STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION SAVOY OWNERS ASSOCIATION, INC., Petitioner, v. Fee Case No HIRANT and AYDA CANDAN, Rel. Case No Respondents. / FINAL ORDER ON MOTIONS FOR ATTORNEY S FEES AND COSTS On August 17, 2007, Savoy Owners Association, Inc. (Petitioner or Association), moved for an award of $11, in attorney s fees and costs in the underlying case, On August 23, 2007, an Order Permitting Response was entered. On August 24, 2007, Petitioner filed a Motion for Summary Order in the underlying case. On August 31, 2007, an Order Denying Petitioner s Motion for Summary Final Order was entered. As of the date of this order, Respondents have not filed a response or other communication in this fees case. 1 Procedural History of Arb. Case No On December 7, 2006, Savoy Owners Association, Inc. (Petitioner) filed a petition for non-binding arbitration, naming Hirant Candan and Aydan Candan as respondents. Petitioner alleged Respondents had violated Article XVIII, Section E, relating to pets, and Section G of the Declaration of Condominium, relating to nuisance, by having two dogs on the balcony of the unit that caused a nuisance to the other unit 1 On December 20, 2007, Respondents Counsel filed a Respondent s Response to Amended Motion for Costs for case number , a dispute between the same parties. By case number and facts 1

2 owners by barking incessantly while on the balcony of the unit. On January 5, 2007, an Order Requiring Answer was entered. On January 25, 2007, Respondents filed a Motion to Extend Time for Filing Answer. On January 26, 2007, an Order Granting an Extension of Time was entered. On February 20, 2007, Respondents filed an Answer with affirmative defenses, a Motion to Dismiss for lack of Jurisdiction, and a Motion for Discovery. Respondents Answer denied that there were dogs in the unit, and raised the affirmative defenses that the dogs were medically necessary for Respondents daughter, and selective enforcement of the pet prohibition. On February 26, 2007, an Order was entered denying Respondents Motion for Discovery and requiring supplemental proof of filing of a Fair Housing Complaint. On February 28, 2007, Petitioner filed a response to Respondent s Answer and Petitioner s Reply and Alternative Motion to Strike Respondent s Affirmative Defenses. On March 7, 2007, Petitioner filed a Motion for Summary Order. On March 9, 2007, Respondents filed a Response to Petitioner s Reply and Alternative Motion to Strike Respondent s Affirmative Defenses, a Response to Petitioner s Motion for Summary Order and Motion to Strike Petitioner s Motion and Attachment. On March 12, 2007, Respondents filed an Amended Answer. On March 19, 2007, Petitioner filed Petitioner s Reply to Amended Answer and Alternative Motion to Strike Affirmative Defenses Contained in Respondent s Answer to Petition and Renewed Motion for Summary Order. alleged in the motion, Respondents Counsel referenced case no which was Dismissed as Moot on October 15,

3 On March 19, 2007, a Notice of Intent to Issue Summary Final Order was entered. On March 19, 2007, Respondents Counsel, Anthony M. Lawshon, filed a Motion to Withdraw as Counsel. On March 21, 2007, an Amended Notice of Intent to Issue a Summary Final Order was entered. On March 28, 2007, a Notice of Filing was entered releasing Respondents Counsel and the firm Parrish, Lawhon & Yarnell, P.A. as counsel for the Respondents. On March 27, 2007, Respondents filed a letter addressed to the undersigned requesting an additional 14 days to obtain counsel for the proceeding. On April 5, 2007, an Order on Motion for Extension of Time was entered, granting respondents 14 days to obtain counsel. The order also required Respondents to file supplemental proof of filing of a Fair Housing Complaint and compliance with Rule 61B (3), Florida Administrative Code, relating to the affirmative defense of selective enforcement. On April 16, 2007, Petitioner filed a Motion to Amend Petition for Arbitration To Include An Additional Request for Relief. On April 17, 2007, Ellen A. Goldman, Esquire, of the firm PORTER WRIGHT MORRIS & ARTHUR, LLP, appeared as Respondents counsel and filed a letter on behalf of Respondents requesting a 15 day extension of time to respond to the order dated April 5, On April 17, 2007, an Order Denying Petitioner s Motion to Amend and an Order on Motion for Extension of Time and Notice of Communication were entered. 2 On May 2, 2007, Respondents filed a Motion for Extension of Time to comply with the April 17, 2007 Order. The order again required 2 Petitioner s motion to amend was denied pursuant to Section (4)(b), Florida Statutes, relating to pre-arbitration notice. Petitioner subsequently filed a second petition, Arb. Case No On October 15, 2008, a Final Order Dismissing Case as Moot was entered on Arb. Case No

