PLANT HOSPITAL ASSOCIATION, ) INC., and LIFE CARE CENTERS OF ) AMERICA, INC., )
)
Respondents, )
and )
)
MANOR CARE OF FLORIDA, INC., ) d/b/a MANOR CARE OF PALM HARBOR, )
)
Intervenor. )
and ) CASE NO. 93-6838F
) LIFE CARE CENTERS OF AMERICA, INC., )
)
Petitioner, )
vs. )
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, and ) MORTON F. PLANT HOSPITAL ASSOC., ) INC., )
)
Respondents, )
and )
)
MANOR CARE OF FLORIDA, INC., ) d/b/a MANOR CARE OF PALM HARBOR, )
)
Intervenor. )
)
FINAL ORDER
Pursuant to notice, a formal hearing was heard by Eleanor M. Hunter, the Hearing Officer designated by the Division of Administrative Hearings, on October 27, 1993, in Tallahassee, Florida.
At the hearing, Arbor Health Care Company presented the testimony of Kenneth Oertel, and Exhibit 1. No transcript of the hearing has been filed.
APPEARANCES
For Petitioners Chris Bentley Arbor Health John L. Wharton
Care Company: Rose, Sundstrom & Bentley
2548 Blairstone Road
Tallahassee, Florida 32301
For Respondent Richard Patterson Department of Senior Attorney
Health and Agency for Health Care Administration Rehabilitative 325 John Knox Road, Suite 301 Services: Tallahassee, Florida 32303-4131
For Respondent Bruce McKibben, Jr. Life Care Post Office Box 10095 Centers of 306 North Monroe Street
America, Inc.: Tallahassee, Florida 32302
For Respondent Cynthia S. Tunnicliff, Esquire Morton F. Plant 500 First Florida Bank Building Hospital, Tallahassee, Florida 32302 Assoc., Inc.:
For Intervenor James C. Hauser, Esquire Manor Care of Post Office Box 1876 Florida, Inc.: Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
The issue is the reasonableness of the amounts of attorneys' fees and expert witness fees incurred by Arbor Health Care Company in the preparation and presentation of two Motions for Sanctions against Life Care Centers of America, Inc., which were previously granted.
PRELIMINARY STATEMENT
In May 1992, petitions were filed in these cases challenging the preliminary decisions of the Department of Health and Rehabilitative Services ("HRS") to issue and deny various applications for Pinellas County Nursing home certificates of needs ("CONs").
Arbor Health Care Company ("Arbor"), a preliminarily denied applicant, challenged, among others, the preliminary approval of the application of Life Care Centers of America, Inc. ("Life Care"). Both Arbor and Life Care proposed to construct 120 bed community nursing homes in Pinellas County.
As a result of Life Care's failure to comply with discovery requests and motions to compel, Arbor Health Care's Motion For Order Granting Sanctions, awarding attorneys fees and costs, was granted on February 10, 1993. This proceeding was held to determine the reasonableness of the amount of fees and costs requested by Arbor.
FINDINGS OF FACT
In May 1992, Arbor Health Care Company ("Arbor") filed a petition challenging the preliminary decisions of the Department of Health and Rehabilitative Services ("HRS") to deny to Arbor and grant to Life Care Centers of America, Inc. ("Life Care") a certificate of need ("CON") to construct a 120 bed community nursing home in Pinellas County, Florida.
On September 15, 1992, Arbor filed with the Division of Administrative Hearings, copies of its First Request For Production of Documents and Notice of Service of Interrogatories to Life Care. Arbor filed a copy of its Second Request For Production of Documents upon Life Care on October 9, 1992, and a Third Request For Production on October 30, 1992.
On October 26th, Arbor filed a Motion To Compel Life Care to respond to the First Request and Interrogatories, which had been due on October 15th. The next day Life Care filed a Notice of Service of Answers to Interrogatories.
