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 SEMINOLE CONDOMINIUM ASSOCIATION, INC., Petitioner, Fee Case No v. Rel. Case No TOSU ENTERPRISES, LLC; THOMAS L. SHARPE, JR. and ETHAN SHARPE, Respondents. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On April 16, 2015, Seminole Condominium Association, Inc. (the Association), the legal entity responsible for the operation of The Seminole Condominium Apartments, located in Palm Beach County, Florida, filed an amended motion for an award of $9, in attorney s fees and $ in costs. By Order entered on April 17, 2015, Respondents were directed to file a response within twenty (20) days of the date of the Order. As of the date of this Final Order, Respondents have not filed any response or communication. This Final Order is entered accordingly. Findings This fees case arises from arbitration case number In the underlying case, the Association filed a petition on August 1, 2014, alleging that Respondents violated Section 12.5 of the Declaration by keeping a dog within the unit that was a nuisance due to excessive barking. The relief requested in the petition was for an Order requiring Respondents to ensure that the dog cease barking, so that the 1

2 barking is not heard outside of the unit, or, in the alternative, requiring the removal of the dog from the condominium. On September 3, 2014, Respondents filed an answer containing defenses. Also on September 3, 2014, Respondents filed a request for mediation. The Association did not object to the referral of the underlying case to mediation. Accordingly, on September 16, 2014, the arbitrator ordered the parties to attend a mediation session. A mediation conference with the appointed mediator was set for December 4, On December 10, 2014, the mediator filed a memorandum indicating that Respondents had failed to appear at the mediation conference. Therefore, on December 12, 2014, the arbitrator issued an Order to Show Cause. The Order provided that, as it appeared that Respondents had failed to attend a duly-noticed mediation conference, Respondents would be required to show cause why the arbitrator should not impose sanctions against them. However, prior to the due date for Respondents to respond to the Order to Show Cause, the Association, on December 18, 2014, filed a motion for a final order of dismissal. The motion requested that the underlying case be dismissed as moot, because Respondents had removed the dog complained of as a nuisance, after they were served with the petition. Accordingly, on January 5, 2015, the arbitrator entered a Final Order of Dismissal, as moot. Conclusions A. Prevailing Party Pursuant to Section (4)(k), Florida Statutes, the prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable 2

3 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)). In cases where there is no decision on the merits, such as in cases where a voluntary dismissal is entered, or cases that become moot, the prevailing party is determined by looking at the facts of the case, particularly the timing of the event that caused the case to be dismissed. The Laurels at Margate Condominium Association, Inc., v. Slonecky, Final Order on Motion for Attorney s Fees, Arb. Case No F (July 28, 1994). Respondents removed the dog from the unit only after the petition was filed and a copy of the petition and the Order Requiring Answer were served on them. The arbitrator finds that Respondents compliance with the Association s governing documents was motivated by the filing and receipt of the petition. As the underlying case was rendered moot due to Respondents compliance with the petition, the Association is presumed to be the prevailing party for the purpose of awarding costs and attorney s fees. Fla. Admin. Code R. 61B (7). Respondents failed to make any argument to rebut this presumption. Consequently, the Association will be awarded its reasonable fees and costs pursuant to Section (4)(k), Florida Statutes, and Rule 61B , Florida Administrative Code. B. 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 3

4 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 Rule 61B , Florida Administrative Code. 1. Hourly Rate Three attorneys worked on this case, and the Association has provided affidavits that explain the amount of attorney s fees and costs sought. First, the Association seeks compensation for the legal services of Attorney Timothy T. Patykula at the rate of $ per hour. Attorney Patykula had been practicing law in Florida since October, 2008, i.e., approximately 6 years, while the case was pending. 1 After considering the above factors, the undersigned finds that $ is a reasonable hourly rate for an attorney with Attorney Patykula's experience, and falls within the range of fees charged in the locality for similar legal services. See, e.g., Imperial Cove Condominium IX Association, Inc. v. Quidort, Arb. Fee Case No , Final Order on Motion for 1 The Florida Bar s website shows that Attorney Patykula was admitted in Florida on October 6,

5 Attorney s Fees and Costs (January 17, 2013)($ per hour reasonable for an attorney with approximately six years of experience). Second, the Association seeks compensation for the legal services of Attorney Jacqueline C. Marzan at the rate of $ per hour. Attorney Marzan has been practicing law in Florida since June, However, Attorney Marzan s affidavit also provides that she has been practicing law in the State of New York since Thus, Attorney Marzan had been practicing law approximately 16 years while the case was pending. After considering the above factors, the undersigned finds that $ is a reasonable hourly rate for an attorney with Attorney Marzan s experience, and falls within the range of fees charged in the locality for similar legal services. See, e.g., Lerner v. The Preserve at Ibis Homeowners Association, Inc., Arb. Fee Case No , Final Order on Petitioner s Motion for Award of Prevailing Party Attorney s Fees and Costs (April 14, 2014)(hourly rate of $ reasonable for an attorney with 16 years of experience). Third, the Association seeks compensation for the legal services of Attorney Jay Steven Levine at the rates of $ and $ per hour. Attorney Levine had been practicing law in Florida since November, 1976, i.e., approximately 38 years, while the case was pending. 3 After considering the above factors, the undersigned finds that $ is a reasonable hourly rate for an attorney with Attorney Levine's experience, and falls within the range of fees charged in the locality for similar legal services. See, e.g., Feldman v. Harbor Village Community Association, Inc., Arb. Fee Case No The Florida Bar s website shows that Attorney Marzan was admitted in Florida on June 29, The Florida Bar s website shows that Attorney Levine was admitted in Florida on November 19,

