16-006954F Nader + Museu I Limited Liability Limited Partnership, A Florida Limited Partnership vs. Miami Dade College, An Agency Of The State Of Florida Status: Closed DOAH Final Order on Tuesday, November 20, 2018.

Summary: On remand from the Third District Court of Appeals in case no. 3D17-0149, Respondent is awarded $81,728.50 in attorney's fees and $461.35 in costs, for the total sum of $82,189.85

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NADER MUSEU I LIMITED

LIABILITY LIMITED PARTNERSHIP, A

FLORIDA LIMITED PARTNERSHIP,

Petitioner,

vs. Case No. 16 - 6954F

MIAMI DADE COLLEGE, AN AGENCY OF

THE STATE OF FLORIDA,

Respondent.

_________________ ______________/

FINAL ORDER AWARDING

APPELLATE ATTORNEY ' S FEES AND COSTS

A final hearing in this case was held on September 12, 2018 ,

by video teleconference at sites in Tallahassee and Miami,

Florida, before Robert L. Kilbride , Administrative Law Judge of

the Divisi on of Administrative Hearings ( " DOAH " ).

APPEARANCES

For Petitioner: William W. Riley, Jr., Esquire

Pedro M. Villa, Esquire

Greenspoon Marder, LLP

600 Brickell Avenu e, Suite 360

Miami, Florida 33131

For Respondent: Jose M. Ferrer, Partner

Des i ree Fernandez, Esquire

Bilz i n, Sumberg, Baena,

Price & Axelrod, LLP

23rd Floor

1450 Brickell Avenue

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue to be determined in this case is the amount of

appellate attorney ' s fees to be awarded and paid to Respondent by

Petitioner.

PRELIMINARY STATEMENT

This m atter came before the undersigned on March 21, 2018,

on a remand order from the Third District Court of Appeal ( " Third

DCA " ) in Case No. 3D17 - 0149. The undersigned was directed by the

Court to " fix " the amount of appellate attorney ' s fees to be

awarded to Respondent .

To that end, on September 12, 2018, an evidentiary hearing

was held before the undersigned. Respondent presented the

testimony of Albert E. Dotson, Jr., Esq uire, and the expert

testimony of Ms. Dagmar Llaudy, Esq uire . Petitioner presented

th e expert testimony of Mr. Robert Klein, Esq uire . Petitioner

offered Exhibit 1 , which was admitted. Respondent offered

Exhibits 1 through 22 , which were admitted.

The T ranscript of the final hearing was filed with DOAH on

September 25, 2018 ; and, after an extension was granted, the

parties submitted proposed final orders that were reviewed in the

preparation of this Final Order. Unless otherwise noted, the

2018 version of the Florida Statutes is applied where applicable.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Based on the evidence presented, the following findings of

fact and conclusions of law are made:

1. The dispute taken on appeal to the Third DCA in Case

No. 3D17 - 0149 concerned the undersigned ' s Final Order on

Petitioner ' s Motion for Attorney ' s Fee s dated December 20, 2016. 1/

2. In that Final Order, the crux of the ruling denying the

request for fees was that in the administrative case , there had

been no prevailing party; that the wording of section 255.0516 ,

Florida Statutes, contemplates that co sts and attorney ' s fees may

be recovered only after a final administrative hearing is held

(no final hearing had been held); and that the separate a greement

between the parties did not provide a basis for an award of fees.

3. The Final Order denying the a ward of attorney ' s fees to

Nader was appealed and upheld by the Third D CA in a per curiam

affirmed O pinion dated March 21, 2018. Respondent was also

awarded it s appellate fees in a separate O pinion issued the same

day. That matter was referred to the und ersigned for a

determination.

4. R espondent is requesting that this tribunal award it

payment of $120,539.70 as appellate attorney ' s fees resulting

from approximately 303.75 hours of time. In doing so, it relies

upon several invoices submitted by its cou nsel regarding the

legal work performed on the appeal. See Resp. Ex s . 3 - 17 and

Ex. A of Resp. Ex . 20 .

