21-000385FC Mimo On The Beach I Condominium Association, Inc. vs. Tal Simhoni Status: Closed DOAH Final Order on Monday, May 24, 2021.

Summary: Pursuant to section 760.11(13) and Florida Rule of Professional Conduct 4-1.5, Respondent is liable to Petitioner for reasonable prevailing party appellate attorney's fees in the amount of $15,963.00.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IMO O N T HE B EACH I C ONDOMINIUM

A SSOCIATION , I NC . ,

Petitioner ,

vs. Case No. 21 - 0385FC

T AL S IMHONI ,

Respondent .

/

F INAL O RDER O N A TTORNEY ' S F EES A ND C OSTS

Pursuant to notice, a hearing was conducted in this case pursuant to

sections 120.569 and 120.57 (1) , Florida Statutes (2020) 1 , by Zoom Conference,

on February 26, 2021, by Administrative Law Judge ("ALJ") Robert E. Meale

of the Division of Administrative Hearings ("DOAH"). When ALJ Meale

became unavailable, this case was transferred to ALJ Cathy M. Sellers to

prepare and issue this Final Order.

A PPEARANCES

For Petitioner: Nataly Gutierrez, Esquire

P eytonBol in, PL

Suite 100

334 3 West Commercial Boulevard

Fort Lauderdale, F lorida 33309

For Respondent: Tal Simhoni, pro se

P ost Office Box 964

New York, N ew York 100 18

1 All references to Florida Statutes are to the 2020 codification.

S TATEMENT O F T HE I SSUE

What is the amount of attorney's fees 2 to which Petitioner, Mimo on the

Beach I Condominium Association, Inc. , is entitled in Case No. 1D 19 - 2165?

P RELIMINARY S TATEMENT

On May 16, 2019, the Florida Commission on Human Relations ("FCHR")

issued a Final Order Dismissing Petition for Relief from a Discriminatory

Housing Practice ("Final Order") in DOAH Case No. 18 - 4442 , dismissing

then - Petitioner Tal Simhoni 's housing discrimination claim against then -

Respondent, Mimo on the Beach I Condominium Association, Inc .

(" Association "). Si mhoni appealed the Final Order to the First District Court

of Appeal ("First DCA") . T h e appeal was assigned Case No. 1D 19 - 2165.

On June 8 , 2020 , the First DCA affirmed the Final Order, per curiam , in

Case No. 1D 19 - 2165 , and issued an Order pursuant to s ection 760. 11(13),

Florida Statutes, and Florida Rule of Appellate Procedure 9.400, ("Appellate

Attorney's Fees Order") , provisionally granting the Association's motion for

appellate attorney's fees and costs , and remanding the proceeding to DOAH

to determ ine the amount of appellate attorney's fees and costs to which the

Association is entitled for having prevailed in Case

No. 1D 19 - 2165.

On August 3, 2020, the Association filed Respondent Association's

Renewed Motion for Entitlement to Attorney's Fees a nd Cost [s] as the

Prevailing Party After Appeal , initiating this proceeding . O n February 18,

2021, the ALJ issued the Official Notice of DOAH and First District Cases

and Order Limiting Evidence that Petitioner May Offer in Hearing to

2 The Association did not present any evidence regarding costs incur red in Case

No. 1D 19 - 2165. Accordingly, this case only determines the reasonable attorney's fees to

which the Association is entitled.

Establish Attorney's Fees and Costs ("Order Limiting Evidence on Fees and

Costs ") , which took official recognition of the dockets in Case Nos. 1D 19 - 2165

and 18 - 4442, and limited the scope of this proceeding to determining only the

amount of appellate attorney's fees and costs that should be awarded to the

Association pursuant to the Appellate Attorney's Fees Ord er.

The final hearing in this proceeding was held by Zoom Conference on

February 26, 2021. The Association presented the testimony of Maur i Ellis

Peyton, Arlyn Mendoza , and Michael H. Johnson. Petitioner's Exhibit s 1

and 2 were admitted into evidence. 3 On March 1, 2021, the Association filed

an amended Exhibit 2 ("Amended Exhibit 2") to correct a redaction error on,

and replace, the version of Petitioner's Exhibit 2 tha t was filed at DOAH

before the final hearing. Simhoni testified on her own behalf, and did not

tender any exhibits for admission into evidence.

The Transcript of the final hearing was filed at DOAH on March 30, 2021.

The parties were given until April 1 9, 202 1 , to file their proposed final orders .

The parties timely filed their post - hearing submittals on April 19, 2021 , and

both have been duly considered in preparing this Final Order.

F INDINGS O F F ACT

I. The Parties

1. Petitioner, Association , is the c ondominium association responsible

for operating and managing the Mimo on the Beach I Condominium

("Condominium"). The Association was the prevailing party in Case

No. 1D 19 - 2165.

3 The Association's Pr o posed Recommended Order (which should have been titled a proposed

final order) refers to attorn ey's fees affidavits that were submitted to DOAH , as proposed

exhibits , before the final hearing. However, the record does not reflect that they were

tendered or admitted into evidence. Accordingly, they cannot serve as the basis for any

findings of fact i n this Final Order. See § 120.57(1)(j), Fla. Stat. ("[f] indings of fact . . . shall

be based exclusively on the evidence of record and on matters officially recog nized").

2. Respondent, Simhoni, is the owner of a unit in the Condominium.

Simhoni was the non - prevailing party in Case No. 1D 19 - 2165.

II. Evidence Presented at the Final Hearing

3 . As noted above, on June 8, 2020, the First DCA awarded prevailing

party attorney's fees and costs to the Association , pursuant to rule 9.400, and

remanded the proceeding to DOAH to determin e the amount of attorney's

fees and costs to be awarded.

