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 issue to be resolved in this proceeding is the amount of attorney’s fees to be paid by Respondent, Agency for Persons with Disabilities (“APD” or the “Agency”), to the Petitioners, G.B., Z.L., through his guardian K.L., J.H., and M.R.
Conclusions This matter is related to the promulgation of proposed rules 65G-4.0210 through 65G-4.027 (the “Proposed Rules”) by the Agency in May 2013 in its effort to follow the mandate issued by the Florida Legislature concerning the iBudget statute, section 393.0662, Florida Statute (2010). Petitioners challenged the Proposed Rules in DOAH Case No. 13-1849RP. The Proposed Rules were upheld by the Administrative Law Judge, but Petitioners appealed the Final Order to the First District Court of Appeal (the “Court”). The Court’s decision was rendered July 21, 2014. G.B. v. Ag. for Pers. with Disab., 143 So. 3d 454 (Fla. 1st DCA 2014). The Fee Order was entered by the Court on the same date. The Fee Order had been entered upon the filing of a motion for appellate attorney’s fees filed with the Court by Appellants/Petitioners. The motion set forth three bases for an award of fees, to wit: Section 120.595(2), Florida Statutes, which provides: Challenges to Proposed Agency Rules Pursuant to Section 120.56(2).– If the appellate court or the administrative law judge declares a proposed rule or portion of a proposed rule invalid pursuant to s. 120.56(2), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney’s fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. An agency’s actions are “substantially justified” if there was a reasonable basis in law and fact at the time the actions were taken by the agency. If the agency prevails in the proceedings, the appellate court or administrative law judge shall award reasonable costs and reasonable attorney’s fees against a party if the appellate court or administrative law judge determines that a party participated in the proceedings for an improper purpose as defined by paragraph (1)(e). No award of attorney’s fees as provided by this subsection shall exceed $50,000. Section 120.595(5), Florida Statutes, which provides: Appeals.– When there is an appeal, the court in its discretion may award reasonable attorney’s fees and reasonable costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process, or that the agency action which precipitated the appeal was a gross abuse of the agency’s discretion. Upon review of the agency action that precipitates an appeal, if the court finds that the agency improperly rejected or modified findings of fact in a recommended order, the court shall award reasonable attorney’s fees and reasonable costs to a prevailing appellant for the administrative proceeding and the appellate proceeding. Section 120.569(2)(e), Florida Statutes, which provides: All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party’s attorney, or the party’s qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expense incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. The Court did not specifically address which of Petitioners’ stated bases for award of attorney’s fees was being relied upon when granting Petitioners’ motion. Petitioners assert that it must therefore be presumed that the Court granted the request for fees on the basis of all three of Petitioners’ bases. There is no other support for that presumption, as the Fee Order is silent on the issue. It could equally be presumed that only one of the bases was relied upon by the Court. Thus, a determination of the appropriate basis for fees is critical in the determination of the amount of fees to be awarded, as will be set forth more particularly below. The Fee Order establishes only that attorney’s fees are awarded, with leave for the parties to determine the appropriate amount or, failing to do so, obtain direction from an Administrative Law Judge on the matter. There is no issue as to whether Petitioners are entitled to fees or costs, only the amount to be awarded. DOAH has jurisdiction over the parties and the subject matter of this proceeding under the August 6, 2014, Mandate of the First DCA, and under section 120.595(2). Although it is herein determined that section 120.595(2) is the appropriate provision to be considered for fees in this case, each of the other statutory sections argued in Petitioners’ motion for fees will be addressed nonetheless. Section 120.595(5) If section 120.595(5) is to be the basis for fees, it must be shown that Respondent is guilty of a “gross abuse” of its discretion. “Gross abuse” is not defined in statute. As stated by the Court in Allstate Floridian Insurance Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 302 (Fla. 2d DCA 2004), “The troublesome nature of our review here is the admittedly high ‘gross abuse of discretion’ standard. . . . However, we have no definition of what a ‘gross’ abuse of discretion includes or how it differs from an abuse of discretion. We can only assume that it is more egregious than a typical abuse of discretion.” The Court cited Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), in which the Supreme Court iterated that if reasonable men could differ on an issue, there was no abuse of discretion to act one way or the other. Other courts, looking at the issue of “abuse of discretion” in administrative matters, have struggled with a definitive description or definition. In Citizens to Preserve Overton Park, Inc., et al. v. Volpe, Secretary of Transportation, 401 U.S. 402; 91 S. Ct. 814; 23 L. Ed. 2d 136 (1971), the Court was trying to determine whether the Transportation Secretary had acted within his discretion. The Court decided it “must consider whether the decision was based on clear error or judgment. [citations omitted] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The Court is not empowered to substitute its judgment for that of the agency.” Id., at 416. And, as found by another Court, whether an act is arbitrary, capricious, or an abuse of discretion is “far from being entirely discrete as a matter of the ordinary meaning of language. . . . Rather than denoting a fixed template to be imposed mechanically on every case within their ambit, these words summon forth what may best be described as an attitude of mind in the reviewing court one that is ‘searching and careful’ . . . yet, in the last analysis, diffident and deferential.” Natural Res. Def. Council, Inc., et al. v. Sec. and Exch. Comm'n, et al., 606 F.2d 1031, 1034, U.S. App. DC (1979). In Ft. Myers Real Estate Holdings, LLC, v. Department of Business and Professional Regulation, 53 So. 3d 1158 (Fla. 1st DCA 2011), the Court awarded fees under section 120.595(5). In that case, the agency denied party status to the applicant for services. The Court said, “The position taken by the Division in the dismissal order, and maintained in this appeal, is so contrary to the fundamental principles of administrative law that, by separate order, we have granted Appellant’s motion for attorney’s fees under section 120.595(5), Florida Statutes.” The Court did not, however, define gross abuse of discretion any more specifically than that. Likewise, in Salam v. Board of Professional Engineers, 946 So. 2d 48 (Fla. 1st DCA 2006), the Court found that an agency’s intentional delay on acting upon a petition for formal administrative hearing warranted fees under the statute. The Salam Court did not further define gross abuse of discretion; it merely found that such abuse existed under the circumstances of the case. Gross abuse of discretion must, by definition, be more difficult to ascertain than simple abuse of discretion. Gross abuse implies that the Agency first believed