10-000550FC Todd Raven vs. Mantee County School Board Status: Closed DOAH Final Order on Thursday, September 23, 2010.

Summary: On remand from the Second District Court of Appeal, it was determined that DOAH had jurisdiction and that reasonable attorney's fees were $37,100.00 and reimbursable costs were $4,469.68.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TODD RAVEN , )

)

Petitioner , )

)

vs. ) Case No. 10 - 0550FC

)

MANTEE COUNTY SCHOOL BOARD , )

)

Respondent . )

)

ORDER AWARDING ATTOR NEY 'S FEES AND COSTS

Pursuant to notice, a final hearing was held in this case

before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings, on May 27 , 20 10 , by v ideo

t eleconference at sites in Tallahassee and Sarasota , Florida.

APPEARANCES

For Petitioner: Mark F. Kelly, Esquire

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

For Respondent: John W. Bowen, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206 - 9069

STATEMENT OF THE ISSUE

The amount of attorney's fees and costs to be awarded to

Petitioner, pursuant to the order on remand from the Second

District Court of Appeal, in Raven v. Manatee County School

Board , 32 So. 3d 126 (Fla. 2d DCA 2009), pursuant to S ubs ection

120.595(5), Florida Statutes (2009). 1

PR ELIMINARY STATEMENT

This case arises from a prior administrative proceeding

between the parties conducted before the Division of

Administrative Hearings, in C ase n umber 07 - 3924, addressing

whether Petitioner was subject to termination of his employment

bas ed upon an allegation of gross insubordination, a failure to

cooperate with Respondent's Office of Professional Standards

(OPS), and a violation of other code provisions applicable to

tea chers. On February 5, 2008, a R ecommended O rder was issued

finding t hat Respondent had not established "just cause" for the

termination of Petitioner 's employment , because Petitioner was

entitled to representation during the OPS investigative

interview, pursuant to S ubs ection 120.62(2) , Florida Statutes

(2007) . Respondent filed exceptions to the Recommended Order,

which were heard by the School Board of Manatee County ( School

Board ) . On March 25, 2008, the Scho ol Board adopted the

exceptions; modified or rejected certain F indings of F act and

C onclusion s of L aw contained i n the Recommended Order ; found

Respondent did not violate S ubs ection 120.62(2) , Florida

Statutes (2007) ; and terminated Petitioner's employment.

Petitioner appealed to the Second District Court of Appeal ,

which , following the filings of briefs and oral ar gument ,

reversed the School Board's adoption of Respondent's exceptions

and remanded the case with instructions to enter a final order

consistent with the Recommended Order, which it did. In a

separate order, dated December 2, 2009, the Second District

Co urt of Appeal awarded Petitioner attorney's fees, pursuant to

S ubs ection 120.595(5) , Florida Statutes , which authorizes an

a ward of attorney's fees when an agency is found to have

improperly rejected findings of fact by an A dministrative L aw

J udge in a for mal proceeding under S ubs ection 120.57 (1) , Florida

Statutes. Following the issuance of the Mandate, this matter

came before the Division of Administrative Hearings for the

determination of the amount of attorney's fees and costs.

R e sponde n t filed a m otio n to d ismiss for lack of jurisdiction ,

which was denied. G.E.L. Corp. v. Department of Environmental

Protection , 875 So. 2 d 1257, 1263 - 64 (Fla. 5th DCA 2009).

A formal evidentiary hearing was conducted on May 27, 2010,

vi a video teleconference at sites in Tallahassee and Sarasota,

Florida. Petitioner called two witnesses, his attorney s , Mark

Kelly and Melissa Mihok, and expert witness, Mark Herdman ,

Esquire . Petitioner also presented two exhibits, a billing

statement reflecting the hours of legal work ex pended on behalf

of Petitioner in the original administrative proceeding and the

appeal and a composite exhibit consi s ting of affidavits of Mark

Kelly, Esquire ; Robert McKee, Esquire ; and Melissa Mihok ,

Esquire . Respondent presented the testimony of one e xpert

witness, Thomas M. Gonzalez , Esquire . Following a m otion for

e xtension of t ime, the parties timely filed their proposed

o rders.

