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 Robert W. Meyer, Petitioner, v. Fee Case No Rel. Case No South Seas Northwest Condominium Apartments of Marco Island, Inc., Respondent. / FINAL ORDER AWARDING ATTORNEY S FEES AND COSTS Comes now, the undersigned arbitrator, and enters this final order as follows: On October 16, 2003, South Seas Northwest Condominium Apartments of Marco Island, Inc. (the respondent/association) moved for an award of $2, in attorney s fees and $1, in costs, totaling $3,353,72. On November 12, 2003, the petitioner filed a response in opposition to the motion and notice that he had filed a complaint for a trial de novo in the circuit court. Accordingly, the undersigned on November 19, 2003, issued an order administratively closing this matter pending the outcome of the trial de novo and any related appeal. On June 15, 2004 the undersigned issued an order directing the association to file a status report and on June 30, 2004, the association filed a status report indicating that the circuit court judge had granted the association s motion to strike 1

2 the complaint for trial de novo. The attached circuit court order issued on January 20, 2004, indicates that the court reserved jurisdiction as to an award of attorney s fees and costs and required the petitioner to file an amended complaint within thirty days. On September 24, 2004, the undersigned directed the association to file an additional status report. The petitioner filed a status report on October 8, 2004, indicating a prohibition against the petitioner filing pro se pleadings imposed by the circuit court is under appeal before the district court of appeal. 1 On October 11, 2004, the association filed a status report indicating that the petitioner has not filed an amended complaint within the time directed by the circuit court judge. Additionally, the association notes that a hearing is scheduled in the circuit court on November 8, 2004, regarding the association s motion for attorney s fees and costs associated with the trial de novo arising from the underlying case. Based upon the foregoing, it appears that the appeal arising from the underlying case has substantively reached a resolution. Accordingly, it is appropriate for the undersigned to consider the association s request for attorney s fees and costs. 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 1 This appeal is related to another circuit court case, which did not arise from underlying case in the instant matter. 2

3 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 arbitrator dismissed the underlying case because he determined that he could not grant the relief requested by the petitioner because a prior circuit court order prohibited the actions by the petitioner involved in the underlying case, in that the court prohibited the petitioner from making any future official records requests and engaging in any litigation except through legal counsel licensed to practice in Florida. Thus, the petitioner failed to achieve any benefit in bringing the underlying action. Therefore, the association is entitled to recover its reasonable attorney s fees and costs. See Cypress Woods, Inc. v. Rosen, Arb. Case No , Final Order Awarding Attorney s Fees and Costs (June 7, 2002)(respondent found to be the prevailing where the petition was dismissed without prejudice due to lack of statutory prearbitration notice as the petitioner failed to achieve the benefit it sought when initiating the case due to the dismissal). 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 3

4 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 The association seeks compensation for the legal services of Eric J. Vasquez, Esquire, at the rate of $ per hour. Mr. Vasquez has been admitted to practice law in Florida since The requested rate does not exceed the amount customarily awarded for representation in similar arbitration proceedings by attorneys with similar experience. Therefore, the association will be compensated at the rate of $ per hour for counsel s services. The association seeks compensation for 9.2 hours of efforts by counsel. The arbitrator finds the hours requested by the association are not excessive and were reasonable, given the length of the arbitration proceeding and the issues in the case. Therefore, the association will be compensated for 9.2 hours of services by its legal counsel at the rate of $ per hour. The association also seeks reimbursement for 13.8 hours of services by legal assistants. Fees for a legal assistant s time will not be awarded because, based upon the limited information provided by the respondent s billing sheet, it appears that all activities performed by the legal secretaries involved performance of routine clerical and administrative duties. See Doral House Condominium Association, Inc., a/k/a Doral House I Condominium Association v. Ofelia Astudillo, Arb. Case No. 4

5 , Final Order on Motion for Attorney s Fees and Costs (October 4, 2004). The association seeks to recover $1, in costs. The requested costs appear to consist entirely of routine office expenses such as copies, postage, courier service and facsimile charges. Such costs are not recoverable as they should be factored into the attorney s hourly rate. See Barrera, individually and Bleau Fontaine Condo. Number Two, Inc. v. Bleau Fontaine Community Assoc., Inc., Arb. No , Final Order on Attorney s Fees (January 26, 2001). ACCORDINGLY, IT IS ORDERED: The petitioner, Robert W. Meyer, shall pay $1, to the respondent, South Seas Northwest Condominium Apartments of Marco Island, Inc., in reimbursement for its attorney s fees associated with the underlying proceeding within thirty (30) days of the date of this order. DONE AND ORDERED this 20 th day of October 2004, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 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 5

6 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

7 CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 20 day of October 2004 to: Robert W. Meyer 380 Seaview Court Unit #1706 Marco Island, Florida Eric J. Vasquez, Esq. Law Offices of Eric J. Vasquez 900 Sixth Avenue South Suite 201 Naples, Florida James W. Earl, Arbitrator 7