01-000786 Jerry Ann Winters vs. Board Of Regents And University Of South Florida Status: Closed DOAH Final Order on Tuesday, August 1, 2006.

Summary: Hearsay evidence not sufficient to establish facts for termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY ANN WINTERS, )

)

Petitioner, )

)

vs. ) Case No. 01-0786

)

BOARD OF REGENTS AND UNIVERSITY )

OF SOUTH FLORIDA, )

)

Respondents. )

)

ORDER ON FEES

Pursuant to an Order of the Second District Court of

Appeals dated November 8, 2002, this matter came on for final

hearing on April 5, 2004, by videoconference between Tallahassee

and Tampa, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

Petitioner: Mark F. Kelly, Esquire

Robert F. McKee, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Respondent: John W. Campbell, Esquire

Constagny, Brooks & Smith, LLC

100 West Kennedy Boulevard, Suite 500

Post Office Box 1840

Tampa, Florida 33601-1840

STATEMENT OF THE ISSUE

The amount of attorneys' fees and costs to be awarded to

Jerry Ann Winters (Petitioner) based on the Order of the Second

District Court of Appeals dated November 8, 2002, and pursuant

to Subsection 120.595(5), Florida Statutes (2003).

PRELIMINARY STATEMENT

This matter was the subject of a prior administrative

hearing conducted on April 23 through 25, 2001. The issue in

that case was whether there was cause for the University of

South Florida (USF) to terminate the Petitioner's employment as

a basketball coach. The proposed termination was essentially

based on allegations that the Petitioner had retaliated against

a specific basketball player for filing a claim of racial

discrimination against the Petitioner, and that the Petitioner

had provided false or misleading information to USF officials

during the investigation of the claim. A Recommended Order was

entered on July 2, 2001, which found that the allegations

related to retaliation had not been established by the evidence

presented at the hearing. The Recommended Order further found

that the Petitioner had provided misleading information in a

written response provided to USF officials during the

investigation, but concluded that such information was

insufficient to warrant termination of employment.

On September 28, 2001, USF entered a Final Order that

rejected the Recommended Order. The Petitioner appealed the

Final Order to the District Court of Appeal for the Second

District. Following the filing of briefs and oral argument, the

district court issued an opinion on November 8, 2002, which

reversed the Final Order's rejection of the Findings of Fact set

forth in the Recommended Order related to the allegations of

retaliation. The district court affirmed the Final Order's

rejection of the Recommended Order's conclusion that the

misleading information provided by the Petitioner was

insufficient to warrant termination of employment. The district

court remanded the matter to USF to determine, absent evidence

of retaliation, whether the Petitioner's provision of misleading

information to USF officials warranted termination of

employment.

On February 11, 2002, the Petitioner filed with the

district court a Motion for Attorney's Fees seeking an award of

fees and costs under the provisions of Subsection 120.595(2),

Florida Statutes (2003). By Order dated November 8, 2002, the

district court issued an order providing that the "motion for

attorney's fees is granted in an amount to be set by the trial

court."

On January 23, 2003, the Petitioner filed with the Division

of Administrative Hearings a request for hearing on the amount

of fees to be awarded. The case was reopened, and the hearing

was scheduled to commence on May 16, 2003. The undersigned

Administrative Law Judge subsequently learned that USF had

issued a second Final Order pursuant to the remand, and that the

second Final Order had been appealed to the District Court of

Appeal for the Second District. The May 16, 2003, hearing was

cancelled pending resolution of the appeal.

By notice filed on January 29, 2004, the Petitioner advised

the undersigned that the appeal had been resolved and provided

dates upon which the parties were available for hearing. The

hearing was scheduled for April 5, 2004, based on dates of

availability provided by the parties.

At the hearing, the Petitioner presented the testimony of

three witnesses and had Exhibits numbered 1 and 2 admitted into

evidence. USF presented the testimony of one witness. A

transcript of the hearing was filed on May 7, 2004. Pursuant to

the stipulated schedule of the parties, proposed orders were to

be filed on June 2, 2004. USF timely filed a proposed order.

The Petitioner's Proposed Order was filed on June 3, 2004. Both

proposed orders were duly-considered in the preparation of this

Order.

FINDINGS OF FACT

1. The Petitioner retained attorneys Mark F. Kelly and

Robert F. McKee to represent her in an administrative proceeding

challenging the proposed termination of her employment by USF

and in the appeals that followed the issuance of the Final

Orders by USF.

2. Petitioner's Exhibit 1 is an invoice dated December 18,

2002, submitted to the Petitioner by her legal counsel. The

invoice contains charges billed to the Petitioner for the period

between January 17, 2001, and November 22, 2002. The invoice

indicates a total of 339.75 hours expended on her behalf. The

invoice contains duplicated entries for November 14, 2002.

Discounting the duplication reduces the total hours expended to

339.50. The practice of the Petitioner's counsel is to bill in

quarter-hour increments and to round up. According to the

invoice, the Petitioner was billed at a rate of $275 per hour.

