04-002339F Mavis R. Georgalis vs. Department Of Transportation
 Status: Closed
DOAH Final Order on Thursday, December 01, 2005.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MAVIS R. GEORGALIS, )

12)

13Petitioner, )

15)

16vs. ) Case No. 04 - 2339F

23)

24DEPARTMENT OF TRANSPORTATION, )

28)

29Respondent. )

31)

32FINAL ORDER

34Pursuant to notice , a formal administrative hearing was

42held in the above - styled cause on September 27, 2005, in

54Tallahassee, Florida, before Don W. Davis, an Administrative Law

63Judge of the Division of Administrative Hearings (DOAH).

71APPEARANCES

72For Petitioner: M. Stephen Turner, P.A.

78Martin A. Fitzpatrick, Esquire

82Broad and Cassel

85215 South Monroe Street, Suite 400

91Post Office Drawer 11300

95Tallahassee, Florida 32302

98For Respondent: Robert M. Bur dick, Esquire

105Department of Transportation

108Haydon Burns Building, Mail Station 58

114605 Suwannee Street

117Tallahassee, Florida 32399

120Michael Mattimore, Esquire

123Allen, Norton & Blue, P.A.

128906 North Monroe Street

132Tallahassee, Florida 32303

135STATEMENT OF THE ISSUE

139What amount of legal fees and costs should be awarded to

150Petitioner pursuant to Section 120.569(2)(e) or 57.105(5),

157Florida Statutes, for Respondent’s erroneous classification of

164Petitioner’s position and subsequent failure to correct that

172error and reclassify Petitioner’s position back to career

180service as requested by her in Georgalis v. F.D.O.T. , DOAH Case

191No. 03 - 4665SED.

195PRELIMINARY STATEMENT

197By two (2) Mot ions for Attorney’s Fees and Cost dated

208July 6, 2004 and July 29, 2004, Petitioner seeks reimbursement

218for fees and costs associated with her challenge of Respondent

228Department of Transportation’s (Department) decision to

234reclassify her and her position fr om the Career Service System

245to Selected Exempt Service pursuant to Section 110.205(2(x),

253Florida Statutes (2001).

256At the final hearing, Petitioner presented testimony of one

265witness, her fee expert Steven J. Menton, and submitted 3

275exhibits, including a c omposite exhibit (Exhibit 1) that

284included 19 separate subparts (referred to as “Petitioner’s Ex.

2931 - ___”). Respondent presented the testimony of two witnesses,

303Richard Davis and Michael Mattimore, and submitted 2 exhibits.

312A transcript of the final hearin g was filed on October 17,

3242005. Petitioner and Respondent timely filed Proposed Final

332Orders, which have been reviewed and utilized, as deemed

341appropriate, in the preparation of this Final Order.

349References to Florida Statutes are to the 2005 edition,

358un less otherwise noted.

362FINDINGS OF FACT

3651. On April 1, 2002, Petitioner was discharged from her

375position with the Department without stated cause or hearing.

384See Petitioner’s Ex. 1 - 2, Dep’t of Transportation v. FCHR , 842

396So. 2d 253, 256 (Fla. 1st D CA 2003).

4052. On June 11, 2003, Petitioner was temporarily reinstated

414by order of the Circuit Court to her position with the

425Department pursuant to section 112.3187(9)(f).

430Petitioner’s Ex. 1 - 3.

4353. The administrative case underlying this request for

443fees and costs was initiated by Petitioner through the filing of

454a Petition for Formal Administrative Hearing on August 15, 2002.

464Petitioner’s Ex. 1 - 4.

4694. In that Petition, Petitioner demonstrated, through

476reference to the position description provide d to her by the

487Department, that she did not fit within any of the categories of

499employees exempted from career service by Section 110.205(2)(x),

507Florida Statutes. Petitioner’s Ex. 1 - 4, paragraph 7.

5165. Petitioner also put the Department on notice that she

526believed the Department’s action in reclassifying her was

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

546contradicted by the Department’s own documents. Petitioner’s

553Ex. 1 - 4, paragraph 12. She also requested that she be awarded

566appropriate attorneys’ fees and costs. Id.

5726. After nearly four months, the Department forwarded the

581Petition to the Division of Administrative Hearings for a formal

591administrative hearing regarding whether its decision to

598reclassify Petitioner was proper. Pe titioner’s Ex. 1 - 5.

