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 Costa Del Sol Condominium Association, Inc., Petitioner, v. Fee Case No Rel. Case No Eugenio Labari, Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On June 13, 2005, the association moved for an award of $2, in attorney s fees and $70.00 in costs, totaling $2, The respondent filed a response objecting to the association s motion on July 12, This fees case arises from arbitration case number In the underlying case, the association alleged that the respondent violated the condominium documents by: Failing to remove his garbage cans, barbeque, children s toys, bicycles and other items on the limited common elements; Storing a propane tank on the common elements Failing to remove his recreational vehicle from the property; Failing to remove his garbage cans and recycling bins on collection days by 10:00 p.m. Parking on the grass; Failing to clean his driveway; Failing to repair broken screens on his unit; Climbing and walking on the roof of the condominium building; Installing a satellite dish without the association s approval; and, Causing loud noises to emanate from his unit. 1

2 The respondent was served with the petition in the underlying matter on May 22, The case was dismissed as moot on May 27, 2005, upon the association filing a notice that the respondent had complied with its demands. As there were material issues of fact as to whether the association prevailed, a formal hearing was held on September 2, 2005, at the the condominium s conference room. The undersigned appear via telephone and Raul Morales, Esq., appeared at the hearing on behalf of the association. Neither the respondent nor his attorney, Orlando Antelo, Jr., appeared at the final hearing. 1 The association presented the testimony of its on-site property manager, Sualy Herro. Ms. Herro indicated that a prior property manager inspected the property in October 2004, and found that some of the violations had been corrected. She personally inspected the property subsequent to the December 23, 2004, case management conference in this matter. At that time she found that the satellite dish remained in place and the respondent had not repaired the screens his unit. 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, The undersigned attempted to schedule the final hearing with the respondent s attorney by issuing an order on July 19, 2005, requiring the parties to submit hearing dates and subsequently leaving a telephone message with the respondent s attorney. The respondent s attorney failed to respond. Therefore, the undersigned scheduled the hearing, issuing a notice of final hearing on August 24, 2005, serving it by both regular U.S. mail and facsimile. On the day prior to the hearing, a staff member of the arbitration section contacted the respondent s attorney to determine if he had submitted his witness and exhibit lists. The respondent s attorney indicated that he wanted to continue the hearing and was directed to make his request in writing. Near the close of the business day, the respondent s attorney filed by facsimile a notice of cancellation of hearing. The arbitrator immediately issued an order quashing the notice of cancellation, faxing the order to the parties. Additionally the undersigned telephoned the respondent s attorney to inform him that the hearing would proceed as scheduled. 2

3 (Fla. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Where the underlying case is rendered moot due to the respondent s compliance, the petitioner is the prevailing party for the purpose of awarding costs and attorney fees if the arbitration is the catalyst motivating the opposing party s compliance and the respondent s action was required by law. See Bermuda Cays Condo. Assoc., Inc. v. Baker, Arb. Case No , Final Order on Attorney s Fees (March 12, 1999), also see Boca Terrace Condo. Assoc., Inc. v. Grecco, Arb. Case No , Final Order on Attorney s Fees (September 14, 1998). At the hearing the association presented competent and substantial evidence that respondent failed to maintain and repair the screens on his unit as required by section 7.1 of the declaration of condominium. The association also presented competent and substantial evidence that the respondent had installed a satellite dish without the association s approval as required by rule of association s rules and regulations. It is clear that the respondent did not correct these violations for months and that he only did so because of the association s legal action. Therefore, the association is found to be the prevailing party as to these two violations. The association did not present sufficient evidence that any of the other violations alleged in the petition continued after the respondent was served with the petition. Therefore, it cannot be determined that either party prevailed as to these allegations. Time sheets attached to the association s motion indicate that its counsel spent 11.0 hours prosecuting the underlying case. The time records do not indicate the time spent on each allegation. Therefore, it will be presumed that an equal amount of time 3

4 was spent on each issue, and a proportional amount of time will be awarded for the two allegations on which the association prevailed. See Castellano v. Shore Colony Condo. Assoc., Inc., Arb. Case No , Final Order on Motion for Attorney s Fees and Costs (August 11, 2003); See also Rokest Condominium Association, Inc. v. Tenenen, Arbitration Case No , Final Order on Motion for Attorney s Fees and Costs (December 3, 2003). However, on December 23, 2004, a case management conference was held in the underlying case during which it was determined that all alleged violations had been resolved except for the ones involving the satellite dish and the unit s screens. Therefore, it is evident that any time incurred by the association on or after December 23, 2004, was due to the claims it prevailed on and it will be awarded these hours in their entirety. The association will also be awarded an additional hour for the preparation of fees motion and affidavits. This results in an award of 6.84 hours. 2 The association seeks reimbursement for the services of Raul Morales, Esq., at the rate of $ per hour. Mr. Morales has been practicing law for two years. After considering the factors contained in rule 61B (7), Florida Administrative Code, and the supporting affidavits attached to the motion, the undersigned finds that reasonable fee for Mr. Morales services in this matter is $ per hour. This amount is consistent with the rate recently awarded for Mr. Morales services in other arbitration cases. See Kendall Gate, A Condominium, Inc. v. Barry Schwartz, Arb. Case No , Final Order on Motion for Award of Attorney s Fees and Costs (August 26, 2005); See also Doral Court Condominium Association, Inc. v. Verdasco, Arb. Case 2 The undersigned finds that the association made ten distinct factual allegations that would constitute violations of the condominium documents if proven. 4

5 No , Final Order on Motion for Award of Attorney s Fees and Costs (August 23, 2005); The association seeks recovery of $50.00 for the arbitration filing fee and a $20.00 for title service charge. These costs will be awarded as they were reasonable and necessary expenses. WHEREFORE, the respondent shall pay the sum of $1, to the association within thirty (30) days of the date of this order. DONE AND ORDERED this 14 th day of September, 2005, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 14 th day of September, 2005, to: Raul Morales, Esq. Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A. 201 Alhambra Circle Suite 1102 Coral Gables, Florida Orlando Antelo, Jr., Esq. Law Offices of Orlando Antelo, Jr, P.A. 5

6 286 Westward Drive Miami Springs, Florida Eugenio Labari 9909 Costa Del Sol Boulevard Miami, Florida James W. Earl, Arbitrator RIGHT TO TRIAL DE NOVO Pursuant to section , Florida Statutes, this decision shall be binding on the parties unless a complaint for trial de novo is filed by an adversely affected party in a court of competent jurisdiction in the circuit in which the condominium is located within 30 days of the date of mailing of this order. This final order does not constitute final agency action and is not appealable to the district courts of appeal. 6