its intended action was improper, yet engaged in the action despite that knowledge. That is, that the Agency acted intentionally to do something it knew to be wrong. Proof of such intent would be extremely difficult.1/ One need only look at the plain language of the Court’s opinion in the rule challenge appeal at issue here to see that there was no gross abuse of discretion. The Court ultimately held that although the Agency’s rules “directly conflict with and contravene the Legislature’s clear language” concerning development of an algorithm to assist with the distribution of funds to needy Floridians, “[W]e recognize the difficulty in adhering to the Legislature’s command to create an algorithm solely capable of determining each client’s level of need. Further, we accept that [Respondent] is attempting to find a reasonable way to administer funds to the tens-of-thousands of people in need that it assists.” G.B. et al., supra, 143 So. 3d 454, 458. Nothing in that language suggests that the Agency knew its proposed rule was improper or that it was doing anything intentionally wrong. Rather, the language of the Court’s decision indicates that Respondent was certainly attempting to exercise its discretion properly in the adoption of the Proposed Rules. Despite the Agency’s attempts to justify the rules both at final hearing and on appeal, the Court found that the Proposed Rules did not comport with the specific authorizing statute. That failure did not, ipso facto, establish that there was a gross abuse of the Agency’s discretion. Besides, upon hearing all the testimony and reviewing the evidence, the undersigned initially upheld the Proposed Rule; that, in and of itself, is some indication that the Agency’s efforts were legitimate. Thus, in the present matter, there is no rational basis for finding that gross abuse of discretion was involved in the Court’s award of attorney’s fees. Section 120.569(2)(e) As for section 120.569(2)(e), there is no evidence to support Petitioners’ contention that the proposed rule addressed in the rule challenge proceeding (DOAH Case No. 13-1849RP) was interposed for any improper purpose. The appellate court said, “[W]e accept that APD is attempting to find a reasonable way to administer funds to the tens-of-thousands of people in need that it assists.” Id. Clearly, the Agency did not act for an improper purpose; its best efforts to follow the Legislative mandate for an iBudget simply fell short. The Proposed Rules contravened certain specific requirements of the governing statute. In order to find a way to meet its mandate, the Agency made a Herculean effort, yet failed. Although Petitioners argue that an “improper purpose” was implied by the Court in the Fee Order, there is no substantive support for that position. Not only was APD’s attempt to find a “reasonable way” to discharge its responsibility found wanting by the Court, experts in the field who testified at the underlying hearing disagreed as well. There was no dispute about the intended purpose of the Proposed Rules, only as to how that intent was to be effectuated. There was never any dispute as to the Proposed Rules’ intended purpose; they were meant to find a way to serve the tens-of-thousands of people in need. There is nothing in any of the Agency’s actions in this case that would be even arguably described as “interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation.” This attorney’s fee section does not apply to the facts of this case. Section 120.595(2) Finally, in section 120.595(2), the Legislature has declared that if an appellate court or administrative law judge declares all or part of a proposed rule invalid, an order will be entered awarding reasonable attorney’s fees and costs (unless the agency demonstrated that its actions were substantially justified). The Court ultimately concluded that the proposed rules “directly conflict with and contravene the Legislature’s clear language.” That being the case, the Court seems to be finding that the Agency’s actions--promulgating the Proposed Rules--was not substantially justified, even if the Court did recognize the difficulty faced by APD in its efforts to comply with the statutes at issue. By process of elimination, section 120.595(2) is the basis for the Court’s award of attorney’s fees in the present case. That being so, the award is capped at $50,000. The Agency has conceded that Petitioners are entitled to at least $50,000 in fees, as well as costs in the amount of $41,609.65. There remains the issue of whether each of the four Petitioners is entitled to an award of the maximum fee. In their (singular) Petition for Administrative Determination of the Invalidity of Proposed Rules, the parties sought the following relief: That a Final Order be entered finding the Proposed Rules to be an invalid exercise of delegated legislative authority; and That Petitioners be awarded their reasonable attorney’s fees; and Such other relief as the Administrative Law Judge deems appropriate. That is, the relief sought by each of the Petitioners was the same: invalidation of the proposed rules. It cannot be argued that each Petitioner in his or her own right was seeking individual redress or damages. Collectively, they wanted the proposed rules invalidated so that they could return to the status quo concerning their benefits from the State. In fact, only one of the four Petitioners presented testimony at the underlying administrative hearing as to the impact of the Proposed Rules. There was no issue as to each Petitioner’s standing in the underlying administrative hearing. As stated by the Agency in its Proposed Final Order in that case: “Petitioners are each recipients of Medicaid Services under the DD waiver program and have been or will be transitioned to the iBudget system. Stip., pp. 23-24. Thus, Petitioners have standing to challenge the substance of the Proposed Rules.” Petitioners contend that each of the 25,000-plus recipients of benefits from the Agency could have filed petitions challenging the Proposed Rule. That is true. But in the rule challenge proceeding there were four petitioners (ostensibly representing those other 25,000), each seeking the same relief, i.e., invalidation of the proposed rules. And only one of those, K.L., testified at final hearing in the underlying rule challenge proceeding. Thus, there is no justification for an award of fees to each of the Petitioners under section 120.595(2). In light of the findings and conclusions above, and based upon the Order as stated below, the issue of contingency multipliers is not relevant to the discussion of fees herein. As a general rule in Florida, fees and costs incurred in litigating entitlement to attorney’s fees are collectible although time spent litigating the amount of the award is not compensable. See, e.g., State Farm Fire & Cas. Co. v. Parma, 629 So. 2d 830, 833 (1993). § 92.931, Fla. Stat.; Stokus v. Phillips, 651 So. 2d 1244 (Fla. 2d DCA 1995). Inasmuch as the Agency does not dispute entitlement to attorney’s fees, no fees for the fee case are warranted. The amount of fees sought in this administrative rule challenge by the Petitioners is, as set forth in their Proposed Final Order: $255,614.39 for the DOAH rule challenge proceeding; $154,662.35 for the appeal but also applied a contingent multiplier for a total of $309,324.70; $62,850.00 for the fee case but also applied a contingent multiplier for a total of $94,275.00; and $41,609.65 in taxable costs, for a total of approximately $660,000.00. While the amount of fees and costs allowed under the appropriate statute is well less than what Petitioners sought, it has been deemed legally sufficient by statute.
