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 Aversana at Hammock Bay Condominium Association, Inc., Petitioner, v. Fee Case No Rel. Case No Joseph P. Costello, Respondent. / FINAL ORDER ON PETITIONER S MOTION FOR ATTORNEY S FEES AND COSTS On December 1, 2014, Aversana at Hammock Bay Condominium Association, Inc. (the Association) filed its motion to recover attorney s fees and costs from Joseph P. Costello (Respondent) in the total amount of $3, The Association is the legal entity responsible for the operation of Aversana at Hammock Bay Condominium located in Collier County, Florida. On December 8, 2014, an Order Permitting Response was entered. As of the date of the Order entered herein, Respondent has not filed a response. This Order is entered accordingly. Findings This fee case arises from arbitration case number In the underlying case, the Association alleged that Respondent violated Section (5), Florida Statutes, Sections 5, 12 and 13 of the Declaration of Condominium and Articles I and X of the Association s Bylaws by failing to allow access to his unit for: 1) HVAC, water heater, and water expansion tank inspection (or provide proof of replacement within the last 5 years or of inspection performed in 2014); 2) 5 year inspection of the Page 1 of 8

2 unit s sprinkler suppression system and sprinkler head; and 3) inspection for water intrusion, mold, leaks, or damage to his Unit. On November 4, 2014, a Final Order After Default was entered against Respondent after Respondent failed to file any communication in response to the petition, which was served personally on Respondent on September 10, 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)). The Association has prevailed in this case. Therefore, the Association is entitled to recover reasonable attorney s fees and costs. 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 2 of 8

3 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 seeks compensation for the legal services of William G. Morris, Esq., of Law Offices of William G. Morris, P.A., and Richard D. DeBoest, Esq., of Goede, Adamczyk & DeBoest, PLLC. Attorney Morris filed the petition and was attorney-of-record until after a Default was entered on October 9, Attorney DeBoest then took over the case after a Stipulation for Substitution of Counsel was filed on October 16, Attorney DeBoest filed the motion for fees and costs, including his affidavit and the affidavit of Attorney Morris. Rule 61B (2), Florida Administrative Code, requires, in part: (2) A prevailing party seeking an award of costs and attorney s fees shall file a motion seeking the award not later than 45 days after rendition of the final order.... The motion is considered filed when it is received by the division. The motion shall: (a) State the basis for the petition and the total attorney s fees and costs that are claimed; (b) Specify the hourly rate claimed; (c) Include an affidavit by the attorney who performed the work that: 1. States the number of years in which the attorney has been practicing law, 2. Indicates each activity for which compensation is sought, and 3. States the time spent on each activity. In a case involving multiple issues which are separate and distinct from each other, the affidavit shall identify the specific issue for which each activity was performed. Page 3 of 8

4 The Association seeks compensation for the legal services of Attorney Morris firm at an hourly rate between $ and $ The affidavit of Attorney Morris did not state the number of years he had been practicing law. In any event, the website for the Florida Bar shows that Attorney Morris was admitted to practice in May Thus, Attorney Morris had been practicing law for approximately 33 years while the case was pending. After considering the above factors, the undersigned finds that $ is a reasonable hourly rate for Attorney Morris, based upon an attorney with like experience practicing law in the same location in Florida. See, e.g., Davis v. Island Place at Bay Harbor Condo. Ass n, Inc., Arb. Fee Case No , Final Order on Attorney s Fees and Costs (Oct. 27, 2010) (hourly rate of $ excessive for attorney with 39 years of experience; reasonable rate $275.00); Porter v. Embassy Condo. Apts. Ass n, Inc., Arb. Fee Case No , Final Order on Petitioner s Motion for Order of Entitlement and Determination of Amount of Costs and Attorney s Fees (Jan. 29, 2009) (hourly rate of $ excessive for attorney with 31 years of experience; reasonable rate $275.00). Contrary to the rule, there was no affidavit of any other attorney in the firm who performed the work, therefore only the time of Attorney Morris can be awarded. The Association seeks compensation for the legal services of Attorney DeBoest at the hourly rate of $ The affidavit of Attorney DeBoest did not state the number of years he had been practicing law. In any event, the website for the Florida Bar shows that Attorney DeBoest was admitted to practice in October Thus, Attorney DeBoest had been practicing law for approximately 21 years while the case was pending. After considering the above factors, the undersigned finds that $ is a reasonable hourly rate for Attorney DeBoest, based upon an attorney with like Page 4 of 8

