13-000440F Solutions Thru Software, Inc. vs. Morphotrust Usa
 Status: Closed
DOAH Final Order on Monday, March 25, 2013.

View Dockets  

1Case No. 13-0440F

4Case No. 13-0439F







34MORPHOTRUST USA, Petitioner, )

38vs. )

40Respondent. )



46Respondent. )


49) ) )








59This is a proceeding pursuant to sections 57.105,

67120.595(1)(b), and 120.569(2)(e), Florida Statutes (2012), 1/

74pending before Linzie F. Bogan, Administrative Law Judge,

82Division of Administrative Hearings, wherein the parties hereto

90each claim entitlement to attorney's fees and costs. The final

100hearing on the motions was held on March 8, 2013, in Tallahassee,



114For Petitioner Florida Department of Highway

120Safety and Motor Vehicles:

124Douglas Sunshine, Esquire

127Department of Highway Safety

131and Motor Vehicles

134Neil Kirkman Building, Room A-432

1392900 Apalachee Parkway

142Tallahassee, Florida 32399

145For Petitioner Solutions Thru Software, Inc:

151Maria Elena Abate, Esquire

155Colodny, Fass, Talenfeld,

158Karlinsky, Abate and Webb, P.A.

16323rd Floor

165100 Southeast 3rd Avenue

169Fort Lauderdale, Florida 33394

173For Respondent MorphoTrust USA:

177J. Stephen Menton, Esquire

181Rutledge, Ecenia and Purnell, P.A.

186119 South Monroe Street, Suite 202

192Post Office Box 551

196Tallahassee, Florida 32301


2031) Whether, pursuant to sections 57.105 and 120.595(1)(b),

211the Florida Department of Highway Safety and Motor Vehicles

220(Department) is entitled to an assessment of attorney's fees and

230costs against Morphotrust USA (Morphotrust) resulting from

237Morphotrust's unsuccessful bid protest.

2412) Whether, pursuant to sections 57.105 and 120.569(2)(e),

249Solutions Thru Software, Inc. (STS), is entitled to an assessment

259of attorney's fees and costs against Morphotrust resulting from

268Morphotrust's unsuccessful bid protest.

2723) Whether, pursuant to 120.569(2)(e), Morphotrust is

279entitled to an assessment of attorney's fees against the

288Department and STS resulting from their pursuit of attorney's

297fees and costs against Morphotrust.


304The parties in the instant proceeding were litigants in the

314case of Morphotrust USA v. Department of Highway Safety and Motor

325Vehicles and Solutions thru Software, Inc. , Case No. 12-2917BID

334(Bid Protest). STS intervened in the Bid Protest proceeding.

343The instant matter is before the undersigned on motions by the

354Department and STS 2/ for an award of attorney's fees and costs

366pursuant to sections 57.105, 3/ 120.595(1)(b) and 120.569(2)(e).

374The final hearing in the Bid Protest proceeding was held by

385the undersigned on October 10, 11, 16 and 17, 2012, before the

397Division of Administrative Hearings (DOAH). On October 24, 2012,

406STS filed a motion seeking attorney's fees and costs against

416Morphotrust. On October 29, 2012, the Department filed its

425motion for attorney's fees and costs against Morphotrust. STS

434claims entitlement to attorney's fees and costs pursuant to

443sections 57.105 and 120.569(2)(e). The Department claims

450entitlement to attorney's fees and costs pursuant to sections

45957.105 and 120.595(1)(b). Morphotrust seeks, pursuant to section

467120.569(2)(e), attorney's fees against the Department and STS for

476having to defend against the claims for attorney's fees and costs

487filed against the company by the Department and STS.

496On December 7, 2012, a Recommended Order was issued by the

507undersigned in the Bid Protest proceeding. On January 7, 2013,

517the Department issued its Final Order in the Bid Protest

527proceeding and adopted, in toto, therein the Findings of Fact and

538Conclusions of Law contained in the Recommended Order. On

547January 25, 2013, the Department and STS renewed with DOAH their

558respective motions for attorney's fees and costs. Morphotrust,

566in response to the motions, contends that DOAH lacks jurisdiction

576in the instant matter because the Bid Protest proceeding "is now

587closed as a result of the entry of a Final Order" and the issue

601of attorney's fees and costs was not addressed in the Final Order

613issued in the Bid Protest proceeding.