The Issue Whether Keith Jackson, Ph.D. ("Petitioner") should be required to pay FAMU's claimed overpayment of salary as calculated in the amount of $29,141.57, for the pay periods between July 11, 2008 and December 12, 2008.
Findings Of Fact On or about July 1, 2005, Petitioner executed an employment contract with FAMU to serve as Vice President for Research. The contract executed by Petitioner provides that Petitioner "is subject to the Constitution and Laws of the State of Florida and the United States and the rules, policies, guidelines and procedures of the Board of Governors and the University as now existing or hereafter promulgated." On July 11, 2008, Petitioner submitted to the University a letter advising that he was resigning from his administrative position with the University as the Vice President for Research. Petitioner's letter of resignation was accepted by the University effective July 11, 2008. Tenure as a faculty member was granted to Petitioner by the University on May 25, 2007. 12 When Petitioner resigned from his administrative position on July 11, 2008, he was a tenured faculty member at the University. FAMU BOT Policy 2005-15, adopted June 30, 2005 and revised on February 12, 2008, requires that the salary for former administrators, such as Petitioner, be adjusted to "the median salary of the employees within the same professorial rank and discipline." On July 11, 2008, Petitioner's annual salary, based on his service as Vice President for Research, was $166,400.00. According to FAMU BOT Policy 2005-15, his salary, upon resignation from his administrative position as Vice President for Research and movement to his faculty position, should have been adjusted to $72,662.00 in that this amount reflected, at the time, the median salary of employees within Petitioner's rank and discipline. Due to administrative oversight, Petitioner, after the effective date of his resignation, continued to receive his full administrative salary of $166,400.00. Petitioner's salary was adjusted to the correct amount beginning with the biweekly pay period of December 12, 2008. Petitioner was erroneously paid his salary of $166,400.00 from July 11, 2008 through the biweekly pay period of December 12, 2008. This resulted in Petitioner receiving a salary overpayment in the amount of $29,141.27. Petitioner has not refunded any money to FAMU.
Conclusions This matter is now before Florida Agricultural and Mechanical University Board of Trustees ("FAMU," "Respondent," or the "University") for final agency action.
Other Judicial Opinions This Order Constitutes Final Agency Action. 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 an original Notice of Administrative Appeal with the Agency Clerk of Florida Agricultural and Mechanical University, Office of the General Counsel, Lee Hall, Suite 300, Tallahassee, Florida 32307, and a copy of the Notice of Appeal attached to which is a conformed copy of the order designated in the Notice of Appeal, accompanied by filing fees prescribed by law, with the First District Court of Appeal. The Notice of Administrative Appeal must be filed within thirty (30) days of the date this Final Order is rendered. Copy: Teresa Hardee, CFO and Vice President, Administrative and Financial Services Avery D. McKnight, FAMU General Counsel Linzie F. Bogan, Associate General Counsel, Director of Labor Relations Nellie C. Woodruff, Associate Vice President, Human Resources Robert E. Larkin, Ill, Esq. Jacqueline Lester, Associate Director of Payroll Claudio Llado, DOAH Clerk 16
Findings Of Fact Petitioner is a small business party within the meaning of Subsection 57.111(3)(d), Florida Statutes (1987). Petitioner was required to relocate its business in 1986 as the result of a public taking of the property where the business was situated. Petitioner sought relocation benefits from Respondent's relocation assistance program. The program is operated by Respondent in accordance with authority contained in Sections 339.09(4) and 421.55(3), Florida Statutes. Various requests by Petitioner for payment of relocation benefits in accordance with the Uniform Relocation Act were denied by Respondent. In DOAH Case No. 88-0778T, Petitioner sought a formal administrative hearing pursuant to Section 120.57, Florida Statutes concerning Respondent's denial of the requested reimbursements. At the final hearing in DOAH Case No. 88-0778T, evidence was presented regarding Respondent's denial of benefit payments of $1,324 for advertisement expense in a telephone directory; $1,370 for installation of an exhaust fan at the new facility; $2,405 for fees for consultative services from an attorney; $1,200 for the alleged loss of employee time spent in conferences with Respondent personnel regarding relocation; $1,500 for expense of a second search for a suitable relocation site; and $1,035 for consultation fees associated with design of a product display area in the new facility. With the exception of Respondent's denial of the claim for $1,035 for consultant fees, Respondent's denials were found to be appropriate in DOAH Case No. 88-0778T. Such a finding of appropriateness also equates to a finding of substantial justification for denial for purposes of this proceeding. A recommended order was issued in DOAH Case No. 88-0778T, finding denials of all requested reimbursements to be appropriate with the exception of Respondent's denial of the request for $1,035 for consultation fees associated with design of a product display area. Payment of this latter amount was recommended as constituting an authorized reimbursement under legal provisions governing the relocation program. On December 26, 1988, Respondent entered a final order awarding Petitioner $1,035 for this consultation fee expense. Other claims for reimbursement by Petitioner in the amount of $10,414.17 were paid by Respondent, prior to the final hearing in DOAH Case No. 88-0778T, in the course of proceedings in the Circuit Court for Broward County, Florida. That court adopted a settlement stipulation of the parties regarding those claims which expressly reserved attorney fees in regard to those issues for later determination by that court. Petitioner presented no evidence with regard to those claims at the final hearing in DOAH Case No. 88-0778T. At the final hearing in the present proceeding, Respondent offered testimony that confusion concerning payment of those claims resulted from the death of the attorney handling the case for Respondent. Respondent initially denied the claims in the absence of the deceased attorney's records in the mistaken belief that the matter had been resolved earlier in the circuit court condemnation proceeding. Upon learning such was not the case, payment of the claim and effectuation of settlement of the issue was made in the circuit court case and occurred shortly after Petitioner's request for hearing in DOAH Case No. 88- 0778T. The circumstances surrounding the initial denial of payment of this benefit by Respondent substantially justify Respondent's denial and constitute a sufficient basis to deny Petitioner's recovery of fees or costs related to this payment recovery in this administrative proceeding. The proof submitted at the final hearing in this cause establishes that Petitioner's