4 . Pursuant to the Order Limiting Evidence on Fees and Costs, the ALJ

limited the attorney's fees and costs to be considered in this proceeding to

only those incurr ed between June 1, 2020 Ð the date on which Simhoni filed

the notice of appeal in Case No. 18 - 4442 Ð and August 17, 2020 Ð the date on

which the First DCA issued the mandate in Case No. 1D 19 - 2165. Thus,

pursuant to the Order Limiting Evidence on Fees and Costs, any fees or costs

billing entries for dates before June 1, 20 20 , or after August 17, 2020, are

excluded from consideration in determining reasonable appellate attorney's

fees in this proceeding. 4

A. The Evidence Presented by the Association

5 . Simhoni fil ed a notice of appeal from FCHR's Final Order in Case

No. 18 - 4442 on June 1 3 , 2019. The filing of the notice of appeal initiated

Case No. 1D19 - 2615. Simhoni filed her Initial Brief on August 27, 2019.

6 . Pursuant to a written retainer agreement , PeytonBo lin serves as

General Counsel for the Association .

7 . By separate unwritten agreement, the Association retained PeytonBolin

to represent it in Case No. 1D 19 - 2165 , at the hourly billing rate s of $350 for

partner s, $2 50 for non - partner attorneys , and $145 f or paralegals.

8 . The first document filed on behalf of the Association in Case

4 This is consistent with case law holding that a litigant may claim attorney's fees where

entitlement to fees is the issue, but may not claim attorney's fees incurred in litigating the

amount of fees. Bayview Loan Serv, LLC v. Cross , 286 So. 3d 858, 861 (Fla. 5th DCA 2019).

Since the purpose of this proceeding is to determine the amount of appellate attorney's fees

to which the Association is entitled in Case No. 1D 19 - 2165, the Association is not entitled to

an award of fees for work done after the appeal was over.

No. 1D 19 - 2165 Ð a motion for extension of time to file answer brief and

motion to require Simhoni to transmit the record of Case No. 18 - 4442 to the

court Ð was filed by partner M auri Ellis Peyton on September 16, 2019. The

first items shown on A mended Exhibit 2 were billed on September 16, 2019.

9 . Peyton testified that the Association is seeking attorney's fees for 55.1

hours of work by attorneys and paralegals in Case No. 1D19 - 2 165 , for a total

amount of $16,207.50 in attorney's fees . These amounts differ from the 57.7

hours and total of $16,545 .00 in fees shown on Amended Exhibit 2 . Peyton

explained that the revised amounts of 55.1 hours and the $16,207.50 in fees

exclude purely clerical work by his paralegal , and also exclude billing entries

for work performed outside of the timeframe established in the Order

Limiting Evidence on Fees and Costs .

10 . Amended Exhibit 2 , filed on March 1, 2020, still reflects billing entries

for wo rk done after August 17, 2020, and does not appear to have eliminated

any hours or fees reflected on the original version of Exhibit 2 filed prior to

the final hearing. Thus, in calculating the reasonable attorney's fees in this

case, the undersigned has t aken , as the starting point, the 57.7 hours and

total amount of $16,545.00 in attorney's fees, and has deducted the hours and

fees for all billing entries for work done after August 1 7, 2020. Additionally,

as discussed below, the undersigned has deducted t he hours and fees for any

other billing entries that constitute "fees for fees" work, and billing entries for

duplicative work .

11 . In support of the Association's request for attorney's fees, Peyton

testified regarding the pertinent factors set forth in Florida Rule of

Professional Conduct 4 - 1.5 .

12 . Specifically, he testified that because he was not counsel for the

Association in Case No. 18 - 4442 , he needed to review the record in that case,

which consisted of approximately 2 , 000 pages, and included t he transcript of

the two - day final hearing ; the exhibits admitted into evidence ; and the

pleadings and motions filed in that case. Additionally, he needed to review

the Initial Brief, which consisted of 19 pages of text and 49 pages of exhibits ;

review the case law cited in the brief; and research the issues raised in the

brief. He noted that PeytonBolin was retained "pretty late in the appeal, after

the I nitial B rief was filed , " so a substantial effort was required to get up to

speed on the pertinent law a nd the issues in the appeal.

13 . Peyton testified that the appeal involved what was , "in the association

world, a very novel complaint involving many different issues." He

acknowledged that he "had to go outside the scope of our normal practice and

get in to the world of administrative hearings and discrimination claims." On

the basis of his significant appellate experience , he determined that he and

his firm were qualified to represent the Association in Case No. 1D 19 - 2165 .

14 . Peyton testified, credibl y, that the outside attorneys with whom he

consulted regarding the appeal would have charged more than the amount

his firm charged to represent the Association in the appeal .

15 . He acknowledged that he was able to save considerable time by

reviewing the Association's Proposed Recommended Order and the ALJ's

Recommended Order in Case No. 18 - 4442 . However, he persuasively

testified, and a review of the Initial Brief bears out, that the scope of issues

raised in the Initial Brief went beyond those raised in Case No. 18 - 4442, and

the Initial Brief contained exhibits which, while not addressed in the text of

the brief, needed to be addressed in the Answer Brief, in anticipation of

arguments that may have been raise d in the Reply Brief.

16 . Peyton testified, and the billing entries on Amended Exhibit 2 verify ,

that he did almost all of the work on the appeal. He was assisted by partner

Joseph Gianel l; non - partner attorneys Nataly Gutierrez and Michael

Goldstein ; and paralegal Carmen J arquin , none of whom bill ed significant

amounts of time. Peyton testified, credibly , that "[i]t took many days to write

the brief, to revise it, to edit it." As a consequence, he was unable to work on

other matters while he was working on the Answer B rief .

