STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES J. WEAVER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5301F

) THE SCHOOL BOARD OF LEON COUNTY, ) FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on December 20 1990, in Tallahassee, Florida.

APPEARANCES

FOR PETITIONER: Jerry Traynham, Esquire

PATTERSON & TRAYNHAM

Post Office Box 4289 Tallahassee, Florida 32315-4289

FOR RESPONDENT: C. Graham Carothers, Esquire

AUSLEY, MCMULLEN, ET AL.

Post Office Box 391 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The factual issue to be determined is the amount of attorney fees and costs due and owing to the Petitioner.

PRELIMINARY STATEMENT

This matter was referred to the Division Administrative Hearings, pursuant to an appellate court mandate, by the Florida Commission on Human Relations (the "Commission") by Order dated July 30, 1990. Upon receipt of said Order, an Initial Order was entered by the Division of Administrative Hearings; and subsequently, the case was noticed for hearing on December 20, 1990. At the final hearing, the Petitioner called three witnesses, who testified on his behalf; and the Respondent called one witness. The Petitioner offered five exhibits and the Respondent offered four exhibits, all of which were received into evidence. The parties stipulated that all pleadings and papers previously filed with the Commission in Case No. 87-0605 were not required to be refiled in this case and could be considered in these proceedings.

During the evidentiary hearing, counsel for the Petitioner represented that the Petitioner was withdrawing his request for an award of attorneys fees for services rendered during the appeal of Case No. 87-0605 to the District Court of Appeals, First District.

The Petitioner and the Respondent filed proposed recommended orders, which were read and considered. The Appendix attached hereto and incorporated by reference herein states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner incurred the following costs related to the proceedings in Case No. 87-0605:

   
   

   Copying Charges for Office Copies of Pleadings and Papers	$173.25
   Court Reporter Fees for Transcript of Evidentiary Hearing held 9/9/90	510.30
   Miscellaneous Postage	26.75
   Copying Charges	9.80
   Typing Charges	100.00
   TOTAL COSTS:	$820.10

   
   

2. The parties stipulated that a reasonable hourly rate for Mr. Traynham's services was $150.00 per hour. At the time of the final hearing in Case No. 90- 5301F, Mr. Traynham had expended 25 hours in Case No. 90-5301F. A reasonable fee for counsel for Petitioner's services in the aforementioned case is

   $3,750.00. The parties also stipulated that work in presentation of this case to the Commission must be considered separately.

   
   

3. The parties did not agree to an hourly rate or number of hours for the services provided by Mr. Stafman. Based upon the records presented and the testimony of Mr. Stafman, the reasonable number of hours required to review the file and for testimony at the hearing is seven hours. The reasonable rate for Mr. Stafman's professional services based upon the value of his services in relationship to the value of the services provided by Mr. Traynham is $150.00 per hour. A reasonable total fee for Mr. Stafman's professional services was

   $1,050.00.

   
   

4. Curley Doltie, Esq. was retained by the Petitioner to represent him in this proceeding on a contingency fee basis. A contingency fee basis means that Mr. Doltie would be compensated for representing the Petitioner only if the Petitioner prevailed in the litigation. The amount of the contingency fee was to be determined and awarded by the Commission. The rule regulating the Bar requires contingency fee contracts to be reduced to writing.

   
   

5. The Petitioner was a casual client of Mr. Doltie, and their contingency fee contract was not reduced to writing and executed.

6. Mr. Doltie is a 1979 graduate of the Law School at Florida State University and was admitted to the Bar in that year. Between May 1980 and May 1982, Mr. Doltie served as an armored officer in the United States Army.

   
   

7. Mr. Doltie's legal experience includes working as a staff attorney for the Legal Aid Society of Orange County from October 1979 until May 1980; assistant public defender in Sanford, Florida, from May 1982 until April 1983; private practice from April 1983 until October 1984; associate general counsel with the Public Service Commission from October 1984 until January 1987; Legal Services of North Florida from January 1987 until opening a private practice in Tallahassee in September 1987.

   
   

8. The Petitioner was one of Mr. Doltie's first clients after he opened his private practice in 1987.

   
   

9. Mr. Doltie currently handles both contingency fee cases and cases for which he regularly bills his clients. Mr. Doltie's current billing rate is

   $150.00 per hour. Mr. Doltie's practice involves, primarily, administrative litigation.

