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 LAKE POINT TOWER CONDOMINIUM, INC. Petitioner, v. Fee Case No Rel. Case No RAYMOND J. MAFFUCCI and ANGELA MAFFUCCI, Respondents. / FINAL ORDER ON PETITIONER S MOTION FOR ATTORNEY S FEES AND COSTS AND RESPONDENTS MOTION IN OPPOSITION AND AFFIDAVIT OF RESPONDENTS ATTORNEY S FEES AND COSTS Procedural History 1. On February 16, 2009, Petitioner filed a Motion for Attorney s Fees and Costs seeking the recovery of $2,000 in attorneys fees and $74.32 in costs. 2. On February 25, 2009, an Order Permitting Response was entered. 3. On March 23, 2009, Respondents filed a Memorandum of Law in Opposition of Petitioner s Motion for Prevailing Party Fees and Costs and an Affidavit of Respondents Attorney s Fees and Costs. 4. On April 13, 2009, Petitioner filed a Notice of Filing of the original affidavit of Nikki Guzman, Associate Manager for Lake Point Tower Condominium, Inc., alleging Respondents son vacated the unit on December 22, 2008, thereby resolving the 1

2 allegations of violation of the Association s Declaration of Condominium after the filing of the petition with the division. 5. On April 27, 2009, Petitioner filed a Notice of Filing Amended Supplemental Affidavit of Attorney s Time and Cost. 6. On May 5, 2009, Petitioner Filed an Executed Second Supplemental Affidavit of Attorney s Fees and Costs. 7. On May 7, 2009, Respondents attorney filed a letter requesting copies. FINDINGS OF FACT 1. On July 23, 2008, Petitioner Lake Point Tower Condominium, Inc, filed a Petition for Mandatory Non-binding Arbitration naming Raymond J. Maffucci and Angela Maffucci as respondents alleging Respondents had allowed an unauthorized occupant to create a nuisance by his improperly littering through the condominium in violation of Article X, section (b) of the Declaration of Condominium, and had allowed the occupancy of the unit in violation of Article XIII of the Declaration of Condominium which requires, in pertinent part, submission of an application, $100 application processing fee, and appearance before, and approval by, the screening committee of the Board of Directors. 2. On July 31, 2008, an Order Requiring Amended Petition was entered which required Petition to set forth all of the facts relevant to the alleged nuisance. 3. On October 27, 2008, Petitioner filed a Motion for Extended Time to Amend the Petition. 4. On November 4, 2008, Petitioner filed an Amended Petition for Mandatory Non-binding Arbitration, specifying Respondents tenant created a nuisance pursuant to Article X, section (b), of the Declaration of Condominium, by extinguishing lit cigarettes by 2

3 scrapping the ash end on walls, causing discolorization and staining on the walls; dropping used cigarette butts on the 12 th floor stairway, stairway landing and hallway; spilling unidentified liquids, including urine, in the 12 th floor stairway, stairway landing and hallway; and that said violations are continuing in nature and have been occurring since at least May of In addition, Petitioner alleged that Respondents tenant was unauthorized pursuant to Article XIII of the Declaration of Condominium, which requires, in pertinent part, submission of an application, $100 application processing fee, and appearance before, and approval by, the screening committee of the Board of Directors. 5. On November 10, 2008, an Order Requiring Answer was entered. 6. On December 24, 2008, Respondents counsel filed a Notice of Unavailability and an Answer. Respondents Answer identified Respondents occupant as Jose Andres Sosa, their adult son and not an unauthorized occupant 1 ; admitted that Mr. Sosa threw cigarette butts on the floor and the hallway; admitted that Mr. Sosa had not paid a processing fee and had not appeared before the committee. Respondents denied the remaining allegations. 7. On January 7, 2008, an Order Requiring Mediation was entered. 8. On January 15, 2009, Petitioner s Attorney ed the Mediator stating the matter was moot. 9. On January 16, 2009, Mediator Rob Longshore filed a Memorandum Closing Case. 10. On January 21, 2009, a Notice of Communication and Order to Show Cause 1 Pursuant to Article X, section (a), of the Declaration of Condominium, which states, in pertinent part, [e]ach APARTMENT is hereby restricted to residential use by the Owner or Owners thereof, their immediate families, guests and invitees. [emphasis supplied] 3

