08-001770F Department Of Management Services, Division Of Retirement vs. George Tamalavich Status: Closed DOAH Final Order on Monday, August 4, 2008.

Summary: Attorney`s fees are assessed against Respondent (Petitioner in DOAH Case No. 07-2759) who filed three frivolous post-hearing, post-proposed Recommended Order motions in the earlier case without making reasonable inquiry into the legal justification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Petitioner, )

)

vs. ) Case No. 08-1770F

)

GEORGE TAMALAVICH, )

)

Respondent. )

)

FINAL ORDER

Petitioner, Department of Management Services, Division of

Retirement, filed a Motion for Attorney’s Fees on April 21,

2008. Respondent, George Tamalavich, filed a response on

May 23, 2008. A hearing was held on June 4, 2008, by telephone

before Eleanor M. Hunter, Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

For Respondent: Jane Letwin, Esquire

The Law Office of Jane Letwin

10540 La Placida Drive, North

Coral Springs, Florida 33065

STATEMENT OF THE ISSUE

Whether Respondent filed frivolous motions to introduce

additional evidence after the final hearing and after proposed

recommended orders had been filed that needlessly increased the

cost of litigation, justifying the imposition of sanctions under

Section 120.569(2)(e), Florida Statutes (2007).

PRELIMINARY STATEMENT

This case arose because jurisdiction was reserved over

Respondent’s Motion for Fees and Costs, filed in an earlier case

styled George Tamalavich, Petitioner, vs. Department of

Management Services, Division of Retirement, Respondent , DOAH

Case No. 07-2759 (R.O. 4/8/08; F.O. 5/14/08). Mr. Tamalavich

sought to have the Division of Retirement determine that he is

eligible to receive service credit in the Florida Retirement

System ("FRS") for a period of time that he worked for the

Broward County School Board. The Division denied FRS service

credit because Mr. Tamalavich was employed in a temporary

position as an adult vocational education instructor. After the

hearing and after the filing of proposed recommended orders in

the case, Mr. Tamalavich's Counsel filed three motions to

introduce additional evidence. In response, Counsel for the

Division requested attorney's fees and costs. At the final

hearing, he submitted only evidence related to fees, not costs.

The issue of the appropriateness of an award of attorney's

fees, having been reserved, was docketed as a new case and

assigned DOAH Case No. 08-1770F by the Clerk of the Division of

Administrative Hearings ("DOAH"). The Clerk also amended the

style to reflect the proper alignment of the parties in the fees

case.

Following the final hearing on the issue of fees, on

June 4, 2008, Respondent's Counsel announced that she would be

ordering the transcript. Accordingly, a schedule was set for

proposed final orders to be filed no later than 10 days after

receipt of the transcript. On June 20, 2008, the court reporter

indicated that the transcript had been prepared but not filed

because his office had been unable to contact Respondent's

Counsel. Another Order Setting Deadline for the Filing of

Transcript and Proposed Final Orders was issued. The transcript

filing deadline was set for June 26, 2008, and proposed final

orders were due within 10 days of that date. On July 7, 2008,

the transcript was filed. On July 8, 2008, an Order Granting

Extension of Time, sua sponte, for an additional 10 days for the

filing of proposed final orders, if any, was issued. On

July 18, 2008, the Respondent's Counsel filed what was styled

"Petitioner's Proposed Recommended Order On Respondent's Motion

for Attorney's Fees.”

FINDINGS OF FACT

1. The Petitioner, Department of Management Services,

Division of Retirement ("Division") filed Petitioner’s Motion

for Attorney’s Fees, on April 21, 2008. The Motion is as

follows:

The Department of Management Services,

Division of Retirement, by and through its

undersigned counsel, requests the

Administrative Law Judge to enter an order

awarding the agency reasonable attorney’s

fees in this case and states:

1. The case was originally referred to the

Division of Administrative Hearings on

June 20, 2007. Pursuant to the Order of

Pre-hearing Instructions and after extensive

discovery, the Parties filed their

respective exhibit list. (1) The Final

Hearing was held on January 16, 2008. At

the Final Hearing, the Administrative Law

Judge ruled certain evidence would not be

considered because it was not timely filed.

