The Issue The issue to be determined is whether Petitioner, Department of Environmental Protection (DEP), is entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, from Respondents, Bernard Spinrad and Marien Spinrad (Spinrads), and their counsel, related to litigation between the parties in DOAH Case No. 13-2254.
Findings Of Fact The Recommended Order in DOAH Case No. 13-2254, including the Preliminary Statement, the Findings of Fact, and the Conclusions of Law contained therein, and the Department of Environmental Protection’s Consolidated Final Order in OGC Case No. 13-0858 are incorporated herein by reference as the facts underlying this Final Order.
The Issue The issue for determination is whether Intervenors are entitled to reasonable attorney fees and costs pursuant to Section 120.595, Florida Statutes (2003).1
Findings Of Fact Petitioner is an insurer and carrier within the meaning of Subsections 440.02(4) and 440.02(38), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(w).2 Petitioner is licensed in the state as a workers' compensation insurance carrier (carrier).3 Respondent is a state agency within the meaning of Subsection 440.02(3), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(b). In relevant part, Respondent is responsible for resolving reimbursement disputes between a carrier and a health care provider. Intervenors are health care providers within the meaning of Subsection 440.13(1)(h), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(u). Each Intervenor is a health care facility within the meaning of Subsection 440.13(1)(g), Florida Statutes (2005). Intervenors seek an award of attorney fees and costs against Petitioner pursuant to Sections 57.105 and 120.595, Florida Statutes (2003). The proceeding involving Section 57.105, Florida Statutes (2003), is the subject of a separate Final Order entered on the same date as this Recommended Order. The scope of this Recommended Order is limited to Section 120.595, Florida Statutes (2003). Intervenors allege that Petitioner is the "non- prevailing adverse party" in an underlying proceeding and participated in the underlying proceeding for an "improper purpose" as the quoted terms are defined, respectively, in Subsections 120.595(1)(e)3. and 120.595(1)(e)1., Florida Statutes (2003). The underlying proceeding involves eight consolidated Petitions for Administrative Hearing. Petitioner filed each Petition for Administrative Hearing after Respondent determined Petitioner had improperly discounted the amount of reimbursement Petitioner paid for hospital services that Intervenors provided to eight patients from March 13, 2004, through February 11, 2005. From April 13 through May 23, 2005, Respondent issued separate orders directing Petitioner to pay the disputed amounts pursuant to Subsection 440.13(7), Florida Statutes (2005). From June 1 through June 21, 2005, Petitioner filed eight separate Petitions for Administrative Hearing. The eight petitions were subsequently consolidated into one underlying proceeding. Petitioner is the non-prevailing adverse party in the underlying proceeding. On December 8, 2005, Petitioner filed a Notice of Voluntary Dismissal in the underlying proceeding. On December 9, 2005, Intervenors filed their motion for attorney fees based on Section 120.595, Florida Statutes (2003). The formal hearing in the underlying proceeding was set for January 18, 2006. The ALJ amended the issue for the formal hearing to exclude the original reimbursement dispute and to limit the scope of the formal hearing to the fee dispute. The ALJ did so to avoid delay in the resolution of the proceeding. The fee dispute at issue in this proceeding includes only six of the original eight reimbursement disputes because Intervenors were not the medical providers in two of the original eight disputes.4 In the six reimbursement disputes involving Intervenors, Respondent ordered Petitioner to pay additional reimbursements in the aggregate amount of $54,178.52. Approximately $51,489.27 of the $54,178.52 in additional reimbursement involved inpatient hospital services provided to one patient.5 The remaining $2,689.25 in additional reimbursement involved outpatient hospital services in the emergency room.6 Subsection 440.13(12), Florida Statutes (2005), mandates that a three-member panel must determine statewide schedules for reimbursement allowances for inpatient hospital care. The statute requires hospital outpatient care to be reimbursed at 75 percent of "usual and customary" charges with certain exceptions not relevant to this proceeding. Notwithstanding the statutory mandate to schedule reimbursement rates for hospital inpatient services, the inpatient services at issue in the underlying proceeding were apparently unscheduled inpatient services. By letter dated April 13, 2005, Respondent ordered Petitioner to pay Intervenor, Holmes Regional Medical Center, Inc. (Holmes), an additional reimbursement in the amount of $51,489.27. The total reimbursement to Holmes was 75 percent of the charges that Holmes submitted to Petitioner for reimbursement.7 Respondent interprets Subsection 440.13(12), Florida Statutes (2005), to authorize reimbursement of both unscheduled inpatient hospital services and outpatient hospital services at the same rate. There is no dispute that Respondent reimburses unscheduled inpatient hospital services and outpatient hospital services at 75 percent of the "usual and customary" charges. The dispute in the underlying proceeding was over the meaning of the phrase "usual and customary" charges. Petitioner challenged the interpretation asserted by Respondent and Intervenors. Respondent and Intervenors contended that the quoted statutory phrase means Intervenors' usual and customary charges evidenced in a proprietary document identified in the record as the "charge master." Each Intervenor maintains its own charge master, and the information in each charge master is proprietary and confidential to each Intervenor. Petitioner asserted that the statutory phrase "usual and customary" charges means the usual and customary charges imposed by other hospitals in the community in which Intervenors are located. Petitioner maintains a data base that contains information sufficient to determine the usual and customary charges in each community. Petitioner did not participate in the underlying proceeding for an improper purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2003). Rather, Petitioner presented a good faith claim or defense to modify or reverse the then-existing interpretation of Subsection 440.13(12), Florida Statutes (2005). Petitioner had a reasonable expectation of success. The statutory phrase "usual and customary" charges is not defined by statute. Nor has the phrase been judicially defined. Respondent bases its interpretation of the disputed phrase on two agency final orders and relevant language in the Florida Workers' Compensation Reimbursement Manual for Hospitals (2004 Second Edition) (the Manual). The Manual is developed by the Florida Department of Financial Services (DFS).8 The Manual interprets the quoted statutory phrase to mean the "hospital's charges." However, after the effective date of the Manual in 2004, DFS developed a proposed change to the Manual that, in relevant part, interprets "usual and customary" charges to mean the lesser of the charges billed by the hospital or the median charge of hospitals located within the same Medicare geographic locality.9 The trier of fact does not consider the new interpretation of the disputed statutory phrase as evidence relevant to a disputed issue of fact. As Respondent determined in an Order to Show Cause issued on February 16, 2006, and attached to Intervenors' PRO, "what constitutes 'usual and customary' charges is a question of law, not fact." The ALJ considers the new interpretation proposed by DFS for the purpose of determining the reasonableness of the interpretation asserted by Petitioner in the underlying proceeding. The ALJ also considers the new DFS interpretation to determine whether the interpretation asserted by Petitioner presented a justiciable issue of law. Intervenors assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to initially explain its reduced reimbursement to Intervenors with one of the codes authorized in Florida Administrative Code Rule 69L-7.602(5)(n) as an explanation of bill review (EOBR). None of the EOBR codes, however, contemplates a new interpretation of the statutory phrase "usual and customary" charges. Intervenors further assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to respond to discovery. However, responses to discovery would not have further elucidated Petitioner's rule-challenge. Petitioner stated eight times in each Petition for Administrative Hearing that Florida Administrative Code Rule 69L-7.501, the DFS rule incorporating the Manual by reference: [S]hould be read to allow recovery of 75% of the usual and customary fee prevailing in the community, and not 75% of whatever fee an individual provider elects to charge. Respondent and Intervenors were fully aware of the absence of statutory and judicial authority to resolve the issue. Petitioner did raise at least one factual issue in each Petition for Administrative Hearing. Petitioner alleged that Respondent's decision letters ordering Petitioner to pay additional reimbursement amounts had no legal effect because Respondent acted before each provider requested and received the carrier's reconsidered reimbursement decision. The absence of a formal hearing in the underlying proceeding foreclosed an evidential basis for a determination of whether each provider in fact requested and received a reconsidered reimbursement decision before the date Respondent ordered Petitioner to pay additional reimbursements. In this fee dispute, Petitioner presented some evidence to support the factual allegation and thereby established the presence of a justiciable issue of fact. It is not necessary for Petitioner to present enough evidence to show that Petitioner would have prevailed on that factual issue in the underlying proceeding. If the letters of determination issued by Respondent were without legal effect, Petitioner would not have waived its objections to further reimbursement within the meaning of Subsection 440.13(7)(b), Florida Statutes (2005). A determination that Petitioner did, or did not, submit the required information is unnecessary in this proceeding. During the formal hearing in this proceeding, Petitioner called an expert employed by a company identified in the record as Qmedtrix. The testimony showed a factual basis for the initial reimbursement paid by Petitioner. It is not necessary for Petitioner to show that this evidence was sufficient to prevail on the merits in the underlying case. The evidence is sufficient to establish justiciable issues of fact in the underlying case. In this proceeding, Petitioner submitted some evidence of justiciable issues of fact in the underlying proceeding. Petitioner need not submit enough evidence in this fee dispute to show Petitioner would have prevailed on these factual issues in the underlying proceeding. Intervenors are not entitled to a presumption that Petitioner participated in this proceeding for an improper purpose in accordance with Subsection 120.595(1)(c), Florida Statutes (2003). Although Petitioner was the non-prevailing party in two previous administrative hearings involving the same legal issue, the two proceedings were not against the same prevailing hospital provider and did not involve the same "project" as required in the relevant statute. Intervenors seek attorney fees in the amount of $36,960 and costs in the amount of $2,335.37 through the date that Petitioner voluntarily dismissed the underlying proceeding. Absent a finding that Petitioner participated in the underlying proceeding for an improper purpose, it is unnecessary to address the amount and reasonableness of the attorney fees and costs sought by Intervenors. If it were determined that Petitioner participated in the underlying proceeding for an improper purpose, the trier of fact cannot make a finding that the proposed attorney fees and costs are reasonable. Such a finding is not supported by competent and substantial evidence. The total attorney fees and costs billed in the underlying proceeding were charged by six or seven attorneys or paralegals employed by the billing law firm. However, the fees and costs at issue in this proceeding exclude any time and costs charged by paralegals and include only a portion of the total fees and costs charged by the attorneys. The total amount of time billed and costs incurred in the underlying proceeding is evidenced in business records identified in the record as Intervenors' Exhibits 20-23. However, those