5 experience practicing law in the same location in Florida. See, e.g., Paradise Pointe Condo. Ass n, Inc. v. Paradise Pointe Community Ass n, Inc., Arb. Fee Case No , Final Order on Respondent s Motion for an Award of Attorney s Fees and Costs (June 21, 2013). 2. Attorney Hours The Association seeks reimbursement for 1.9 hours of time expended by Attorney Morris. Not all of the hours can be awarded. As a preliminary matter, it has always been held that with the exception of preparing the pre-arbitration demand letter required by Section , Florida Statutes, for which one hour is typically awarded, attorney s fees incurred prior to the drafting of the petition for arbitration are not fees incurred in the arbitration proceeding and are therefore not awarded. Desy v. River Key Condo. Ass n, Inc., Arb. Case No F, Final Order on Motion for Attorney s Fees and Costs (May 20, 1993) (fees incurred prior to the drafting and filing of the petition are not recoverable in the arbitration proceeding). The Association has included in counsel s timesheets for Attorney Morris 0.4 hours that must be deducted for this reason. Stevens v. Cricket Club Condo. Assn., Inc. Arb. Fee Case No Final Order on Motions for Attorney s Fees (July 29, 2005). Therefore, the Association will be awarded 1.5 hours for the efforts of Attorney Morris, resulting in a fee award of $ The Association seeks reimbursement for 2.5 hours of time expended by Attorney DeBoest. Not all of the hours can be awarded. The Association seeks 0.8 hours for review of the file and preparation and finalizing the stipulation for substitution of counsel and the cover letter to the arbitrator. Page 5 of 8

6 These are not hours and fees incurred in the arbitration proceeding, and they will not be awarded. The remaining 1.7 hours expended by Attorney DeBoest will be awarded. Therefore, the Association will be granted a fee award of $ for the efforts of Attorney DeBoest. C. Paralegal Fees The Association seeks reimbursement for the time expended by a paralegal for Attorney DeBoest. Fees for the work of paralegals cannot be awarded where the motion fails to identify the paralegal and provide the paralegal s qualifications. Seminole-on-the-Green, Cavalier Bldg. One Ass n, Inc. v. Jackson, Arb. Case No , Final Order on Petitioner s Motion for Award of Costs and Attorney s Fees (Feb. 7, 2007). The motion failed to identify the paralegal and provide the paralegal s qualifications, therefore no time will be awarded for paralegal services. D. Costs The Association seeks costs expended by Attorney Morris in the total amount of $136.41, broken down as follows: $50.00 for the filing fee; $40.00 for service of process; $38.75 for copies; and $7.66 for postage. The filing fee is a necessary expense and will be awarded. The packet containing the Order Requiring Answer, the petition with attachments and the rules mailed by certified mail, return receipt requested, by the Arbitration Section was returned by the U.S Postal Service. Therefore, the $40.00 cost for service by a process server was necessary and will be awarded. Pursuant to the Statewide Uniform Guidelines for Taxation of Costs, the cost of copies of documents filed with the court which are reasonably necessary to assist the Page 6 of 8

7 court in reaching a conclusion are recoverable. 1 However, the Association has failed to describe sufficiently the nature of the copies for which it seeks reimbursement, and for this reason, the arbitrator cannot determine if the copies are a recoverable cost. Therefore, the Association will not be awarded any costs for its copies. 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 the cost of postage. Based upon the foregoing, it is ORDERED: Within thirty (30) days of the date of this Final Order, Respondent shall reimburse the Association a grand total award of $927.50, which includes attorney s fees in the amount of $837.50, representing $ for the services of William G. Morris, Esq. and $ for the services of Richard D. DeBoest, Esq., and costs expended by Attorney Morris in the amount of $ DONE AND ORDERED this 11 th day of February, 2015, at Tallahassee, Leon 1 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. Page 7 of 8

8 County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Phone: (850) /FAX: (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 11 th day of February 2015: Richard D. DeBoest, Esq. Goede, Adamczyk & DeBoest, PLLC 2030 McGregor Boulevard Fort Myers, Florida Attorneys for Petitioner Joseph P. Costello 1060 Borghese Lane #1202 Naples, Florida Respondent William G. Morris, Esq. Law Offices of William G. Morris, P.A. 247 North Collier Blvd. Suite 202 Marco Island, Florida Attorney for Petitioner Glenn Lang, Arbitrator Page 8 of 8