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 THE PRESERVE AT LANSBROOK ASSOCIATION, INC., Petitioner, Fees Case No v. Rel. Case No BRUCE D. BARRETT and SUSAN BARRETT, Respondents. / FINAL ORDER ON MOTION TO TAX ATTORNEY S FEES AND COSTS On April 30, 2014, The Preserve at Lansbrook Association, Inc., (Association), the legal entity responsible for the operation of The Preserve at Lansbrook, A Condominium, located in Pinellas County, Florida, moved for an award of $5, in attorney s fees and costs. On May 2, 2014, the arbitrator entered an Order Permitting Response to the motion for attorney s fees and costs. As of the date of this Order, Respondents have not filed a response. Relevant Procedural History This fees case arises from arbitration case number On June 11, 2013, the Association filed a petition for mandatory non-binding arbitration against Respondents. The Association s petition claimed that Respondents violated: 1) Article III, Section 3.4 of its Declaration, by parking in their neighbor s driveway; 2) Article VII, Section 7.10 of its Declaration, by improperly storing items in their unit s garage; and 3) 1

2 Article XVII, Section 17.3 of its Declaration, by not picking up and properly disposing of their dog s solid waste. As relief, the Association requested that Respondents be ordered to: 1) permanently remove their vehicle that is currently parked in their neighbor s driveway; 2) permanently remove the items that are currently being stored in their unit s garage; and 3) ensure that all of their dog s solid waste is picked up and properly disposed of on a daily basis. On July 15, 2013, Respondents filed an answer. Respondents answer asserted that Respondent Bruce D. Barrett had a need for the dog which is covered by state or federal housing discrimination law, hereinafter referred to as Fair Housing. Because the responsibility for deciding Fair Housing claims does not lie in arbitration pursuant to Section , Florida Statutes, the arbitrator struck Respondents Fair Housing defense by Order dated July 18, The Order required Respondents to file proof of filing a Fair Housing discrimination complaint with the appropriate Fair Housing agency. Respondents failed to file, timely or otherwise, such proof of filing a Fair Housing discrimination complaint. Therefore, on October 11, 2013, a telephonic case management conference was held. Both parties appeared at the conference. At the conference, the parties agreed to mediation of this matter. Thus, on October 15, 2013, the arbitrator entered an Order After Case Management Conference, Requiring Mediation, and Appointing Mediator. A mediation conference with the appointed mediator was set for March 5, On March 10, 2014, the mediator filed a Mediation Report indicating that Respondents failed to appear at a duly noticed mediation conference. Accordingly, on March 11, 2

3 2014, the arbitrator entered an Order to Show Cause. The Order to Show Cause required Respondents to show cause why sanctions should not be imposed upon them. The Order to Show Cause further advised Respondents that the failure to timely comply with the Order would result in the imposition of sanctions against them without further notice. Respondents did not file a response to the Order to Show Cause. Therefore, as a sanction for Respondents failure to attend a duly noticed mediation conference, Respondents pleadings were stricken, a default was entered against them, and a Final Order on Default was also entered against them. The Final Order on Default required Respondents to: 1) permanently remove their vehicle that is currently parked in their neighbor s driveway; 2) permanently remove the items that are currently being stored in their unit s garage; and 3) ensure that all of their dog s solid waste is picked up and properly disposed of on a daily basis. Conclusions of Law A. 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 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 the Association was granted the relief it requested in the final order, the Association is the 3

4 prevailing party in this case. Therefore, the Association is entitled to recover its reasonable attorney s fees and costs. B. Attorney s Fees and Costs 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 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. The Association moves for compensation for legal services provided by one attorney, Wesley K. Jones and a legal assistant, Patricia Torrey. The Association seeks compensation for 24.4 hours of Wesley K. Jones time at a rate of $ per hour, and 0.5 of an hour for Patricia Torrey s time at a rate of $ per hour. 4

