11-005760F Richard Langford, D.V.M. vs. Department Of Business And Professional Regulation, Board Of Veterinary Medicine Status: Closed DOAH Final Order on Tuesday, February 12, 2013.

Summary: Petitioner did not establish entitlement to attorney's fees where Department relied in discrepancies in records and two expert opinions with respect to record-keeping violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD LANGFORD, D.V.M. , )

)

Petitioner , )

)

vs. ) Case No. 11 - 5760F

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF VETERINARY MEDICINE , )

)

Respondent . )

)

FINAL ORDER

On December 5, 2012, a duly - noticed final hearing was

conducted in Tallahassee, Florida, by Administrative Law Judge

Lisa Shearer Nelson, of the Florida Division of Administrative

Hearings , for consideration of a Section 57.105 Motion for

Failure to Present Facts to Establish a Claim .

APPEA RANCES

For Petitioner: Ann M. Bittinger, Esquire

Kelly L. Downer, Esquire

The Bittinger Law Firm

13500 Sutton Park Drive South, Suite 201

Jacksonville, Florida 32224

For Respondent: C. Erica White, Esquire

Gautier Kitchen, Esqu ire

Department of Business and

Professional Regulation

Office of the General Counsel

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is entitled to

attorney Ó s fees p ursuant to section 57.105, Florida Statutes

(2011), and if so, what constitutes a reasonable fee?

PRELIMINARY STATEMENT

This case concerns a S ection 57.105 Motion for Failure to

Present Facts to Establish a Claim ( Ð Fees Motion Ñ ), filed

aga inst Respondent, Department of Business and Professional

Regulation ( Ð the Department Ñ or Ð DBPR Ñ ), by Petitioner, Richard

Langford, D.V.M. ( Ð Petitioner Ñ or Ð Dr. Langford Ñ ) . The Fees

Motion was filed in response to the Amended Administrative

Complaint filed against Dr. Langford in Department of Business

and Professional Regulation v. Richard Langford, D.V.M. , DOAH

Case No. 11 - 3268 (Fla. DOAH Nov. 14, 2011; Bd. Veterinary Med.

June 25, 2012) (the Merits Case) . The Fe es Motion, which was

filed August 29, 2012, during the pendency of the underlying

case, was opened as Case No. 11 - 5760 upon the issuance of the

Recommended Order in the Merits Case . Th e current case was then

placed in abeyance pending the issuance of a Fi nal Order in Case

No. 11 - 3268 .

On June 25, 2012, the Board of Veterinary Medicine Ó s Final

Order in the Merits Case, dismissing the Second Amended

Administrative Complaint , was filed with the Division . O n

July 5, 2012, an Order issued directing Petitioner to file an

Itemized Statement listing the fees and costs for which he seeks

reimbursement, along with any supporting affidavits, and a

statement as to whether he was request ing a hearing on the issue

of fees. The Department was directed to file a response no

later than 20 days after Dr. Langford Ó s statement, identifying

any dispute as to entitlement of an award and/or reasonableness

of the fee sought , and stating whether a hearing was requested.

On August 1, 2012, Dr. Langford filed an Itemized Statement

a s required by the July 5, 2012, Order, with affidavits of

counsel for Dr. Langford, and of Monica Rodriguez, Esquire, in

support of the requested fees in the amount of $93,350.58. The

Department filed a response on August 20, 2012, and, consistent

with the dates provided by the parties, the case was scheduled

for final hearing to commence October 1, 2012. At the request

of the Department, the matter was continued and rescheduled for

December 5, 2012, and the case proceeded as scheduled. At

hearing, Petitioner presented the testimony of Monica Rodriguez,

Esquire, and Petitioner Ó s Exhibits lettered A - C, F, H, M, N, P,

R, and T - X were admitted into evidence. The Department

presente d the testimony of Elizabeth Henderson, Esquire, and

Kevin O Ó Donnell, Esquire, and Respondent Ó s Exhibits A, B, and H

were admitted into evidence.