17 . Michael H. Johnso n testified on the Association's behalf, as an expert

witness regarding reasonable attorney's fees determinations . 5 Johnson has

practiced law for 23 years, is a bankruptcy attorney, and has experience in

administrative law, real estate foreclosure s , and ho meowners associatio n

foreclosure s. Pertinent to this case, Johnson has testified between 25 and 30

times as an expert witness regarding reasonable attorney's fees

determinations . Specifically, he has testified r egarding whether requested

fees amounts are r easonable; whether hourly billing rate s are reasonable for

the area of la w in a given case ; and whether the amount of time expended on

matters for which fees are sought is reasonable.

18 . In formulating his opinion regarding the fees that the Association

seeks in Case No. 1D 19 - 2165, Johnson reviewed the plea dings and the Initial

Brief, Answer Brief, and R eply Brief ; and evaluated the time spent on the

case in light of the pertinent factors in r ule 4 - 1.5. He also consulted with

three attorneys who practice appellate law in South Florida, regarding the

amount of time expended in the case, to determine if the amount of fees and

billing rates were reasonable for the appeal.

19 . Based on these considerations, Johnson concluded that the 55.1 hours

of work that PeytonBolin spent on the appeal were reasonable , a nd even on

the low end , given the novel nature of some of the issues raised in the Initial

Brief.

20 . Regarding the fees rates charged for the appeal, Johnson opined that

the $350 - per - hour rate for partn er work on the appeal , to which the

Association agreed, was reasonable, and perhaps low. He also noted that

some billing entries reflected a reduced $300 - per - hour rate for partner work.

Johnson's opinion was formulated considering the expertise and time

co nstraints placed on the partners handling the appeal , and the hourly rates

5 At the final hearing, Simhoni did not object to Johnson being qualified as an expert in

reasonable attorney's fees determinations.

customarily charged for partner work on appeals in the South Florida

market .

21 . He considered these same factors and circumstances in formulating

his opinion that the $250 - per - hou r billing rate for non - partner attorneys was

reasonable, and on the low end , for handling appeals in the South Florida

market .

22 . He also opined, based on locality and expertise, that the $145 - per - hour

rate charged for paralegal work was reasonable. He noted that PeytonBolin

did not bill for any administrative Ð i.e., clerical or non - legal Ð work by its

paralegals, so that the paralegal work had been properly billed.

B. Testimony Elicited by Simhoni and Argument in Proposed Final Order

23 . Simhoni did not testify regarding any matters about which she had

personal knowledge regarding the hourly rates, time spent, and attorney's

fees charged by PeytonBolin to handle the appeal in Case No. 1D19 - 2165; to

this point, she stated that it was her opinion that the h ours and attorney's

fees should be reduced, but acknowl edged that her opinion was not based on

any personal knowledge of facts that would warrant a reduction. S he did not

present the testimony of any other witnesses. Thus , t he competent

substantial evidenc e she presented consisted only of the cross - examination

testimony of Peyton and Johnson regarding their expertise and the hours

spent and rates charged for certain billed items .

24 . Simhoni expressed skepticism that, and questioned whether, it took

Peyto n .2 hours to review the First DCA's order issued on July 27, 2020,

which she characterized as a " one - sentence order. " Peyton testified that his

firm billed in increments of one - tenth of an hour, so that if reviewing the

order took him longer than six minu tes, he billed .2 hours for the work. He

testified , credibly, that "I must have spent seven minutes to reviewing that

document. . . . If I put a .2, it's because I spent more than six minutes

reviewing whatever document that was. " Simhoni did not present a ny

countervailing evidence showing that Peyton spent 6 minutes or less

reviewing the order. Accordingly , Peyton's testimony is accepted as credible

evidence that he correctly billed .2 hours for reviewing the order.

25 . Simhoni questioned Peyton regardin g 1.8 hours that he billed on June

23, 2020, for which the task description was redacted. The Association

corrected this redaction error in Amended Ex hibit 2 . As corrected, this entry

is 1.8 hours billed for "[r]eceive and review Motion for Rehearing and M otion

for Written Opinion." Peyton credibly explained that this time was spent on

reviewing Simhoni's 21 - page motion for rehearing and written opinion.

Although the First DCA denied this motion before the Association filed its

written response, Peyton test ified , "that doesn't mean we weren't in the

pr ocess of preparing a response." The competent substantial evidence

establishes that Peyton correctly billed 1.8 hours for this work .

26 . Simhoni also questioned billing entries on June 10 and 22, 2020, for

dra fting a renewed motion for attorney's fees. Simhoni contended that these

entrie s appeared to be "fees for fees , " which generally are not recoverable in

attorney's fees awards under Florida law. Simhoni's point is well - taken. T he

billing entries for work as sociated with the motion for entitlement to

attorney's fees were made on December 23 and 30, 2019 , 6 and the motion was

filed on December 30, 2019. Thus, the billing entries on June 10 and 22, 2020,

for preparing a motion for attorney's fees, appear to be f or work in litigating

the amount of fees to which the Association is entitled. Pursuant to

Bayview , 7 these fees cannot be taken into account in determining the

reasonable attorney's fees for Case No. 1D19 - 2165 . Accordingly, the hours

and fees for the June 10 and 22, 2020, billing entries have been deducted

from the total number of hours and total amount of fees determined to be

reasonable for Case No. 1D 19 - 2165.

6 Amended Exhibit 2 shows the motion regarding entitlement to attorney's fees as having

been filed with the First DCA on December 30, 2019.

7 Bayview , 286 So. 3d at 861 (Fla. 5th DCA 2019 ).

27 . Simhoni also questioned the multiple billing entries made between

December 22 and 26, 20 20, regarding preparing and filing the Answer Brief.

