04-002339F Mavis R. Georgalis vs. Department Of Transportation Status: Closed DOAH Final Order on Thursday, December 1, 2005.

Summary: Counsel for Petitioner is entitled to fees and costs, which are awarded pursuant to Sections 57.105 and 120.569, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAVIS R. GEORGALIS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2339F

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice , a formal administrative hearing was

held in the above - styled cause on September 27, 2005, in

Tallahassee, Florida, before Don W. Davis, an Administrative Law

Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: M. Stephen Turner, P.A.

Martin A. Fitzpatrick, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

For Respondent: Robert M. Bur dick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

What amount of legal fees and costs should be awarded to

Petitioner pursuant to Section 120.569(2)(e) or 57.105(5),

Florida Statutes, for Respondent’s erroneous classification of

Petitioner’s position and subsequent failure to correct that

error and reclassify Petitioner’s position back to career

service as requested by her in Georgalis v. F.D.O.T. , DOAH Case

No. 03 - 4665SED.

PRELIMINARY STATEMENT

By two (2) Mot ions for Attorney’s Fees and Cost dated

July 6, 2004 and July 29, 2004, Petitioner seeks reimbursement

for fees and costs associated with her challenge of Respondent

Department of Transportation’s (Department) decision to

reclassify her and her position fr om the Career Service System

to Selected Exempt Service pursuant to Section 110.205(2(x),

Florida Statutes (2001).

At the final hearing, Petitioner presented testimony of one

witness, her fee expert Steven J. Menton, and submitted 3

exhibits, including a c omposite exhibit (Exhibit 1) that

included 19 separate subparts (referred to as “Petitioner’s Ex.

1 - ___”). Respondent presented the testimony of two witnesses,

Richard Davis and Michael Mattimore, and submitted 2 exhibits.

A transcript of the final hearin g was filed on October 17,

2005. Petitioner and Respondent timely filed Proposed Final

Orders, which have been reviewed and utilized, as deemed

appropriate, in the preparation of this Final Order.

References to Florida Statutes are to the 2005 edition,

un less otherwise noted.

FINDINGS OF FACT

1. On April 1, 2002, Petitioner was discharged from her

position with the Department without stated cause or hearing.

See Petitioner’s Ex. 1 - 2, Dep’t of Transportation v. FCHR , 842

So. 2d 253, 256 (Fla. 1st D CA 2003).

2. On June 11, 2003, Petitioner was temporarily reinstated

by order of the Circuit Court to her position with the

Department pursuant to section 112.3187(9)(f).

Petitioner’s Ex. 1 - 3.

3. The administrative case underlying this request for

fees and costs was initiated by Petitioner through the filing of

a Petition for Formal Administrative Hearing on August 15, 2002.

Petitioner’s Ex. 1 - 4.

4. In that Petition, Petitioner demonstrated, through

reference to the position description provide d to her by the

Department, that she did not fit within any of the categories of

employees exempted from career service by Section 110.205(2)(x),

Florida Statutes. Petitioner’s Ex. 1 - 4, paragraph 7.

5. Petitioner also put the Department on notice that she

believed the Department’s action in reclassifying her was

“frivolous and was done for an improper purpose,” since it was

contradicted by the Department’s own documents. Petitioner’s

Ex. 1 - 4, paragraph 12. She also requested that she be awarded

approp riate attorneys’ fees and costs. Id.

6. After nearly four months, the Department forwarded the

Petition to the Division of Administrative Hearings for a formal

administrative hearing regarding whether its decision to

reclassify Petitioner was proper. Pe titioner’s Ex. 1 - 5.

7. By this letter, which was filed with the Division of

Administrative Hearings on December 10, 2003, the Department

requested a formal administrative hearing and manifested its

opposition to the relief requested by Petitioner in her

Petition.

8. A hearing was held in DOAH Case No. 03 - 4665SED on

April 15, 2004.

9. Following the preparation of a transcript, the parties

submitted Proposed Recommended Orders. Petitioner filed a

Motion to Strike portions of the Department’s Proposed

Recommended Order because it improperly raised an argument that

Petitioner could properly be exempted from career service

because she was an “administrator.” Petitioner’s Ex. 1 - 6.

