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 CARLA BONTEN, SHIRLEY BARRICK, and JIM BONNIE, Petitioners, Fee Case No v. Rel. Case No MARBELLA AT SPANISH WELLS HOMEOWNERS ASSOCIATION, INC., Respondent. / FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On May 4, 2012, Petitioners filed a Motion for Attorney s Fees and Costs seeking $19, in attorney s fees, and $ in costs for services rendered in Lee County, Florida. The total amount requested is $19, The Motion is GRANTED in part, based upon the following findings of fact and conclusions of law. FINDINGS OF FACT 1. On August 11, 2011, Petitioners filed an arbitration petition alleging that Marbella at Spanish Wells Homeowners Association, (Association) failed to hold a proper election. Petitioners alleged that the Association had improperly refused to accept proxies from actual members who were not on the Association s outdated membership lists. 2. The Association filed its answer on September 8,

2 3. This arbitration case was complicated and document intensive. There were three case management conferences held. Petitioners, who had the burden of proof, made multiple filings of several hundred pages each. 4. On April 12, 2012, a Summary Final Order was entered granting Petitioners requested relief of finding the election invalid. Although Petitioners requested that they be declared the elected board, the arbitrator ordered a special election. 9. On May 4, 2012, Petitioners filed a Motion for Attorney s Fees and Costs seeking $19, in attorney s fees, and $ in costs. 10. The Association filed its response on May 18, The Association contends in its response that the attorney s fees requested were excessive because of the number of hours spent prior to the filing of the petition and that Petitioners number of hours more than the Association s counsel charged the Association. CONCLUSIONS OF LAW Prevailing Party Pursuant to section (1), 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)). Because Petitioners were granted the relief they requested in the final order, Petitioners are the 2

3 prevailing party in this case. Therefore, Petitioners are entitled to recover their reasonable attorney s fees and costs. Attorney s Fees and Costs The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by Petitioners. 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 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. 3

4 A. Hourly Rate Petitioners seek compensation for legal services as follows: Attorney Bar Admission Hourly Rate Diane M. Simons- Burnside, Esq. Admitted to: Florida Bar ; Virginia Bar 2001 $ Richard D. DeBoest, Esq. Admitted to Florida Bar $325 Each attorney listed above filed an affidavit attesting to the foregoing. Below, for each attorney, are the years of experience when the first date of admission to the bar noted above is used to calculate the number of years of experience for each attorney during the period when the underlying case was pending and the particular attorney last worked on the case: Attorney Years Practicing Law Diane M. Simons-Burnside, Esq, 10 Richard D. DeBoest, Esq. 18 After considering the above factors, the undersigned finds that a reasonable hourly rate for Ms. Simons-Burnside is $ and a reasonable hourly rate for Mr. DeBoest is $ based upon the hourly rate for an attorney with like years of experience practicing law in the same location in Florida. B. Number of Hours Petitioners seek reimbursement for 59.3 hours of Attorney Ms. Simons-Burniside s time and 2.6 hours of Attorney DeBoest s time. 4

5 As a preliminary matter, it has always been held that with the exception of preparing the pre-arbitration demand letter required by section , 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 are therefore not awarded. Desy v. River Key Condominium Association, Inc., Arb. Case No F, 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 not recoverable in the arbitration proceeding). Petitioners have included in counsels timesheets hours that must be deducted for this reason. Stevens v. Cricket Club Condominium Assn., Inc. Fee Case No , Final Order on Motions for Attorney s Fees (July 29, 2005). All of the time expended by Attorney DeBoest s occurred before the drafting and filing of the petition. Therefore, no time will be awarded for the efforts of Attorney DeBoest. Attorney Simons-Burnside drafted the pre-arbitration notice so one hour will be awarded. Petitioners will not be reimbursed for the 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 , Final Order on Attorney s Fees and Costs (May 9, 2006). The arbitrator finds which one hour is reasonable for preparing the motion. The remaining number of hours of attorney time sought by the Respondents is 44.7 hours. The Association objects because its counsel expended less hours on the case. 5

6 However, Petitioners had the burden of proof, and Ms. Simons-Burnside had to prepare extensive filings to meet their burden. After a careful review of the record of the underlying case and the billing records attached to the affidavit, the undersigned finds that 39.3 hours of Ms. Simons-Burnside s time are reasonable for the work described in his affidavit. Therefore, Petitioners will be awarded a total number of 41.3 hours. Based upon the foregoing analysis, the amount of $ per hour for 41.3 hours is awarded, totaling $8, for Petitioners attorney s fees. C. Costs Petitioners seek $ in costs. Petitioners seek reimbursement of $ in postage and express delivery charges and $ in Department s fees. Costs for postage charges 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). Therefore, this amount is not awarded. Pursuant to Rule 61B , Florida Administrative Code, each party is assessed a fee to recover the Department s cost to arbitrate the matter. This fee is a recoverable cost. Romano v. Emerald Preserve-Sumerlin Homeowners Association, Inc., Fees Case No , Final Order on Attorney s Fees and Costs (August 5, 2011). Therefore, Petitioners are awarded $ for recovery of costs. Based upon the foregoing, Petitioners Motion for Attorney s Fees and Costs is GRANTED in part. Accordingly, it is ORDERED: 6

7 On or before July 19, 2012, Respondent shall pay the amount of $8, to Petitioners for attorney s fees and costs. DONE AND ORDERED this 18th day of June, 2012, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850) Trial de novo This decision shall be binding on the parties unless a complaint for trial de novo is filed within 30 days in accordance with , Fla. Stat. (2009). CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order was mailed by U.S. mail, postage prepaid, this 18th day of June 2012, to: Diane M. Simons-Burnside, Esq. Condo & HOA Law Group, PLLC 2030 McGregor Blvd. Fort Myers, FL Attorney for Petitioner Ellen A. Goldman, Esq. Javier A. Pacheco, Esq. Porter Wright Morris & Arthur LLP 9132 Strada Place, Third Floor Naples, FL Attorney for Respondent Terri Leigh Jones, Arbitrator 7

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