STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Covert II Association, Inc., Petitioner, v. Fee Case No. 2014-04-4214 Rel. Case No. 2014-02-1521 Margaret A. Williams and Roy M. Williams, as Co-Trustees of the Margaret A. Williams Trust Agreement, Dated December 12, 1990, as amended, Respondent. / FINAL ORDER ON RESPONDENT S MOTION FOR ATTORNEY S FEES AND COSTS On October 17, 2014, Respondent filed its motion to recover attorney s fees and costs from Covert II Association, Inc. (the Association) in the total amount of $5,454.38. The Association is the legal entity responsible for the operation of Covert II, a Condominium, located in Manatee County, Florida. On October 23, 2014, an Order Permitting Response was entered. As of the date of the Order entered herein, the Association has not filed a response. This Order is entered accordingly. Findings This fee case arises from arbitration case number 2014-02-1521. In the underlying case, the petition alleged that Respondent improperly removed and installed windows on the lanai of the unit without obtaining prior written approval of the board of directors of the Association in violation of Article 6, Sections 6.3(b) and 6.4 of the Declaration of Condominium. On September 17, 2014, a Summary Final Order was entered denying the injunctive relief requested by the Association, because the Page 1 of 6
Association was not authorized to adopt rules permitting balcony enclosures, and in any event, the Association engaged in selective enforcement against Respondent. Conclusions A. Prevailing Party Pursuant to section 718.1255(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)). Respondent has prevailed in this case. Therefore, Respondent is entitled to recover reasonable attorney s fees and costs. 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 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 1150-51. In determining the reasonableness of attorney s fees, the criteria set forth in Rule 4-1.5, Rules Regulating the Florida Bar, Page 2 of 6
Rules of Professional Conduct [then Disciplinary Rule 2-106(b) of the Florida Bar Code of Professional Responsibility] should be applied. Id. at 1150. The factors for determining a reasonable attorney s fee set forth in Rule 4-1.5 are basically the same as the factors set forth in Rule 61B-45.048, Florida Administrative Code. 1. Hourly Rate The Association seeks compensation for the legal services of Vanda Y. Bayless, Esq., at the rate of $250.00 per hour. The Florida Bar website shows that Attorney Bayless was admitted to practice in Florida in July of 1978. Thus, she had been practicing for approximately 36 years while the underlying case was pending. After considering the above factors, the undersigned finds that $250.00 is a reasonable hourly rate for Attorney Bayless, based upon an attorney with like experience practicing law in the same location in Florida. See Fiddler s Green Condo. Ass n, Inc. v. Mathews, Arb. Fee Case No. 2013-03-3474, Final Order on Motion for Attorney s Fees and Costs (Sept. 23, 2013). 2. Attorney Hours The Association seeks reimbursement for 21.0 hours of time expended by Attorney Bayless. Not all of the hours can be awarded. As a preliminary matter, it has always been held that with the exception of preparing the pre-arbitration demand letter required by section 718.1255, Florida Statutes, for which one hour is typically awarded, attorney s fees incurred prior to the drafting and filing of the petition for arbitration are not fees incurred in the arbitration proceeding, and therefore, are not awarded. Desy v. River Key Condominium Association, Inc., Arb. Case No. 93-0082F, Final Order on Motion for Attorney s Fees and Costs (May 20, 1993) (fees incurred prior to the drafting and filing of the petition are Page 3 of 6
not recoverable in the arbitration proceeding). By analogy, this principle is applied when the prevailing party is the respondent. Attorney s fees incurred before Respondent received the Order Requiring Answer are not fees incurred in the arbitration proceeding, with the exception of receipt and review of the pre-arbitration notice required by Section 718.1255(4)(b), Florida Statutes. See Beck v. The Manors at Emerald Island Resort Homeowners Association, Inc., Arb. Fee Case No. 2010-05- 8355, Final Order on Respondent s Motion to Tax Attorney s Fees and Costs (Jan. 27, 2011). Therefore, Respondent will not be awarded 3.8 hours of attorney time expended before Respondent received the Order Requiring Answer. Respondent seeks reimbursement for 0.3 hours of legal services performed by SGN. Rule 61B-45.048(2)(c), Florida Administrative Code, states that a motion for attorney s fees shall: (c) Include an affidavit by the attorney who performed the work that: 1. States the number of years in which the attorney has been practicing law, 2. Indicates each activity for which compensation is sought, and 3. States the time spent on each activity; (emphasis supplied). An affidavit for SGN was not included with the motion, therefore these hours will not be awarded. Respondent also will not be reimbursed for time spent after entry of the final order, except for time spent preparing the motion for attorney s fees. Sunrise Landing Condo. Ass n of Brevard, Inc. v. Wilson, Arb. Case No. 2005-05-9040, Final Order on Attorney s Fees and Costs (May 9, 2006). Thus, 0.50 hours must be deducted for this reason. Further, because Respondent s time records do not include any time for preparing the motion and affidavit for prevailing party fees and costs, no time will be awarded for these activities. Page 4 of 6
Considering the foregoing, Respondent will be awarded 16.4 hours of attorney time at the hourly rate of $250.00. This results in an award of attorney s fees to Respondent in the amount of $4,100.00. Costs Respondent seeks recovery of costs in the amount of $204.38. Respondent filed receipts for costs as follows: $4.38 for fourteen (14) 4x6 photo prints, receipt dated July 10, 2014; and $200.00 for the services of a professional photographer, receipt dated August 7, 2014. Seven (7) photos were filed on July 14, 2014, with Respondent s Answer, and presumably, seven (7) photos were included with the Answer served on the Association. Panoramic photographs of the building containing Respondent s unit were required by the August 1, 2014 Order After Case Management Conference. Thus, the recovery of costs in the amount of $204.38 will be awarded. Based on the foregoing, it is ORDERED: Within thirty (30) days of the date of this order, the Association shall reimburse Respondent for attorney s fees in the amount of $4,100.00 and costs in the amount of $204.38, for a total of $4,304.38. DONE AND ORDERED this 12 th day of December, 2014, at Tallahassee, Leon County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Phone: (850) 414-6867/FAX: (850) 487-0870 Page 5 of 6
Trial de Novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, 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 on this 12 th day of December, 2014: Scott K. Petersen, Esq. Becker & Poliakoff, P.A. 6230 University Parkway Suite 204 Sarasota, Florida 34240 Facsimile: 941-907-0080 Attorneys for Petitioner Vanda Y. Bayliss, Esq. Sylvia Golden Norris, P.A. 1670 Stickney Point Rd Sarasota, Florida 34231 Facsimile: 941-923-1492 Attorneys for Respondent Glenn Lang, Arbitrator Page 6 of 6