11-003428FC Robert A. Schweickert, Jr. vs. Citrus County And Department Of Community Affairs Status: Closed DOAH Final Order on Thursday, November 10, 2011.

Summary: On remand from the District Court of Appeal for the First District of Florida, reasonable appellate attorney's fees are determined to be $17,782.63, and there are no recoverable legal cost.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

ROBERT A. SCHWEICKERT, JR., )

)

Petitioner, )

)

vs. ) Case No. 11 - 3428FC

)

CITRUS COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

CITRUS MINING AND TIMBER, INC., )

)

Intervenor. )

)

FINAL ORDER

The final hearing in this matter was held on September 7,

2011, in Inverness, Florida, before Bram D.E. Canter,

Administrative Law Judge of the Division of Administrat ive

Hearings ("DOAH").

APPEARANCES

For Petitioner: Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

For Respondent Citrus C o unty :

Peter Aare, Esquire

Citrus County AttorneyÓs Office

110 North Apopka Avenue

Inverness, Florida 33450 - 4231

For Department of Community Affairs :

David L. Jordan, Esquire

Department of Economic Opportunity

107 East Madison Street, MSC 110

Tallahassee, Florida 32399 - 4128

For Intervenor: Edward P. de la Parte, Jr., Esq uire

de la Parte and Gilbert, P.A.

Post Office Box 2350

101 East Kennedy Boulevard, Suite 2000

Tampa, Florida 33601 - 2350

STATEMENT OF THE ISSUE

The issue to be deter mined is the amount of reasonable

attorney 's fee s and costs incurred by Citrus Mining and Timber,

Inc. ("CMT") in Robert A. Schweickert , Jr. v. Dep artment o f

Com munity Affairs and Citrus Mining and Timber, Inc. , Case. N o.

1D10 - 3882 (Fla. 1st DCA 2011 ) .

STA TEMENT OF THE CASE

On January 26, 2010, Robert Schweickert , Jr., unrepresented

by legal counsel, filed a petition for hearing with the

Department of Community Affairs to challenge the Department's

determination that an amendment to the Citrus County

Compr ehensive Plan was "in compliance" under section 163.3184,

Florida Statutes (2010). Following a de novo hearing and a

Recommended Order from DOAH, the Department issued a Final Order

on June 25, 2010, which determined that the plan amendment was

in complia nce.

On July 22, 2010, Schweickert , still unrepresented by

counsel, appealed to the District Court of Appeal for the First

District. On May 4, 2011, the c ourt entered an order dismissing

the appeal on the basis that Schweickert had not demonstrated

his s tanding to appeal. In the same order, CMT's motion for

attorney 's fees was granted "as appellant knew or should have

known he lacked s tanding to bring the appeal . " On June 24,

2011, the c ourt granted CMT's motion for clarification as to

attorney 's fees, remanding the case to DOAH " for determination

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

Official recognition was taken of the pleadings, orders,

and briefs filed in the c ourt . CMT Exhibits 1 through 13 were

admitted into evidence. CMT presented the t estimony of Daniel

Stengle. Schweickert presented the testimony of Howard Heims,

but offer ed no exhibits.

The Transcript of the final hearing was filed with DOAH and

the parties filed proposed final orders that were considered in

the preparation of this Final Order.

FINDINGS OF FACT

Appellate Attorney 's Fees

1 . Sarah Lahlou - Amine of the law firm of Fowler White

Boggs, P.A. ("Fowler") was the attorney with primary

responsibility for research and drafting documents for the

appeal on behalf of CMT. She pr epared and filed a notice of

appearance, a motion to dismiss, a motion for attorney 's fees,

an amended motion for attorney 's fees, the a nswer b rief, a

n otice of s upplemental a uthority, a second motion for attorney 's

fees, and a motion for clarification. M s. Lahlou - Amine was

assisted and supervised by more senior lawyers at Fowler. The

total number of hours charged by Fowler was 134.8. The total

attorney 's fees charged by Fowler was $39,010.