As noted above, Peyton credibly testified that it took more than one day to

review the record on appe al and prepare the Answer Brief . Thus , the

competent substantial evidence establishes that the multipl e billing entries

between December 22 and 26, 2020, regarding researching and preparing the

brief , are not duplicative.

28 . Simhoni also questioned the amount of time that Peyton spent

conducting research and preparing the Answer Brief , specifically f ocusing on

whether the number of hours he spent conducting research and preparing the

brief were excessive due to Peyton's lack of experience in discrimination

matters. In response, Peyton testified , credibly, that he consulted with other

attorneys regardi ng the amount of time and fees necessary to adequately and

diligently represent the Association in the appeal, and all of them would have

charged more than P eyton Bolin for researching and preparing the Answer

B rief. Thus, the competent substantial evidence establishes that the hours

spent and amount of fees billed for researching and preparing the Answer

Brief were reasonable, and were not excessive.

29 . Simhoni also questioned whether it was reasonable for Peyton to have

billed for work p reparing a motion for a second extension of time to file the

Answer Brief , which was necessitated by personal matters Ð specifically, the

birth of his child . Peyton credibly testified that requests for extension s of

time to file briefs are routine , and that in his experienc e, most appeals

involve two or three extensions of time to file the briefs . He further noted that

under the Florida Rules of Appellate Procedure, extensions of t ime are

automatically granted if the extension is unopposed . Based on this testimony,

and in th e absence of any countervailing evidence, the undersigned finds that

the hours spent, and fees charged for, preparing the second request for

extension of time to file the Answer B rief were reasonably with in the scope of

PeytonBolin's representation of the Association in Case No. 1D 19 - 2165, and

were not excessive.

30 . Additionally, Simhoni questioned why Peyton billed .2 hours on

September 20, 2019, for reviewing a First DCA order that she characterized

as "less than a paragraph . " Pe yton credibly testifie d, and the billing entry on

Amended Exhibit 2 confirms , that for that particular entry, Peyton reviewed

four orders issued by the court. Thus, the competent substantial evidence

supports the hours billed for reviewing the orders.

31 . In c ross - examining J ohnson, Simhoni posed questions that were a imed

at calling into question whether he was qualified to render an opinion

regarding the reasonableness of attorney's fees in a discrimination case . She

also questioned whether any of the lawyers with whom Johnso n consulted

had experience in discrimination case appeals. In response, Johnson testified ,

credibly, that he had experience testifying in appeals of administrative law

and other types of cases, so he was qualified to render an opinion regarding

reasonable attorney's fees in Case No. 1D 19 - 2165. He further testified that,

in his opinion, which was based , in part, on having consulted with other

attorneys who engage in appellate practice in the South Florida market, fees

for discrimination appeals would be subs tantially higher than those incurred

in other types of administrative appeals. The undersigned finds Johnson's

testimony regarding his qualifications , as well as his opinion regarding the

reasonableness of the hours billed and rates charged by PeytonBolin in

Case No. 1D 19 - 2165, to be credible and persuasive.

32 . In her Proposed Final Order, Simhoni contends that the appellate

attorney's fees award should be reduced from $16,207.50 Ð the amount now

sought by the Association Ð t o $6,021.50 . She makes several a rguments in

support of her position.

33 . First, she contends that because she raised only two substantive

issues in the Initial Brief Ð roof repairs the Association did not provide, and

her right to lease out her condominium unit Ð it was unnecessary for

Pey tonBolin to address six issues in the Answer Brief.

34 . However, a revie w of the Initial Brief shows that, while it only

discussed the merits of two of the substantive issues in Case No. 18 - 4442, a

substantial portion was directed at arguing that the ALJ committed

numerous procedural and substantive errors in his Recommended Order

(which was adopted in toto by FCHR in its Final Order ) ; thus, it was

necessary for PeytonBolin to address these issues in its Answer Brief.

Additionally, many of the exhibits fi led as part of the Initial Brief contained

information or material that , while not specifically discussed in the text of

the brief, were nonetheless part of the brief, and raised issues that needed to

be addressed in the Answer B rief. This was particularly the case, given that

Peyton was in the position of having to anticipate arguments made in

reliance on those exhibits, in a reply brief. D iligence and thoroughness in

representing the Association justify Peyton Bolin having addressed six issues

in the Answe r Brief.

35 . S imhoni also contends, in her Proposed Final Order, that because

Peyton did not regularly practice in the area of discrimination law, he spent

too much time researching and learning the relevant law in order to prepare

the Answer Brief. Howe ver, she did not present any evidence , t hrough her

own testimony or the testimony of any other witness , 8 to support a finding

that Peyton spent too much time on the Answer Brief. To the contrary, the

credible, persuasive testimony of both Peyton and J ohnso n Ð which

constitutes the competent substantial evidence in this proceeding Ð supports

the finding that the amount of time Peyton spent preparing the Answer Brief

not only was reasonable, but was on the low end compared to time expended

8 When a party does not present evidence to support its factual contentions, the ALJ is not at

liberty to reject the competent substantial evidence in the record in favor of positions that

are unsupported by the evidence. See Eady v. State, Ag. for Heal th Care Admin ., 279 So. 3d

1249, 1259 (Fla. 1st DCA 2019).

and fees typically char ged by attorneys in the South Florida market to handle

appeals , including those involving less complex and novel issues .

36 . Focusing on specific billing entries, Simhoni contends that Peyton

spent too much time reading what she characterize d as a " one - s entence

document. " Again, this argument is based on her personal opinion; she did

not present any testimony or documents to provide evidentiary support for

that contention . Peyton credibly testified that it took him more than six

minutes to review the cour t's order, and in the absence of evidence supporting

a contrary finding, his testimony constitutes the sole competent substantial

evidence in the record to support billing .2 hours for that work .