counsel expended between 55 and 70 hours of time in his representation of Petitioner's attempts to recover all denied benefits in DOAH Case No. 88-0778T. Counsel's average hourly rate was $125. However, the fee arrangement between client and counsel was a "modified or combined contingency fee" permitting any recoverable attorney fees to serve as the primary source of payment of counsel's fees. Petitioner was not bound by the agreement to pay counsel's fees beyond amounts determined to be appropriate by the hearing officer in the administrative case or the judge in the circuit court matter. To that extent, attorney fees in this cause that have been incurred by Petitioner may be considered "contingent." Documentation submitted by Petitioner includes an affidavit from its president which simply recites the status of Petitioner as a small business party, but sets forth no specifics of a fee arrangement with counsel. The affidavit of Petitioner's counsel establishes a minimum number of hours (55) and dates of work performed by counsel, and states that his hourly rate is $125. Calculating the number of hours by the hourly rate, one reaches a total fee amount of $6,875. Counsel's affidavit does not address which of the various benefits sought to be recovered was the subject of any particular expenditure of time. Although the relocation benefits sought to be recovered were separable subjects, allocation of time expended with regard to a particular benefit recovery effort is not established by the evidence. Testimony of William Robert Leonard was also offered by Petitioner to support the reasonableness of a legal fee amount of $10,000 for Petitioner's counsel. While Mr. Leonard opined that he normally would not support a $10,000 attorney fee as reasonable for a $1,000 recovery, the circumstances of this case were different because "[y]ou are arguing with the state." Petitioner attempted to establish through further testimony of Leonard that the enormity of the resources of the government of the State of Florida justify such a fee because cost considerations prevent private litigants from engaging in costly and protracted proceedings in matters of limited recovery. Leonard did not address allocation of the requested attorney fee among the various benefits for which recovery was sought, choosing instead to premise his opinion regarding reasonableness of a $10,000 attorney fee upon "the amount of time counsel was required to respond to a state agency." Leonard's testimony is not credited with regard to reasonableness of a $10,000 fee for recovery of the $1,035 relocation benefit due to his professed lack of knowledge of certain administrative law procedures; the failure of his testimony to address the nature or difficulty of tasks performed by counsel for Petitioner; and his concurrence with the assertion that his opinion of such a fee was based in part upon a "gut reaction." No evidence was submitted to support the reasonableness of the cost amount of $250 requested as a witness fee for Mr. Leonard's participation in the proceeding. Petitioner seeks recovery of $448.50 in costs associated with the transcript of final hearing had in DOAH Case No. 88-0778T and a $480 expert witness fee in conjunction with testimony of E. Scott Golden, an attorney, at that final hearing. The testimony of Mr. Golden in that proceeding related to his provision of relocation site advice to Petitioner and drafting of legal documents for Petitioner. Petitioner did not prevail with regard to recovery of relocation benefits related to the expense of Mr. Golden's services.
Findings Of Fact In July 1976 Berger was working as a salesman for Property Resales Services when he and Tritsch decided to set up a similar advance fee listing operation. Berger was knowledgeable of the operation and Tritsch held a broker's license. Both had been engaged for several years in land sales in Florida and at one time both worked for the same land developer selling land to mostly out of state investors. Each put up $1,000 to get the corporation formed and in operation. Stock was equally split between Berger's son Albert and Tritsch with two shares unissued. Shortly after the business became operational Berger and Tritsch repaid themselves $750 of their investment/loan. Berger was to supervise the obtaining of listings and Tritsch was to set up the resale operation. Shortly before the beginning of operations Berger suffered a heart attack and was hospitalized For some two and one half weeks. Following his release from the hospital he was able to spend only limited time in the office. However, script for the telephone salesmen had been prepared as well as listing contracts and brochure to be sent to those customers indicating a desire to sell their land. The business opened as scheduled in a rented office with WATS lines installed. Similar to other advance fee operations the salesmen worked from about 6 P.M. until 10 P.M. making phone calls to out of state owners of Florida land. Most of the owners contacted were those who had earlier bought land in the developments of Rotunda, Royal Highlands, and Port Charlotte with which Tritsch and Berger were familiar. Lists of owners were purchased from a company in Miami providing such information and copies of the Charlotte County tax records were obtained. NPS joined the National Multiple Listing Service (NMLS) and the listings obtained were to be published in that publication. They also indicated in their sales pitch and on the listing contract that advertising would be placed in local newspapers. Salesmen were paid $125 for each listing received with the $350 advance listing fee obtained from the property owner except Egan who was paid $175 for each listing. Shortly after Berger became well enough to devote time to the affairs of NPS, Tritsch broke a shoulder in a motorcycle accident and was limited in his movements by a cast for some six weeks. This was followed by an operation on his nose also injured in the accident. Berger did little, if any, telephone solicitation. His function appeared to be that of supervisor and consultant. His son, Albert Berger, was given the job of secretary, bookkeeper and keeper of the records which the son, a fifty percent shareholder in the corporation, had no idea what happened to following his departure in December, 1975. Exhibit 6 shows checks were made payable to Annette Berger, presumably a daughter, as wages. Berger and Tritsch were paid $300 to $500 per week (net) for their services depending upon availability of funds, Albert Berger received $250 per week (net) and Annette Berger received $100 to $225 per week (net). Net wages are normally the salary left after the deduction for withholding and FICA taxes. Since no check stubs showed payment to the Internal Revenue Service the withheld portion of the salaries apparently was not remitted. Additionally Berger and Tritsch were reimbursed for travel expenses, but no testimony was adduced that Berger did any traveling on the business of the company. Nevertheless Berger was paid travel expenses and one check was made payable to an airline for nearly $300. Respondents Egan and Resnik as well as several other salesmen, not named as Respondents here, manned the telephones during the operating