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 Sharon Fish, Petitioner, v. Fees Case No Rel. Case No Chateau by the Sea Association, Inc., Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES Comes now, the undersigned arbitrator, and enters this final order as follows: Petitioner Fish filed her motion for award of attorney s fees on December 30, Fish seeks a total award of $10, representing hours of attorney time billed at $160 per hour, a number of paralegal hours billed at $80 per hour, and a filing fee of $50, less a discount for work performed as to certain issues. Counsel for the petitioner has presented a breakdown of time spent by issue as there were multiple issues involved in the case. The arbitrator encouraged the parties to settle the fee claim. After an extension of time, the association filed its response to the motion for fees on February 28, The association did not file a motion for attorney s fees, but instead filed a response contesting certain 1 The association counters the fee award sought by petitioner Fish by its own offering that the sum of $3, would be an appropriate award to the association. 1

2 aspects of petitioner s fees request. The case below raised two basic counts. The official records count alleged that the association had failed to permit Fish access to the official records, and that the association had adopted an inspection rule or policy that was contrary to law. The second count of the petition alleged that the association had materially altered the common elements (extending the ground floor patio pads) without an advance vote of the membership. 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)). See, e.g., Belle Plaza Condominium Association, Inc. v. Gaviria, Arb. Case No , Final Order (March 18, 1999) (where the owner was ordered to remove a hook he had imbedded in the common elements, the association was the prevailing party in the case as it had succeeded in obtaining the relief requested). Concerning the material alteration issue, the association, in the course of the main arbitration proceeding, scheduled a unit owner vote to approve the alteration retroactively, and was successful in obtaining the requisite vote. The arbitrator accepted evidence at the final hearing on the timing of the membership vote in 2

3 order to determine whether the vote was triggered by the filing of the petition, or had instead been prompted by a Division investigation of that issue. The final order concluded that the filing of the petition was not the motivating factor behind the owner vote. Prior to the filing of the petition, the association had already committed to the Division that a vote would be undertaken. Therefore, it cannot be said that Fish was the prevailing party on that issue. 2 As stated in the final order, the main controversy concerns the official records. The arbitrator ruled that the association policy, adopted in response to Ms. Fish s repeated requests for access to the records, which limited an owner s access to once a month for a total of 3 documents per inspection, was invalid as unduly restrictive of the owners right of access to the records. Clearly, Fish prevailed on this issue. The petition also alleged that the association had willfully denied Ms. Fish access to the official records on 8 occasions. Based on evidence produced at the final hearing, Ms. Fish conceded that the association had substantially complied with five of her requests for access, but argued nonetheless that the requests for access were limited by the illegal inspection policy, and that consequently, since each request was wrongfully circumscribed by the illegal inspections policy, violations of her right of access were committed each time she was granted 2 There is a fine line between stating that Fish did not prevail on this point, and saying that the association instead prevailed on this issue. However, since the association did not file a motion for attorney s fees, there is no distinction to be made of any practical significance. 3

4 access. The arbitrator agreed and stated in the final order that requiring Ms. Fish to comply with the invalid policy had the effect of depriving her of her right of access to the official records, each time that her right of access was abridged pursuant to the policy The arbitrator finds that requiring Ms. Fish to comply with the June 10 rule policy on these multiple occasions constitutes a willful violation of section (12), Florida Statutes. The arbitrator found willful violations by the association on the two occasions that Ms. Fish had requested more than 3 documents, ruled that one request was not a new request for access, and found that by not responding to another request and by not following up with Ms. Fish, the association had willfully violated the statute in another instance. In the relief portion of the order, the arbitrator assessed statutory damages of $1,500 against the association, but stated: While technically, petitioner is awarded for only three violations, this does not mean that the association prevailed on the other alleged statutory violations, as the arbitrator already found that the invalid access policy tainted a number of these inspection requests. The parties are encouraged to settle the matter of attorney s fees. The arbitrator, having conducted the final hearing, issued the final order in the proceeding below, and having considered the arguments of the parties in this fees proceeding, rules as follows: 1. As a preliminary matter, the hourly sum of $160 charged by counsel, a member of the bar since 1986, and schooled in this area of the law, is held to be reasonable. 4

