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: MOTION FOR ATTORNEYS FEES & COSTS SUNRISE VILLAGE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Fee Case No Rel. Case No TRACEY COLE and WILLARD COLE, Respondents. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On December 19, 2016, Tracey Cole and Willard Cole (Respondents) filed a motion for attorney s fees and costs seeking an award of $23, in attorney s fees and costs. On February 8, 2017, Sunrise Village Condominium Association, Inc. (the Association), the legal entity responsible for the operation of the Sunrise Village Condominium located in Brevard County, Florida, filed a response to Respondents motion to which Respondents filed a reply on February 20, Underlying Case History This fees case arises from arbitration case number In the underlying case, the Association filed an Amended Mandatory Non-Binding Petition alleging that Respondents are the owners of a unit at Sunrise Village Condominium (the Condominium) and that they were keeping a dog that weighs more than 29 pounds in violation of the Association s governing documents. In their answer, Respondents did not deny that they were keeping an overweight dog, rather, they alleged that they were informed during a meeting of the Association s 1

2 board of directors that the weight limitation was inapplicable if the dog was registered as a service dog. Respondents further claimed that after the meeting they were advised by the Association s management company that they could keep the dog if it was registered as a service dog. Therefore, Respondents claim that they registered the dog as a service dog. Respondents also asserted the affirmative defenses of equitable estoppel, promissory estoppel, waiver, breach of implied covenant of good faith and fair dealing, selective enforcement, and unreasonable or arbitrary enforcement. After a final hearing was held, the arbitrator previously assigned to this matter found that the Association had engaged in selective enforcement of the pet restriction, and therefore, issued a final order denying the Association s request for an order requiring removal of the dog. The Association timely filed a motion for rehearing arguing that the arbitrator lacked subject matter jurisdiction over Respondents selective enforcement defense because it involved fair housing laws. The undersigned denied the Association s motion finding that the prior arbitrator did not have to delve into the merits of Respondents fair housing claim in order to find that the Association had engaged in selective enforcement. 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)). 2

3 A summary final order was entered in the underlying case denying the Association its requested relief. Furthermore, the Association s motion for rehearing was denied. Therefore, Respondents are the prevailing party in the underlying case and are entitled to recover their reasonable attorney s fees and costs. Attorney s Fees The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by Respondents. 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 Rule 61B , Florida Administrative Code. Respondents seek reimbursement for the efforts of attorneys Mathew T. Manning, Eric Burke and Shane M. Smith. The experience, hourly rate and number of hours claimed by Respondents for each attorney are as follows: 3

4 Attorney Experience Hourly Rate Number Hours Manning 2 years $ Burke 1 ½ years $ Smith 3 years $ & $ Hourly Rate After considering the above factors, the undersigned finds the hourly rate requested for each attorney to be excessive. A reasonable rate for attorneys with Mr. Manning and Mr. Burkes level of experience is $ per hour. A reasonable rate for Mr. Smith is $ an hour. Number of Hours Respondents claim that they are entitled to be reimbursed for hours of legal services by their attorneys. The claimed amount of time is excessive. Respondents will not be awarded for the same task performed by multiple attorneys, or meeting time among the attorneys, because it is a duplication of effort. See Fennessy v. Coastal Estates, Inc., Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs (October 14, 2010). Furthermore, Respondents only will be awarded for the time incurred by the attorney primarily handling the case. This results in a deduction of 4.92 hours for Mr. Smith. Attorney s fees incurred in the transferring of a case from one attorney to another are not recoverable. Fiore at the Gardens Condo. Ass n, Inc. v. Anderson, Arb. Fee Case No , Final Order on Attorney s Fees and Costs (March 15, 2012). Therefore, Mr. Burke s time will be reduced by 7.5 hours, and Mr. Smith s time will be reduced by 0.2 hours. 4

5 Respondents will not be reimbursed for clerical work performed by their attorneys. See Raybin v. The 18 th Hole At Inverrary Ass n, Inc., Arb. Case No , Final Order On Attorney s Fees and Costs (April 4, 2016). This results in the deduction of 5.7 hours for Mr. Manning and 0.3 hours for Mr. Burke. Respondents seek reimbursement for 18.3 hours expended by Mr. Manning in preparation for the arbitration final hearing. 1 Respondents also seek reimbursement for 2.9 hours expended by Mr. Smith related to preparation for, and attendance at, the final hearing. Thus, Respondents seek reimbursement for 21.2 hours expended by their attorneys preparing for the final hearing. The final hearing lasted about 4.6 hours. The Association s witness list indicated that the Association only intended to call one witness, while Respondents witness list stated they intended to call three witnesses. During the hearing, the Association called one witness and the only witnesses to testify in Respondents case were themselves. The amount of final hearing preparation expended by Mr. Manning is excessive. Therefore, his time will be reduced by 10 hours. Respondents claim that Mr. Smith expended a total of 7.5 hours preparing for and representing Respondents during the final hearing. The claimed time is reasonable and is awarded. The Association objected to hours expended by Respondents attorneys related to Respondents official records requests made to the Association. However, a unit owner desiring to obtain copies of official association records for use in an arbitration proceeding must utilize the owner s statutory right of access to the official records in lieu of discovery. Fla. Admin. Code R. 61B (1). Therefore, Respondents will be awarded the time expended by their attorneys related to requests to access the Association s official 1 This time does not include any time that has already been discounted as duplicative. 5