That Motion was granted. Petitioner’s Ex. 1 - 7. 1/

10. On July 2, 2004, the undersigned entered a Recommended

Order concluding that Petitioner was improperly reclassified

into Select Exempt Service. Petitioner’s Ex. 1 - 8, p. 12.

11. On September 1, 2005, the Department entered a Final

Order adopting the Recommended Order e ntered in DOAH Case No.

03 - 4665SED. 2/ Petitioner’s Ex. 1 - 11.

12. Paragraph 13 of the fully - adopted Recommended Order

states that:

based on the duties and responsibilities

contained in Petitioner’s position

description and the actual duties she

performed, there is no basis for concluding

that Petitioner was subject to exemption

from career service as concluded by

Respondent in July 2001.

Petitioner’s Ex. 1 - 8, paragraph 13.

13. In paragraph 19 of the fully - adopted Recommended

Order, the undersigned conclu ded that:

[t]he suggestion of the Respondent’s witness

that the exemption should apply if a state

employee is assigned to work with anyone

retained or commissioned by Respondent to

perform services for Respondent, however

menial the task, simply misconstru es the

statutory exemption: the relevant issue for

the purposes of the exemption is whether

such persons are department “employees,” not

whether a department has contracted or

engaged their services as independent

technical consultants. Such contract

adm inistration is not relevant to the issue

of whether Petitioner could properly be

classified as a selected exempt employee.

Petitioner’s Ex. 1 - 8, paragraph 19.

14. Following entry of the Recommended Order, Petitioner

filed her two (2) Motions for Attorneys ’ Fees. Petitioner’s Ex.

1 - 12 and 1 - 13. These motions seek an award of attorney’s fees

and costs based on the lack of factual or legal support for the

Department’s opposition to Petitioner’s request that the

Department correct its error in reclassifying her position to

Select Exempt Service. Id.

15. Petitioner submitted an affidavit and itemized

statement of the requested hours, a summary of hours by the

attorney, and a summary of costs incurred in this matter.

Petitioner’s Ex. 1 - 14. Petitioner also su bmitted the testimony

of J. Steven Menton, Esquire, who corroborated the

reasonableness of the services and time expended by Petitioner’s

counsel and also confirmed the reasonableness of the fees

charged and costs incurred by Petitioner’s counsel for those

services.

16. The Department did not contest the number of hours

sought by Petitioner’s counsel. Respondent did offer the

testimony of Michael Mattimore, Esquire, who was also counsel of

record for the Department in this case, suggesting that the

rates charged by Petitioner’s counsel exceeded those which are

normally charged by similar attorneys in the community.

Mattimore’s testimony related to fees charged in “employment”

law cases in which he has been involved during his career and

did not focus on administrative litigation challenging the

actions of a governmental agency, such as the present case which

involved more than merely examining the factual circumstances

surrounding a discharge or other adverse employment action.

17. Confirming the comple xity of the underlying case was

Mattimore’s testimony regarding the outcome in other

reclassification cases. The great majority of reclassification

challenges (more than 95 percent of them) have been resolved in

favor of the governmental agency or have no t been pursued by the

impacted employee. Id. The outcome obtained by attorneys for

Petitioner in the underlying case is suggestive of fees toward

the high end of the range.

18. Petitioner reported the following hours and rates

(Petitioner’s Ex. 1 - 14):

LAWYERS : Hours Rate Amount

M. Stephen Turner, P.A. 44.40 $400 $17,760.00

David K. Miller, P. A. 1.00 $300 $ 300.00

Martin A. Fitzpatrick 228.50 $250 $57,125.00

Brooke Lewis .90 $200 $ 80.00

TOTAL ATTORNEY HOURS 274.80 $ 75,365.00

Paralegals :

Hours Rate Amount

Theresa J. Everhart 1.90 $80 $152.00

Trishia Finkey 1.00 $80 80.00

TOTAL PARALEGAL HOURS 2.90 $ 232.00

TOTAL LEGAL FEES: $75.597.00

19. The hours and rates requested are foun d to be

reasonable in view of the novelty and complexity of the issues,

level of legal skills required, and the result obtained for the

Petitioner. The rates sought are in line with fees charged by

similarly - situated attorneys for similar work in the comm unity.

