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 RECALL ARBITRATION GLENEAGLES COMDOMINIUM ASSOCIATION NO. 1 OF PALM HARBOR, INC., Petitioner, Fee Case No v. Rel. Case No KRISTEN THOMPSON, Respondent. / FINAL ORDER ON MOTION TO TAX ATTORNEY S FEES AND COSTS This fees case arose from a petition filed by Gleneagles Condominium Association No. 1 of Palm Harbor, Inc., (the Association) on March 6, 2012, alleging that Respondent had repeatedly leased his unit without approval from the board or submitting an application and rental expense fee to the Association as required by the governing documents. In answer to the petition, Respondent denied every allegation and added that he was never served with a complaint, notice of hearing, notice of defense or cease and desist order, as required by the governing documents. The Association is requesting reimbursement for legal fees in the amount of $2, and costs of $ The Association is located in Pinellas County, Florida. Relevant Procedural History 1. The Association filed its petition on March 6, 2012, and after receiving an extension of time, Respondent answered on April 19, In his answer, Respondent denied each allegation and accused the Association having failed to follow the governing documents directives requiring that he receive proper notice of the alleged violation.

2 2. The Association s request for relief sought an order requiring Respondent to fully comply with its governing documents; specifically, the requirements that before he leases his unit that he provide the Association with a fully executed lease agreement, a $100 application fee to the Association and agree to provide each prospective tenant with a copy of the governing documents. 3. On May 12, 2012, the Division received a written request to for a case management conference, which was granted and held on May 24, The Association was represented by counsel and Respondent was pro se. 4. At the conference, the parties settled their dispute and on June 8, 2012, filed a signed consent final order which the undersigned signed and issued on June 27, The consent final order stated that Respondent would, before renting his unit, submit a completed lease application, with a $100 lease application fee to the Association and provide the prospective tenant with a copy of the Association s governing documents. 6. The Association filed a motion on July 25, 2012, to tax attorneys fees and costs. 7. On August 13, 2012, Respondent responded to the motion by again raising the issue that he was not given proper notice by the Association of his violation; did not receive a copy of the subsequent by-law mentioned by the Association at the case management conference; did not consent to the imposition of fees and costs; and it is unjust and unfair to consider awarding fees and costs to the Association. Conclusions of Law Prevailing Party Pursuant to Section (4)(k), Florida Statutes, the prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable 2

3 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 (Fla. 1992). This includes a party where the opposing party has voluntarily provided the relief requested in the petition after having been served therewith. Rule 61B (7), Florida Administrative Code. In the consent final order, Respondent acquiesced to the relief requested in the Association s petition. The Association is the prevailing party. Fees The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by Petitioner. 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 3

4 forth in Rule are basically the same as the factors set forth in Rule 61B , Florida Administrative Code. The Association seeks compensation for legal services provided by three attorneys: Web Melton, Wesley Jones and Loren Beer. Attorney Steven H. Mezer, who signed the affidavit of fees and costs which was submitted with the motion, was admitted to the practice of law in the State of Florida in November, In his affidavit he describes himself as the attorney responsible for supervising and billing the work completed in this case. However, the timesheet prepared by Mr. Mezer does not indicate any time entries for work he did in the arbitration proceedings. Per Rule 61B (2)(c), the motion for costs and attorney s fees shall include an affidavit by the attorney who performed the work that states; the number of years the attorney has been practicing law, indicates each activity for which compensation is sought and states the time spent on each activity. See Skip Drish v. Ivy lake Estates Association, Inc., F. Case No , Final Order on Attorney s Fees and Costs (April 13, 2009); Domaine Delray Condominum Association, Inc., v. Koylan, F. Case No , Final Order on Motion to Tax Costs and Attorney s Fees (May 17, 2010). Attorneys Melton, Jones and Beer did not provide separate affidavits containing their signatures, as required by the rule and Mr. Mezer, who performed no work on behalf of the Association, signed a single fee affidavit for all three attorneys and signed his name as affiant. This does not comply with the Rule 61B (2) and the Association will not be awarded fees for the time entries for attorneys Melton, Jones and Beer. St. George Condominium Association, Inc., v. Henry, Arb. F. Case , Final Order on Motion for Attorney s Fee and Costs (August 04, 2009)(Petitioner's motion and 4

5 accompanying affidavit were not signed by the attorney who did the work); Sands Point Condominium II, Inc. v. Narine.F. Case No , Order Requiring Amended Motion to Tax Costs And Attorney s Fees (June 27, 2012,) Legal Assistant Fees According to Mr. Mezer s affidavit of fees and costs, the Association is seeking an award of fees for Patricia Torrey, who is a legal assistant with the firm. Ms. Torrey s hourly rate is $ Legal assistant/paralegal services may be compensable as part of an attorney's charges when it is demonstrated that the paralegal performed nonclerical, meaningful legal work, and reduced billable time of attorneys, and the rate for the paralegal services is demonstrated to be reasonable. Fiore at The Gardens Condominium v. Andersson, Arb. Case Nos and , Final Order on Attorney s Fees and Costs (March 15, 2012) citing Estes, et al. v. Lido of Pinellas Condo. Assn., Inc. Arb. Case No F, Final Order on Attorney's Fees (May 31, 1995). Neither the motion nor the billing records submitted with the motion make the requisite showing as to the legal assistant/paralegal charges, thus none are awarded. Costs The costs the Association seeks are: $9.15 for postage; $95.15 for photocopies; and $50.00 for the filing fee for a total of $ Postage is not compensable as it is a routine overhead expense that should be incorporated into the attorney's hourly rate. The Association will not be awarded the sum of $9.15 for postage. See Barrera, individually and Bleau Fontaine Condo. Number Two, Inc. v. Bleau Fontaine Community Assoc, Inc., Arb. Case No , Final Order on Attorney's Fees (January 26, 2001); 5

6 Mitchell v. Osceola Farms Co., 574 So. 2d 1162 (Fla. 4th DCA 1991); Griffith v. Griffith, 941 So. 2d 1285 (Fla. 4th DCA 2006). Costs of copies of documents filed with the court, which are reasonably necessary to assist the court in reaching a conclusion, are awardable. However, the Association has not identified the photocopies as being filed with the Division and, therefore, it will not be reimbursed for them. See Statewide Uniform Guidelines for the Taxation of Costs in Civil Actions. See Ocean Winds, Inc. v. Ashburn, F. Case No , Final Order on Attorney's Fees and Costs (March 9, 2009). Accordingly, the Association s total award for costs will be $50.00, the Division s filing fee. Therefore, based on the foregoing, it is ORDERED: 1. The Association s motion to Tax Attorney s Fees and Costs is granted in part; the Association is named the prevailing party in this case. 2. The Association s motion to be awarded costs is granted in part; it shall be awarded costs in the amount of $50.00 which represents the filing fee required by the Division. Respondent shall, within 30 days, pay to the Association the total amount of $50.00 which represents reimbursement for the filing fee which is a necessary and compensable cost. DONE AND ORDERED this 6 th day of September 2012, at Tallahassee, Leon County, Florida. Leah A. Simms, Arbitrator Department of Business and Professional Regulation 6

7 Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: Facsimile: Trial de novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of the foregoing Final Order on Motion to Tax Attorney s Fees and Costs was mailed to the following persons on 6 th day of September, 2012: H. Web Melton, Esq. BUSH ROSS, P.A. P.O. Box 3913 Tampa, FL Attorney for Petitioner Kristen Thompson 58 Thimbleberry Road Ballston, NY Kris001@nycap.rr.com Respondent Leah A. Simms, Arbitrator 7