16-001101 Aubrie Perez, As Personal Representative Of The Estate Of Edward Perez vs. Department Of Management Services, Division Of Retirement Status: Closed DOAH Final Order on Wednesday, July 19, 2017.

Summary: Petitioner is not entitled to attorneys' fees and costs pursuant to sections 120.595(1), 120.569(1) and (2)(e), or 57.105, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUBRIE PEREZ, as Personal

Representative of the Estate of

EDWARD PEREZ,

Petitioner,

vs. Case No. 16 - 1101

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT,

Respondent.

___________________________ ____/

FINAL ORDER ON ATTORNEYS' FEES

This matter came before Administrative Law Judge Darren A.

Schwartz on Petitioner ' s Motion for Attorneys ' Fees, filed

May 15, 2017.

APPEARANCES

For Petitioner: Lee P. Teichner, Esquire

Holland & Knight LLP

701 Brickell Avenue, Suite 3300

Miami, Florida 33131

For Respondent: Richard C. Swank, Esquire

Department of Management Services

4050 Esplanade Way , Sui te 160

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner, Aubrie - Elle Perez ( " Petitioner " ), is

entitled to an award of attorneys ' fees and costs to be paid by

Respondent, Department of Management Services, Division of

Retirement ( " Respondent " ), pursuant to sections 120.595(1),

120.569 (1) and (2)(e) , or 57.105, Florida Statutes (2015) . 1/

PRELIMINARY STATEMENT

On January 23, 2017, the undersigned issued a Recommended

Order, recommending that Respondent enter a f inal o rder requiring

that the total sum of $214,202.60 be returned by Respondent to

the Florida Retirement Systems ( " FRS " ) Investment Plan for the

benefit of Edward Perez ( " Lt. Perez " ), deceased, and that

pursuant to section 121.091(8)(a), Florida Statutes, Petition er,

as the sole surviving child of and the sole beneficiary of

Lt. Perez, immediately receive the amount of $214,202.60.

Neither Petitioner nor Respondent filed any exceptions to the

Recommended Order. On April 24, 2017, Respondent rendered its

Final Ord er, adopt ing the Recommended Order in its entirety.

Neither Petitioner nor Respondent appealed the Final Order.

Pursuant to the parties ' request in the p re - hearing

s tipulation filed August 30, 2016, the undersigned reserved

jurisdiction in the Recommended Order to address issues regarding

Petitioner ' s entitlement to, and the amount of, attorneys ' fees,

costs, and interest. On May 15, 2017, Petitioner filed

Petitioner's M otion for A ttorneys ' F ees . On May 2 6 , 2017,

Respondent filed its memorandum of law in opposition to the

motion. On June 6, 2017, Petitioner filed a motion to strike

Respondent ' s response. On June 12, 2017, the undersigned entered

an Order , denying the motion to strike, and allow ed Petitioner

until June 22, 2017, to fi le a reply to Respon dent ' s response.

On June 22, 2017, Petitioner filed her reply.

During a telephonic status conference on June 12, 2017, the

parties stipulated that the issue of entitlement to attorneys '

fees and costs should be determined by the undersigned based on

the p apers and record of this proceeding without an evidentiary

hearing. The parties further stipulated that in the event the

undersigned found Petitioner to be entitled to attorneys ' fees

and costs, an evidentiary hearing would then be scheduled to

determine the amount of attorney s ' fees and costs to which

Petitioner is entitled.

FINDING S OF FACT

1. The FRS is a public retirement system as defined by

Florida law. There are approximately 400,000 active members

within the FRS. Respondent is charged with manag ing, governin g,

and administering the FRS.

2. In 1997, Lt. Perez began employment with the Miami - Dade

County Fire Department. For over 16 years, Lt. Perez served as a

fire fighter with the Miami - Dade County Fire Department, his last

position being a l ieu tenant.