622The Department and STS rely upon the Findings of Fact as

633determined in the Bid Protest proceeding as the basis for their

644respective motions for attorney's fees and costs in the instant

654proceeding. Accordingly, the Findings of Fact and Conclusions of

663Law from the Bid Protest proceeding are incorporated herein by



677I. Jurisdiction

6791. In the underlying Bid Protest proceeding, DOAH possessed

688recommended order authority with respect to the merits of the bid

699challenge. In instances where DOAH has recommended order

707authority, an agency, pursuant to section 120.57(1)(l), may

715reject or modify Findings of Fact if, after review of the entire

727record, the agency determines that the Findings of Fact "were not

738based upon competent substantial evidence or that the proceedings

747on which the findings were based did not comply with essential

758requirements of law." Because the respective motions for

766attorney's fees and costs are predicated on factual underpinnings

775that, at the time of issuance of the recommended order could have

787been rejected or modified by the Department in its final order,

798the undersigned believed it more prudent to reserve jurisdiction

807and consider issues related to attorney's fees and costs apart

817from the primary proceeding. 4/ Proceeding in this manner was

827further necessitated by the fact that prior to January 7, 2013,

838it was not yet possible to identify the "prevailing party" as

849required and contemplated by sections 57.105(1), 120.595(1)(b)

856and 120.569(2)(e).

8582. It is well established that "[o]nce an appeal is taken,

869the appellate court's jurisdiction is exclusive, and the trial

878court no longer has jurisdiction to adjudicate any matter except

888attorney's fees and costs." Schultz v. Time Warner Entm't Co. ,

898906 So. 2d 297, 299 (Fla. 5th DCA 2005)(citing Emerald Coast

909Commc'ns, Inc. v. Carter , 780 So. 2d 968, 969 (Fla. 1st DCA

9212001)); and Roberts v. Askew , 260 So. 2d 492 (Fla. 1972)("costs

933may be adjudicated after final judgment, after the expiration of

943the appeal period, during the pendency of an appeal, and even

954after the appeal has been concluded."). The Supreme Court has

965also held that "proof of attorneys' fees[,] whether such fees are

977provided by statute . . . or by contract[,] may be presented [to

991the trial court] for the first time after final judgment pursuant

1002to a motion for attorney's fees . . . ." Cheek v. McGowan Elec.

1016Supply Co. , 511 So. 2d 977, 979 (Fla. 1987). "The rationale

1027behind these decisions is that an award of attorneys' fees or

1038costs is ancillary to, and does not interfere with, the subject

1049matter of the appeal and, thus, is incidental to the main

1060adjudication." McGurn v. Scott , 596 So. 2d 1042, 1043-44 (Fla.

10701992), overruled in part , Westgate Miami Beach, LTD. v. Newport

1080Operating Corp. , 55 So. 3d 567 (Fla. 2010)(in Westgate , the court

1091retreated from that portion of McGurn dealing with prejudgment


11013. Turning to the instant proceeding, the Recommended Order

1110issued in the Bid Proceeding, and subsequently adopted by the

1120Department in its Final Order, unequivocally acknowledges that

1128motions for attorney's fees and costs had been filed and that

1139matters related thereto would be addressed following the entry of

1149the Department's final order. This pronouncement by the

1157undersigned was a clear indication that labor had not ended with

1168respect to the issue of attorney's fees and costs. The

1178undersigned's general reservation of jurisdiction in the

1185Recommended Order, and the Department's adoption thereof, are

1193sufficient to provide DOAH with continuing jurisdiction to

1201consider issues related to the unresolved claims for attorney's

1210fees and costs. 5/ Accordingly, DOAH possesses jurisdiction over

1219the parties and the subject matter of this proceeding.