The amount requested is reasonable and justified under the

circumstances. Moreover, the costs and expenses for which

reimbursement is sought ($1,523.25) and the expert witness fees

of $1400 ($280 /hour for 5 hours) are also reasonable and are of

a kind typically billed to clients in addition to the hourly

rate charged.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 57.105 and 120.569(2)(e), Fla. Stat.

21. Section 57.105, Florida Statutes, provides, in

relevant part:

(1) Upon the court's initiative or motion

of any party, the court shall award a

reasonable attorney's fee to be paid to the

prevailing party . . . on any claim or

defense at any time during a c ivil

proceeding or action in which the court

finds that the losing party or the losing

party's attorney knew or should have known

that a claim or defense when initially

presented to the court or at any time before

trial:

(a) Was not supported by the m aterial

facts necessary to establish the claim or

defense; or

(b) Would not be supported by the

application of then - existing law to those

material facts.

* * *

(4) A motion by a party seeking sanctions

under this section must be served b ut may

not be filed with or presented to the court

unless, within 21 days after service of the

motion, the challenged paper, claim,

defense, contention, allegation, or denial

is not withdrawn or appropriately corrected.

(5) 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 the same manner and upon the same

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

Such award shall be a final order su bject to

judicial review pursuant to s. 120.68.

22. Section 120.569(2)(e), Florida Statutes, provides:

(e) 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 represe ntative. 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 appr opriate

sanction, which may include an order to pay

the other party or parties the amount of

reasonable expenses incurred because of the

filing of the pleading, motion, or other

paper, including a reasonable attorney’s

fee.

23. Once th ere is a finding of fact or a conclusion of law

that the Department’s defense in this case was not supported by

material facts or was not supported by then - existing law, the

award of fees is mandatory under Section 57.105. See Morton v.

Heathcock , 30 Fla. L. Weekly D2163, D2164 (Fla. 3rd DCA

September 14, 2005) (use of the word “shall” in Section 57.105

confirmed legislative intent that fees be awarded if the court

makes the required findings). Similarly, Section 120.569(2)(e)

mandates an “appropriate san ction,” which may include attorney’s

fees and costs, once there is a finding that a “pleading, motion

or other paper” has been filed for an improper or frivolous

purpose.

24. Here, the Recommended Order entered on July 2, 2004,

confirmed that the Depa rtment’s opposition to Petitioner’s

request for proper reclassification as a career service position

was not supported by the operative facts or the then - existing

law. See Petitioner’s Ex. 1 - 8, paragraphs 13, 19 and 20.

Accordingly, fees and costs must b e awarded to Petitioner under

Section 57.105(5) and should be awarded under Section

120.569(2)(e), Florida Statutes. The Department should be

sanctioned for taking an untenable position in this litigation,

and then refusing to concede once that position w as exposed as

frivolous. See Id. ; King v. Florida Parole Commission , 898 So.

2d 1100, 1101 (Fla. 1st DCA 2005) (fees should have been awarded

under section 57.105 where trial court concluded that losing

party’s interpretation of applicable statute was “la cking merit”

and “untenable”); Procacci Commercial Realty, Inc. v. Dep’t of

Health , 690 So. 2d 603, 608 (Fla. 1st DCA 1997) (citing Good

Samaritan Hosp. v. Dep’t of Health , 582 So. 2d 722, 723 and

stating that agency action which is not supported by a

perm issible interpretation of applicable statutes and rules

constitutes an “improper purpose” even in the “absence of

frivolousness”).

25. The Department contends that Petitioner should be

precluded from recovering fees in this case because she did not

file he r motion for fees until after a recommended order was

issued. Such a position ignores Petitioner’s assertion, in her

Petition for Administrative Hearing and subsequently filed

documents that because the Department’s “own documents confirm

that Petitioner was improperly reclassified as selected exempt,

the Department’s action in doing so was frivolous and was done

for an improper purpose.” Petitioner’s Ex. 1 - 4, paragraph 12. 3/

The Department has been on notice from the very beginning of

this case that Pet itioner regarded the Department’s defense as

frivolous and improper, and that position has been maintained

throughout these proceedings. Respondent had ample opportunity

to mitigate or avoid the award of fees resulting from a

frivolous defense in this mat ter.

