07-004191FC Stacy Lewis vs. Jim Horne, As Commissioner Of Education Status: Closed DOAH Final Order on Thursday, June 5, 2008.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STACY LEWIS, )

)

Petitioner, )

)

vs. ) Case No. 07-4191FC

)

JIM HORNE, AS COMMISSIONER OF )

EDUCATION, )

)

Respondent. )

)

ORDER ON REMAND

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing in this proceeding for the Division of

Administrative Hearings (DOAH), on April 7, 2008, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Anthony D. Demma, Esquire

Meyer and Brooks, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

For Respondent: Todd Resavage, Esquire

Brooks, LeBoef, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is the amount of attorney's fees and costs to

which Petitioner is entitled by Order of the appellate court

pursuant to Subsection 120.595(5), Florida Statutes (2007). 1

PRELIMINARY STATEMENT

This proceeding has an extensive procedural history that is

discussed further in the Findings of Fact. Suffice it to say

for now that the reviewing court reversed the Final Order

entered by Respondent against Petitioner, granted Petitioner's

motion for attorney's fees, and remanded the case to DOAH to

determine the amount of fees to be awarded. 2

At the final hearing in this fee case, Petitioner presented

the testimony of two witnesses and submitted five exhibits for

admission into evidence. Respondent presented the telephonic

testimony of one witness and submitted no exhibits for admission

into evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are recorded in the one-volume Transcript of the

hearing filed with DOAH on April 22, 2008. The undersigned

granted the parties' request for an extension of time to file

proposed recommended orders (PROs), and the parties timely filed

their respective PROs on May 12, 2008.

FINDINGS OF FACT

1. On February 9, 2005, the Commissioner of Education (the

Commissioner) filed an Administrative Complaint against

Ms. Stacy Stinson, now Ms. Stacy Lewis. Ms. Stinson requested

an administrative hearing pursuant to Subsection 120.57(1) (a

120.57 proceeding).

2. The Commissioner referred the matter to DOAH to conduct

the 120.57 proceeding. DOAH opened the 120.57 proceeding as Jim

Horne, as Commissioner of Education v. Stacy Stinson , Case

No. 05-0504PL (DOAH August 11, 2005) (the underlying

proceeding).

3. The Recommended Order in the underlying proceeding

recommended the entry of a final order finding the respondent in

the underlying proceeding not guilty of the charges against her

and imposing no penalty against her teaching certificate. On

January 5, 2006, the Educational Practices Commission (EPC)

entered a Final Order rejecting or modifying some findings of

fact in the Recommended Order, reprimanding the respondent,

imposing a two-week suspension of her teaching certificate, and

placing her on probation for three years.

4. On January 5, 2006, the respondent in the underlying

proceeding filed a notice of administrative appeal to the First

District Court of Appeal. The initial brief was filed on

March 16, 2006. The answer was filed on May 1, 2006. On

May 15, 2006, the respondent filed a reply brief, motion for

attorney's fees, and request for oral argument.

5. On August 22, 2006, the appellate court issued its

order in Stinson v. Winn , 938 So. 2d 554 (Fla. 1st DCA 2006).

The appellate court concluded that the EPC improperly rejected

or modified factual findings and legal conclusions of the ALJ

and remanded the matter for entry of a final order dismissing

the Administrative Complaint and finding the respondent in the

underlying proceeding not guilty of the allegations, consistent

with the Recommended Order.

6. The appellate court also granted the motion for

attorney's fees, pursuant to Subsection 120.595(5), and remanded

the case to DOAH to determine the amount of fees. The instant

proceeding ensued.

7. Respondent does not contest the reasonableness of costs

in the amount of $3,484.95. Petitioner seeks an award of costs

in the amount of $3,954.95. Petitioner is entitled to costs in

the amount of $3,484.95.

8. Petitioner seeks attorney's fees for the underlying

proceeding and the appellate proceeding in the amount of

$94,104.45, plus interest. The amount of fees is based on

360.6 hours at an hourly rate of $250.00.

9. Respondent claims the correct amount of attorney's fees

is $22,680.00. The amount of fees is based on 252 hours at an

hourly rate of $90.00.

