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 JOSEFINA MARIA KILPATRICK, as trustee of the JOSEFINA MARIA KILPATRICK REVOCABLE TRUST AGREEMENT DATED DECEMBER 15, 2003, Petitioner, v. Fees Case No Rel. Case No WADE SURSIDE CONDOMINIUM ASSOCIATION, INC., Respondent. / ORDER DENYING ASSOCIATION S REQUEST FOR PETITIONER TO PAY 25% OF THE ASSOCIATION S ATTORNEY S FEES AND FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On July 26, 2013, Petitioner Josefina Maria Kilpatrick, as trustee of the Josefina Maria Kilpatrick Revocable Trust Agreement dated December 15, 2003, filed a motion for an award of $2, in attorney s fees and in costs. The Respondent in this case is Wade Surfside Condominium Association, Inc. (the Association) and is located in Hillsborough County, Florida. On August 12, 2013, Respondent filed a Response to Petitioner s Motion for Attorney s Fees and Costs and Reimbursement of Petitioner s Share of Respondent s Attorney s Fees and Costs. Additionally, in its response, the Association seeks an Order requiring Petitioner, a unit owner in the Association, to pay 22% of the sum total of the Association s legal expenses in this matter. 1

2 ASSOCIATION S REQUEST FOR FEES On August 12, 2013, the Association filed a Response to Petitioner s Motion for Attorney s Fees and Costs, seeking reimbursement of twenty-five (25) percent of the Association s legal fees from Petitioner. The Association s motion cannot be granted. The only issue in the case was the allegation that the Association failed to provide Petitioner timely access to Association official records. The Summary Final Order entered on June 20, 2013, granted Petitioner the relief she requested and ordered the Association to pay Petition $1, in statutory damages for its willful failure to provide Petitioner timely access to its official records. In its August 12, 2013 response, the Association seeks an order requiring Petition to pay twenty-two percent (22%) of its attorney s fees or $723.80, as required by Article X of the Declaration of Condominium. Essentially, the Association is seeking an order to enforce a provision in its governing documents relating to an owner s proportionate share of the expenses. Section (4)(k), Florida Statutes, states, in pertinent part, as follows: 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. The Association was not the prevailing party in the underlying dispute. The relief requested by the Association involves the levy of the Association s legal fees on unit owners on a proportional basis. Additionally, Section (1), Florida Statues, provides that disputes primarily involving the levy or collection of an assessment are not eligible for arbitration. Thomas, et al. v. St. Tropez Ocean Condo. Ass n., Inc., Arb. 2

3 Case No , Final Order of Dismissal (December 4, 2012)(Disputes primarily involving collection of assessments are ineligible for arbitration). Therefore it is not within the jurisdiction of the arbitrator to assign, as part of the fees case, a proportion of the Association s legal fees to the petitioner/unit owner. Accordingly, the Association s request is denied. FINDINGS OF FACT 1. This fees case arises from arbitration case number , in which Petitioner alleged the Association failed to provide Petitioner timely access to Association Official Records. 2. On June 20, 2013, a Summary Final Order was entered finding that the Association improperly and willfully denied Petitioner s February 1, 2013, and March 4, 2013 written requests to access its Official Records and awarded Petitioner the maximum statutory damages of $1, CONCLUSIONS OF 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 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)). Accordingly, as the Association is not the prevailing party in this dispute because it did not succeed on any issue in the dispute. 3

4 The only issue to be decided by the arbitrator is the reasonableness of the attorney s fees 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 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 Petitioner s counsel that explains the amount of the attorney s fees and costs. Petitioner seeks compensation for the services of H. Web Melton, Esq., at the rate of $ per hour for 9.7. Mr. Melton has been licensed to practice law in the State of Florida since April However, Mr. Melton s rate is excessive for an attorney located in the same county with slightly more than 6 years of experience. A more reasonable rate is $ The total amount of time expended successfully pursuing the arbitration case to its conclusion, 9.7 hours is reasonable for a case of this nature. Therefore, the Petitioner will be awarded at a rate 4

5 of $ per hour for attorney s fees for the 9.7 hours expended on the case for a total of $1, Additionally, the Petitioner seeks costs of $50.00 for filing fees. The filing fee is a recoverable cost and will be awarded. Therefore, based on the foregoing, IT IS ORDERED: 1. The Association s request for an Order requiring Petitioner to pay twentytwo percent (22%) of its legal fees is DENIED. 2. The Association shall, within 30 days, pay to the Petitioner the total amount of $1, which represents reimbursement to the Association for $1, in attorney s fees and $50.00 in costs. DONE AND ORDERED this 21 st day of August, 2013, at Tallahassee, Leon County, Florida Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida FAX: 850: 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. 5

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 to the following persons on this 21 st day of August, 2013, to: Web Melton, III, Esquire BUSH ROSS, P.A. Post Office Bos 3913 Tampa, Florida 3913 FAX: Jonathan J. Ellis, Esquire Ellis, Shumaker, Loop & Kendrick, LLP P.O. Box Tampa, Florida FAX: Tonya S. Chavis, Arbitrator 6