   
   

10. Mr. Doltie regularly keeps time records, which reflect the activities in which he is engaged on behalf of his client, and the time expended in pursuit of these activities. Mr. Doltie maintained time records for the activities which he performed in providing professional services to the Petitioner. In addition, Mr. Doltie expended 4.5 hours preparing for the attorney fee hearing,

    1.0 hour for a prehearing conference, and 8.0 hours testifying or being available to testify at the final hearing on the matter of attorneys fees and costs. The total number of hours expended by Mr. Doltie in the fee case was

    13.5 hours.

    
    

11. Mr. Doltie's summary of professional services rendered by date, description, and time expended on the administrative proceedings before the Commission, the Division of Administrative Hearings, and the appeal of the original case to the District Court of Appeals and the Florida Supreme Court is presented in the Petitioner's Exhibit 2. Mr. Doltie withdrew his claim for the appeal.

    
    

12. Mr. Doltie recorded his time carefully and conservatively and claimed only that time which contributed significantly to the work product. The Respondent would reduce the time allowed for the services rendered on the following dates because the explanation is insufficient or the amount of time is excessive or the activity was unnecessary:

    
    

    1/5/88 C/Weaver

    3/23/88 C/Weaver

    5/11/88 C/Weaver; R/Case 6/7/88 C/Weaver

    9/27/88 L/Carothers

    4/17/90 R/Case; P/Motion for Evidentiary Hearing 4/17/90 L/Carothers

    5/1/90 P/Motion To Strike Respondent's Motion To Tax Costs; R/Case; C/Weaver

    5/4/90 P/Petitioner's Reply To Respondent's Response To Petitioner's Motion For Evidentiary Hearing

    5/23/90 R/Case

    5/24/90 R/Case; P/Notice Of Failure To Settle; Motion For Rehearing And Motion For Clarification; Memorandum of Law; Motion To Strike

    6/13/90 P/Petitioner's Motion Requesting FCHR To Become A Deferral Agency For The

    Federal Government; R/Case; P/Motion For Seniority Pay Steps; P/Motion Requesting An Expedited Hearing On Damages

    6/14/90 R/Case; P/Motion Requesting FCHR To Appeal DCA Order

    6/22/90 RV/FCHR Order; C/Weaver

    
    

13. Based upon review of the time records and consideration of the services performed, the following adjustments are made with regard to the times recorded by Mr. Doltie:

    
    

    1/5/88	C/Weaver	.5
    2/23/88	C/Weaver	.2
    6/3/88 1/	R/Case; RV/DOAH Order	1.2
    6/7/88	C/Weaver	1.0

    
    

14. The total number of hours accepted from Mr. Doltie for his services rendered before the Division of Administrative Hearings and the Commission is

    121.9 hours through the initiation of the appeal to the District Court of Appeals.

    
    

15. The total number of hours of professional services rendered provided by Mr. Doltie after this case was returned to the Commission is also itemized in the Petitioner's Exhibit 2, commencing with the services provided on 4/17/90.

    Of those items to which the Respondent takes exception, only the services provided on 6/13/90 and 6/14/90 were adjusted. In both instances, it was determined that the motions were unnecessary, without precedent, and the time expended thereon should be disallowed. The total number of hours of professional services rendered from 4/17/90 through 8/16/90 were 32.2 hours.

    The total number of hours expended by Mr. Doltie and allowed to be charged after review is 154.1 hours.

    
    

16. Based upon a consideration of Mr. Doltie's background and experience, in comparison with the fees for professional services charged by other attorneys in the Tallahassee, a reasonable rate for his services at the time would have been $110.00 per hour.

    
    

17. Having originally heard the case presented by Mr. Doltie and being familiar with the litigation, Mr. Doltie's professional services undoubtedly resulted in the Petitioner vindicating his civil rights and the Respondent being directed to employ the Petitioner. Although the Petitioner's initial claim was for broader relief, the Petitioner did not present evidence on many of these issues and thereby abandoned them at hearing.

    
    

18. Based upon the results achieved, a contingency fee of one-half again the billed rate would have been reasonable; however, as stated above, the contingency fee agreement between the Petitioner and Mr. Doltie was not reduced to writing. Recovery on a contingency fee in the absence of a written contract would be precluded by the Rules Regulating the Bar. Therefore, the recovery in this matter is on a quantum meruit basis. The value of the job and benefits of

    employment to the Petitioner were equal to the actual dollar value of the allowable hours times $110.00 per hour for 154.1 hours and $150.00 per hour for

    13.5 hours.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to the court's mandate and the Commission's referral.

    
    

20. The factual issue to be determined are the attorneys fees and costs in this case. The only legal issue is the impact of Mr. Doltie's failure to have the Petitioner execute a written contingency fee and the failure of the Petitioner to execute an employment contract for his services researching his own case.