1228II. Attorney's Fees and Costs

1233A. Section 57.105

12364. Section 57.105 provides in part as follows:

1244(1) Upon the court's initiative or motion

1251of any party, the court shall award a

1259reasonable attorney's fee, including

1263prejudgment interest, to be paid to the

1270prevailing party in equal amounts by the

1277losing party and the losing party's attorney

1284on any claim or defense at any time during a

1294civil proceeding or action in which the

1301court finds that the losing party or the

1309losing party's attorney knew or should have

1316known that a claim or defense when initially

1324presented to the court or at any time before


1334(a) Was not supported by the material facts

1342necessary to establish the claim or defense;


1350(b) Would not be supported by the

1357application of then-existing law to those

1363material facts.

1365* * *

1368(4) A motion by a party seeking sanctions

1376under this section must be served but may

1384not be filed with or presented to the court

1393unless, within 21 days after service of the

1401motion, the challenged paper, claim,

1406defense, contention, allegation, or denial

1411is not withdrawn or appropriately corrected.

1417(5) In administrative proceedings under

1422chapter 120, an administrative law judge

1428shall award a reasonable attorney's fee and

1435damages to be paid to the prevailing party

1443in equal amounts by the losing party and a

1452losing party's attorney or qualified

1457representative in the same manner and upon

1464the same basis as provided in subsections

1471(1)-(4). Such award shall be a final order

1479subject to judicial review pursuant to

1485s. 120.68. If the losing party is an agency

1494as defined in s. 120.52(1), the award to the

1503prevailing party shall be against and paid

1510by the agency. A voluntary dismissal by a

1518nonprevailing party does not divest the

1524administrative law judge of jurisdiction to

1530make the award described in this

1536subsection. . . .

15405. "The purpose of section 57.105 is to discourage baseless

1550claims, stonewall defenses and sham appeals in civil litigation

1559by placing a price tag through attorney's fees awards on losing

1570parties who engage in these activities." Vasquez v. Provincial

1579South, Inc. , 795 So. 2d 216, 218 (Fla. 4th DCA 2001)(citing

1590Whitten v. Progressive Cas. Ins. Co. , 410 So. 2d 501 (Fla.

16011982)). Section 57.105 "must be applied carefully to ensure that

1611it serves the purpose for which it was intended, which was to

1623deter frivolous pleadings." Wendy's of N.E. Fla., Inc. v.

1632Vandergriff , 865 So. 2d 520, 523 (Fla. 1st DCA 2003)(citing

1642Bridgestone/Firestone, Inc. v. Herron , 828 So. 2d 414 (Fla. 1st

1652DCA 2002)).

16546. "In determining whether a party is entitled to statutory

1664attorney's fees under section 57.105, frivolousness is determined

1672when the claim or defense was initially filed; if the claim or

1684defense is not initially frivolous, the court must then determine

1694whether the claim or defense became frivolous after the suit was

1705filed." Wendy's of N.E. Fla., Inc. , at 523. In conducting this

1716evaluation, it must be determined if the party or its counsel

1727knew or should have known that the claim or defense asserted was

1739not supported by the material facts necessary to establish the

1749claim or defense or by the application of then-existing law to

1760the material facts. Read v. Taylor , 832 So. 2d 219 (Fla. 4th DCA

17732002). "An award of fees is not always appropriate under section

178457.105, even when the party seeking fees was successful in

1794obtaining the dismissal of the action or summary judgment in an

1805action." Id. at 222; see also Mason v. Highlands Cnty. Bd. of

1817Cnty. Comm'rs , 817 So. 2d 922, 923 (Fla. 2d DCA 2002)("Failing to

1830state a cause of action is not in and of itself a sufficient

1843basis to support a finding that a claim was so lacking in merit

1856as to justify an award of fees pursuant to section 57.105.");

1868Pappalardo v. Richfield Hospitality Servs., Inc. , 790 So. 2d

18771226, 1228 (Fla. 4th DCA 2001)("Whether fees should have been

1888awarded in this case depends upon whether the underlying cause of

1899action, which was dismissed by the trial court, was so clearly

1910and obviously lacking as to be untenable.").

