04-004244 Bryan Branch, D/B/A Bryan Branch Farms vs. Dixie Growers, Inc., And United States Fidelity And Guaranty Company Status: Closed Recommended Order on Tuesday, June 28, 2005.

Summary: A party who is not the prevailing party is not entitled to attorney fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRYAN BRANCH, d/b/a BRYAN )

BRANCH FARMS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4244

)

DIXIE GROWERS, INC., AND UNITED )

STATES FIDELITY AND GUARANTY )

COMPANY, )

)

Respondents. )

)

FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on February 9, 2005,

in Sarasota, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Bryan Branch, d/b/a Bryan Branch Farms:

Katy L. Koestner, Esquire

Meuers Law Firm, P.L.

5395 Park Central Court

Naples, Florida 34109

For Dixie Growers, Inc.:

Charles Lawton, pro se

Dixie Growers, Inc.

Post Office Box 1686

Plant City, Florida 33564 - 1686

For United States Fidelity and Guaranty Company:

Ty G. Thompson, Esquire

Mills Paskert Divers P. A.

100 North Tampa Street, Suite 2010

Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issues for determination are whether Petitioner is

entitled to a reasonable attorney's fee, pursuant to

Section 57.105, Florida Stat utes (2004), for time required to

respond to an allegedly frivolous motion, and, if so, in what

amount.

PRELIMINARY STATEMENT

On October 25, 2004, Petitioner filed an Amended Complaint

against Respondent, Dixie Growers, Inc. (Dixie Growers), with

the Depa rtment of Agriculture and Consumer Services

(Department). Dixie Growers requested an administrative

hearing, and the Department referred the matter to DOAH to

conduct the hearing.

At the hearing, Petitioner testified and submitted two

exhibits for admissi on into evidence. Dixie Growers called two

witnesses and submitted no exhibits. Respondent, United States

Fidelity and Guaranty Company (USF&G), called no witnesses and

submitted one exhibit.

The identity of the witnesses and exhibits, and the ruling

r egarding each, are reported in the two - volume Transcript of the

proceeding filed with DOAH on February 28, 2005. None of the

parties has yet filed a proposed recommended order (PRO).

On March 17, 2005, the parties filed a Joint Motion for

Enlargement of T ime to file PROs. The parties requested the ALJ

to permit the parties to file PROs ten days after the ALJ issues

an order on the motion for recommended order of dismissal that

USF&G entered on the record at the conclusion of the hearing.

By order dated M arch 18, 2005, the ALJ granted the Joint Motion

for Enlargement of Time.

The parties filed legal memoranda addressing the motion for

recommended order of dismissal. Petitioner alleges, in relevant

part, that the recommended order of dismissal is frivolous and

seeks attorney fees and costs related to the motion for

recommended order of dismissal. This Final Order addresses the

motion for attorney fees and costs because an order concerning a

motion for an attorney fee must be in the form of a final order.

§ 57.105(5), Fla. Stat. (2004).

FINDINGS OF FACT

1. During the administrative hearing, counsel for

Petitioner stated that the basis for recovery from Dixie Growers

does not rest on an alleged breach of contract. Rather,

Petitioner asserted that the recovery is based, in relevant

part, on an alleged failure of Dixie Growers to maintain records

required in Subsection 604.22(1), Florida Statutes (2003) (the

record - keeping requirement).

2. Counsel for USF&G entered an ore tenus motion to

dismiss that sought, in relevant part, to dismiss any proceeding

based on an alleged violation of the record - keeping requirement.

The ALJ deemed the motion to dismiss to be a motion for

recommended order of dismissal and reserved ruling.

3. USF&G filed its legal m emorandum in support of the

motion for recommended order of dismissal on March 8, 2005.

Petitioner filed legal memoranda on March 16 and 17, 2005. The

legal memorandum filed on March 17 included a motion for

attorney's fees and costs.

4. The record - ke eping requirement generally requires a

licensee such as Dixie Growers to maintain records for each

transaction and makes it a misdemeanor to fail to do so.

§ 604.22(1)(a), Fla. Stat. (2003). The record - keeping

requirement does not authorize an administr ative hearing

concerning an alleged failure to maintain records. Nor does the

record - keeping requirement authorize an ALJ to enforce the

requirement.

5. Neither legal memorandum from Petitioner asserts

jurisdiction under the record - keeping requirement. Nor do the

legal memoranda refer to the record - keeping requirement.

Rather, the legal memoranda assert that Petitioner is entitled

to a hearing pursuant to Subsection 604.21(6), Florida Statutes

(2003).