26. Section 57.105 only requires that a respondent be

afforded an opportunity to correct its behavior before sanctions

are levied against it for taking a frivolous position. See

Maxwell Building Corp. v. Euro Concepts , LLC, 874 So. 2d 709,

711 (Fla . 4th DCA 2004) (“the primary purpose of section

57.105(4) is not to spring a procedural trap on the unwary so

that valid claims are lost. Rather, its function is to give a

pleader a last clear chance to withdraw a frivolous . . .

defense”). 4/ Similarly, Section 120.659(2)(e) only requires

Petitioner to put the Department on notice that Petitioner

believes Respondent has adopted a frivolous position and to seek

appropriate relief from the ALJ for such action. Here, there is

no question that Respondent an d the ALJ had notice of

Petitioner’s request for fees based on her position that

Respondent was adopting a frivolous and improper defense. 5/

27. Moreover, as required by Section 57.105(4), Petitioner

provided the Department with a 21 - day cure period in w hich the

Department could have taken steps to withdraw its defense or

take other appropriate corrective action. For example, the

Department could have abandoned its opposition to Petitioner’s

request and entered a Final Order adopting the Recommended

Orde r. Such action would have been “laudable” and would have

avoided an award of fees under Section 57.105. See Dep’t of

Highway Safety and Motor Vehicles v. Salter , 710 So. 2d 1039,

1041 (Fla. 2nd DCA 1998) (DMV avoided award of fees by not

defending indefe nsible order that was the subject of petition

for certiorari); see also Dep’t of Transportation v. South ,

(DOAH Case No. 03 - 4258 2003) (denying request for fees where

party dismissed underlying petition and did not appeal order

relinquishing jurisdiction i n related administrative case). The

Department did not do so, but instead continued to litigate

whether its reclassification action was appropriate, going so

far as to obtain a stay of the administrative proceedings

pending its intended untimely appeal. 6/ Accordingly, this case

is distinguishable from other cases in which attorney’s fees are

sought after the conclusion of the case because the Department

did not abandon its defeated position, continuing instead to

litigate the matter beyond the 21 - day cure period.

28. Petitioner afforded The Department a “last clear

chance” to withdraw its frivolous defense. Maxwell , 874 So. 2d

at 711.

29. Having failed to take appropriate action to correct

the matter, the Department is responsible for the fees incurr ed

by Petitioner in prosecuting this case against the Department’s

“stonewall” defense. See Dep’t of Transportation v. James , 681

So. 2d 886, 887 – 888 (Fla. 3rd DCA 1996) (one of the purposes of

Section 57.105 is to put a price tag on stonewalling by

Defen dant who refuses to concede there is no basis for defending

action); Dep’t of Transportation v. South , (DOAH Case No. 03 -

4258 2003) (citing commentary to Rule 11 and concluding that

purpose of 21 day “safe harbor” was intended to limit sanctions

to those s ituations where a party “refuses to withdraw [its

position] or to acknowledge candidly that it does not currently

have evidence to support a specified allegation”).

30. The Department asserted in its Motion for Summary

Recommended Order that it is no t subject to an award of fees in

this case under Section 120.569(2)(e) 7/ because its “defense” was

not reflected in any pleading or paper which would give rise to

a claim. The Department’s letter of December 10, 2003

(Petitioner’s Ex. A - 5), by which Respo ndent referred this matter

to DOAH for an administrative hearing, however, constitutes such

a “paper.” 8/

31. Additionally, Section 57.105 and similar statutes have

been interpreted to require an award of fees and costs in the

absence of an official respo nse by the defending party where:

[the prevailing party] is impelled, by the

losing party, to waste judicial resources

and needlessly expend his own time and

money. This can occur when a losing party

raises issues that are not justiciable, and

it can occu r when, as here, the losing party

has forced the plaintiff to resort to the

courts even though there were no justiciable

issues that can be raised in defense.

Castaway Lounge of Bay County, Inc. v. Reid , 411 So. 2d 282, 284

(Fla. 1st DCA 1982).