19187. In the instant case, the evidence does not support an

1929award of attorney's fees pursuant to section 57.105. The

1938evidence introduced during the final hearing in the Bid Protest

1948proceeding established that the Department had never before

1956issued an ITN like the one involved herein. The uniqueness of

1967the deliverable sought by the Department through the issuance of

1977the ITN is bolstered, in part, by the four addenda to the ITN;

1990each of which contained amendments, modifications, and

1997explanations of the ITN specifications. While the undersigned

2005found against Morphotrust in the Bid Protest proceeding, it

2014cannot be said that Morphotrust's claim was so lacking in merit

2025at any point during the underlying litigation that an award of

2036attorney's fees is justified pursuant to section 57.105. B. Section 120.595

20478. Section 120.595 provides in part as follows:

2055(1) Challenges to agency action pursuant to

2062section 120.57(1).

2064* * *

2067(b) The final order in a proceeding

2074pursuant to s. 120.57(1) shall award

2080reasonable costs and a reasonable attorney's

2086fee to the prevailing party only where the

2094nonprevailing adverse party has been

2099determined by the administrative law judge

2105to have participated in the proceeding for

2112an improper purpose.

2115* * *

2118(d) In any proceeding in which the

2125administrative law judge determines that a

2131party participated in the proceeding for an

2138improper purpose, the recommended order

2143shall so designate and shall determine the

2150award of costs and attorney's fees.

2156(e) For the purpose of this subsection:

21631. "Improper purpose" means participation

2168in a proceeding pursuant to s. 120.57(1)

2175primarily to harass or to cause unnecessary

2182delay or for frivolous purpose or to

2189needlessly increase the cost of litigation,

2195licensing, or securing the approval of an


22032. "Costs" has the same meaning as the

2211costs allowed in civil actions in this state

2219as provided in chapter 57.

22243. "Nonprevailing adverse party" means a

2230party that has failed to have substantially

2237changed the outcome of the proposed or final

2245agency action which is the subject of a

2253proceeding. In the event that a proceeding

2260results in any substantial modification or

2266condition intended to resolve the matters

2272raised in a party's petition, it shall be

2280determined that the party having raised the

2287issue addressed is not a nonprevailing

2293adverse party. The recommended order shall

2299state whether the change is substantial for

2306purposes of this subsection. In no event

2313shall the term "nonprevailing party" or

"2319prevailing party" be deemed to include any

2326party that has intervened in a previously

2333existing proceeding to support the position

2339of an agency. . . .

23459. The Department, in its amended motion for attorney's

2354fees and costs, contends, as to section 120.595(1)(b), that

2363Morphotrust participated in the Bid Protest proceeding for an

2372improper purpose by making factual allegations that were

"2380baseless and frivolous." Specifically, the Department alleges

2387that Morphotrust's "factual allegations, [(]i.e., that the ITN

2395did not allow a per test charge for skills testing, [and] that

2407the performance bond requirement was not met by STS, that STS was

2419not allowed to modify the price proposal form[)], are patently

2429false . . . [and that] [o]ther allegations, such as those

2440directed to the 'ambiguity' or 'unfairness' of the price proposal

2450form were waived and thus, have no basis in law." There are no

2463cases expressly defining "frivolous purpose" within the meaning

2471of section 120.595(1)(b). It has long been recognized "that to

2481some extent, the definition of 'frivolous' is incapable of

2490precise determination." Visoly v. Sec. Pac. Credit Corp. , 768

2499So. 2d 482, 491 (Fla. 3d DCA 2000). As noted by the court in

2513Visoly ,

2514Court opinions on attorney's fees speak

2520easily of cases being either frivolous or

2527nonfrivolous, as if all cases fit easily

2534into one or the other category. Reality is

2542more complicated. In the legal world,

2548claims span the entire continuum from

2554overwhelmingly strong to outrageously weak.

2559Somewhere between these two points, courts

2565draw a line to separate the nonfrivolous

2572from the frivolous, the former category

2578providing safe shelter, the latter

2583subjecting attorney and client to sanctions.