6087. By this letter, which was filed with the Division of

619Administrative Hearings on December 10, 2003, the Department

627requested a formal administrative hearing and manifested its

635opposition to the relief requested by Petitioner in her

644Petition.

6458. A hearing was held in DOAH Case No. 03 - 4665SED on

658April 15, 2004.

6619. Following the preparation of a transcript, the parties

670submitted Proposed Recommended Orders. Petitioner filed a

677Motion to Strike portions of the Department’s Proposed

685Recommended Order because it improperly raised an argument that

694Petitioner could properly be exempted from career service

702because she was an “administrator.” Petitioner’s Ex. 1 - 6.

712That Motion was granted. Petitioner’s Ex. 1 - 7. 1/

72210. On July 2, 2004, the undersigned entered a Recommended

732Order concluding that Petitioner was improperly reclassified

739into Select Exempt Service. Petitioner’s Ex. 1 - 8, p. 12.

75011. On September 1, 2005, the Department entered a Final

760Order adopting the Recommended Order e ntered in DOAH Case No.

77103 - 4665SED. 2/ Petitioner’s Ex. 1 - 11.

78012. Paragraph 13 of the fully - adopted Recommended Order

790states that:

792based on the duties and responsibilities

798contained in Petitioner’s position

802description and the actual duties she

808performed, there is no basis for concluding

815that Petitioner was subject to exemption

821from career service as concluded by

827Respondent in July 2001.

831Petitioner’s Ex. 1 - 8, paragraph 13.

83813. In paragraph 19 of the fully - adopted Recommended

848Order, the undersigned conclu ded that:

854[t]he suggestion of the Respondent’s witness

860that the exemption should apply if a state

868employee is assigned to work with anyone

875retained or commissioned by Respondent to

881perform services for Respondent, however

886menial the task, simply misconstru es the

893statutory exemption: the relevant issue for

899the purposes of the exemption is whether

906such persons are department “employees,” not

913whether a department has contracted or

919engaged their services as independent

924technical consultants. Such contract

928administration is not relevant to the issue

935of whether Petitioner could properly be

941classified as a selected exempt employee.

947Petitioner’s Ex. 1 - 8, paragraph 19.

95414. Following entry of the Recommended Order, Petitioner

962filed her two (2) Motions for Attorneys ’ Fees. Petitioner’s Ex.

9731 - 12 and 1 - 13. These motions seek an award of attorney’s fees

988and costs based on the lack of factual or legal support for the

1001Department’s opposition to Petitioner’s request that the

1008Department correct its error in reclassifying her position to

1017Select Exempt Service. Id.

102115. Petitioner submitted an affidavit and itemized

1028statement of the requested hours, a summary of hours by the

1039attorney, and a summary of costs incurred in this matter.

1049Petitioner’s Ex. 1 - 14. Petitioner also su bmitted the testimony

1060of J. Steven Menton, Esquire, who corroborated the

1068reasonableness of the services and time expended by Petitioner’s

1077counsel and also confirmed the reasonableness of the fees

1086charged and costs incurred by Petitioner’s counsel for those

1095services.

109616. The Department did not contest the number of hours

1106sought by Petitioner’s counsel. Respondent did offer the

1114testimony of Michael Mattimore, Esquire, who was also counsel of

1124record for the Department in this case, suggesting that the

1134rates charged by Petitioner’s counsel exceeded those which are

1143normally charged by similar attorneys in the community.

1151Mattimore’s testimony related to fees charged in “employment”

1159law cases in which he has been involved during his career and

1171did not focus on administrative litigation challenging the

1179actions of a governmental agency, such as the present case which

1190involved more than merely examining the factual circumstances

1198surrounding a discharge or other adverse employment action.

120617. Confirming the comple xity of the underlying case was

1216Mattimore’s testimony regarding the outcome in other

1223reclassification cases. The great majority of reclassification

1230challenges (more than 95 percent of them) have been resolved in

1241favor of the governmental agency or have no t been pursued by the

1254impacted employee. Id. The outcome obtained by attorneys for

1263Petitioner in the underlying case is suggestive of fees toward

1273the high end of the range.