The parties filed a Joint Prehearing Stipulation that

included stipulated facts which, where relevant, have be en

incorporated into the Findings of Fact below.

The Transcript of the proceedings, consisting of one

volume, was filed with the Division on December 27, 2012.

Petitioner Ó s Proposed Final Order was filed January 7, 2013,

while the Department Ó s Propose d Final Order was filed

January 16, 2013. Both submissions have been carefully

considered in the preparation of this Final Order.

FINDING S OF FACT

1. The Department is the state agency charged with the

licensing and regulation of veterinarians in the State of

Florida pursuant to section 20.165 and chapters 455 and 474,

Florida Statutes.

2. At all times material to the se proceedings, Petitioner

has been a licensed veterinarian in Florida, having been issued

license number VM 5290.

3. Petitioner was the treating veterinarian for a dog

named , Awesomer, owned by Sheri Lawhun.

4. On April 28, 2009, Ms. Lawhun brought Awesomer to

Petitioner for examination and treatment. D etails of the

treatment provided to Awesomer are related in the Findings of

Fact in th e Merits Case . For the purposes of this Final Order,

it is sufficient to state that Respondent treated Awesomer from

April 28 - 30, 2009, and that on April 30, Awesomer died.

5. Ms. Lawhun filed a complaint with the Department of

Business and Professional Regulation regarding the care and

treatment Respondent provided to Awesomer.

6. Just prior to his prov ision of care for Awesomer,

Dr. Langford Ó s office s w itched to a Ð paperless Ñ system, which

involved switching to electronic medical records, bookkeeping,

etc. Petitioner testified in the Merits Case that the medical

record itself is stored on the computer software and that there

are a wide variety of Ð print screen Ñ options available.

Dr. Langford demonstrated the complicated nature of the software

and the ability to Ð hide Ñ different parts of the medical records

from the print screen, as well as to copy and paste entries to

the Ð top Ñ or most recent page, of the medical record. The

software does not allow the user to delete record entries, but

does allow a user to hide them , change the dates for them , or

make them unavailable to print. There are also entries on

screens called Ð snatch screens Ñ that do not print.

7. As a result, there are three different sets of medical

records for the same period of time for Awesomer that were

admitted into evidence in the underlying case: 1) Petitioner Ó s

Exhibit A, which was printed on May 16, 2009, at the request of

Ms. Lawhun; 2) Petitioner Ó s Exhibit B, which is the copy of the

records printed on July 15, 2009, in resp onse to the complaint

filed with the Department; a nd 3) Petitioner Ó s Exhibit C, which

was printed August 2, 2011, and provided to Petitioner Ó s counsel

during the litigation of this case .

8 . The three sets of medical records are not identical.

Dr. Langfor d attributed these differences to entries that he

ordered Ð declined Ñ or hidden, so that the client did not see

them, or because information was on the Ð snatch screen Ñ in the

program, which does not print.

9. For example, t he information related to Aweso mer Ó s

final visit to the clinic , according to Dr. Langford, was moved

to the top of the record on May 16, 2009, so that Ms. Lawhun

could see what happened on the day the dog died. He claimed

that the entry was originally recorded soon after the dog Ó s

deat h, but that it was moved when providing the records to

Ms. Lawhun. Similarly, the date of the dog Ó s death is record ed

in Petitioner Ó s Exhibits A and B as May 1, 2009, the first

business day following the dog Ó s after - hours Ó visit. It is

changed to April 30, 2009, in Petitioner Ó s Exhibit C.

10. After the initial investigation of this case, counsel

for the Department prepared a draft closing order and presented

it to the probable cause panel for the Board of Veterinary

Medic ine at its meeting April 21, 2010. However, after some

concerns expressed by the panel members, the Department Ó s

recommendation was changed from closing the case to obtaining an

expert review of the file.

