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 Clarice Gibson, Petitioner, v. Fee Case No Rel. Case No Dockside North Owners Association, Inc., Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES On September 16, 2016, Clarice Gibson (Petitioner) moved for an award of $2, in attorney s fees and costs from Dockside North Owners Association, Inc. (the Association), the legal entity responsible for the operation of Dockside North Condominium located in Bay County, Florida. By order entered on September 20, 2013, the Association was directed to file a response to Petitioner s motion. On October 10, 2013, the Association filed a Response to the motion for fees and costs. Findings This fees case arises from arbitration case number In the underlying case, the petition alleged that the Association failed to provide timely access to certain official records of the Association. On August 8, 2013, a Summary Final Order was entered determining that the case was moot when the petition was filed because by that time the records requested had been provided to Petitioner, but finding that the award of 1

2 damages for violation of the requirements of Section (12)(c), Florida Statutes, was not precluded. Pursuant to the statute, damages were awarded to Petitioner. 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 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). As requested in the petition, statutory damages were awarded to Petitioner. Therefore, Petitioner is determined to be the prevailing party and is entitled to reimbursement for attorney s fees and costs. B. Attorney s Fees and Costs The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by Petitioner. 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 2

3 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 Petitioner seeks compensation for the legal services of Brandon R. Burg, Esq. at the rate of $ per hour. The Florida Bar website shows that Attorney Burg was admitted to practice in Florida in October of Thus, Attorney Burg had been practicing in Florida for approximately four (4) years while the underlying case was pending. After considering the above factors, the undersigned finds that the hourly rate charged is excessive. A reasonable hourly rate for an attorney with like years of experience in the practice of law is $ per hour and falls within the range of fees charged in the locality for similar legal services. 2. Number of Hours Petitioner seeks an award of hours of attorney and paralegal time. As a preliminary matter, it has always been held that with the exception of preparing the prearbitration demand letter required by Section , Florida Statutes, for which one hour is typically awarded, attorney s fees incurred prior to the drafting of the petition for arbitration are not fees incurred in the arbitration proceeding and are therefore not awarded. Desy v. River Key Condo. Ass n, Inc., Arb. Case No F, Final Order on Motion for Attorney s Fees and Costs (May 20, 1993)(fees incurred prior to the 3

4 drafting and filing of the petition are not recoverable in the arbitration proceeding). Petitioner is awarded 1.0 hour for preparing the pre-arbitration demand letter and 1.4 hours for drafting and filing the petition. Stevens v. Cricket Club Condo. Assn., Inc. Arb. Fee Case No , Final Order on Motions for Attorney s Fees (July 29, 2005). Petitioner seeks an award of 3.0 hours for drafting and filing a Motion for Summary Disposition. Such a motion is not authorized by the rules of procedure for mandatory non-binding arbitration, therefore no time will be awarded for this effort. Given the foregoing, a total of 5.2 hours of attorney time at the hourly rate of $ will be awarded, resulting in an award of $ for attorney s fees. C. Paralegal Fees Petitioner seeks compensation for paralegal services. The motion fails to identify the paralegal and provide the paralegal s qualifications. Fees for the work of paralegals cannot be awarded where the motion fails to identify the paralegal and provide the paralegal s qualifications. Seminole-on-the-Green, Cavalier Bldg. One Ass n, Inc. v. Jackson, Arb. Case No , Final Order on Petitioner s Motion for Award of Costs and Attorney s Fees (Feb. 7, 2007). In any event, it is clear after reviewing the entry for paralegal services in the billing statement that the paralegal only performed clerical services. Compensation for such services is not recoverable. See Winnfeld Gardens South Condo. Ass n, Inc. v. Brown, Arb. Case no , Final Order on Attorney s Fees and Costs (March 9, 2005); Loveland v. Harbor Towers and Marina Condo Ass n., Inc. Arb. Case No Therefore, no time will be awarded for paralegal services. 4

5 D. Costs Petitioner seeks reimbursement of costs as follows: $50.00 for the filing fee; $59.50 in photocopy charges; and $5.05 in postage. The filing fee is a recoverable cost and will be 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. 1 However, Petitioner has failed to describe sufficiently the nature of the copies for which it seeks reimbursement, and for this reason, the arbitrator cannot determine if the copies are a recoverable cost. Therefore, Petitioner will not be awarded any costs for its copies. Costs for postage and mail services are not recoverable, as they are routine overhead expenses that should be incorporated 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). Petitioner will not be awarded any postage costs. Based on the foregoing, it is ORDERED: Within thirty (30) days of the date of this Order, the Association shall reimburse Petitioner s attorney s fees and costs in the total amount of $ DONE AND ORDERED this 27 th day of November, 2013, at Tallahassee, Leon 1 For example, the copies of the condominium documents required to be provided with the petition are recoverable in an arbitration case if they are sufficiently described in the request for costs. 5

6 County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Section Telephone: Section 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. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order was sent by facsimile and by U.S. mail, postage prepaid, to the following persons this 27 th day of November, 2013: Brandon R. Burg, Esq. Harrison Sale McCloy PO Drawer 1579 Panama City, Florida Facsimile: Attorneys for Petitioner Mitch Dever, Esq. Mitch Dever, P.A. Post Office Box 9811 Panama City Beach, FL Facsimile: Attorney for Respondent Glenn Lang, Arbitrator 6