3. Lt. Perez was a vested member of the FRS. Upon his

initial employment and enrollment with the FRS in 1997, Lt. Perez

entered the Investment Plan and made a retirement benefits

election designating that if he died before his retirement and

chos e not to designate a beneficiary, retirement benefits would

be paid in accordance with section 121.091(8), Florida Statutes.

Lt. Perez chose not to designate a beneficiary. Thus, according

to this statute, retirement benefits would first be paid to

Lt. Perez ' s spouse and , if no spouse, then to his only child,

Petitioner.

agically, on April 7, 2013, Lt. Perez collapsed at the

fire station. Subsequently, Lt. Perez was diagnosed with a

grade - four malignant brain tumor known as a glioblastoma

multi - f orming -- a very aggressive and generally terminal form of

brain cancer. There is no cure , and the median survival rate for

adults with this form of brain cancer is nine to 14 months.

5. Due to his terminal brain cancer and the treatments he

had undergone and was undergoing, Lt. Perez was unable to

continue his duties with the Miami - Dade County Fire Department.

6. On February 19, 2014, a two - page FRS Investment Plan

Application for Disability Retirement Form PR - 13 ( " application

for disability retirement " ) and an FRS Investment Option

Selection Form PR - 11o ( " option selection form " ) were submitted to

Respondent for Lt. Perez. They were sent to Respondent by mail

by Lt. Perez ' s sister, Alecs Perez - Crespo ("Ms. Perez - Crespo").

7. The effect of the application for disability retirement

and the selection of Option 1 on the option selection form would

be to transfer the monies from the Investment Plan into the

Pension Plan, and convert Lt. Perez ' s accumulated Investment Plan

retirement benefits to monthly disabil ity retirement benefits

during his lifetime. Then, upon his death, the monthly benefit

payments would stop, and the beneficiary would receive only a

relatively small amount, if any -- a refund of contributions

Lt. Perez had paid into the Investment Plan re tirement account,

which are in excess of the amount he received in benefits, not

including the transferred Investment Plan account balance. 2/

8. On their face, the application and option selection form

appeared facially valid to Respondent . They appeared to

Respondent to have been completed by the member, Lt. Perez, and

signed by Lt. Perez in the presence of a notary public.

9. Accordingly, Respondent processed the application for

disability retirement and option selection form. As a result,

Lt. Perez w as deemed to have retired effective April 1, 2014, and

he forfeited approximately $238,000, which was transferred from

the Investment Plan to the Pension Plan.

10. Subsequently, two disability retirement benefit

warrants were issued by the State of Flor ida, Department of

Financial Services, to Lt. Perez, via the Pension Plan, in care

of Alecs Perez - Crespo, POA. The dates of these warrants are

April 30, 2014, and May 30, 2014. Both warrants were endorsed by

Ms. Perez - Crespo, " POA f or Edward Perez. " Res pondent made these

disability retirement gross benefit disbursements resulting in

net payments to Lt. Perez on the following dates and in the

following amounts: April 30, 2014 -- gross disbursement of

$4,950.63, less deducted taxes of $413.20, for a net pay ment to

Lt. Perez of $4,537.43; and May 30, 2014 -- gross disbursement of

$4,950.63, less taxes of $413.20 and less a medical insurance

deduction of $386.00, for a net payment to Lt. Perez of

$4,151.43. 3/

11. A direct deposit authorization for electronic tr ansfer

of future retirement benefit warrants into a checking account

solely in the name of Lt. Perez was signed by Ms. Perez - Crespo,

" POA for Edward Perez, " on May 9, 2014.

12. Two additional disability retirement gross benefit

disbursements resulting in net payments to Lt. Perez were sent to

the checking account of Lt. Perez on the following dates and in

the following amounts: June 30, 2014 -- gross disbursement of

$4,950.63, less taxes of $413.20 and less a medical deduction of

$386.00, for a net payment to Lt. Perez of $4,151.43; and

July 31, 2014 -- gross disbursement of $4,981.32, less taxes of

$417.81 and less a medical insurance deduction of $386.00, for a

net payment to Lt. Perez of $4,177.51, bringing the total sum of

the gross disbursements for the f our payments made to Lt. Perez

$19,833.21, and the total sum of the net disbursements for the

four payment s made to Lt. Perez $17,017.80.

