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 THE COACH HOMES AT MARINERS VILLAGE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Fee Case No Rel. Case No WILLIAM NATERA and SUSANA NATERA, Respondents. / FINAL ORDER ON ATTORNEY S FEES AND COSTS Procedural History The Coach Homes at Mariners Village Condominium Association, Inc. (the association) filed a petition alleging that respondents failed to comply with the association s governing documents as to (1) leasing their unit; (2) parking; (3) excessive noise; (4) registration of vehicles; (5) use of the dumpsters; and (6) material alteration of their condominium unit. Petitioner requested that the arbitrator order respondents to comply with the terms of the declaration. Respondents did not file an answer and a default was entered against them. Petitioner subsequently filed a status report indicating that respondents had voluntarily complied with all of the relief requested in the petition and stating that the case was moot. Accordingly, the arbitrator entered a final order dismissing the case as moot. Petitioner filed a motion for attorney s fees and costs. The arbitrator ordered that petitioner file an amended motion for attorney s fees and costs that complied with Fla. 1

2 Admin. Code R. 61B (2). Petitioner filed an amended motion for attorney s fees and costs. The arbitrator then issued a notice of intent to issue a summary final order which directed the respondents to file their response to the amended motion for attorney s fees by April 28, As of the date of this order, respondents have not filed a response. This order is entered accordingly. Conclusions of Law The arbitrator has jurisdiction to award or deny attorney's fees and costs in this proceeding in accordance with (4)(k), Fla. Stat. and Rule 61B , Florida Administrative Code. Pursuant to (4)(k), Fla. Stat., 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. In a decision on the merits, the party prevailing on the significant issues in litigation is considered the prevailing party for attorney's fees. Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla. 1992). In cases where there is no decision on the merits, such as in cases where a voluntary dismissal is entered, or cases that become moot, the prevailing party is determined by looking at the facts of the case, particularly the timing of the event that caused the case to be dismissed. The Laurels at Margate Condominium Association, Inc., v. Slonecky, Arbitration Case Number F (July 28, 1994). In cases dismissed for mootness, a petitioner is a prevailing party when (1) it obtains the relief sought; (2) the lawsuit was the catalyst motivating the opposing party to take the action that rendered the case moot; and (3) the action taken was required by 2

3 law. The Laurels at Margate, at 10. These factors are present in the instant case. The petitioner obtained the lawful relief it sought from respondents after the petition was filed. Therefore, the petitioner is the prevailing party is this case and is entitled to an award of attorney s fees and costs. The only issue to be decided by the arbitrator is the reasonableness of the attorney s fees claimed by 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 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). 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 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 (7), Florida Administrative Code. Petitioner has provided an affidavit of its counsel that explains the amount of attorney s fees and costs sought. Several different attorneys and paralegals worked on this case. First, petitioner seeks compensation for the services of Jeff A. Stone, Esq., at the rate of $ per hour for 2 hours. Mr. Stone has been licensed to practice law in 3

4 the State of Florida since September The rate of $ per hour is a reasonable rate for Mr. Stone s services and falls within the range of fees charged in the locality for similar legal services. The total amount of time expended in the amount of 2 hours is reasonable. Petitioner is therefore awarded the sum of $ for 2 hours of Mr. Stone s time. Second, petitioner seeks compensation for the services of Neal McCulloh, Esq., at the rate of $ per hour for 5.2 hours. Mr. McCulloh has been licensed to practice law in the State of Florida since November The rate of $ per hour is a reasonable rate for Mr. McCulloh s services and falls within the range of fees charged in the locality for similar legal services. However, a review of the services rendered indicates that all of Mr. McCulloh s services were performed prior to the date the petition was drafted and filed herein. These fees are not recoverable. See Desy v. River Key Condominium Association, 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). Petitioner is therefore not awarded attorney s fees for the services of Mr. McCulloh. Third, petitioner seeks compensation for the services of Carlos R. Arias, Esq., at the rate of $ per hour for.5 hours and $ per hour for 1.4 hours. Mr. Arias has been licensed to practice law in the State of Florida since October The rates of $ and $ per hour are reasonable rates for Mr. Arias s services and fall within the range of fees charged in the locality for similar legal services. The total amount of time expended in the amount of 1.9 hours is reasonable. Petitioner is therefore awarded the sum of $ for 1.9 hours of Mr. Arias s time. 4

5 Fourth, petitioner seeks compensation for the services of Loretta Miller, a paralegal. A review of the services rendered indicates that all of Ms. Miller s services were performed prior to the date the petition was drafted and filed herein. As indicated above, these fees are not recoverable. Respondent is therefore not awarded fees for the services of Ms. Miller. Fifth, petitioner seeks compensation for the services of Lauren Bailey, a paralegal, at the rate of $ per hour for 1.3 hours. Contrary to the directive in the order requiring an amended motion for attorney s fees and costs, the affidavit does not state Lauren Bailey s number of years of legal experience. The rate of $ per hour is excessive and the arbitrator finds that a reasonable rate which falls within the range of fees charged in the locality for similar paralegal services is $75.00 per hour. The total amount of time expended in the amount of 1.3 hours is reasonable. Petitioner is therefore awarded the sum of $97.50 for 1.3 hours of Lauren Bailey s time. Sixth, petitioner seeks compensation for the services of Tracey A. Carson, a paralegal, at the rate of $ per hour for 4.2 hours. Contrary to the directive in the order requiring an amended motion for attorney s fees and costs, the affidavit does not state Tracey A. Carson s number of years of legal experience. The rate of $ per hour is excessive and the arbitrator finds that a reasonable rate which falls within the range of fees charged in the locality for similar paralegal services is $75.00 per hour. The total amount of time expended in the amount of 4.2 hours is reasonable. Petitioner is therefore awarded the sum of $ for 4.2 hours of Tracey A. Carson s time. Additionally, petitioner seeks costs of $ for photocopies; $75.00 for a title search expense; $50.00 for the filing fee; and $17.00 for postage expenses. Costs of 5

6 copies of documents filed with the court, which are reasonably necessary to assist the court in reaching a conclusion, are awardable. Petitioner identified the photocopies as being filed with the division and, therefore, will be reimbursed $ for the photocopies. See Statewide Uniform Guidelines for the Taxation of Costs in Civil Actions. Petitioner has demonstrated it was necessary to ensure respondents were current title owners and the $75.00 for a title search expense will be awarded. The $50.00 filing fee is awarded. Postage is an unrecoverable overhead cost. Therefore, petitioner will not be awarded the $17.00 sought. Therefore, based on the foregoing, it is ORDERED: The respondents shall, within 30 days, pay to the petitioner the total amount of $1,364.05, which represents reimbursement for $1, in attorney s fees and $ in costs. Florida. DONE AND ORDERED this 19 th day of May, 2009, at Tallahassee, Leon County, David R. Slaton, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

7 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 19 th day of May, 2009: Carlos R. Arias, Esq. Clayton & McCulloh 1065 Maitland Center Commons Blvd. Maitland, FL Attorney for Petitioners William Natera 4521 Wheelhouse Court Orlando, FL Respondent Susana Natera 4521 Wheelhouse Court Orlando, FL Respondent David R. Slaton, Arbitrator 7