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 - HOA BARBARA ROSENBLATT, Petitioner, Fee Case No v. Rel. Case No SOUTHSHORE FALLS HOMEOWNERS ASSOCIATION, INC., Respondent. / FINAL ORDER ON PETITIONER S MOTION FOR ATTORNEY S FEES AND COSTS On September 3, 2015, Barbara Rosenblatt, Petitioner filed a motion for an award of $4, in attorney s fees and $ in costs based upon the underlying arbitration case number Southshore Falls Homeowners Association, Inc. (the Association), located in Orange County, did not file a response in opposition to the award of fees and costs. In underlying case number , Petitioner alleged that the Association had unlawfully failed to seat her on the board of directors for a two-year term after the March 26, 2015 annual election. There are 7 members on the board and there were 4 candidates for the seats. Petitioner received the fourth highest number of votes and should have been elevated to the board. Instead board member Bill Haardt who received the fifth highest vote was given the seat. After the Association admitted its mistake, Haardt refused to voluntarily resign from the board and the Association would not remove him. On August 21, 2015, the undersigned entered a Summary Final Order

2 in Petitioner s favor and ordered Mr. Haardt removed from the board and that Petitioner to take his place. Conclusions Prevailing Party Section (1), Florida Statutes, requires any mandatory election dispute arbitration between a member and the association in a homeowners association shall be conducted by the department pursuant to Section , Florida Statutes, and the rules adopted by the Division. 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 noted, a Summary Final Order was entered in favor of Petitioner on August 21, 2015, granting the Petitioner the relief she requested. Petitioner is the prevailing party and will be awarded her reasonable attorney s fees and costs. Attorney s Fees 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). 2

3 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. Hourly Rate Petitioner seeks compensation for the legal services of Daniel F. Pilka, Esq., According to the Florida Bar s website, Mr. Pilka was admitted to the practice of law in the state of Florida on November 2, 1984, 31 years during his representation of Petitioner. Petitioner is seeking reimbursement for Mr. Pilka s expenditure of time on her behalf at the rate of $ per hour. This rate is reasonable for attorneys working in the same area of law, in the same location as Mr. Pilka, with comparable experience and will be awarded. Attorney Hours The expenditure of time outlined in the attorney s timesheet of 17.8 hours is excessive. This was not a complicated arbitration and the Association s answer did not dispute the facts. The answer merely stated that the Association did not think it had the authority to remove the holdover on the board, Bill Haardt, who refused to voluntarily resign. The Association also believed it was not authorized to conduct a recount to verify the error. In capitulation, the Association even failed to file a response opposing 3

4 Petitioner s motion for fees and costs. Petitioner will be reimbursed for 5.8 hours of Mr. Pilka s services. One hour will be awarded for drafting the pre-arbitration notice to the Association. Duernberger v. East Lake Villas Homeowners Association, Arb Fee Case , Final Order on Motion for Attorney s Fees and Costs (August 30, 2012). For preparing and filing the petition for arbitration, Petitioner will be awarded 2.5 hours and 0.3 hours for reviewing the order requiring answer. Petitioner will be reimbursed 0.5 hours for reviewing the answer and 1.0 hour for preparing the motion and affidavit in support of the award of fees and costs. Id. Petitioner will not be awarded time for drafting and filing the Verified Emergency Motion for Temporary Injunction and the Motion for Expedited Consideration. These pleadings were unnecessary. The amended petition was filed on June 2, 2015, the answer was received on June 29, 2015 and the Final Summary Order was entered on August 21, This was not an inordinate amount of time to resolve this matter and the undersigned did not need a nudge from Petitioner. This totals $1, in reimbursement of attorney s fees. Costs Petitioner seeks costs comprised of $ for the filing fee and $86.22 for courier services. The filing fee was $ not $250.00, is recoverable and will be awarded but courier fees will not. The Association provided no explanation as to why it was necessary to send items by courier rather than using regular mail. Brown v. Villages of Bloomingdale I Homeowners Association, Inc., Arb. Fee Case No , Final Order on Motion for Attorney s Fees and Costs January 26, 2015). 4

5 For all the foregoing reasons, the Association is ORDERED: within thirty (30) days of the date of this Summary Final Order, it shall reimburse Petitioner for her attorney s fees in the amount of $1, and costs of $200.00, for a total amount of $1, DONE AND ORDERED this 13 th day of January, 2016, at Tallahassee, Leon County, Florida. Leah A. Simms, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Phone: Fax.: Certificate of Service I HEREBY CERTIFY that, a true and correct copy of the foregoing Final Order on Petitioner s Motion for Attorney s Fees and Costs has been sent by U.S. Mail to the following persons on this 13 th day of January, 2016: Daniel F. Pilka, Esq.. Pilka & Association, P.A. 213 Providence Road Brandon, FL Attorney for Petitioner Fax: Karen Wonsetler, Esq. 860 North Orange Avenue Ste. 135 Orlando, FL Attorney for Respondent Fax: Leah A. Simms, Arbitrator 5