11. The Department had the file reviewed by two v eterinary

experts, Dr. Jerry Green and Dr. Melanie Donofro. Dr. Donofro

is a former member of the Board of Veterinary Medicine. Both

experts opined that there were problems with the care and

treatment of Awesomer, as well as problems with the medical

rec ords for Awesomer. As a result of the expert witness

reviews, a four - count Administrative Complaint was drafted and

filed , charging Respondent with violating subsections

474.213(1)(r)( violation of the relevant standard of care);

474.213 (1 ) (ee)(failure to keep contemporaneously written medical

records as required by rule of the board); 474.214(1)(w)

(practicing at a location without a valid premises permit); and

474.214(1)(m)(failure to notify Board of a change of address).

12 . The case was not taken back to probable cause prior to

the drafting of the Administrative Complaint because of a

computer data entry error that resulted in a computer record

indicating probable cause had already been found. As is

recounted below, the c ase eventually was presented to the

probable cause panel a second time on the issue of medical

records. Because the Fees Motion is directed to the medical

records count , the failure to take the case back to the probable

cause panel before the filing of th e original Administrative

Complaint has no real significance at this point. Petitioner Ó s

assertion that counsel for the Department had a personal

vendetta against him and had to remember that probable cause was

not found at the April 2010 , meeting is specifically rejected.

As stated by Ms. Henderson at hearing, Dr. Langford Ó s case was

one of many presented for consideration. While it is

unfortunate that an error occurred, it is not indicative of any

Ð personal Ñ interest in prosecuting Petitioner.

13 . The Department and Dr. Langford agreed to a settlement

that would have dismissed three of the four counts in the

Administrative Complaint, and imposed a minimal penalty for

Count III. However, when the stipulation was presented to the

Board for approva l , it was rejected. Board members voiced

serious concerns regarding both the standard of care given to

Awesomer and the adequacy of the medical records. The

prosecutor told the Board that the Department entered into the

settlement stipulation Ð in the int erest of getting the case

wrapped up, Ñ and that the Department believed that the case

would be a Ð battle of the experts Ñ with respect to the standard

of care issue.

14 . Ultimately, the Board voted to reject the stipulation

offered and offered a counter proposal that would have resulted

in dismissal of all of the charges except the medical records

count, with a penalty con sisting of a $1,500 fine, 30 days

probation, and costs. Dr. Langford rejected the counter -

proposal.

15 . An Amended Administra tive Com plaint was prepared and,

along with the expert reports received, was submitted to the

probable cause panel for review and approval. Also included in

the materials was Dr. Langford Ó s response to the Amended

Administrative Complaint. While counsel for Dr. Langford

offered to Ð walk them through Ñ his response to the allegations

contained in the Amended Administrative Complaint, counsel

acknowledged that she did not have anything to add that was not

in his written response.

16 . The probable cause panel voted to approve amendment of

the Administrative Complaint to a single charge of violating

section 474.213(1)(ee). The panel also directed counsel for the

Department to consult one of it s expert s, Dr. Green, to make

sure the allegations in the Amended Administrative Complaint

were consistent with his opinion. She did so.

17 . Contrary to Petitioner Ó s assertions, the panel did not

simply Ð rubber stamp Ñ the actions of the Department. Dr. Jones

indicated her agreement with Dr. Green Ó s expert opinion, and

there is lengthy discussion of the case. See Petitioner Ó s

Exhibit P , pages 13 - 21, and 23 - 26.

1 8 . Respondent disputed the allegations in the Amended

Administrative Complaint and on June 24, 2011, the case was

forwarded to the Division of Administrative Hearings to conduct

a section 120.57(1) hearing.

19 . Discovery and motion practice was active and, at

times, acrimonious. 1/ See , for example, the Order on Pending

Motions, dated A ugust 24, 2012. On August 29, 2012, Respondent

filed the Fees Motion giving rise to this proceeding. The Fees

Motion contains a certification that it was served on Petitioner

on August 4, 2012.