2 . Lawyers from two other law firms were employed by CMT

and c harged attorney 's fees and costs for the appeal. The Law

Office of Clark Stillwell, P.A., charged 18 hours for a total

attorney 's fee s of $6,030. Edward de la Parte and other lawyers

of the law firm of de la P arte & Gilbert, P.A., charged 24.9

hours for total attorney 's fees of $5,382.50.

3 . The gran d total of all the attorney hours expended for

the appeal is 17 7 .7 hours and the grand total of all fees

charged to CMT for the appeal is $50,422.50 .

4 . It was the opinion of CMT's expert witness , Daniel

S tengle, that all of these hours and fees are reasonable.

Schweickert 's expert witness, Howard Heims, believes that 25 or

30 hours was all th e effort that was reasonable for this appeal .

5 . The h ourly rates of $225.00 to $435.00 an hour that

were used by CMT's attorneys are not contested by Schweickert.

The evidence established that the rates are reasonable. The

dispute focused on the number of hours expended for the appeal .

6 . Heims contends that it was unreasonable for CMT to file

a motion to dismis s for lack of standing , because appellate

courts rarely grant such a motion and the standing issue could

have been saved for CMT's a nswer b rief. The c ourt did not

summarily deny CMT's motion to dismiss but , instea d, ordered

Schweickert to show cause why t he motion should not be granted.

The issuance of the order to show cause indicates that it is not

the c ourt 's practice to deny all motion s to dismiss that are

filed before the brief s . Following Schweickert's response, the

c ourt still did not deny the mot ion to dismiss , but deferred

ruling to the panel of judges that would determine the merits of

the appeal.

7 . I t was not unreasonable to file a motion to dismiss in

this case because Schweickert's lack of standing was unusually

clear. The controlling fac tual issue was simple -- whether

Schweickert made timely comments to Citrus County about the

proposed comprehensive plan amendment . Furthermore, the

argument made in the motion eventually prevailed.

8 . Heims a lso believes that it was unreasonable for CMT to

file three motions for attorney 's fees and costs. T he motions

were not identical, but filing three such motions is unusual and

was not shown to be necessary or important .

9 . I t was not persuasively shown that 17 7 .7 attorney hours

was reasonable for t his appeal .

10 . The evidence does not establish that the attorney 's

fees charged by the law firms of Clark Stillwell and de la Parte

& Gilbert should be included as part of the reasonable fee s for

the appeal. These fees were not shown to be necess ary or to

contribute materially to the appeal.

11 . Rule 4 - 1.5 of the Rules Regulating the Florida Bar,

Code of Professional Conduct , sets forth factors to be

considered in determining a reasonable attorney 's fee. The

factors list ed in r ule 4 - 1.5(b) (1) are add ressed below, in

sequence :

(A) t he time and labor required, the

novelty, complexity, and difficulty of the

questions involved, and the skill requisite

to perform the legal service properly;

The time and labor expended on the appeal was not shown to be

re asonable. The questions involved were not difficult. The

case was not complex. No unusual skills and expertise were

required to perform the legal services.

(B) t he likelihood that the acceptance of

the particular employment would preclude

other employm ent by the lawyer;

CMT did not contend that this factor was applicable.

(C) t he fee, or rate of fee, customarily

charged in the locality for legal services

of a comparable or similar nature;

Reasonable hourly rates were charged , but p ersuasive evidence

was not presented to show that the total amount of the fee s

charged to CMT are customary for the services that were

performed .

(D) t he significance of, or amount involved

in, the subject matter of the

representation, the responsibility involved

in the re presentation, and the results

obtained;

Although a reversal of the D epartment 's Final Order would have

had adverse consequences for CMT, it was not shown that the

situation was of an unusual nature . Furthermore, a reversal on

the merits (to find the comp rehensive plan amendment not in

compliance) was almost impossible because no factual findings

were made that supported Schweickert's claims . CMT points to

the unusual result -- attorney's fees awarded against a pro se

litigant -- as justifying the attorney's fee, but this unusual

result is due to Schweickert's unusually weak case . The issues

and the law applied were not unusual.

