STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF CONDOMINIUMS, TIME SHARES, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF CONDOMINIUMS, TIME SHARES, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION THE RESERVE AT BANYAN WOODS CONDOMINIUM ASSOCIATION, INC., Fee Case No Petitioner, Rel. Case No v. NATALIE J. MYERS, Respondent. / FINAL ORDER ON ATTORNEY FEES AND COSTS Reassignment of Case This case was reassigned to the below-named arbitrator, and all future pleadings or other communications are to be directed to the undersigned. Petitioner s Motion for Attorney Fees and Costs filed September 24, 2008, seeking $3, in attorney fees and $130 in costs, is GRANTED in part, based upon the following findings of fact and conclusions of law. FINDINGS OF FACT 1. On April 9, 2007, The Reserve at Banyan Woods Condominium Association, Inc. ( Association ) filed a Petition in the underlying, related case in which it alleged that the Respondent, Natalie J. Myers, had violated Section 12.6 of the Declaration of Condominium because she had A. Failed to pick up her dog s waste; B. Allowed her dog to: 1

2 (i) (ii) run loose while unleashed; attack another dog and another resident of the Association. 2. The Association asked for an Order requiring Respondent to permanently remove her dog from the property. 3. The Respondent was served with the Petition on August 20, 2007, but she did not Answer it; a Default was entered on October 1, On October 7, 2007, the Respondent moved to set aside the Entry of Default. 5. The Respondent s Motion was granted on July 3, 2008, by an Order that allowed her fourteen days, or until July 17, 2008, to file an Answer. 6. The Respondent did not file an Answer or otherwise defend at any time, and a Final Order of Default was entered against the Respondent on August 20, and Costs. 7. On September 24, 2008, the Petitioner filed the instant Motion for Attorney Fees 8. On October 30, 2008, the Respondent filed a Response and Objection to the Motion variously asserting A. The Petitioner is not the prevailing party; B. The relief requested occurred prior to the filing of the Petition, rendering it moot; C. The Motion for Attorney Fees is fatally defective because it does not comply with the mandates of Rule 61B , FLA. ADMIN. CODE; D. Attorney fees for the instant action have been included in an award of attorney fees in a foreclosure action filed by this Petitioner against Respondent; E. The amount of attorney fees requested is unreasonable. 2

3 CONCLUSIONS OF LAW Each of the Respondent s Objections is discussed below. The Petitioner is not the prevailing party Contrary to the Respondent s first asserted basis for denying attorney fees as costs, the Petitioner is the prevailing party in this cause. The Respondent s failure to Answer or otherwise defend the Petition, made the Petitioner the prevailing party, which is evidenced by entry of the Final Order on Default. 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. Moritz v. Hoyt Enterprises, Inc., 604 So2d 807, 810 (Fla. 1992). As the prevailing party, the Association is entitled to attorney fees and costs. The relief requested is moot; The objection to the entry of attorney fees on the basis that the Respondent s dog(s) were removed from the condominium unit prior to the time of filing is inappropriate. The questions of fact alleged in the Petition have been admitted by the Respondent s failure to Answer; the defaulted allegations are taken as true. The Motion does not comply with Rule 61B , FLA. ADMIN. CODE The Respondent s objection that the Motion does not comply with the mandates of Rule 61B (2) is correct. The motion does not include affidavit(s) from an attorney who did the work stating A. The number of years said attorney has been practicing; B. The activity for which compensation is sought; or, C. The amount of time spent on such activity. 3

4 The error, however, is not fatally defective to the Motion. The Respondent, as the prevailing party, is entitled to reasonable attorney fees, as determined by the arbitrator. Rule 61B (7), FLA. ADMIN. CODE. Attorney fees to Petitioner were included in a prior foreclosure The Respondent s argument that attorney fees should not be awarded in the instant action because they were included in some other cause of action not before this arbitrator is unsupported by any factual basis. The amount of attorney fees requested is unreasonable The only issue remaining is the reasonableness of the attorney fees requested. The Florida Supreme Court, in Florida Patient s Compensation Fund v. Rowe, 472 So2d, 1145, 1150 (Fla. 1985), requires that a determination of reasonableness for attorney fees be analyzed as follows: Multiply the number of hours reasonably expended by an hourly rate that is reasonable for a particular attorney, given the attorney s experience and expertise. Petitioner seeks compensation for the services of three individuals, whose full names, title, and experience is unknown. The total number of hours claimed for all such individuals is 15.6, with hourly rates varying from $115 per hour to $295 per hour without explanation or identification of the task performed or the rate charged per task. The underlying case was not complicated, and it was not litigated on the merits. Accordingly, six hours is a reasonable amount of time to be expended on this case. Because the underlying case as not complex factually or legally, an hourly rate of $190 per hour is reasonable. Therefore, the Association is awarded 6 hours of attorney time at the rate of $190 per hour, for a total of $1,140. 4

5 Petitioner also seeks costs of $50 for filing and $80 for service of process. The filing fee and the service of process were necessary expenses and are awarded. Based upon the foregoing, the Petitioner s Motion for Attorney Fees and costs is GRANTED in part. Accordingly, it is ORDERED: Within 30 days of the date of this Order, the Respondent is to pay the amount of $ to the Petitioner for attorney fees and costs. DONE AND ORDERED this 19 th day of February 2009, at Tallahassee, Leon County, Florida. Shirley J. Whitsitt, Arbitrator Dept. Bus. and Prof. Reg., Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Trial de novo This decision is binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing final order was mailed by U.S. mail, postage prepaid, this 19 th day of February, 2009, to: Jim D. Shumake, P.A.. Roetzel & Andress, L.P.A. By: Jim D. Shumake By: Ashley D. Lupo Attorney for Respondent Attorney for Petitioner 900 Sixth Ave. South, Ste Park Shore Dr., Naples, FL Trianon Ctr., 3 rd Floor Naples, FL Shirley J. Whitsitt, Arbitrator 5