127918. Petitioner reported the following hours and rates

1287(Petitioner’s Ex. 1 - 14):

1292LAWYERS : Hours Rate Amount

1297M. Stephen Turner, P.A. 44.40 $400 $17,760.00

1305David K. Miller, P. A. 1.00 $300 $ 300.00

1314Martin A. Fitzpatrick 228.50 $250 $57,125.00

1321Brooke Lewis .90 $200 $ 80.00

1327TOTAL ATTORNEY HOURS 274.80 $ 75,365.00

1334Paralegals :

1336Hours Rate Amount

1339Theresa J. Everhart 1.90 $80 $152.00

1345Trishia Finkey 1.00 $80 80.00

1350TOTAL PARALEGAL HOURS 2.90 $ 232.00

1356TOTAL LEGAL FEES: $75.597.00

136019. The hours and rates requested are foun d to be

1371reasonable in view of the novelty and complexity of the issues,

1382level of legal skills required, and the result obtained for the

1393Petitioner. The rates sought are in line with fees charged by

1404similarly - situated attorneys for similar work in the comm unity.

1415The amount requested is reasonable and justified under the

1424circumstances. Moreover, the costs and expenses for which

1432reimbursement is sought ($1,523.25) and the expert witness fees

1442of $1400 ($280 /hour for 5 hours) are also reasonable and are of

1455a kind typically billed to clients in addition to the hourly

1466rate charged.

1468CONCLUSIONS OF LAW

147120. The Division of Administrative Hearings has

1478jurisdiction over the parties and subject matter of this

1487proceeding. §§ 57.105 and 120.569(2)(e), Fla. Stat.

149421. Section 57.105, Florida Statutes, provides, in

1501relevant part:

1503(1) Upon the court's initiative or motion

1510of any party, the court shall award a

1518reasonable attorney's fee to be paid to the

1526prevailing party . . . on any claim or

1535defense at any time during a c ivil

1543proceeding or action in which the court

1550finds that the losing party or the losing

1558party's attorney knew or should have known

1565that a claim or defense when initially

1572presented to the court or at any time before

1581trial:

1582(a) Was not supported by the m aterial

1590facts necessary to establish the claim or

1597defense; or

1599(b) Would not be supported by the

1606application of then - existing law to those

1614material facts.

1616* * *

1619(4) A motion by a party seeking sanctions

1627under this section must be served b ut may

1636not be filed with or presented to the court

1645unless, within 21 days after service of the

1653motion, the challenged paper, claim,

1658defense, contention, allegation, or denial

1663is not withdrawn or appropriately corrected.

1669(5) In administrative proceedings under

1674chapter 120, an administrative law judge

1680shall award a reasonable attorney's fee and

1687damages to be paid to the prevailing party .

1696. . in the same manner and upon the same

1706basis as provided in subsections (1) - (4).

1714Such award shall be a final order su bject to

1724judicial review pursuant to s. 120.68.

173022. Section 120.569(2)(e), Florida Statutes, provides:

1736(e) All pleadings, motions or other papers

1743filed in the proceeding must be signed by

1751the party, the party’s attorney, or the

1758party’s qualified represe ntative. The

1763signature constitutes a certificate that the

1769person has read the pleading, motion, or

1776other paper and that, based upon reasonable

1783inquiry, it is not interposed for any

1790improper purposes, such as to harass or to

1798cause unnecessary delay, or for frivolous

1804purpose or needless increase in the cost of

1812litigation. If a pleading, motion or other

1819paper is signed in violation of these

1826requirements, the presiding officer shall

1831impose upon the person who signed it, the

1839represented party, or both, an appr opriate

1846sanction, which may include an order to pay

1854the other party or parties the amount of

1862reasonable expenses incurred because of the

1868filing of the pleading, motion, or other

1875paper, including a reasonable attorney’s

1880fee.

188123. Once th ere is a finding of fact or a conclusion of law

1895that the Department’s defense in this case was not supported by

1906material facts or was not supported by then - existing law, the

1918award of fees is mandatory under Section 57.105. See Morton v.

1929Heathcock , 30 Fla. L. Weekly D2163, D2164 (Fla. 3rd DCA

1939September 14, 2005) (use of the word “shall” in Section 57.105

1950confirmed legislative intent that fees be awarded if the court

1960makes the required findings). Similarly, Section 120.569(2)(e)

1967mandates an “appropriate san ction,” which may include attorney’s

1977fees and costs, once there is a finding that a “pleading, motion

1989or other paper” has been filed for an improper or frivolous

2000purpose.

200124. Here, the Recommended Order entered on July 2, 2004,

2011confirmed that the Depa rtment’s opposition to Petitioner’s

2019request for proper reclassification as a career service position

2028was not supported by the operative facts or the then - existing

2040law. See Petitioner’s Ex. 1 - 8, paragraphs 13, 19 and 20.