5. T hose invoices reflect that the following attorneys and

paralegals worked on the appeal for Respondent at the listed

rate(s):

a. Albert E. Dotson , J r. ($740 to

750.00/hour)

b. Eileen Ball Mehta ($685 to 695.00/hour)

c. Jose M. Ferrer ($595.00/hour)

d. Melissa Pallett - Vasquez ($565.00/hour)

e. Eric Singer ($480 to 510.00/hour)

f. Leah Aaronson ($315.00/hour)

g. Elise Holtzman ($290 to 295.0 0/hour)

h. Maria Ossorio ($295.00/hour)

i . Jessica Kramer ($290.00/hour)

j. Maria Tucci ($275.00/hour)

6. In deciding the amount of attorney ' s fees to be awarded,

a court must consider not only the reasonableness of the fees

charged, but also the appropriateness of the number of hours

counsel engaged in performing their services. Fla. Patient ' s

Comp . Fund v. Rowe , 472 So. 2d 1145 (Fla. 1985) ; and Mercy Hosp .

Inc., v. Johnson , 431 So. 2d 687 (Fla. 3d DCA 1983).

7. Respondent has the burden to prov e, by a preponderance

of the evidence, that the amount of attorney ' s fees it has

requested is reasonable. Rowe , 472 So. 2d at 1145 ; see also

§ 120.57(1)(j), Fla. Stat. (2015).

8. In Rowe , it was determined that the criteria listed in

Rule 4 - 1.5 of the Ru les Regul ating T he Florida Bar should be used

to calculate the amount of reasonable attorney ' s fees. Rowe ,

472 So. 2d at 1151.

9. The undersigned has considered all the relevant factors

outlined in Rule 4 - 1.5 and Rowe . Several of the factors and

related findings are highlighted below.

Rule 4 - 1.5(b)(1)(A)

10. In determining whether a requested fee award

is reasonable, one factor to be considered is " the time and labor

required, the novelty, complexity, and difficulty of the

questions involved, and the sk ill requisite to perform the legal

service properly . "

11. The issue on appeal to the Third DCA was limited

primarily to an analysis and determination of a " prevailing

party " fee award. Notably, this issue was addressed, briefed ,

and argued by these parti es before the undersigned in the

underlying administrative proceeding.

12. Many of the arguments set forth by Respondent in the

appellate proceedings, which is the subject of this remand Order,

were duplicative and, as mentioned, had been briefed, argued , and

utilized in prior filings in the underlying administrative

proceedings.

13. Respondent contends that " new theories of liability "

were introduced in Petitioner ' s Initial Brief. However, this

argument is not persuasive.

14. The evidence presented at the hearing also does not

support Respondent ' s claim that all the labor and services of the

aforementioned attorneys was required. A good deal of their work

was duplicative in nature, redundant , and not necessary in order

to perform the legal services pro perly. In short, some of the

time billed was excessive.

15. Petitioner ' s expert, Attorney Robert Klein, testified

that he reviewed the Bilzin S u mberg firm 's invoices for legal

services, reviewed a considerable number of pleadings from the

administrative proceedings , and reviewed nearly the entire

collection of pleadings in the appellate case. 2/

16. Klein testified convincingly, and the undersigned

credit s , that based on his global review of the Bilzin Sumberg

invoices : (1) the fees charged " were far bey ond what they should

have been " ; (2) he discovered a " tremendous duplication of

effort " ; and (3) " the overwhelming majority of the arguments "

raised on appeal had already been raised in the administrative

proceedings.

17. In describing the firm ' s preparat ion time for oral

arguments , he opined that the time billed was " really high . " In

short, Klein ' s expert testimony, while stated in general or more

abstract terms, properly supplemented by the undersigned ' s own

review of the invoices and the Exhibit A summ ary of Respondent's

Exhibit 20 , supports a considerable reduction in the fees

charged.

18. As a legal back drop to the distinctive issues in this

case, an analysis regarding the reasonableness of an attorney ' s

posted time is helpful. In Donald S. Zuckerm an, P.A. v. Alex

Hofrichter, P.A. , 676 So. 2d 41, 43 (Fla. 3d DCA 1996) , the court

held that a party has the right to hire as many attorneys as it

desires, but the opposing party is not required to compensate for

overlapping efforts, should they result.

19 . In Brevard County v. Canaveral Properties, Inc. , 696

So. 2d 1244 (Fla. 5th DCA 1997) , the Fifth District Court of

Appeal panel held that :

T he polestar of an appellate attorney fee

award pursuant to section 73.131 and the case

law generally, is that it m ust be reasonable.

One that is bloated because of excessive time

spent, or unnecessary services rendered, or

duplicate tasks performed by multiple

attorneys, does not meet that criterion of

reasonableness .