32. Th e Department presented testimony from Richard Davis,

one of its personnel manager employees. Davis’ testimony is

viewed as an attempt by the Department of Transportation to

justify its original decision to reclassify Petitioner’s

position and is according ly rejected. The Department is not

permitted at this late date to suggest that its position was not

frivolous based on matters not presented during the hearing on

the merits in the underlying case.

33. Davis’ testimony could be deemed relevant to the iss ue

of whether the Department had an improper purpose in

reclassifying Petitioner, but Davis’ assertion that the

Department reclassified Petitioner’s position as part of a

global reclassification of all Level six personnel does not

explain why the Departmen t did not revisit its decision and

correct its error once Petitioner put the Department on notice,

by reference to the Department’s own documents, that an error

had been made.

1 5

34. The proposed “administrator” defense asserted by

Department in its Propo sed Recommended Order is not persuasive.

The contention that Petitioner is an “administrator” because she

is the head of a “section” as those terms are used in Section

20.04(3)(c), Florida Statutes (2001), falls in the face of the

Department’s specific ex emption from the organizational

structure defined in Section 20.04. See Section 20.04(3) (“For

their internal structure, all departments, except for . . . the

Department of Transportation, must adhere to the following

standard terms”). Accordingly, there is no factual or legal

support for the Department’s “administrator” defense.

35. Petitioner demonstrated, through the submission of

relevant orders from other cases and administrative matters,

that one of the reasons for the Department’s stonewall defense

of its reclassification decision was the fact that it had

terminated Petitioner without providing her with career service

protections. See Procacci , 690 So. 2d at 608 n. 9 (in the

absence of direct evidence of improper purpose, the court must

exam ine circumstantial evidence and ask whether a reasonable

person would have prosecuted a claim under the circumstances);

Petitioner’s Ex. 1 - 1 through 1 - 3; 1 - 15 through 1 - 18. To avoid

Petitioner’s automatic reinstatement to her career service

position, the Department necessarily had to continue to assert

that she was properly reclassified irrespective of the evidence

and weight of legal authority that existed against that

position. In addition to being frivolous, the Department’s

actions needlessly harassed Petitioner, and needlessly increased

the costs of litigation. An award of fees and costs is thus

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

this additional reason.

36. Having determined that fees should be awarded, 9/ the

questio n then becomes whether the fees sought by Petitioner’s

counsel in this case are reasonable. The Department does not

challenge the number of hours sought by Petitioner. 10/ Instead,

it challenges the hourly rates which are being sought.

37. Specifically, t he Department challenges the hourly

rate sought by Stephen Turner, Esquire, Petitioner’s lead

counsel. Turner’s experience and expertise justify a fee of

$400 per hour in this case. The $250 per hour rate requested by

Mr. Fitzpatrick and the other hourly rates requested are

similarly reasonable for the professional services rendered.

ORDER

Based on the foregoing, it is hereby ordered that

Petitioner shall recover from Respondent the sum of $78,520.25

for the attorneys’ fees and costs incurred in DOA H Case

No. 03 - 4665SED.

DONE AND ORDERED this 1st day of December, 2005, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

123 0 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 1st day of December, 2005.

ENDNOTES

1/ The Depart ment filed a petition for certiorari in which it

argued that its “administrator” defense was improperly stricken.

That petition was dismissed, presumably because it was untimely

filed. Petitioner’s Ex. 1 - 10.

2/ The only modification to the Recommen ded Order was a

correction to the list of exhibits actually submitted by

Petitioner during the Final Hearing. No substantive changes

were made to the Recommended Order, which was otherwise adopted

in toto by the Department.

3/ Petitioner’s reference to Section 120.595 in that paragraph

does not undermine her claim for fees under other statutory

provisions. See Caulfield v. Cantele , 837 So. 2d 371, 379 - 380

(Fla. 2002) (holding that the statutory basis for the attorney

fee “need not be specifically pled a nd failure to so plead does

not result in waiver of a claim”).

4/ As noted in Dep’t of Revenue v. Yambert , 883 So. 2d 881, 884

n. 3 (Fla. 5th DCA 2004), the failure to comply with the

procedural requirements of Section 57.105(4) could be excused by

the C ourt in any event because the statute permits the award of

such fees on the court’s own initiative.