2052Accordingly, fees and costs must b e awarded to Petitioner under

2063Section 57.105(5) and should be awarded under Section

2071120.569(2)(e), Florida Statutes. The Department should be

2078sanctioned for taking an untenable position in this litigation,

2087and then refusing to concede once that position w as exposed as

2099frivolous. See Id. ; King v. Florida Parole Commission , 898 So.

21092d 1100, 1101 (Fla. 1st DCA 2005) (fees should have been awarded

2121under section 57.105 where trial court concluded that losing

2130party’s interpretation of applicable statute was “la cking merit”

2139and “untenable”); Procacci Commercial Realty, Inc. v. Dep’t of

2148Health , 690 So. 2d 603, 608 (Fla. 1st DCA 1997) (citing Good

2160Samaritan Hosp. v. Dep’t of Health , 582 So. 2d 722, 723 and

2172stating that agency action which is not supported by a

2182permissible interpretation of applicable statutes and rules

2189constitutes an “improper purpose” even in the “absence of

2198frivolousness”).

219925. The Department contends that Petitioner should be

2207precluded from recovering fees in this case because she did not

2218file he r motion for fees until after a recommended order was

2230issued. Such a position ignores Petitioner’s assertion, in her

2239Petition for Administrative Hearing and subsequently filed

2246documents that because the Department’s “own documents confirm

2254that Petitioner was improperly reclassified as selected exempt,

2262the Department’s action in doing so was frivolous and was done

2273for an improper purpose.” Petitioner’s Ex. 1 - 4, paragraph 12. 3/

2285The Department has been on notice from the very beginning of

2296this case that Pet itioner regarded the Department’s defense as

2306frivolous and improper, and that position has been maintained

2315throughout these proceedings. Respondent had ample opportunity

2322to mitigate or avoid the award of fees resulting from a

2333frivolous defense in this mat ter.

233926. Section 57.105 only requires that a respondent be

2348afforded an opportunity to correct its behavior before sanctions

2357are levied against it for taking a frivolous position. See

2367Maxwell Building Corp. v. Euro Concepts , LLC, 874 So. 2d 709,

2378711 (Fla . 4th DCA 2004) (“the primary purpose of section

238957.105(4) is not to spring a procedural trap on the unwary so

2401that valid claims are lost. Rather, its function is to give a

2413pleader a last clear chance to withdraw a frivolous . . .

2425defense”). 4/ Similarly, Section 120.659(2)(e) only requires

2432Petitioner to put the Department on notice that Petitioner

2441believes Respondent has adopted a frivolous position and to seek

2451appropriate relief from the ALJ for such action. Here, there is

2462no question that Respondent an d the ALJ had notice of

2473Petitioner’s request for fees based on her position that

2482Respondent was adopting a frivolous and improper defense. 5/

249127. Moreover, as required by Section 57.105(4), Petitioner

2499provided the Department with a 21 - day cure period in w hich the

2513Department could have taken steps to withdraw its defense or

2523take other appropriate corrective action. For example, the

2531Department could have abandoned its opposition to Petitioner’s

2539request and entered a Final Order adopting the Recommended

2548Orde r. Such action would have been “laudable” and would have

2559avoided an award of fees under Section 57.105. See Dep’t of

2570Highway Safety and Motor Vehicles v. Salter , 710 So. 2d 1039,

25811041 (Fla. 2nd DCA 1998) (DMV avoided award of fees by not

2593defending indefensible order that was the subject of petition

2602for certiorari); see also Dep’t of Transportation v. South ,

2611(DOAH Case No. 03 - 4258 2003) (denying request for fees where

2623party dismissed underlying petition and did not appeal order

2632relinquishing jurisdiction i n related administrative case). The

2640Department did not do so, but instead continued to litigate

2650whether its reclassification action was appropriate, going so

2658far as to obtain a stay of the administrative proceedings

2668pending its intended untimely appeal. 6/ Accordingly, this case

2677is distinguishable from other cases in which attorney’s fees are

2687sought after the conclusion of the case because the Department

2697did not abandon its defeated position, continuing instead to

2706litigate the matter beyond the 21 - day cure period.

271628. Petitioner afforded The Department a “last clear

2724chance” to withdraw its frivolous defense. Maxwell , 874 So. 2d

2734at 711.