(E) t he time limitations imposed by the

client or by the circumstances and, as

between attorney and client, any additional

or speci al time demands or requests of the

attorney by the client ;

CMT's argument that time limitations of an usual nature existed

in this matter was not persuasive.

(F) t he nature and length of the

professional relationship with the client ;

The applicability o f this factor was not argued by CMT and was

not demonstrated by the evidence.

(G) t he experience, reputation, diligence,

and ability of the lawyer or lawyers

performing the service and the skill,

expertise, or efficiency of effort reflected

in the actual providing of such services;

and

The lawyers involved have good reputations and experience, but

those attributes were not likely to have materially affected the

outcome. Performing the legal service s did not require u nusual

skills. The services were not efficiently provided.

(H) w hether the fee is fixed or contingent,

and if fixed as to amount and rate, then

whether the client's ability to pay rested

to any significant degree on the outcome of

the representation.

This factor was not shown to be a basis to support a larger fee.

12 . It was He ims ' opin ion that 25 to 30 hours was a

reasonable number of attorney hours to prepare the a nswer b rief

and one motion for attorney 's fees. Thirty hours was a

sufficient number of hours for the research and drafting work

done by Ms. Lahlou - Anime . However, because it has been

determined that the filing of the motion to dismiss was

reasonable , some additional time should be added .

13 . CMT Exhibit 1 indicates that Ms. Lahlou - Anime charged

about 23 hours for her work o n the motion to dismiss. However,

in determining a reasonable number of hours for the work on the

motion to dismiss , consideration must be given to the fact that

the standing arguments made in the motion were repeated in CMT's

a nswer b rief, which has alre ady been accounted for in the 30

hours. The parties did not address this specific issue .

However, the evidence supports the addition of 10 hours for

Ms. Lahlou - Anime, for a total of 40 hours .

14 . Forty hours for Ms. Lahlou - Anime at her rate of $260

pe r hour equals $10,400 .

15 . Heims also failed to fairly account for the

reasonableness of the attorney hours expended by Karen Brodeen,

a senior attorney at Fowler who represented CMT in the lower

administrative proceedings and who assist ed Ms. Lahlou - Ani me in

the preparation of the motion to dismiss and a nswer b rief . CMT

Exhibit 1 s hows th at Ms. Brodeen charged 0.9 hours at $375 per

hour and 16.9 hours at $385 per hour, for a total fee of $ 6 , 844 .

16 . T he grand total of reasonable attorney time is 5 7.8

hours and the total reasonable attorney 's fee is $1 7 , 2 44 .

Appellate Costs

17 . CMT is seeking $3,250.95 in costs for the appellate

proceeding , comprised of $3,156.41 in costs charged by Fowler

a nd $94.54 charged by de la Parte & Gilbert. However, as

disc ussed in the Conclusions of Law, the costs which CMT seeks

to recover -- routine office expenses -- are not recoverable legal

costs under the applicable statute s .

Prejudgment Interest

18 . CMT seeks daily p rejudgment interest at the rate of

0.01644 percent .

Requested Sanctions in the DOAH Remand Proceeding

19 . CMT also seeks to recover its attorney's fees and

costs incurred following the remand from the Court of Appeal to

DOAH to determine the amount of appellate attorney 's fees and

costs , as a sanction fo r alleged misconduct by Schweickert.

20 . CMT seeks a sanction against Schweickert for his

failure to appear at a scheduled deposition for which

Schwei c kert had been subpoenaed. Schweickert was not

represented by an attorney at the time. Schweickert tol d CMT's

attorney s that he was not going to appear at the deposition, but

CMT's attorneys went forward as planned. Schweickert did not

appear for his deposition. CMT seeks to recover its a ttorney 's

fees charged by de la Parte & Gilbert that are related to

Schweickert's failure to appear for his deposition, which are

$17,975.00 , and costs of $818.63.

