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 Villa Del Mare of Marco Island Condominium, Inc., Petitioner, v. Fee Case No Rel. Case No Robert Weis and Joyce Weis, Respondents. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS Comes now, the undersigned arbitrator, and issues this order as follows: On January 29, 2003 and April 22, 2003, Villa Del Mare of Marco Island Condominium, Inc. (petitioner/association) filed a motion and a supplemental motion, respectively, for attorney s fees and costs, seeking an award of $7, in attorney s fees and $75.00 in costs, totaling $7, The fees and costs were incurred in arbitration case number , in which a final order was entered on December 16, The respondents, through legal counsel, filed a response to the petitioner s motion for attorney s fees and costs on February 25, The respondents admit to maintaining a boat trailer on the condominium property, but contend its removal was not motivated by the arbitration proceeding nor would its removal be required by law. Pursuant to section (4)(k), Florida Statutes, the prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable 1

2 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 respondents contend that their trailer was removed due to Mr. Weis medical condition, not the underlying arbitration petition, as he is unable to utilize his boat in the fashion and manner in which he previously used it and, as such, the association is not the prevailing party entitled to an award of attorney s fees or costs. In order to determine which party, if any, was the prevailing party, on March 25, 2003, the arbitrator issued an order requiring supplemental information concerning Mr. Weis current medical condition, how it renders him unable to utilize his boat in the manner in which he was accustomed and the current location and ownership of his boat and trailer. On April 8, 2003, the respondents submitted the requested information which consisted of a letter from Joseph Kandel, M.D., dated November 27, 2002, and an affidavit signed by Mr. Weis. While Dr. Kandel s letter affirms that Mr. Weis is under his care for numerous medical disorders, it fails to identify his current medical status or how his condition influences the usage of his boat. Even assuming that Mr. Weis is no longer able to use his boat in the manner in which he did prior to the onset of his illness, it does not mean he can continue to violate the association s rules and regulations regarding parking trailers on the common elements. The affidavit submitted by Mr. Weis states that his boat trailer was given to a friend in Naples, Florida, but fails to include evidence of this transfer of ownership or to disclose the 2

3 ownership or location of the respondents boat. However, an affidavit submitted on April 22, 2003, by Daniel Rowand, President of the Villa Del Mare Condominium Association, Inc., attests that the respondents boat has been continuously docked at the condominium from at least September 1, 2002, through the date of the affidavit. While the respondents contend that Mr. Weis medical condition prevents him from using his boat as he had in the past, and as a result of this medical condition, his trailer was removed from the property and given to a friend who lives near-by, the fact remains that his boat continues to be docked at the condominium. The arbitrator finds that because the respondents boat remains on the condominium property and because there was no evidence establishing Mr. Weis current medical condition or how it relates to the usage of his boat, the respondents have failed to establish that the motivating factor for the removal of the respondents trailer was due to Mr. Weis medical condition, rather than the arbitration petition; therefore, this argument is rejected. The respondents also allege that removal of the boat would not have been required by law. The arbitrator finds that the only defenses asserted by the respondents that had not been rejected prior to the entry of the final order in the underlying case were selective enforcement and waiver. The association effectively dispelled each example of selective enforcement raised by the respondents in the petitioner s response dated August 26, 2002, in that when the association became aware of illegal trailers parked on the premises, they requested their removal in accordance with the rules and regulations prohibiting trailers on the property. Hence, the respondents have failed to establish that the association has chosen to selectively 3

4 enforce the rule prohibiting trailers; the defense of selective enforcement is rejected. Regarding the respondents final defense, waiver is the intentional or voluntary relinquishment of a known right, or conduct which implies the relinquishment of a known right. Mizell v. Deal, 654 So. 2d 659, 663 (Fla. 5 th DCA 1995). The elements of waiver are: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right. Id. Here, rule W of the association s rules and regulations, adopted February 1999, provides: Trailers of any type, motor homes, or commercial vehicles, shall not be parked overnight without approval of a majority of the Board of Directors, except as set forth herewith: trailers which are used to transport personal items to or from individual unites may be on site for a maximum of 72 hours to be loaded or unloaded. Prior to the adoption of rule W, there was no specific rule prohibiting trailers on the condominium property. However, section 10.2 of the declaration of condominium provides that the common elements and limited common elements shall only be used for the purpose for which they are intended. There has been no showing that either of these areas was intended to be used for parking trailers and this strains the boundaries of common sense. As such, the respondents never had the right to park their trailer on the common elements. Moreover, the respondents have not shown that the association ever intended to relinquish its right to enforce rule W. Even considering that the petition for arbitration was filed over three years after the passage of rule W, the mere passage of time does not establish waiver. American Somax Ventures v. Touma, 547 So. 2d 1266 (Fla. 4 th DCA 1989). For the reasons 4