13. The net sum of $17,017.80 , issued by the Pension

Plan as disability retirement benefits to Lt. Perez , was

deposit ed into Lt. Perez ' s checking account. Accordingly,

$19,833.21 (gross)/$17,017.80 (net) was received by Lt. Perez.

14. Lt. Perez died on July 16, 2014, from the cancer. At

the time of Lt. Perez ' s death, Petitioner was, and remains, his

sole surviving chi ld (natural or adopted). Lt. Perez was not

married at the time of his death and, thus, left no surviving

spouse.

15. Because of the receipt of the four payments during his

lifetime, which are applied first to the personal contributions

made by Lt. Pere z into the Investment Plan during his lifetime,

the amount of Lt. Perez ' s small contributions into the plan were

exhausted by the time of his death. Therefore, if the option

selection form was valid, Petitioner, as the sole beneficiary and

child of Lt. Pe rez, would receive nothing.

16. On January 13, 2016, Respondent issued a final agency

action letter to Petitioner, denying her request for FRS benefits

from Lt. Perez ' s disability retirement account. Dissatisfied

with Respondent ' s determination, Petitio ner timely requested an

administrative hearing.

17. In her petition, Petitioner asserted that the

application for disability retirement and option selection form

were void. According to Petitioner, Lt. Perez lacked the legal

or mental capacity at the ti me he allegedly executed the forms,

and the forms were not properly notarized and signed by

Lt. Perez.

1 8 . In paragraph 37 of the petition, included within the

section titled, " Relief Sought by Petitioner, " Petitioner

" requests a final order requiring FDM S [Respondent] to pay to

Aubrie . . . her attorney fees and costs for pursuing this

action. " On February 24, 2016, Respondent referred this matter

to the Division of Administrative Hearings ( " DOAH " ) to assign an

Administrative Law Judge to conduct the fi nal hearing.

1 9 . On March 1, 2016, the parties filed an Agreed Motion

for Abeyance based on their ongoing settlement discussions. On

March 4, 2016, the undersigned entered an Order denying the

motion and set this matter for final hearing on May 9, 2016 .

20 . The parties then commenced discovery.

2 1 . On April 15, 2016, Dr. Deborah Heros ("Dr. Heros") , a

board - certified neurologist and Lt. Perez ' s treating oncologist

was deposed. Dr. Heros testified that within a reasonable degree

of medical probabili ty that Lt. Perez was not mentally ,

physically, cognitively, or legally competent to understand or

execute the application for disability retirement and option

selection form at the time the forms were purportedly executed by

Lt. Perez.

22. The depositi on of Ms. Perez - Crespo on April 7, 2016 ,

also revealed that the application for disability retirement ,

option selection form , and POA were not completed by Lt. Perez

and w ere not signed by Lt. Perez in t he presence of a notary

public.

23. On April 20, 201 6, the notary public , Dian n e Hamilton,

refused to answer any questions in her deposition related to the

purported notarization of Lt. Perez ' s signature.

2 4 . On April 19 , 2016, counsel for Respondent filed an

unopposed motion for a continuance of the hear ing date based on

some recent " significant medical issues that may require

treatments with multiple physicians and related recovery time. "

On April 22, 2016, the undersigned entered an Order granting the

motion, resetting the final hearing for August 9, 2 016.

2 5 . In May and June 2016, Respondent ' s agency

representative s were deposed . According to Mr. David Heidel

("Mr. Heifel") , one of the agency representatives deposed ,

Respondent does not look beyond the face of the application for

disability retirem ent and option selection form in determining

whether a request should be processed.