4 was entered. A copy of the Mediation Memorandum quoting Petitioner s was attached and Petitioner was ordered to comply with Rule 61B (4), Florida Administrative Code, which does not authorize the filing of pleadings, motions, documents or other communication by On January 28, 2009, Petitioner filed Petitioner s Motion for Prevailing Parties and Costs which alleged the Respondents had come into compliance by removing the unauthorized tenant. Attached to Petitioner s motion was an Affidavit of Compliance stating the unauthorized tenant had vacated the premises on December 22, On February 2, 2009, Petitioner filed Petitioner s Suggestion of Mootness and Notice of Intention to Seek Prevailing Party Fees and Costs in Response to Notice of Communication and Order to Show Cause. 13. On February 3, 2009, a Final Order Dismissing Case as Moot was entered. 14. On February 16, 2009, Petitioner filed a Motion for Attorney s Fees and Costs. Petitioner identified the following attorneys as providing legal services in this matter: Adam G. Levine ($200 per hour) and Robert L. Kaye ($250 per hour 2008). 15. On February 25, 2009, an Order Permitting Response was entered. 16. On March 23, 2009, Respondents filed Respondents Memorandum of Law In Opposition of Petitioner s Motion for Attorney s Fees and Costs, with an Affidavit of Respondents Attorney s Fees and Costs. Neither Respondents memorandum nor affidavit included a motion for an award of attorney s fees and costs. 17. Section (4)(k), Florida Statutes, provides, in pertinent part, as follows: The prevailing party in an arbitration proceeding shall be 4

5 awarded the costs of the arbitration and reasonable attorney's fees in an amount determined by the arbitrator. Such an award shall include the costs and reasonable attorney's fees incurred in the arbitration proceeding as well as the costs and reasonable attorney's fees incurred in preparing for and attending any scheduled mediation. 18. Rule 61B (1), Florida Administrative Code, provides, as follows: Any party seeking an award of costs and attorney s fees must request the award in writing prior to the rendition of the final order. 19. On April 13, 2009, Petitioner filed a Notice of Filing along with an Affidavit of Nikki Guzman, Association Property Manager. The Affidavit was in support of Petitioner s Motion for Attorney s Fees and Costs and alleged that Respondents son had failed to abide by the Association s governing documents by continually dropping used cigarette butts on the hallway and stairs, extinguishing lit cigarettes by scraping the ashed end on the walls and causing discoloration and spilling unidentified liquids, including urine, on the stairway, landings, and hallways. Additionally, Ms. Guzman alleged that Petitioner had multiple conversations with Respondents and their son regarding the debris and damage, all of which were ignored and that Petitioner constantly had to arrange to have debris removed from the location where Respondents son had left it. 17. On April 27, 2009, Respondents filed a Notice of Filing of Affidavit of Angela Muffucci, who alleged the unauthorized occupant of Respondents unit was her adult son who had lived in the unit as a minor since November Ms. Maffucci also alleged that Article XIII of the Declaration of Condominium related to the sale or leasing of a unit, neither of which applied to her son. Ms. Maffucci admitted that her son had dropped cigarettes butts on the hallway floors, however, she did not admit to any other allegations. 5