2 0 . Ironically, much of the Fees Motion has nothing to do

w ith the allegations contained in the Amended Administrative

Complaint. The first four pages of the Fees Motion present

Dr. Langford Ó s version of what happened in the final days of

Awesomer Ó s life, and include facts not found anywhere in the

pleadings. Th e next sections deal with accusations of the dog

owner involving a psychic, and Ð public untrue statements about

Respondent, Ñ by Ms. Lawhun, which are also accusations not

finding their way in to the Department Ó s charging document. It

is not until page 16 of the Fees Motion that the actual

allegations that would give rise to the motion are identified

and discussed.

2 1 . Ultimately, a Recommended Order was submitted that

recommended dismissal of the Second Amended Administrative

Complaint. The Recommended Order was issued after a section

120.57(1) hearing, and after consideration of all of the

evidence presented at that hearing.

2 2 . The Board of Veterinary Medicine issued a Final Order

on June 25, 2012, adopting the Findings of Fact and Conclusions

of Law contained in the Recommended Order.

2 3 . At the time Petitioner filed the Fees Motion, the case

was proceeding on the Amended Administrative Complaint. There

was pending at that time a Motion to Amend the Amended

Administrative Complaint, which was grante d, and the case went

to hearing on the Second Amended Administrative Complaint.

24 . At pages 16 - 17 of the Fees Motion, 2/ Petitioner asserts

that the Department alleges that he failed to properly document

the dog Ó s heart rate and did not record any recommendations for

diagnostic tests or follow - up examinations to determine the

cause of the heart rate. 3/ The basis for Petitioner Ó s challenge

is an attack on the sources used by and the opinion of Dr.

Donofro, one of the Department Ó s experts.

2 5 . The fact that Petitioner ultimately prevailed on this

issue does not negate the fact that the Department obtained and

relied upon an expert in veterinary medicine with respect to the

allegations regarding Awesomer Ó s heart rate. The Department had

a reasonabl e basis upon which to file the allegations in the

Second Amended Administrative Complaint, and to proceed with

those allegations.

2 6 . Petitioner cites to the Department Ó s allegations

regarding his failure to record a fecal test. It was found in

the Recom mended Order that Respondent did not perform a fecal

test (hence no record for one). While the Recommended Order

concluded that the Department did not prove a medical records

violation on this ground by clear and convincing evidence , the

medical records i ndicate that the pet owner had reported that

Awesomer had suffered from diarrhea the night before, and noted

that his stool was Ð near normal Ñ at the clinic. A notation of

Ð near normal Ñ stool could be interpreted, as it was in light of

testimony presented at hearing, that no fecal test was performed

and that the notation was based upon observation alone, or that

fecal tests resulted in findings that were close to normal but

that were not expressly recorded . Petitioner Ó s record is

ambiguous enough to suppor t either interpretation, and the

Department relied on the interpretation of its experts.

2 7 . The fact that Petitioner ultimately prevailed on this

issue does not negate the fact that the Department obtained and

relied upon an expert in veterinary medicine with respect to the

allegations regarding the tests, or lack thereof, of Awesomer Ó s

stool , and the Department had a reasonable basis to include the

allegation in the Second Amended Administrative Complaint and t o

proceed with prosecution .

2 8 . Respondent takes issue with the allegations regarding

low - urine gravity and other serum values . The specific

allegations, found at paragraphs 12 - 13 of the Second Amended

Administrative Complaint, state:

12. Respondent per formed a urinalysis for

Awesomer.

13. Respondent recorded in the medical

records that he found a Ð low urine gravity, Ñ

but failed to address the elevated serum

creatinine, serum albumin, serum sodium, and

urine pH in Awesomer Ó s medical records.

29 . Dr. Donofro f ound the failure to address these values

to be a problem. Ultimately, Dr. Langford Ó s testimony that he

documented the values in the record but did not record any

follow - up based on his belief that the identified values were

not abnormal wa s credited at hearing. However, the fact that

Petitioner ultimately prevailed on this issue does not negate

the fact that the Department obtained and relied upon an expert

in veterinary medicine with respect to the allegations regarding

the evaluation of serum creatinine, serum albumin, serum sodium ,

and urine pH. The Department had a reasonable basis on which to

include the allegations in the Second Amended Administrative

Complaint and to proceed with the prosecution of these

allegations.