2 6 . Mr. Heidel testified that in the instant case,

Respondent did not look beyond the face of the application for

disability retirement and option selection form in proces sing the

forms. According to Mr. Heidel, Respondent processed the

application for disability retirement and option selection form

because they appeared at the time of their submission to be

facially valid -- they appeared to have been signed by Lt. Perez in

the presence of a notary.

27. On July 7, 2016, Petitioner filed Petitioner ' s Motion

for Summary Final Order or, Alternatively, for Judicial

Determination of Undisputed Facts. On July 14, 2016, Respondent

filed its opposition to the motion.

28. On Jul y 22, 2016, a telephonic hearing on the motion

was held with counsel for parties participating in the hearing.

On July 25, 2016, the undersigned entered an Order denying the

motion.

29. Shortly thereafter, o n July 29, 2016, Petitioner filed

a Joint Motio n for Status Conference . In the motion,

Petitioner ' s counsel indicated that the " parties are presently

negotiating and are near agreement regarding a possible

settlement that may obviate the need for the final hearing

entirely. " That same day, a telephon ic status conference was

held between the undersign ed and counsel for the parties, during

which the parties requested a continuance of the final hearing.

Following the telephonic status conference, the undersigned

entered an Order on August 1, 2016, reset ting the final hearing

for September 8, 2016.

30. The Parties ' Joint Stipulation was filed on August 30,

2016. In the stipulation, the parties reached agreement on

numerous significant facts. Most importantly, Respondent

conceded that t he option selecti on form was not completed by the

member, Lt. Perez, and was not signed by Lt. Perez in the

presence of a notary public.

31 . Respondent also conceded that a ffirmative medical and

factual evidence establishes, and rebuts any legal presumption to

the contra ry, that Lt. Perez was not mentally, physically,

cognitively, or legally competent to execute the option selection

form or the application for disability retirement in

February 2014, or to understand their legal nature and effect.

32 . Respondent also con ceded that notwithstanding the

facial appearance of the option selection form and application

for disability retirement, the documents are void and invalid

because they failed to comply with the statutory, rule, and

manual requirements applicable to proper ly effectuate the

Option 1 selection, in that they were not completed by the

member, Lt. Perez, and not signed by Lt. Perez in th e presence of

a notary public.

33 . Respondent also concede d that due to Lt. Perez lacking

the mental, cognitive, physical, and legal capacity to understand

the nature and legal effect of executing the option selection

form and application for disability retirement, the purported

execution by Lt. Perez of the option selection form and of the

application for disability retirement a re void and invalid.

34. Respondent also concede d that the option selection form

is invalid and void ab initio, and Lt. Perez ' s earlier selection

in 1997, pursuant to section 121.091(8), should be reinstated

under the FRS Investment Plan. Respondent conc ede d that with

Lt. Perez having died in 2014 with no surviving spouse, and with

Petitioner being his sole surviving child at the time of his

death, that the full retirement benefits of $234,035.81, to which

Lt. Perez was entitled under his Investment Plan designation of

beneficiary should be paid directly to Petitioner.

35 . However, Respondent assert ed that the payment of the

retirement benefits to which Petitioner is entitled should be

reduced by the amount of the four payments made by Respondent to

Lt. P erez, which gross disbursements total $19,833.21, or net

disbursements total $17,017.80, making the retirement benefits to

which Petitioner is entitled to be $214,202.60 or $217,018.01,

not $234,035.81.

36 . The case proceeded to a final hearing on Septemb er 8,

2016. Petitioner did not appear at the final hearing. However,

Petitioner ' s counsel was present at the hearing on behalf of

Petitioner. Respondent appeared at the hearing through a

representative or counsel. Neither party presented any live

testi mony at the hearing. The sole issue presented at hearing

was whether Respondent is entitled to a deduction of the

retirement benefits to be paid to Petitioner, and , if Respondent

is entitled to a deduction, whether the deduction should be in

the amount of the gross disbursements of $19,833.21 or the net

payments to Lt. Perez in the amount of $17,017.80.