5 stated above, the respondents have failed to establish the essential elements of waiver; therefore, the defense is rejected. As discussed above, the respondents have failed to establish that the removal of their boat trailer from the condominium property was based on Mr. Weis medical condition, rather than the underlying arbitration proceeding, or that the removal of the trailer would not have been required by law. Since the respondents removed the trailer from the property, the association achieved the benefit it sought when initiating this case and is therefore determined to be the prevailing party entitled to an award of attorney s fees and costs. The next issue to determine is the reasonableness of the attorney s fees and costs claimed by the petitioner. 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 service of the prevailing party s attorney. Fashion Tile & Marble v. Alpha One Construction, 532 So. 2d 1306 (Fla. 2 nd 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 David E. Leigh, Esquire, charged the association $ per hour for legal services rendered in this proceeding. Mr. Leigh has been practicing law for twenty 1 It is noted that counsel s billing statements contained in the supplemental motion for attorney s fees and costs cites an hourly rate of $250.00, rather than the previous rate of $ Since no explanation accompanied this rate increase and since $ appears to be somewhat in excess of those rates charged by other attorneys with similar experience, counsel will be compensated at $ per hour. 5

6 (20) years in the State of Florida and has experience in condominium law. The requested rate does not exceed the amount customarily awarded for representation in similar arbitration proceedings by attorneys with similar experience. Thus, the association will be compensated at the rate of $ per hour for counsel s legal services. The petitioner seeks to recover for total hours for activities performed by counsel, as explained on seven separate billing statements. Section (4)(k), Florida Statutes, restricts the fee award to include the costs and reasonable attorney s fees incurred in the arbitration proceeding... (emphasis added). Fees incurred prior to the drafting and filing of the petition are generally not recoverable, except for one (1) hour for preparation of the pre-arbitration demand letter. See Desy v. River Key Condominium Association, Inc., Arb. Case No F, Final Order (May 20, 1993) (fees incurred prior to the drafting and filing of the petition for arbitration are not recoverable). The fees requested in the first billing statement for services provided on 10/25/01, 11/30/01 and 1/5/02 are found to pre-date the drafting and filing of the initial petition for arbitration and are denied, except one (1) hour is awarded for the pre-arbitration demand letter. Counsel s billing statement also reflects 5.90 hours devoted to drafting and filing the petition for arbitration. These hours are found to be excessive and are reduced to 4.00 hours. The remaining 0.70 hours are awarded. The fees requested on the remaining six statements reflect reasonable expenditures of time to successfully litigate this case and are awarded. In sum, 2 Counsel s first billing statement, dated May 8, 2002, contains a mathematical error in that 9.90 hours are requested, but 1.60 hours on 11/30/01, 1/5/02 and 2/8/02 were not charged; as such, the total on that statement is 8.30 hours. 6

7 counsel is awarded hours for services rendered in this proceeding, totaling $6, Additionally, the petitioner requests compensation for $50.00 arbitration filing fee and $25.00 for overnight courier costs. The filing fee of $50.00 was a reasonable and necessary expense and is awarded. However, overnight courier costs are not necessary expenditures when the requested reply could have been faxed to the arbitration section in order to meet the five-day deadline imposed by the arbitrator; therefore, this cost is denied. Accordingly, the petitioner is awarded $50.00 in costs.. It is therefore ORDERED: 1. The motion for attorney s fees and costs is GRANTED, in part. 2. Within thirty (30) days of the date of entry of this order, Robert Weis and Joyce Weis (respondents) shall pay the sum of $6, to Villa Del Mare of Marco Island Condominium, Inc. (petitioner). Liability for this sum between the respondents is joint and several. Florida. DONE AND ORDERED this 9 th day of May 2003, at Tallahassee, Leon County, Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida

8 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 9 th day of May 2003: David E. Leigh, Esq. David E. Leigh, P.A Tamiami Trail North Suite 501 Naples, Florida Jamie B. Greusel, Esq. Berry & Greusel 1104 North Collier Boulevard Marco Island, Florida Melissa Mnookin, Arbitrator Right to Appeal As provided by section , F.S., this final order may be appealed by filing a petition 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. 8