4 Respondents to file proof of filing the Fair Housing Complaint and compliance with Rule 61B (3), F.A.C. On May 7, 2007, a Notice of Final Hearing was entered. On May 14, 2007, Respondents Counsel, Joseph G. Foster, Esquire, also with the firm PORTER WRIGHT MORRIS & ARTHUR, LLP, filed Notice of Compliance with the April 17, 2007 Order and withdrawal of Respondents affirmative defense of Fair Housing. Attachments to the notice included the following: an April 2007 copy of Sentinel (a newsletter of the condominium); a May 8, 2007, handwritten note by Lucas Morehouse of Affordable Carpet, stating that he had cleaned the carpet and had not seen any evidence of urine or urine states [sic] or feces in any of the rooms prior to the cleaning of the carpet; a May 5, 2007, typewritten note from Liz Appling, Groomer, which stated [t]his is to confirm that I groomed Rita Candan s dogs at 4041 Gulf Shore Blvd. N. #415 and find the kitchen and balcony to be clean and kept in good order ; a copy of an undated receipt for carpet cleaning by Affordable Carpet and Furniture Cleaners; an August 21, 2007, handwritten note from Gregory E. Leach, MD, MBA of Advanced Medical Center, which stated, in pertinent part, that patient is under medical care and is to have service animals with her at all times for therapeutic purposes ; and three copies of prescriptions for Rita Candan. On May 21, 2007, Petitioner filed Petitioner s Pre-hearing Information Sheet. On May 22, 2007, Respondents filed Respondent s Pre-Hearing Information Sheet. On May 29, 2007, Respondents Counsel filed Respondents Consent to Summary Order in favor of Petitioner. On May 30, 2007, an Order Canceling Final Hearing and Notice of Intent to Issue Summary Final Order was entered. On June 20, 2007, Respondents 4

5 Counsel, Joseph G. Foster, filed a Motion to Withdraw the firm and as Counsel for Respondents. On June 29, 2007, a Summary Final Order in favor of the petitioner was entered. On July 16, 2007, Respondents new Counsel, David Leigh, filed a Motion for Rehearing. On July 19, 2007, an Order Denying Respondents Motion for Re-hearing was entered. On July 17, 2007, Petitioner filed a Motion for Attorneys fees for case no On August 23, 2007, an Order Permitting Response was entered. On August 24, 2007, Petitioner filed a Motion for Summary Order. On August 31, 2007, an Order Denying Petitioner s Motion for Summary Order was entered. This order is entered accordingly. Prevailing Party This fees case arises from arbitration case number , in which the Association alleged the Respondents were in violation of Article XVIII, E of the Declaration of Condominium, relating to pets. The petition alleged that Respondents have two dogs in the unit and allowed the dogs on the balcony where they produced annoying noises. Additionally, Petitioner alleged the on-going noise from the dogs constituted a legal nuisance in violation of Article XVIII, G, of the Declaration of Condominium. As relief, Petitioner sought an order finding Respondent in violation of the Declaration of Condominium, requiring the Respondent to immediately comply with the governing documents by removing both dogs from the unit and awarding the Association reimbursement of its costs and reasonable attorney s fees. On May 29, 2007, Respondents Counsel filed Respondents Consent to Summary Final Order in favor of 5

