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

Case No. 13-0440F

Case No. 13-0439F

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS FINAL ORDER

SOLUTIONS THRU SOFTWARE, INC. Petitioner,

FLORIDA DEPARTMENT OF HIGHWAY ) )

SAFETY AND MOTOR VEHICLES, vs. )

)

MORPHOTRUST USA, Petitioner, )

vs. )

Respondent. )

MORPHOTRUST USA, )

)

Respondent. )

)

) ) )

)

)

)

)

)

)

)

This is a proceeding pursuant to sections 57.105,

120.595(1)(b), and 120.569(2)(e), Florida Statutes (2012), 1/

pending before Linzie F. Bogan, Administrative Law Judge,

Division of Administrative Hearings, wherein the parties hereto

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

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

Florida.

APPEARANCES

For Petitioner Florida Department of Highway

Safety and Motor Vehicles:

Douglas Sunshine, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32399

For Petitioner Solutions Thru Software, Inc:

Maria Elena Abate, Esquire

Colodny, Fass, Talenfeld,

Karlinsky, Abate and Webb, P.A.

23rd Floor

100 Southeast 3rd Avenue

Fort Lauderdale, Florida 33394

For Respondent MorphoTrust USA:

J. Stephen Menton, Esquire

Rutledge, Ecenia and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

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

the Florida Department of Highway Safety and Motor Vehicles

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

costs against Morphotrust USA (Morphotrust) resulting from

Morphotrust's unsuccessful bid protest.

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

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

of attorney's fees and costs against Morphotrust resulting from

Morphotrust's unsuccessful bid protest.

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

entitled to an assessment of attorney's fees against the

Department and STS resulting from their pursuit of attorney's

fees and costs against Morphotrust.

PRELIMINARY STATEMENT

The parties in the instant proceeding were litigants in the

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

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

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

The instant matter is before the undersigned on motions by the

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

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

The final hearing in the Bid Protest proceeding was held by

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

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

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

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

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

claims entitlement to attorney's fees and costs pursuant to

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

entitlement to attorney's fees and costs pursuant to sections

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

120.569(2)(e), attorney's fees against the Department and STS for

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

filed against the company by the Department and STS.

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

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

the Department issued its Final Order in the Bid Protest

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

Conclusions of Law contained in the Recommended Order. On

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

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

in response to the motions, contends that DOAH lacks jurisdiction

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

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

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

issued in the Bid Protest proceeding.

FINDINGS OF FACT

The Department and STS rely upon the Findings of Fact as

determined in the Bid Protest proceeding as the basis for their

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

proceeding. Accordingly, the Findings of Fact and Conclusions of

Law from the Bid Protest proceeding are incorporated herein by

reference.

CONCLUSIONS OF LAW

I. Jurisdiction

1. In the underlying Bid Protest proceeding, DOAH possessed

recommended order authority with respect to the merits of the bid

challenge. In instances where DOAH has recommended order

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

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

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

based upon competent substantial evidence or that the proceedings

on which the findings were based did not comply with essential

requirements of law." Because the respective motions for

attorney's fees and costs are predicated on factual underpinnings

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

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

the undersigned believed it more prudent to reserve jurisdiction

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

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

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

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

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

and 120.569(2)(e).

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

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

court no longer has jurisdiction to adjudicate any matter except

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

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

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

2001)); and Roberts v. Askew , 260 So. 2d 492 (Fla. 1972)("costs

may be adjudicated after final judgment, after the expiration of

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

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

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

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

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

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

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

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

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

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

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

1992), overruled in part , Westgate Miami Beach, LTD. v. Newport

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

retreated from that portion of McGurn dealing with prejudgment

interest).

3. Turning to the instant proceeding, the Recommended Order

issued in the Bid Proceeding, and subsequently adopted by the

Department in its Final Order, unequivocally acknowledges that

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

matters related thereto would be addressed following the entry of

the Department's final order. This pronouncement by the

undersigned was a clear indication that labor had not ended with

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

undersigned's general reservation of jurisdiction in the

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

sufficient to provide DOAH with continuing jurisdiction to

consider issues related to the unresolved claims for attorney's

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

the parties and the subject matter of this proceeding.

II. Attorney's Fees and Costs

A. Section 57.105

4. Section 57.105 provides in part as follows:

(1) Upon the court's initiative or motion

of any party, the court shall award a

reasonable attorney's fee, including

prejudgment interest, to be paid to the

prevailing party in equal amounts by the

losing party and the losing party's attorney

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'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, allegation, or denial

is not withdrawn or appropriately corrected.

