08-001972 Dr. Octavio Blanco vs. Nnp-Bexley, Ltd., And Southwest Florida Water Management District Status: Closed DOAH Final Order on Tuesday, February 10, 2009.

Summary: Applicant and agency proved reasonableness of fees and costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. OCTAVIO BLANCO, )

)

Petitioner, )

)

vs. ) Case No. 08-1972

)

NNP-BEXLEY, LTD., and SOUTHWEST )

FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondents. )

)

FINAL ORDER ON SANCTIONS

On January 20, 2009, an evidentiary hearing to determine

reasonable attorney's fees and costs in the above-captioned

matter was held in Brooksville, Florida, before J. Lawrence

Johnston, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Mara Shaughnessy, Esquire

Mara Shaughnessy, P.A.

652 East Bloomingdale Avenue

Brandon, Florida 33511

For Respondent NNP-Bexley, LTD:

David Smolker, Esquire

Margaret M. Craig, Esquire

Bricklemyer, Smolker & Bolves, P.A.

500 East Kennedy Boulevard, Suite 200

Tampa, Florida 33602-4936

For Respondent Southwest Florida Water Management District:

Matthew C. Mitchell, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604-6899

STATEMENT OF THE ISSUE

The issue in this proceeding is the amount of sanctions

against Petitioner, Dr. Octavio Blanco (Dr. Blanco), to be

awarded to Respondents, NNP-Bexley, LTD (NNP-Bexley), and the

Southwest Florida Water Management District (the District),

under the findings of the Final Order and Order on Sanctions

previously entered in this case.

PRELIMINARY STATEMENT

Final Order No. SWF 08-047 was entered on December 17,

2008, and adopted the Recommended Order of the Administrative

Law Judge in its entirety. The Recommended Order, dated

November 17, 2008, contained findings of fact and conclusions of

law determining that Petitioner in this matter pursued his

objection to the Environmental Resource Permit (ERP) at issue

for an improper purpose, and that Respondents should be awarded

reasonable attorney's fees and costs under Section 120.595(1),

Florida Statutes. 1 The Order on Sanctions, also dated

November 17, 2008, further determined that NNP-Bexley's request

for sanctions under Section 120.569(2)(e), Florida Statutes,

should be granted.

On December 16 and 17, 2008, NNP-Bexley and the District,

respectively, notified the Administrative Law Judge of their

intention to pursue sanctions. On December 17, 2008, the

Administrative Law Judge entered an Order on Procedure to

Determine the Amount of Sanctions. The parties were unable to

reach an agreement as to the appropriate amount of sanctions,

and Respondents filed a Status Report on December 29, 2008. A

Notice of Hearing was issued on January 6, 2009, setting the

hearing for January 20, 2009.

At the hearing, NNP-Bexley presented the testimony of

Richard Harrison, who was recognized as an expert on attorney's

fees in the area, and the testimony of the four expert witnesses

who testified at the final administrative hearing regarding

their fees and costs. Rick Harcrow, a representative of NNP-

Bexley, also testified regarding NNP-Bexley's stake in the

project and regarding fees and costs incurred. NNP-Bexley

offered 14 exhibits that were admitted in evidence. The

District presented two exhibits that were admitted in evidence.

Petitioner did not offer any evidence.

Initially, a transcript of the hearing was not ordered, and

the parties were given ten days from the date of the hearing in

which to file proposed orders. The Transcript was subsequently

ordered and was filed on January 29, 2009. Respondents filed

proposed orders on January 30, 2009. Petitioner did not file a

proposed order.

FINDINGS OF FACT

1. NNP-Bexley had a retainer agreement with Bricklemyer,

Smolker and Bolves, P.A. (BSB), for legal services in connection

with this matter.

2. NNP-Bexley incurred attorney's fees of $144,765.25 in

connection with this matter. This included 82.65 hours of work

by David Smolker, lead counsel, at a rate of $400.00 an hour;

343.17 hours of work by Margaret Craig, at a rate of $325.00 an

hour; and 1.4 hours of work by an associate at $125.00 an hour.

NNP-Bexley also was obligated to reimburse BSB for $3,684.23 in

costs, such as copies, deposition costs, service of process

fees, and postage.

3. On the issue of reasonable attorney's fees, NNP-Bexley

presented this testimony of Richard Harrison, an experienced

environmental lawyer and an expert on attorney's fees in the

area, who testified that the normal range of fees, or market

rate, for the type of services provided by BSB in this matter

was $300.00 to $400.00 an hour. He testified that the services

provided by BSB were reasonable, necessary, and efficiently

provided. Mr. Harrison specifically stated that the 427 hours

of legal services provided, and the total attorney's fee of

$144,765.25, were reasonable based upon consideration of the

factors described in Rule 4-1.5 of the Florida Bar Rules of

Professional Conduct and Florida Patient's Compensation Fund v.

Rowe , 472 So. 2d 1145 (Fla. 1985).