273629. Having failed to take appropriate action to correct

2745the matter, the Department is responsible for the fees incurr ed

2756by Petitioner in prosecuting this case against the Department’s

2765“stonewall” defense. See Dep’t of Transportation v. James , 681

2774So. 2d 886, 887 – 888 (Fla. 3rd DCA 1996) (one of the purposes of

2789Section 57.105 is to put a price tag on stonewalling by

2800Defen dant who refuses to concede there is no basis for defending

2812action); Dep’t of Transportation v. South , (DOAH Case No. 03 -

28234258 2003) (citing commentary to Rule 11 and concluding that

2833purpose of 21 day “safe harbor” was intended to limit sanctions

2844to those s ituations where a party “refuses to withdraw [its

2855position] or to acknowledge candidly that it does not currently

2865have evidence to support a specified allegation”).

287230. The Department asserted in its Motion for Summary

2881Recommended Order that it is no t subject to an award of fees in

2895this case under Section 120.569(2)(e) 7/ because its “defense” was

2905not reflected in any pleading or paper which would give rise to

2917a claim. The Department’s letter of December 10, 2003

2926(Petitioner’s Ex. A - 5), by which Respo ndent referred this matter

2938to DOAH for an administrative hearing, however, constitutes such

2947a “paper.” 8/

295031. Additionally, Section 57.105 and similar statutes have

2958been interpreted to require an award of fees and costs in the

2970absence of an official respo nse by the defending party where:

2981[the prevailing party] is impelled, by the

2988losing party, to waste judicial resources

2994and needlessly expend his own time and

3001money. This can occur when a losing party

3009raises issues that are not justiciable, and

3016it can occu r when, as here, the losing party

3026has forced the plaintiff to resort to the

3034courts even though there were no justiciable

3041issues that can be raised in defense.

3048Castaway Lounge of Bay County, Inc. v. Reid , 411 So. 2d 282, 284

3061(Fla. 1st DCA 1982).

306532. Th e Department presented testimony from Richard Davis,

3074one of its personnel manager employees. Davis’ testimony is

3083viewed as an attempt by the Department of Transportation to

3093justify its original decision to reclassify Petitioner’s

3100position and is according ly rejected. The Department is not

3110permitted at this late date to suggest that its position was not

3122frivolous based on matters not presented during the hearing on

3132the merits in the underlying case.

313833. Davis’ testimony could be deemed relevant to the iss ue

3149of whether the Department had an improper purpose in

3158reclassifying Petitioner, but Davis’ assertion that the

3165Department reclassified Petitioner’s position as part of a

3173global reclassification of all Level six personnel does not

3182explain why the Departmen t did not revisit its decision and

3193correct its error once Petitioner put the Department on notice,

3203by reference to the Department’s own documents, that an error

3213had been made.

32161 5

321834. The proposed “administrator” defense asserted by

3225Department in its Propo sed Recommended Order is not persuasive.

3235The contention that Petitioner is an “administrator” because she

3244is the head of a “section” as those terms are used in Section

325720.04(3)(c), Florida Statutes (2001), falls in the face of the

3267Department’s specific ex emption from the organizational

3274structure defined in Section 20.04. See Section 20.04(3) (“For

3283their internal structure, all departments, except for . . . the

3294Department of Transportation, must adhere to the following

3302standard terms”). Accordingly, there is no factual or legal

3311support for the Department’s “administrator” defense.

331735. Petitioner demonstrated, through the submission of

3324relevant orders from other cases and administrative matters,

3332that one of the reasons for the Department’s stonewall defense

3342of its reclassification decision was the fact that it had

3352terminated Petitioner without providing her with career service

3360protections. See Procacci , 690 So. 2d at 608 n. 9 (in the

3372absence of direct evidence of improper purpose, the court must

3382examine circumstantial evidence and ask whether a reasonable

3390person would have prosecuted a claim under the circumstances);

3399Petitioner’s Ex. 1 - 1 through 1 - 3; 1 - 15 through 1 - 18. To avoid

3417Petitioner’s automatic reinstatement to her career service

3424position, the Department necessarily had to continue to assert

3433that she was properly reclassified irrespective of the evidence

3442and weight of legal authority that existed against that

3451position. In addition to being frivolous, the Department’s

3459actions needlessly harassed Petitioner, and needlessly increased

3466the costs of litigation. An award of fees and costs is thus

3478appropriate under Section 120.569(2)(e), Florida Statutes, for

3485this additional reason.

348836. Having determined that fees should be awarded, 9/ the

3498questio n then becomes whether the fees sought by Petitioner’s

3508counsel in this case are reasonable. The Department does not

3518challenge the number of hours sought by Petitioner. 10/ Instead,

3528it challenges the hourly rates which are being sought.