6 , Final Order on Motions for Attorney s Fees and Costs (September 27, 2010) (hourly rate of $ reasonable for an attorney with 38 years of experience). 2. Attorney Hours First, the Association claims a total of 1.7 hours of attorney time for Attorney Patykula's services. However, 1.5 of these hours are described in counsel s timesheet as work performed in relation to a code enforcement hearing. Attorney time expended addressing matters not in arbitration will not be awarded. Juno Beach Condominium Association, Inc. v. Abood, Arb. Case No , Final Order on Motion for Attorney's Fees and Costs (July 21, 2010). The remaining 0.2 hours are reasonable. The Association is therefore awarded the sum of $40.00 for 0.2 hours of Attorney Patykula's time at $ per hour. Second, the Association claims a total of 5.45 hours of attorney time for Attorney Marzan s services. However, 0.85 of these hours are described in counsel s timesheet as work performed in relation to the code enforcement hearing. This time will not be awarded. Abood. Furthermore, 0.5 hours are described in counsel s timesheet as work performed after the entry of the final order in the underlying case and this time is unrelated to the preparation of the motion for attorney's fees. This time is not awardable. Sunrise Landing Condo. Association of Brevard, Inc. v. Wilson, Arb. Case No , Final Order on Attorney's Fees and Costs (May 9, 2006)(No reimbursement for time spent after entry of the final order, except for time spent preparing the motion for attorney's fees, for which 1 hour is reasonable). The remaining 4.1 hours are reasonable. The Association is therefore awarded the sum of $ for 4.1 hours of Attorney Marzan s time at $ per hour. 6

7 Third, the Association claims a total of 26.4 hours of attorney time for Attorney Levine's services. However, 4.55 of these hours are for work performed in relation to the code enforcement hearing. This time will not be awarded. Abood. Furthermore, 1.45 hours are described in counsel s timesheet as work performed after the entry of the final order in the underlying case and this time is unrelated to the preparation of the motion for attorney's fees. This time will not be awarded. Wilson. Next, the Association seeks 3.85 hours for work performed in relation to the preparation of the petition, but only 2.0 hours is reasonable. The Association will not be awarded the 0.3 hours described in counsel s timesheet as work performed for no charge. The Association seeks 5.6 hours for attorney time spent in telephone calls and conferences with representatives of the Association and preparing correspondence to the Association. Legal work that is necessitated by the client s own behavior should more properly be paid by the client than by the opposing party. Barratta v. Valley Oak Homeowners Association at the Vineyards, Inc., 928 So. 2d 495, 499 (Fla. 2 nd DCA 2006); See also Guthrie v. Guthrie, 357 So. 2d 247, 248 (Fla. 4 th DCA 1978)(Work done that is not reasonably necessary but performed to indulge the eccentricities of the client should more properly be charged to the client rather than the opposing party). The Association will be awarded 2.0 hours for these services. Finally, the Association seeks 2.6 hours for attorney time spent in connection with the preparation of the motion for attorney s fees and costs, but only 1.0 hour is reasonable. Wilson. The remaining hours are reasonable. The Association is therefore awarded the sum of $3, for hours of Attorney Levine's time at $ per hour. 7

8 C. Costs The Association seeks costs of $ as follows: $50.00 for the filing fee; $66.63 for Federal Express charges; and $50.00 for the cost of an expert witness to review its attorney's fees claim. The $50.00 filing fee is appropriate, and it is awarded. The Association provided no explanation as to why it was necessary to send items by express delivery rather than regular mail and, thus, will not be reimbursed $66.63 for Federal Express charges. An expert is not necessary to attest to the reasonableness of attorney s fees in arbitration cases with the Division and, therefore, this cost is not recoverable. Meadowbrook Lakes View Condominium Association B, Inc. v. Campagna, Arb. Fee Case No , Final Order on Attorney s Fees and Costs (June 28, 2012). Accordingly, the Association is awarded the sum of $50.00 for costs. Based upon the foregoing, it is ORDERED: Respondents shall, within 30 days of the date of this Order, pay to the Association the total amount of $4, which represents reimbursement for $4, in attorney s fees and $50.00 in costs. DONE AND ORDERED this 18 th day of June, 2015, at Tallahassee, Leon County, Florida. David R. Slaton, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850)

9 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 18 th day of June, 2015: Jay Steven Levine, Esq. Jay Steven Levine Law Group 2500 North Military Trail Ste. 283 Boca Raton, FL Attorney for Petitioner Joseph Mancini, Esq. Yates and Mancini 112 Orange Avenue Fort Pierce, FL Attorney for Respondents David R. Slaton, Arbitrator 9