    
    

21. The impact of the failure to execute a written contingency fee contract as required by the Florida Bar's Rules Regulating the Bar is to prevent enforcement of the oral contract. Therefore, Mr. Doltie must recover his fees on a quantum meruit basis. In the many cases cited by the Petitioner regarding "lodestar" concepts, the discussion was limited to contingency fee arrangements. I conclude that there is no "lodestar" enhancement of a quantum meruit award in circumstances involving a breach of the rules by counsel.

    
    

22. Haying heard the original case, there is no doubt that Mr. Doltie's representation of the Petitioner was the key to the Petitioner's recovery. Also being aware that Mr. Doltie was a new and, at that time, inexperienced private practitioner his failure to have the Petitioner execute a contingency fee contract should not prevent him from recovering the reasonable value of his professional services. Mr. Doltie is entitled to the unenhanced value of his services.

    
    

23. Dr. Weaver should not recover for the work he performed in presenting his case because he did not have a written contract with Mr. Doltie concerning his employment, and the Petitioner's records were insufficient to properly substantiate his work. Further, there are more conferences between counsel and the Petitioner than one might ordinarily expect. The time for these conferences has been compensated at the attorney's rate; and to the extent that they represent "work" discussed, directed, or reported by the Petitioner to Mr. Doltie, this time should not be recharged and compensated. For these reasons, Dr. Weaver's work on his own case should not be compensated as "law clerk" time.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the Petitioner be awarded the following attorney's fees and costs:

Further, Mr. Traynham should receive an added fee for his presentation before the Commission to be determined by the Commission in its Final Order.

DONE AND ENTERED this 21st day of February, 1991, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1991.

ENDNOTE

1/ Although the Respondent challenges the conference on 6/7/88 only, this conference can only be viewed in the context of Mr. Doltie's review of the case file and review of the DOAH Order of 6/3/88. Accordingly, the 4.4 hours is adjusted to 2.2 hours total for two days' activities.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5301F

Respondent's Proposed Findings of Fact

1-3. Adopted generally with interest being awarded on the Court Reporter's fee.

1. Rejected, in part, as contrary to the more credible evidence..

2. Adopted.

3. Rejected, as contrary to the more credible evidence.

4. Rejected, as contrary to the more credible evidence.

5. Conclusion of law.

6. Rejected, as contrary to the more credible evidence.

7. Adopted, but rewritten.

8. Rejected, as contrary to the more credible evidence.

9. Conclusion of law.

10. Rejected, as contrary to the more credible evidence.

11. Rejected, as contrary to conclusion that lodestar does not apply and to the value of services if it did.

12. Conclusion of law.

13. Adopted.

The remainder of the Respondent's Proposed Recommended Order is determined to be a conclusion of law.

Petitioner's Proposed Findings of Fact

1-11. Adopted.

12, 13, 15. Rejected, as "lodestar" related and not applicable.

14. Adopted.

16. Rejected, as contrary to the more credible evidence. 17-18. Rejected, as contrary to the more credible evidence.

1. Accepted in part and rejected in part.

2. Adopted.

COPIES FURNISHED:

Jerry Traynham, Esq.

PATTERSON & TRAYNHAM

P.O. Box 4289

Tallahassee, FL 32315-4289

C. Graham Carothers, Esq. AUSLEY, MCMULLEN, ET AL.

P.O. Box 391 Tallahassee, FL 32302

Dana Baird, General Counsel Florida Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Margaret Jones, Clerk

Florida Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

JAMES J. WEAVER, )

) EEOC Case No. 046852287

Petitioner, )

) FCHR Case No. 85-3565

vs. )

) DOAH Case No. 90-5301F SCHOOL BOARD OF LEON COUNTY. )

) FCHR Order No. 91-028

Respondent. )

)

ORDER AWARDING AMOUNT OF ATTORNEY FEES AND COSTS

Preliminary Matters

On May 16, 1988, the Florida Commission on Human Relations entered an Order finding that Petitioner James J. Weaver had been discriminated against by Respondent School Board of Leon County within the meaning of the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Fla. Stat. (1987). The Commission adopted the Recommended Order of the hearing officer and ordered that Respondent pay Petitioner back pay with interest, including attendant fringe benefits and reasonable attorney fees and costs.

Respondent appealed the May 16, 1988 Order Finding an Unlawful Employment Practice. By Order issued January l8,A990, the First District Court of Appeal upheld the Commission's determination that Respondent committed an unlawful employment practice, but reversed that portion of the Commission's order awarding Petitioner back pay with interest.