hours of 6:00 to 10:00 P.M. They generally followed the script given to them and no evidence was presented that any known false representation was made by either Egan or Resnik. Neither Egan nor Resnik attempted to sell property. However, Egan testified that if a customer was happy with his land and didn't want to sell, he would ask if the customer would like to buy more. No evidence was presented that either salesmen advised customers that contractors and other brokers were being transported to the property or that they suggested the customer could obtain an inflated price for his property. No sales of the listings so received was ever made by NPS. If the customer indicated a willingness or desire to sell his property when first called he was advised that literature would be mailed to him to more fully explain the services offered by NPS. The salesman then turned the name in to the office and a blank contract (Exhibit 3) and brochure (Exhibit 4) were mailed to the customer. After the customer received the material the salesman would again call and go over the provisions of the contract with the customer and attempt to induce the customer to sign the contract and forward it with his $350 listing fee for services NPS were to perform in selling the property so listed. The customers were told that the advance fee was used to advertise the property and to cover office expenses, however the fee would be deducted from the commission when the property was sold, and, in effect, refunded to the property owner. Both Resnik and Egan were led to believe that a sales office was being set up on the west coast, near the property for which listings were being solicited, however, no such office was ever opened. No advertising of any property was ever placed in newspapers or in any other media than the National Multiple Listing Services. As a matter of fact, no evidence was presented that any property for which NPS was paid an advance listing fee was ever advertised for sale in NMLS. Exhibit 6 indicates that NPS paid a total of $62.50 to NMLS before going out of business near the end of 1975. During the four to five months NPS remained in operation in excess of $52,000 was received from customers as advance listing fees and no sales of any of these listings was made. Respondents Tritsch and Berger both blamed their respective accident and illness for their failure to consummate sales of the properties for which listing fees were obtained.
The Issue The issue to be determined in this case is the amount of appellate attorney's fees to be awarded and paid to Respondent by Petitioner.
Findings Of Fact Based on the evidence presented, the following findings of fact and conclusions of law are made: The dispute taken on appeal to the Third DCA in Case No. 3D17-0149 concerned the undersigned's Final Order on Petitioner's Motion for Attorney's Fees dated December 20, 2016.1/ In that Final Order, the crux of the ruling denying the request for fees was that in the administrative case, there had been no prevailing party; that the wording of section 255.0516, Florida Statutes, contemplates that costs and attorney's fees may be recovered only after a final administrative hearing is held (no final hearing had been held); and that the separate agreement between the parties did not provide a basis for an award of fees. The Final Order denying the award of attorney's fees to Nader was appealed and upheld by the Third DCA in a per curiam affirmed Opinion dated March 21, 2018. Respondent was also awarded its appellate fees in a separate Opinion issued the same day. That matter was referred to the undersigned for a determination. Respondent is requesting that this tribunal award it payment of $120,539.70 as appellate attorney's fees resulting from approximately 303.75 hours of time. In doing so, it relies upon several invoices submitted by its counsel regarding the legal work performed on the appeal. See Resp. Exs. 3-17 and Ex. A of Resp. Ex. 20. Those invoices reflect that the following attorneys and paralegals worked on the appeal for Respondent at the listed rate(s): Albert E. Dotson, Jr. ($740 to 750.00/hour) Eileen Ball Mehta ($685 to 695.00/hour) Jose M. Ferrer ($595.00/hour) Melissa Pallett-Vasquez ($565.00/hour) Eric Singer ($480 to 510.00/hour) Leah Aaronson ($315.00/hour) Elise Holtzman ($290 to 295.00/hour) Maria Ossorio ($295.00/hour) Jessica Kramer ($290.00/hour) Maria Tucci ($275.00/hour) In deciding the amount of attorney's fees to be awarded, a court must consider not only the reasonableness of the fees charged, but also the appropriateness of the number of hours counsel engaged in performing their services. Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); and Mercy Hosp. Inc., v. Johnson, 431 So. 2d 687 (Fla. 3d DCA 1983). Respondent has the burden to prove, by a preponderance of the evidence, that the amount of attorney's fees it has requested is reasonable. Rowe, 472 So. 2d at 1145; see also § 120.57(1)(j), Fla. Stat. (2015). In Rowe, it was determined that the criteria listed in Rule 4-1.5 of the Rules Regulating The Florida Bar should be used to calculate the amount of reasonable attorney's fees. Rowe, 472 So. 2d at 1151. The undersigned has considered all the relevant factors outlined in Rule 4-1.5 and Rowe. Several of the factors and related findings are highlighted below. Rule 4-1.5(b)(1)(A) In determining whether a requested fee award is reasonable, one factor to be considered is "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 issue on appeal to the Third DCA was limited primarily to an analysis and determination of a "prevailing party" fee award. Notably, this issue was addressed, briefed, and argued by these parties before the undersigned in the underlying administrative proceeding. Many of the arguments set forth by Respondent in the appellate proceedings, which is the subject of this remand Order, were duplicative and, as mentioned, had been briefed, argued, and utilized in prior filings in the underlying administrative proceedings. Respondent contends that "new theories of liability" were introduced in Petitioner's Initial Brief. However, this argument is not persuasive. The evidence presented at the hearing also does not support Respondent's claim that all the labor and services of the aforementioned attorneys was required. A good deal of their work was duplicative in nature, redundant, and not necessary in order to perform the legal services properly. In short, some of the time billed was excessive. Petitioner's expert, Attorney Robert Klein, testified that he reviewed the Bilzin Sumberg firm's invoices for legal services, reviewed a considerable number of pleadings from the administrative proceedings, and reviewed nearly the entire collection of pleadings in the appellate case.2/ Klein testified convincingly, and the undersigned credits, that based on his global review of the Bilzin Sumberg invoices: (1) the fees charged "were far beyond what they should have been"; (2) he discovered a "tremendous duplication of effort"; and (3) "the overwhelming majority of the arguments" raised on appeal had already been raised in the administrative proceedings. In describing the firm's preparation time for oral arguments, he opined that the time billed was "really