06-001557FC Sarah French vs. Agency For Persons With Disabilities Status: Closed DOAH Final Order on Monday, November 27, 2006.

Summary: The record reflects that the parties reached an agreement to settle this case. The case is closed pursuant to Section 120.57(4), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH FRENCH, )

)

Petitioner, )

)

vs. ) Case No. 06 - 1557FC

)

AGENCY FOR PERSONS WITH )

DISABILITIES, )

)

Respondent. )

)

FINAL ORDER

This case came before Administrative Law Judge T. Kent

Wetherell, II, at a telephonic case management conference held

on November 20, 2006.

APPEARANCES

For Petitioner: George F. Indest, III, Esquire

The Health Law Firm

220 East Central Parkway, Suite 2030

Altamo nte Springs, Florida 32701

For Respondent: Gail Scott Hill, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399

and

T. Shane DeBoard, Esquire

Department of Children and Family

Servic es

400 West Robinson Street , Suite S - 1114

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

The issue s are (1) the amount of attorney’s fees and costs

that Respondent must pay to Petitioner for the appeal in French

v. Department of Children and Familie s , 920 So. 2d 671 (Fla. 5th

DCA 2006), and (2) Petitioner’s entitlement to an award of

attorney’s fees and costs in the proceeding that gave rise to

the appeal .

PRELIMINARY STATEMENT

In French , supra , the c ourt held that Petitioner is

entitled to an award of appellate attorney’s fees and costs

against the Department of Children and Famil y Services ( DCF )

pursuant to Section 120. 595(5), Florida Statutes. The c ourt

remanded the case for the appointment of an Administrative Law

Judge to determine the amount of the award and also to consider

Petitioner’s request for an award of attorney’s fees and costs

pursuant to Section 120.595(1)(b), Flor ida Statu t es, for the

underlying proceeding before the DCF hearing officer.

On May 1, 2006, this case was referred to the Division of

Administrative Hearings (DOAH) by the Agency for Persons with

Disabilities (Agency). The Agency now administers the program

at iss ue in the underlying proceeding, and pursuant to Section

87(3) of Chapter 2004 - 267, L aws of Florida, the Agency w as

substituted for DCF as the real party in interest. Petitioner’s

motion to strike the Agency’s appearance and change the caption

of the case to designate D CF as the Respondent was denied

through an Order entered May 12, 2006.

Pursuant to the agreement o f the parties, as memorialized

in the Supplemental Order of Pre - hearing Instructions entered

May 12, 2006, Petitioner filed three separate motions for

attorney’s fees and costs on June 13, 2006. The first motion

sought $177,298.00 in attorney’s fees (to b e increased by a 2.5

multiplier), $18,579.08 in costs, and interest, for the

proceeding before the DCF hearing officer. The second motion

sought $44,800.00 in attorney’s fees (to be increased by a 2.5

multiplier), $2,844.43 costs, and interest, for the ap peal . The

third motion sought an award of attorney’s fees and costs for

this DOAH proceeding. The Agency filed responses to the motions

on June 30 and July 3, 2006.

On Au gust 31, 2006, the undersigned entered an Order on

Petitioner’s Motion For Attorney’ s Fees and Costs Related to

t his DOAH Proceeding, which concluded that Petitioner is not

entitled to an award of attorney’s fees for this DOAH

proceeding , but that she may be entitled to an award of costs.

On September 27, 2006, the Agency filed an amende d affidavit of

its expert witness who opined that Petitioner was entitled to

attorney’s fees and costs of only $76,563 (with no multiplier)

for the DCF hearing and only $38,170 (with no multiplier) for

the appeal.

The case was set for final hearing on Nove mber 15 - 16, 2006.

However, o n October 25, 2006, the parties filed an Agreed Motion

for Continuance in which they represented that the y had re ached

an agreement to settle this case. On that same date, the

undersigned entered an Order Canceling Hearing and Placing Case

in Abeyance, which required the parties to file a status report

no later than November 9, 2006.

The Agency filed a status report on November 8, 2006, i n

which it stated that the parties’ “tentative settlement

agreement” fell through as a resu lt of another petition for

attorney’s fees filed by Petitioner. 1 Petitioner filed a status

report on November 9, 2006, which stated that the parties had a

binding settlement agreement that should be given effect.