exhibits do not evidence the reasonableness of the fees and costs billed by the attorneys.10 Either the testimony of the billing attorneys or the actual time slips may have been sufficient to support a finding that the attorney fees and costs are reasonable. However, Intervenors pretermitted both means of proof. Intervenors asserted that the time slips contain information protected by the attorney-client privilege. However, Intervenors neither submitted redacted time slips nor offered the actual time slips for in-camera review. Nor did Intervenors allow the attorneys to testify concerning unprivileged matters. The absence of both the testimony of the attorneys and the time slips is fatal. The fact-finder has insufficient evidence to assess the reasonableness of the fees and costs, based on the novelty and difficulty of the questions involved. Intervenors' expert opined that the attorney fees and costs are reasonable. The expert based her opinion, in relevant part, on her review of the actual time slips maintained by each attorney. However, Petitioner was unable to review the time slips before cross-examining the expert. In lieu of the actual time slips, Intervenors submitted a summary of the nature of the time spent by each attorney. The summary is identified in the record as Intervenors' Exhibit 2. Petitioner objected to Intervenors' Exhibit 2, in relevant part, on the ground that it is hearsay. The ALJ reserved ruling on the objection and invited each side to brief the issue in its respective PRO. The paucity of relevant citations in the PROs demonstrates that neither side vigorously embraced the ALJ's invitation. Intervenors' Exhibit 2 is hearsay within the meaning of Subsection 90.801(1)(c), Florida Statutes (2005).11 The author of Intervenors' Exhibit 2 summarized the unsworn statements of attorneys from their time slips and submitted those statements to prove the truth of the assertion that the time billed was reasonable. Intervenors made neither the attorneys nor their time slips available for cross examination.12 Even if the summary were admissible, the summary and the testimony of its author are insufficient to show the attorney fees and costs were reasonable. The insufficiency of the summary emerged during cross-examination of its author. The author is the lone attorney from the billing law firm who testified at the hearing. Q. What other information did you look at to decide what time to actually bill . . .? A. The information I used was the information from the actual bill. Q. If we look at the first entry . . . were you the person that conducted that telephone conference? A. No, I wasn't. Transcript (TR) at 510-511. Q. In other words, [the entries] go with the date as opposed to the event [such as a motion to relinquish]? A. That's correct. Q. So if I wanted to know how much time it took you to actually work on the motion to relinquish, I would have to look at each entry and add up all the hours to find out how long it took you to do one motion. Is that how I would do that? A. It would be difficult to isolate that information from this record, we bill and explain in the narrative what work is performed each day, and unless that was the single thing worked on for several days, there would be no way to isolate the time, because we don't bill sort of by motion or topic. . . . Q. Well, if I'm trying to decide whether the time billed is reasonable, wouldn't I need to know how much time was spent on each task? A. I'm not sure how you would want to approach that. . . . Looking at this document, it does not give you that detail. It doesn't provide that breakout of information. Q. Is there a way for us to know who you spoke with on those entries? A. The entry . . . doesn't specify who participated in the conference. I don't recall what the conference entailed . . . . And many of these entries are from months ago, and I can't specifically recall on that date if I was involved in a conference and who else might have been there. . . . And so my guess is where the conference is listed on a day when lots of activity was performed on behalf of the client, most of it in this case was research. TR at 516-521.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the motion for attorney fees and costs. DONE AND ENTERED this 27th day of April, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 27th day of April, 2006.
The Issue The amount of attorneys fees and costs, if any, that should be awarded Petitioners pursuant to the Final Order issued on March 4, 1997, in Division of Administrative Hearings Case No. 96-1418RU, et al., finding Petitioners entitled to attorneys fees and costs pursuant to the provisions of Section 120.595, Florida Statutes (Supp. 1996) and retaining jurisdiction to determine the "reasonable amounts" of such fees and costs
Findings Of Fact By Joint Prehearing Stipulation and without waiving objections to applicability of Section 120.595, Florida Statutes, the Agency For Health Care Administration (AHCA), has stipulated with all parties as to the "reasonable amounts" of requested fees and costs to be awarded Petitioners in the event that such an award is determined to be applicable. All parties have also stipulated to the lack of liability of Intervenor Citizens of the State of Florida for payment of any award of fees and costs in this proceeding. That stipulation in its entirety is incorporated by this reference within these findings of fact and attached to this Final Order as Exhibit "A." The amendments to Chapter 120, Florida Statutes, were adopted as part of a major rewrite of the APA. See, Chapter 96-159, Laws of Florida. The amendments were effective October 1, 1996, and were effective prior to the hearing related to the rule challenge cases. All parties requesting attorneys’ fees and costs rely upon Section 120.595(4), Florida Statutes (Supp. 1996) as authority for an award of fees. Provisions of Section 120.595(4), Florida Statutes (Supp. 1996), are applicable to the facts of this case. See, Final Order issued on March 4, 1997, in Division of Administrative Hearings Case No. 96-1418RU, et al.
The Issue The issue to be determined is the amount of reasonable attorney's fees and costs incurred by Citrus Mining and Timber, Inc. ("CMT") in Robert A. Schweickert, Jr. v. Department of Community Affairs and Citrus Mining and Timber, Inc., Case. No. 1D10-3882 (Fla. 1st DCA 2011).