3. Mark F. Kelly graduated from Vanderbilt Law School in

1976. Since then he has practiced labor and employment law in

Florida before state and federal agencies and has a substantial

appellate practice. He was previously awarded fees in the range

of $250 approximately four years ago.

4. Robert F. McKee graduated from Stetson University

College of Law in 1979. He received a Master of Laws degree in

Labor and Employment Law from Georgetown University Law Center

in 1981. Since then he has practiced labor and employment law

in Tampa, Florida. He was previously awarded fees in the range

of $250 approximately four years ago.

5. At the hearing, the Petitioner presented the testimony

of Steven Greg Wenzel. Mr. Wenzel has practiced law in Florida

for more than 30 years and is board-certified in Labor and

Employment Law. He has extensive trial experience. He has

previously provided expert testimony related to the

reasonableness of attorneys' fees in approximately 12 cases.

Mr. Wenzel is familiar with the fees charged by attorneys

representing employees in employment-related cases in central

Florida.

6. Mr. Wenzel's testimony related to the experience,

reputation, and ability of Petitioner's attorneys. It also

indicated that they have substantial experience in the area of

labor and employment law and are well-regarded by their peers.

No credible evidence to the contrary was presented during the

hearing.

7. Mr. Wenzel's testimony adequately addressed the

applicable factors set forth in Rule 4-1.5(b)1 of the Florida

Bar's Rules of Professional Conduct to be considered in

determining the reasonableness of fees. Mr. Wenzel opined that

based on their knowledge and experience, the type and complexity

of the case, and the aggressive nature of the litigation; a

reasonable hourly rate was $290 ranging to $310. Mr. Wenzel's

testimony in this regard is credited. The invoiced rate of $275

per hour is reasonable.

8. Mr. Wenzel also opined that the quarter-hour billing

practice was reasonable and, in fact, conservative related to

other practices with which he was aware. Mr. Wenzel's testimony

in this regard is credited.

9. At the same time that the Petitioner was challenging

the proposed employment termination, a civil case involving the

Petitioner, a number of the basketball players, and USF was

proceeding. In that case, different legal counsel represented

the Petitioner. Review of Petitioner's Exhibit 1 indicates that

the invoice includes charges related to persons and activities

involved in the civil case.

10. Neither Mr. Kelly nor Mr. McKee had any official

involvement in the civil case. Mr. Kelly participated

apparently unofficially in mediation efforts to resolve the

pending disputes.

11. The invoice contains daily total charges for billed

activity. On some days, activity was recorded for both the

administrative case and the civil case. Charges related to the

civil case are not reimbursable in this proceeding.

12. Because the invoice precludes an accurate separation

of time spent on the administrative case from the civil case,

all billings for dates upon which charges were incurred related

to the civil case have been excluded from consideration in this

Order.

13. The charges related to conversations with John

Goldsmith, who represented the Petitioner in the civil case, are

excluded. These charges occurred on March 14, 2001; April 2,

2001; April 6, 2001; September 21, 2001; October 19, 2001; and

May 13, 2002, and total 8.25 hours.

14. The charges related to conversations with Jonathon

Alpert, who represented the basketball players in the civil

case, are excluded. The charges occurred on April 10, 2001, and

April 11, 2001, and total 6.75 hours.

15. The charge related to a conversation with Tom

Gonzalez, who represented USF in the civil case, is excluded.

This charge occurred on April 23, 2002, for .50 hours.

16. The charges related to conversations with Mary Lau,

who was a mediator assigned to the civil case, are excluded.

These charges occurred on April 24, 2002, and May 8, 2002, and

totaled 1.25 hours.

17. The invoice includes a charge for May 15, 2002,

related to a telephone conference with "Judge Scriven" regarding

settlement. Judge Scriven is otherwise unidentified. The

charge, for .25 hours, is excluded.

18. The invoice includes a charge for Mr. McKee's

attendance at mediation on May 16, 2002, related to the civil

case, for 2.5 hours. This charge is excluded.

19. The sum of the excluded time set forth above is 19.50

hours. Deduction of the 19.50 hours from the properly invoiced

total of 339.50 results in a total of 320 hours.

20. Based on Mr. Wenzel's testimony that the invoiced

hours were reasonable given the nature and complexity of this

case, it is found that the reduced level of 320 hours set forth

in the invoice and directly applicable to the administrative

case is a reasonable expenditure of time.

21. The invoice also sets forth costs that were billed to

the Petitioner. The invoice includes numerous routine office

expenses (postage, copying, telephone, and facsimile costs) that

are not properly recoverable costs in this proceeding. Other

billed costs are set forth without sufficient information to

determine the relationship of the cost to the administrative

proceeding. A filing fee with the District Court of Appeal was

billed on January 15, 2001, preceding the administrative hearing

in this case. Further the billed charges include witness fees

for several witnesses, only one of which testified in the

administrative hearing. The invoice also includes service fees

for subpoenas that appear to have been charged subsequent to the

completion of the administrative hearing.

