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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION The Nancy Lane Association, Inc., Petitioner, v. Fee Case No Rel. Case No Robert J. Gerola, Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On January 17, 2008, The Nancy Lane Association, Inc. (the Association) moved for an award of $4, in attorney s fees and $ in costs totaling 4, On February 22 and March 14, 2008, Respondent filed objections to motion. On March 17, 2008, the Association filed a reply to Respondent s response. Findings of Fact 1. This fees case arises from arbitration case number In the underlying case, the Association filed a petition alleging that Respondent violated the Association s governing documents by failing to maintain his mobile home, other structures, boat dock wall, seawall, driveway, sidewalks, landscaping and yard. The Association further alleged that Respondent had allowed vermin to infest his property and had created numerous unsafe, unsanitary, and unsightly conditions. As relief, the Association requested that the respondent be ordered to; a. Remove his dock; b. Repair his seawall; 1

2 c. Remove all weeds and overgrowth and to maintain the landscape properly; d. Remove his mobile home and associated strutures; e. Remove all trash and debris from the property; f. Abate termite and other insect infestations; g. Abate the rodent infestation; h. Abate foul odors emanating from the property; i. Do whatever else is necessary to restore the property to an attractive, safe, and health condition, which may include demolition/removal of the structures, mobile home, and improvements, except for the seawall; j. Pay all fines; and k. Continue to maintain the premises as required by the declaration. 3. Since the petition and order requiring answer were not successfully served on Respondent by the arbitrator, the Association was directed to effectuate service on Respondent. 4. The Association filed a notice on October 4, 2007, stating that Respondent was served on October 2, On October 26, 2007, Respondent filed an answer asserting a denial of the Association s allegations and contending that the dispute was moot. 6. On October 30, 2007, the Association filed a response to Respondent s claim that the dispute was moot. The Association stated that it agreed that repairs were started on the seawall; however, the Association claimed that the workers who did the sea wall repair left the property in an even more unsightly general condition than previously existed. The Association further stated that the dispute was not moot as it was still seeking an order requiring Respondent to: a. Remove his dock; b. Remove all weeds and overgrowth and to maintain the landscape properly; c. Remove his mobile home and associated strutures; d. Remove all trash and debris from the property; 2

3 e. Abate termite and other insect infestations; f. Abate the rodent infestation; g. Abate foul odors emanating from the property; h. Do whatever else is necessary to restore the property to an attractive, safe, and health condition, which may include demolition/removal of the structures, mobile home, and improvements, except for the seawall; i. Pay all fines; and j. Continue to maintain the premises as required by the declaration. 7. A case management conference was held on November 11, 2007, in the underlying case during which the parties agreed to hold the matter in abeyance for 45 days in order to permit Respondent to effectuate repairs on his unit and to allow the Association to confirm compliance. 8. On November 21, 2007, the Association filed a notice that Respondent had cured the violations complained of in the petition rendering the dispute moot, other than the issue of the Association s entitlement to recover costs and attorney s fees. 9. On October 27, 2007, an order was entered dismissing the underlying case as moot. Conclusions of Law 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)). Respondent objects to the Association s motion arguing: 1. The fees are excessive, relative to the nature of the work performed; 3

4 2. There is no written retainer agreement; therefore, the fees are highly suspect; 3. There was no prevailing party because the claim was withdrawn; 4. That a new petition for legal fees, which details the claim does not support a claim for legal fees, as it is not submitted with any proof that the client authorized it. Respondent has not filed any proof that counsel lacked authorization to pursue this matter. Additionally, Respondent objects to an award of fees and costs because the Association has not provided a written retainer agreement. The Association s motion complies with the requirements the rule that governs requests for fees and costs, Rule 61B , Fla. Admin. Code. The rule does not require that a copy of written retainer agreement be provided. The Association argues that it should be deemed the prevailing party because any significant portion of the relief requested under the petition was not achieved until after Respondent was served with the petition. Where the underlying case is rendered moot due to the respondent s compliance, the petitioner is presumed to be the prevailing party for the purpose of awarding costs and attorney s fees if the respondent s compliance was motivated by the filing and receipt of the petition. Rule 61B (7), Florida Administrative Code. See The Diplomat Apartment Association v. Johnson, Arb. Case No , Final Order on Attorney s Fees and Costs( May 23, 2006) see also Bermuda Cays Condo. Assoc., Inc. v. Baker, Arb. Case No , Final Order on Attorney s Fees (March 12, 1999), Boca Terrace Condo. Assoc., Inc. v. Grecco, Arb. Case No , Final Order on Attorney s Fees (September 14, 1998). 4

5 Based upon the record in the underlying case, it is clear that substantial compliance with the Association s demands did not occur until after Respondent received the petition. Therefore, the Association is deemed to be the prevailing party. 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 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 , Fla. Admin. Code. The Association seeks reimbursement for the hours of legal services by Susan M. McLaughlin, Esq., at the rates of $ and $ per hour. Ms. McLaughlin was admitted to the Florida Bar on April 19, 2001, and started practicing law in Pennsylvania in The undersigned finds that the requested rates are reasonable. 5

6 Petitioner requests reimbursement for hours of services by Ms. McLaughlin. The undersigned finds the requested amount of time was reasonable and necessary to litigate the dispute. Therefore, the Association is awarded hours for total of $4, The Association seeks to recover costs consisting of the $50.00 arbitration filing fee and $ for the process of service. The filing fee is recoverable. Since the Association was required to effectuate service on Respondent, the cost of service of process is also awardable. Therefore, the Association is awarded $ in costs. WHEREFORE, the Respondents shall pay the sum of $4, to the Association within thirty (30) days of the date of this order. DONE AND ORDERED this 22 nd day of April 2008 at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 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. 6

7 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order was mailed by U.S. mail, postage prepaid, this 22 nd day of April, 2008, to: Susan M. McLaughlin, Esq. DeBoest, Stockman, Decker Broughton & Hagan, P.A McGregor Boulevard Fort Myers, FL Joseph A. Altman, Esq. Joseph A. Altman, P.C East 163 rd Street Bronx, NY James W. Earl, Arbitrator 7