6 18. On April 30, 2009, Petitioner filed a Notice of Filing an Amended Supplement Affidavit of Attorney s Fees and Costs. Petitioner s Amended Supplement identified the following attorneys as providing legal services is this matter: Robert L. Kaye ($ per hour 2008); Andrew B. Black ($ per hour); Adam G. Levine ($ per hour); and Deborah S. Sugarman ($ per hour). 19. On May 7, 2009, Respondents Counsel filed a letter requesting copies of the Final Order of Dismissal in the underlying case. CONCLUSION Respondents Memorandum of Law in Opposition of Petitioner s Motion for Attorney s Fees and Costs and Respondents Affidavit of Attorney s Fees and Costs and Prevailing Parties Memorandum of Law In Respondents memorandum of law, Respondents attempt to rebut the presumption of Petitioner as prevailing party in the case dismissed as moot by alleging Mr. Sosa vacated the unit to accept a position in New York. On April 27, 2009, Respondents counsel filed, as a supplement in the attorney s fees case, the affidavit of Respondent Angela Maffucci which stated, in pertinent part, [i]t is granted that the Petition was filed, but no resolution by the Arbitrator was imminent. The amended petition was filed on November 3, The petition packages and Order Requiring Answer were served upon Respondents on December 3, On December 22, 2008, Mr. Sosa vacated the unit. On December 24, 2008, Respondents filed an Answer. The Answer did not allege Mr. Sosa had vacated the unit nor that he had accepted a position in New York. The immanency of the arbitrator s order is not the standard for determining prevailing party 6

7 status in a case that has been dismissed as moot. 2 Respondent has not submitted any proof that rebuts the presumption that Mr. Sosa s move from the unit was in response to service of the amended petition upon Respondents. Additionally, attached to Respondents memorandum was a Supplemental Affidavit of Reasonable Attorney s Fees and Costs, for 7.2 hours of legal services, at $ per hour, for a total of $1, 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. 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. See The Diplomat Apartment Association v. Johnson, Arb. Case No , Final Order on Attorney s Fees and Costs (May 23, 2006)(When the respondent provides the relief requested after receipt of the petition resulting in the petition being dismissed as moot, 2 Further discussion regarding the rebuttable presumption relating to prevailing party status is found in this order under Prevailing Party. 7

8 Rule 61B (7) Florida Administrative Code, creates a rebuttable presumption that the petitioner is the prevailing party. ) 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). In the underlying case, Respondents complied with the Association s demand to cease the nuisance when Mr. Sosa vacated the unit after receipt of the amended petition. Respondents have offered no proof rebutting the presumption that Mr. Sosa vacated the unit in response to Respondents receipt of the Association s amended petition and the arbitrator s Order Requiring Answer. Accordingly, Respondents have not successfully rebutted the presumption that the Association is the prevailing party, as it relates to the Association s nuisance allegation. It was Respondents unrefuted allegation that Mr. Sosa is Respondent s Angela Maffucci s adult son, and thus immediate family pursuant to Article X, section (a) of the Declaration of Condominium, and not subject to the restrictions and requirements of Article XIII of the Declaration of Condominium, relating to sales and lease of apartments. Accordingly, Respondents are properly considered the prevailing party as it is unrefuted that Mr. Sosa s is immediate family to Angela Maffucci and not subject to Article XIII requirements for approval and application processing fee for tenants and lessees. Accordingly, Respondents have prevailed on that issue. Respondents admitted that Mr. Sosa littered the 12 th floor hallway, stairwell, and stairs with his cigarette butts. Article X, section (b) of the Declaration of Condominium, identifies rubbish, refuse or garbage allowed to accumulate on condominium property as 8

