
Court will be utilizing three different methods for calculating fees. Under
Patient's Compensation Fund v. Rowe, 472 SO.2d 1145 (Fla. 1985), there are
two methods. First is the Lodestar method which leaves out the contingency
the calculation of a reasonable hourly rate and then under certain conditions
such as those in this case applies the second method, a multiplier if the
relevant market requires a contingency and if the attorney was not able to
mitigate the risk of nonpayment.
third method that the Court will be utilizing is found in Johnson v.
Georgia Highway Express,
488 F.2d 714 (5th Cir. 1974). In Johnson all of the factors,
the eleven in Florida Patient's
Compensation Fund v. Rowe plus the contingency risk are all factored in
together to arrive at an hourly rate and there is no multiplier. In public
interest cases it is not clear whether to use the Johnson criteria or
the lodestar criteria. It is also in the Court's view helpful to
utilize Johnson as a comparison to the Court's
calculation of the lodestar and a multiplier.
the Court must address a reasonable hourly rate within the relevant
marketplace. Mr. Silver is a very experienced, reputable attorney with a long
history before the Court of representing individuals who cannot afford to pay
an attorney adequately if at all, but who have matters either of public
interest or of great personal consequence to themselves. For example, in this
case there were issues of the foreclosure of the Andres' home due to an
attorney's fee judgment and what Mr. Silver and his clients viewed as an
infringement of the Andres' display of the American flag on a flag pole. Mr.
Silver testified that he regularly undertakes representation in cases that
under conventional legal analysis look hopeless but by unconventional
approaches that are legal and ethical, he has been able to win some of these
cases. He has experience
relevant to his representation in this case in civil trial litigation,
homeowners and condominium law, and appellate law. Unlike almost every other
attorney in the relevant marketplace Mr. Silver takes these cases on a purely
the factors in Florida Compensation Fund v: Rowe, supra, and
Standard Guarantee Insurance Company v. Quantrum, 555 SO.2d 828 (Fla.
time and labor required is reflected by the reasonable number of hours which
will address separately. This matter has been litigated for four .and a half
years so far.
This was an action that appeared by conventional analysis to be less than 50%
likely to be successful. In fact, the Court estimates that it was more like 3,
4 or 5 to 1 against
success. This will become relevant when the Court discusses the contingency
case did not affect employment in other cases. A fee of approximately
$250.00 to $275.00 per hour is a reasonable hourly rate to be charged
for defense of
the Andres. The amount involved and the subject matter were significant to the
since their home was being foreclosed and since they did not possess the
means to own another home in the event that this one was foreclosed. Time
were important but not a factor that would raise or lower the normal fee
charged. The nature of the professional relationship was that this was not an
such as the type that attorneys have when they represent homeowners
was a relationship that has lasted for several years due to the length of this
and related litigation. This factor does not raise or lower the fee. The
experience of the
attorney, etc. has already been set forth as has the contingent nature of the
established that attorneys in the relevant marketplace that is Florida,
would not undertake this representation on a purely contingent matter. The
asked for help during a radio program and received inquiries from attorneys
were willing to take their case on a 100% contingent basis. There was other
presented but nothing to indicate that attorneys would take this case on a
completely contingent basis. In the Court's view a reasonable hourly rate per Johnson,
supra, would fall at between $500.00 and $600.00 per hour on a purely
contingent fee basis in
this case because the initial likelihood of prevailing in this matter as
evaluated by the Court was around 3, 4 or 5 to 1 which puts the hourly rate
without the risk at $100.00,
$120.00, $125.00, $150.00, $166.00 or $200.00 per hour or roughly within the
the homeowners association attorney who presumably runs little practical risk
of non-payment and who has other factors at work that allow a lower fee .
the Lodestar method the relevant marketplace would require a
contingency to obtain competent counsel and there was no way that the
attorney could mitigate the risk of non-payment. The likelihood of success at
the beginning of the case
was less than 50%. Consequently the Court finds that a multiplier of 2.0 is
because the object of the Court is to award a fee that in the relevant
reflect realistically the fees necessary to obtain competent counsel to
in the position of the Andres. If in a public interest case it may be that the
supra, criteria are used, the end result would be the same. The Court
views this as an
action under categories 1 and 2 as set forth in Standard Guarantee
Company v. Quantrum, supra. Categories 1 and 2 are public interest cases
or cases in
which attorney's fees are awardable by statute or contract.
a reasonable number of hours: Mr. Silver apparently as a matter of practice
does not keep accurate time records. (Defense Exhibit 2 shows the same
inaccurate time records situation existed in 1994.) It is undeniable that Mr.
Silver's time records in this action are inaccurate. On one hand they are
understated. For example, we know that they do not include phone calls between
counsel that are listed on opposing counsel's records. On the other hand there
are approximately 3 1/2 times the number of hours set forth in his time
records when compared to opposing counsel's time records. It is actually
impossible for either attorney or the Court to determine the actual amount of
time expended by Mr. Silver on this case. There is insufficient detail to
adequately analyze the full reasonableness of all the time. Yet the hourly
charge as determined by the Court including the multiplier is $550.00 per hour
or $9.00 per minute. It was known from the very beginning that any fee that
Mr. Silver was to be
awarded was going to be a court awarded fee and would require an analysis of
the reasonable number of hours spent by him. (Defendant's Exhibit 1 - the
contingency fee contract.) It is beyond anyone else's control other than Mr.
Silver to enable the Court to. accurately know the actual time spent and
what he did during this time. If the Court errs and awards more time than it
would have if the Court had more precise records then
the respondents are unfairly over-paying at the rate of $550.00 per hour. If
the Court errs and awards too little time then Mr. Silver is losing $550.00
per hour but this is not as unfair because only Mr. Silver had the power to
present the Court with accurate contemporaneous time records explaining not
only how much time was expended but what was done during this time. The best
estimate by the Court of the time reasonably expended in this matter by Mr.
Silver is 225 hours of the 351 hours that he seeks.
Court determines that a reasonable hourly rate for the reasons previously
stated is $275.00 per hour with a multiplier of 2.0. This equates to a fee of
$123,750.00. Under the Johnson, supra, criteria the amount would
be the same for the
reasons previously stated ($550.00 per hour x 225 hours).
Ross, Plaintiff's attorneys fee expert, normally charges $350.00 per hour as his
fee but the Court reasonable fee for his testimony is $275.00 per hour and a reasonable number of
hours is 9 hours, for a total of $2,475.00. His fee shall be added to Mr.
Silver's fee and the
amount shall be awarded to Mr. Silver who shall pay Mr. Ross.
amounts awarded include all appellate fees as ordered by the Fourth District
Court of Appeal.
it is the final judgment of the Court that Barry Silver, Esq. recover from
Indian Creek Phase III-B Homeowners Association attorney's fees of $126,225.00,
for which let execution issue.
judgment shall bear interest at 9% per annum simple interest.
at West Palm Beach, Florida, this 30 day of November, 2006.
EDWARD FINE, Circuit Judge
Steven M. Selz, Esq.
214 Brazilian Ave., Suite 220 Palm Beach,
Barry Silver, Esq.
1200 S. Rogers Circle, Suite 8
Boca Raton, FL 33487
OF THE COURT
OF APPEAL -- FOURTH