10. An hourly rate of $90.00 is reasonable. The $90.00-

rate is the rate established in the fee agreement reached

between Petitioner and her attorney. Judicial decisions

discussed in the Conclusions of Law hold that in no case should

the court-awarded fee exceed the fee agreement reached by the

attorney and her client.

11. The number of hours reasonably expended is

283.15 hours. The hours claimed by Petitioner in the amount of

360.6 should be reduced by 62.8 hours based on credible and

persuasive testimony of Respondent's expert.

12. The subtotal of 297.8 hours includes 34.9 hours

billed, from June 6 through July 5, 2005, to prepare the PRO in

the underlying proceeding. The total time billed for preparing

the PRO includes 19.2 hours for what is labeled, in part, as

research undertaken to prepare the PRO. The 2.7 hours for

research pertaining to penalties, bearing an entry date of

June 27, 2005, is reasonable because the research is reflected

in the PRO.

13. The remaining legal research undertaken to prepare the

PRO is not reflected in the PRO. The amount billed for

preparation of the PRO is reduced from 34.9 hours to 20.25

hours, a reduction of 14.65 hours.

14. The Conclusions of Law in the PRO consist of

33 paragraphs numbered 17 through 49. Apart from administrative

proceedings pertaining to penalties, the 33 paragraphs cite

three appellate decisions, one of which may be fairly

characterized as a "boiler-plate" citation for the burden of

proof. The remainder of the 33 paragraphs consists of naked

argument.

15. A principal purpose of a PRO is to inform the ALJ of

relevant judicial decisions, to distinguish between supporting

and contradicting decisions, and to explain why, in the context

of the facts at issue, the supporting decisions seize the day

for the client. That is the proper role of an attorney in the

adversarial process at the trial level. The PRO does not

reflect that effort. 3

16. Economic reality is not lost on the fact-finder. It

may be that the fee-sensitivity of a client in a particular case

precludes an attorney from fully researching and discussing a

relevant legal issue. In the instant case, however, the

attorney billed 34.9 hours for a PRO with two citations to

appellate decisions beyond the burden of proof.

17. Novel and difficult questions of fact and law were

present in the underlying proceeding. The factual issues

involved a so-called trial by deposition in a penal proceeding.

The legal issues involved a literal conflict between a so-called

adopted rule and a statute in a 120.57 proceeding. However, the

PRO filed in the underlying proceeding provided no legal

research concerning either novel question.

18. Judicial decisions discussed in the Conclusions of Law

hold that reasonable attorney's fees are determined by

multiplying the number of hours reasonably expended by a

reasonable hourly rate. The mathematical product is the

lodestar. The lodestar in this proceeding is $25,483.50,

determined by multiplying 283.15 hours by an hourly rate of

$90.00.

19. The lodestar is not increased or decreased by the

results obtained or risk factor. There is no evidence of a

"risk factor" attributable to contingency or other factors.

There is no increase for the results obtained. Although the

results were favorable, the favorable results turned principally

on issues of fact and law for which relevant judicial decisions

exist and were found through independent research by the ALJ

without any assistance from legal research evidenced in the PRO.

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the subject matter and

parties of record. § 120.595(5). DOAH provided the parties

with adequate notice of the final hearing.

21. Petitioner stipulates she has the burden of proof in

this proceeding. Petitioner must show by a preponderance of the

evidence the amount of fees and costs that should be awarded.

See Department of Transportation v. J.W.C., Co. , 396 So. 2d 778

(Fla. 1st DCA 1981)(party asserting affirmative of the issue

bears the burden of proof).

22. The Order of the Court, dated August 22, 2006, states,

in relevant part, "The cause is remanded to the trial court

to assess the amount." DOAH is the "trial court" in a

120.57 proceeding. There is no express legislative intent in

Subsection 120.595(5) that explains whether the order on remand

is a recommended order or a final order. Therefore, this order

is styled as an Order on Remand. 4

23. Subsection 120.595(1) authorizes an award of fees and

costs only if the adverse party is a "nonprevailing adverse

party" defined in Subsection 120.595(1)(e)3. A nonprevailing

adverse party is statutorily defined to mean a party that has

failed to substantially change the outcome of proposed agency

action. If an agency were to fail to substantially change the

outcome of proposed agency action in a 120.57 proceeding, the

agency would be the prevailing adverse party rather than the

nonprevailing adverse party. For that reason, the express

legislative definition of a nonprevailing adverse party

precludes a recommended order requiring an agency to pay

attorney fees and costs pursuant to Subsection 120.595(1).