353737. Specifically, t he Department challenges the hourly

3545rate sought by Stephen Turner, Esquire, Petitioner’s lead

3553counsel. Turner’s experience and expertise justify a fee of

3562$400 per hour in this case. The $250 per hour rate requested by

3575Mr. Fitzpatrick and the other hourly rates requested are

3584similarly reasonable for the professional services rendered.

3591ORDER

3592Based on the foregoing, it is hereby ordered that

3601Petitioner shall recover from Respondent the sum of $78,520.25

3611for the attorneys’ fees and costs incurred in DOA H Case

3622No. 03 - 4665SED.

3626DONE AND ORDERED this 1st day of December, 2005, in

3636Tallahassee, Leon County, Florida.

3640S

3641DON W. DAVIS

3644Administrative Law Judge

3647Division of Administrative Hearings

3651The DeSoto Building

3654123 0 Apalachee Parkway

3658Tallahassee, Florida 32399 - 3060

3663(850) 488 - 9675 SUNCOM 278 - 9675

3671Fax Filing (850) 921 - 6847

3677www.doah.state.fl.us

3678Filed with the Clerk of the

3684Division of Administrative Hearings

3688this 1st day of December, 2005.

3694ENDNOTES

36951/ The Department filed a petition for certiorari in which it

3706argued that its “administrator” defense was improperly stricken.

3714That petition was dismissed, presumably because it was untimely

3723filed. Petitioner’s Ex. 1 - 10.

37292/ The only modification to the Recommen ded Order was a

3740correction to the list of exhibits actually submitted by

3749Petitioner during the Final Hearing. No substantive changes

3757were made to the Recommended Order, which was otherwise adopted

3767in toto by the Department.

37723/ Petitioner’s reference to Section 120.595 in that paragraph

3781does not undermine her claim for fees under other statutory

3791provisions. See Caulfield v. Cantele , 837 So. 2d 371, 379 - 380

3803(Fla. 2002) (holding that the statutory basis for the attorney

3813fee “need not be specifically pled a nd failure to so plead does

3826not result in waiver of a claim”).

38334/ As noted in Dep’t of Revenue v. Yambert , 883 So. 2d 881, 884

3847n. 3 (Fla. 5th DCA 2004), the failure to comply with the

3859procedural requirements of Section 57.105(4) could be excused by

3868the Court in any event because the statute permits the award of

3880such fees on the court’s own initiative.

38875/ The Department relies on several administrative cases for the

3897proposition that a Petitioner is required to initiate a claim

3907for fees under Section 120. 569(2)(e) prior to the issuance of a

3919recommended or final order. Unlike the cases cited by the

3929Department, Petitioner put the Department on notice of her

3938intention to seek fees based on the Department’s apparent

3947improper motive and the lack of merit of it s defense in her

3960initial petition. This was all that was required to satisfy the

3971requirement that she take action to mitigate the resources spent

3981on opposing a frivolous position. See Mercedes Lighting and

3990Electrical Supply v. Dep’t of General Services , 560 So. 2d 272,

4001276 - 277 (Fla. 1st DCA 1990) (notice is sufficient under Rule 11

4014if the party or attorney is aware that sanctions could be

4025assessed at the end of trial if appropriate). See also

4035Charlotte County v. IMC - Phosphates Co. , (DOAH Case NO. 03 - 3561 F)

4049(recognizing that DOAH Administrative Law Judge has jurisdiction

4057over motion for fees filed after Recommended Order where

4066sanctions were based on conduct before the entry of the

4076Recommended Order).

40786/ The Department sought this stay from itself, even though it

4089expressed its intent to appeal the interlocutory order entered

4098by the ALJ and was therefore required to file its motion for

4110stay with the ALJ. Fla. R. App. Pr. 9.190(e)(2)(A) requires

4120that a party seeking a stay file an appropriate motion with t he

4133lower tribunal or the court to which it is seeking appellate

4144review. Here, the lower tribunal was the Division of

4153Administrative Hearings, not the Department of Transportation.

4160See Fla. R. App. Pr. 9.020(e) (defining the “lower tribunal” as

4171the “court , agency, officer, board, commission, judge of

4179compensation claims, or body whose order is to be reviewed”).

