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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION HILLCREST EAST, NO. 19, INC., Petitioner, v. Fee Case No Rel. Case No CARRIE A. PADO, Respondent. / FINAL ORDER ON PETITIONER S MOTION FOR AWARD OF PREVAILING PARTY ATTORNEY S FEES AND COSTS On September 19, 2016, Petitioner, Hillcrest East No. 19, Inc. (the Association), the legal entity responsible for the operation of Hillcrest East No. 19, a Condominium, located in Broward County, Florida, filed a motion for an award of $2, in attorney s fees and costs against Carrie A. Pado, Respondent. By Order entered on September 19, 2016, Respondent was directed to file a response within twenty (20) days of the date of the Order. As of the date of entry of this Final Order, Respondent has not filed a response or any other documents with the office of the arbitrator. This Final Order is entered accordingly. Findings This fees case arises from arbitration case number In the underlying case, the Association filed a petition on December 21, 2015, alleging that Respondent refused to provide the Association with a key to her unit, in violation of the Declaration of Condominium. Page 1 of 6

2 Because Respondent could not successfully be served by U.S. Certified Mail, an Order Requiring Service was entered on February 4, Respondent was duly served with the Petition and the Order Requiring Answer. On April 8, 2016, Respondent filed an answer. The answer indicated that Respondent had, at one time, provided the Association with a key to her unit, but took the key back due to her concerns that the Association was not properly safeguarding it. A telephonic case management conference was held in this matter on June 14, Both parties attended the conference. At the conference, Respondent agreed to provide the Association with a key. The Association was thereafter ordered to file a status report. On July 21, 2016, the Association filed a status report stating that the matter had not been resolved, and that Respondent was attempting to impose unreasonable conditions on the Association s use of the key. A second telephonic case management conference was held on August 30, 2016, at which the parties agreed that the matter had been resolved. Therefore, the arbitrator found the underlying case to be moot, and entered a Final Order of Dismissal on August 31, Conclusions A. Prevailing Party 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, 809 (Fla. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). In cases where Page 2 of 6

3 there is no decision on the merits, such as in cases where a voluntary dismissal is entered, or cases that become moot, the prevailing party is determined by looking at the facts of the case, particularly the timing of the event that caused the case to be dismissed. The Laurels at Margate Condominium Association, Inc., v. Slonecky, Final Order on Motion for Attorney s Fees, Arb. Case No F (July 28, 1994). Respondent provided the Association with a key only after the petition was filed and a copy of the petition and the Order Requiring Answer were served on Respondent. The arbitrator finds that Respondent s actions were motivated by the filing and receipt of the petition. As the underlying case was rendered moot due to Respondent s compliance with the petition, the Association is presumed to be the prevailing party for the purpose of awarding costs and attorney s fees. Fla. Admin. Code R. 61B (7). Respondent failed to make any meritorious argument to rebut this presumption. Consequently, the Association will be awarded its reasonable fees and costs pursuant to Section (4)(k), Florida Statutes, and Rule 61B , Florida Administrative Code. B. Attorney s Fees The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by the Association. 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 the litigation by a reasonable hourly rate for the services 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 Page 3 of 6

4 hourly rate and the number of hours reasonably expended must be separately considered. See Rowe, 472 So. 2d 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 , Florida Administrative Code. 1. Hourly Rate The Association has provided an affidavit that explains the amount of attorney s fees and costs sought. The Association seeks compensation for the legal services of Roger G. Pickles, Esquire at the rate of $ per hour. Attorney Pickles had been practicing law in Florida for approximately 17 years while the underlying case was pending. 1 After considering the above factors, the undersigned finds that $ is a reasonable hourly rate for an attorney with Attorney Pickles experience, and falls within the range of fees charged in the locality for similar legal services. See, e.g., Seascape of Jacksonville Beach Condo. Ass n, Inc. v. Theresa M. Ackley Trust, Arb. Fee Case No , Final Order on Motion to Tax Attorney s Fees and Costs (July 22, 2016). 2. Attorney Hours The Association claims a total of hours of attorney time for Attorney Pickles services. These hours are reasonable. The Association is thus awarded the sum of $2, for hours of Attorney Pickles time at $ per hour. 1 The Florida Bar s website shows that Attorney Pickles was admitted in Florida on September 22, Page 4 of 6

5 C. Costs The Association seeks costs in the amounts of $50.00 for the filing fee; $60.00 for service of process; and $20.84 for Certified Mail postage. The $50.00 filing fee is appropriate, and it is awarded. The cost of a process server can be awarded when necessary, and will be in this case. The arbitrator entered an order requiring service by the Association on Respondent, who could not be served successfully by certified mail. The Association provided an invoice from the process server in support of its request. Costs for postage and messenger services are not recoverable, as they are routine overhead expenses that should be incorporated into the attorney's hourly rate. See Barrera, individually and Bleau Fontaine Condo. No. Two, Inc. v. Bleau Fontaine Community Ass'n., Inc., Arb. Case No , Final Order on Attorney's Fees (Jan 26, 2001); Mitchell v. Osceola Farms Co., 574 So. 2d 1162 (Fla 4th DCA 1991); Griffith v. Griffith, 941 So. 2d 1285 (Fla 4th DCA 2006). Thus, the Association will not be awarded postage costs. Accordingly, the Association is awarded the sum of $ for costs. Based upon the foregoing, it is ORDERED: Respondent Carrie A. Pado shall, within 30 days of the date of this Order, pay to Hillcrest East, No. 19, Inc., the total amount of $2,191.25, which represents reimbursement for $2, in attorney s fees and $ in costs. DONE AND ORDERED this 21 st day of November, 2016, at Tallahassee, Leon Page 5 of 6

6 County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida Telephone (850) Facsimile (850) Trial de novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. 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 21 st day of November, Roger G. Pickles, Esq. The Law Offices of Robert P. Kelly 2514 Hollywood Blvd., Suite 307 Hollywood, FL Attorney for Petitioner James Potts, Esq North Park Dr. Unit 104 Weston, FL Attorney for Respondent Leslie O. Anderson-Adams, Arbitrator Page 6 of 6