Findings Of Fact Appellate Attorney's Fees Sarah Lahlou-Amine of the law firm of Fowler White Boggs, P.A. ("Fowler") was the attorney with primary responsibility for research and drafting documents for the appeal on behalf of CMT. She prepared and filed a notice of appearance, a motion to dismiss, a motion for attorney's fees, an amended motion for attorney's fees, the answer brief, a notice of supplemental authority, a second motion for attorney's fees, and a motion for clarification. Ms. Lahlou-Amine was assisted and supervised by more senior lawyers at Fowler. The total number of hours charged by Fowler was 134.8. The total attorney's fees charged by Fowler was $39,010. Lawyers from two other law firms were employed by CMT and charged attorney's fees and costs for the appeal. The Law Office of Clark Stillwell, P.A., charged 18 hours for a total attorney's fees of $6,030. Edward de la Parte and other lawyers of the law firm of de la Parte & Gilbert, P.A., charged 24.9 hours for total attorney's fees of $5,382.50. The grand total of all the attorney hours expended for the appeal is 177.7 hours and the grand total of all fees charged to CMT for the appeal is $50,422.50. It was the opinion of CMT's expert witness, Daniel Stengle, that all of these hours and fees are reasonable. Schweickert's expert witness, Howard Heims, believes that 25 or 30 hours was all the effort that was reasonable for this appeal. The hourly rates of $225.00 to $435.00 an hour that were used by CMT's attorneys are not contested by Schweickert. The evidence established that the rates are reasonable. The dispute focused on the number of hours expended for the appeal. Heims contends that it was unreasonable for CMT to file a motion to dismiss for lack of standing, because appellate courts rarely grant such a motion and the standing issue could have been saved for CMT's answer brief. The court did not summarily deny CMT's motion to dismiss but, instead, ordered Schweickert to show cause why the motion should not be granted. The issuance of the order to show cause indicates that it is not the court's practice to deny all motions to dismiss that are filed before the briefs. Following Schweickert's response, the court still did not deny the motion to dismiss, but deferred ruling to the panel of judges that would determine the merits of the appeal. It was not unreasonable to file a motion to dismiss in this case because Schweickert's lack of standing was unusually clear. The controlling factual issue was simple--whether Schweickert made timely comments to Citrus County about the proposed comprehensive plan amendment. Furthermore, the argument made in the motion eventually prevailed. Heims also believes that it was unreasonable for CMT to file three motions for attorney's fees and costs. The motions were not identical, but filing three such motions is unusual and was not shown to be necessary or important. It was not persuasively shown that 177.7 attorney hours was reasonable for this appeal. The evidence does not establish that the attorney's fees charged by the law firms of Clark Stillwell and de la Parte & Gilbert should be included as part of the reasonable fees for the appeal. These fees were not shown to be necessary or to contribute materially to the appeal. Rule 4-1.5 of the Rules Regulating the Florida Bar, Code of Professional Conduct, sets forth factors to be considered in determining a reasonable attorney's fee. The factors listed in rule 4-1.5(b)(1) are addressed below, in sequence: the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly; The time and labor expended on the appeal was not shown to be reasonable. The questions involved were not difficult. The case was not complex. No unusual skills and expertise were required to perform the legal services. the likelihood that the acceptance of the particular employment would preclude other employment by the lawyer; CMT did not contend that this factor was applicable. the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature; Reasonable hourly rates were charged, but persuasive evidence was not presented to show that the total amount of the fees charged to CMT are customary for the services that were performed. the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained; Although a reversal of the Department's Final Order would have had adverse consequences for CMT, it was not shown that the situation was of an unusual nature. Furthermore, a reversal on the merits (to find the comprehensive plan amendment not in compliance) was almost impossible because no factual findings were made that supported Schweickert's claims. CMT points to the unusual result--attorney's fees awarded against a pro se litigant--as justifying the attorney's fee, but this unusual result is due to Schweickert's unusually weak case. The issues and the law applied were not unusual. the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; CMT's argument that time limitations of an usual nature existed in this matter was not persuasive. the nature and length of the professional relationship with the client; The applicability of this factor was not argued by CMT and was not demonstrated by the evidence. the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and The lawyers involved have good reputations and experience, but those attributes were not likely to have materially affected the outcome. Performing the legal services did not require unusual skills. The services were not efficiently provided. whether the fee is fixed or contingent, and if fixed as to amount and rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation. This factor was not shown to be a basis to support a larger fee. It was Heims' opinion that 25 to 30 hours was a reasonable number of attorney hours to prepare