21 . CMT also sought a sanction against Schweickert for

having to respond to Schweickert's Motion for Cause of Contempt

for Citrus Mining and TimberÓs Violati on of Court Order , which

demanded s anctions against CMT for CMT's scheduling of

Schweickert's deposition without attempting to contact him to

arrange a mutually agreeable date and time. The motion was

denied . Schweickert was not represented by an attorne y at the

time. CMT seeks to recover its a ttorney 's fees charged by de la

Parte & Gilbert to respond to the motion, which are $2,357.50 ,

and costs of $21.52.

22 . The day before the final hearing, CMT filed a motion

for sanctions for Schweickert's failure to provide complete

answers to some of CMT's discovery requests.

23 . At the time of the final hearing on September 7, 2011,

CMT showed a total of $35,570 in attorney ' s fees associated with

the DOAH remand proceeding , and costs of $1,69 3 . 7 3. CMT seeks

r ecovery of those fees and costs as well as subsequent fees and

costs through issuance of the F inal O rder in this remand

proceeding , which are estimated to be $22,000 and $10,870,

respectively. In summary , CMT seeks to recover $70,133.73 in

fees and costs that it was charged by its attorneys for their

effort to show that CMT's appellate fees and costs of $53, 673 .45

were reasonable.

CONCLUSIONS OF LAW

24 . CMT has the burden to prove the reasonableness of the

attorney 's fees . See City of Miami v. Harris , 4 90 So. 2d 69

(Fla. 3d DCA 1985).

25 . Attorney 's fees generally cannot be recovered when the

evidence is insufficient to show what services were performed .

See Warner v. Warner , 692 So. 2d 266, 268 (Fla. 5th DCA 1997) ;

Tucker v. Tucker, 513 So. 2d 733, 7 35 (Fla. 2d DCA 1987) .

26 . T he number of hours reasonabl y expended on the

litigation , multiplied by a reasonable hourly rate , produces the

"lod e star ," which is an objective basis for the award of

attorney 's fees. Fl a. Patient's Comp . Fund v. Row e , 472 S o. 2d

1145 , 1150 (Fla. 1985). T he lod e star may be adjusted up or down

to account for a "contingency risk" factor or the " results

obtained." The former factor is inapplicable and the latter

does not warrant an adjustment in this case.

27 . In Rowe , t he S upreme Court of Florida stated that, in

determining reasonable attorney 's fees, the courts should use

the criteria set forth in Disciplinary Rule 2 - 106(b) of The

Florida Bar Code of Professional Responsibility. Id . These

criteria are now found in r ule 4 - 1.5 (b) , Rules Regulating the

Florida Bar, Rules of Professional Conduct.

28 . After c onsidering the evidence presented and all the

guidelines contained in r ule 4 - 1.5(b) , it is concluded that a

reasonable attorney 's fee for the appeal is $1 7 , 2 44.

29 . Sect ion 57.105(1), Florida Statutes, provides that

prejudgment interest shall be included in the award of a

reasonable attorney's fee under this section. The date of a

court's determination that a party is entitled to fees fixes the

date for computing prejudg ment interest. Mason v. Reiter , 5 64

So. 2d 142 (Fla. 3d DCA 1990 ) . In this case , the operative date

is May 4, 2011.

30 . The total reasonable attorney 's fees , including

prejudgment interest , is $17 , 782. 63 . 1

31 . The costs which CMT seeks to recover are office

expenses , such as for postage, telephone, on - line legal

research, and facsimile s . CMT did not cite any legal authority

to support its claim for these costs. These are not recoverable

legal costs. See Robbins v. McGrath , 9 5 5 So. 2d 633, 635 (Fla.

1st DCA 2007).