37 . Simhoni also contends that Peyton spent too much time on, and, thus

overbilled for, reviewing the case law cited in the Initial Brie f and verifying

that it was still "good law." As before, Simhoni's position is based on her

personal o pinion and on assumptions that are not supported by competent

substant ial ev idence in the record. As discussed above, Peyton testified,

credibly and persuasively, regarding the case law research he conducted to

prepare the Answer Brief, and the necessity to thoroughly address all issues

raised in the Initial B rief and its exhibits . Peyton's testimony constitutes

competent substantial evidence supporting the amount of time billed for that

work.

38 . Similarly, Simhoni contends that Peyton spent too much time

conducting research on, and preparing, the s tandard of r eview section of the

Answer Brief. Again, this contention is based on her personal opinion

regarding the amount of time and effort that " should " be entailed in

prepa ring this portion of the brief, but it is not supported by any competent

substantial evidence in the record. Peyton credibly testified that it took him

1.7 hours to research and draft this section of the Reply Brief, and there is no

countervailing evidence in the record to support a finding that this amount of

time was excessive , or that Peyton was untruthful ab out the amount of time

he spent on this section of the brief.

39 . Simhoni also contends that P eyton should not be permitted to charge

attorney's fees for preparing a second request of extension of time to file the

Answer Brief , due to personal reasons. As she put it, "it is unclear why

Respondent should be required to pay for this , " and "there is nothing

reasonable about requiring Respondent to pay for Mr. Peyton's extensions of

time, especially when they were for personal reasons."

40 . The uncontroverte d evidence establishes that the Association retained

PeytonBolin to handle the appeal in Case No. 1D 19 - 2165, which would

include all matters reasonably encompassed within that representation. The

scope of that representation dictates the services related t o the appeal for

which Peyton could (and could not) bill the Association. 9 Peyton testified,

credibly, that in his experience, extensions of time are typical in the course of

appeals, and are routinely granted as a matter of course unless opposed. This

evi dence supports the determination that the scope of PeytonBolin's

representation of the Association included preparing and filing requests for

extension s of time , as necessary , as part of the appeal. 10

41 . In similar vein, S imhoni contends that because Tit le VII 11 cases do not

specifically address the types of legal services that should be included in

determining a reasonable attorney's fee under section 760.11(13) , the term

"reasonable" in that statute should be read to exclud e the preparation of

9 To the extent Simhoni contends that it is unreasonable for her to pay for an extension of

time necessitated by personal matters, it is important to keep in mind that PeytonBolin

represented th e Association in Case No. 1D 19 - 2165 , so the scope of that representation

controls the type of work for which PeytonBolin could bill the Association.

10 To the exten t Simhoni contends that the scope of the Association's representation in

Case No. 1D 19 - 261 5 excluded legal services related to requesting extension s of time to file

the Answer Brief , it was incumbent on her to establish the existence of that exclusion by

evidence in the record. She failed to do so. See Balino v. Dep't of HRS , 348 So. 2d 349 (Fl a.

1st DCA 1977)(the party asserting th e affirmative of an issue in an administrative tribunal

has the burden of pr oof with respect to that issue).

11 Simhoni cites federal Title VII case law as support for this argument. However, as

discussed in the Concl usions of Law , below, Florida statutory and case law, rather than Title

VII case law, govern reasonable attorney's fees determinations in cases under the Florida

Civil Right Act.

motions. I n support, Simhoni notes that in a different attorney's fees statute,

section 57.111 (3)(a) , Florida Statutes, the Legislature has expressly defined

the term "attorney's fees and costs" to identify the types of legal services ,

including motions , for whi ch " attorney's fees and costs" can be recovered

under that statute. Simhoni reasons that if the Legislature had intended for

attorney's fees to be awarded for the preparation of motions under section

760.11(13) , it would have expressly said so, just as it did in section 57.111. As

discussed below, t his argument is not supported by established principles of

statutory construction, and, thus, is not persuasive.

42 . Simhoni also contends that the testimony of Johnson, who was

accepted as an expert in attorney' s fees at the final hearing Ð notably, without

objection Ð should be given little weight because he has no experience

regarding attorney's fees in discrimination cases. However, a s discussed

above, Johnson has te stified as an expert witness on attorney's fees in

numerous cases, including administrative cases. In formulating his opinion

that the hourly rate s and amount of fees charged by PeytonBolin in

Case No. 1D 19 - 2165 are reasonable , he cons ulted with appellate attorneys

who practice in South Florida. As dis cussed above, based on his review of the

work done , and input from appellate attorneys with whom he consulted, he

concluded that PeytonBolin's h ourly rates , the number of hours expended,

and amount of fees charged for Case No. 1D 19 - 2165 not only were

reaso nable, but were low, particularly for South F lorida. Given Johnson's

extensive experience as an expert witness in determining reasonable

attorney' s fees in a range of different types of cases; taking into account that

he applied the pertinent factors set f orth in Rule 4 - 1.5 in formulating his

opinion; and considering that once he developed his opinion, he consulted

with appellate attorneys in the South Florida market to verify that the fees

were reasonable, the undersigned finds Johnson a credible, persuasi ve

witness whose testimony should be given substantial weight in determining

the reasonable attorney's fees in this case.