9 nuisance. Mr. Sosa s on-going littering of his cigarette butts in the hallway, stairwells, and stairs of the 12 th floor constituted accumulation of rubbish, refuse or garbage on the condominium property, as prohibited by the Declaration. Accordingly, the Association is properly considered to be the prevailing party only on the issue of nuisance and is entitled to an award of reasonable attorney s fees and costs. Motion for Respondents Attorneys Fees and Costs Respondents March 3, 2009, memorandum of law has attached an Affidavit of Respondents Attorney s Fees and Costs, stating Respondents counsel charged $ per hour for legal services and that Respondents attorney had provided 5.7 hours of services for a total of $1, On April 27, 20009, Respondents counsel filed a Supplemental Affidavit of Reasonable Attorney s Fees, stating Respondents counsel had provided 1.5 hours of additional legal services for a total of $1, for all legal services provided. follows: Section (4)(k), Florida Statutes, provides, in pertinent part, as 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. Such an award shall include the costs and reasonable attorney's fees incurred in the arbitration proceeding as well as the costs and reasonable attorney's fees incurred in preparing for and attending any scheduled mediation. On December 24, 2008, Respondents filed an Answer and Notice of Unavailability. The Answer simply admits or denies the petitioner s allegations and does not request any relief. Upon review of the entire file in the underlying case, the arbitrator was unable to locate any document, pleading, or other written communication containing Respondents request 9

10 for an award of attorney s fees and costs. Rule 61B (1), Florida Administrative Code, provides as follows: Any party seeking an award of costs and attorney s fees must request the award in writing prior to the rendition of the final order. [emphasis supplied] Merely attaching Affidavits of Attorney s Fees and Costs to a memorandum of law filed after the entry of a final order and in response to the opposing party s Motion for Attorney s Fees and Costs, does not comply with the rule requiring a written request for an award for attorney s fees and costs prior to the rendition of the final order. In addition to Respondents failure to file a written request for an award of fees and costs prior to the rendition of the final order, Respondents failed to file any Motion for Attorney s. Mere reference to an Affidavit of Attorney s Fees and Costs in a memorandum of law with affidavit attached does not comply with subsection (2) of the rule. Accordingly, Respondents are precluded from an award of attorney s fees and costs in this proceeding on Petitioner s allegation relating to Article XIII of Condominium, relating to sales and leasees. Petitioner s Motion for Attorney s Fees and Costs On July 23, 2008, Petitioner filed a Petition for Mandatory Non-binding Arbitration. In pertinent part, Petitioner s claim of relief requested, [a]n award of costs and attorney s fees pursuant to the Declaration and Florida Statutes ; On November 3, 2008, Petitioner filed an Amended Petition for Mandatory Non-Binding Arbitration. In pertinent part, Petitioner s claim of relief requested, [a]n award of costs and attorney s fees pursuant to the Declaration and Florida Statutes ;

11 On January 28, 2009, Petitioner filed Petitioner s Motion for Prevailing Parties Fees and Costs. On February 2, 2009, Petitioner filed Petitioner s Suggestion of Mootness and Notice of Intention to Seek Prevailing Party Fees and Costs in Response to Notice of Communication and Order to Show Cause. On February 16, 2009, Petitioner filed a Motion for Attorney s Fees and Costs. Accordingly, Petitioner has complied with Section (4)(k), Florida Statutes, and the rules promulgated thereunder. Award of Attorney s Fees and Costs In the underlying case, Respondent admitted to creating a nuisance by dropping cigarette butts in the hallway, stairwell, and stairs of the condominium property. Therefore, Petitioner is properly considered to be the prevailing party on the nuisance allegation and is entitled to an award of reasonable attorney s fees and costs related to that allegation. The case presented two distinct issues, unauthorized occupancy and nuisance. Accordingly, Petitioner has prevailed on the issue of nuisance. 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, 11

