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 GARRETT S RUN CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Fee Case No Rel. Case No ROBERT P. RONDINONE and BRENDA M. RONDINONE, Respondents. / FINAL ORDER ON PETITIONER S MOTION FOR AWARD OF ATTORNEY S FEES AND COSTS On February 26, 2010, Garrett s Run Condominium Association, Inc. (the Association) the corporate entity responsible for the operation of the Garrett s Run Condominium located in Seminole County, Florida filed its Motion for Award of Attorney s Fees and Costs seeking an award of $13, in legal fees and $ in costs. On April 1, 2010, Robert P. Rondinone and Brenda M. Rondinone (Respondents) filed a response to the Association s motion. This fees case arises from arbitration case number In the underlying case, the Association alleged in its petition that Respondents violated the Association s governing documents by making material alterations within the interior of their unit and/or to the common elements, including removal of portions of a load bearing wall, and removing sliding glass doors and windows. The Association also alleged that Respondents had improperly enclosed their balcony. The underlying case was referred to mediation which resulted in an impasse. The parties agreed to return to arbitration. A Summary Final Order was entered in the 1

2 underlying case on January 19, 2010, finding that Respondents violated 3.4(a) of the Condominium s declaration by removing the wall, sliding glass doors and window that separated Respondents unit from their porch without proper approval. Therefore, Respondents were ordered restore the wall, sliding glass doors and window that separated the porch from their unit to their original condition. Because the Association has acknowledged that Respondents had permission to replace the screens on their porch with windows, the Association was denied any requested relief regarding the porch windows. Prevailing Party 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. 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 Association prevailed on the claim involving the removal of the wall between their unit and their balcony (the wall claim ). However, the Association did not prevail on its claim that Respondents violated the governing documents by enclosing their porch (the enclosure claim ). The Florida Supreme Court in Folta v. Bolton, 493 So.2d 440 (Fla. 1986) addressed the awarding of attorney s fees where the plaintiff did not prevail on all claims of a multi-claim medical malpractice complaint. In Bolton the plaintiff brought five claims based upon separate injuries by different parties that occurred at different times. The court held: 2

3 Id at 442. that in a multicount medical malpractice action, where each claim is separate and distinct and would support an independent action, as opposed to being an alternative theory of liability for the same wrong, the prevailing party on each distinct claim is entitled to an award of attorney's fees for those fees generated in connection with that claim. The wall claim and enclosure claim are separate and distinct claims. Respondents argue that there are two other claims, that the wall that was removed was a structural wall and that the balcony floor had been improperly modified. The petition alleged Respondent s removal of the wall was a violation of the governing documents citing 3.4(a) and (b) of the Condominium s declaration. Section 3.4(a) prohibits making alteration or improvement of the common elements without approval of 75% of the voting interests. Section 3.4(b) prohibits owners from making structural modifications to units without without first obtaining the written permission of the Association. The undersigned found the removal of the wall to violate the governing documents because its removal altered the common elements and the project had not been properly approved. The allegation that the wall was a structural component of the unit was an alternative theory as to why it is a violation of the governing documents to remove the wall. Respondents also allege that the Association raised another claim in Petitioner s Renewed Motion for Summary Disposition and Motion For Default where it alleged that Respondents had improperly modified the floor of their balcony. Because this claim was not raised in the petition, it was not addressed in the Summary Final Order. Therefore, there was no finding on the merits of this allegation and it will not be considered in this fees order. 3

4 The Association s timesheets do not distinguish between time spent on the wall claim and the enclosure claim. It will be presumed that an equal amount of time was spent on each issue up until the time the Association discontinued pursuing the enclosure claim. The Association first indicated that it was no longer seeking any relief regarding the enclosure claim in its Motion for Summary Disposition filed May 29, Therefore, up until this date, half of the Association s efforts were dedicated to the enclosure claim, and the Association will not be awarded any fees and costs for these efforts. Attorney s Fees The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by the association. 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 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 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 Fla. Admin. Code R. 61B