6. Subsection 604.21(6), Florida Statutes (2003) ,

authorizes an administrative hearing conducted pursuant to

Chapter 120, Florida Statutes, for the purpose of resolving

issues concerning a complaint for damages authorized in

Section 604.21, Florida Statutes (the hearing requirement). The

hearing requir ement authorizes a hearing for any person "whose

material interest is affected by a proceeding pursuant to this

section . . . ." (emphasis supplied)

7. The reference to "this section" in the hearing

requirement refers to Section 604.21, Florida Statutes (2003).

The reference does not authorize an administrative hearing

concerning the record - keeping requirement.

8. Petitioner knew or should have known that the

proceeding was not based on the record - keeping requirement and

that the then - existing law di d not support Petitioner's

argument. In response to the motion for recommended order of

dismissal of any proceeding based on the record - keeping

requirement, Petitioner asserts that the motion for recommended

order of dismissal is frivolous because Petitio ner is entitled

to a hearing on damages pursuant to the hearing requirement.

CONCLUSIONS OF LAW

9. DOAH has jurisdiction over the parties and the subject

matter in this proceeding. §§ 57.105(5), 604.21(6), 120.569,

and 120.57(1), Fla. Stat. (2004). DOAH provided adequate notice

of the administrative hearing.

10. The motion for recommended order of dismissal of any

proceeding based on the record - keeping requirement is granted in

a separate order entered on the same date as this Final Order.

The ALJ has no statutory authority to conduct an administrative

hearing based on the record - keeping requirement.

11. The motion for an award of attorney fees and costs

incurred in addressing the motion for recommended order of

dismissal based on the record - keepin g requirement is denied.

USF&G is the prevailing party on the motion for recommended

order of dismissal of a proceeding based on the record - keeping

requirement. Petitioner knew or should have known that the

claim of jurisdiction based on the record - keepi ng requirement,

as well as the relevancy of evidence intended to show that Dixie

Growers did not comply with the record - keeping requirement, was

not supported by the then - existing law. § 57.105(1)(b), Fla.

Stat. (2004).

12. The motion for recommended ord er of dismissal based on

the record - keeping requirement does not dispose of the

underlying proceeding. The underlying proceeding is not

conducted pursuant to the record - keeping requirement. Rather,

the underlying proceeding is conducted pursuant to the h earing

requirement. Cf. Wood v. Price , 546 So. 2d 88 (Fla. 2d DCA

1989); Ruppel v. Gulf Winds Apartments, Inc. , 508 So. 2d 534

(Fla. 2d DCA 1987)(each holding that a party is not entitled to

an attorney fee for responding to a motion to dismiss that does

not dispose of the case).

13. The remaining portion of the motion for recommended

order of dismissal is denied in the separate order issued on the

same date as this order. The motion is based, in relevant part,

on the alleged failure of Petitioner to:

. . . establish any sort of contract, any

breach of contract, and . . . to present any

evidence whatsoever supporting his claim for

damages.

Post - Hearing Brief In Support of Respondent, United

States Fidelity & Guaranty Company's Motion for

Recommended Or der of Dismissal , page 2, para. 3.

14. The argument in the foregoing paragraph addresses the

merits of the underlying proceeding and the sufficiency of the

evidence. USF&G cited no legal authority for the ALJ to dispose

of the merits of the case in any manner other than in a

recommended order disposing of the merits of the complaint.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for attorney fees and costs is

denied. That part of the motion for reco mmended order of

dismissal that seeks to dismiss a proceeding based on the

record - keeping requirement is granted. That part of the motion

for recommended order of dismissal that addresses the merits of

the underlying proceeding is denied. The ALJ retains

jurisdiction over the underlying proceeding. The parties shall

file their PROs addressing the merits of the underlying

proceeding no later than April 18, 2005.

DONE AND ORDERED this 4th day of April, 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 4th day of April, 2005.

COPIES FURNISHED :

Brenda D. Hyatt, Bureau Chief

Department of Agriculture and

Consumer Services

Bureau of License and Bond

407 South Calhoun Street, Mayo Building

Tallahassee, Florida 32399 - 0800

Charles Lawton

Dixie Growers, Inc.

Post Office Box 1686

Plant City, Florida 33564 - 1686

Ty G. Thompson, Esquire

Mills Paskert Divers P.A.

100 North Tampa Street

Suite 2010

Tampa, Florida 33602

Katy L. Koestner , Esquire

Meuers Law Firm, P.L.

5395 Park Central Court

Naples, Florida 34109

Richard Ditschler, General Counsel

Department of Agriculture and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Honorable Charles H. Bronso n

Commissioner of Agriculture

Department of Agriculture and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

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.