4. Mr. Harrison also reviewed the fees charged by the

expert witnesses in the case. He testified that he was familiar

with the use of technical experts as witnesses in administrative

proceedings, that the experts used in this case were

appropriate, and that the fees charged were reasonable. He

specifically found that expert witness fees of approximately

$75,889.30 were reasonable in this matter.

5. Mr. Harrison charges $350.00 an hour for his services

and estimated he would spend 12 hours in providing services

related to this sanctions hearing. NNP-Bexley moved to tax the

$4,200.00 in expert witness fees for Mr. Harrison.

6. Heidt and Associates, Inc. (Heidt), entered into a

retainer agreement with NNP-Bexley to provide engineering and

surface water management expert services in support of NNP-

Bexley's litigation of Petitioner's ERP challenge. Heidt

personnel provided 180 hours of services, at a cost of

$26,202.53. Heidt also billed NNP-Bexley for $888.03 in

reimbursable costs, for items such as copying, mailing, and

preparation of specialize graphics for hearing exhibits.

Heidt's services in support of the litigation were reasonable

and necessary.

7. Heidt also spent an additional 10 to 12 hours beyond

the hours invoiced in preparation for the hearing on sanctions,

at a rate of $135.00 an hour, for a total of $1,350.00 to

$1,620.00.

8. Biological Research Associates, Inc. (BRA), entered

into a retainer agreement with NNP-Bexley to provide

environmental expert services in support of NNP-Bexley's

litigation of Petitioner's ERP challenge. BRA personnel had

provided 209.75 hours of services, at a cost of $27,747.50. BRA

also billed NNP-Bexley for $2,077.20 in reimbursable costs, for

items such as copying, mailing, and preparation of hearing

exhibits. BRA's services provided in support of the litigation

were reasonable and necessary. BRA's estimated services in

preparation for and attending the hearing on sanctions would be

an additional $1,000.00.

9. Mortensen Engineering, Inc. (MEI), entered into a

retainer agreement with NNP-Bexley to provide environmental

expert services in support of NNP-Bexley's litigation of

Petitioner's ERP challenge. MEI provided 51 hours of services,

at a cost of $5,610.00. MEI also billed NNP-Bexley for $840.00

in reimbursable costs, for CAD services and Fed-Ex mailing

charges. MEI's services provided in support of the litigation

were reasonable and necessary.

10. MEI's services in preparation for and attending the

hearing on sanctions required an additional 5 hours of services

at $110.00 an hour, for a total of $550.00.

11. Marty Sullivan, a professional engineer, entered into

a retainer agreement with NNP-Bexley to provide groundwater and

modeling expert services in support of NNP-Bexley's litigation

of Petitioner's ERP challenge. Mr. Sullivan provided 82 hours

of his own services, with 2 hours of administrative support, at

a cost of $13,381.00. The services provided by Mr. Sullivan in

support of the litigation were reasonable and necessary.

12. Mr. Sullivan estimated his services in preparation for

and attending the hearing on sanctions would require an

additional 8 hours of services, at a cost of $1,560.00.

13. The District seeks recovery of its costs, not

attorney's fees. The District's costs include $10,914.33 in

costs incurred, including Division of Administrative Hearings'

services and court reporting costs.

14. Petitioner did not rebut Respondents' testimony and

evidence regarding the amount, reasonableness, and necessity of

the fees and costs incurred.

15. Petitioner is a beneficiary and trustee of a trust

that holds title to what was referred to as the Blanco Property

at the final administrative hearing. NNP-Bexley requests a

finding that Dr. Blanco filed his ERP challenge as trustee on

behalf of the trust. Dr. Blanco's challenge alleged standing

based on injury to the trust's property, but it did not name the

trust as a party, and the evidence did not prove that Dr. Blanco

filed the challenge as trustee on behalf of the trust.

CONCLUSIONS OF LAW

16. Fees and costs may be awarded in an administrative

proceeding pursuant to Section 120.569(2)(e), Florida Statutes,

requires that pleadings, such as petitions, be filed based upon

reasonable inquiry, and not for improper purposes, and provides

for sanctions including attorney's fees for filings that violate

those requirements. See Friends of Nassau County, Inc. v.

Fisher Development Co., et al. , 752 So. 2d 42 (Fla. 1st DCA

2000).

17. Section 120.595(1), Florida Statutes, mandates an

award of attorney's fees and costs where a proceeding is brought

for an improper purpose. The court in Burke v. Harbor Estates

Associates, Inc., and Department of Environmental Protection ,

591 So. 2d 1034, 1036-37 (Fla. 1st DCA 1991), stated that the

fee provisions of an earlier codification of the stature are:

. . . intended to shift the cost of

participation in a Section 120.57(1)

proceeding to the nonprevailing party if the

nonprevailing party participated in the

proceeding for an improper purpose.

[Footnote omitted.] A party participates in

the proceeding for an improper purpose if

the party's primary intent in participating

is any of four reasons, viz: to harass, to

cause unnecessary delay, for any frivolous

purpose, 1 or to needlessly increase the

prevailing party's cost of securing a

license or securing agency approval of an

activity.