2589(citing Eastway Constr. Corp. v. City of New York , 637 F.Supp.

2600558, 574 (E.D.N.Y. 1986)). The case of Mercedes Lighting and

2610Electrical Supply, Inc. v. State of Florida, Department of

2619General Services , 560 So. 2d 272 (Fla. 1st DCA 1990), is also

2631instructive as to this issue. In Mercedes Lighting , the court,

2641in considering a claim for attorney's fees pursuant to what is

2652now section 120.569(2)(e), held that "a frivolous purpose . . .

2663should be one which is of little significance or importance in

2674the context of the goal of administrative proceedings."

2682Id. at 278.

268510. While it is true that in the Bid Protest proceeding the

2697undersigned concluded that Morphotrust's claims "were without

2704merit," the characterization of the claims in this manner does

2714not ipso facto equate to a finding of frivolous purpose within

2725the meaning of section 120.595(1)(b). As previously noted, the

2734Department and the bidders were dealing with a very unique ITN

2745that resulted in the Department issuing multiple addenda. On the

2755continuum of cases, Morphotrust's challenge to the ITN was not so

2766outrageously weak that it satisfied the requirements for imposing

2775attorney's fees and costs pursuant to section 120.595(1)(b).

2783C. Section 120.569(2)(e)

278611. Section 120.569 provides in part as follows:

2794(1) The provisions of this section apply in

2802all proceedings in which the substantial

2808interests of a party are determined by an

2816agency, unless the parties are proceeding

2822under s. 120.573 or s. 120.574. Unless

2829waived by all parties, s. 120.57(1) applies

2836whenever the proceeding involves a disputed

2842issue of material fact. Unless otherwise

2848agreed, s. 120.57(2) applies in all other

2855cases. If a disputed issue of material fact

2863arises during a proceeding under

2868s. 120.57(2), then, unless waived by all

2875parties, the proceeding under s. 120.57(2)

2881shall be terminated and a proceeding under

2888s. 120.57(1) shall be conducted. Parties

2894shall be notified of any order, including a

2902final order. Unless waived, a copy of the

2910order shall be delivered or mailed to each

2918party or the party's attorney of record at

2926the address of record. Each notice shall

2933inform the recipient of any administrative

2939hearing or judicial review that is available

2946under this section, s. 120.57, or s. 120.68;

2954shall indicate the procedure which must be

2961followed to obtain the hearing or judicial

2968review; and shall state the time limits

2975which apply.

2977(2)(a) Except for any proceeding conducted

2983as prescribed in s. 120.56, a petition or

2991request for a hearing under this section

2998shall be filed with the agency. If the

3006agency requests an administrative law judge

3012from the division, it shall so notify the

3020division by electronic means through the

3026division's website within 15 days after

3032receipt of the petition or request. A

3039request for a hearing shall be granted or

3047denied within 15 days after receipt. On the

3055request of any agency, the division shall

3062assign an administrative law judge with due

3069regard to the expertise required for the

3076particular matter. The referring agency

3081shall take no further action with respect to

3089a proceeding under s. 120.57(1), except as a

3097party litigant, as long as the division has

3105jurisdiction over the proceeding under

3110s. 120.57(1). Any party may request the

3117disqualification of the administrative law

3122judge by filing an affidavit with the

3129division prior to the taking of evidence at

3137a hearing, stating the grounds with


3144* * *

3147(e) All pleadings, motions, or other papers

3154filed in the proceeding must be signed by

3162the party, the party's attorney, or the

3169party's qualified representative. The

3173signature constitutes a certificate that the

3179person has read the pleading, motion, or

3186other paper and that, based upon reasonable

3193inquiry, it is not interposed for any

3200improper purposes, such as to harass or to

3208cause unnecessary delay, or for frivolous

3214purpose or needless increase in the cost of

3222litigation. If a pleading, motion, or other

3229paper is signed in violation of these

3236requirements, the presiding officer shall

3241impose upon the person who signed it, the

3249represented party, or both, an appropriate

3255sanction, which may include an order to pay

3263the other party or parties the amount of

3271reasonable expenses incurred because of the

3277filing of the pleading, motion, or other

3284paper, including a reasonable attorney's

3289fee. . . .

