STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Wood Street Condominium Association, Inc., Petitioner, Fees Case No. 2011-02-0959 v. Rel. Case No. 2010-05-9330 Benedict Peter Thiesen, II, Respondent. / FINAL ORDER ON PETITIONER S MOTION FOR AWARD OF ATTORNEY S FEES AND COSTS On April 20, 2011, Wood Street Condominium Association, Inc., (the Association) moved for an award of $5,531.00 in attorney s fees for services rendered in Sarasota County, and $55.54 in costs. On April 25, 2011, the arbitrator entered an Order Permitting Response. On April 26, 2011, Respondent filed an Answer denying that Petitioner was the prevailing party. Findings of Fact 1. This fees case arises from arbitration case number 2010-05-9330, in which the Association alleged disputes arising from two issues: a. Petitioner had installed an exterior air conditioner with a pvc drain pipe running from his second-floor unit along the exterior common element wall to the ground; b. Petitioner kept a motorcycle in his assigned parking spot on condominium property. 2. A Summary Final Order was entered granting Petitioner s request for an order requiring removal of the pvc pipe, but denying that parking the motorcycle violated 1
the governing documents. 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)). Respondent submits that the air conditioner/pvc pipe dispute presented more than one issue but the Association prevailed on only removal from the exterior common element wall, and that he prevailed on the motorcycle issue. So, he argues that he is more of a prevailing party than the Association, and for that reason, the Association should not be entitled to any award of fees. Despite the appearance of fairness to that argument, the law in Florida is different. Where each dispute is a separate and distinct claim that could be presented as an independent case, the prevailing party on each distinct dispute is entitled to an award of fees for the fees generated in connection with that dispute. Park Lane Condominium Ass n, Inc., 558 So. 2d 85 (Fla. 1st DCA 1990). Petitioner is entitled to its fees as the prevailing party on the pvc pipe issue. Reasonable and Necessary 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 2
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 compensation for the legal services three different attorneys for services provided from August 2009, through March 2011. The award of fees pursuant to section 718.1255(4)(k), Florida Statutes is limited to those incurred in the arbitration proceeding as well as the costs and reasonable attorney s fees incurred in preparing for and attending any scheduled mediation. Because only one attorney appeared or provided services in the arbitration filed November 29, 2010, only his services will be addressed. The Association seeks compensation for the services of C. Todd Chapman, Esq., at the rate of $235.00 per hour. Mr. Chapman has been practicing law in Florida since 2005. After considering the above factors, the undersigned finds that a $175.00 rate is reasonable for Mr. Chapman. 3
The Association seeks reimbursement for 15.5 hours for the time of Mr. Chapman. Park Lane, supra requires review of the time entries to separate out the time required for the air conditioning issue from the time required for the motorcycle issue. Comparison of the time entries with the pleadings and attachments in the underlying case establishes that Petitioner s attorneys did not include time spent solely for the motorcycle issue. For instance, two pre-arbitration letters attached to the petition for arbitration addressed only the motorcycle, but no time entries correspond to the dates of those letters. Because the time required for preparation of the petition for arbitration and participation in mediation is not otherwise divided, one-half of that time will be subtracted as not awardable. After considering the factors contained in rule 61B-45.0048(7), Florida Administrative Code, the undersigned finds that the 8.9 hours were reasonable and necessary to litigate the air conditioner line issue in the underlying case. Therefore the Association is awarded $1,557.50, as attorneys fees. The normal filing fee of $50.00 is a reasonable and necessary expense and, therefore, is awarded. The Association also requested reimbursement for costs of $5.54 for certified mail, such expenses do not fall within the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions as is required by Rule 61B-80.123(5), Florida Administrative Code. Based on the foregoing, it is ORDERED that Benedict Peter Thiesen, II, shall pay the sum of $1,607.50 to Dixie Gardens Condominium Association, Inc. within thirty (30) days of the date of this order. DONE AND ORDERED this 3rd day May, 2011, at Tallahassee, Leon County, 4
Florida. Bruce A. Campbell, Arbitrator Dept. Bus. & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399 Trial de novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, Florida Statutes. Certificate of Service I hereby certify that a copy of the foregoing Final Order was furnished by U.S. Mail on May 3, 2011, to the following: C. Todd Chapman, Esq. Law Office of Kevin Wells, PA 1800 Second Street, Suite 803 Sarasota, FL 34236 Benedict Peter Thiesen, II 2155 Wood Street, Unit B-4 Sarasota, FL 34236 Bruce A. Campbell 5