43 . Simhoni contends that the redaction of information on bill ing entries

which are protected by the attorney - client or work product privilege s "means

that it is literally impossible for Respondent to comment on their

reasonableness or lack thereof." Thus, she proposes that the undersigned

assume one hour billed for all such entries , at the partner billing rate of

$350.00 per hour. How ever, this assumption is not supported by any

competent substantial evidence in the record. Rather, t he competent

substantial evidence establishes that the redacted entries on A mended

Exhibit 2 are attorney - client privileged communications , so are properly

redacted . Accordingly , these billing entries will no t be modified or reduced on

the basis of that redaction.

C ONCLUSIONS O F L AW

44 . DOAH has jurisdiction over the subject matter of, and parties to, this

proceeding. §§ 120.569, 120.57(1), and 760.011(13 ), Fla. Stat.

I. Burden and Standard of Proof

45 . In this proceeding, the Association is asserting that it is entitled to an

award of appellate attorney's fees and costs in the amount of $16, 207.50 for

having prevailed in Case No. 1D 19 - 2165. As the party asserting entitlement

to this amount , the Association bears the burden of proof to demonstrate

that , pursuant to section 760.11(13) and r ule 4 - 1.5, $16,207.50 is a reasonable

attorney's fee for Case No. 1D19 - 2165 . See Ocean Club Comm'y Ass'n, Inc. v.

Curti s , 935 So. 2d 513, 517 (Fla. 3d DCA 2006) (party seeking a specified

amount of attorney's fees bears the burden to demonstrate entitl ement to

that amount) ; Balino v. Dep't of HRS , 348 So. 2d 349, 350 (Fla. 1st DCA

1977 ). The standard of proof applicable to this proceeding is the

preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

II. Applicable Statute, Rule, and Case Law

46 . Section 760.11 (13) states, in pertinent part:

Final orders of the commission are subject to

judicial review pursuant to s. 120. 68. . . . In any

action or proceeding under this subsection, the

court, in its discretion, may allow the prevailing

party a reasonable attorneyÔs fee as part of the cost.

It is the intent of the Legislature that this

provision for attorneyÔs fees be interp reted in a

manner consistent with federal case law involving

a Title VII action. [ 12 ]

47 . In the absence of specific statutory provisions establishing the

pertinent considerations in awarding attorney's fees, Florida courts apply the

factors listed in r ul e 4 - 1.5( b ) i n determining the amount of reasonable

attorney 's fees for legal services in Florida , including those incurred in cases

under the Florida Civil Rights Act , s ee Phillips v. Florida Commission on

Human Relations , 846 So. 2d 1221, 1222 (Fla. 5th D CA 2003), and in

administrative law cases, see Univ ersity Comm unity Hosp ital v. Dep artment

of Health & Rehabilitative Services , 493 So.2d 2, 4 (Fla. 2d DCA 1986).

48 . R ule 4 - 1.5 codifies the factors established by the Florida Supreme

Court in Florida Pat ient's Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla.

1985), for determining reasonable attorney's fees and costs for legal services ,

in cases in which specific statutory provisions do not otherwise establish the

pertinent considerations. 13

12 The last sentence of this section Ð which, at the time, was numbered section 760.11(5) Ð

was added to the statute in 1992 , to make clear that , consistent with federal civil rights case

law, multipliers are not authorized in determining reasonable attorney's fees in cases under

the Florida Civil Rights Act . Winn - Dixie Stores, Inc. v. Reddick , 954 So. 2d 723, 729 (Fla. 1st

DCA 2007); Haines City HMA, Inc. v. Carter , 948 So. 2d 904, 908 (Fla. 2d DCA 2007). No fees

multiplier is sought in this case; therefore , this provision has no bearing on the

determination of reasonable attorney's fe es in this case.

13 Florida courts make clear that when a statute specifically addresses attorney's fees awards, those specific

provisions govern attorney's fees awards under that statute . See, e .g. , Dep't of Ag ric . & Cons umer Servs. v.

Schick , 580 So. 2d 648 (Fla. 1st DCA 1991). In Schick , the court stated: "[I]f a statute exists . . . in which

the legislature has set forth specific criteria that must be considered by a tribunal when deciding a

reasonable award of an attorney's fee, that specific statu te controls Ï not Rowe ." Id. at 650. In section

57.111(3)(a), the Legislature specifically defined "attorney's fees and costs" for purposes of section 57.111 ;

thus, that definition govern s awards of attorney's fees and costs under that statute . By contrast, in this case,

section 760.11(13) does not specifically identify the factors considered in determining reasonable attorney's

fees awards under the Florida Civil Rights Act . Thus, as discussed above, the factors enumerated in Rowe ,

49 . Rule 4 - 1.5 (b) states, in pertinent part:

Factors to Be Considered in Determining

Reasonable Fees and Costs.

(1) Factors to be considered as guides in

determining a reasonable fee include:

(A) the time and labor required, the novelty,

complexity, difficulty of t he questions involved, and

the skill requisite to perform the legal service

properly;

(B) the likelihood that the acceptance of the

particular employment will preclude other

employment by the lawyer;

(C) the fee, or rate of fee, customarily charged in

the locality for legal services of a comparable or

similar nature;

(D) the significance of, or amount involved in, the

subject matter of the representation, the

responsibility involved in the representation, and

the results obtained;

(E) the time li mitations imposed by the client or by

the circumstances and, as between attorney and

client, any additional or special time demands or

requests of the attorney by the client;

(F) the nature and length of the professional

relationship with the client; (G) the experience,

which are now codified in r ule 4 - 1.5, govern attorney's fees awards in such cases. Further, and i mportantly,

neither r ule 4 - 1.5, nor the case law applying these factors, has ever categorically excluded motion practice

from the universe of legal services compensable under those fact ors; rather, r ule 4 - 1.5 and the applicable

case law focus on whether fees for all types of legal services, including motion practice, are reasonable , as

determined applying those factors . W here neither r ule 4 - 1.5 nor case law have expressly created a

categ orical exclusion from fees awards for motion practice, the undersigned is not authorized to read r ule 4 -

1.5 as containing one. See Furst v. Rebholz as Tr. of Rob Rebholz Revocable Tr . , 302 So. 3d 423, 429 (Fla.