2. Counsel for Mr. Tamalavich, Ms. Jane

Letwin, subsequent to the Final Hearing,

filed three additional motions entitling the

Division of Retirement to receive attorney’s

fees and costs. These motions were

frivolous. Jurisdiction was specifically

reserved within the Proposed Recommended

Order to “consider Respondent’s claim of

entitlement to fees and costs.” Each motion

sought to supplement the record by

introducing exhibits not timely filed.

(See: Exhibit-1, dated March 4, 2008;

Exhibit-2, dated March 14, 2008; Exhibit 3,

dated March 21, 2008.)

3. The filing of the motions as described

in paragraph two (2) above, constitute

grounds for the imposition of attorney’s

fees and costs as set forth in Section

120.569(2)(e), Florida Statutes (2007),

which reads:

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 representative.

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 appropriate

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.

4. An objection to each motion was filed by

counsel for the agency, asserting the

exhibits were outside the record in the case

and would prejudice the agency. (See:

Exhibit-4, dated March 5, 2008; Exhibit-5,

dated March 14, 2008; Exhibit-6, dated

March 24, 2008.) Counsel also requested

attorney’s fees and costs.

5. In support of this motion, counsel has

attached affidavits as to attorney’s fees

with an activity record for the time spent

responding to the motions. The amount

totals $915.00.

Footnote:

1. Respondent agreed to all of Petitioner's

exhibits.

2. In response to the Motion for Attorney's Fees, the

Respondent filed Petitioner’s (sic) Response to Motion for

Attorney’s Fees (in which references to the parties are based on

their status in the original retirement case, not the current

fees case), stating that:

PETITIONER [sic] THROUGH UNDERSIGNED

COUNSEL, files this Response to the Motion

for Attorney’s Fees pursuant to Fla. Stat.

120.569 (2 © [sic], Fla. Stats. 2007, and

would state:

1. The initial Motion to Supplement the

Record was filed in good faith as a response

to the urging by the Administrative Law

Judge who encouraged the efforts to locate

the missing payroll record. The entire

episode which occurred during the trial

hearing is described in detail in the Motion

and was filed in good faith. The goal was

to ascertain the facts in the interests of

justice, not for delay or bad faith.

2. The Motion to Take Notice was also filed

in good faith based on the existence in the

record of the documents which were the

subject of the motion.

3. The Second Motion to Supplement the

Record was also filed in good faith and in

the interests of justice, as the very

document found in another case with similar

issues which involved the Respondent

Division of Retirement was thought to be of

great interest to the court. This document

was probative of the very concepts proposed

by Petitioner that the notice mandated by

the governing rule had to be presented in

writing to the employee upon his initial

hiring in order to satisfy the requirements

of the FRS’ own rules and regulations.

This document was not prejudicial to the

Respondent since it must have been aware of

the document well before the hearing.

3. Proposed Recommended Orders were filed in the

retirement case, DOAH Case No. 07-2759, on February 25, 2008.

4. Respondent filed the initial Motion to Supplement the

Record on March 4, 2008. The Motion requested consideration of

documents discovered by Mr. Tamalavich's wife after the hearing.

Respondent's Counsel stated that questions raised at the hearing

prompted the search for more documents and made her believe that

she had been instructed to have her client do so. The specific

questions related to whether or not Mr. Tamalavich worked during

a certain month. The Division's witness testified that she had

no way of knowing the answer from her records and that it would

be best to ask Mr. Tamalavich. Respondent's Counsel did not

explain her failure to ask her client to search for records to

support his allegations prior to filing the case or during

discovery. She also maintained that, as used in her motion,

"[t]he terminology 'supplementing the record' was meant to be

the equivalent to a motion to reopen the record." See

Petitioner’s Proposed Recommended Order on Respondent’s Motion

for Attorney’s Fees, page 2.

