STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION VISTA AT STONEBRIDGE PLACE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Fees Case No. 2005-02-9902 Rel. Case No. 2005-00-6662 PATRICIA MAGALNICK, Respondent. / FINAL ORDER ON ATTORNEY S FEES AND COSTS A Final Order of Dismissal was entered in the underlying case, Case No. 2005-00- 6662, on April 29, 2005. The final order dismissed the case as moot because the respondent removed the dog from the premises. The petitioner filed a motion for award of attorney s fees and costs on May 31, 2005. On June 6, 2005, the respondent was sent an order permitting her to respond to the motion within twenty days. The respondent has not to date filed a response of any kind or any other document or correspondence. In its motion for an award of fees, the petitioner requests a total award of $3,078.84, which represents $2,206.50 in attorney s fees and $272.34 in costs, plus $600.00 as the estimated attorney s fees the petitioner would incur for the time expended preparing the motion for attorney s fees, the affidavit and the hearing on the motion. Robert L. Taylor, Esquire, filed a supporting affidavit stating that Robert L. Taylor, Esquire, expended two hours on the case at $175.00 an hour; Sara K. Wilson, Esquire, 1
expended 1.2 hours at $160.00 an hour; and Scott D. Newsom, Esquire, expended 8.2 hours at $160.00 per hour. The affidavit also stated that Katie Spera, Legal Assistant, expended 1.8 hours at $75.00 per hour and Tonya Westwood, Legal Assistant, expended 2.9 hours at $75.00 per hour. The affidavit states that Robert L. Taylor has been practicing law for thirty-three years, but does not indicate how much experience any of the other attorneys have or the qualifications and experience of the legal assistants. However, an attorney s fee of $175.00 per hour is quite reasonable for a person with Mr. Taylor s experience, and all of the hourly fees are well within the range customarily charged for similar legal services. Although it is the attorney s responsibility to establish his entitlement to fees, the Florida Bar website indicates that Sara K. Wilson was admitted to the Florida Bar in May of 1998, and Scott Newsom was admitted to the Florida Bar in September of 1998. A fee of $160.00 per hour is reasonable for an attorney with seven years of experience. 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. When there is a decision on the merits, the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney s fees. Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla. 1992). However, when a case becomes moot or there is a voluntary dismissal, there is no decision on the merits and whether there is a prevailing party must be determined by the particular facts of the case and the timing of the act that caused the action to be dismissed. The Laurels at Margate 2
Condominium Association, Inc. v. Slonecky, Arb. Case No. 93-0039F, Final Order on Motion for Attorney s Fees (July 28, 1994). In this case, a final order dismissing the case as moot was entered after the respondent removed the dog from the condominium property. The respondent waited until three days before the scheduled final hearing to remove the dog from the property. The hearing had been scheduled for the sole purpose of allowing the respondent to present evidence in support of her affirmative defense of selective enforcement. However, the respondent announced that she was removing the dog and did not want to be burdened at this time with debating the discrimination that the homeowners association has showed towards me and the overweight dog. After it had been verified that the dog had been removed, the final order dismissing the case as moot was entered. The situation in this case is similar to that described in 51 Island Way Condominium Association, Inc. v. Williams, 458 So. 2d 364 (Fla. 2d DCA 1984). In that case the unit owners sold an interest in their unit over the association s objection and in violation of the condominium documents. The association brought suit against the unit owners and the unit owners answered, asserting an affirmative defense and counterclaim. Immediately before the trial was to commence, the unit owners announced that the interest had been reconveyed, and the case was dismissed as moot. The trial court refused to grant attorney fees to the association, apparently because there had been no decision on the merits. The district court reversed holding that where the association was compelled to bring suit for relief, prepare for trial, and had to participate up to the point of engaging in litigation; where the unit owners 3
maintained affirmative defenses and a counterclaim for a period of almost a year; and where [r]ather than act on an earlier date, [the unit owners] made their oral motion of dismissal on the day of trial, the association was entitled to attorney s fees as the prevailing party. Rule 61B-45.048(7), Fla. Admin. Code, provides less stringent requirements on a party seeking to obtain attorney s fees when a case has been dismissed as moot. It states A prevailing party is a party that obtained a benefit from the proceeding and includes a party where the opposing party has voluntarily provided the relief requested in the petition, in which case it is deemed that the relief was provided in response to the filing of the petition. In practice, the rule has meant that when the opposing party provides the relief requested in the course of the arbitration proceeding, it will be found that the action was taken as a result of the arbitration proceeding and the petitioner will be considered the prevailing party, unless there is evidence that the action was taken for reasons unrelated to the arbitration proceeding. In other words, when the respondent provides the relief requested in the petition after receipt of the petition and the petition is subsequently dismissed as moot, the rule creates a rebuttable presumption that the petitioner is the prevailing party. See, e.g., Inverness III Condo. Ass n, Inc. v. Flournoy, Arb. Case No. 2005-00-9710, Final Order on Motion for Attorney s Fees and Costs (May 31, 2005)(where petition seeking to require the respondent to remove the mold from her unit was filed after the respondent had already undertaken certain remediation efforts to get rid of the mold for health reasons, the petition for arbitration cannot be found to be the motivating factor for the respondent s efforts, and the petitioner could not be found to be the prevailing party); Bermuda Cays Condo. Assoc., 4