329312. In support of its motion for attorney's fees and costs

3304filed pursuant to section 120.569(2)(e), STS alleges that "the

3313facts stated in Morpho[trust]'s Amended Formal Written Protest

3321and Petition for Administrative Hearing are either false or

3330legally irrelevant to the validity of the intent to award the

3341Automated Driver's License Testing System ('ADLTS') Contract to

3349STS." As more fully explained elsewhere herein, the undersigned

3358finds insufficient grounds to support a determination that

3366Morphotrust, in pursuing its protest of the Department's intended

3375action, acted with a frivolous purpose within the meaning of

3385section 120.569(2)(e). 6/

3388D. Morphotrust's Motion for Attorney's Fees

339413. Morphotrust, pursuant to section 120.569(2)(e), seeks

3401an award of attorney's fees against the Department and STS.

3411Morphotrust claims that the Department's amended motion for

3419attorney's fees and costs "is unprecedented, unsupported by

3427law[,] should be summarily dismissed[, and] the request is

3437frivolous and has unnecessarily increased the costs of this

3446litigation." As for STS, Morphotrust claims that "STS' request

3455for attorney's fees to be awarded to an intervenor in an

3466administrative bid protest is unprecedented, unsupported by

3473law[,] should be summarily dismissed[, and] is frivolous and has

3484unnecessarily increased the costs of this litigation."

349114. There is nothing unprecedented about both an agency and

3501an intervenor seeking and being awarded attorney's fees in the

3511context of a bid protest proceeding. See, e.g. , Johnson

3520Controls, Inc. v. Dep't of Mgmt. Servs. , Case No. 93-4272BID

3530(Fla. DOAH Jan. 11, 1994)(agency awarded attorney's fees and

3539costs totaling $22,514.63, and intervenor awarded attorney's fees

3548and costs totaling $25,811.75). 7/ Morphotrust has not

3557demonstrated that either the Department's or STS' claims for

3566attorney's fees and costs were pursued for a frivolous purpose as

3577contemplated by section 120.569(2)(e). Accordingly,

3582Morphotrust's request for attorney's fees and costs is denied. 8/


3593Based on the foregoing Findings of Fact and Conclusions of

3603Law, the respective motions for attorney's fees and costs filed

3613by the Florida Department of Highway Safety and Motor Vehicles,

3623Solutions Thru Software, Inc., and Morphotrust USA under sections

363257.105, 120.569(2)(e), and 120.595(1)(b) are DENIED.

3638DONE AND ORDERED this 25th day of March, 2013, in

3648Tallahassee, Leon County, Florida.



3656Administrative Law Judge

3659Division of Administrative Hearings

3663The DeSoto Building

36661230 Apalachee Parkway

3669Tallahassee, Florida 32399-3060

3672(850) 488-9675

3674Fax Filing (850) 921-6847


3679Filed with the Clerk of the

3685Division of Administrative Hearings

3689this 25th day of March, 2013.


36961/ All subsequent references to Florida Statutes will be to 2012,

3707unless otherwise indicated.

37102/ In its initial motion for attorney's fees and costs, STS only

3722sought recovery pursuant to section 57.105. In its amended

3731motion for attorney's fees and costs, STS added a claim for fees

3743and costs under section 120.569(2)(e) as an additional basis for

3753recovery. Absent a showing of prejudice to the opposing party,

3763amendments are to be liberally allowed. Optiplan, Inc. v. Sch.

3773Bd. of Broward Cnty. , 710 So. 2d 569 (Fla. 4th DCA 1998). See

3786also Fla. Admin. Code R. 28-106.202. As more fully explained

3796elsewhere herein, no prejudice to Morphotrust has resulted as a

3806consequence of allowing the amendment.

