STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ABNER REYES, )

)

Petitioner, )

)

vs. ) Case No. 07-1696F

) MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

On February 13, 2007, the undersigned issued a Recommended Order in DOAH Case No. 06-1208, recommending "that [in accordance with Section 1012.33(6)(a), Florida Statutes] the School Board issue a final order reinstating [Abner Reyes to his teaching position] with back pay and dismissing the charges against him." On March 14, 2007, the School Board issued a Final Order adopting the undersigned's recommendation.

On April 12, 2007, Mr. Reyes filed a Motion for Hearing on Determination of Entitlement to Attorney's Fees incurred by him in DOAH Case No. 06-1208 (Motion), asserting therein that he was entitled to be awarded these fees "pursuant to Section 57.105, Florida Statutes." The Motion's Certificate of Service reflected that a copy of the Motion was served on the School Board that same day (April 12, 2007) by facsimile transmission.

On April 25, 2007, the School Board filed a Response to Abner Reyes' Motion for Hearing on Determination of Entitlement to Attorney's Fees. In its response, the School Board contended, among other things, that Mr. Reyes was not entitled to the fee award he was seeking because he had failed to comply with the "procedural requirements" of Subsection (4) of Section 57.105, Florida Statutes, which provides as follows:

A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

On April 25, 2007, the undersigned issued an order directing Mr. Reyes to file a reply responding to the School Board's contention that no Section 57.105 fee award could be made in the instant case as a result of Mr. Reyes' failure to have complied with the "procedural requirements" of Subsection

(4) of the statute.

Mr. Reyes filed his reply on May 9, 2007. In his reply, he suggests that he should not "be denied his right to recover attorney's fees" based on a "mere technicalit[y] and procedural impropriet[y]." He further argues he:

did not seek an award of attorney's fees "solely" pursuant to Florida Statute

§ 57.105, as [t]he School Board would have this tribunal believe. Rather, [he] sought an award of attorney's fees under the

statutes specifically referred to in his "Motion for Hearing on Determination of Entitlement to Attorney's Fees." As demonstrated therein, [he] sought an award of attorney's fees pursuant to, among other statutes, § 57.105, § 57.111, and

§ 120.52(1).

Subsection (4) of Section 57.105, Florida Statutes, provides a "safe harbor" from the reach of the fee-granting provisions of Subsections (1) and (3) of the statute. Its "primary purpose . . . is to give a pleader a last clear chance to withdraw a frivolous claim or defense within the scope of [S]ubsection (1) or to reconsider a tactic taken primarily for the purpose of unreasonable delay under [S]ubsection (3)." Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So. 2d 66, 70 (Fla. 1st DCA 2006); see also O'Daniel v. Board of Commissioners of Monroe County, 916 So. 2d 40, 41 (Fla. 3d DCA 2005)("Subsection four of the statute illustrates the legislature's intent to give a party an opportunity to retract a frivolous 'paper, claim, defense, contention, allegation, or denial' before the opposing party can file a motion for section

57.105 fees."); and Maxwell Building Corp. v. Euro Concepts, L.L.C., 874 So. 2d 709, 711 (Fla. 4th DCA 2004)("The primary purpose of section 57.105(4) is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a last clear chance to withdraw a frivolous claim or defense within the scope of [S]ubsection (1)

or to reconsider a tactic taken primarily for the purpose of unreasonable delay under [S]ubsection (3). Having the parties police themselves, instead of requiring judicial intervention on [s]ection 57.105 issues, promotes judicial economy and minimizes litigation costs.").

The failure to comply with Section 57.105's 21-day notice requirement is not a "mere technicality." Rather, it is fatal to a litigant's request for relief under the statute. See Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007)("The appellee failed to comply with the requirements of section 57.105(4). Therefore, the trial court erred in granting attorney's fees under section 57.105."); and O'Daniel, 916 So. 2d at 41 ("[T]he motion for fees was served and filed following the conclusion of the trial on the merits. Thus, the appellee was never given an opportunity to retract or amend its defenses. Therefore, the motion for attorney's fees was untimely and properly stricken.").

Before a litigant can file a motion for fees under Section 57.105, Florida Statutes, the litigant must serve a copy of the motion on the opposing party and wait 20 days. If, and only if, the opposing party has not taken corrective action by the end of this 20-day "safe harbor" period may the motion then be filed.

To state the obvious, a motion for fees under Section 57.105

cannot be entertained if, before a copy of the motion was served on the opposing party, corrective action had already been taken.