5. In the second post-hearing pleading, Respondent's

Counsel filed a Motion to Take Notice. Respondent's Counsel

argued that the exhibit that was the subject of the Motion had

not been withdrawn during the hearing and that it was re-

submitted after she checked the DOAH website and found that it

had been logged in by the DOAH Clerk at 3:56 p.m. on the day

before the hearing began. As explained in the Recommended Order:

That [tender] was untimely under the

requirements of the pre-hearing order [that

required submission of a list of exhibits no

later than ten days prior to the date of the

hearing]. In addition, when an objection to

the introduction of the exhibit was raised

at the hearing, the record reflects, on page

47, line 20 of the transcript, that the

tender was withdrawn.

At the final hearing, Respondent's Counsel said she did not

intend to have her words construed as withdrawing the tender of

an exhibit because "I couldn't withdraw something that had been

filed in the record." DOAH Case No. 08-1770F, transcript p. 12,

lines 2 - 4.

5. The third pleading, the Second Motion to Supplement the

Record, was filed to introduce an exhibit used in a DOAH case

that was decided in January 2004. Respondent's Counsel conceded

that she could have possibly requested and received the document

while she was preparing her case, explaining,"[H]owever,

notwithstanding, I certainly didn't file this motion to harass

or delay." DOAH Case No. 08-1770F, transcript p. 23, lines 23 -

25. Petitioner asserted that the only effect of the motion was

"to harass my client and take up additional, take up my time."

DOAH Case No. 08-1770F, transcript p. 23, lines 8 - 9.

6. The Petitioner submitted an Affidavit As To Attorney's

Fees from a 26-year member of The Florida Bar, attesting to the

reasonableness of a fee of $150.00 an hour for a total of 6.1

hours, or a total fee of $915.00. According to the activity

sheet, the attorney’s reviewed each motion, consulted with the

client on each, and prepared the three responses.

7. During the telephone final hearing, Respondent's

Counsel suggested that the work performed should have taken no

more than .5 hour because the responses to the three motions

were essentially the same. She also asserted that the

imposition of any sanction is improper due to her good faith,

subjective belief that she was pursuing a just result for her

client, and that the reasonable inquiry required, under

Subsection 120.569(2)(e), was "not [whether] the motion is

legally permissible," [b]ut whether or not the facts you are

advancing in the motion are, indeed accurate." DOAH Case No.

08-1770F, transcript p. 44, lines 14 - 18.

8. The Division established that there was no legal

justification for the three post-hearing/post-proposed

recommended order motions filed in DOAH Case Number 07-2759.

9. There is no dispute that the three pleadings at issue

were signed by Respondent's Counsel, not by the Respondent, nor

by Respondent's co-counsel who entered a Notice of Appearance,

but did not otherwise participate in the proceedings.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to 120.569, 120.57, and 120.569(2)(e),

Florida Statutes (2007).

11. Section 120.569(2)(e), Florida Statutes (2007),

provides, in relevant part that:

All pleadings, motions, or other papers

filed in the proceeding must be signed

by ... the party’s attorney... 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 appropriate

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.

12. The burden of proving that sanctions should be imposed

rests with the Division as the proponent of sanctions. Friends

of Nassau County v. Nassau County , 752 So. 2d 42 (Fla. 1st DCA

2000). If any reasonably clear legal justification can be shown

for the filing of a motion, improper purpose cannot be found and

sanctions are inappropriate. The determination of an improper

purpose does not, as suggested by Respondent's Counsel, require

a finding of bad faith or an inquiry into her motives or intent.

Rather, an objective review of the significance or importance of

the pleadings in the context of the administrative proceeding is

required. Mercedes Lighting and Electrical Supply, Inc. v.

State, Dept. of General Services , 560 So. 2d 272 (Fla. 1st DCA

1990); and Procacci Commercial Realty, Inc. v. State, Dep't of

Health and Rehabilitative Services , 690 So. 2d 603 (Fla. 1st DCA

1997).