On August 27, 1990, Petitioner filed a Motion for Order Awarding Attorney Fees with the Commission and on July 30, 1990, the Commission granted Petitioner a formal proceeding regarding the amount of attorney fees and costs owed to Petitioner. The claim was transferred to the Division of Administrative Hearings (DOAH), and on February 21, 1991, hearing officer Stephen F. Dean entered his Recommended Order with respect to attorney fees and costs. Both parties filed exceptions to the Recommended Order.

Public deliberations were held on June 28, 1991, in Tallahassee, Florida before the under signed panel of commissioners. Both parties presented oral argument regarding Petitioner's prehearing request for this commission to take official notice of the collective bargaining contracts between Respondent and the Leon County Teachers Association. 1/

Respondent's Exceptions to the Recommended Order

Respondent excepts to the hearing officer's conclusion that Petitioner may recover costs for photocopying, postage and typing. Respondent also excepts to the hearing officer's conclusion that Petitioner may recover the cost of the transcript for the original evidentiary hearing held on September 9, 1990.

Upon consideration, we adopt the portion of Respondent's exceptions relating to the cost of photocopying, postage and-typing. Normal office expenses to counsel are not recoverable as costs. Bolton v. Bolton, 412 So.2d

72 (Fla. 5th DCA 1982). We reject the portion of Respondent's exception relating to the cost of the transcript and hereby order Respondent to pay

$510.30 for the cost of the transcript for the September 9, 1990 hearing. Cf. Section 57.071(2), Florida Statutes (1989), which grants, to any party to whom costs are awarded, "(t)he expense of the court reporter for per diem, transcribing proceedings and depositions.

Petitioner's Exceptions to the Recommended Order

First, Petitioner excepts to the hearing officer's failure to compensate Petitioner's attorney, Mr. Doltie, for the delay in receiving payment.

Petitioner objects to the hearing officer's application of two different billing rates for the work performed by Doltie before and after the appeal.

The U.S. Supreme Court recognized the need for compensation for delay of contingency fee awards in Pennsylvania v. Delaware Valley Citizen's Council for Clean Air, 107 S. Ct. 3078, 3081-82 (1987). The Court identified the "delay" factor and the "risk of non-payment" factor as two distinct issues but failed to require that any particular delay factor be taken into account in granting contingency fees.

Therefore, because the hearing officer's findings of fact with regard to Doltie's reasonable billing rates and reasonable hours expended on Petitioner's case are based on competent substantial evidence, we adopt his calculation. The hearing officer determined Doltie's reasonable billing rate for the time spent up to and including the appeal was $110 per hour. He determined the reasonable hours spent by Doltie during that time period to be 154.1 hours.

Next, the hearing officer determined Doltie's reasonable billing rate for the time spent after the appeal, litigating the attorney fees and costs issues, was $150 per hour and determined that the time spent during that period was 13.5 hours. We adopt the hearing officer's recommendation and order Respondent to pay Petitioner $110 per hour for 154.1 hours, and $150 per hour for 13.5 hours, including an enhancement for the reasons set forth below.

Second, Petitioner excepts to the hearing officer's failure to enhance the lodestar amount (reasonable hourly rate times the reasonable number of hours spent) to compensate counsel for the "risk of non-payment" factor present in a contingency case. The hearing officer concluded that Rule 4-1.5 of the Rules Regulating the Florida Bar precludes enforcement of the contingency arrangement between Petitioner and Doltie because the Rule requires all contingency arrangements to be in writing and Doltie's agreement was not reduced to writing.

Therefore, the hearing officer did not enforce the contingency agreement, but rather awarded Doltie his reasonable fees in quantum meruit, as calculated above. Having originally heard the case presented by Doltie and being familiar with the litigation, the hearing officer stated that "Doltie's professional services undoubtedly resulted in Petitioner vindicating his civil rights." (RO. 2/21/91, 7). He further added that had the contingency agreement been in

writing, he believed a fifty percent enhancement to be reasonable, based on the results achieved. The hearing officer attributed Petitioner's success to Doltie again when he wrote ". a there is no doubt that Mr. Doltie's representation of the Petitioner was the key to the Petitioner's recovery." (RO. 2/21/91, 8). We hereby find that the hearing officer erred when he applied Rule 4-1.5 of the Rules Regulating the Florida Bar to the contingency agreement between Petitioner and Doltie. The rule is not intended to apply to contingency arrangements in statutory fee-shift cases involving public policy concerns, such as employment discrimination claims. Instead, the rule is intended to apply to contingency agreements which subtract a percentage of the client's recovery for attorney fees.