5 2. Fish is not entitled to an award of attorney s fees for time spent on the material alteration issue which was 6.0 hours of attorney time billed at $160 per hour and 1.0 hour of paralegal time billed at $80 per hour. 3. Fish is entitled to an award of costs and fees on the official records count. First, the inspection rules applied by the association were found invalid. Secondly, petitioner was awarded damages for 3 explicit violations and it was found that a significant portion of the records review process was tainted with the specter of the invalid rule. The question arises of whether each request to review the official records should be considered as part of an overall access to records issue, or whether each such request should be considered separately for the purpose of determining prevailing party status. In general, where a party prevails on one of several multifarious issues, the party is only awarded attorney s fees that may be linked to representational activities in conjunction with the issue upon which he prevailed. Lessne v. Family Townhouses of the Lakes of Emerald Hills, Inc., Arb. Case No F, Final Order on Motions for Attorney s Fees (November 24, 1993). 3 In the arbitration case of The Greens of Tampa, Inc. v. The Greens of Town and Country Condominium Association, Inc., Arb. Case No F, Final Order (April 20, 1994), the arbitrator held that although most of the issues presented in the petition related to the validity of the challenged election, since each issue was based on separate facts and different alleged violations, each election claim should be considered separate and distinct for purposes of the prevailing party determination. In The Trails at Royal Palm Beach, Inc. v. Wargovich, Arb. Case No The association weighs in on this point and argues that time entries submitted by counsel for Ms. Fish do not specify what time was spent on which issues, thereby casting doubt on any potential award made by the arbitrator. The arbitrator finds that the timesheets are adequate to separate time spent on the various issues. 5

6 0261F, Final Order on Petitioner s Motion for Attorney s Fees (December 11, 1995), the arbitrator determined that the association had prevailed on the overall official records count where the petitioner/owner had alleged that the association had failed to timely respond to 6 separate requests for access, and the owner had only proven one of six intentional violations. The arbitrator noted: In this case, it would have been very difficult for the Association to apportion time spent regarding each separate records request, as the claims were intertwined and based upon related legal theories. Thus, although the arbitrator determined that 1 document was willfully withheld, she held that the other 5 were not, and therefore, Petitioner [the association] should be allowed to request attorney s fees for the total amount of time spent defending that count. The arbitrator adopts the reasoning of Royal Palm Beach, described above, which the arbitrator fins to be anchored in precedent and logic, and accordingly rules that Ms. Fish should be entitled to all of her reasonable and authorized time spent litigating the official records count. Overall, the arbitrator finds that Ms. Fish was the prevailing party on this count. As a preliminary matter, the arbitrator notes that it is only time spent in the arbitration proceeding that is subject to attorney s fee recovery. Desy v. River Key Condominium Association, Inc., Arb. Case No F, Final Order (May 20, 1993). Accordingly those entries reported from December 22, 2003 through February 10, 2004, which relate to attorney work performed before the preparation of the filing of the petition, totaling 2.60 hours, are disallowed except that 1.0 hour is allowed for preparing the pre-arbitration notice required by section , Florida Statutes. 6

7 The arbitrator has reviewed the time entries of counsel for petitioner, and finds that 4.23 hours for the preparation of the petition in this matter is reasonable given the multiple issues involved. The entry for March 1, 2004, indicating.40 hour for reviewing the file of the Division investigation, is disallowed as not relating to the arbitration action. The arbitrator finds that hours spent in preparation for the final hearing, which lasted perhaps 4-6 hours, is somewhat excessive and is reduced to 10 hours. Similarly, the 11.0 hours spent preparing the post-trial memorandum is somewhat excessive and is reduced to 8 hours. The 11.4 hours spent researching and drafting the motion for attorney s fees is reduced to 4 hours. 4 The remainder of the hours reported for the attorney for the association and the paralegal are found to be reasonable and necessary for the presentment of 4 It is true that as a general matter, only 1.0 hour is usually allowed for the preparation of this motion, but in view of the fact that additional research was required here, 4.0 hours will be allowed. 7

8 the petitioner s case. Counsel spent 63 hours of attorney time on the official records issue and 2.20 hours of paralegal time. From these subtotals are deducted the 12.8 hours of attorney time deducted above, netting a total recovery of 50.2 hours, billed at $160 per hour, or $8,032.00, plus paralegal fees of 2.20 hours billed at $80, or $176.00, for a combined total of $8,208.00, plus costs of $50, or $8, WHEREFORE, the association shall pay to Ms. Fish the sum of $8, within 30 days hereof. DONE AND ORDERED this 2d day of May, 2005, at Tallahassee, Leon County, Florida. Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 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 2d day of May, 2005: James E. Olsen, Esquire Wean & Malchow, P.A. 646 East Colonial Drive Orlando, Florida Russell E. Klemm, Esquire Clayton & McCulloh, P.A Maitland Center Commons Blvd. Maitland, Florida Kieran F. O Connor, Esquire Cooney, Mattson, Lance, et al, P.A. 8

9 AmSouth Bank Center, Suite N. Orange Ave. Orlando, Florida Karl M. Scheuerman, Arbitrator Right to Appeal As provided by s , F.S., this final order may be appealed by filing a complaint for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. Attorney s Fees As provided by s , F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B , F.A.C. requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45 day period and must conform to the requirements of rule 61B , F.A.C. The filing of an appeal by trial de novo of this final order tolls the time for the filing of a motion seeking prevailing party costs and attorney s fees until 45 days following the conclusion of the de novo appeal proceeding and any subsequent appeal. 9