STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN F. PHILLIPS, PH.D., )

)

Petitioner, )

)

vs. ) Case No. 99-0129FC

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Respondent, )

)

FINAL ORDER

This cause came on for consideration by Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, pursuant to an August 28, 1998, Order of the First District Court of Appeal.

APPEARANCES

For Petitioner: M. Christopher Bryant, Esquire

Oertel, Hoffman, Fernandez & Cole, P. A.

Post Office Box 1110 Tallahassee, Florida 32302-1110

For Respondent: Laura McCarthy, Esquire

Division of Real Estate Department of Business

and Professional Regulation

400 West Robinson Street Orlando, Florida 32801-1772

STATEMENT OF THE ISSUES

1. What amount of appellate fees and costs in accordance with Phillips v. Department of Business and Professional

   Regulation, 1st DCA Case No. 97-0356, are to be awarded to Petitioner?

   
   

2. Is Petitioner entitled to attorney's fees and costs incurred in the instant proceeding before the Division of Administrative Hearings for the period January 6, 1999, through April 1999, and if so, in what amounts?

   PRELIMINARY STATEMENT

   
   

   This case appeared before the Division of Administrative Hearings through Petitioner's Motion for Determination of Amount of Appellate Attorney's Fees and Costs, filed January 6, 1999, and brought pursuant to an Order of the First District Court of Appeal, which determined Petitioner's entitlement and remanded the cause to the Division to determine the amount of appellate fees and costs.

   Respondent, Department of Business and Professional Regulation, Division of Real Estate, filed no response in opposition to the Motion, and it appearing that the attorney's fees and costs sought by Petitioner were related solely to events occurring after the Final Order had been entered by the Respondent and were merely the appellate fees and costs previously mandated by the District Court, the undersigned entered an Order on February 22, 1999, which granted Respondent ten (10) days in which to show cause why the amount of attorney's

   fees and costs to be awarded should not be determined solely upon the papers of record.

   Respondent did not avail itself of this opportunity to dispute the amount of appellate fees and costs claimed. Rather, on February 26, 1999, Respondent filed a Motion to Dismiss.

   The Motion to Dismiss asserted that because Petitioner's original Motion for Fees and Costs, filed March 5, 1998, before the First District Court of Appeal had not been served on the Department of Insurance, the claim for appellate fees and costs was now barred by Section 284.30, Florida Statutes.

   Petitioner's Response in Opposition to the Motion to Dismiss was filed on March 9, 1999.

   Respondent's Reply to the Response was filed on March 25, 1999.

   Petitioner's Objection to Respondent's Reply to Petitioner's Response to Motion to Dismiss was filed April 1, 1999.

   An Order entered April 21, 1999, denied the Motion to Dismiss. That Order contained a considered analysis of the parties' respective positions and cited the legal authorities upon which the undersigned relied. It also, provided:

   1. Respondent is granted ten (10) days from instant date in which to file any written argument challenging or refuting the itemized costs and attorney's fees listed in Exhibits

      1 and 2 of Petitioner's Motion to Determine Amount of Appellate Attorney's Fees and Costs. The challenge or refutation shall be limited to those charges' eligibility as appellate attorney's fees and/or costs, pursuant to Rule 9.400, Fla. R. App. P.

   2. Petitioner is granted ten (10) days from the date of service of Respondent's argument in which to file a written response with the Division of Administrative Hearings.

      
      

   3. No further argumentation, written or oral, will be permitted.

On May 13, 1999, Respondent's Reply to Denial of Motion to Dismiss and Order for Future Filings was filed. Petitioner's Response thereto was actually filed on May 11, 1999, before Respondent's Reply, and included a Notice of Filing Affidavit.

Respondent's Reply stated that Respondent did not challenge or refute the itemized costs and attorney's fees listed in Exhibits 1 and 2, totaling $17,392.81, of Petitioner's January 6, 1999, Motion to Determine Amount of Appellate Attorney's Fees and Costs. It simply reasserted Respondent's position with regard to Section 284.30, Florida Statutes.

Petitioner's Response to the Reply noted that Petitioner's initiating January 6, 1999, Motion also had requested assessment of attorney's fees and costs incurred before the Division in the instant proceeding to collect the appellate fees and costs.

Petitioner attached an affidavit and itemization to his Reply, whereby he sought $1,950.00 in attorney's fees and $69.12 in costs incurred by Petitioner in the instant proceeding.