FINDINGS OF FACT

1. Petitioner retained the l aw o ffice s of Kelly & McKee,

P.A. , to represent him in connection with his dispute over

R e sponde nt see k ing to terminate his employment. Petitioner was

successful in reinstating Petitioner to his position; however,

the Administrative Law Judge was without authori t y to order the

School Board to extend his contract beyond the May 2 5, 2007 ,

exp i ration date .

2. Petitioner seeks attorney's fees for the underlying

proceeding and the appellate proceeding in the amount of

$66,881.25, representing the total number of hours billed to

Petitioner. Petitioner is also seeking $5,074.98 in cos ts.

3. Melissa Mihok, Esquire, billed 286.75 hours at $225.00

per hour for legal services performed. The two princip als of

the firm, Mark Kelly, Esquire , and Robert F. McKee, Esquire,

billed 1.75 hours and 5.0 hours, respectively, of legal

services, for which they billed at $350.00 per hour.

4. Petitioner's expert witness, Mark Herdman, Esquire, who

has intensive experience in this area, testified that the hourly

rate for employment of attorneys in the Tampa Bay Area ranged

from $200 .00 to $350 .00 per ho ur and that the amount of time

expended on this case was reasonable.

5. Respondent's expert witness, Thomas M. Gonzalez,

Esquire, testified that the amo u nt of time spent and the fees

claimed were not reasonable ; t hat the fee usually charged for an

attorne y with five years ' experience , representing a S chool

B oard employee , was between $150 .00 to $200 .00 per hour ; that

19 hours of preparation time for an administrative hearing that

took three hours was excessive ; and , f urther , that 102 hours to

prepare esse ntially the same brief three times in the form of a

proposed order , a one - page exception, a response to Respondent's

exception , and the appellate brief was not reasonable.

6. Based on all the evidence, including the billing

statement ; the fact that Ms . Mi hok testified that her regular

hourly rate in representing teachers in administrative hearings

was $100 .00 per hour ; and the credible and persuasive testimony

of Respondent's expert, an hourly rate of $150 .00 is reasonable.

7. The amount of time expended on this matter was

excessive and should be reduce d by 50 hours, plus a reduction of

35 hours from the time spent on seeking an d collecting

attorney 's fees. The reasonable amount of time spent on this

matter is 201.75 hours.

8. Therefore, the reasonable a mount of attorney's fees for

Ms . Mihok in this matter is $ 30,262.50 , which is 201.75 hours at

an hourly rate of $150.00 .

9. The fee for Mr. Kelly and Mr. McKee should be reduced

by 1.5 hours at $350 .00 per hour for the time spent on research

for collectin g attorney's fees. T he total due for their legal

services is 5.25 hours at $350 .00 for a total amount of

$1,83 7 .50.

10. Therefore, the lodestar amount for attorney's fees for

the firm is $ 32, 100 .00 , plus an enhancement of $5,000 .00 for the

establishment of new law.

11. As for costs, the expert witness fee for attorney 's

fees is not recoverable . T he amount of c ost s s ought is reduced

by $1,800 .00 , and $1,194.70 is awarded for court reporter fees .

Therefore, the total recoverable costs are $4,469.68.

CONC LUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter, pursuant

to the terms of the r emand o rder and order granting the

Petitioner's request for attorney's fees from the Second

District Court o f Appeal and S ubs ection 120.595(5), Florida

Statutes.

13. This case is controlled by S ubs ection 120.595(5),

Florida Statutes, which provides, in pertinent part:

Upon review of agency action that

precipitates an appeal, if the court finds

that the agency i mproperly rejected or

modified findings of fact in a recommended

order, the court shall award reasonable

attorneyÓs fees and reasonable costs to a

prevailing appellant for the administrative

proceeding and the appellate proceeding.