Inc. v. Baker, Arb. Case No. 98-4377, Final Order on Attorney s Fees (March 12, 1999)(although the respondents contended that their removal of Plexiglas enclosure had nothing to do with the association s filing of the petition for arbitration, the arbitrator found from the timing of the events that the removal was in response to the receipt of the petition for arbitration and not due to the respondents merely being good neighbors as they had alleged). In this case, it is clear that the respondent would not have removed her dog from the condominium property if the petition for arbitration had not been filed. The association first advised her that she was in violation of the restrictions in January, 2004. The association gave her an extension of time to cure the violation because she stated that she was planning to move. Additionally, the association gave her several opportunities thereafter to cure the violation by removing the dog. She did not do so. The association waited a year before bringing this action against her. It was only after this action was filed and ready to go to hearing that the respondent removed the dog from her property. Clearly, without the arbitration action, the respondent would not have removed the dog from the property. Therefore, the association is the prevailing party even though the petition was dismissed as moot. The only remaining issue to be decided by the arbitrator is the reasonableness of the attorney s fees claimed by the petitioner. In Florida Patient s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985), the Supreme Court articulate[d] specific guidelines to be followed in setting attorney s fees and adopted the federal lodestar approach as a suitable foundation for an objective structure for setting reasonable fee awards. The lodestar figure is determined by multiplying the number of hours 5
reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party s attorney. Id. at 1151. The petitioner seeks compensation for the services of Robert L. Taylor, Esquire, at $175.00 an hour; Sara K. Wilson, Esquire, at $160.00 an hour; Scott D. Newsom, Esquire, at $160.00 per hour; Katie Spera, Legal Assistant, at $75.00 per hour and Tonya Westwood, Legal Assistant, at $75.00 per hour. The petitioner has requested fees for correspondence sent before the prearbitration demand letter. Those fees cannot be reimbursed as they were not incurred as part of the arbitration proceeding. Westgate Blue Tree Orlando, LTD. v. Blue Tree Resort at Lake Buena Vista Condo. Ass n, Arb. Case No. 2004-06-0167, Final Order on Motion for Costs and Attorney s Fees (February 2, 2005). The petitioner will be reimbursed for the time expended from October 6, 2004, to October 27, 2004, on the pre-arbitration notice and follow-up prior to filing the petition, which consisted of 0.6 hours expended by Ms. Westwood and 0.4 hours expended by Ms. Wilson for a total of $109.00. See Halifax Shores Homeowners Ass n, Inc. v. Varano, Arb. Case No. 01-2346, Final Order on Motion for Attorney s Fees (March 12, 2001)(fees will be allowed for time expended on the pre-arbitration notice required by statute). Thus, $180.50 will be subtracted from the total fees that were requested. Further, the 2.80 hours expended by Mr. Newsom on March 30, 2005, reviewing the order of the arbitrator directing the respondent to supplement her answer and reviewing an enforcement letter is excessive and will be reduced by one hour. Therefore, the requested fees of $2,206.50 will be reduced by $340.50. The petitioner also requested $600 for attorney s fees to be expended in the preparation of the motion for attorney s fees, the 6
affidavits, and for a hearing on the motion. Since there is no need for a hearing on the motion, the petitioner shall be awarded 1.50 hours at $175.00 an hour for a total of $262.50. Therefore, the petitioner shall be awarded a total of $2,128.50 for the reasonable attorney s fees expended in the arbitration proceeding. The petitioner has also requested costs of $272.34. These costs reflect the costs of copying documents, faxing documents, and postage, which are not reimbursable costs. See, e.g., The Alexander Condo. Ass n., Inc. v. Caniggia, Arb. Case No. 99-1315, Final Order on Attorney s Fees (August 12, 1999). Petitioner s only reimbursable cost is the $50.00 filing fee. Therefore, based on the foregoing, it is ORDERED: The respondent shall, within 30 days, pay to the petitioner the total amount of $2,178.50, which represents reimbursement for $2,128.50 in attorney s fees and $50.00 in costs. DONE AND ORDERED this 10th day of August, 2005, at Tallahassee, Leon County, Florida. Diane A. Grubbs, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 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 10th day of April, 2005: Robert L. Taylor, Esquire 7
Taylor & Carls, P.A. 850 Concourse Parkway South, Suite 105 Maitland, Florida 32751 FAX Number (407) 660-9422 Attorney for Petitioner Patricia Magalnick 6303 Goethe Street, Unit 103 Orlando, Fl 33314 FAX Number (407) 291-3587 Respondent Diane A. Grubbs, Arbitrator Right to Appeal As provided by section 718.1255, F.S., a party who is adversely affected by this final order may, within 30 days of the entry and mailing of this final order, file a complaint for a trial de novo in a court of competent jurisdiction in the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. 8