high." In short, Klein's expert testimony, while stated in general or more abstract terms, properly supplemented by the undersigned's own review of the invoices and the Exhibit A summary of Respondent's Exhibit 20, supports a considerable reduction in the fees charged. As a legal back drop to the distinctive issues in this case, an analysis regarding the reasonableness of an attorney's posted time is helpful. In Donald S. Zuckerman, P.A. v. Alex Hofrichter, P.A., 676 So. 2d 41, 43 (Fla. 3d DCA 1996), the court held that a party has the right to hire as many attorneys as it desires, but the opposing party is not required to compensate for overlapping efforts, should they result. In Brevard County v. Canaveral Properties, Inc., 696 So. 2d 1244 (Fla. 5th DCA 1997), the Fifth District Court of Appeal panel held that: The polestar of an appellate attorney fee award pursuant to section 73.131 and the case law generally, is that it must be reasonable. One that is bloated because of excessive time spent, or unnecessary services rendered, or duplicate tasks performed by multiple attorneys, does not meet that criterion of reasonableness. The Fifth District Court of Appeal reminded the parties, "[i]n making an attorney fee award, the court must consider the possibility of duplicate effort arising from multiple attorneys, in determining a proper fee award. Fees should be adjusted and hours reduced or eliminated to reflect duplications of services." Id. In determining the hours, the undersigned must also look at the amount of time that would ordinarily be spent to resolve the particular type of issues, which is not necessarily the time actually spent by counsel in the case. It is settled that a court is not required to simply accept the hours stated by counsel. In re Estate of Platt, 586 So. 2d 328, 333-34 (Fla. 1991). Finally, in Baratta v. Valley Oak Homeowners' Association at the Vineyards, Inc., 928 So. 2d 495 (Fla. 2d DCA 2006), the court outlined that as a general rule, duplicative time charged by multiple attorneys working on the case is usually not compensable. In this case, a considerable portion of Respondent's appellate arguments, case law, drafting time, and associated research was similar, if not identical to, the arguments, case law, and documents filed with this tribunal prior to the initiation of the appeal.3/ Moreover, Respondent's expert witness, Dagmar Llaudy, acknowledged that a fair amount of duplication occurred. She testified, for instance, that "the answer brief and everything else they [Miami–Dade College] did, it used the same case law and it used the same arguments. So it was very difficult to separate work done for a 57.105 and then work done for the remainder of the case because they all touched on the same issues." Tr. p. 134, Line 22-25, and p. 135, Line 1-2. This statement by Respondent's expert witness is telling, and explains a good deal of the legal work for which fees are being sought. The undersigned concludes that when legal work done for one aspect of a case closely resembles, or is similar to, legal work performed for another phase of the case and is used again, the party is normally not entitled to recover all of its fees for this repetitious work. Perhaps the most compelling support for reducing the requested award in this case can be found in the reasoning outlined by the magistrate judge in Alvarez Perez v. Sanford- Orlando Kennel Club, Inc., 2009 U.S. Dist. LEXIS 71823 (M.D. Fla. 2009). In that case, the applicant was awarded and sought a determination of fees incurred on appeal. The defendants objected to almost half of the requested award complaining that much of the time requested was for the same issues that had been fully briefed at the trial court level. The magistrate judge agreed with the defendants and reduced the requested fee by more than one-half, from $68,510.00 to $33,080.00. In doing so, she pointed out and aptly concluded: Because most of the work had already been done prior to the appeal, the total number of hours expended by Pantas during the appeal was excessive and unreasonable. See, e.g., Hoover v. Bank of Amer., Corp., No. 8:02-CV- 478-T-23TBM, 2006 U.S. Dist. LEXIS 59825, 2006 WL 2465398 (M.D. Fla. Aug. 24, 2006) [*12](concluding that the total number of hours sought by counsel for the appeal was excessive "in light of the prior work done on these same issues," and reducing the total hours billed by one-third); Wilson v. Dep't of Children and Families, No. 3:02-cv-357-J- 32TEM, 2007 U.S. Dist. LEXIS 26739, 2007 WL 1100469 (M.D. Fla. Apr. 11, 2007) (concluding that the total number of hours sought by counsel for the appeal was excessive "in light of the prior work done on these same issues," and reducing the hours billed by one-third); Action Sec. Serv., Inc., v. Amer. Online, Inc., No. 6:03-cv-1170-Orl-22DAB, 2007 U.S. Dist. LEXIS 4668, 2007 WL 191308 (M.D. Fla. Jan. 23, 2007) (concluding that the hours claimed by counsel for the appeal were excessive, and reducing the amount of fees by more than half, from $37,889.50 to $18,000.00). The undersigned likewise finds and concludes that there was a significant amount of billing for identical and similar research, drafting, and appeal preparation, which had already been performed at the administrative proceeding level. Consequently, the undersigned will make the appropriate reduction to the amount(s) allowed. Rule 4-1.5(b)(1)(B) In determining whether a requested fee is reasonable, one factor to be considered is "the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer." There was no compelling evidence provided by Respondent regarding this factor. Respondent's counsel did not provide any tangible examples of particular employment which was rejected or passed upon due to the ongoing representation of Respondent. As a result, the undersigned finds that there was no persuasive evidence presented regarding this criterion which supports the fees requested. Rule 4-1.5(b)(1)(C) In determining whether a requested fee is reasonable, another factor to be considered is "the fee, or rate of fee, customarily charged in the locality for legal services of similar nature." In support of their fee claim, Respondent presented Llaudy as their expert witness with regard to this criterion. Llaudy provided a brief, but sufficient, opinion that the rates charged by Respondent's law firm were reasonable and reflected the hourly rate customarily charged in the Miami area at the relevant time. Tr. p. 168, Line 6-12. Petitioner's expert, Klein, did not persuasively or seriously dispute the reasonableness of the rates charged. The undersigned finds that the hourly rates were reasonable and within the range for prevailing rates in the Miami-Dade County legal community. Rule 4-1.5(b)(1)(D) In determining whether a requested fee is reasonable, a fourth factor to be considered is "the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained." The case on appeal was fairly straightforward. It concerned whether "prevailing party" attorney's fees should have been awarded. The question for the Third DCA was: Did the administrative law judge err when he refused to award the Petitioner prevailing party fees after dismissing the underlying administrative bid protest case? The record demonstrates that