14. The c ourt awarded fees and costs under this provision

and remanded the matter to the Division of Administrative

Hearings to determine th e a mount of fees and costs to be

awarded, without any instructions apart from the specific terms

of the statute. Generally, in determinin g reasonable attorney's

fee s , courts should consider the following factors: (1) the

time and labor required, the novelty and difficulty of the

issues, and the legal skill required; (2) the likelihood that

the representation will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar

legal services; (4) the result s obtained; (5) the time

limitations imposed by the client or circumstances; (6) the

nature and length of the professional relationship with the

client ; (7) the experience, reputation , and ability of the

lawyers; and (8) whether the fee is fixed or contingent.

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

1150 (Fla. 1985). The Administrative Law Judge should also

consider the results ob tained by the prevailing party. See ,

e .g. , Bd . of Regents v. Winters , 918 So. 2d 313, 315 (Fla. 2d

DCA 2005).

15. Petitioner has the burden of proof in this proceeding .

Petitioner must show by a preponderance of evidence w hat amount

of fees and costs sh ould be awarded. See Department of

Transportation v . J.W.C., Co. , 396 So. 2 d 778 (Fla. 1st DCA

1981).

16. In State Farm Fire & Casualty Co. v. Palma , 629 So. 2d

830 (Fla. 1993), t he Florida Supreme Court first resolved a

conflict among the d istricts on w hether a party is entitled to

attorney's fees in litigating the amount of fees . The

attorney's fee award in Palma was based upon Section 627.428,

Florida Statute s , which authorizes a fee award against an

insurer when judgment is rendered in favor of the i nsured. Id.

The Court held that the insured was entitled to reimbursement of

attorney's fees expended in litigating the entitlement to the

fees, but not the amount of the fees. Id. at 832 - 833. The

Court reasoned that litigation regarding the amount of fees

"inures solely to the attorney's benefit and cannot be

considered services rendered in procuring full payment of the

judgment," Id . at 833. Palma denied "fees for fees , " because

the benefit would run only to the attorneys in that case. The

fa c ts in this case are similar.

17. At least one apparent purpose of S ubsection

120.595 (5), Florida Statutes, is to encourage attorneys to

provide legal representations to indigents and , also , in accord

with the reality that parties to administrative proceedings a re

often at an economic disadvantage against an agency, often

times , a polit ical subdivision of the state.

18. The lodestar, as outlined in Rowe , supra , is the

mathematical product of the number of hou rs reasonably expended

multiplied by the reasonable ho urly rate , plus a reasonable

amount for the results obtained.

1 9 . Some of the costs identified in the billing statement

are not recoverable , pursuant to the uniform guidelines on

taxing costs.

20 . The object of the relevant statutory requirement for

atto rney's fees is to make Petitioner whole. Nothing in the

text of Subsection 120.595(5) , Florida Statutes, supports a

conclusion that the Legislature intends the fee provisions to be

applied in a punitive manner. Winters , 918 So. 2d at 315.

2 1 . Interest o n judgments generally accrues at the

statutory rates prescribed by Florida's chief financial officer.

T he interest rates on an award of attorney's fees and costs

accrue from the date the judgment bec ame final.

Order

Based on the foregoing Findings of Fac t and Conclusions on

Law, it is

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

the respective amounts of $ 37, 100 . 00 and $4,469.68 .

DONE AND ORDERED this 23rd day of September , 2010 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of t he

Division of Administrative Hearings

this 23rd day of September , 2010 .

ENDNOTE

1/ Unless otherwise indicated all references to Florida Statutes

are to Florida Statutes (2009).

COPIES FURNISHED :

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 Ea st Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

John W. Bowen, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206 - 9069

Deborah K. Kearney, General Counsel

Department of Education

Turlington B uilding, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Eric J. Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Tim McGonegal, Superi ntendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34206 - 9069

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

Stat utes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

second 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 Administrative Appeal must be

filed within 30 days of re ndition of the order to be reviewed.