13. The Division responded that the motion to consider

documents found subsequent to the hearing, reflected adversely on

the pre-hearing preparation by Respondent's Counsel, as indicated

by the fact that the case was referred to DOAH on

June 20, 2007, but the final hearing was not held until

January 16, 2008. The questioning that led to the search for

additional documents was the type reasonably to have been

included in depositions to prepare for the hearing. The

documents submitted on behalf of Mr. Tamalavich and the request

to direct the Division to draw certain conclusions from them

reflected a lack of understanding of the limitations on the use

of hearsay as the basis for a finding of fact in an

administrative proceeding, as explained in the Uniform Rules of

Procedure, specifically Florida Administrative Code Rule 28-

106.213(3). No legal justification exists for not having the

client's wife search for additional records before rather than

after the final hearing in the case has been held.

14. The second post-hearing pleading was an attempt to re-

submit an exhibit without complying with the terms of the pre-

hearing order. No legal justification was offered for the

tender, except that Respondent's Counsel received it the day

before the hearing, and found that it was faxed in time to be

listed on the website that same day. The Division again noted

that there had been ample time for discovery and that the record

was closed.

15. Respondent's counsel was unable to give a legal

justification for the delay in attempting to introduce, on

March 21, 2008, almost a month after proposed recommended orders

were filed, a document that was evidence in a case that was

decided in January 2004.

16. In responding to the last motion to supplement,

Petitioner’s counsel noted, and it is undisputed, that

Respondent's counsel ignored the provisions of Florida

Administrative Code Rule 28-106.204(3), by failing to confer and

failing to include in the first post-hearing motion a statement

that she had conferred with opposing counsel. When she claimed

to comply with the requirement to confer with opposing counsel,

as with the 8:32 a.m., March 14, 2008, facsimile setting a

2:00 p.m. deadline to ". . .opposing counsel for his

input. . .," her actions were unreasonable and not made in good

faith compliance with the rule.

17. Based on the provisions of the statutes and the

standards established by cases, Petitioner has established its

entitlement to attorney's fees, pursuant to Section

120.569(2)(e), Florida Statutes (2007).

18. The affidavit and time sheet submitted with

Petitioner's Motion for Attorney's Fees support the conclusion

that Petitioner's Counsel reasonably spent a total of 6.1 hours,

including time reviewing the three pleadings, consulting with

his client, and preparing responses. The affidavit contradicts

Respondent's Counsel's assertion that the work could have been

performed in .5 hour.

19. The affidavit supports a conclusion that a reasonable

attorney's fee is $150.00 an hour, or a total of $915.00. There

is no basis to adjust that "lodestar figure." See Florida

Patient's Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla.

1985).

20. Section 120.569(2)(e), Florida Statutes (2007),

requires the presiding officer to impose sanctions on the person

who signed the pleading that violates the statute, the

represented party, or both. Considering the poor health of

Respondent Tamalavich, as discussed in the earlier case when he

was physically unable to attend most of the hearing, it is

reasonable to conclude that Respondent’s Counsel made the

decision to file the pleadings and that she alone should be

sanctioned for being responsible for failing to make inquiry to

determine whether the pleadings were proper.

21. A review of the transcript in DOAH Case No. 07-2759

shows that, although a member of The Florida Bar, Respondent's

Counsel conducted the proceedings much like the description of

the behavior of the non-lawyer representative in Burke v. Harbor

Estates Associates , 591 So. 2d. 1034 (Fla. 1st DCA 1991).

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law it is ORDERED that:

Petitioner's Motion for Attorneys' Fees is granted.

Respondent's counsel shall pay to Petitioner within 30 days of

the date of this Final Order the sum of $915.00 for attorneys'

fees incurred as a result of the three post-hearing/post-proposed

recommended order pleadings in DOAH Case No. 07-2759.

DONE AND ORDERED this 4th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 4th day of August, 2008.

COPIES FURNISHED :

J. Leonard Fleet, Esquire

Fleet Dispute Resolution

625 32nd Avenue, Southwest

Vero Beach, Florida 32968

Jane Letwin, Esquire

The Law Office of Jane Letwin

10540 La Placida Drive, North

Coral Springs, Florida 33065

Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

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 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.