A telephonic case management conference wa s held on

November 20, 2006 , at which t he undersigned determined that the

parties had rea ched an agreement to settle this case . The

purpose of this Final Order 2 is to memorialize that finding and

close DOAH’s file in this case.

All statutory references in this Final Order are to the

2006 version of the Florida Statutes.

FINDINGS OF FACT

1. This case concerns the amount of attorney’s fees and

costs that are due to Petitioner for the appeal in French ,

supra , and Petitioner’s entitlement to attorney’s fees and costs

for the DCF hearing that gave rise to that appeal.

2. The parties stipulated at the outset of the proceeding

as to Petitioner’s entitlement to an award of attorney’s fees

and costs for the DCF hearing.

3. On October 24, 2006, t he parties reac hed an agreement

as to the amount of the attorney’s fees and costs that

Petitioner is due for the appeal and the underlying DCF hearing. 3

4. There are no other disputed issues of material fact

between the parties on the issues remanded by the appellate

c ourt.

CONCLUSIONS OF LAW

5 . DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to French , supra , and Section

120.595, Florida Statutes .

6 . Section 120.57(4), Florida Statutes, provides that

“ informal disposition ma y be made of any proceeding by

stipulation, settlement, or consent order .”

7. DOAH does not have jurisdiction to enforce the parties ’

settlement agreement. See , e.g. , Peck Plaza Condominium v.

Division of Florida Land Sales & Condominiums , 371 So. 2d 15 2

(Fla. 1979) .

8. However, based upon the stipulation between the parties

regarding Petitioner’s entitlement to attorney’s fees and costs

for the DCF hearing and their settlement regarding the amount of

attorney’s fees and costs due to Petitioner for the appeal an d

the underlying proceeding, there is no basis for DOAH to retain

jurisdiction over this case. Therefore, DOAH’s file will be

closed pursuant to Section 120.57(4), Florida Statutes.

ORDER

Based upon the foregoing findings of fact and conclusions

of law, it is

ORDERED that t he file of the Division of Administrative

Hearings in this case is hereby closed.

DONE AND ORDERED this 27th day of November, 2006, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, I I

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 27th of November, 2006.

ENDNOTES

1 / The new petition was referred to DOAH on November 13, 2006,

and was assigned to the undersigned. It is DOAH Case No. 06 -

4565F.

2 / The parties stipu lated that the undersigned should issue a

Final Order (rather than a Recommended Order) based upon the

appellate court’s decision and the Agency’s subsequent

stipulation as to Petitioner’s entitlement to an award of

attorney’s fees and costs for the underl ying proceeding before

the DCF hearing officer. See Supplemental Order of Pre - hearing

Instructions, at ¶ 5.

3 / Th e documents attached to Petitioner’s status report and the

undisputed representations at the telephonic case management

conference reflect t hat on October 24, 2006, counsel had full

authority to settle this case on behalf of their respective

clients; that the terms of the settlement negotiated by counsel,

including the amount ($129,595.00) and the scope of the

settlement (issues in this case o nly), were approved by their

respective clients; that the settlement was not conditioned on

any subsequent events or the negotiation of additional terms;

and that the terms of the agreement were memorialized in a

letter from Petitioner’s counsel to the Age ncy’s counsel dated

October 24, 2006. This is not the proper forum for the Agency

to "renege on" or attempt to rene gotiate the settlement

agreement. See Palm Springs General Hospital, Inc. v. Health

Care Cost Containment Board , 560 So. 2d 1348, 1349 (Fla . 3d DCA

1990) (“T he principles which favor the settlement of existing

controversies, and which require adherence to all enforceable

contracts both have particular application to an administrative

proceeding such as this. Indeed, it is no less than unseem ly,

perhaps even more than in the case of private litigants, for an

agency of our government . . . even to attempt to renounce an

agreement i nto which it has freely entered.” (citations

omitted)).

COPIES FURNISHED :

Shelly Brantley, Director

Agency for P ersons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

P. Kathlyne Jameson, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

T. Shane DeBoard, Esquire

Dep artment of Children

and Family Services

400 West Robinson Street, Suite S - 1114

Orlando, Florida 32801

George F. Indest, III, Esquire

The Health Law Firm

220 East Central Parkway, Suite 2030

Altamonte Springs, Florida 32701

Gail Scott Hill, Esquire

Ag ency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399

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

St atutes. 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 filed within 30 days of rendition of the order to

be reviewed.