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 Jeffrey Thrasher, Petitioner, v. Fee Case No Rel. Case No Octagon Towers Condominium Association, Inc., Respondent. FINAL ORDER ON MOTION FOR ATTORNEY S FEES Comes now, the undersigned arbitrator, and issues this final order as follows: 1 / On June 3, 2004, Octagon Towers Condominium Association, Inc. (respondent/association) filed a motion for attorney s fees, seeking an award of $1, in attorney s fees. The fees were incurred in arbitration case number , in which a final order acknowledging voluntary dismissal was entered on June 7, 2004, dismissing the case. On June 7, 2004, an order permitting the petitioner to respond to the association s motion for attorney s fees was issued. On June 30, 2004, the petitioner filed a response arguing that due to the dismissal of the underlying proceeding, the association is not entitled to an award of prevailing party attorney s fees because there was no adjudication on the merits and the record contained insufficient information to permit a decision on the merits. 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

2 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)). Counsel for the petitioner asserts that due to the dismissal, fees cannot be awarded because the association did not prevail in this proceeding. However, a party may be considered a prevailing party even if the case is not resolved on the merits. State, Dept. of Health & Rehabilitative Services v. Hall, 409 So 2d 193, 195 (Fla. 3d DCA 1982). The petitioner cites Bay Harbor Condominium Association, Inc. v. Innocenti, Arb. Case No , Final Order on Motion for Attorney s Fees (December 12, 2000) as support for denying the association s motion for attorney s fees in this matter. In Bay Harbor, the association s motion for attorney s fees was denied because there was no adjudication on the merits, no party was provided or obtained any relief from the other, and the record did not contain enough information to permit a conclusion on the merits. However, the arbitrator in Bay Harbor noted that the unit owner chose to abandon the petition for arbitration for an unknown reason and such decision was possibly unrelated to the merits of the dispute. In the instant case, the arbitrator denied the petitioner s motion for temporary injunctive relief and also denied a subsequent motion for rehearing regarding the denial. Furthermore, the petitioner sought temporary injunctive relief from the circuit court, which was similarly denied. After repeated denials for injunctive relief, the petitioner voluntarily dismissed his petition for arbitration. It seems clear that the petitioner s voluntary dismissal was based on his inability to obtain injunctive relief. In Bay Harbor, the association s motion for attorney s fees was denied because there was no adjudication on the 2

3 merits of the case and the record lacked sufficient information to permit a determination on the merits. However, the arbitrator noted that the petitioner abandoned the arbitration petition for reasons unrelated to the dispute. Unlike the petitioner in Bay Harbor, supra, the petitioner in this proceeding voluntarily dismissed his petition after the division and the circuit court denied his repeated attempts to obtain injunctive relief. While the final order of dismissal in the underlying arbitration matter did not grant any relief to the petitioner, it did afford the association relief in that it was not estopped or precluded from continuing to paint the condominium property in the manner which prompted the petitioner to file his petition for arbitration. Thus, the association, having successfully defended itself in the underlying case, achieved the relief it sought in the litigation and is the prevailing party. Accordingly, the association is entitled to an award of reasonable attorney s fees. The next issue to determine is the reasonableness of the attorney s fees and costs claimed by the 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 service 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 David H. Rogel, Esquire, charged the association $ per hour for legal services rendered in this proceeding. Mr. Rogel has been practicing law for twenty- 3

4 three (23) years and has experience in condominium law. The requested rate does not exceed the amount customarily awarded for representation in similar arbitration proceedings by attorneys with similar experience. Thus, the association will be compensated at the rate of $ per hour for counsel s legal services. The association seeks to recover 8.1 hours for activities performed by counsel. All of the entries listed on counsel s billing statement reflect reasonable expenditures of time to successfully litigate this case and will be awarded; thus, the association is awarded $1, in attorney s fees. It is therefore ORDERED: 1. The motion for attorney s fees is GRANTED. 2. Within thirty (30) days of the date of entry of this order, Jeffrey Thrasher (petitioner) shall pay the sum of $1, to Octagon Towers Condominium Association, Inc. (association). DONE AND ORDERED this 13 th day of August 2004, at Tallahassee, Leon County, Florida. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 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 August 2004: Kirk D. De Leon, Esq. De Leon & De Leon, P.A. Courthouse Tower 4

5 44 West Flagler Street Suite 325 Miami, Florida David H. Rogel, Esq. Becker & Poliakoff, P.A. 121 Alhambra Plaza 10 th Floor Coral Gables, Florida Melissa Mnookin, Arbitrator Right to Appeal As provided by section , F.S., this final order may be appealed by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. 5