3 0 . At page 1 6 of the Fees Motion, Petitioner takes issue

with paragraphs 14 - 15 of the Second Amended Administrative

Complaint, which allege that Respondent failed to record any

indication that Awesomer drank excessively, beyond the tentative

diagnosis of polydipsia. Dr. Donofro Ó s report specifically

addresses the failure to indicate excessive fluid consumption in

that one would expect to see a notation regarding the level of

consumption, in light of Respondent Ó s tentative diagnosis for

Awesomer. Once again, however, the inclusion of this item in

the Second Amended Administrative Complaint was based upon

expert reports received by the Department prior to filing the

Amended Administrative Complaint and the Department had a

reasonable basis for including it and for prosecuting it .

3 1 . At page 19 of the Fees Motion, Petitioner takes issue

with the allegation that he failed to include anything in the

medical records for April 28, 2009, to support the

administration of Phenylpropanolamine. This allegation is

discussed by Dr. Donofro in her report, upon which the

Department relied. At hearin g, the issue was decided in

Dr. Langford Ó s favor based upon his testimony and that of his

expert witness, Dr. Ve ga (who is also a former member of t he

Board of Veterinary Medicine ). However, the Department had a

reasonable basis for including this factual allegation in the

Second Amended Administrative Complaint and for prosecuting it .

3 2 . At pages 19 - 20 of the F ees Motion, Petitioner takes

issue with the inclusion of allegations related to the

documentation of a modi fied water - deprivation test. He is

especially critical because he testified that he performed a

modified water - depriva tion test as opposed to a wate r -

deprivation test , and states that the medical records clearly

delineate that a modified water - deprivation test was performed .

W hile the April 28, 2009 , entry indicates that a modified water -

deprivation test will be performed, there are other entries in

the record s for Awesomer that refer to sc heduling and conducting

a water - deprivation test. Based on the records, Dr. Donofro

addressed this issue in her report. 4 / While Petitioner

ultimately prevailed on this issue, there was a legitimate basis

for the Department to include the allegations in the Second

Amended Administrative Complaint and to proceed with these

allegations .

3 3 . On page 21 of the Fees Motion, Petitioner alleges that

Ð Amended administrative complaint lines 25 - 26 allege Respondent

failed to record in Awesomer Ó s medical record for April 29,

2009, anything regarding this visit, including the lacta ted -

ringers solution administration. It is there in the recor d for

that date, clear as day, that it was administered, as it was, on

April 30, 2009, not on April 29, 2009. Ñ

3 4 . Petitioner Ó s allegation is not consistent with the

actual allegations in the Second Amended Administrative

Complaint. That document states :

26. Responde nt Ó s written response from

July 7, 2009, states that he examined

Awesomer after 9:30 PM on April 29, 2009 and

Ð found nothing abnormal in the examination

of the dog, but considered the possibility

of the lingering effects from the water

depri vation study. Ñ

27. Respondent failed to record in

Awesomer Ó s medical records for April 29,

2009, anything regarding this visit or

examination.

28. Responde nt Ó s written response from

July 7, 2009, also states that he examined

Awesomer after 9:30 PM on A pril 29, 2009,

and Ð placed a catheter in [Awesomer Ó s] arm,

and administered 1000 cc of [Lactated

Ringers Solution]. Ñ

29. Respondent failed to record in

Awesomer Ó s medical records for April 29,

2009, that he placed a catheter or

administered the Lactated Ringers Solution

(LRS).

3 5 . The Fees Motion does not mention the July 7, 2009,

response by Dr. Langford. It was not admitted into evidence in

this proceeding or in the disciplinary proceeding. It is,

however, mentioned in Dr. Donofro Ó s report, and she comments on

the discrepancy between Dr. Langford Ó s account of the events and

Ms. Lawhun Ó s. Dr. Donofro also discusses at length what she

viewed as some ambiguities in the recording of the amount of

LRS, and opined that the amount provided under either

in terpretation she could reach was inappropriate. There was a

basis upon which the Department could rely for including these

allegations in the Second Amended Administrative Complaint and

proceeding with those allegations .