5 The Association seeks reimbursement for 43.3 hours of legal services by Russell E. Klem, Esq. at the rate of $ per hour. Mr. Klemm has been a practicing attorney in the State of Florida for 29 years. The requested hourly rate is reasonable. The timesheets attached to the motion indicate that Mr. Klemm billed for 42.7 hours 1 of which 7.2 hours were incurred while the Association was still seeking relief regarding the enclosure claim. Therefore, this amount of time will be reduced by half to 3.6 hours. The remaining 34.0 hours claimed by the Association are awarded. This results in a total 37.6 hours at the rate of $ per hour providing for an award of $9, in attorney s fees. Paralegals The Association seeks reimbursement for the efforts of 5 paralegals. Paralegal services are compensable where services are provided under the supervision of a licensed attorney and are non-clerical, meaningful legal work. Estes, et al. v. Lido of Pinellas Condo. Assn. Inc., Arb. Case No F, Final Order on Attorney s Fees (May 31, 1995). The requested amount of time, requested hourly rate and number of hours the undersigned finds to be related to non-clerical, meaningful legal work are as follows: Name Hourly Rate Hours Requested Non-Clerical Hours Requested Amanda Parris $ Gretchen Ellsworth $ Jennifer McKinney $ Tracey Carson $ Susan Roe $ There is discrepancy between the Association s motion and the attorney s timesheets. 2 Ms. McKinney s efforts were related to a title search. The Association has not demonstrated that a title search was necessary. 5

6 All of the non-clerical hours for Ms. Carson were incurred while the Association was still pursuing its enclosure claim. Therefore, her time is reduced by half to 1.4 hours. Because all of Ms. Roe s efforts were incurred after the Association ceased pursuing the enclosure claim, the Association is awarded 8.2 hours for the efforts of Ms. Roe s work. No time will be awarded for Ms. Parris, Ellsworth or McKinney. The hourly rates requested for Ms. Carson and Roe are unreasonable. Upon review of their experience 3 and the type of work performed, the undersigned finds $85.00 an hour to be a reasonable rate. Thus, the Association is awarded 9.6 paralegal hours at the rate of $85.00 per hour totaling $ Costs The Association seeks reimbursement for $ in costs consisting of $50.00 for the arbitration filing fee, $ for photocopies of the petition, and $85.00 for a title search. The filing fee was a necessary expense and is awarded. Pursuant to the Statewide Uniform Guidelines for Taxation of Costs, the costs of copies of documents filed with the court, which are reasonably necessary to assist the court in reaching a conclusion, are recoverable. The petition and its attachments (governing documents and correspondence) are 127 pages. A dollar per page is excessive. A reasonable rate would be 50 cents per page. 4 Therefore, the Association is awarded $63.50 for photocopies of the petition that were filed with the arbitration section. The cost of a title search is not typically awarded unless the association demonstrates that it was necessary. Margate Village Condo. Ass n, Inc. v. Fink, Arb. 3 The Association attached the resumes of the paralegals to its motion. 4 Although not applicable in this matter, the undersigned takes guidance from (5), Fla. Stat., which provides that a homeowner s association may charge up to 50 cents per page for photocopies made on the Association s photocopy machine. 6

7 Case No , Final Order on Motion for Attorney s Fees and Costs (December 7, 2005). The Association has not established why a title search was necessary. Additionally, where an award of costs is sought, the motion must include receipts or other documents that provide evidence of the costs. Fla. Admin. Code R. 61B The Association has not provided a receipt for the cost of the title search. Based upon the foregoing, it is ORDERED: On or before June 14, 2010, Robert P. Rondinone and Brenda M. Rondinone shall pay Garrett s Run Condominium Association, Inc., $10, for reimbursement of the attorney s fees and costs incurred by the Association in the underlying case. Florida. DONE AND ORDERED this 13 th day of May, 2010, at Tallahassee, Leon County, James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: 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. 7

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 13 th day of May 2010: Russell E. Klemm, Esq. CLAYTON & MCCULLOH 1065 Maitland Center Commons Blvd. Maitland, FL Joel I. Rosenblatt, Esq. 445 Eleventh Avenue Indialantic, FL James W. Earl, Arbitrator 8