Petitioner asserted that the issue with regard to whether or not Section 284.30, Florida Statutes, acts as a bar to the award of appellate fees and costs had been resolved by the April 21, 1999, Order herein. However, in what appears to be an abundance of

caution, Petitioner simultaneously served the Department of Insurance with a copy of its Response and its attachments seeking fees and costs for the collection of appellate fees and costs before the Division.

Thirty days have passed since the filing and service of Petitioner's Response, affidavit, and itemization, and the Department of Insurance has not sought to intervene. Moreover, no challenge to the fees and costs claimed by Petitioner for services before the Division during the instant proceeding has been filed by Respondent Department of Business and Professional Regulation.

FINDINGS OF FACT

1. This is not an appeal of a non-final order wherein the Petitioner must also prevail on the merits in a trial upon remand in order to be entitled to recover appellate attorney's fees and costs. This Petitioner prevailed on the merits at the appellate level, so no remand for retrial on the merits was necessary.

2. The District Court has already determined that Petitioner is entitled to appellate attorney's fees and costs and has delegated to the Division the task of determining the amount thereof.

3. Petitioner's attorney's affidavit and itemization claims

   
   

   $16,221.00 in appellate fees and $1,171.81 in appellate costs.

   
   

4. Regardless of Respondent's failure to challenge or refute Petitioner's $16,221.00 itemization and affidavit of

   appellate fees, the undersigned understands the August 28, 1998, Order of the First District Court of Appeal to only permit the undersigned to determine the amount of the claimed appellate fees as appropriate under the rules and case law.

5. Petitioner's affidavit and itemization of appellate attorney's fees is in order and complies with all necessary rules. All amounts claimed appear reasonable and necessary to the successful appeal, with the exception of those attorney's fees claimed for work performed prior to August 25, 1997. Apparently, work solely directed to the appeal began on that date.

6. Paragraphs 3 and 4 of the affidavit address legal work done prior to August 25, 1997. This legal work involved Petitioner's Motion for Rehearing, Reconsideration, and Dismissal and Alternative Request for Referral for Administrative Proceeding and Alternative Motion for Stay Pending Appeal and an appearance by counsel before the Florida Real Estate Commission. All such legal work predates any time devoted to the Notice of Appeal to the First District Court of Appeal. This legal work, while valuable to the Petitioner, is not appellate in nature and was not performed before the First District Court. Therefore, the attorney's fee charges totaling $3,045.00 for this period of time must be disallowed.

7. The remaining $13,026.00 in claimed appellate attorney's fees should be allowed and is both reasonable and necessary

   within the parameters established by Rule 4-1.5 of the Rules of Professional Conduct of The Florida Bar and the test established in Florida Patient's Compensation Fund v, Rowe, 472 So. 2d 1145 (Fla. 1985).

8. Regardless of Respondent's failure to challenge or refute Petitioner's $1,171.81 itemization and affidavit of appellate costs, the undersigned understands the August 28, 1998, Order of the First District Court of Appeal to only permit the undersigned to determine the amount of the recoverable appellate costs as appropriate under the limitations of Rule 9.400 Fla.R.App.P.

9. Rule 9.400 Fla.R.App.P. provides, in pertinent part:

   
   

   1. . . . Taxable costs shall include

      1. fees for filing and service of process;

      2. charges for preparation of the record;

      3. bond premiums; and

      4. other costs permitted by law

         
         

10. Petitioner has cited no statutes specifically authorizing the itemized costs.

11. Applying the foregoing rule to Petitioner's itemization and affidavit of appellate costs, I find that the only cost claims that are recoverable appellate costs are:

    09/04/97	Stenographer/Court Reporter August Mtg. of FREC	$ 77.00
    09/30/97	Filing Fee	$250.00
    11/01/97	Printing (presumably of appellant's initial brief)	$ 11.25

    03/04/97 Printing (presumably of

    appellant's reply brief)

    
    

    $ 73.00

    
    

    $411.25

    
    

12. Petitioner has also asserted a claim of $1,950.00 in attorney's fees and $69.12 in costs accrued between January 6, 1999, and April 1999, before the Division in this instant proceeding to determine the amount of appellate fees and costs.

13. Respondent has been on notice that such a claim for this proceeding before the Division has been pending since the January 6, 1999, Motion.

14. That Motion stated that Petitioner "continues to compensate his attorneys at the rate of $150.00 per hour, plus costs, for efforts in attempting to establish the amount of attorney's fees and costs recoverable by him and seeking recovery thereof from DBPR." I infer therefrom that the benefits of this "collection" proceeding ultimately inures to Petitioner.