6 Petitioner. On June 29, 2007, a Summary Final Order was entered which granted Petitioner the relief requested. 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. When there is a decision on the merits, the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney s fees Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla. 1992). However, when a case becomes moot or there is a voluntary dismissal, there is no decision on the merits and the determination of whether there is a prevailing party must be determined by the particular facts of the case and the timing of the act that caused the action to be dismissed. The Laurels at Margate Condominium Association, Inc. v. Slonecky, Arb. Case No F, Final Order on Motion for Attorney s Fees (July 28, 1994). In the underlying case, case number , Respondents consented to a Summary Final Order in favor of the Petitioner. Therefore, Petitioner is the prevailing party and is entitled to recover its attorney s fees in case number Reasonableness of Attorney s Fees The only issue remaining 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 articulate[d] specific guidelines to be followed in setting attorney s fees and adopted the federal lodestar approach as a suitable foundation for an objective structure for setting reasonable fee awards. The lodestar figure is determined 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. id. at The court stated that in determining the 6

7 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 rule 61B (7), Florida Administrative Code. The Association seeks compensation for the services of Susan M. McLaughlin, Esquire, hours calculated at $ per hour for 2006, and $ per hour for The hours are Ms. McLaughlin s hours for a related arbitration case, case no , filed on December 7, 2006, and a nonrelated arbitration case, case no , filed on May 3, Petitioner did not file a Motion for Attorney s Fees and Cost in the nonrelated arbitration case no Respondents failed to file a response or communication to Petitioner s Motion for Attorney s Fees and Costs in related arbitration case, case no , and but filed a Motion for Attorney s Fees and Costs in case no and filed a response to Petitioner s Motion for Attorney s Fees and Costs in case no On September 17, 2007, Petitioner filed an Answer to Respondents Reply to Petitioner s Motion Attorney s Fees and Cost for case. Petitioner filed its Reply as case no (fees case) and related case no Accordingly, this order shall be limited only to Petitioner s Motion for Attorney s Fees and Costs incurred in the related Arb. Case No Ms. McLaughlin was admitted into the Florida Bar in April 2001, and thus was an attorney for approximately 6 years at the time of her services. While the case did not 7

8 present novel legal questions, Respondents various attorneys raised a multitude of legal and factual arguments prior to consenting to a Summary Final Order in favor of Petitioner. After considering the factors contained in Rule 61B (7), Florida Administrative Code, the undersigned finds that a reasonable hourly rate is $ per hour. Based upon of the descriptions and times listed in Exhibit A, the association will be awarded 31.7 hours at the rate of $ per hour for Ms. McLaughlin s time for a total of $6, in attorneys fees for case number Petitioner seeks an award of $ for filing fees, $ for courier fees, and $5.31 for postage. The $50.00 filing fee filing fee for Arb. Case No , was a necessary expense and is awarded. Costs for postage and courier services are not recoverable, as they are routine overhead expenses that should be incorporated into the attorney s hourly rate. See Barrera v. Bleau Fontaine Community Assoc., Inc., Arb. Case No , Final Order on Attorney s Fees (January 26, 2001). Therefore, the costs for postage and courier services are denied. Based on the foregoing, it is ORDERED: Within 30 days of the date of this order, Respondents shall pay to Petitioner the total amount of $6,390.00, which represents reimbursement to the association for $6, in attorney s fees and $50.00 in costs. 3 The motion for fees and costs was filed after the arbitrator had previously denied Petitioner s motion to amend the petition to include additional allegations which were subsequently the allegations in Arb. Case

9 DONE AND ORDERED this 12 th day of February, 2009 at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 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 day of February 2009: Susan M. McLaughlin, Esquire FAX: Hendry Street Fort Myers, Florida David E. Leigh, Esquire FAX: Tamiami Trail North Suite 501 Naples, Florida Karl M. Scheuerman, Esquire FAX: Delta Blvd. Suite 210-B Tallahassee, Florida Tonya S. Chavis, Arbitrator 9