32. C opying expenses are not recoverable unless a showing

is made that the copies were for documents filed in court and

r easonably necessary . Ocean Club Cmty. Ass'n, Inc. v. Curtis ,

935 So. 2d 513, 518 (Fla. 3d DCA 2006) . No such showin g was

made.

3 3 . Although Schweickert 's expert witness was not

permitted to offer an opinion as to the reasonableness of CMT's

costs, an expert opinion is unnecessary to determine that CMT's

costs are not recoverable.

3 4 . A party may recover additional attorney 's fees for

litigating the issue of entitlement to fees, but generally a

party may not recover attorney 's fees for time spent litigating

the amount of the fees. See State Farm Fire & Cas. Co. v.

Palma , 629 So. 2d 83 (Fla. 1993). However, the same kinds of

misconduct that would justify imposing a sanction against a

party in the original case can justify a s anction if the

misconduct occurs in a subsequent proceeding to determine a

reasonable attorney 's fee. See Condren v. Bell , 853 So. 2d 609

(Fla. 4th DCA 2003 ).

3 5 . Because it was determined by the Administrative Law

Judge that there was no basis for deposing Schweickert, and CMT

was ultimately prohibited from deposing him, no sanction is

imposed on Schweickert for his failure to appear for his

d eposition.

3 6 . No evidence was presented by CMT at the final hearing

to prove the allegations made in support of the requested

sanction against Schweickert for filing his Motion for Cause of

Contempt for Citrus Mining and TimberÓs Violation of Court

Orde r . The fact that Schweickert's motion was denied is not ,

standing alone, sufficient cause to impose a sanction against

him.

3 7 . As to CMT's requested sanction against Schweickert for

failing to provide complete responses to certain discovery

requests , S chweickert was prohibited at the final hearing,

because of that failing, from presenting an expert opinion on

the reasonableness of the appellate costs or any evidence on the

reasonableness of the fees charged by CMT's attorneys for

litigating the amount o f the fees to be awarded. No additional

sanction is imposed .

3 8 . I n summary , CMT's motions for further sanctions

a gainst Schweickert for matters arising during the remand

proceeding are denied.

DISPOSITION

Based upon the Findings of Fact and Conclusion s of Law,

it is

ORDERED that the amount of reasonable attorney 's fee s for

the appeal, including prejudgment interest, is $ 1 7 , 782 . 63 , and

there are no legal costs that are recoverable.

DONE AND ORDERED this 10th day of November, 2011, in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of November , 2011.

ENDNOTE

1/ The interest rate on judgments is 6.0 percent per annum,

which produces a daily interest rate of 0.01644 percent. There

are 19 0 days between May 4 , 2011, and the date of this Final

Order. Multiplying 0.01644 by 190 produces a total interest

rate of 3.1236 percent. Applying this rate to $17,244 results

in prejudgment interest of $538.63.

COPIES FURNISHED :

Peter Aare, Esquire

Citrus County Attorney Ó s Office

110 North Apopka Avenue

Inverness, Florida 33450 - 4231

Karen A. Brodeen, Esquire

Fowler, White, Boggs, Banker, P.A.

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahassee, Florida 32302 - 1240

Edward P. de la Parte, Jr., Esquire

de la Parte and Gilbert, P.A.

Post Office Box 2350

101 East Kennedy Boulevard, Suite 2000

Tampa, Florida 33601 - 2350

David L. Jordan, Esquire

Department of Economic Opportunity

107 East Madison Street, MSC 110

Tallahassee, Florida 32 399 - 4128

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

Doug Darling, Executive Director

Department of Economic Opportunity

107 East Madison Street

Caldwell Building

Tallahassee, Florida 32399 - 4128

Deborah Kearney, General Counsel

Department of Economic Opportunity

107 East Madison Street

Caldwell Building, MSC 110

Tallahassee, Florida 32399 - 4128

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

en titled 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 one copy of a Notice of Administrative Appeal with the

agency cl erk 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 rendition of the order to be reviewed.