The purpose of the rule is to avoid overreaching by attorneys in contingency cases. In Petitioner's case, there was no occasion for overreaching on Doltie's part because the contingency arrangement called for the Commission to determine the reasonable fees if the case was decided in Petitioner's favor. According to the agreement, the amount of attorney fees recoverable by Petitioner would not be dependent in any way on the amount of Petitioner's recovery. Therefore, we hold that the contingency agreement is enforceable and the lodestar amount determined by the hearing officer should be enhanced.

The Florida Supreme Court has recognized that the lodestar fee can be adjusted upward or downward for both a contingency risk factor and a "results obtained" factor. Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828, 831 (Fla. 1990); Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla. l985j. The court noted that "in adjusting the fee based upon the success of the litigation, the court should indicate that it has considered the relationship between the amount of the fee award and the extent of success." Rowe, 472 So.2d at 1151.

Here, we find that the hearing officer has considered the success of Petitioner's attorney by noting that it was Doltie's professional services that "undoubtedly resulted" in a finding of employment discrimination, with the Respondent being directed to employ Petitioner. The hearing officer stated, that "based on the results achieved, a contingency fee of one-half again the billed rate would have been reasonable." (RO. 2/21/91, 7, para. 18).

In Quanstrom, the Court identified Blanchard v. Bergeron, 109 S. Ct. 939 (1989), as the standard for determining attorney fees in public enforcement cases involving civil rights issues. In Blanchard, the United States Supreme Court held that attorney fees awarded under a fee-shifting civil rights statute are not limited to the amount specified in contingency fee arrangements between prevailing parties and their attorneys. In its ruling, the Court distinguished civil rights cases in which plaintiffs seek to vindicate civil and constitutional rights important to society as a whole, from private tort liability suits in which the outcomes benefit "only the individual plaintiffs whose rights were violated." Id. at 945. The Court cites this distinction, and the intention of Congress to encourage successful civil rights litigation, as its rationale for creating the Blanchard standard, which grants discretion to the trial judge in determining what the reasonable fee should be. 2/

Based on the Blanchard standard and the determination by the hearing officer that a fifty percent enhancement "would have been appropriate," we now order Respondent to pay Petitioner reasonable attorney fees as calculated above; plus a fifty percent enhancement applied to the 154.1 hours Doltie spent on the

discrimination case up to and including the appeal. Doltie will be compensated at $150 per hour, with no enhancement, for the 13.5 hours spent litigating the attorney fees and costs issues.

Third, Petitioner excepted to the hearing officer's failure to provide compensation for the work Petitioner performed as a law clerk for Doltie on Petitioner's case. We agree with the hearing officer's conclusion that Petitioner should not recover for the work he performed on his own case. The hearing officer found that the records were insufficient to substantiate Petitioner's work and that some of the time Petitioner listed for conferences had also been compensated for at Doltie's rate. Based on these findings of fact, we uphold the hearing officer's conclusion that Petitioner may not be compensated for "law clerk" time.

Findings of Fact

Except as modified above with respect to enforcement of the contingency agreement between Petitioner and Doltie and enhancement of the reasonable attorney fees, we adopt the hearing officer's Findings of Fact.

Conclusions of Law

Except as modified above with respect to the award of costs for normal office expenses, enforcement of the contingency agreement between Petitioner and Doltie and enhancement of the reasonable attorney fees, we adopt the hearing officer's Conclusions of Law.

Remedy

Respondent is hereby ordered to pay Petitioner James J. Weaver costs and attorney fees in the following amounts:

COSTS: $ 510.30 (court reporter fee for transcript of 9/9/90 evidentiary hearing)

TOTAL COSTS: $ 510.30

ATTORNEY FEES: $ 3,750.00 (Jerry Traynham)

$ 1,050.00 (Edward Stafman)

$27,451.50 (Curley Doltie)

TOTAL FEES: $32,251.50

TOTAL: $32,761.80

The Commission reserves jurisdiction over the amount of outstanding attorney fees. If the parties have reached a proposed settlement regarding the amount of attorney fees owed to Traynham for time spent after the December 20, 1990 DOAH hearing and up to and including the completion of deliberation before this panel within 30 calendar days from the date of filing of this Order, the parties shall prepare and submit a Joint Stipulation of Settlement for Amount of Attorney's Fees for consideration by the Commission. If the parties are unable to reach an agreement regarding the amount to be awarded within 30 calendar days from the date of this Order, Petitioner shall file an affidavit with the Clerk of the Commission within 20 calendar days stating the reasonable number of hours

spent by Traynham after the December 20, 1990 DOAH hearing and Respondent shall have 20 calendar days from service of Petitioner's affidavit to file a countervailing affidavit.

