03-001955F Casa Febe Retirement Home, Inc., D/B/A Home Is Where The Heart Is vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Monday, March 28, 2005.

Summary: Petitioner is not entitled to additional fees and costs that it omitted from the original award. Additional amounts are barred by res judicata. The statute that increases the award limit does not apply retroactively.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASA FEBE RTMT HOME, INC., )

d/b/a HOME IS WHERE THE HEART )

IS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1955F

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on February 10, 2005,

in St. Petersburg, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

A PPEARANCES

For Petitioner: Colleen O'Rourke, Esquire

The Strategic Counsel, L.C.

4805 West Laurel Street, Suite 230

Tampa, Florida 33607

For Respondent: Gerald L. Pickett, Esquire, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Sebring Building, Suite 330K

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

The issues for determination is whether Petit ioner is

entitled to attorney's fees and costs, pursuant to Section

57.111, Florida Statutes (2002), and, if so, in what amount.

PRELIMINARY STATEMENT

In a previous proceeding, the undersigned denied

Petitioner's request for attorney's fees and costs. Pe titioner

appealed the decision, and the appellate court ordered the

undersigned to grant Petitioner's request for attorney's fees

and costs in the amount of $10,889.00.

Respondent does not contest the order of the appellate

court, and there are no disput ed issues of fact or law

concerning the appellate court's order. The disputed issues of

fact and law presented in this proceeding involve additional

attorney's fees and costs that Petitioner claims are due for

matters ancillary to the first proceeding.

At the hearing, Petitioner presented the testimony of one

witness and submitted two exhibits for admission into evidence.

Respondent called no witnesses and submitted no exhibits for

admission into evidence. The ALJ granted, without objection,

Respondent's request for official recognition of the record in

the previous proceedings.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the Transcript of the hearing

filed with DOAH on February 25, 2005. Petitioner and Res pondent

timely filed their respective proposed final orders on March 9

and 4, 2005.

FINDINGS OF FACT

1. It is undisputed that Petitioner is entitled to $10,889

in attorney fees and costs pursuant Casa Febe Retirement Home,

Inc. v. Agency for Health Car e Administration , 892 So. 2d 1103

(Fla. 2d DCa 2004). Respondent also agrees to pay $310.00 in

appellate costs.

2. Petitioner requested the foregoing attorney's fees and

costs in a petition filed with DOAH on May 22, 2003. The

petition included all fe es and costs incurred from March 21,

2002, through May 21, 2003.

3. The original proceeding began on April 29, 2002, when

Respondent, as Petitioner in the original proceeding, filed an

administrative complaint. The ALJ conducted the administrative

hear ing, closed the evidentiary record on August 1, 2002, and

entered a Recommended Order on October 21, 2002. Respondent

filed its Final Order with DOAH on March 26, 2003. Agency for

Health Care Administration v. Casa Febe Retirement Home , Case

No. 02 - 1659 (DOAH October 21, 2002).

4. On November 19, 2003, the ALJ conducted an

administrative hearing concerning Petitioner's request for

attorney's fees and costs. During the hearing, Petitioner

submitted evidence of separate amounts of attorney's fees of

$6 ,890 and $3,760, totaling $10,650.00, and costs of $239.00.

The separate parts total $10,889.00 (the original amount). The

ALJ issued the Final Order denying fees and costs on

December 12, 2003. Casa Febe Retirement Home, Inc. v. Agency

for Health Care Administration , Case No. 03 - 1955 (DOAH

December 12, 2003). The appellate court reversed the Final

Order and ordered the ALJ to enter an order awarding $10,889.00

in attorney's fees and costs to Petitioner.

5. Petitioner submitted its proposed final ord er in the

original fee case on December 4, 2003, with a supplemental

petition requesting additional attorney's fees and costs of

$7,797.75 (the additional amount). The additional amount was

attributable to fees and costs incurred from May 28 through

Decem ber 4, 2003.

6. The Final Order issued by the undersigned on

December 4, 2003, did not address the additional amount of fees

and costs, but was limited to the original amount. Petitioner

did not include the additional amount in the appeal of the Final

Order.

7. During the hearing conducted in the instant proceeding,

Petitioner amended the additional amount by adding $797.50.

Petitioner made the amended claim by ore tenus motion entered in

the record of the hearing. The total amount of attorney's fees

and costs at issue in this proceeding is $8,595.25.

8. Judicial decisions discussed hereinafter require four

"identities" to be present before a later cause of action is

barred by the doctrine of res judicata . The facts show that

each identity is pres ent in this proceeding.

9. Petitioner's claim is a cause of action for attorney's

fees and costs identical to that conducted in the underlying

proceeding. The parties are identical. The quality or capacity

of the persons for whom the claim is made are identical.

10. The thing sued for is identical to the attorney's fees

and costs sued for in the underlying proceeding. The additional

amount of fees and costs and the amendment are an incident to or

essentially connected with the original subject matt er.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the parties and the subject

matter in this proceeding. § 57.111(4)(d), Fla. Stat. (2004).

DOAH provided adequate notice of the administrative hearing.

12. Petitioner is entitled to $10,889.00 in attorney's

fees for the period between March 21, 2002, and May 21, 2003,

and appellate costs in the amount of $310.00.

13. Petitioner claims it is entitled to additional and

amended attorney's fees and costs in the amount of $8,595.25

because the statutor y limit on an award of attorney's fees and

costs was increased from $15,000 to $50,000 on June 4, 2003.

Ch. 03 - 94, § 10, Laws of Fla. The claim for additional and

amended attorney's fees is barred by the doctrine of res

judicata . Tyson v. Viacom , 890 So . 2d 1205, 1208 - 1209 (Fla. 4th

DCA 2005).

14. The right to receive and the obligation to pay

attorney's fees is ancillary to and an incident of the accrual

of the underlying cause of action. Therefore, the right to

recover attorney's fees accrues at the time of the underlying

cause of action. Bitterman v. Bitterman , 714 So. 2d 356 (Fla.

1998).

15. The increase in statutory limit for an award of

attorney's fees is not procedural and does not operate

retroactively. Substantive law prescribes duties and r ights

while procedural law prescribes means and methods for enforcing

substantive rights and duties. Alamo Rent - A - Car, Inc. v.

Mancusi , 632 So. 2d 1352, 1358 (1994). The right to attorney's

fees is a substantive right and an increase in the burden on the

party paying an award of attorney's fees and costs cannot be

applied retroactively. L. Ross, Inc. v. R. W. Roberts

Constuction Co. , 466 So. 2d 1096 (Fla. 5th DCA 1985) approved,

481 So. 2d 484 (Fla. 1986). See also Stolzer v. Magic Tilt

Trailer , 878 So. 2d 437 (Fla. 1st DCA 2004); Ship Shape v.

Taylor , 397 So. 2d 1199 (Fla. 1st DCA 1981).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for attorney's fees and costs in the

amount of $10,889.00 an d the claim for $310.00 in appellate

costs are granted, but Petitioner's claim for additional

attorney's fees and costs in the amount of $8,595.25 is denied.

DONE AND ORDERED this 28th day of March, 2005, 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 28th day of March, 2005.

COPIES FURNISHED :

Colleen O'Rourke, Esquire

The Strategic Counsel, L.C.

4805 West Laurel Street, Suite 230

Tampa, Florida 33607

Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Sebring Building, Suite 330K

St. Petersburg, Florida 33701

Richard Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

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 Administrati ve 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 d ays of rendition of the order to

be reviewed.