2d DCA 2020)( courts cannot read into statutes provisions that are not there); see Eastwood Shores Prop.

Owners Ass'n v. Dep't of Econ. Op p. , 264 So. 3d 264, 268 - 69 (Fla. 2d DCA 2019)(courts are not at liberty

to add language to statutes ).

reputation, diligence, and ability of the lawyer or

lawyers performing the service and the skill,

expertise, or efficiency of effort reflected in the

actual providing of such services [.]

50. In Rowe , the court explained how these factor s are to be considered

and applied in determining reasonable attorney's fees.

51 . The first step in the attorney's fees determination process Ð also

known as the "lodestar" process Ð requires the court to determine the number

of hours reasonably expended on t he litigation. Florida courts have

emphasized the importance of keeping accurate and current records of work

done and time spent on a case, particularly when someone other than the

client may pay the fee. See M. Serra Corp. v. Garcia, 426 So.2d 1118 (Fla. 1st

DCA) ; Brevard Cty. Sch. Bd. v. Walters , 396 So. 2d 1197 (Fla. 1st DCA 1981).

To accurately assess the labor involved, the attorney 's fee s applicant should

present records detailing the amount of work performed. Counsel is expected

to claim only those h ours properly bill ed to the client. Inadequate

documentation may result in a reduction in the number of hours claimed, as

will a claim for hours that the court finds to be excessive or unnecessary. The

" novelty and difficulty of the question involved " shou ld normally be reflected

by the number of hours reasonably expended on the litigation. Rowe , 472 So.

2d at 1150.

52 . The second part of the attorney's fees determination process , which

encompasses many aspects of the representation, requires the court to

determine a reasonable hourly rate for the services of the prevailing party's

attorney. The party who seeks the fees carries the burden of establishing the

prevailing " market rate ," i.e., the rate charged in that community by lawyers

of reasonably comparab le skill, experience , and reputation, for similar

services. Id.

53 . The number of hours reasonably expended, determined in the first

step, multiplied by a reasonable hourly rate, determined in the second step,

produces the lodestar , which is an objective b asis for the award of attorney 's

fees. Id. at 1151.

54 . Finally, as discussed above, "fees for fees" are not considered in

determining reasonable attorney's fees awards in Florida. Bayview ,

286 So. 3d at 861.

III. Application of this Legal Authority to this Case

55 . The first factor to be considered, pursuant to r ule 4 - 1.5(b)(1)(A), is the

time and labor required, the novelty, complexity, difficulty of the questions

involved, and the skill requisite to perf orm the legal service properly.

Unnecessarily d uplicative work is a germane consideration under this factor

in determining whether attorney's fees are reasonable. Brevard Cty. v.

Canaveral Prop ., Inc. , 696 So. 2d 1244, 1245 (Fla. 5th DCA 1997).

56 . Pursuant to the testimony, it is determined that the novelty,

complexity, difficulty of the questions involved, and skill requisite to perform

the work in Case No. 1D 19 - 2165 justifies the billing rates, and almost all of

the hours, charged. As discussed below, t o the extent A mended Exhibit 2

includes matter s excluded by the Order Limiting Evidence on Fees and Costs,

or that constitute "fees for fees" or duplicative work, those hours have been

deducted from the hours billed and total amount of the attorney's fees awar d .

57 . The second factor to be considered , pursuant to r ule 4 - 1.5 (b)(1)(C), is

the l ikelihood that the acceptance of the particular employment will preclude

other employment by the lawyer. As discussed above, Peyton testified that

his work on the Answer Brief, in particular, precluded him from wo rking for

other clients during the time he was researching and preparing the brief.

Thus, this factor supports the award of the fees requested , subject to the

deductions for work excluded by the Order Limiting Evidence on Fees and

Costs, or for "fees for f ees" or duplicative work, discussed below .

58 . The third factor to be considered, pursuant to r ule 4 - 1.5(b)(1)(C) , is the

fee, or rate of fee, customarily charged in the locality for legal services of a

comparable or similar nature. The competent substant ial evidence, consisting

of Johnson's expert testimony, establishes that the billing rates PeytonBolin

charged for its work in Case No. 1D 19 - 2165 was reasonable, and even low, for

appeals involving complex issues in the South Florida legal market.

59 . Th e fourth factor to be considered, pursuant to r ule 4 - 1.5(b)(1)(D) , is

the significance of, or amount involved in, the subject matter of the

representation, the responsibility involved in the representation, and the

results obtained . The competent substanti al evidence establishes that the

issues in Case No. 1D 19 - 2615 were significant to the Association; that

PeytonBolin was solely responsible for representing the Association in Case

No. 1D 19 - 2165 ; and that as a result of PeytonBolin's efforts, the Associatio n

prevailed on appeal. This factor militates in favor of granting an attorney's

fees award in the requested amount, subject to the deductions discussed

below.

60 . The fifth factor, pursuant to r ule 4 - 1.5(b)(1)(E), considers the time

limitations imposed by the client or by the circumstances and, as between

attorney and client, any additional or special time demands or request s of the

attorney by the client. While the evidence does not establish that the

Association imposed any specific time limits on Peyton Bolin's representation

in Case No. 1D 19 - 2165, the competent substantial evidence establish es that

the amount of time that PeytonBolin expended on the appeal was reasonable,

particularly given the nature of the issues on appeal.