6 records. Respondents attorneys timesheet includes 0.2 hours of time expended by Mr. Manning described as Discussion of daughter s case with AG: reviewed paperwork. It does not appear that this activity is related to the arbitration case and, therefore, will not be awarded. After considering the above factors, the undersigned finds that the remaining time expended by Respondents attorneys is reasonable. Therefore, Respondents are awarded attorney s fees as follows: Attorney Hours Hourly Rate Total Manning 61.4 $ $10, Smith $ $2, Burke 17.9 $ $3, Respondents are awarded a total of $16, in attorney s fees. Initially, this may seem excessive; however, Respondents incurred additional attorney s fees due to the Association s unsuccessful motion for rehearing filed in the underlying case. Paralegal Fees Respondents motion indicates that April Dawn Gentile, a paralegal/legal assistant, worked on their case. Paralegal services may be compensable as part of an attorney's charges when it is demonstrated that the paralegal performed non-clerical, meaningful legal work, the paralegal services reduced billable time of attorneys, and the rate for the paralegal services is demonstrated to be reasonable. Estes, et al. v. Lido of Pinellas Condo. Ass n, Inc., Arb. Fees Case No F, Final Order on Attorney's Fees (May 31, 1995). Ms. Gentile performed clerical work. Therefore, Respondents 6

7 will not be reimbursed for paralegal fees. Unidentified People Neither the motion nor the timesheets identify the persons listed on the timesheets as KH and SO. Therefore, Respondents will not be reimbursed for the related attorney fees. Costs Respondents request reimbursement of $1, for costs. Not all the costs sought by Respondents are recoverable. Respondents seek to recover the cost for a court reporter to appear at the final hearing and the cost of the final hearing transcript. Respondents have provided receipts proving that such costs totaled $1, Where the transcript of the final hearing is filed with the arbitrator in the underlying case in order to assist the arbitrator, the related court reporter fees are recoverable. See Warren v. Springwood Condo. Ass n of Longwood, Inc., Arb. Case No , Final Order On Motion For Attorney s Fees (February 20, 2002). The transcript was filed in the underlying case at the request of the arbitrator. Therefore, Respondents will be reimbursed $1, The remaining costs claimed by Respondents include postage costs, photocopying costs, and online legal research costs. These costs will not be awarded for the reasons set forth below. Costs for mail 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, Number Two, Inc. v. Bleau Fontaine Community Ass n, Inc., Arb. No , Final Order on Attorney s Fees (January 26, 2001). Therefore, Respondents will not be awarded the cost of postage. 7

8 Pursuant to the Statewide Uniform Guidelines for Taxation of Costs, the costs of copies of documents filed with the court, which are reasonably necessary to assist the court in reaching a conclusion, are recoverable. 2 However, Respondents have failed to sufficiently describe the nature of the copies for which they seek reimbursement, so that the arbitrator can determine if the copies are a recoverable cost. Therefore, Respondents will not be awarded any costs for its copies. The cost of online legal research is an unrecoverable overhead cost. Ocean Winds, Inc. v. Ashburn, Arb. Fee Case No , Final Order on Attorney s Fees and Costs (March 9, 2009). Therefore, Respondents are not awarded the cost of online legal research. Based upon the foregoing, it is ORDERED: Within thirty days of the date of this order, the Association shall pay Respondents $17, for reimbursement of attorney s fees and costs incurred by Respondents in the underlying case. DONE AND ORDERED this 22 nd day of February, 2017, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida Telephone: ; Fax: For example, in an arbitration case the copies of the condominium documents required to be provided with the petition are recoverable if they are sufficiently described in the request for costs. 8

9 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 22 nd day of February 2017: Nicholas A. Vidoni, Esq. Watson, Soileau, DeLeo & Burgett, PA 3490 N Highway 1 Cocoa, FL Attorney for Petitioner Shane M. Smith, LL.M., Esq Dairy Road Suite 104 Melbourne, FL Attorney for Respondents James W. Earl, Arbitrator 9