4189See also Department of Health & Rehab. Serv. v. Barr , 369 So. 2d

4202595, 596 (Fla. 1st DCA 1978) (DOAH is a “tribunal” within the

4214definition provided in Rule 9.020). Accordingly, while the

4222Department contends that it took no action before DOAH following

4232the filing of Petitioner’s Motion for fees, it fails to

4242recognize that its Motion for Stay was improperly filed with the

4253Department and that it contin ued to litigate the matter in

4264another forum.

42667/ Section 57.105 does not contain a similar “signing” or

4276“filing” requirement .

42798/ Counsel for the Department erroneously suggested during the

4288hearing that Section 120.569(2)(e), Florida Statutes, requires

4295t hat the party file a “pleading” before being subjected to

4306potential sanctions under the statute. pp. 37 - 38. In

4316reality, Section 120.569(2)e) only requires that a “paper” be

4325filed. The Department’s letter referring this matter to DOAH

4334was a “paper” that was filed with DOAH, thus triggering the

4345statute.

43469/ The Department cites to the Appellate Court’s denial of

4356Petitioner’s request for appellate fees as a basis for denying

4366her fees here. However, the issue decided by the appellate

4376court was only wh ether the appeal was frivolous and did not

4388relate to the merits of the underlying case. See Procacci , 690

4399So. 2d at 609 - 610 (limiting appellate court’s jurisdiction to

4410fees on appeal). In any event, the appellate court never

4420reached the merits of the app eal, but instead dismissed the

4431petition, presumably because it was untimely.

443710/ Petitioner’s right to fees includes all of the fees incurred

4448by Petitioner in this case, not just those fees incurred after

4459her motion for attorneys’ fees. See Section 57.1 05 (no

4469restriction on when fees are incurred as long as they are

4480reasonable and are “on” the challenged claim or defense);

4489Section 120.569(2)(e) (party entitled to award of reasonable

4497expenses, including attorneys’ fees, incurred because of the

4505filing of t he challenged paper). Compare section 768.79 (6) (a)

4516and (b), Florida Statutes (providing for an award of fees from

4527the date the offer is served). All of the fees at issue here

4540were the direct result of the Respondent’s failure to

4549acknowledge its error i n reclassifying Petitioner’s position

4557despite ample notice that such an error had occurred. See

4567Maxwell , 874 So. 2d at 711 (citing cases and recognizing that

4578request for fees in body of pleading or motion for summary

4589judgment was sufficient notice to pres erve claim for fees).

4599This includes the time spent in this case litigating her

4609entitlement to attorneys’ fees.

4613COPIES FURNISHED :

4616Robert M. Burdick, Esquire

4620Department of Transportation

4623Haydon Burns Building, Mail Station 58

4629605 Suwannee Street

4632Tallahas see, Florida 32399 - 0458

4638Jose Abreu, Secretary

4641Department of Transportation

4644Haydon Burns Building, Mail Station 58

4650605 Suwannee Street

4653Tallahassee, Florida 32399 - 0458

4658Pamela Leslie, General Counsel

4662Department of Transportation

4665Haydon Burns Building, Mail Station 58

4671605 Suwannee Street

4674Tallahassee, Florida 32399 - 0458

4679James C. Myers

4682Clerk of Agency Proceedings

4686Department of Transportation

4689Haydon Burns Building, Mail Station 58

4695605 Suwannee Street

4698Tallahassee, Florida 32399 - 0458

4703M. Stephen Turner, Es quire

4708Broad & Cassel, P.A.

4712215 South Monroe Street, Suite 400

4718Post Office Box 11300

4722Tallahassee, Florida 32302

4725Michael Mattimore, Esquire

4728Allen, Norton & Blue, P.A.