the issue on appeal was not overwhelmingly complicated or intricate. When evaluating this factor, the undersigned also considered that Respondent achieved a good result and considered whether Respondent's reasonable attorney's fees should include work and services its counsel conducted in connection with an appellate motion filed pursuant to section 57.105, Florida Statutes. Petitioner argues that the time spent on the motion for sanctions should be entirely discounted because Respondent was "unsuccessful" on this claim, citing Baratta, 928 So. 2d at 495 ("Attorneys' fees should not usually be awarded for claims on which the moving party was unsuccessful."). Although the undersigned does not agree with this argument by Petitioner, the undersigned finds that the time spent on the motion for sanctions by Respondent's counsel was excessive. As a result, time was adjusted accordingly. More specifically, the motion sought sanctions and was voluntarily withdrawn after it was filed, but before the merits of the motion was addressed by the Third DCA. For several reasons, the undersigned finds that it is proper to award fees for work performed on a motion despite the fact that it was voluntarily withdrawn before it was adjudicated on its merit. First, under these circumstances, it was not proven that Respondent was "unsuccessful" on this claim.4/ Although the motion for sanctions was never heard on the merits, it did result, indisputably, in Petitioner's prior counsel withdrawing from the appellate proceedings. As such, the undersigned cannot conclude that Respondent was "unsuccessful" on this claim. Rather, it simply withdrew a motion after gaining some success and some of the relief it sought. Rule 4-1.5(b)(1)(E) In determining whether a requested fee is reasonable, another factor to be considered is "the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional time demands or requests of the attorney by the client." There was no persuasive evidence presented by Respondent regarding this factor, and it does not materially bear upon the award of reasonable attorney's fees in this case. Rule 4-1.5(b)(1)(F) In determining whether a requested fee is reasonable, one factor to be considered is "the nature and length of the professional relationship with the client." There was some evidence presented by Respondent regarding the nature of the professional relationship between the attorneys and Respondent. This included a 10-percent professional discount provided to Respondent, which was taken into account and already credited in the total $120,539.70 requested. There was no compelling evidence regarding the length of the relationship. Therefore, while this criterion was considered when determining a reasonable fee, it did not have a significant bearing on the fee being awarded. Rule 4-1.5(b)(1)(G) In determining whether a requested fee is reasonable, one factor to be considered is the "experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of the effort reflected in the actual providing of such service." Llaudy and Klein both expressed some general knowledge of the attorneys involved, and their reputation and levels of expertise. There was also some limited testimony from Albert E. Dotson, Jr., on this topic. All of this was taken into account both with respect to the rates charged and the hours spent on the case. Rule 4-1.5(b)(1)(H) In determining whether a requested fee is reasonable, a final factor to be considered is "whether the fee is fixed or contingent, and, if fixed as to amount or rate, whether the client's ability to pay rested to any significant degree on the outcome of the representation." In this matter, the hourly rates were fixed and the amount of the fee did not rest on the outcome of the appeal. Ultimate Findings and Conclusions The undersigned finds that the rates charged by the Bilzin Sumberg firm for the attorneys involved in the case were reasonable. However, the undersigned finds that the number of hours expended by the Bilzin Sumberg firm on this matter exceeded the number reasonably necessary to provide the services. Based on the evidence presented and exercising the discretion the undersigned is afforded in a hearing of this nature, the undersigned finds that the reasonable hourly rates and reasonable number of hours expended are as follows: Attorney Reasonable Hourly Rate Reasonable Hours Expended Lodestar amount Albert E. Dotson, Jr. $745.00 18.05 $13,447.25 Eileen Ball Mehta $690.00 28.50 $19,665.00 Jose M. Ferrer $595.00 2.3 $1,368.50 Melissa Pallett-Vasquez $565.00 0.80 $452.00 Eric Singer $495.00 38.9 $19,255.50 Leah Aaronsen $315.00 6.1 $1,921.50 Elise Hotlzman $292.50 72.5 $21,206.25 Maria Ossorio $295.00 7.9 $2,330.50 Jessica Kramer $290.00 6.8 $1,972.00 Maria Tucci $275.00 0.4 $110.00 TOTAL AWARDED $81,728.50 The undersigned has also considered the appropriateness of any reduction or enhancement factors, including the withdrawal of the section 57.105 motion for sanctions. DISPOSITION AND AWARD Based on the forgoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that Respondent's reasonable attorney's fees are determined to be $81,728.50, with recoverable costs in the amount of $461.35 for the total sum of $82,189.85 DONE AND ORDERED this 20th day of November, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2018.
Findings Of Fact Little Havana Activities Center, Inc. was incorporated in 1973 as a non-profit corporation. It has occupied its present address of 819 S. W. 12th Avenue, Miami, Florida, since 1974. Annual corporate reports were filed through the year 1975 by Petitioner; however, the annual report for 1976 was not filed. Petitioner's activities are predominantly the providing of meals and services to citizens over 60. They are the only Spanish language oriented such agency in Dade County and they receive most of their funds from federal and State agencies with the United Way and private charities contributing less than fifty percent of their funds. Petitioner occupies eight sites in Dade County through which it services some 1200 people per day. These services include delivery of hot meals, the providing of transportation services, recreation facilities, and job opportunities. Up to 275 people are employed by Petitioner. Respondent maintains all corporate records on a computer. When the annual corporate report is received from a corporation, the new data contained thereon is inserted into the computer and can be readily retrieved. On or about 1 January of each year a first notice of annual report is computer typed and mailed to all corporations. The Division of Corporations does not keep a record of this mailout. On or about 1 September a second notice is computer printed and mailed to those corporations failing to meet the July 1 annual report deadline. Again no record is maintained of this mailout. Finally, on or about 1 December the computer researches the computer banks and all corporations which have not filed annual reports for that year are sent a Certificate of Dissolutionment, and the Department of State, Division of Corporations, is sent a computer printout of the companies, and their respective addresses, which the computer has dissolved. This computer printout is put on a microfiche card for future references.