ORDERED this 16th day of July 1991.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Marc C. Little; and Commissioner John W. Robertson.

Commissioner Ronald P. Townsend, Chairperson, concurring in part and dissenting in part. I concur in the opinion set forth by my colleagues except with respect to the issue of enhancement. I would enhance Doltie's fees by fifty percent for the 13.5 hours spent litigating the attorney fees and cost issues, as well as for the 154.1 hours spent up to and including the appeal.

ENTERED this 16th day of August 1991 in Tallahassee, Florida.

Margaret A. Jones

Clerk of the Commission

ENDNOTES

1/ Petitioner requested clarification on the issue of attendant fringe benefits, which the Commission granted to Petitioner in its May 16, 1988 Order. The Commission responded that the issue had been ruled upon by the Florida First District Court of Appeal when it reversed the portion of the Commission' s Order awarding Petitioner back pay.

2/ In Quanstrom, the Florida Supreme Court distinguished the Blanchard standard from the standard set by the Court in Delaware- valley, which imposes, "as a general rule," a one-third limit on enhancement of lodestar amounts in cases involving contingency agreements. Delaware Valley, 107 S. Ct. at 3089.

COPIES FURNISHED:

Jerry Traynham, Attorney for Petitioner

C. Graham Carothers, Attorney for Respondent Stephen F. Dean, DOAH Hearing Officer

Anita Hartman/Dana Baird, Legal Advisors for Commission Panel

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

JAMES J. WEAVER, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

v. CASE NO.: 91-2920

DOAH CASE NO.: 90-5301F

SCHOOL BOARD OF LEON COUNTY,

Appellee.

/ Opinion filed September 14, 1993.

An Appeal from an order of the Department of Human Relations.

Jerry G. Traynham of Patterson and Traynham, Tallahassee, for Appellant.

C. Graham Carothers and Kevin J. Carroll of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Appellee.

SMITH, J.

Appellant, James J. Weaver (hereinafter Dr. Weaver or Weaver) appeals a final order of the Florida Commission on Human Relations (FCHR or Commission). The School Board of Leon County (Board) cross-appeals. Finding no reversible error, we affirm both as to the appeal and the cross-appeal.

This is the second appearance of this case before this court. In School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990), we affirmed in all respects, except one, the FCHR's administrative order which found that the Board had committed an unlawful employment practice in violation of sections 760.01-.10, Florida Statutes (1985), the "Human Rights Act of 1977," by failing to hire Dr. Weaver for a full-time position, and which ordered the Board to offer to Weaver the next available full-time position for which he was qualified. 1/ We declined, however, to approve that portion of FCHR's order awarding back pay, because Dr. Weaver presented no evidence below with respect to his economic damages caused by the Board's discriminatory actions. We therefore affirmed in part and reversed in part, and remanded with directions to the Board to reinstate the hearing officer's recommended order, which did not award back pay. 556 So.2d at 444.

On remand to the FCHR, Dr. Weaver sought, unsuccessfully, to have the Commission to reopen the proceedings and to allow him to present evidence of his economic damages. The Commission declined. Instead, the Commission confined

its further action to a hearing, pursuant to a reservation of jurisdiction contained in its final order, to establish the amount of costs and attorney's fees to be awarded to Weaver and his counsel.

On appeal, Weaver contends that the Commission's refusal to consider his economic damage claims on remand resulted from the Commission's misinterpretation of this court's opinion in the prior appeal. He also maintains that the Commission's award of attorney's fees was in error because the Commission applied a contingency risk multiplier of one and one-half, rather than two, and because the award failed to include compensation for delay in the receipt of attorney's fees for the services rendered by Weaver's counsel in this prolonged litigation. For reasons briefly explained below, we reject these contentions.

As for the cross-appeal, the Board maintains, first, that the FCHR erred in applying a multiplier to enhance Weaver's attorney's fee because Weaver's agreement with his principal attorney, Mr. Doltie, was contingent, but not in writing, and was thus unenforceable under Rule 4-1.5(f)(1), (2), Rules Regulating the Florida Bar. As authority for the latter point appellant relies upon the decision of the federal district court in FIGA v. R.V.M.P. Corp., 681

F. Supp. 806 (S.D. Fla. 1988). In a second point on cross-appeal, the Board also contends that the addition of a multiplier to the attorney's lodestar fee was error because enhancement by the use of a multiplier is not permitted in public policy cases. We disagree also with the Board's contentions on cross- appeal.

Addressing first the issues on cross-appeal, we note that the Board in its brief acknowledges that this court, in Ganson v. State, Department of Administration, 554 So.2d 522 (Fla. 1st DCA 1989)(Ganson I), reversed on other grounds, Department of Administration v. Ganson, 566 So.2d 791 (Fla.

