IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO.: CA 02-5657 AW

INDIAN CREEK PHASE III-B, HOA, INC., a Florida not-for-profit corporation,

Plaintiff,

vs.

GEORGE ANDRES, AND ANNA ANDRES, Husband and Wife,

Defendants.

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ORDER AWARDING ATTORNEY'S FEES TO BARRY SILVER. ATTORNEY FOR GEORGE ANDRES AND ANNA ANDRES

     

This 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.

              

The Court will be utilizing three different methods for calculating fees. Under

Florida 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 factor in 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.

                 

A third method that the Court will be utilizing is found in Johnson v. Georgia Highway Express, 488 F.2d 714 (5^th 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.

              

First 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, constitutional law, homeowners and condominium law, and appellate law. Unlike almost every other attorney in the relevant marketplace Mr. Silver takes these cases on a purely contingent fee basis.

                       

Regarding the factors in Florida Compensation Fund v: Rowe, supra, and Standard Guarantee Insurance Company v. Quantrum, 555 SO.2d 828 (Fla. 1990), the time and labor required is reflected by the reasonable number of hours which the Court 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 risk factor.

                         

The 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 Andres since their home was being foreclosed and since they did not possess the financial means to own another home in the event that this one was foreclosed. Time limitations 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 ongoing relationship such as the type that attorneys have when they represent homeowners associations. It was a relationship that has lasted for several years due to the length of this litigation 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 fee.

            

Testimony established that attorneys in the relevant marketplace that is Florida, would not undertake this representation on a purely contingent matter. The Andres asked for help during a radio program and received inquiries from attorneys but none were willing to take their case on a 100% contingent basis. There was other evidence 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 range of 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 .

              

Under 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 called for because the object of the Court is to award a fee that in the relevant marketplace would reflect realistically the fees necessary to obtain competent counsel to represent persons in the position of the Andres. If in a public interest case it may be that the Johnson, 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 Insurance 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.

            

Regarding 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.