On October 28th, Arbor filed a Motion To Compel Life Care to answer Interrogatory Number 3 of the First Set, which was not answered despite Life Care's Notice of Service of Answers. That motion was granted at a hearing on November 5th, and Life Care was given 5 days to comply. Life Care failed to respond by November 10th and was given notice by Arbor that it would file a Motion For Sanctions if responses were not received by 10:00 a.m. on November 16th. On November 16, 1992, Arbor filed a Motion For Order Granting Sanctions of $250.00 in attorney's fees or to preclude the introduction of evidence related to the unanswered interrogatory.
In response to Arbor's First and Second Requests For Production, Life Care filed notice that the documents would be available for review and copying, within twenty-four hours on or after October 23, 1992, at its headquarters in Cleveland, Tennessee.
On November 6, 1992, Arbor filed a Motion to Compel Responses to the First and Second Requests for Production asserting Life Care's production to have been incomplete and/or unresponsive. On November 23, 1992, Life Care was ordered to respond to all pending discovery requests by December 4, 1992.
Life Care's failure to comply with the Order of November 23, 1992, resulted in the filing by Arbor of a second Motion For Sanctions on January 6, 1993. Both of Arbor's Motions For Sanctions requiring Life Care to pay reasonable attorneys' fees and costs were granted on February 10, 1993, with the requirement that Life Care produce the documents in Tallahassee on Thursday, February 18, or risk the imposition of additional sanctions precluding the introduction of certain evidence at hearing.
On February 24, 1993, Life Care filed a Notice of Voluntary Dismissal and the case ultimately was closed upon Settlement Agreement of the remaining parties on June 22, 1993.
On March 9, 1993, Arbor filed a Motion For Determination of Amount of Reasonable Expenses, including attorneys' fees in the amount of $15,500 and financial expert fees in the amount of $5,100, supported by affidavit of the attorney and the financial expert. Life Care filed a Response asserting that Arbor's fee request was excessive and unsupported by either a detailed accounting of the fees or independent affidavits.
By Order to Show Cause, the undersigned scheduled an evidentiary hearing on the amount of reasonable fees and costs for May 17, 1993. On May 3, 1993, Arbor, with the agreement of Life Care, moved to cancel the evidentiary hearing, although the parties were unable subsequently to resolve the issue between themselves.
By notice dated September 22, 1993, Arbor scheduled a hearing on its Motion For Determination of Amount of Reasonable Expenses for Wednesday, October 27, 1993.
The testimony of an independent attorney expert that the attorney's fee of $125.00 an hour is below the average is accepted.
The testimony of Chris Bentley that the fees billed to Arbor were
$125.00 an hour for partners, $100.00 for associates, and that total hours billed for the preparation of and presentation of the Motion For Sanctions exceeded 124 hours over a two month period of time is accepted. That testimony is supported by copies of the law firm's invoices sent to Arbor on January 20, 1993, February 16, 1993, and March 22, 1993, for legal services related to this case rendered by the firm of Rose, Sundstrom and Bentley to Arbor.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this case, pursuant to Subsections 381.709(5)(b), Florida Statutes (1991); and 120.57(1).
The guidelines established in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) apply to computing a reasonable attorney's fees.
As emphasized in Florida Patient's Compensation Fund, the attorneys' fees in this case are supported by accurate records and invoices, which were actually and properly billed to the client.
The uncontradicted testimony of the expert, independent witness that the hourly rate was below the norm, and that the number of hours required to support and present the Motions For Sanctions is also reasonable is accepted. See, e.g. Korman v. Pond Apple Maintenance Association, Inc., 607 So.2d 489 (Fla. 4th DCA 1993), on the discretion to accept uncontroverted expert testimony. As the expert witness testified, the issues related to capital projects approved, pending or underway by Life Care and its ability to finance the project proposed in its CON application were complex and dispositive. The difficulty of the issues and the need for expert assistance in pursuing the clues in the complicated financial paper trail justified both the use of the expert and the number of hours required of the attorneys.
Based on Arbor's having established the hours and rate, thus the lodestar figure, there is no basis in the record for any adjustment to the fee.
