03-002153 Jude Alcegueire vs. Emc Mortgage Corporation Status: Closed DOAH Final Order on Wednesday, April 28, 2004.

Summary: The Respondent, as the prevailing party, is entitled to attorney`s fees and costs which are fully supported by the record.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDE ALCEGUEIRE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2153F

)

EMC MORTGAGE CORPORATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice a form al hearing was held in this case

on March 26, 2004, by video teleconference with the Respondent

appearing from Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petition er: No Appearance

For Respondent: Norman Davis, Esquire

Steele, Hector, & Davis, LLP

200 South Biscayne Boulevard

Miami, Florida 33131 - 2398

STATEMENT OF THE ISSUE

The amount of attorne ys' fees and costs the Respondent is

entitled to recover pursuant to the Recommended Order entered in

the underlying case.

PRELIMINARY STATEMENT

This case evolved from the unfinished business of an

underlying matter wherein the Petitioner, Jude Alceguir e,

unsuccessfully claimed that the Respondent, EMC Mortgage

Corporation, had violated the Fair Housing Act, Sections 760.20 -

760.37, Florida Statutes, and had thereby committed an act of

discrimination based upon the Petitioner's race. The

Recommended Orde r entered in that matter concluded that the

Petitioner had failed in almost every aspect to prove his case.

The Final Order entered by the Florida Commission on Human

Relations affirmed the Recommended Order and dismissed the

Petitioner's claim with preju dice. The Final Order was entered

on February 27, 2004.

In reaching the conclusions set forth in the Recommended

Order, Judge Meale tracked the Petitioner's allegations and

concluded that he "was obviously using the administrative

process merely for leve rage to strike a deal, not to vindicate

his good - faith claims of racial discrimination in housing."

Further, the Recommended Order retained jurisdiction in this

cause to enter attorneys' fees and costs pursuant to Section

57.105(5), Florida Statutes.

Af ter attempting to resolve the issue of attorneys' fees

and costs (subsequent to the entry of the Recommended Order),

the Respondent filed the instant motion and the case was set for

hearing. All parties were provided notice of the hearing.

At the hearin g, the Respondent presented testimony from two

attorneys: Richard Celler and Robert Turk. The Respondent's

exhibits in support of the requests were received in evidence.

The Petitioner did not appear for the hearing, did not object to

the presentation of the witnesses or exhibits, and did not

timely file any evidence to dispute the reasonableness of the

attorneys' fees and costs sought by the Respondent.

The transcript of the proceeding was filed on April 2,

2004. The Respondent's Proposed Order was fil ed on April 5,

2004. The Petitioner did not timely file any post - hearing

proposal.

FINDINGS OF FACT

1. The Respondent, EMC Mortgage Corporation, was the

prevailing party in the underlying case.

2. The Recommended Order entered in this cause was

affirmed by the Florida Commission on Human Relations and

delineated numerous failures of the Petitioner's case: a single

alleged (and discredited) racial epithet; the failure to

establish that the parties' business relationship was within the

corners of a protec ted business activity; the failure to

establish that the Respondent had failed to meet some legal

obligation it owed to the Petitioner; and the failure to

demonstrate that the Respondent was somehow obligated to take

the harassing and irrational telephone calls purportedly made

under the guise of an oral obligation imputed to the Respondent.

In short, the Petitioner's essential allegations were not

established.

3. Additionally, the Recommended Order provided, in

pertinent part:

24. Unable to obtain Respo ndent's

agreement to Petitioner's post - release claim

to another adjustment almost three and one -

half years after the closing of the mortgage

with an unrelated party, Petitioner decided

to transform his claim to one of racial

discrimination, even though he was missing

key elements to such a claim, including the

racial epithet that Petitioner manufactured.

25. Petitioner's repeated,

unprecedented attempts to disrupt the

administrative process preclude any

inference of good faith on his part. To the

contrar y, Petitioner was obviously using the

administrative process merely for leverage

to strike a deal, not to vindicate his good -

faith claims of racial discrimination in

housing.

4. In conclusion, the Recommended Order ordered that:

...pursuant to Section 57 .105(5),

Florida Statutes, Petitioner shall pay

Respondent its reasonable attorneys' fees

and damages in the form of recoverage costs

in connection with the defense of this case.

5. In connection with the defense of this case, the

Respondent's attorneys expended 142 hours in service to the

Respondent's cause. A paralegal worked 31.2 hours on the

matter. The hours expended and the hourly rates of compensation

for the attorneys and paralegal are reasonable given the nature

of the controversy. Of the appr oximately $45,000 in attorneys'

fees billed to the Respondent for the services rendered in this

cause, the Respondent seeks recovery of $37,653.00.

