STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION BERMUDA CLUB MANAGEMENT COUNSEL, INC., and BERMUDA CLUB FOUR ASSOCIATION, INC. Petitioners, v. Fees Case No. 2006-06-7768 Rel. Case No. 2006-01-7204 MIREYA ZURITA, Respondent. / AMENDED FINAL ORDER ON MOTION FOR ATTORNEY S FEES AND COSTS On December 12, 2006, the Association moved for an award of $2,292.50 in attorney s fees and costs. By order dated December 15, 2006, the Respondent was permitted twenty days in which to file a response. On December 29, 2006, Respondent filed a letter as response alleging that she no longer owned the unit. On January 28, 2007, Petitioner filed a copy of Respondent s letter with the division. On March 20, 2007, the undersigned issued an order requiring Petitioner file proof of Respondent s ownership of the unit. On March 29, 2007, Petitioner filed a Response to Order to Submit Proof of Ownership, which clearly indicated that Respondent has owned the unit since September 15, 2005 and that a public records search had not yielded any evidence of a transfer of title. On April 17, 2007, Respondent filed a letter admitting that she owned the unit. 1
Findings of Fact 1. This fees case arises from arbitration case number 2006-01-7204, in which the Association alleged the Respondent violated the declaration of condominium and the Association s Rules and Regulations by keeping a pet in her unit. As relief, the Petitioner sought an order requiring the Respondent to comply with the Association s governing documents by permanently removing the pet from the unit and association property and an order awarding the Association s attorney s fees and costs. 2. In response to the Entry of Default entered on October 2, 2006, Respondent filed a letter on October 11, 2006, stating, I don t have no dogs, only one time my daughter bring her dogs very small dogs only six pound, she bring for a visit. But be side this, I tell the lawyer I sold my apartment [sic] (es) 3. On October 31, 2006, the Association filed a notice of Compliance Rendering Dispute Moot alleging the Respondent had cured the violation alleged in the petition and requested an order dismiss the case as moot and enter an order requiring the Respondent from bringing the dog back to the unit, along with other relief, as appropriate. 4. A Final Order Dismissing Case As Moot was entered on November 1, 2006. 5. On December 14, 2006, Petitioner file a Motion for Attorney s Fees and Costs. 6. On December 15, 2006, an Order Allowing Answer was entered. 7. On December 28, 2006, Petitioner filed with the Division a copy of 2
Respondent s letter of response to Petitioner s Motion. On December 29, 2006, Respondent filed the original letter of response to Petitioner s Motion. 8. Respondent s response stated that Bermuda club had accused me of having a dog in my apartment, but I was able to prove to you that I was innocent of all accusations and that I desire to sell my apartment. (es) 9. In response to Respondent s allegations that she had both sold her apartment and desired to sell her apartment, an order for Petitioner to file proof of ownership of the apartment was entered on March 20, 2007. 10. On March 26, 2007, Petitioner filed a copy of Respondent s deed to the apartment and a copy of the search results of the public records of Broward County, Florida through March 23, 2007, indicating that the Respondent was the current owner of the apartment. Conclusions of Law 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. 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)). Clearly, in the instant case, the Association is the prevailing party and entitled to recover its reasonable attorney s fees and costs because the Respondent, in the underlying case, admitted that her daughter s dogs had been visiting in the apartment and had been removed. A final order of dismissal had been entered as the Respondent had provided 3
the Association the relief requested in the petition. 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 1150-51. 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 1150. The factors for determining a reasonable attorney s fee set forth in Rule 4-1.5 are basically the same as the factors set forth in Rule 61B-45.048, Fla. Admin. Code. The Association seeks reimbursement for Laura M. Manning, Esquire, for time on the case prior to November 3, 2006, for.75 hours at the rate of $250.00 per hour and for 1.5 hours at the rate of $225.00 per hour for a total of $525.00. Ms. Manning has been practicing law in the State of Florida for nine years. After considering the above factors, the undersigned finds the request hourly rates and number of hours are reasonable. The Association seeks reimbursement for Howard J. Perl, Esquire, for time on 4
the case prior to November 3, 2006, for 1.3 hours at the rate of $225.00 per hours. Mr. Perl has been practicing law in the State of Florida for one year. A reasonable rate for Mr. Perl is a rate of $185.00 per hour for a total of $277.50. The Association seeks reimbursement for Robert C. Martin, Esquire, for time on the case through October 31, 2006, for 6.5 hours at the rate of $150.00 per hour. Mr. Martin has been practicing law in the State of Florida for twenty-five years. After considering the above factors, the undersigned finds the requested hourly rate reasonable and a reasonable number of hours spent on the case to be 5 for a total of $750.00. The Association seeks reimbursement for unidentified attorney time, after November 3, 2006, through March 3, 2006, of 2 hours at a rate of $225.00 per hour. Time spent by an unidentified individual, who did not submit an affidavit as to whether he she was an attorney (and stating the number of years the attorney has been in practice) or legal assistant will not be compensated. Oross, et al v. Boca Linda Noroth Condo. Association, Inc., Arb. Case No. 98-5403, Final Order on Attorney s Fees (February 23, 1999)(Hours billed by an unidentified individual submitted without an affidavits as to whether the individual was an attorney or legal assistant was denied). The Association seeks an award for $50.00 in costs for the arbitration filing fee. The Association is reimbursed the cost of the filing fee. Based upon the foregoing, the Respondent shall pay the sum of $1,602.5 to the Association within thirty (30) days of the date of this order. 5
DONE AND ORDERED this 6 th day of July 2007, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 RIGHT TO TRIAL DE NOVO 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 cannot be appealed to a district court of appeal. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order on default has been sent by U.S. Mail to the following persons on this 6 th day of July 2007: Howard J. Perl, Esq. Siegfried, Rivera, Lerner, De La Torre & Sobe, P.A. 8211 West Broward Blvd. Suite 50 Plantation, Florida 33324 Mireya Zurita 6071 NW 61 st Avenue #109 Tamarac, Florida 33319 Tonya S. Chavis, Arbitrator 6