3 6 . At page 21 of the Fees Motio n, Petitioner claims that

the Department alleges Ð in administrative complaint line 35 that

Respondent should have included a Ò discussion Ó of electrolytes

and white blood count, Ñ and claims that there are no facts to

support a records violation for line 35. Paragraph 35 of the

Second Amended Administrative Complaint simply states that Ð the

CBC results indicated that Awesomer Ó s white blood count was

elevated. Ñ A review of both the original and the Amended

Administrative Complaint confirm that neither of tho se documents

have the allegation of which Petitioner complains, at paragraph

35.

3 7 . Paragraph 36 of the Second Amended Administrative

Complaint alleges that Ð Respondent failed to record any

explanation or discussion of the results of the CBC or General

Health Profile with Electrolytes in the April 30, 2009, medical

records for Awesomer. Ñ Dr. Langford Ó s criticism that Ð this is a

medical record, not a dissertation, Ñ is flippant at best , and

ignores the requirement in Florida Administrative Code Rule

61G18 - 18.002(1 ) that the records Ð contain sufficient information

to justify the diagnosis or determination of health status and

warrant any treatment recommended or administered . Ñ Concerns

about issues revealed in the CBC were discussed in Dr. Donofro Ó s

report, and the lack of follow - up or discussion led her to

believe that certain possibilities in treatment were overlooked.

The Department Ó s belief , that some reference other than the tes t

result itself was necessary, was reasonable given the need for

rec ords to justify a diagnosis, and the Department had a basis

to proceed with this allegation.

3 8 . Finally, at page 22 of the Fees Motion, Dr. Langford

takes issue with the Department Ó s allegations that medical

records were not contemporaneously recorded f or events taking

place April 30, 2009. Yet, there is no dispute that there are

three separate versions of the medical records in this case, and

one of the issues presented was the discrepancy in dates for

certain services. The Department had a reasonable basis to

proceed with the allegations with respect to the May 16, 2009 ,

entries.

CONCLUSIONS OF LAW

39 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569, 1 20.57(1) , and

57.105(4), Florida Statutes (2012).

4 0 . Petitioner filed his Fees Motion pursuant to

section 57.105, Florida Statutes (2011), which

provides in pertinent part:

1) Upon the court Ó s initiative or motion of

any party, the court shall award a

reasonable attorney Ó s fee, including

prejudgment interest, . . . on any claim or

defense at any time during a civil

proceeding or action in which the court

finds that the losing party or the losing

party Ó s attorney knew or should have known

that a claim or defense when initially

presented to the court or at any time before

trial:

(a) Was not supported by the material facts

necessary to establish the claim or defense;

or

(b) Would not be supported by the

application of then - existing law to those

material facts.

* * *

(4) A motion by a party seeking sanctions

under this section must be served but may

not be filed with or presented to the court

unless, within 21 days after service of the

motion, the challenged paper, claim,

defense, contention, allegatio n, or denial

is not withdrawn or appropriately corrected.

(5) In administrative proceedings under

chapter 120, an administrative law judge

shall award a reasonable attorney Ó s fee and

damages to be paid to the prevailing party

in equal amounts by the losi ng party and a

losing party Ó s attorney or qualified

representative in the same manner and upon

the same basis as provided in subsections

(1) - (4). Such award shall be a final order

subject to judicial review pursuant to s.

120.68 . If the losing party is an agency as

defined in s. 120.52 (1), the award to the

prevailing party shall be against and paid

by the agency. A voluntary dismissal by a

nonprevailing party does not divest the

administrative law judge of jurisdiction to

make the award described in this subsection.