37. Following the hearing and the parties ' submission of

proposed recommended orders, the undersigned entered a

Recommended Order , concluding that Respo ndent was entitled to the

deduction in the amount of the gross disbursements of $19,833.21.

Accordingly, the undersigned recommended Respondent enter a f inal

o rder requiring that the total sum of $214,202.60 be returned by

Respondent to the FRS Investment Plan for the benefit of

Lt. Perez, deceased, and that pursuant to section 121.091(8)(a),

Petitioner, as the sole surviving child of and the sole

beneficiary of Lt. Perez, immediately receive the amount of

$214,202.60.

38. As indicated above, no excepti on s to the Recommended

Order were filed , and Respondent adopted the Recommended Order in

its entirety in its Final Order .

39. The facts of this case do not show that Respondent

participated in this proceeding for an improper purpose ,

exhibited egregious c onduct, or acted in bad faith . Respondent

did not participate in this proceeding 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 activit y.

40. Indeed, after the completion of discovery and prior to

the final hearing , Respondent change d its mind as to the bulk of

the monetary relief sought by Petitioner .

41. In the Parties ' Joint Stipulation filed prior to the

final hearing , Respondent st ipulated to the fact that the

application for disability retirement and option selection form

were not signed by Lt. Perez and in the presence of a notary .

Respondent also stipulated that Lt. Perez lacked the mental and

legal capacity to execute the forms . Respondent stipulated that

Petitioner is entitled to the full amount of retirement b enefits ,

less a deduction for the four payments.

4 2 . The case proceeded to final hearing over entitlement to

the deduction and the amount of any deduction , only . Fol lowing

the final hearing, the undersigned ruled that Petitioner is

entitled to the full amount of retirement benefits of

$234,035.81, less a deduction in the amount of the gross

disbursements of $19,833.21. Thus, Petitioner recovered from

Respondent the t otal sum of $214,202.60 .

4 3 . Petitioner is the prevailing party because she

prevailed on a significant issue in the case -- she received the

bulk of the amount sought in the petition.

44. However, Respondent is not a nonprevailing adverse

party under secti on 120.595 .

4 5 . There is no evidence that Respondent participate d in

two or more other such proceedings involving Petitioner.

4 6 . There is no evidence that Petitioner served upon

Respondent the 21 - day " safe harbor " motion required by section

57.105(4) , Florida Statutes. There is also no evidence that

Petitioner was prohibited from serving the motion on Respondent

as required by the statute.

CONCLUSIONS OF LAW

4 7 . Respondent ' s initial conten tion is that Petitioner

failed to properly plead entitlement to attorneys ' fees pursuant

to sections 57.105, 120.595 , and 120.569 , Florida Statutes .

Respondent argues that the petition cites no specific statute

entitling her to attorneys ' fees and only states that she should

" recover her attorney fees and costs for pursuing this action. "

Respondent further states that in the Parties ' Joint Stipulation,

the facts requiring determination included: " Whether Petitioner

is entitled to attorneys ' fees, including but not limited to

under Sections 57.105 or 120.595, Flori da Statutes, or other

applicable law or statute, from the inception of the Petition

and/or following the deposition of Dianne Hamilton and/or

Dr. Heros. " Respondent further states that in her Motion for

Attorneys ' Fees, Petitioner cites " Sections 120.595( 1)(b)

and/or 57.105. "

4 8 . Contrary to Respondent ' s assertion, generally pleading

a claim for attorneys ' fees is sufficient to notify the opposing

party and allow it to consider the claim. No specific pleading

of the statutory basis is required. Caufield v. Cantele , 837 So.

2d 371, 376 (Fla. 2002).

4 9 . In the instant case, Petitioner sufficiently pled

entitlement to attorneys ' fees in the petition by alleging that

Petitioner " requests a final order requiring FDMS [Respondent] to

pay to Aubrie . . . her a ttorney fees and costs for pursuing this

action. " In the Parties ' Joint Stipulation, Petitioner

referenced sections 57.105 and 120.595, " or other applicable law

or statute. " Stating " or other applicable law or statute " was

sufficient to preserve a claim of entitlement to attorneys ' fees

under section 120.569. Finally, c ontrary to Respondent ' s

assertion, paragraph 28 on page 12 of the M otion for A ttorneys '

F ees specifically references sections 120.595(1), 120.569(1)

and (2)(e) , and 57.105.