38113/ Section 57.105 allows for the recovery of a reasonable

3821attorney's fee, but does not allow for the recovery of costs.

3832Ferere v. Shure , 65 So. 3d 1141, 1145 (Fla. 4th DCA 2011).

38444/ In Jain v. Florida Agricultural and Mechanical University , 914

3854So. 2d 998 (Fla. 1st DCA 2005), the court made it very clear that

3868DOAH has final order authority in section 57.105 proceedings and

3878that it is reversible error for an agency to consider in any way

3891a fee request brought pursuant to this statute. See also Dep't

3902of HRS v. S.G. , 613 So. 2d 1380 (Fla. 1st DCA 1993)(In a

3915proceeding where claims for attorney's fees and costs are raised

3925under differing theories, and as to one theory, DOAH has final

3936order authority and as to the other, DOAH has recommended order

3947authority, it is appropriate for DOAH to issue a final order

3958addressing all theories of recovery. "[R]eview in . . . [the]

3969district court of appeal provides sufficient protection for the

3978[parties] under such circumstances."). Id. at 1384.

39865/ "[T]he procedure of retaining jurisdiction in a recommended

3995order to consider sanctions requested in a pending motion is

4005sufficient to preserve jurisdiction over the Motion for

4013Attorney's Fees under sections 57.105, 120.569(2)(e), and

4020120.595(1)(a-e) . . . especially where the final order also

4030reserves jurisdiction . . . ." Spanish Oaks of Cent. Fla., LLC,

4042v. Lake Region Audubon Soc'y, Inc. , Case No. 05-4644 (Fla. DOAH

4053July 7, 2006). See also Lawler v. Dep't of Mgmt. Servs. , Case

4065No. 07-2192 (Fla. DOAH Jan. 30, 2008)(Under section 57.105, in

4075order for an award of attorney's fees to be at issue, "the

4087Petitioner must first become a 'prevailing party' under that

4096section. . . [and] that cannot occur in this case until a final

4109order has been entered by the Respondent agency, and/or by an

4120appellate court. Thus, the motion for attorney's fees and costs

4130pursuant to section 57.105 must be the subject of a separate

4141petition filed once the Petitioner becomes a prevailing party, if

4151he does, upon conclusion of [the primary] proceeding."). Accord ,

4161n.4, supra .

41646/ This determination also applies to counsel for Morphotrust.

41737/ In Johnson Controls , attorney's fees and costs were awarded

4183pursuant to section 120.57(1)(b)5., Florida Statutes (1993),

4190which is a precursor to what is now section 120.569(2)(e). As

4201germane to the instant proceeding, the statutory provisions are

4210essentially identical. Section 120.569(2)(e), unlike section

4216120.595(1)(e)3., which expressly provides that the term

"4223prevailing party" does not "include any party that has

4232intervened in a previously existing proceeding to support the

4241position of an agency," contains no express limitation on the

4251ability of an intervenor to recover attorney's fees and costs

4261sought pursuant thereto.

42648/ It is well established that an award of attorney's fees "must

4276be supported by detailed factual findings . . . predicated on a

4288high degree of specificity . . . ." Moakley v. Smallwood , 826

4300So. 2d 221, 227 (Fla. 2002). However, it is not necessary for a

4313trial court to state its basis when denying a request for

4324attorney's fees and summary denial of a motion regarding the same

4335is appropriate. See, e.g. , Bus. Success Grp., Inc. v. Argus

4345Trade Realty Inv., Inc. , 898 So. 2d 970 (Fla. 3d DCA 2005).