5 Hourly Rate Wesley K. Jones, Esq. has been practicing law in Florida for 3 years. 1 The undersigned finds that a reasonable rate for Mr. Jones s services is $ per hour based upon an attorney with like experience practicing law in the same location in Florida. See Place One Condominium Association, Inc. v. Colon, Arb. Fees Case No , Final Order on Petitioner s Motion to Tax Attorney s Fees and Costs (March 27, 2014). The Association s affidavit states that Patricia Torrey has been a legal assistant since April The undersigned finds that a reasonable rate for Ms. Torrey s services is $75.00 per hour. See Id. Number of Hours The Association claims a total of 24.4 hours of attorney time for Attorney Jones services. Not all of this time can be awarded. First, 6.1 hours were spent in connection with Fair Housing issues. Attorney fees incurred by responding to a Fair Housing complaint before a fair housing authority are not recoverable in an arbitration proceeding. Claredon Condo. Ass n, Inc. v. Boolbal, Arb. Fees Case No , Final Order on Motion for Attorney s Fees and Costs (November 22, 2011). Second, 0.3 hours were expended related to a lien foreclosure matter. Attorney time expended addressing matters not in arbitration will not be awarded. Juno Beach Condo. Ass n, Inc. v. Abood, Arb. Fees Case No , Final Order on Motion for Attorney s Fees and Costs (July 21, 2010). Third, 2.5 hours were expended in connection with preparing the motion for attorney s fees and costs. Only one hour is 1 The Florida Bar s website shows that Attorney Jones was admitted in Florida on April 14,

6 reasonable for this service. See, e.g., Sunrise Landing Condo. Ass n of Brevard, Inc. v. Wilson, Arb. Case No , Final Order on Attorney s Fees and Costs (May 9, 2006); Hallandale Towers East, Inc. v. Bossi, Arb. Fee Case No , Final Order on Motion for Award of Attorney s Fees (June 13, 2011); Manor Grove Village III Condo. Ass n, Inc. v. Thyfault, Arb. Case No F, Final Order Granting Petitioner s Motion for Attorney s Fees (June 15, 1994). Thus, the 2.5 hours of time entries related to attorney s fees will be reduced to 1 hour. The Association is therefore awarded the sum of $2, for 16.5 hours of Attorney Jones time at $ per hour. Paralegal Fees Paralegal services may be compensable as part of an attorney's charges when it is demonstrated that the paralegal performed non-clerical, meaningful legal work, the paralegal services reduced billable time of attorneys, and the rate for the paralegal services is demonstrated to be reasonable. Estes, et al. v. Lido of Pinellas Condo. Assn., Inc., Arb. Fee Case No F, Final Order on Attorney's Fees (May 31, 1995). The 0.5 of an hour expended by Ms. Torrey is reasonable. The Association is therefore awarded the sum of $37.50 for 0.5 of an hour of Ms. Torrey s time at $75.00 per hour. Costs The Association seeks reimbursement of the $50.00 filing fee. The filing fee is a necessary expense, and is awarded. Based on the foregoing, it is ORDERED: 6

7 Respondents Bruce D. Barrett and Susan Barrett shall, within 30 days of the date of this Order, pay to the Association the total amount of $2, which represents reimbursement for $2, in attorney s fees and $50.00 in costs. DONE AND ORDERED this 13th day of June, 2014, at Tallahassee, Leon County, Florida. David R. Slaton, 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 in accordance with section , Florida Statutes. [This space left intentionally blank, a Certificate of Service follows on the next page]. 7

8 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 13th day of June, 2014, to: Steven H. Mezer, Esq. Wesley K. Jones, Esq. Bush Ross, P.A. PO Box 3913 Tampa, FL Attorneys for Petitioner Bruce D. Barrett 4262 Preserve Place Palm Harbor, FL Respondent Susan Barrett 4262 Preserve Place Palm Harbor, FL Respondent David R. Slaton, Arbitrator 8