22. Based on review of the invoice, properly recoverable

costs of $307 are found. This sum includes the following items:

witness fee and mileage for Paul Griffin ($7) dated April 5,

2001; service fee for subpoena for Paul Griffin ($50) dated

April 11, 2001; and filing fee-clerk, District Court of Appeal

($250) dated October 5, 2001.

23. Petitioner's Exhibit 2 is a "Retainer and Fee

Agreement" executed by the Petitioner and her counsel which

provides as follows:

Partial contingency fee. Client will pay

for services rendered at the reduced rate of

$110 per hour. To compensate attorney for

this reduced rate and the risk involved in

undertaking a case on these terms, in

addition to the $110 hourly rate, attorney

will be entitled to 25% of any settlement

money or judgment. In the event attorney's

fees are awarded to the client by any court

or tribunal and collected, attorney will be

entitled to such fee (less any amount paid

by client, which will be reimbursed pro

rata) or the partial contingency fee,

whichever is greater.

Attorney requires a retainer deposit from

client in the amount of $2,500, to be

replenished from time-to-time as required to

cover outstanding fees and costs.

24. The Retainer and Fee Agreement is dated December 2,

2002, and the Order of the District Court of Appeal for the

Second District, which granted the Petitioner's Motion for fees

and costs, is dated November 8, 2002. It is unclear whether a

written agreement between the Petitioner and legal counsel

existed prior to the December 2, 2002, agreement.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of the

proceeding. § 120.57, Fla. Stat. (2003).

26. Subsection 120.595(5), Florida Statutes (2003),

provides as follows:

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 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. (emphasis supplied)

27. On February 11, 2002, the Petitioner filed a Motion

for Attorney's Fees with the District Court of Appeals for the

Second District seeking an award of fees and costs under the

provisions of Subsection 120.595(5), Florida Statutes (2003).

By Order dated November 8, 2002, the district court stated that

the "motion for attorney's fees is granted in an amount to be

set by the trial court."

28. The method for determining reasonable attorney's fees,

which is founded on the federal "lodestar approach," is well

established in Florida. The Supreme Court of Florida, in

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

1151-1152 (Fla. 1985), summarized the process of computing

attorney's fees as follows:

In summary, in computing an attorney fee,

the trial judge should (1) determine the

number of hours reasonably expended on the

litigation; (2) determine the reasonable

hourly rate for this type of litigation; (3)

multiply the result of (1) and (2); and,

when appropriate, (4) adjust the fee on the

basis of the contingent nature of the

litigation or the failure to prevail on a

claim or claims.

29. The Petitioner seeks to establish an amount of

reasonable attorneys' fees to be awarded, and thus bears the

burden to demonstrate by a preponderance of the evidence as to

what the amount of reasonable attorneys' fees should be. See

Department of Transportation v. JWC Company , 396 So. 2d 778

(Fla. 1st DCA 1981); Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

30. The evidence presented at hearing, as set forth in the

preceding Findings of Fact, establishes that the invoiced 320

hours directly applicable to the administrative case and

resulting appeal were a reasonable expenditure of time expended

in preparation for the administrative proceeding and in pursuing

the appeal of the first Final Order entered by USF.

31. Further, the evidence presented at hearing establishes

that the invoiced hourly rate of $275 is reasonable given the

nature of the case and the skill and experience of legal counsel

representing the Petitioner. Accordingly, the Petitioner is

entitled to recover attorneys' fees of $88,000.

32. The Respondent asserts that the fee award should be

reduced to zero because the Petitioner was ultimately

unsuccessful in challenging the termination of her employment by

USF. The award of fees in this case is based on the

Respondent's improper rejection of Findings of Fact set forth in

the Recommended Order entered on July 2, 2001. Pursuant to

Subsection 120.595(5), Florida Statutes (2003), the award of

reasonable attorney's fees and costs is mandated.

33. The Petitioner asserts that the fee award should be

increased by a multiplier of between 2 and 2.5 due to the nature

of the case and the experience and skill of the legal

representation provided. The evidence fails to establish that

the fee award should be increased beyond that set forth herein.

The Petitioner was ultimately unsuccessful in challenging the

termination of her employment by the Respondent.

34. As set forth in the preceding Findings of Fact, the

evidence establishes that the Petitioner is entitled to recover

costs in the amount of $307. Normal office expenses of counsel

are not recoverable as costs. Bolton v. Bolton , 412 So. 2d 72,

(Fla. 5th DCA 1982).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby found that the Petitioner is entitled to

recover attorneys' fees in the amount of $88,000 and to recover

costs of $307.

DONE AND ORDERED this 25th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June, 2004.

COPIES FURNISHED :

John W. Campbell, Esquire

Constangy, Brooks & Smith, LLC

Post Office Box 1840

Tampa, Florida 33601-1840

Mark F. Kelly, Esquire

Robert F. McKee, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Olga J. Joanow, Esquire

University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620-5950

Daniel J. Woodring, General Counsel

Board of Regents

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Steve Prevaux, General Counsel

Office of the General Counsel

University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620-6250

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.