50. Turning to the merits of Petitioner ' s motion, t he

statutes upon which Petitioner relies to support entitlement to

attorneys ' fees must be strictly construed because statutes

providing for attorneys ' fees are in abrogation of the common

law. Johnson v. Dep ' t of Corr . , 191 So. 3d 965, 967 (Fla. 1st

DCA 2016).

51. As to the claim of attorneys ' fees pursuant to

section 120.595, that provision requires that Respondent be

a " nonprevailing adverse party " under the definition of

the statute. As defined in section 120.59 5(1)(e)3.,

" ' [n]onprevailing 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. "

Respondent did not seek to change its own action and did not fail

to do so. Respondent therefore does not meet the statutory

definition.

52. This case is analogous to Johnson v. Dep artment of

Corr ections , 191 So. 3d 965 (Fla. 1st DCA 2016). In Johnson , the

First District Court of Appeal affirmed the agency ' s F in al O rder

adopting an A dministrative L aw J udge ' s denial of attorneys ' fees

because the agency did not meet the definition of " nonprevailing

adverse party. " In reaching this decision, the court stated:

The Department did not seek to substantially

change it s own action and did not " fail " to

change the outcome of its action. It was

Mr. Johnson who succeeded in substantially

changing the outcome of the agency action

because his appeal of the agency action to

the PERC eventually resulted in reinstatement

of hi s employment. Under the statutory

language defining " nonprevailing adverse

party, " section 120.595(1) cannot provide the

statutory basis for an award to Mr. Johnson

of his attorney ' s f ees as against the

Department.

Johnson , 192 So. 3d at 968.

53. In the instant case, Respondent denied Petitioner ' s

initial request to invalidate Lt. Perez ' s election forms because

they appeared notarized and facially valid. In light of evidence

adduced by Petitioner during the discovery process, Respondent

stipulated to th e invalidity of the forms due to the lack of the

required signature and notarization, and because of Lt. Perez ' s

lack of competency to execute the forms. As in Johnson ,

Respondent cannot be a nonprevailing adver s e party because it did

not seek to change i ts own action and did not fail to change the

outcome of its action.

54. Petitioner is a prevailing party under the generic

definition as stated in Moritz v. Hoyt Enter prise , 604 So. 2d 807

(Fla. 1992), because she prevailed on significant issues in the

litigation by recovering the bulk of the monetary relief sought

in the petition . That Respondent was ultimately entitled to a

deduction for the four payments following the execution of the

Parties ' Joint Stipulation does not mean that Petitioner is not a

prevailing party under Moritz . However, Respondent fails to meet

the statutory definition of nonprevailing adverse party in

section 120.595, which is required to support Petitioner ' s c laim

of attorneys ' fees under th e statute.

55. Even if Respondent was the nonprevailing adverse party

under the statute, however, Petitioner is still precluded from

recovering attorneys ' fees because the evidence fails to

demonstrate that Respondent participated in t his proceeding for

an improper purpose. § 120.595(4), Fla. Stat. " ' 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. "

As detailed above, the facts do not show that Respondent

participated in this proceeding for an improper purpose.

56. Moreover, in determining whether a party participated

for an improper purpose, section 120.595(1)(c) requires that the

under signed " consider whether the nonprevailing adverse party has

participated in two or more other such proceedings involving the

same prevailing party . . . and in which such two or more

proceedings the nonprevailing adverse party did not establish

either the factual or legal merits of its position. " As detailed

above, the facts of this case do not show that Respondent acted

for an improper purpose, let alone in two or more proceedings.