20. The Fifth District Court of Appeal reminded the

parties, " [i] n making an attorney fee award, the court must

consider the possibility of duplicate effort arising from

multiple attorneys, in determining a proper fee award. Fees

should be adjusted and hours reduced or eliminated to reflect

duplicatio ns of services. " Id.

21. In determining the hours, the undersigned must also

look at the amount of time that would ordinarily be spent to

resolve the particular type of issues, which is not necessarily

the time actually spent by counsel in the case. It is settled

that a court is not required to simply accept the hours stated by

counsel. In re Estate of Platt , 586 So. 2d 328, 333 - 34

(Fla. 1991).

22. Finally, in Baratta v. Valley Oak Homeowners '

Association at the Vineyards, Inc. , 928 So. 2d 495 (Fla. 2d

DCA 2006), the court outlined that as a general rule, duplicative

time charged by multiple attorneys working on the case is usually

not compensable.

23. In this case, a considerable portion of Respondent ' s

appellate arguments, case law, drafting time , an d associated

research was similar, if not identical to, the arguments, case

law , and documents filed with this tribunal prior to the

initiation of the appeal. 3/

24. Moreover, Respondent ' s expert witness, Dagmar Llaudy,

acknowledged that a fair amount of d uplication occurred. She

testified, for instance, that " the answer brief and everything

else they [ Miami Î Dade College ] did, it used the same case law

and it used the same arguments. So it was very difficult to

separate work done for a 57.105 and then wor k done for the

remainder of the case because they all touched on the same

issues. " T r . p . 134, Line 22 - 25 , and p. 135, Line 1 - 2.

25. This statement by Respondent ' s expert witness is

telling , and explains a good deal of the legal work for which

fees are b eing sought.

26. The undersigned conclude s that when legal work done for

one aspect of a case closely resembles, or is similar to, legal

work performed for another phase of the case and is used again,

the party is normally not entitled to recover all of i ts fees for

this repetitious work.

27. Perhaps the most compelling support for reducing the

requested award in this case can be found in the reasoning

outlined by the magistrate judge in Alvarez Perez v. Sanford -

Orlando Kennel Club, Inc. , 2009 U.S. Dist. LEXIS 71823 (M.D.

Fla. 2009).

28. In that case , the applicant was awarded and sought a

determination of fees incurred on appeal. The defendants

objected to almost half of the requested award complaining that

much of the time requested was for the same is sues that had been

fully briefed at the trial court level.

29. The magistrate judge agreed with the defendants and

reduced the requested fee by more than one - half, from $68,510.00

to $33,080.00. In doing so, she pointed out and aptly concluded:

Because m ost of the work had already been

done prior to the appeal, the total number of

hours expended by Pantas during the appeal

was excessive and unreasonable. See, e.g.,

Hoover v. Bank of Amer., Corp. , No. 8:02 - CV -

478 - T - 23TBM, 2006 U.S. Dist. LEXIS 59825,

2006 WL 2465398 (M.D. Fla. Aug. 24, 2006)

[*12](concluding that the total number of

hours sought by counsel for the appeal was

excessive " in light of the prior work done on

these same issues, " and reducing the total

hours billed by one - third); Wilson v. Dep ' t

of Children and Families , No. 3:02 - cv - 357 - J -

32TEM, 2007 U.S. Dist. LEXIS 26739, 2007 WL

1100469 (M.D. Fla. Apr. 11, 2007) (concluding

that the total number of hours sought by

counsel for the appeal was excessive " in

light of the prior work done on these sa me

issues, " and reducing the hours billed by

one - third); Action Sec. Serv., Inc., v. Amer.

Online, Inc. , No. 6:03 - cv - 1170 - Orl - 22DAB,

2007 U.S. Dist. LEXIS 4668, 2007 WL 191308

(M.D. Fla. Jan. 23, 2007) (concluding that

the hours claimed by counsel for the appeal

were excessive, and reducing the amount of

fees by more than half, from $37,889.50 to

$18,000.00) .

30. The undersigned likewise find s and conclude s that there

was a significant amount of billing for identical and similar

research, drafting , and ap peal preparation , which had already

been performed at the administrative proceeding level.

Consequently, the undersigned will make the appropriate reduction

to the amount(s) allowed.

Rule 4 - 1.5(b)(1)(B)

31. In determining whether a requested fee is reas onable,

one factor to be considered is " the likelihood that the

acceptance of the particular employment will preclude other

employment by the lawyer. "

32. There was no compelling evidence provided by Respondent

regarding this factor. Respondent ' s counsel did not provide any

tangible examples of particular employment which was rejected or

passed upon due to the ongoing representation of Respondent.