the answer brief and one motion for attorney's fees. Thirty hours was a sufficient number of hours for the research and drafting work done by Ms. Lahlou-Anime. However, because it has been determined that the filing of the motion to dismiss was reasonable, some additional time should be added. CMT Exhibit 1 indicates that Ms. Lahlou-Anime charged about 23 hours for her work on the motion to dismiss. However, in determining a reasonable number of hours for the work on the motion to dismiss, consideration must be given to the fact that the standing arguments made in the motion were repeated in CMT's answer brief, which has already been accounted for in the 30 hours. The parties did not address this specific issue. However, the evidence supports the addition of 10 hours for Ms. Lahlou-Anime, for a total of 40 hours. Forty hours for Ms. Lahlou-Anime at her rate of $260 per hour equals $10,400. Heims also failed to fairly account for the reasonableness of the attorney hours expended by Karen Brodeen, a senior attorney at Fowler who represented CMT in the lower administrative proceedings and who assisted Ms. Lahlou-Anime in the preparation of the motion to dismiss and answer brief. CMT Exhibit 1 shows that Ms. Brodeen charged 0.9 hours at $375 per hour and 16.9 hours at $385 per hour, for a total fee of $6,844. The grand total of reasonable attorney time is 57.8 hours and the total reasonable attorney's fee is $17,244. Appellate Costs CMT is seeking $3,250.95 in costs for the appellate proceeding, comprised of $3,156.41 in costs charged by Fowler and $94.54 charged by de la Parte & Gilbert. However, as discussed in the Conclusions of Law, the costs which CMT seeks to recover --routine office expenses--are not recoverable legal costs under the applicable statutes. Prejudgment Interest CMT seeks daily prejudgment interest at the rate of 0.01644 percent. Requested Sanctions in the DOAH Remand Proceeding CMT also seeks to recover its attorney's fees and costs incurred following the remand from the Court of Appeal to DOAH to determine the amount of appellate attorney's fees and costs, as a sanction for alleged misconduct by Schweickert. CMT seeks a sanction against Schweickert for his failure to appear at a scheduled deposition for which Schweickert had been subpoenaed. Schweickert was not represented by an attorney at the time. Schweickert told CMT's attorneys that he was not going to appear at the deposition, but CMT's attorneys went forward as planned. Schweickert did not appear for his deposition. CMT seeks to recover its attorney's fees charged by de la Parte & Gilbert that are related to Schweickert's failure to appear for his deposition, which are $17,975.00, and costs of $818.63. CMT also sought a sanction against Schweickert for having to respond to Schweickert's Motion for Cause of Contempt for Citrus Mining and Timber’s Violation of Court Order, which demanded sanctions against CMT for CMT's scheduling of Schweickert's deposition without attempting to contact him to arrange a mutually agreeable date and time. The motion was denied. Schweickert was not represented by an attorney at the time. CMT seeks to recover its attorney's fees charged by de la Parte & Gilbert to respond to the motion, which are $2,357.50, and costs of $21.52. The day before the final hearing, CMT filed a motion for sanctions for Schweickert's failure to provide complete answers to some of CMT's discovery requests. At the time of the final hearing on September 7, 2011, CMT showed a total of $35,570 in attorney's fees associated with the DOAH remand proceeding, and costs of $1,693.73. CMT seeks recovery of those fees and costs as well as subsequent fees and costs through issuance of the Final Order in this remand proceeding, which are estimated to be $22,000 and $10,870, respectively. In summary, CMT seeks to recover $70,133.73 in fees and costs that it was charged by its attorneys for their effort to show that CMT's appellate fees and costs of $53,673.45 were reasonable.
Findings Of Fact Petitioner was represented by in this case by Michael Linsky, Esquire, beginning in April 1988. Two complaints of discrimination had been brought against the Department of Corrections by Petitioner. Linsky is an experienced trial lawyer having been admitted to the Florida Bar in 1970. However, he had no experience with discrimination cases prior to these proceedings. The Florida Commission on Human Relations found the Department had committed an unlawful employment practice when it assigned Petitioner to perimeter post duty and transferred him to Polk Correctional Institution in retaliation for having filed a discrimination complaint. Linsky originally took Petitioner's case on a contingency fee basis, but later it was decided between Linsky and Petitioner that the fee would be whatever was awarded by the Commission. Petitioner was only to be responsible for costs. Linsky submitted into evidence as Exhibit 1 a list of dates and hours expended on this case. However, this exhibit was prepared by Linsky's secretary some months after the events depicted and appear grossly exaggerated in some instances. Linsky claims a total of 159.35 hours expended. Linsky testified that his billing rate from April 1988 to December 1988 was $175 per hour, and thereafter it was raised to $190 per hour. Petitioner's expert witnesses contend the average billing rate in the Tampa area for this type of case ranges from $125 to $175 per hour. Respondent's expert witnesses contend the fees awarded run from $100 to $150 per hour. I find the appropriate fee in this case to be $135 per hour. Although Linsky claims to have spent 159.35 hour on this case, including the attorney's fees portion, 1 find that only 100 hours are reasonable. Costs of $423.60 is not disputed.