(5) In administrative proceedings under

chapter 120, an administrative law judge

shall award a reasonable attorney's fee and

damages to be paid to the prevailing party

in equal amounts by the losing party and a

losing party'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. . . .

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

claims, stonewall defenses and sham appeals in civil litigation

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

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

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

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

1982)). 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." Wendy's of N.E. Fla., Inc. v.

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

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

DCA 2002)).

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

attorney's fees under section 57.105, 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." Wendy's of N.E. Fla., Inc. , at 523. In conducting this

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

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

not supported by the material facts necessary to establish the

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

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

2002). "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." Id. at 222; see also Mason v. Highlands Cnty. Bd. of

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

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

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

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

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

1226, 1228 (Fla. 4th DCA 2001)("Whether fees should have been

awarded in this case depends upon whether the underlying cause of

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

and obviously lacking as to be untenable.").

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

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

evidence introduced during the final hearing in the Bid Protest

proceeding established that the Department had never before

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

the deliverable sought by the Department through the issuance of

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

each of which contained amendments, modifications, and

explanations of the ITN specifications. While the undersigned

found against Morphotrust in the Bid Protest proceeding, it

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

at any point during the underlying litigation that an award of

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

8. Section 120.595 provides in part as follows:

(1) Challenges to agency action pursuant to

section 120.57(1).

* * *

(b) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reasonable attorney's

fee to the prevailing party only where the

nonprevailing adverse party has been

determined by the administrative law judge

to have participated in the proceeding for

an improper purpose.

* * *

(d) In any proceeding in which the

administrative law judge determines that a

party participated in the proceeding for an

improper purpose, the recommended order

shall so designate and shall determine the

award of costs and attorney's fees.

(e) For the purpose of this subsection:

1. "Improper purpose" means participation

in a proceeding pursuant to s. 120.57(1)

primarily to harass or to cause unnecessary

delay or for frivolous purpose or to

needlessly increase the cost of litigation,

licensing, or securing the approval of an

activity.

2. "Costs" has the same meaning as the

costs allowed in civil actions in this state

as provided in chapter 57.

3. "Nonprevailing adverse party" means a

party that has failed to have substantially

changed the outcome of the proposed or final

agency action which is the subject of a

proceeding. In the event that a proceeding

results in any substantial modification or

condition intended to resolve the matters

raised in a party's petition, it shall be

determined that the party having raised the

issue addressed is not a nonprevailing

adverse party. The recommended order shall

state whether the change is substantial for

purposes of this subsection. In no event

shall the term "nonprevailing party" or

"prevailing party" be deemed to include any

party that has intervened in a previously

existing proceeding to support the position

of an agency. . . .

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

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

Morphotrust participated in the Bid Protest proceeding for an

improper purpose by making factual allegations that were

"baseless and frivolous." Specifically, the Department alleges

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

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

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

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

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

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

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

cases expressly defining "frivolous purpose" within the meaning

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

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

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

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

Visoly ,

Court opinions on attorney's fees speak

easily of cases being either frivolous or

nonfrivolous, as if all cases fit easily

into one or the other category. Reality is

more complicated. In the legal world,

claims span the entire continuum from

overwhelmingly strong to outrageously weak.

Somewhere between these two points, courts

draw a line to separate the nonfrivolous

from the frivolous, the former category

providing safe shelter, the latter

subjecting attorney and client to sanctions.

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

558, 574 (E.D.N.Y. 1986)). The case of Mercedes Lighting and

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

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

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

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

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

should be one which is of little significance or importance in

the context of the goal of administrative proceedings."

Id. at 278.

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

undersigned concluded that Morphotrust's claims "were without

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

not ipso facto equate to a finding of frivolous purpose within

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

Department and the bidders were dealing with a very unique ITN

that resulted in the Department issuing multiple addenda. On the

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

outrageously weak that it satisfied the requirements for imposing

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

C. Section 120.569(2)(e)

11. Section 120.569 provides in part as follows:

(1) The provisions of this section apply in

all proceedings in which the substantial

interests of a party are determined by an

agency, unless the parties are proceeding

under s. 120.573 or s. 120.574. Unless

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

whenever the proceeding involves a disputed

issue of material fact. Unless otherwise

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

cases. If a disputed issue of material fact

arises during a proceeding under

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

parties, the proceeding under s. 120.57(2)

shall be terminated and a proceeding under

s. 120.57(1) shall be conducted. Parties

shall be notified of any order, including a

final order. Unless waived, a copy of the

order shall be delivered or mailed to each

party or the party's attorney of record at

the address of record. Each notice shall

inform the recipient of any administrative

hearing or judicial review that is available

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

shall indicate the procedure which must be

followed to obtain the hearing or judicial

review; and shall state the time limits

which apply.