This cost shifting protects parties from financial loss from

frivolous, unsubstantiated challenges brought for an improper

purpose.

18. The Recommended Order, adopted in its entirety in the

Final Order, determined that "[b]ased on all the evidence in

this case, it is concluded that Blanco participated in this case

for an improper purpose."

19. In determining the amount of reasonable attorney's

fees, it is appropriate to utilize the criteria set forth in the

Florida Bar Code of Professional Responsibility. Florida

Patient's Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla.

1985). Rowe requires an attorney seeking to establish the

amount of fees to provide detailed records of the services

provided, and establish the prevailing "market rate" in the

community. Florida Patient's Compensation Fund v. Rowe , supra

at 1150-1151.

20. Rule 4-1.5 of the Florida Bar Code of Professional

Conduct directs consideration of the following criteria:

a. The time and labor required, the

novelty, complexity, and difficulty of the

questions involved, and the skill requisite

to perform the legal service properly;

b. The likelihood that the acceptance of

the particular employment would preclude

other employment by the lawyer;

c. The fee, or rate of fee, customarily

charged in the locality for legal services

of a comparable or similar nature;

d. The significance of, or amount involved

in, the subject matter of the

representation, the responsibility involved

in the representation, and the results

obtained;

e. 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;

f. The nature and length of the

professional relationship with the client;

g. 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

h. 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.

21. Rowe and the Rule 4-1.5 criteria have been applied to

fee determinations in administrative proceedings. See Brown v.

Capital Circle Hotel Company , DOAH Case No. 04-1591F, 2002 Fla.

Div. Adm. Hear. LEXIS 1712 (DOAH Sept. 4, 2002).

22. Respondent NNP-Bexley presented unrebutted testimony

and evidence that it incurred $144,765.25 in reasonable and

necessary attorney's fees in litigating Petitioner's ERP

challenge. NNP-Bexley provided that detailed records of

services required by Rowe , and established the market rate for

attorney's fees of $300.00 to $400.00 an hour for this type of

service. NNP-Bexley established through unchallenged and

unrebutted expert testimony that the attorney's fees were

reasonable pursuant to the criteria, established by Rule 4-1.5

of the Florida Bar Code of Professional Conduct and Rowe , supra .

23. NNP-Bexley did not seek attorney's fees for litigating

the amount of fees to be awarded after entitlement was

established by the Final Order and Order on Sanctions in

apparent recognition of the general Florida law that attorney's

fees are not to be awarded for litigating the amount of fees.

See , e.g. , Wight v. Wight , 880 So. 2d 692, 695 (Fla. 2d DCA

2004). But see Condren v. Bell , 2003 Fla. App. LEXIS 13988,

at *2-3 (Fla. 4th DCA 2003)( " because the fees awarded for

litigating the issue of fees was a sanction and supported by

substantial competent evidence, the award does not run afoul of"

the general law disallowing such fees). However, NNP-Bexley

does seek expert witness fees incurred in proving the amount of

fees and costs to be awarded. Logically, there is "no cogent

reason why a consistent rule should not be followed in

considering expert witness fees . . . ." Seminole County v.

Chandrinos , 816 So. 2d 1241, 1246 (Fla. 5th DCA 2002). For that

reason, the amount of expert witness fees to be awarded is

$75,889.30, not the $89,090.49 requested.

24. The total amount of fees and costs that should be

awarded to NNP-Bexley under Section 120.595, Florida Statutes,

is $220,654.55.

25. The District submitted unrebutted evidence that it

incurred $10,914.33 in reasonable costs (including Division of

Administrative Hearings' costs and court reporter fees). These

costs are recoverable under Section 120.595(1), Florida

Statutes.

26. The District is entitled to an award of $10,914.33 in

costs.

27. NNP-Bexley is also entitled to an award of fees and

costs pursuant to Section 120.569(2)(e), Florida Statutes, in

accordance with the findings of the Order on Sanctions.

However, this award is subsumed by the finding of entitlement to

all fees and costs under Section 120.595, Florida Statutes.

28. It is not appropriate for the award of sanctions to be

entered against the trust that owns the Blanco Property, as well

as against Dr. Blanco individually.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioner, Dr. Octavio Blanco, must

within 30 days of the date of this Final Order on Sanctions pay

Respondent NNP-Bexley $220,654.55 in fees and costs, and pay

Respondent District $10,914.33 in costs.

DONE AND ORDERED this 10th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of February, 2009.

ENDNOTE

1/ Unless otherwise noted, references to statutes are to the

2008, Florida Statutes.

COPIES FURNISHED :

David Smolker, Esquire

Margaret M. Craig, Esquire

Bricklemyer, Smolker & Bolves, P.A.

500 East Kennedy Boulevard, Suite 200

Tampa, Florida 33602-4936

Matthew C. Mitchell, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604-6899

Mara Shaughnessy, Esquire

Mara Shaughnessy, P.A.

652 East Bloomingdale Avenue

Brandon, Florida 33511

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 the original

Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a copy, accompanied by filing fees

prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the Appellate

District where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.