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 BINDING ARBITRATION HOA ELECTION DISPUTE BRUCE HADBURG, Petitioner, Fee Case No v. Rel. Case No PHILIPPE BAY ASSOCIATION, INC., Respondent. / FINAL ORDER ON ATTORNEY S FEES AND COSTS AND ORDER DENYING PETITIONER S MOTIONS FOR REHEARING AS UNTIMELY On January 14, 2014, Bruce Hadburg filed a petition for arbitration naming Philippe Bay Association, Inc. ( the Association ) as Respondent. The issue presented in the petition was whether the Association properly refused to allow proxy holders to cast secret ballots that had been prepared in advance by the homeowners whose proxies they held in the election of November 19, As relief, Petitioner requested an order 1) declaring that the 2013 election was null and void, and 2) imposing penalties against the licensed Community Association Manager, which is outside the jurisdiction of the arbitrator. The relief was denied in a summary final order entered on March 4, The Association is located in Pinellas County, Florida. The Association filed a motion on April 3, 2014, seeking $1, in attorney s fees and $ in costs. On April 16, 2014, the arbitrator entered an order permitting a response to the motion. On April 17, 2014, the Association filed an amended motion for attorney s fees and costs, which, according to the certificate of service thereon, was Page 1 of 6

2 mailed to Petitioner on April 15, On May 5, 2014, Petitioner filed a letter to the undersigned arbitrator and the Chief Arbitrator which consisted, in part, of a response to the April 16, 2014 order and a response and the Association s motion for attorney s fees and costs, and in part, of what appears to be an untimely request for rehearing on the summary final order issued in the underlying case. On July 14, 2014, Petitioner filed a letter to the Chief Arbitrator which appears to be a second untimely request for rehearing of the summary final order entered on March 4, This order is entered accordingly. Prevailing Party Pursuant to Section , 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. As Petitioner was not afforded the relief he sought in the petition in the final order, the Association is the prevailing party in this case. Consequently, the Association will be awarded its reasonable fees and costs pursuant to the statute and Rule 61B , Florida Administrative Code. The only remaining issue to be decided by the arbitrator is the reasonableness of the attorney s fees and costs claimed by the Association. Attorney s Fees and Costs 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 the 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). Page 2 of 6

3 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 the attorney s fees, the criteria set forth in R. Regulating Fla. Bar 4-1.5, [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 61B (1), Florida Administrative Code. The Association has provided an affidavit of its attorney that explains the amount of attorney s fees and costs sought. The Association seeks compensation for the services of Monique E. Parker, Esq. at the rate of $ per hour for 6.9 hours. Attorney Parker had been licensed to practice law in the State of Florida for eleven (11) years at the time services were rendered in this case. The undersigned finds that $ per hour is a more reasonable rate for an attorney with 11 years of experience, which rate falls within the range of fees charged in the locality for similar legal services. See Mariner Village Ass n, Inc. v. Zagaris, Arb. Case No , Final Order on Motion for Attorney s Fees and Costs (February 18, 2014). The Amended Affidavit of Attorney s Time is signed by Attorney Parker, and states that Exhibit A to the affidavit reflects a total of 6.9 hours of time spent by Monique E. Parker. However, the attorney s timesheet attached as Exhibit A to the Amended Affidavit of Attorney s Time is inconsistent with the amended affidavit. The timesheet indicates that only 1.2 hours of attorney time were attributed to Attorney Parker (designated as MEP on the timesheet). The remainder of the hours were attributed to Bennett L. Rabin ( BLR ). Rule 61B , Florida Administrative Code, Page 3 of 6

4 requires an affidavit of the attorney who actually performed the work, and the Association presented no affidavit from Attorney Rabin. Therefore, the Association will be awarded 1.2 hours of attorney time at $ per hour for Attorney Parker s time. Additionally, the Association seeks costs of $ as follows: $50.00 for an outside attorney s review of the file and execution of an affidavit of reasonable fees, and $51.75 for photocopies and postage. These costs will not be awarded. Rule 61B , Florida Administrative Code, contains no requirement of an outside attorney s review of requests for attorney s fees, nor did the arbitrator request such a review. Pursuant to the Statewide Uniform Guidelines for Taxation of Costs, the costs of copies of documents filed which are reasonably necessary to assist the arbitrator in reaching a conclusion are recoverable. However, the Association has failed to identify sufficiently the photocopies for which it seeks reimbursement, and it cannot be determined if the expense of producing photocopies in this instance are a recoverable cost. Oakcrest at Southmeadow Condominium Association, Inc. v. Lozada-Atacho, Arb. Fee Case No , Final Order on Motion for Attorney's Fees and Costs (May 22, 2012). Costs for postage 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 Assoc., Inc., Arb. Case No , Final Order on Attorney's Fees (January 26, 2001). Petitioner s Motions for Rehearing Rule 61B , Florida Administrative Code, requires motions for rehearing to be filed within 15 days of the date on which the order was entered. Because Page 4 of 6

5 Petitioner s requests/motions for rehearing were filed more than 15 days after entry of the summary final order of March 4, 2014, they must be denied as untimely. Therefore, based on the foregoing, it is ORDERED: 1. Petitioner s motions for rehearing of April 30, 2014, and July 14, 2014 are DENIED as untimely. 2. Petitioner Bruce Hadburg shall, within 30 days of the date of this Order, pay to Philippe Bay Association, Inc., the total amount of $ which represents reimbursement for $ in attorney s fees and no costs. Florida. DONE AND ORDERED this 24 th day of July, 2014, at Tallahassee, Leon County, Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section Suite North Monroe Street Tallahassee, Florida Section Telephone: Section Facsimile: 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 appears on the following page. Page 5 of 6

6 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and facsimile, if provided, to the following persons on this 24 th day of July, 2014: Mr. Bruce Hadburg 2012 Westley Court Safety Harbor, FL Petitioner Monique E. Parker, Esq. Rabin Parker, P.A U.S. Hwy. 19 N. 207 Clearwater, FL Fax: (727) Attorney for Respondent Leslie O. Anderson-Adams, Arbitrator Page 6 of 6