12 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. In its February 16, 2009 motion and affidavit, and its April 30, 2009 supplemental affidavit, the Association seeks an award of attorney fees for 10 hours of legal services at the rate of $ per hour and costs totaling $ Petitioner s supplemental affidavit identifies the following attorneys as having provided the legal services: Robert L. Kaye ($ per hour 2008); Andrew B. Black ($ per hour); Adam G. Levine ($ per hour), and Deborah Sugarman ($ per hour). Petitioner s affidavit fails to identify which attorney provided what legal service. Upon review of the underlying case file, Andrew Black wrote the initial demand letter, Deborah Sugarman filed the initial petition; and Adam G. Levine filed the Motion for Extended Time, the amended petition, the improper letter to the mediator, Petitioner s Motion for Prevailing Party Fees and Costs, Petitioner s Suggestion of Mootness and Notice of Intention to Seek Prevailing Party Fees and Costs in Response to Notice of Communication and Order to Show Cause, Petitioner s Motion for Prevailing Party Fees and Costs, Notice of Filing Affidavit, and Notice of Filing Amended Affidavit. Upon review of the file and the affidavits, there is no indication Mr. Kaye was involved in this case either by identification of attorney or by billing rate. Accordingly, Mr. Kaye s fees cannot be reimbursed. Petitioner s attorney s Andrew Black, Deborah Sugarman and Adam Levine shall be deemed as providing the legal services with respectto Petitioner s limited prevailing party status. 12

13 Petitioner seeks reimbursement for Andrew Black, Esquire, at the rate of $ per hour. Mr. Black has been licensed to practice law in the State of Florida since For an attorney practicing law for 3 years, $ is an excessive fee and a reasonable fee is $ per hour. According to the affidavit, Mr. Black spent 1 hour preparing the initial demand letter. Accordingly, Petitioner is awarded 1 hour of Mr. Black s fee for a total of $ Petitioner seeks reimbursement for Deborah Sugarman, Esquire, at the rate of $ per hour. Ms. Sugarman has been licensed to practice law in the State of Florida since For an attorney practicing law for 16 years, $ per hour is a reasonable rates. Ms. Sugarman filed the initial petition for arbitration. According to Petitioner s affidavit, 1.9 hours was spent in client consultation and preparation of the initial petition. The initial petition was insufficient. Accordingly, Petitioner will be awarded.5 hours of Ms. Sugarman s time for a total of $ Petitioner seeks reimbursement of Adam Levine, Esquire, at the rate of $ per hour. Mr. Levine has been licensed to practice law in the State of Florida since For an attorney practicing law for 13 years, $ per hour is a reasonable fee. Included in the affidavit for billing is a 12/02/2008 charge of.50 hours for $ This charge is identified as relating to improper parking. As improper parking was not included in the subject matter of this case, this charge will not be awarded. With adjustments as indicated above, the remaining reimbursement Petitioner seeks is 7.1 hours. As Petitioner s allegation of Respondents violation of Article XIII, alleging unauthorized occupancy by Mr. Sosa was clearly without merit, the remaining 7.1 hours is excessive to litigate the underlying nuisance case and a reasonable amount of time is 4 hours. Accordingly, 13

14 Petitioner will be awarded 4 hours of Mr. Levine s time at $ per hour. A total of $ is awarded for Petitioner s legal services in this case. Petitioner seeks reimbursement of costs consisting of $5.32 for postage, $19.00 for facsimile, and $50.00 for the arbitration filing fee. Costs for postage and facsimile are not recoverable, as they are routine overhead expenses that should be fully incorporated into the attorney s hourly rate. See Barrera, individually and Bleau Fontaine Condo. Number Two, Inc. v. Bleau Fontaine Community Assoc., Inc., Arb. No , Final Order on Attorney s Fees (January 26, 2001). Therefore, these costs will not be awarded. The filing fee of $50.00 is a reasonable and necessary expense and is awarded. Based on the foregoing, it is ORDERED: 1. Respondents affidavit for attorney s fees and costs is denied. 2. Within thirty (30) days of the date of this order, Respondents shall reimburse the Association for its attorney s fees and costs in the amount of $

15 DONE AND ORDERED this day of September, 2009, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Telephone: FAX: 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 day of September, 2009: Adam G. Levine, Esquire Deborah Sugarman, Esquire Kaye & Bender, P.L N.W. 6 th Way Fort Lauderdale, Florida Holly Cohen, P.A. Holly Cohen, Esquire 1380 Miami Gardens Drive Suite 255 North Miami Beach, Florida Tonya S. Chavis, Arbitrator