41 . Petitioner, as the party seeking fees, has the burden

of proving his entitlement to fees pursuant to section 57.105 by

a preponderance of the evidence. Fla. Dep Ó t of Transp. v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1 st DCA 1981); Balino v. Dep Ó t

of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977); § 120.57(1)(j), Fla.

Stat.

42 . The standards for an award of attorney Ó s fees in

subsection (1), and incorporated by reference in subsection (5),

are the result of an amendment to s ection 57.105 in 1999. § 4,

ch. 99 - 225, Laws of Fla. Prior to the 1999 amendment, the

statute provided for a fees award when Ð there was a complete

absence of a justiciable issue either of law or fact raised by

the complaint or defense of the losing party . Ñ

43 . In Wendy Ó s of N.E. Florida, Inc. v. Vandergriff , 865

So. 2d 520 , 523 (Fla. 1st DCA 2003), the First District

discussed the 1999 legislative changes to section 57.105,

stating:

[T]his statute was amended in 1999 as part

of the 1999 Tort Reform Act in an effort to

reduce frivolous litigation and thereby to

decrease the cost imposed on the civil

justice system by broadening the remedies

that were previously available. Unlike its

p redecessor, the 1999 version of the statute

no longer requires a party to show a

complete absence of a justiciable issue of

fact or law, but instead allows recovery of

fees for any claims or defenses that are

unsupported. However, this Court cautioned

tha t section 57.105 must be applied

carefully to ensure that it serves the

purpose for which it was intended, which was

to deter frivolous pleadings.

In determining whether a party is

entitled to statutory attorney Ó s fees under

section 57.105, Florida Sta tutes,

frivolousness is determined when the claim

or defense was initially filed; if the claim

or defense is not initially frivolous, the

court must then determine whether the claim

or defense became frivolous after the suit

was filed. In so doing, the co urt

determines if the party or its counsel knew

or should have known that the claim or

defense asserted was not supported by the

facts or an application of existing law. An

award of fees is not always appropriate

under section 57.105, even when the party

seeking fees was successful in obtaining the

dismissal of the action or summary judgment

in an action . (Citations omitted.)

44 . The court noted that application of the standard in

section 57 .105 is problematic and requires a case - by - case

analysis, stating that Ð while the revised standard incorporates

the Ò not supported by the material facts or would not be

supported by application of then - existing law to those material

facts Ó standard instead of the frivolous standard of the earlier

statute, an all - encompassing definition of the new standard

defies us. Ñ 865 So. 2d at 524.

45 . The First District has since noted that section 57.105

now applies Ð to any claim or defense, and does not require that

the entire action be frivolous. Ñ Albritton v. Ferrer a , 913 So.

2d 5, 8 (Fla. 1st DCA 2005)(quoting Mullins v. Kennelly , 847 So.

2d 1151, 1154 (Fla. 5th DCA 2003)).

46 . The phrase, Ð supported by material facts Ñ found in

section 57.105(1)(a), was defined by the court in Albritton to

mean that the Ð party possesses admissible evidence sufficient to

establish the fact if accepted by the finder of fact. Ñ 913 So.

2d at 7, n.1. If the losing party Ð presents competent,

substantial evidence in support of the claim . . . presented and

the trial court determines the issue of fact adversely to the

losing party based on conflicting evidence, Ñ f ees are not

warranted. Siegel v. Rowe , 71 So. 3d 205, 212 (Fla. 2d DCA

2011).

47 . In this case, the Department had not only the records

themselves, but two expert opinion s regarding the adequacy of

those records. While it is true that some of those opinions

also reflected a belief that Respondent Ó s care and treatment of

Awesomer fell below applicable standards , it is clear from the

expert opinions that the Department Ó s ex perts believed that the

records raised several legitimate questions in terms of whether

they actually told the story of Awesomer Ó s care.

4 8 . In Department of Children and Families v. S.E. , 12 So.