Recommendation It is recommended that the Department of Corrections be directed to pay Sefsick's attorney $13,500 attorney's fees and $423.60 costs in these proceedings. DONE AND ENTERED this 28th day of September, 1990, in Tallahassee, Florida. K. N. AYERS 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 28th day of September, 1990. APPENDIX Petitioner's proposed findings are accepted, except: 3. This proposed finding is accepted as a recital of the testimony presented, but rejected insofar as inconsistent with H.O. #8. 5. Rejected insofar as inconsistent with H.O. #7. 6 and 7. Accepted as legal argument, but rejected as a finding of fact. Respondent's proposed findings are accepted. COPIES FURNISHED: Michael A. Linsky, Esquire 600 North Florida Avenue Suite 1610 Tampa, FL 33602 Lynne T. Winston, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Louis A. Vargas General Counsel Department of Corrections 1313 Winewood Boulevard Tallahassee, FL 32399-2500 Richard L. Dugger Secretary Department of Corrections 1313 Winewood Boulevard Tallahassee, FL 32399-2500 =================================================================
Findings Of Fact This cause originated in a disciplinary action resulting from an administrative complaint filed by the Department of Professional Regulation, Division of Real Estate against the Petitioners herein, Malcolm Lewis Hardy and Aquatic Realty, Inc. The Petitioners herein were the Respondents in the licensure disciplinary proceeding. That proceeding was resolved in their favor by the Recommended Order of the Hearing Officer and by the Final Order filed April 15, 1988 by the Department of Professional Regulation. They have accordingly filed a request for attorney's fees and costs on the ground that the prosecution involved in the underlying case was not "substantially justified." The cause came on for a brief hearing. The parties elected to dispense with calling witnesses at the hearing because they entered into a factual stipulation whereby all germane facts were placed of record. It was thus established that Petitioners Malcolm Lewis Hardy and Aquatic Realty, Inc. (hereafter Hardy) were the Respondents in a licensure disciplinary action brought against them by the above-named Respondent. That disciplinary action was resolved by Final Order filed April 15, 1988 by the Department of Professional Regulation. The Respondents in that case, the Petitioners herein, were totally absolved of any wrongdoing with regard to the charges in the administrative complaint in that proceeding. A copy of that Final Order was mailed by the agency to "Diane Cleavinger, Esquire, 300 East 15th Street, Panama City, Florida 32405." Ms. Jan Nelson, a secretary at that address, and employed by Ms. Cleavinger's former law firm, received a copy of that order and executed the return receipt appearing on the envelope on April 18, 1988. Ms. Nelson was not Ms. Cleavinger's secretary, but rather the secretary of Ms. Fitzpatrick, one of Ms. Cleavinger's former law partners. In any event, Ms. Nelson executed the return receipt on April 18, 1988, but Ms. Cleavinger never received the Final Order nor notification of its filing or receipt by Ms. Nelson. Mr. Hardy never became aware of or received a copy of the Final Order either, until the agency sent another copy to him on September 12, 1988. The affidavit and request for attorney's fees was filed within sixty days of that date. Ms. Cleavinger had left her law firm on January 1, 1988 to become a Hearing Officer with the Division of Administrative Hearings. Mr. Hardy only learned of the Order when he made a direct contact with the Department of Professional Regulation and they learned that he had not received the Final Order. It was thus mailed to him on September 12, 1988 and received on September 14, 1988. That Order dismissed all claims against Hardy and Aquatic Realty, Inc. and thus those parties are in fact "prevailing, small business parties," within the meaning of Section 57.111, Florida Statutes. It was stipulated at hearing, as well, that these Petitioners are small business, prevailing parties and that they incurred attorney's fees in the amount of $1,642.04 for services rendered by Ms. Cleavinger when she represented them in the underlying case-in-chief and that costs amount to $333.71. Additionally, Mr. Hardy further incurred attorney's fees and costs in the amount of $500 in connection with the pursuit of this fee claim by attorney Whitton. It was stipulated that that amount is reasonable. Additionally, the Department accepted its burden of establishing that its action was "substantially justified," within the meaning of Section 57.111, Florida Statutes, and have stipulated that they have not done so. Thus the only issue for resolution concerns whether the claim of Hardy was time-barred.
The Issue The amount of attorneys' fees and costs to be awarded to Jerry Ann Winters (Petitioner) based on the Order of the Second District Court of Appeals dated November 8, 2002, and pursuant to Subsection 120.595(5), Florida Statutes (2003).
Findings Of Fact The Petitioner retained attorneys Mark F. Kelly and Robert F. McKee to represent her in an administrative proceeding challenging the proposed termination of her employment by USF and in the appeals that followed the issuance of the Final Orders by USF. Petitioner's Exhibit 1 is an invoice dated December 18, 2002, submitted to the Petitioner by her legal counsel. The invoice contains charges billed to the Petitioner for the period between January 17, 2001, and November 22, 2002. The invoice indicates a total of 339.75 hours expended on her behalf. The invoice contains duplicated entries for November 14, 2002. Discounting the duplication reduces the total hours expended to 339.50. The practice of the Petitioner's counsel is to bill in quarter-hour increments and to round up. According to the invoice, the Petitioner was billed at a rate of $275 per hour. Mark F. Kelly graduated from Vanderbilt Law School in 1976. Since then he has practiced labor and employment law in Florida before state and federal agencies and has a substantial appellate practice. He was previously awarded fees in the range of $250 approximately four years ago. Robert F. McKee graduated from Stetson University College of Law in 1979. He received a Master of Laws degree in Labor and Employment Law from Georgetown University Law Center in 1981. Since then he has practiced labor and employment law in Tampa, Florida. He was previously awarded fees in the range of $250 approximately four years ago. At the hearing, the Petitioner presented the testimony of Steven Greg Wenzel. Mr. Wenzel has practiced law in Florida