5/ The Department relies on several administrative cases for the

proposition that a Petitioner is required to initiate a claim

for fees under Section 120. 569(2)(e) prior to the issuance of a

recommended or final order. Unlike the cases cited by the

Department, Petitioner put the Department on notice of her

intention to seek fees based on the Department’s apparent

improper motive and the lack of merit of it s defense in her

initial petition. This was all that was required to satisfy the

requirement that she take action to mitigate the resources spent

on opposing a frivolous position. See Mercedes Lighting and

Electrical Supply v. Dep’t of General Services , 560 So. 2d 272,

276 - 277 (Fla. 1st DCA 1990) (notice is sufficient under Rule 11

if the party or attorney is aware that sanctions could be

assessed at the end of trial if appropriate). See also

Charlotte County v. IMC - Phosphates Co. , (DOAH Case NO. 03 - 3561 F)

(recognizing that DOAH Administrative Law Judge has jurisdiction

over motion for fees filed after Recommended Order where

sanctions were based on conduct before the entry of the

Recommended Order).

6/ The Department sought this stay from itself, even though it

expressed its intent to appeal the interlocutory order entered

by the ALJ and was therefore required to file its motion for

stay with the ALJ. Fla. R. App. Pr. 9.190(e)(2)(A) requires

that a party seeking a stay file an appropriate motion with t he

lower tribunal or the court to which it is seeking appellate

review. Here, the lower tribunal was the Division of

Administrative Hearings, not the Department of Transportation.

See Fla. R. App. Pr. 9.020(e) (defining the “lower tribunal” as

the “court , agency, officer, board, commission, judge of

compensation claims, or body whose order is to be reviewed”).

See also Department of Health & Rehab. Serv. v. Barr , 369 So. 2d

595, 596 (Fla. 1st DCA 1978) (DOAH is a “tribunal” within the

definition provided in Rule 9.020). Accordingly, while the

Department contends that it took no action before DOAH following

the filing of Petitioner’s Motion for fees, it fails to

recognize that its Motion for Stay was improperly filed with the

Department and that it contin ued to litigate the matter in

another forum.

7/ Section 57.105 does not contain a similar “signing” or

“filing” requirement .

8/ Counsel for the Department erroneously suggested during the

hearing that Section 120.569(2)(e), Florida Statutes, requires

t hat the party file a “pleading” before being subjected to

potential sanctions under the statute. pp. 37 - 38. In

reality, Section 120.569(2)e) only requires that a “paper” be

filed. The Department’s letter referring this matter to DOAH

was a “paper” that was filed with DOAH, thus triggering the

statute.

9/ The Department cites to the Appellate Court’s denial of

Petitioner’s request for appellate fees as a basis for denying

her fees here. However, the issue decided by the appellate

court was only wh ether the appeal was frivolous and did not

relate to the merits of the underlying case. See Procacci , 690

So. 2d at 609 - 610 (limiting appellate court’s jurisdiction to

fees on appeal). In any event, the appellate court never

reached the merits of the app eal, but instead dismissed the

petition, presumably because it was untimely.

10/ Petitioner’s right to fees includes all of the fees incurred

by Petitioner in this case, not just those fees incurred after

her motion for attorneys’ fees. See Section 57.1 05 (no

restriction on when fees are incurred as long as they are

reasonable and are “on” the challenged claim or defense);

Section 120.569(2)(e) (party entitled to award of reasonable

expenses, including attorneys’ fees, incurred because of the

filing of t he challenged paper). Compare section 768.79 (6) (a)

and (b), Florida Statutes (providing for an award of fees from

the date the offer is served). All of the fees at issue here

were the direct result of the Respondent’s failure to

acknowledge its error i n reclassifying Petitioner’s position

despite ample notice that such an error had occurred. See

Maxwell , 874 So. 2d at 711 (citing cases and recognizing that

request for fees in body of pleading or motion for summary

judgment was sufficient notice to pres erve claim for fees).

This includes the time spent in this case litigating her

entitlement to attorneys’ fees.

COPIES FURNISHED :

Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahas see, Florida 32399 - 0458

Jose Abreu, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

M. Stephen Turner, Es quire

Broad & Cassel, P.A.

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

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

fil ing the original notice of appeal with the 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 D istrict where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.