6. The amount of $37,653.00 for attorneys' fees in this

cause is reasonable and is fully supported by the evidence

presented at hearing and the testimony of Robert Turk. In the

absence of any evidence to the contrary, that amount is accepted

as the appropriate compensation for the fees incurred by the

Respondent.

7. As to the costs incurred in this matter, the Respondent

has established it incurred costs exceeding $858.25. In the

absence of any evidence to the contrary, that amount is accepted

as the appropriate costs that may be recovered by the

Respondent.

8. Robert Turk has practiced law in Florida for 25 years.

His expertise in litigation, administrative matters, and

knowledge of the legal community in South Florida has been

largely credited in determining the reasonableness of the hourly

rates and hours expended by the attorneys in this cause.

Mr. T urk's assessment that the fees are reasonable was based on

his review of the record in this case as well as his familiarity

of the fees normally charged in the South Florida region.

9. Similarly, the costs associated with the case have also

been deemed r easonable and are far less than those actually

billed and incurred by the client.

10. Again, the Petitioner did nothing to contest the

amounts of either the attorneys' fees sought or the costs

incurred by the Respondent.

CONCLUSIONS OF LAW

11. The Divisi on of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 57.105(5), 120.569 and 120.57(1), Fla. Stat.

12. Section 57.105(5), Florida Statutes, provides:

In administrative proceedings under chapter

120, an administrative law judge shall award

a reasonable attorney's fee and damages to

be paid to the prevailing party in equal

amounts by the losing party and a losing

party's attorney or qualified representative

in the same manner and upon the same bas is

as provided in subsections (1) - (4). Such

award shall be a final order subject to

judicial review pursuant to s. 120.68 . If

the losing party is an agency as defined in

s. 120.52 (1), the award to the prevailing

party shall be against and paid by the

age ncy. A voluntary dismissal by a

nonprevailing party does not divest the

administrative law judge of jurisdiction to

make the award described in this subsection.

13. The Recommended Order entered in this cause made

specific findings and conclusions rega rding the Respondent's

entitlement to attorneys' fees and costs. This Final Order

therefore does not address the Respondent's entitlement to fees.

Instead, this Final Order addresses the issue of whether the

amounts claimed by the Respondent are reasonab le and appropriate

under the evidence presented in this matter. It is concluded

they are.

14. Courts have long - established that to determine an

award of attorneys' fees, the reasonableness of the hourly rate

as well as the number of hours expended must b e considered.

Centex - Rooney Construction Co. v. Martin County , 725 So. 2d 1255

(Fla. 4th DCA 1999). Additionally, a prevailing party is

entitled to recover only fees that are "reasonably expended."

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

(Fla. 1985).

15. To make these determinations the following criteria

should be applied:

(1) time and labor required, novelty and

difficulty of question involved, and skill

requisite to perform legal service properly,

(2) likelihood, if app arent to client, that

acceptance of particular employment will

preclude other employment by lawyer,

(3) fee customarily charged locally for

similar legal services,

(4) amount involved and result obtained,

(5) time limitations imposed by client or

cir cumstances,

(6) nature and length of professional

relationship with client,

(7) experience, reputation, and ability of

lawyer performing services, and

(8) whether fee is fixed or contingent.

Martin County, supra .

16. In this case the attorneys re presenting the Respondent

did not expend excessive amounts of time preparing for or

defending the Petitioner's claims. According to Mr. Turk, based

upon his review of the time records, the attorneys

conservatively prepared until it was evident that the ma tter

would proceed to formal hearing. The Petitioner has not refuted

Mr. Turk's expert opinions as to the reasonableness of the times

and fees charged by the attorneys for the Respondent.

Similarly, the costs incurred by the Respondent are accepted as

ap propriate.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Respondent, as the prevailing party

in this cause, recover from the Petitioner the amounts of

$37,653 representing reasonable attorneys' fees and $858. 25 in

appropriate costs. Petitioner shall within 30 days of this

Final Order remit to the Respondent the full amounts set forth.

DONE AND ORDERED this 28th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 April, 2004.

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Derick Daniel, Executive Director

Flo rida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jude Alcegueire

2913 Southw est 68th Avenue

Miramar, Florida 33023

Norman Davis, Esquire

Steel, Hector & Davis, LLP

200 South Biscayne Boulevard, Suite 4000

Miami, Florida 33131 - 2398

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitl ed 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 file d within 30 days of rendition of the order to

be reviewed.