for more than 30 years and is board-certified in Labor and Employment Law. He has extensive trial experience. He has previously provided expert testimony related to the reasonableness of attorneys' fees in approximately 12 cases. Mr. Wenzel is familiar with the fees charged by attorneys representing employees in employment-related cases in central Florida. Mr. Wenzel's testimony related to the experience, reputation, and ability of Petitioner's attorneys. It also indicated that they have substantial experience in the area of labor and employment law and are well-regarded by their peers. No credible evidence to the contrary was presented during the hearing. Mr. Wenzel's testimony adequately addressed the applicable factors set forth in Rule 4-1.5(b)1 of the Florida Bar's Rules of Professional Conduct to be considered in determining the reasonableness of fees. Mr. Wenzel opined that based on their knowledge and experience, the type and complexity of the case, and the aggressive nature of the litigation; a reasonable hourly rate was $290 ranging to $310. Mr. Wenzel's testimony in this regard is credited. The invoiced rate of $275 per hour is reasonable. Mr. Wenzel also opined that the quarter-hour billing practice was reasonable and, in fact, conservative related to other practices with which he was aware. Mr. Wenzel's testimony in this regard is credited. At the same time that the Petitioner was challenging the proposed employment termination, a civil case involving the Petitioner, a number of the basketball players, and USF was proceeding. In that case, different legal counsel represented the Petitioner. Review of Petitioner's Exhibit 1 indicates that the invoice includes charges related to persons and activities involved in the civil case. Neither Mr. Kelly nor Mr. McKee had any official involvement in the civil case. Mr. Kelly participated apparently unofficially in mediation efforts to resolve the pending disputes. The invoice contains daily total charges for billed activity. On some days, activity was recorded for both the administrative case and the civil case. Charges related to the civil case are not reimbursable in this proceeding. Because the invoice precludes an accurate separation of time spent on the administrative case from the civil case, all billings for dates upon which charges were incurred related to the civil case have been excluded from consideration in this Order. The charges related to conversations with John Goldsmith, who represented the Petitioner in the civil case, are excluded. These charges occurred on March 14, 2001; April 2, 2001; April 6, 2001; September 21, 2001; October 19, 2001; and May 13, 2002, and total 8.25 hours. The charges related to conversations with Jonathon Alpert, who represented the basketball players in the civil case, are excluded. The charges occurred on April 10, 2001, and April 11, 2001, and total 6.75 hours. The charge related to a conversation with Tom Gonzalez, who represented USF in the civil case, is excluded. This charge occurred on April 23, 2002, for .50 hours. The charges related to conversations with Mary Lau, who was a mediator assigned to the civil case, are excluded. These charges occurred on April 24, 2002, and May 8, 2002, and totaled 1.25 hours. The invoice includes a charge for May 15, 2002, related to a telephone conference with "Judge Scriven" regarding settlement. Judge Scriven is otherwise unidentified. The charge, for .25 hours, is excluded. The invoice includes a charge for Mr. McKee's attendance at mediation on May 16, 2002, related to the civil case, for 2.5 hours. This charge is excluded. The sum of the excluded time set forth above is 19.50 hours. Deduction of the 19.50 hours from the properly invoiced total of 339.50 results in a total of 320 hours. Based on Mr. Wenzel's testimony that the invoiced hours were reasonable given the nature and complexity of this case, it is found that the reduced level of 320 hours set forth in the invoice and directly applicable to the administrative case is a reasonable expenditure of time. The invoice also sets forth costs that were billed to the Petitioner. The invoice includes numerous routine office expenses (postage, copying, telephone, and facsimile costs) that are not properly recoverable costs in this proceeding. Other billed costs are set forth without sufficient information to determine the relationship of the cost to the administrative proceeding. A filing fee with the District Court of Appeal was billed on January 15, 2001, preceding the administrative hearing in this case. Further the billed charges include witness fees for several witnesses, only one of which testified in the administrative hearing. The invoice also includes service fees for subpoenas that appear to have been charged subsequent to the completion of the administrative hearing. Based on review of the invoice, properly recoverable costs of $307 are found. This sum includes the following items: witness fee and mileage for Paul Griffin ($7) dated April 5, 2001; service fee for subpoena for Paul Griffin ($50) dated April 11, 2001; and filing fee-clerk, District Court of Appeal ($250) dated October 5, 2001. Petitioner's Exhibit 2 is a "Retainer and Fee Agreement" executed by the Petitioner and her counsel which provides as follows: Partial contingency fee. Client will pay for services rendered at the reduced rate of $110 per hour. To compensate attorney for this reduced rate and the risk involved in undertaking a case on these terms, in addition to the $110 hourly rate, attorney will be entitled to 25% of any settlement money or judgment. In the event attorney's fees are awarded to the client by any court or tribunal and collected, attorney will be entitled to such fee (less any amount paid by client, which will be reimbursed pro rata) or the partial contingency fee, whichever is greater. Attorney requires a retainer deposit from client in the amount of $2,500, to be replenished from time-to-time as required to cover outstanding fees and costs. The Retainer and Fee Agreement is dated December 2, 2002, and the Order of the District Court of Appeal for the Second District, which granted the Petitioner's Motion for fees and costs, is dated November 8, 2002. It is unclear whether a written agreement between the Petitioner and legal counsel existed prior to the December 2, 2002, agreement.
The Issue The issues presented concern the claims made by the several Petitioners related to requests for refunds from Respondent pertaining to the payment of application fees for the issuance of Certificates of Convenience and Necessity or Transportation Brokers' Licenses. See Chapter 323, Florida Statutes.