Findings Of Fact Petitioner is a Florida corporation for profit located at 1933 Commonwealth Lane, Tallahassee, Leon County, Florida. At all times pertinent to this case Petitioner has operated a business in Florida. Respondent is a Florida state agency. Its duties include the administration of Community Development Block Grants in Florida, (hereinafter referred to as CDBG). Petitioner requested Respondent to reimburse money related to administrative services which Petitioner provided to Okaloosa County, Florida related to a CDBG. The petition for those monies was filed in February, 1993. The request for reimbursement was in the amount of $43,274.92. Respondent denied that request. In turn, by opportunity provided by Respondent, Petitioner sought an administrative hearing pursuant to Section 120.57(1), Florida Statutes, to challenge Respondent's preliminary agency decision denying the request for reimbursement. The case was forwarded to the Division of Administrative Hearings to assign a hearing officer to conduct a formal hearing to resolve the dispute between Petitioner and Respondent. The administrative proceeding concerning the reimbursement claim was considered in the case Clark, Roumelis & Associates, Inc., v. State of Florida, Department of Community Affairs, Respondent, DOAH Case No. 93-1306. At the time Petitioner initiated the action to seek reimbursement and was afforded the point of entry to contest the preliminary action denying the reimbursement request, Petitioner employed no more than twenty-five (25) full- time employees and had a net worth of not more than $2 million dollars. Following a formal hearing a recommended order was entered by the undersigned which recommended that Petitioner be paid $43,274.92. The recommended order was entered on September 29, 1993. In turn, Respondent's final order dated December 28, 1993 denied the petition for reimbursement. Petitioner took an appeal to the First District Court of Appeal, State of Florida, Case No. 94-0151. In an Opinion filed February 16, 1995, the First District Court of Appeal decided in favor of Petitioner by reversing Respondent's final order and remanding the case. Respondent sought rehearing and rehearing on en banc which was denied on March 24, 1995 by the First District Court of Appeal. Respondent sought further review before the Florida Supreme Court, Case No. 85,581, which denied that review by not accepting jurisdiction. That decision by the Florida Supreme Court was made on September 6, 1995. On September 13, 1995, Petitioner filed a petition with the Division of Administrative Hearings pursuant to Section 57.111, Florida Statutes. Through that action Petitioner sought the reimbursement of attorney's fees and costs associated with DOAH Case No. 93-1306 and the appeals that followed the December 28, 1993 final order denying the reimbursement. Contrary to the requirements set forth in Section 60Q-2.035(5)(a), Florida Administrative Code, Respondent did not file a response to the petition within twenty (20) days of the filing of the petition seeking reimbursement attorney's fees and costs. Neither party has sought an evidentiary hearing for the Division of Administrative Hearings to consider Petitioner's request for reimbursement of attorney's fees and costs. Therefore this case has proceeded without an evidentiary hearing. Rule 60Q-2.035(7), Florida Administrative Code. In that setting Respondent is deemed to have waived its opportunity to contest whether the attorney's fees and costs claimed are unreasonable; whether Petitioner is not a prevailing small business party in DOAH Case No. 93-1306; whether Respondent's actions in denying Petitioner's claim for monetary reimbursement related to administrative services provided to Okaloosa County, Florida in the CDBG was a decision which was substantially justified in law and fact; whether circumstances exist which would make the award of attorney's fees and costs unjust and to present the defense that the Respondent was only a nominal party in DOAH Case No. 93-1306. See Rule 60Q-2.035(5)(a), Florida Administrative Code. Consistent with Rule 60Q-2.035(7), Florida Administrative Code the following additional facts are found for or against the award of attorney's fees and costs, based upon the pleadings and supporting documents in the files and records in the Division of Administrative Hearings: Petitioner is a small business party and a prevailing small business party in the matters considered in DOAH Case No. 93-1306 and the court appeals that followed. Petitioner's attorney has submitted an affidavit claiming, "In the administrative proceedings of this action, 140.8 hours were expended to the date of Respondent's Final Order of December 28, 1993. Total Fees: $21,120.00." Petitioner's attorney has submitted an affidavit claiming, "In the administrative proceedings of this action, $2,141.78 in costs were incurred to the date of Respondent's Final Order of December 28, 1993." Petitioner's attorney has submitted an affidavit claiming, "In the appellate proceedings in this action (First District Court of Appeal Case No. 94-0151 in Florida Supreme Court, Case No. 85,581), 79.0 hours were expended and $310.66 in costs were incurred to the date of the Supreme Court's denial of September 6, 1995. Total Fees: $13,258.00. Total Costs: $310.66." The affidavits submitted by Petitioner concerning the claim for attorney's fees and costs incurred to the date of Respondent's final order of December 28, 1993, failed to adequately " . . . reveal the nature and extent of the services rendered by the attorney as well as the costs incurred in preparations, motions, [and] hearings . . . in the proceeding" by "itemizing" the claim. Section 57.111(4)(b)1, Florida Statutes. By contrast, the attorney's affidavit filed for attorney's fees and costs in the appellate proceedings was adequate to identify services rendered by the attorney and costs incurred related to appeals in the proceeding. Section 57.111(4)(b)1, Florida Statutes. The amount of attorney's fees and costs for appellate proceedings is within the $15,000.00 cap for recovery of attorney's fees and costs as set forth in Section 57.111(4)(d)2., Florida Statutes.