24. This proceeding is conducted pursuant to authority in

Subsection 120.595(5). A determination of the amount of

reasonable attorney's fees in this proceeding must be made in

accordance with the federal lodestar approach approved by the

Florida Supreme Court in Florida Patient's Compensation Fund v.

Rowe , 472 So. 2d 1145, 1151 (Fla. 1985). The lodestar is the

mathematical product of the number of hours reasonably expended

multiplied by the reasonable hourly rate. Id.

25. A determination of reasonable attorney's fees pursuant

to Subsection 120.595(5) must be made in accordance with the

lodestar approach approved in Rowe . Board of Regents and The

University of South Florida v. Winters , 918 So. 2d 313, 315 (Fla.

2d DCA 2005). The lodestar approach applies to both contingency

fee agreements and fixed fee agreements. Perez-Borroto v. Brea ,

544 So. 2d 1022, 1023 (Fla. 1989).

26. The lodestar approach considers numerous factors in

determining the reasonable number of hours expended and the

reasonable hourly rate, in regard to which the parties submitted

a plethora of evidence in this proceeding. However, in no case

may the court-awarded fee exceed the fee agreement reached by the

attorney and his or her client. Rowe , 472 So. 2d at 1151.

Accord Lane v. Head , 566 So. 2d 508, 512 (Fla. 1990); Brea ,

544 So. 2d at 1023; Nelson v. The Marine Group of Palm Beach,

Inc. , 677 So. 2d 998, 1000 (Fla. 4th DCA 1996).

27. It is undisputed that the fee agreement between

Petitioner and her attorney contemplated an hourly rate of

$90.00. The only variable is the reasonable number of hours

expended.

28. The object of the relevant statutory requirement for

attorney's fees is to make Petitioner whole. Nothing in the text

of Subsection 120.595(5) supports a conclusion that the

Legislature intends the fee provisions to be applied in a

punitive manner. Winters , 918 So. 2d at 315. Otherwise, courts

may become instruments for awarding excessive fees against third

parties such as Respondent. Rowe , 472 So. 2d at 1151.

29. Petitioner correctly points out that interest on

judgments generally accrues at the statutory rates prescribed by

Florida's chief financial officer. However, the interest rates

on an award of attorney's fees and costs accrues from the date

the judgment becomes final.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that attorney's fees and costs are assessed in the

respective amounts of $25,483.50 and $3,484.95.

DONE AND ORDERED this 5th day of June, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of June, 2008.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2007), unless otherwise stated.

2/ The Order of the reviewing court grants the motion for

"attorney's fees" and is silent with respect to costs. However,

the parties agree that the issue of the amount of costs is

properly before DOAH.

3/ The evidence does not disclose fee-sensitivity as a factor

that influenced the PRO. Nor does the PRO state that the

attorney's research was unable to discover relevant appellate

decisions.

4/ Subsection 120.595(1) authorizes an ALJ to enter a

recommended order. Subsections 120.595(2) and (3) pertain to

rule challenges not relevant to this proceeding. Subsections

120.595(2) and (3), in relevant part, require an ALJ to issue an

"order" but do not reveal whether the order is a recommended

order issued pursuant to Section 120.595 or a final order issued

pursuant to Subsection 120.56(2). If the agency prevails, the

two subsections require the ALJ to "award" fees and costs but do

not prescribe whether the award is to be made in a recommended

order or a final order. Subsection 120.595(4) also pertains to

rule challenges and requires the ALJ to award reasonable

fees and costs in a final order issued pursuant to

Subsection 120.56(4).

COPIES FURNISHED :

Anthony D. Demma, Esquire

Meyer and Brooks, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

Todd Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida, 32399-0400

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 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.