61 . The sixth factor to be considered, pursuant to r ule 4 - 1.5(b)(1)(F) ,

concerns the nature and length of the professional relationship w ith the

client. Here, the competent substantial evidence establishes that PeytonBolin

and Maur i Ellis Peyton have served as the Association's gen eral counsel since

2015. T he billing rates for PeytonBolin partners, attorneys, and paralegal s , to

which the Association agreed in this matter were reasonable, given the

nature and length of the professional relationship between PeytonBolin and

the Associa ti on.

62 . The seventh factor, pursuant to r ule 4 - 1.5(b)(1)(G), considers the

experience, reputation, diligence, and ability of the lawyer or lawyers

performing the service and the skill, expertise, or efficiency of effort reflected

in the actua l providing of such services. Here, the competent substantial

evidence, consisting of Johnson's expert testimony , establishes that , given the

complexity of the issues raised in the Initial Brief, and considering the effort

necessary for PeytonBolin to diligently addre ss all of the pertinent issues, the

amount of time that PeytonBolin spent on the appeal was reasonable, and

even on the low side, compared to similar matters.

63 . As noted above , the undersigned concludes that some hours billed , as

shown on Amended Exhibi t 2, should not be considered in determining the

reasonable attorney's fees in Case No. 1D 19 - 2165.

64. Specifically, as discussed above, the billing entries on June 10, 2020,

by the paralegal; June 22, 2020, by the partner ; and July 29, 2020, by the

paral egal constitut e for "fees for fees" work. Pursuant to Bayview , these

billing entries cannot be considered in determining reasonable appellate

attorney's fees.

6 5 . Additionally, pursuant to the Order Limiting Evidence on Fees and Costs ,

the billing entri es on August 27 and 28, 2020, and February 10, 2021, are

excluded from consideration in determining reasonable appellate attorney's

fees.

6 6 . Collectively, the deduction of these hours and corresponding charges

result in a reduction of 2. 7 hours of time billed .

6 7 . Additionally, there were two billing entries by paralegals that are

duplicative of work performed b y attorneys ; therefore, these billing entries

have been deducted from the hours and amount s billed. Specifically, t he

June 8, 2020, time entry o f .1 hours for reviewing the First DCA's O rder

granting appellate fees is duplicative of the work billed by a partner on

June 8, 2020, for substantially the same task . Additionally, the

September 26, 2019, time entry is duplicative of the September 20, 20 19,

work billed by a partner; thus, . 1 hours for paralegal work has been deducted.

Collectively, these deductions result in a reduction of . 2 hours of time billed . 14

6 8 . As discussed above, Simhoni contends that redacted descriptions on

A mended Exhibit 2 f or certain billing entries render it impossible to

determine whether the se entries are reasonable. Redaction should be done in

such a manner that it does not disclose attorney - client privileged

communications or attorney work product , but does not withhold information

that does not fall within these categories protected from disclosure. See Finol

v. Finol , 869 So. 2d 666 (Fla. 4th DCA 2004). A review of the redacted entries

shows that the redactions involved attorney communications with the client ,

which ge nerally are protected from disclosure under the attorney - client

privilege . 15 To the extent Simhoni wished to explore whethe r the attorney -

client privilege properly attached to these entries, she could have conducted

prehearing discovery and requested the AL J to conduct an in camera review

to determine whether the attorney - client privilege attached to the

communications. See Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller,

P.A. , 584 So. 2d 1128 (Fla. 4th DCA 1991). She did not do this . Here, there is

no c ountervailing evidence in the record to rebut the competent substantial

evidence presented by the Association , showing that these communications

were protected by the attorney - client privilege. Accordingly, the undersigned

declines to deduct any hours or a mount billed by PeytonBolin on the basis of

redacted billing entries .

6 9 . Based on the foregoing, it is concluded that the total number of hours

billed for Case No. 1D19 - 2165 should be reduced by 2.9 hours, from 57.7

hours to 54.8 hours , and the amount of reasonable attorney's fees to be

14 Courts are authorized to deduct duplicative fees in dete rmining reasonable attorney's fees.

See Brake v. Murphy , 736 So. 2d 745, 748 (Fla. 3d DCA 1999); Canaveral Prop., Inc . 696 So.

2d at 1245 (Fla. 5th DCA 1997).

15 See § 90.502(1)(c), Fla. Stat.

awarded to the Association in Case No. 1D19 - 2165 should be reduced by

$582.00, from $16,545.00 to $15,963.00 . 16

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that the reasonable attor ney's fees owed to Petitioner, Mimo on the

Beach I Condominium, by Respondent, Tal Simhoni, total $15, 963.00 .

D ONE A ND O RDERED this 2 4th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

C ATHY M. S ELLERS

Adminis trative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of May , 2021 .

C OPIES F URNISHED :

Melissa A. O'Connor, Esquire Cheyanne Costilla, General Counsel

Nat aly Gutierrez, Esquire Florida Commission on Human Relations

PeytonBolin, PL 4075 Esplan ade Way, Room 110

3343 West Commercial Boulevard , Suite 100 Tallahassee, Florida 32399 - 7020

Fort Lauderdale, Florida 33309

Tammy S. Barton, Agency Clerk

Tal Simhoni Florida Commission on Human Relations

Post Office Box 964 4075 Esplanade Way, Room 110

New York, New York 10018 Tallahassee, Florida 32399 - 7020

16 As noted above, these calculations were derived by deducting , from the hours worked and

fees billed as stated on Amended Exhibit 2 , the amount of hours worked and fees billed that ,

pursuant to the foregoing Findings of Fact and Conclusions of Law , were not considered in

determining reasonable attorney's fees in Case No. 1D19 - 2165 .

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by t his Final Order is entitled to judicial

review pursuant to section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appe llate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.