33. As a result, the undersigned finds that there was no

persuasive evidence presented regarding this criter ion whi ch

supports the fees requested.

Rule 4 - 1.5(b)(1)(C)

34. In determining whether a requested fee is reasonable,

another factor to be considered is " the fee, or rate of fee,

customarily charged in the locality for legal services of similar

nature. "

35 . In support of their fee claim, Respondent presented

Llaudy as their expert witness with regard to this criterion.

36. Llaudy provided a brief, but sufficient, opinion that

the rates charged by Respondent ' s law firm were reasonable and

reflected the hou rly rate customarily charged in the Miami area

at the relevant time. Tr. p. 168, Line 6 - 12.

37. Petitioner ' s expert, Klein, did not persuasively or

seriously dispute the reasonableness of the rates charged. The

undersigned find s th at the hourly rates we re reasonable and

within the range for prevailing rates in the Miami - Dade County

legal community.

Rule 4 - 1.5(b)(1)(D)

38. In determining whether a requested fee is reasonable, a

fourth factor to be considered is " the significance of, or amount

involved in , the subject matter of the representation, the

responsibility involved in the representation, and the results

obtained. "

39. The case on appeal was fairly straightforward. It

concerned whether " prevailing party " attorney ' s fees should have

been awarded.

40. The question for the Third DCA was: Did the

administrative law judge err when he refused to award the

Petitioner prevailing party fees after dismissing the underlying

administrative bid protest case?

41. The record demonstrates that the issue on ap peal was

not overwhelmingly complicated or intricate.

42. When evaluating this factor, the undersigned also

considered that Respondent achieved a good result and considered

whether Respondent ' s reasonable attorney ' s fees should include

work and services i t s counsel conducted in connection with a n

appel l ate motion filed pursuant to s ection 57.105, Florida

Statutes.

43. Petitioner argues that the time spent on the motion for

sanctions should be entirely discounted because Respondent was

" unsuccessful " on th is claim, citing Baratta , 928 So. 2d at 495

( " Attorneys ' fees should not usually be awarded for claims on

which the moving party was unsuccessful . " ) .

44. Although the undersigned do es not agree with this

argument by Petitioner, the undersigned find s that the time spent

on the motion for sanctions by Respondent ' s counsel was

excessive. As a result, time was adjusted accordingly.

45. More specifically, the motion sought sanctions and was

voluntarily withdrawn after it was filed, but before the merits

of th e motion was addressed by the Third DCA .

46. For several reasons, the undersigned finds that it is

proper to award fees for work performed on a motion despite the

fact that it was voluntarily withdrawn before it was adjudicated

on its merit.

47. First, u nder these circumstances, it was not proven

that Respondent was " unsuccessful " on this claim. 4/

48. Although the motion for sanctions was never heard on

the merits, it did result, indisputably, in Petitioner ' s prior

counsel withdrawing from the appellate proceedings.

49. As such, the undersigned cannot conclude that

Respondent was " unsuccessful " on this claim. Rather, it simply

withdrew a motion after gaining some success and some of the

relief it sought.

Rule 4 - 1.5(b)(1)(E)

50. In determining whether a requested fee is reasonable,

another factor to be considered is " the time limitations imposed

by the client or by the circumstances and, as between attorney

and client, any additional time demands or requests of the

attorney by the client. "

51. There was no persuasive evidence presented by

Respondent regarding this factor, and it does not materially bear

upon the award of reasonable attorney ' s fees in this case.

Rule 4 - 1.5(b)(1)(F)

52. In determining whether a requested fee is reasonable,

one factor to b e considered is " the nature and length of the

professional relationship with the client. "

53. There was some evidence presented by Respondent

regarding the nature of the professional relationship between the

attorneys and Respondent. This included a 10 - p ercent

professional discount provided to Respondent , which was taken

into account and already credited in the total $120,539.70

requested.

54. There was no compelling evidence regarding the length

of the relationship. Therefore, while this criterion was

considered when determining a reasonable fee, it did not have a

significant bearing on the fee being awarded.

Rule 4 - 1.5(b)(1)(G)

55. In determining whether a requested fee is reasonable,

one factor to be considered is the " experience, reputation,

diligen ce, and ability of the lawyer or lawyers performing the

service and the skill, expertise, or efficiency of the effort

reflected in the actual providing of such service. "

56. Llaudy and Klein both expressed some general knowledge

of the attorneys involved , and their reputation and levels of

expertise. There was also some limited testimony from Albert E.