(2)(a) Except for any proceeding conducted

as prescribed in s. 120.56, a petition or

request for a hearing under this section

shall be filed with the agency. If the

agency requests an administrative law judge

from the division, it shall so notify the

division by electronic means through the

division's website within 15 days after

receipt of the petition or request. A

request for a hearing shall be granted or

denied within 15 days after receipt. On the

request of any agency, the division shall

assign an administrative law judge with due

regard to the expertise required for the

particular matter. The referring agency

shall take no further action with respect to

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

party litigant, as long as the division has

jurisdiction over the proceeding under

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

disqualification of the administrative law

judge by filing an affidavit with the

division prior to the taking of evidence at

a hearing, stating the grounds with

particularity.

* * *

(e) All pleadings, motions, or other papers

filed in the proceeding must be signed by

the party, the party's attorney, or the

party's qualified representative. The

signature constitutes a certificate that the

person has read the pleading, motion, or

other paper and that, based upon reasonable

inquiry, it is not interposed for any

improper purposes, such as to harass or to

cause unnecessary delay, or for frivolous

purpose or needless increase in the cost of

litigation. If a pleading, motion, or other

paper is signed in violation of these

requirements, the presiding officer shall

impose upon the person who signed it, the

represented party, or both, an appropriate

sanction, which may include an order to pay

the other party or parties the amount of

reasonable expenses incurred because of the

filing of the pleading, motion, or other

paper, including a reasonable attorney's

fee. . . .

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

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

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

and Petition for Administrative Hearing are either false or

legally irrelevant to the validity of the intent to award the

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

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

finds insufficient grounds to support a determination that

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

action, acted with a frivolous purpose within the meaning of

section 120.569(2)(e). 6/

D. Morphotrust's Motion for Attorney's Fees

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

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

Morphotrust claims that the Department's amended motion for

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

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

frivolous and has unnecessarily increased the costs of this

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

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

administrative bid protest is unprecedented, unsupported by

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

unnecessarily increased the costs of this litigation."

14. There is nothing unprecedented about both an agency and

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

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

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

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

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

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

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

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

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

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

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

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

by the Florida Department of Highway Safety and Motor Vehicles,

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

57.105, 120.569(2)(e), and 120.595(1)(b) are DENIED.

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

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of March, 2013.

ENDNOTES

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

unless otherwise indicated.

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

sought recovery pursuant to section 57.105. In its amended

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

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

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

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

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

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

elsewhere herein, no prejudice to Morphotrust has resulted as a

consequence of allowing the amendment.

3/ Section 57.105 allows for the recovery of a reasonable

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

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

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

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

DOAH has final order authority in section 57.105 proceedings and

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

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

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

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

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

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

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

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

district court of appeal provides sufficient protection for the

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

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

order to consider sanctions requested in a pending motion is

sufficient to preserve jurisdiction over the Motion for

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

120.595(1)(a-e) . . . especially where the final order also

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

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

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

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

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

Petitioner must first become a 'prevailing party' under that

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

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

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

pursuant to section 57.105 must be the subject of a separate

petition filed once the Petitioner becomes a prevailing party, if

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

n.4, supra .

6/ This determination also applies to counsel for Morphotrust.

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

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

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

germane to the instant proceeding, the statutory provisions are

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

120.595(1)(e)3., which expressly provides that the term

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

intervened in a previously existing proceeding to support the

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

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

sought pursuant thereto.

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

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

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

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

trial court to state its basis when denying a request for

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

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

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

COPIES FURNISHED:

Julie L. Jones, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B-443

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Steve Hurm, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway, Mail Stop 02

Tallahassee, Florida 32399-0504

Deana Metcalf, Director

Division of Administrative Services

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B-431

2900 Apalachee Parkway, Mail Stop 20

Tallahassee, Florida 32399-0500

Jennifer Clark, Agency Clerk

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-430

2900 Apalachee Parkway, Mail Stop 61

Tallahassee, Florida 32399

Douglas Sunshine, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway, Mail Stop 02

Tallahassee, Florida 32399-0504

Maria Elena Abate, Esquire

Colodny, Fass, Talenfeld,

Karlinsky, Abate and Webb, P.A.

23rd Floor

100 Southeast 3rd Avenue

Fort Lauderdale, Florida 33394

J. Stephen Menton, Esquire

Rutledge, Ecenia and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of 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.