1990)(Ganson II), ruled contrary to the decision in FIGA, supra. In Ganson I, this court approved and adopted as its own a hearing officer's ruling rejecting the application of the FIGA decision in a case, similar to the one before us, in which the attorney's agreement with his client called for the attorney to seek recovery of fees from the opposing party. More recently, the Third District in Harvard Farms, Inc. v. National Casualty Company, 617 So.2d 400 (Fla. 3d DCA 1993), has disapproved the premise upon which the FIGA court relied. In FIGA, the court held that because an oral contingency fee agreement was in violation of the rules regulating the Florida Bar, an oral contingency fee agreement was invalid and unenforceable. The Harvard court declined to follow FIGA because the Bar rules provide that a violation of the rules should not give rise to a cause of action nor should a violation create a presumption that a legal duty has been breached. We agree with the Harvard court's resolution of this issue, and therefore reject the Board's contention here that Weaver's counsel's oral contingency fee agreement is unenforceable.

The second point on cross-appeal is more troublesome. Nevertheless, we are inclined to the view that the Commission's award of attorney's fees based on a multiplier of one and one half of the lodestar fee was within the Commission's discretion. We acknowledge some difficulty in finding a clear direction from the decided cases with respect to the use of a contingency fee multiplier in public interest cases. Perhaps the most concise and definite explication of the

guiding principles, so far as is pertinent here, is found in Mr. Justice Overton's specially concurring opinion in Lane v. Head, 566 So.2d 508, 513 (Fla. 1990), in which he wrote:

In establishing the three categories of attorney's fees in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), we rejected the general use of a contingency multiplier in categories I and III, yet approved a contingency multiplier for the prevailing party in category II, which deals with contract and tort cases. We declined to permit the multiplier's use in category I, which concerns public interest cases, except in the limited circumstances allowed under the principles enunciated by the United States Supreme Court in Blanchard v. Bergeron, 489 U.S. 87, 109 S. Ct. 939,

103 L. Ed. 2d 67 (1989), and Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987). I note that the use of a multiplier in this category is severely restricted and that "'no enhancement for risk is appropriate unless the applicant can establish that without an adjustment for risk the prevailing party "would have faced substantial difficulties in finding counsel in the local or other relevant market."'" Quanstrom, 555 So.2d at 832 (quoting

Delaware Valley, 483 U.S. at 733, 107 S. Ct. at 3090 (citation omitted)) 2/

In accordance with the views expressed by Justice Overton, who authored Quanstrom for the court, we conclude initially that to the extent the present litigation falls into the "public interest" category, the testimony of Dr.

Weaver, his attorney and his expert witnesses satisfactorily met the criteria required for enhancement by demonstrating that without an adjustment for risk he would have faced substantial difficulties in finding counsel in the local or other relevant market.

Without question, a legal proceeding aimed at vindication of rights under the Florida Human Rights Act of 1977 falls neatly into the "public interest" category, that is, Category I. At the same time, the relief sought in a given case may be such that vindication of both public and private wrongs is involved. See e.g., D & A Excavating Service, Inc. v. J. I. Case Company, 555 So.2d 1256, 1258 (Fla. 4th DCA 1989)(on rehearing)(action brought under misleading advertising statute, sections 817.40 and 817.41, Florida Statutes (1987) contemplates both public and private vindication); Meli Investment Corp. v. O. R., 18 Fla. Law Weekly D1557 (Fla. 3d DCA July 6, 1993)(case was public policy enforcement case to the extent tenants' counterclaim was based on AIDS discrimination statute, section 760.50, Florida Statutes (1991), but landlord's complaint raised breach of contract issues falling under Quanstrom's category II). We think the instant case may also be accurately described as a Category II case, in which a contingency risk multiplier may be employed.

Here, as noted by the hearing officer below, Dr. Weaver initially sought broad relief, including recovery of economic damages. For reasons explained in our earlier opinion, this claim partially failed. Weaver, 556 So.2d at 445.