3d 902 (Fla. 4th DCA 2009), DCF filed a verified petition for

dependency against the mother of two children. The petition was

based primarily on the medical opinions and recommendations of

the applicable Child Protection Team ( Ð CPT Ñ ) . The Department Ó s

experts believed that the mother suffered from Munchausen

Sy ndrome by Proxy. The Department received documentation

rebutting this theory. While it deleted the allegations

regarding Munchausen Syndrome by Proxy, it continued with the

dependency proceeding based upon the belief that the mother

still posed a threat of harm to the children.

49. The trial court granted S.E. Ó s motion to dismiss and

awarded S.E. fees pursuant to section 57.105. On appeal the

Fourth District reversed the award, stating:

Although the trial court granted S.E. Ó s

motions to dismiss, we f ind the trial court

abused its discretion in finding that, at

the time of filing, DCF knew or should have

known its petition for dependency lacked

support. We also note that DCF Ó s petition

did not subsequently become frivolous during

the pendency of the a ction.

Pursuant to section 39.01(15)(f),

Florida Statutes (2006), a child can be

found dependent if he or she is Ð at

substantial risk of imminent abuse,

abandonment, or neglect. Ñ In its initial

and amended petitions for dependency, DCF

relied on the opi nions of CPT Ó s medical

professionals. Because the CPT doctors

remained convinced throughout the pendency

of this litigation that a risk of imminent

abuse, abandonment, or neglect existed,

despite the withdrawal of the Munchausen

Syndrome by Proxy allegati ons, we find that

DCF Ó s petition for dependency was always

supported by the necessary material facts to

overcome an award of section 57.105 fees.

12 So. 3d at 903 - 904 (citations omitted).

50. The same can be said here. While the Department

withdrew the standard of care allegations, it continued to

believe, based on sufficient evidence presented through the

records and expert opinions, that record - keeping deficiencies

existed. Fees pursuant to section 57.105 are not warranted

under these circumstances.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioner Ó s Section 57.105 Motion for

Failure to Present Facts to Establish a Claim is dismissed.

DONE AND ORDERED this 12th day of February , 2013 , in

Tallahassee, Le on County, Florida.

S

LISA SHEARER NELSON

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 the

Division of Administrative Hearings

this 12th day of February , 2013 .

ENDNOTE S

1/ This acrimony is continued in Petitioner Ó s Proposed Final

Order, which includes what the undersigned interprets as

person al attacks on the Department Ó s counsel. Notwithstanding

the Ð knew or should have known Ñ standard under section 57.105,

such personal attacks add nothing to the analysis of this case

and ha ve no place in pleadings before the Division.

2 / The Fees Motion does not contain numbered paragraphs.

3 / Ironically, these allegations do not appear as represented in

the Amended Administrative Complaint , as Petitioner asserts ( see

Petitioner Ó s Exhibit R), but do appear in the Second Amended

Administrative Complaint , which had not yet been filed . The

same can be said for the remaining asserted deficiencies.

Therefore, although the Fees Motion references the Amended

Administrative Complaint, the allegations are from the Second

Amended Administrative Complaint through out.

4 / As previously noted, the Department secured reports from two

experts, Dr. Green and Dr. Donofro. Dr. Green Ó s report is not

in evidence in this proceeding, and Dr. Green did not testify at

hearing in the M erits C ase. While Dr. Green Ó s opinion is

specifically referenced by the probable cause panel, there is

sufficient evidence to determ ine the Department also had

Dr. Donofro Ó s report and was entitled to rely on it. Because

Dr. Green Ó s report is not in evidence, the specifics of his

opinions are not discussed in this Final Order.

COPIES FURNISHED:

Ann M. Bittinger, Esquire

The Bittinger Law Firm

Suite 201

13500 Sutton Park Drive South

Jacksonville, Florida 32224

R. Kathleen Brown - Blake, Esquire

Department of Business

and Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

Juanita Chastain, Executive Director

Board of Veterinary Medicine

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Flori da 32399

J. Layne Smith, General Counsel

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Ken Lawson, Secretary

Department of Business

and Professional Regulation

Northwood Ce ntre

1940 North Monroe Street

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

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the o riginal notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.