4733906 North Monroe Street

4737Tallahassee, Florida 32303

4740NOTICE OF RIGHT TO JUDICIAL REVIEW

4746A party who is adversely affected by this Final Order is

4757entitled to judicial review pursuant to Section 120.68, Florida

4766Statutes. Review proceedings are governed by the Florida Rules

4775of Appellate Procedure. Such proceedings are commenced by

4783fil ing the original notice of appeal with the Clerk of the

4795Division of Administrative Hearings and a copy, accompanied by

4804filing fees prescribed by law, with the District Court of

4814Appeal, First District, or with the District Court of Appeal in

4825the Appellate D istrict where the party resides. The notice of

4836appeal must be filed within 30 days of rendition of the order to

4849be reviewed.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/31/2006
Proceedings: BY ORDER OF THE COURT: Appeal Dismissed.
PDF:
Date: 02/28/2006
Proceedings: BY ORDER OF THE COURT: Appellant`s motion for extension of time for service of initial brief is granted.
PDF:
Date: 02/03/2006
Proceedings: Statement of Service Preparation of Record filed.
PDF:
Date: 02/03/2006
Proceedings: Index (of the Record) sent to the parties of record.
PDF:
Date: 12/22/2005
Proceedings: Letter to Ann Cole from J. Wheeler, acknowledging receipt of notice of appeal, DCA Case No. 1D05-6002.
PDF:
Date: 12/16/2005
Proceedings: Notice of Appeal filed and Certified Copy of Notice of Appeal sent to the First District Court of Appeal.
PDF:
Date: 12/01/2005
Proceedings: DOAH Final Order
PDF:
Date: 12/01/2005
Proceedings: Final Order (hearing held September 27, 2005). CASE CLOSED.
PDF:
Date: 10/27/2005
Proceedings: (Respondent`s) Proposed Final Order filed.
PDF:
Date: 10/27/2005
Proceedings: Proposed Final Order filed by Petitioner.
Date: 10/17/2005
Proceedings: Two volume Transcript of the April 15, 2004 Final Hearing in DOAH Case No. 03-4665SED filed in this Fees Case.
Date: 09/27/2005
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/19/2005
Proceedings: Order (Petitioner`s Response to Respondent`s Motion to Compel denied).
PDF:
Date: 09/15/2005
Proceedings: Petitioner`s Response to Respondent`s Motion to Compel filed.
PDF:
Date: 09/08/2005
Proceedings: Motion to Compel Discovery filed.
PDF:
Date: 08/25/2005
Proceedings: Petitioner`s Response to Respondent`s Second Request for Production filed.
PDF:
Date: 07/26/2005
Proceedings: Respondent`s Second Request for Production filed.
PDF:
Date: 07/12/2005
Proceedings: Response to Motion for Attorney`s Fees filed.
PDF:
Date: 07/11/2005
Proceedings: Response to Department`s Motion for Summary Final Order and to Relinquish Jurisdiction filed.
PDF:
Date: 07/06/2005
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for September 27, 2005; 10:00 a.m.; Tallahassee, FL).
PDF:
Date: 07/05/2005
Proceedings: Motion for Attorneys` Fees (filed in Case Nos. 03-4665 and 04-2339F).
PDF:
Date: 06/29/2005
Proceedings: Motion for Summary Final Order and to Relinquish Jurisdiction filed with exhibits.
PDF:
Date: 03/30/2005
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for July 15, 2005; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 03/29/2005
Proceedings: Joint Motion for Continuance filed.
PDF:
Date: 02/28/2005
Proceedings: Petitioner`s Response to Respondent`s First Request for Production filed.
PDF:
Date: 02/02/2005
Proceedings: Respondent`s First Request for Production filed.
PDF:
Date: 12/20/2004
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for April 14, 2005; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 12/16/2004
Proceedings: Joint Motion for Continuance filed.
PDF:
Date: 09/09/2004
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for January 19, 2005; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 09/02/2004
Proceedings: Joint Motion for Continuance (filed via facsimile).
PDF:
Date: 08/03/2004
Proceedings: Response to Motion for Attorney`s Fees filed by Respondent.
PDF:
Date: 08/03/2004
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 5, 2004; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 07/29/2004
Proceedings: Motion for Attorneys` Fees (formerly DOAH Case No. 03-4665SED) filed by Petitioner via facsimile.
PDF:
Date: 07/28/2004
Proceedings: Motion for Continuance of Hearing Scheduled for August 25, 2004, at 9:30 a.m. (filed by Petitioner via facsimile).
PDF:
Date: 07/26/2004
Proceedings: Order Granting Motion for Clarification.
PDF:
Date: 07/26/2004
Proceedings: Notice of Hearing (hearing set for August 25, 2004; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 07/14/2004
Proceedings: Response to Initial Order filed by Respondent.
PDF:
Date: 07/13/2004
Proceedings: Motion for Clarification of Initial Order Dated July 7, 2004 (filed by Petitioner via facsimile).
PDF:
Date: 07/07/2004
Proceedings: Initial Order.
PDF:
Date: 07/06/2004
Proceedings: Motion for Attorneys` Fees filed.

Case Information

Judge:
DON W. DAVIS
Date Filed:
07/06/2004
Date Assignment:
07/07/2004
Last Docket Entry:
03/31/2006
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Transportation
Suffix:
F
 

Counsels

Related Florida Statute(s) (8):