4359Julie L. Jones, Executive Director

4364Department of Highway Safety

4368and Motor Vehicles

4371Neil Kirkman Building, Room B-443

43762900 Apalachee Parkway

4379Tallahassee, Florida 32399-0500

4382Steve Hurm, General Counsel

4386Department of Highway Safety

4390and Motor Vehicles

4393Neil Kirkman Building, Room A-432

43982900 Apalachee Parkway, Mail Stop 02

4404Tallahassee, Florida 32399-0504

4407Deana Metcalf, Director

4410Division of Administrative Services

4414Department of Highway Safety

4418and Motor Vehicles

4421Neil Kirkman Building, Room B-431

44262900 Apalachee Parkway, Mail Stop 20

4432Tallahassee, Florida 32399-0500

4435Jennifer Clark, Agency Clerk

4439Department of Highway Safety

4443and Motor Vehicles

4446Neil Kirkman Building, Room A-430

44512900 Apalachee Parkway, Mail Stop 61

4457Tallahassee, Florida 32399

4460Douglas Sunshine, Esquire

4463Department of Highway Safety

4467and Motor Vehicles

4470Neil Kirkman Building, Room A-432

44752900 Apalachee Parkway, Mail Stop 02

4481Tallahassee, Florida 32399-0504

4484Maria Elena Abate, Esquire

4488Colodny, Fass, Talenfeld,

4491Karlinsky, Abate and Webb, P.A.

449623rd Floor

4498100 Southeast 3rd Avenue

4502Fort Lauderdale, Florida 33394

4506J. Stephen Menton, Esquire

4510Rutledge, Ecenia and Purnell, P.A.

4515119 South Monroe Street, Suite 202

4521Post Office Box 551

4525Tallahassee, Florida 32301


4534A party who is adversely affected by this Final Order is entitled

4546to judicial review pursuant to section 120.68, Florida Statutes.

4555Review proceedings are governed by the Florida Rules of Appellate

4565Procedure. Such proceedings are commenced by filing the original

4574notice of administrative appeal with the agency clerk of the

4584Division of Administrative Hearings within 30 days of rendition

4593of the order to be reviewed, and a copy of the notice,

4605accompanied by any filing fees prescribed by law, with the clerk

4616of the District Court of Appeal in the appellate district where

4627the agency maintains its headquarters or where a party resides or

4638as otherwise provided by law.

Select the PDF icon to view the document.
Date: 03/25/2013
Proceedings: Mandate
Date: 03/25/2013
Proceedings: Final Order (hearing on motions held March 8, 2013). CASE CLOSED.
Date: 03/08/2013
Proceedings: CASE STATUS: Motion Hearing Held.
Date: 03/07/2013
Proceedings: Solution Thru Software's Notice of Supplemental Authority (filed in Case No. 13-000440F).
Date: 03/07/2013
Proceedings: Solution Thru Software's Notice of Supplemental Authority filed.
Date: 02/26/2013
Proceedings: Notice of Motion Hearing (Motion hearing set for March 8, 2013; 10:00 a.m.; Tallahassee, FL).
Date: 02/26/2013
Proceedings: CASE STATUS: Status Conference Held.
Date: 02/22/2013
Proceedings: Notice of Telephonic Case Management Conference (status conference set for February 26, 2013; 11:00 a.m.).
Date: 02/22/2013
Proceedings: Order of Consolidation (DOAH Case Nos. 13-0439F and 13-0440F).
Date: 02/21/2013
Proceedings: Solutions Thru Software and Florida Department of Highway Safety and Motor Vehicles's Joint Motion to Consolidate and Motion to Schedule Hearing filed.
Date: 02/06/2013
Proceedings: Response to Amended Motion for Attorneys' Fees filed.
Date: 02/06/2013
Proceedings: Response to Respondent's Amended Motion for Attorneys' Fees filed.
Date: 01/31/2013
Proceedings: Notice sent out that this case is now before the Division of Administrative Hearings.
Date: 01/25/2013
Proceedings: Intervenor, Solution Thru Software's Amended Motion for Attorney's Fees and Costs against Morphotrust USA and Incorporated Memorandum of Law filed. (FORMERLY DOAH CASE NO. 12-2917BID)
Date: 10/24/2012
Proceedings: Intervenor, Solution Thru Software's Motion for Attorney's Fees and Costs against Morphotrust USA and Incorporated Memorandum of Law filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Tallahassee, Florida
Department of Highway Safety and Motor Vehicles


Related DOAH Cases(s) (5):

Related Florida Statute(s) (9):

Related Florida Rule(s) (1):