However, the legal proceedings clearly resulted in personal and economic benefit to Dr. Weaver in that the Board was ordered to hire him in a full-time teaching position. We think this qualifies as vindication of a private wrong. This is especially so in view of the record which reflects that Dr. Weaver already had a significant employment history with the Board, 3/ but because of the discriminatory actions of the Board was being denied a full-time position. It is true that Weaver had no contractual right to a full-time position with the Board. Cf. Greseth v. Department of Health & Rehabilitative Services, 604 So.2d 530 (Fla. 4th DCA 1992)(career service appeal under Chapter 447, Florida Statutes (1991) is an employment contract claim, and a contingent fee multiplier within Quanstrom category II was not inappropriate). Nevertheless, based upon his qualifications and experience, including his past employment by the Board itself, Dr. Weaver had a reasonable expectation of employment different from the ordinary member of the public who might initiate a challenge to the hiring policies and practices of the Leon County School Board. To this extent, at least, Dr. Weaver's legal action more closely resembles an attempt at vindication of wrongs of a personal and private nature. As illustrated by the issue addressed by the court in Lane v. Head, supra, not all cases will fall precisely into one or the other of the three Quanstrom categories. "Different types of cases require different criteria to achieve the legislative or court objective in authorizing the setting of a reasonable attorney's fee."

Quanstrom, 555 So.2d at 828. Accordingly, we find that the Commission did not depart from the discretion vested in it by statute, section 760.01, Florida Statues (1985), to award "reasonable attorney's fees," by applying a contingency multiplier of one and one-half to the lodestar fee.

Turning now to the issues raised by appellant, we conclude that the Commission did not depart from the decision and mandate of this court on remand following the prior appeal. In our Weaver opinion, we clearly pointed out that Dr. Weaver presented no evidence at the section 120.57(1) hearing relating to his economic damages, and that the Commission's action in reopening that hearing and ordering the payment of economic damages was without authority. 556 So.2d at 445. We concluded our opinion with directions to the Commission to reinstate the hearing officer's order, which, as previously noted, denied recovery of any economic damages because of the absence of proof. The denial of recovery of back wages and other monetary entitlements was therefore final, and governed by the "law of the case" doctrine, so that, as the Commission itself determined on remand, these economic issues could not be revisited. See, Thornber v. City of Fort Walton Beach, 18 Fla. L. Weekly D1732 (Fla. 1st DCA August 4, 1993).

Appellant's second point on appeal is likewise without merit. The Commission had before it the hearing officer's recommended order in which he found that a contingency multiplier, if it could be applied, should be one and one-half of the lodestar fee. The Commission disagreed with the hearing officer's conclusion that because the contingency fee agreement was oral, it could not be recognized as valid. The Commission did agree, however, with the hearing officer's recommendation that, if applicable, a multiplier of one and one-half of the lodestar was appropriate. In view of the non-mandatory nature of the multiplier, and the discretion vested in the Commission with respect to its use, appellant's argument that a multiplier of two should have been used is not well taken. See, Ganson II, supra (use of contingency risk multiplier not automatically required where attorney has entered into contingent fee agreement).

Finally, with respect to appellant's third point on appeal, we agree with the Commission's observation that while the court in Pennsylvania v. Delaware Valley Citizens' Council for Clear Air, 483 U.S. 711, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987), recognized the need for consideration of compensation for delay in receipt of contingency fee awards, the court nevertheless failed to specify any particular delay factor to be taken into account in awarding contingent fees. In the case before us the Commission, finding that the hearing officer's determination of reasonable hourly rates and reasonable hours expended in the litigation was based on competent substantial evidence, adopted the hearing officer's calculations. 4/ On the record before us we are unable to conclude that an abuse of discretion has been shown with respect to the Commission's failure to compensate Weaver for any delay in receipt of attorney's fees.

For the foregoing reasons, the order on appeal is in all respects, AFFIRMED.

ERVIN AND BARFIELD, JJ., CONCUR.

ENDNOTES

1/ Dr. Weaver holds a bachelor's degree and a master's degree from a North Carolina institution, and a Ph.D. from Florida State University. He has been fully certified to teach social studies, and has taught in schools and colleges both in North Carolina and Florida, including schools under the jurisdiction of the Leon County School Board.

2/ It will be recalled that Quanstrom described three general categories of cases relevant to the application of a contingency fee multiplier: Category I - public policy enforcement cases; Category II - tort and contract cases; and Category III - family law, eminent domain, and estate and trust proceedings.

555 So.2d at 833-835.

3/ Dr. Weaver served as a substitute teacher in the Leon County School System from 1979 until 1985. He held a temporary position with the board from November 1984 until March 1985. With a master's degree in social studies he was qualified to teach social studies in Florida schools, and he had significant teaching experience.

4/ The evidence as to a reasonable hourly rate was conflicting. The hearing officer arrived at an hourly rate of $110 per hour for most of Mr. Doltie's work, and $150 per hour for the last 13 hours expended. No issue is presented on appeal as to fees awarded to other counsel involved in the proceedings below.

Docket for Case No: 90-005301F

Orders for Case No: 90-005301F