Dotson , Jr., on this topic. All of this was taken into account

both with respect to the rates charged and the hours spent on the

case.

Rule 4 - 1.5(b)(1)(H)

57. In determining whether a requested fee is reasonable, a

final factor to be considered is " whether the fee is fixed or

contingent, and, if fixed as to amount or rate, whether the

client ' s ability to pay rested to any significant degree on the

outcome of the representation. "

58. In this matter, the hourly rates were fixed and the

amount of the fee did not rest on the outcome of the appeal.

Ultimate Findings and Conclusions

59. The undersigned find s that the rates charged by the

Bilzin Sumberg firm for the attorneys involved in the case were

reasonable.

60. However, the undersigned find s that the number of hours

expended by the Bilzin Sumberg firm on this matter exceeded the

number reasonably necessary to provide the services.

61. Based on the evidenc e presented and exercising the

discretion the undersigned is afforded in a hearing of this

nature, the undersigned find s that the reasonable hourly rates

and reasonable number of hours expended are as follows:

Attorney Reasonable Reasonable Lodestar amount

Hourly Rate Hou rs Expended

Albert E. $745.00 18.05 $13,447.25

Dotson, Jr.

Eileen Ball $690.00 28.50 $19,665.00

Mehta

Jose M. Ferrer $595.00 2.3 $1,368.50

Melissa $565.00 0.80 $452.00

Pallett - Vasquez

Eric Singer $495.00 38.9 $19,255.50

Leah Aaronsen $315.00 6.1 $1,921.50

Elise Hotlzman $292.50 72.5 $21,206.25

Maria Ossorio $295.00 7.9 $2,330.50

Jessica Kramer $290.00 6.8 $1,972.00

Maria Tucci $275.00 0.4 $110.00

TOTAL AWARDED $81,728.50

62. The undersigned h a s also considered the appropriateness

of any reduction or enhancement factors, including the withdrawal

of the section 57.105 m otion for s anctions.

DISPOSITION AND AWARD

Based on the forgoing Findings of Fact and Conclusions of

Law, it is hereby ORDERED that Respondent ' s reasonable attorney ' s

fees are determined to be $81,728.50 , with recoverable costs in

the amount of $461.35 for the total sum of $82,189.85

DONE AND ORDERED this 20th day of November , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

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 wit h the Clerk of the

Division of Administrative Hearings

this 20 th day of November , 2018 .

ENDNOTE S

1/ The undersigned has taken administrative notice of the docket

entries in Third DCA Case No. 3D17 - 0149.

2/ Neither part y's expert provided any meaningf ul testimony

involving a detailed, line - by - line analysis of the Bilzin Sumberg

time sheets. Specifically, neither party's expert went through,

reviewed, or discussed , for the undersigned's benefit ,

Respondent's combined attorney invoices admitted as Resp o ndent's

Ex hibits 3 through 17, nor did they sufficiently opine on

individual time entries. Instead, both provided generalized

comments and opinions about the overall quantity of time devoted

to different aspects of the case. Nonetheless, the undersigned

reviewed all exhibits and invoices, particularly Exhibit A of

Respondent's Exhibit 20.

3/ There are examples at Exhibits A - 1 thr o u gh A - 5 and B attached

to Petitioner's p roposed f inal o rder.

4/ Recently, the Fourth District Court of Appeal determined th at

a motion for attorney fees/sanctions is a "claim" as contemplated

by section 57.105. Mark W. Rickard, P.A. v. Nature's Sleep

Factory Direct, LLC , 2018 Fla. App. LEXIS 15520 (Fla. 4th DCA

2018) .

COPIES FURNISHED:

William W. Riley, Jr., Esquire

Pedro M. Villa, Esquire

Greenspoon Marder, LLP

600 Brickell Avenue, Suite 360

Miami, Florida 33131

(eServed)

Jose M. Ferrer, Esquire

Bilz i n, Sumberg, Baena,

Price & Axelrod, LLP

23rd Floor

1450 Brickell Avenue

Miami, Florida 33131

(eServed)

Desiree Fernand ez, Esquire

Bilz i n, Sumberg, Baena,

Price & Axelrod, LLP

23rd Floor

1450 Brickell Avenue

Miami, Florida 33131

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to sectio n 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 Hearing s 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 w here a party resides or

as otherwise provided by law.