That is exactly what happened in the instant case. It was only after the School Board had already entered its Final Order reinstating him with back pay and dismissing the charges against him that Mr. Reyes first served the School Board with a copy of his Motion. Because the School Board had taken this corrective action before having been served with a copy of the Motion, even if Mr. Reyes had not filed the Motion the same day he served a copy on the School Board and instead waited 20 days before filing it, the undersigned would still not have the authority to award Mr. Reyes fees pursuant to Section 57.105, Florida Statutes.

While Mr. Reyes may have intended, through his Motion, to seek fees pursuant to "other statutes" besides Section 57.105, Florida Statutes, including Section 57.111, Florida Statutes (known as the " Florida Equal Access to Justice Act"), and Section 120.52(1), Florida Statutes, he did not express this intent in his Motion.

He did, in paragraph 21 of his Motion, recite the language found in Section 57.111(2), Florida Statutes. In the very next paragraph, however, he observed, correctly, that Section 57.111 was "legislatively enacted to protect small businesses, and not individuals such as [himself]." Not being a "small business

party," within the meaning of Section 57.111, he is not entitled to fees under this statute. See Daniels v. Florida Department

of Health, 898 So. 2d 61, 69 (Fla. 2005)("Because the Department's complaint was filed against Daniels individually, she does not fall within either definition of a 'small business party' contained in section 57.111(3)(d)1. Therefore, she is not entitled to attorney's fees and costs under the Florida Equal Access to Justice Act."); Florida Real Estate Commission v. Shealy, 647 So. 2d 151, 152 (Fla. 1st DCA 1994)("Section

57.111 authorizes an attorney's fee for a qualifying small business party, which must be a corporation, a partnership, or a sole proprietor of an unincorporated business. This does not encompass individual employees. . . . The appellee was not a small business party as defined by the statute, and he thus should not have been awarded a section 57.111 attorney's fee.")(citations omitted); and Thompson v. Department of Health and Rehabilitative Services, 533 So. 2d 840, 841 (Fla. 1st DCA 1988)("We reject Thompson's contention that a state employee involved in a regulatory proceeding to determine his eligibility for continued employment is entitled to the protection of this act, and affirm. . . . In this case, the hearing officer correctly found that Thompson did not fall within the statutory definition of 'small business party.' There is no evidence to support Thompson's contention that he is the sole proprietor of

an unincorporated business, nor does he fit within the definition of partnership or corporation. Rather, the evidence shows that Thompson is a state employee employed on a salaried basis by the Florida State Hospital. By definition, the Florida Equal Access to Justice Act does not apply to individual employees such as Thompson.").

In paragraph 23 of his Motion, Mr. Reyes recited the language of Subsection (5) of Section 57.105, Florida Statutes, which contains a reference to Section 120.52(1), Florida Statutes. Nowhere else in the Motion is Section 120.52(1) mentioned. In any event, Section 120.52(1) merely defines the term "agency," as it is used in Chapter 120, Florida Statutes. It does not confer any authority to award attorney's fees.

In the penultimate paragraph of his May 9, 2007, reply, Mr.

Reyes maintains that "it would be inequitable and unjust for [t]he School Board . . . to avoid paying [him] the attorney's fees and costs incurred in connection with his successful defense of [t]he School Board's wrongful actions. "

Regardless of how "inequitable and unjust" it may be for Mr. Reyes not to be reimbursed his attorney's fees and costs, the undersigned is powerless to order such reimbursement absent a statutory provision authorizing him to do so. See S. T. v.

School Board of Seminole County, 783 So. 2d 1231, 1233 (Fla. 5th DCA 2001)("Unless created by the constitution, an administrative

agency has no common law powers, and has only such powers as the legislature chooses to confer upon it by statute."); and Department of Environmental Regulation v. Puckett Oil Co., 577 So. 2d 988, 991 (Fla. 1st DCA 1991)("It is well recognized that the powers of administrative agencies are measured and limited by the statutes or acts in which such powers are expressly granted or implicitly conferred."). Mr. Reyes has not cited any statutory provision giving the undersigned the authority to award him fees and costs under the facts alleged in his Motion. Accordingly, the Motion is hereby DIMISSED.

DONE AND ORDERED this 14th day of May, 2007, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 14th day of May, 2007.

COPIES FURNISHED:

Jean Marie Middleton, Esquire Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Bruce G. Hermelee, Esquire Lynn L. Audie, Esquire Hermelee & Geffin, LLC

101 Northeast Third Avenue, Suite 1110 Fort Lauderdale, Florida 33301

Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Jeanine Blomberg

Interim Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order of Dismissal 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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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: 07-001696F

Orders for Case No: 07-001696F