Findings Of Fact As alluded to initially, the facts in this matter are presented based upon a stipulation offered by the parties. Those facts were acknowledged as the factual basis for the Recommended Order by interlocutory order dated September 23, 1983. In keeping with that action and pursuant to the parties' Stipulation of Facts, the following facts are found: The application for either Certificate of Convenience and Necessity or Transportation Brokers' License (hereinafter referred to as application) was received by FPSC's fiscal office where the mail was opened. The check for the application fee was then deposited, and the application was transmitted to the Clerk's office. The Clerk's office assigned the application a docket number and sent copies of the application to the Legal Department, Transportation and Regulatory Planning Department, and occasionally to the Rate Department. A copy of the Applicant's "Brief Written Statement," containing a description of the authority sought, required by Commission Rule, was sent to the Florida Trucking Association and the Public Counsel. At the Legal Department, each application was assigned to an attorney who reviewed it to determine whether it was complete in accordance with statutory requirements and that all supporting documentation was attached. If an application was deficient for any of the above reasons, the attorney would either call or write the applicant to remedy the situation. After the attorney deemed the application complete, he would prepare a "Notice of Filing of Application." The application was then returned to the Clerk's Office. The amount of time spent on this initial review of the application varied. In the case of most applications, particularly those filed by established companies or attorneys with experience before the FPSC, an estimated two hours was involved in review and preparation of the Public Notice. First time applicants, whose applications were incompletely filed, could involve up to five hours' time. The Notice of Filing Application provides notice to the public of the authority sought as described by the applicant in its application and "Brief Written Statement" which was required to accompany each application. No written record was kept of the amount of time spent on a particular application. The Clerk's Office sent a copy of "Notice of Filing" to all persons on FPSC's current mailing list. A. No protest received. The Clerk's Office notified the Legal Department and requested that they issue a recommendation to the Commission as to what action should be taken on the application. The attorney initially assigned to review the application would evaluate the file, and if complete, prepare a memorandum advising that a grant of the application was in accord with past Commission policy and draft an order for the commissioners' signatures. The attorney at times might also seek a recommendation from the Transportation Department. B. Protest received. The Clerk's office would send the protest to the chief hearing officer and a hearing date and hearing examiner were assigned. The Transportation Section performed a field investigation on all passenger carrier applications. Field investigations on other applications would be performed upon request by the Legal Department or other FPSC personnel at any time within the application process. There was a standard form to evidence that a field investigation was performed. It should be noted that the last two or three months prior to deregulation there was no automatic field investigation of passenger applications, and field investigations for other types of applications were minimal during the last half of FPSC's regulation (January through June, 1980). The FPSC, prior to the sunsetting of Chapter 323, Florida Statutes, had, in certain instances, recommended refunds of application filing fees up and until an application was set and noticed for hearing. Based upon said recommendations, the Comptroller paid the refund requests. FACTS COMMON TO ALL Each Petitioner applied to the FPSC and each paid the statutory fee. The fee was deposited in the FPSC's Regulatory Trust Fund. The application for each Petitioner proceeded through the process outlined in 1-4 herein where, pursuant to Subsection 323.030(2), Florida Statutes, the FPSC issued Notice of Filing the Application. Each of the Petitioners herein has requested a refund of the application fee. Each Petitioner received a Notice of Intent to Deny Refund issued by the Comptroller of the State of Florida. All Petitioners filed a timely request for hearing. Said requests have been held in abeyance pending the conclusion of the administrative hearing and issuance of the Amended Final Order entered on dune 12, 1981, for a similarly situated group of motor carriers. At the time Petitioners filed their applications, a certificate or license from the FPSC was required, by law, as far a prerequisite for engaging in transportation activities each sought to perform in the State of Florida. Without a certificate or license, each applicant would have been subject to a fine or other legal sanction. On July 1, 1980, pursuant to Laws of Florida 1976, Chapter 76-168, Chapter 323, Florida Statutes, was repealed, thus eliminating the requirement of a Certificate of Convenience and Necessity and Transportation Brokers' License. Except for Commodity Brokerage Exchange and Florida Limousine Service, Inc. (d/b/a Florida Tour and Limo), which are specifically set forth below, Petitioners' applications fall within two categories. Each category set forth below represents a level of activity and each application falls within one of these categories: Application was set for hearing; processed through steps 1-6, inclusive; Docket Number 800095-CCT, Ryder Truck Lines, Inc. Application was not set for hearing, but a field investigation was performed; Docket Number 790647-CCT, Charles W. Lauramore. Commodity Brokerage Exchange filed two applications which were processed through steps 1-4, inclusive; Docket Numbers 800428-ATB and 800429- ATB. In accordance with Subsection 323.31 (4)(b), Florida Statutes, Commodity Brokerage Exchange received a refund of $400.00 for each application, since no license was issued. Florida Limousine Service, Inc., d/b/a Florida Tour and Limo, filed an application with the FPSC which was processed through steps 1-6, inclusive; Docket Number 800104-CCB. On June 19, 1980, an Amended Application was filed which was substantially different from the previously filed application. No additional filing fee was required and the hearing scheduled for the initial application was cancelled. The Amended Application was not renoticed. Based upon the foregoing, the Comptroller and Petitioners believe that the Hearing Officer can decide the underlying issues presented without an evidentiary hearing, and the parties concerned should be ordered to provide legal memoranda to the Hearing Officer within thirty (30) days of the Hearing Officer's acceptance of this stipulation.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered which denies all refund claims of the named Petitioners. DONE and ENTERED this 10th day of January, 1984. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10 day of January, 1984.
The Issue The issues presented concern the request by Petitioner for a refund of $700 paid to the Florida Public Service Commission as a filing fee related to an application for a rate increase of its passenger fares.
Findings Of Fact The facts presented are based upon a stipulation offered by the parties. Those facts were accepted for purposes of this Recommended Order by the interlocutory Order of November 21, 1983. In keeping with that action and pursuant to the parties' stipulation of facts, the following facts are found: (See Stipulation of Facts and all exhibits attached to this Recommended Order.)