57. As to the claim of entitlement to attorneys ' fees under

section 120. 569(1), the statute does not contain any provision

regarding attorneys ' fees. Accordingly, Petitioner is not

entitled to attorneys ' fees under section 120.569(1).

58. As to the claim of entitlement to attorneys ' fees under

section 120.569( 2 )(e), that pr ovision provides as follows:

(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 needles s

increase in the cost of litigation. If a

p leading, 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

pa rties the amount of reasonable expenses

incurred because of the filing of the

pleading, motion, or other paper, including a

reasonable attorney ' s fee.

5 9 . As detailed above, the facts do not establish that

Respondent filed any pleading, motion, or other paper 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. Accordingly, Petitioner is not entitled to

attorneys ' fees under section 120.569( 2 )(e).

60 . As to the claim of entitlement to attorneys ' fees under

section 57.105, section 57.105(4) requires that " [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 se rvice of the motion, the challenged paper, claim,

defense, contention, allegation, or denial is not withdrawn or

appropriately corrected. "

61 . In the instant case, there is no evidence that

Petitioner served the required motion on Respondent as required

by section 57.105(4). Accordingly, Petitioner is not entitled to

attorneys ' fees under section 57.105.

6 2 . Finally, Petitioner argues on page four of her reply

memorandum that she " is entitled to attorney ' s fees and costs

pursuant to the Court ' s inher ent authority to sanction bad faith

litigation conduct through the inequitable conduct doctrine.

Bitterman v. Bitterman , 714 So. 2d 356, 365 (Fla. 1998)( " the

inequitable conduct doctrine permits the award of attorney ' s fees

where one party has exhibited e gregious conduct or acted in bad

faith. " ); Moakley v. Smallwood , 826 So. 2d 221 (Fla. 2002);

Rosenberg v. Gaballa , 1 So. 3d 1149, 1150 (Fla. 4th DCA 2009). "

6 3 . As detailed above, the facts do not show that

Respondent ' s counsel exhibited egregious condu ct or acted in bad

faith. Accordingly, Petitioner is not entitled to attorneys '

fees based on the undersigned ' s inherent authority.

6 4 . In sum, chapter 120 formal administrative proceedings

are designed to give affected parties, such as Petitioner, the

opportunity to change the agency ' s mind. The underlying case was

a typical chapter 120 proceeding in which Petitioner aided

Respondent in formulating final agency action and convincing the

agency , for the most part, to change its mind following discovery

within the formal administrative process. J.D. v. Fla. Dep ' t of

Child . & Fam s . , 114 So. 3d 1127, 1131 (Fla. 1st DCA 2013).

6 5 . Although Petitioner prevailed to a significant degree

in the case, she has failed to establish entitlement to

a ttorneys ' fees and costs.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioner ' s Motion for Attorneys ' Fees

is DENIED.

DONE AND ORDERED this 1 9 th day of July , 2017 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 1 9 th day of July , 2017 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

S tatutes are to the 2015 codification in effect at the time

Respondent issued its final agency action letter to Petitioner.

2/ The amount in an FRS member ' s Investment Plan account is

comprised of employer and employee contributions.

3/ In March 2014, Ms. Perez - Crespo obtained a durable power of

attorney ( " POA " ) purportedly executed by Lt. Perez. By this

ti me, Lt. Perez was living with Ms. Perez - Crespo. In March or

April 2014, Ms. Perez - Crespo submitted to Respondent the POA form

purportedly signed by Lt. Perez. These documents also appeared

facially valid to Respondent when they were received and reviewed

by Respondent because they were notarized and appeared to have

been signed by Lt. Perez.

COPIES FURNISHED:

Lee P. Teichner, Esquire

Holland & Knight LLP

701 Brickell Avenue , Suite 3300

Miami, Florida 33131

(eServed)

Richard C. Swank, Esquire

Departme nt of Management Services

4050 Esplan a de Way , Suite 160

Tallahassee, Florida 32399

(eServed)

Elizabeth Stevens, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

(eServed)

J. Andrew Atkinson, General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

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 agenc y 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.