15. Petitioner only filed his attorney's affidavit and itemization of amounts claimed on May 11, 1999, when they were included with Petitioner's Response to Respondent's Reply to the April 21, 1999, Order herein, together with notice to the Department of Insurance of the claim for fees and costs for this "collection" proceeding.

16. Respondent has not filed any objection or challenge to the affidavit and itemization for legal work and costs before the Division.

17. The Department of Insurance has never attempted to intervene herein.

18. Upon consideration of the pleadings, affidavit, itemization and record, I find that the amounts claimed for this "collection" proceeding before the Division are reasonable and, apparently, unopposed, even by the Department of Insurance, which has had 30 days in which to intervene but which has not done so.

19. Petitioner is entitled to $1,950.00 in attorney's fees and $69.12 in costs for this proceeding to collect appellate attorney's fees and costs.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction of this cause pursuant to the remand of the First District Court of Appeal.

21. When an appellate court remands a case to the trial court to determine the amount of appellate attorney's fees, the trial court may only determine the proper amount of fees and not the issue of entitlement to fees. See Hernstadt v. Brickel Bay Club Condominium Association, Inc., 602 So. 2d 967 (Fla. 3d DCA 1992).

22. The April 21, 1999, Order of Denial of Respondent's Motion to Dismiss and Order for Future Filings is adopted and incorporated herein by reference because it addresses Respondent's argument based on Section 284.30, Florida Statutes, which was renewed in Respondent's May 13, 1999, Reply. In short,

    Section 284.30, Florida Statutes, either does not apply in the circumstances of this case and/or it has been waived by Respondent as to the appellate fees and costs.

23. To the degree that Section 284.30, Florida Statutes, could affect the prayer for reimbursement of attorney's fees and costs incurred by Petitioner in this instant proceeding before the Division, the statutory requirement has been met by the Petitioner's Notice to the Department of Insurance served

    May 11, 1999, and the Department of Insurance's subsequent failure to intervene herein constitutes a waiver of any bar established by that statute.

24. The general test of whether or not fees and costs may be awarded for prosecuting a claim for fees and costs is that the award may be made if the ultimate benefit thereof inures to the client and not to the attorney. Compare Ganson v. State Department of Administration, Office of State Employees Insurance, 554 So. 2d 522 (Fla. 1st DCA 1989), reversed on other grounds in Department of Administration, Office of State Employees' Insurance v. Ganson, 566 So. 2d 791 (Fla. 1990)

    and EEZZZZ-On Trailers, Inc. v. Bankers Insurance Co.,

    
    

    619 So. 2d 470 (Fla. 2nd DCA 1993). Herein, Petitioner will derive some benefit by reimbursement, and therefore the claim for fees and costs during the "collection" action is valid.

25. Pursuant to the August 28, 1998, Order of the First District Court of Appeal and Rule 9.400 Fla.R.App.P., Petitioner

    is entitled to $13,026.00 in appellate fees and $411.25 in appellate costs.

26. Petitioner also is entitled to $1,950.00 in attorney's fees before the Division of Administrative Hearings and $69.12 in costs before the Division of Administrative Hearings.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED:

1. Petitioner is awarded and Respondent is directed to pay Petitioner $13,026.00 in appellate attorney's fees;

2. Petitioner is awarded and Respondent is directed to pay Petitioner $411.25 in appellate costs.

3. Petitioner is awarded and Respondent is directed to pay Petitioner $1,950.00 in attorney's fees for this proceeding.

4. Petitioner is awarded and Respondent is directed to pay Petitioner $69.12 in reimbursable costs for this proceeding.

DONE AND ORDERED this 16th day of June, 1999, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1999.

COPIES FURNISHED:

M. Christopher Bryant, Esquire Oertel, Hoffman, Fernandez

& Cole, P. A.

Post Office Box 1110 Tallahassee, Florida 32302-1110

Laura McCarthy, Esquire Division of Real Estate Department of Business

and Professional Regulation

400 West Robinson Street Orlando, Florida 32801-1772

Herbert S. Fecker, Division Director Division of Real Estate

Department of Business

and Professional Regulation

400 West Robinson Street Orlando, Florida 32801-1772

William Woodyard, General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Cynthia A. Henderson, Secretary Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

COURTESY COPY:

Rebecca Booker, Senior Attorney Department Of Insurance

Bureau of State Liability Claims Division of Risk Management

Larson Building

200 East Gaines Street Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of the notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 99-000129FC

Orders for Case No: 99-000129FC