17-001594F Gaylord A. Wood, Jr. vs. R.C. &Quot;Ricky&Quot; Lussy Status: Closed Recommended Order on Friday, July 21, 2017.

Summary: Election Commission dismissed complaint against Property Appraiser's lawyer. Complainant acted with malice and reckless disregard for the truth. Fees awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAYLORD A. WOOD, JR.,

Petitioner,

vs. Case No. 17 - 1594F

R.C. "RICK" LUSSY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. New ton, II, of the

Division of Administrative Hearings ( Division ) conducted the

final hearing in this matter on May 12, 2017, by video

teleconference at locations in Ft. Myers, Ft. Lauderdale, and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Joh n Chri stopher Woolsey, Esquire

Wood and Stuart, P.A.

Post O ffice Box 1987

Bunnell, Florida 32110

For Respondent: R ichard C harles Lussy , pro se

General Manager as Owner

2840 S hore View Drive, Suite 2

Naples, Florida 34112

STATEMENT OF THE ISSUE

(A) Is the Petitioner, Gaylord A. Wood, Jr., entitled to

an award of fees and costs from Respondent, R.C. "Rick" Lussy,

under section 106. 265(6), Florida Statutes (20 16) , 1/ for filing a

complaint against Mr. Wood "with knowledge that the complaint

contains one or more false allegations or with reckless

disregard for whether the complaint contains false allegations

of fact material to a violation of this chapter [chapte r 106] or

chapter 104 ? "

(B) If Mr. Wood is entitled to an award of fees and costs,

what is the proper amount of fees and costs to be awarded?

PRELIMINARY STATEMENT

Mr. Lussy filed a ÐConfidential Complaint Affidavit FormÑ

(Complaint Affidavit) against M r. Wood with the Florida

Elections Commission (Commission). By letter dated October 19,

2016, the C ommission advised Mr. Lussy that his Complaint

Affidavit was legally insufficient. The Commission provided

Mr. Lussy an opportunity to submit additional i nformation. He

filed an amended Complaint Aff idavit. By a November 15, 2016

letter , the Commission advised Mr. Lussy that his amended

Complaint Affidavit was legally insufficient.

Mr. Wood petitioned for award of attorneyÓs fees and costs.

He amended the petition. The Commission issued an order finding

that Mr. WoodÓs amended petition made a prima facie showing of

entitlement to costs and attorneyÓs fees. On March 16, 2016,

the Commission referred the matter to the Division to conduct a

final hea ring .

The undersigned held the hearing on May 12, 2017. Mr. Wood

presented his testimony and testimony from J. Christopher

Woolsey and Mark Herron. Mr. Wood Ós E xhibits C, F, G, and I

were admitted into evidence. Mr. Lussy presented his testimony

and t estimony of Gary Michael Siciliano. Mr. Lussy Ós Exhibits 4

through 6 and 26 were admitted into evidence. The parties

timely filed proposed recommended orders, which have been

considered.

Mr. Lussy was unable to present testimony from

Douglas Sinclair and David J. Glantz because they did not

appear. The record does not indicate that they were lawfully

served with a subpoena. Mr. Lussy did not request any relief

for their non - appearance. Mr. Lussy placed a summary of their

expected testimony on the record . The testimony would not have

been relevant in this proceeding.

FINDING S OF FACT

1 . On August 24, 2016, Mr. Lussy filed a Complaint

Affidavit against Mr. Wood with the Commission. Mr. LussyÓs

Complaint Affidavit identified the person against whom the

c omplaint was brought as ÐGaylord A. Wood Jr. Esq., Florida

[sic] FBN 089465, lawyer for Abraham Skinner Incumbent. Ñ The

seven - page affidavit does not allege that Mr. Wood is an elected

official or that he has been a candidate for elected office.

2. Mr. W ood is not an elected official. Mr. Wood has

never run for elected office. He represented Abraham Skinner in

Florida Elections Commission Case No. 16 - 245. The case arose

out of a complaint by Mr. Lussy. Mr. Skinner was the elected

property appraiser fo r Collier County. Mr. Wood was successful

in that representation. The Commission dismissed Mr. LussyÓs

complaint.

3. Mr. Lussy is a property appraiser. He was going to be

an expert witness for the plaintiff in a case where Mr. Wood

represented the el ected Property Appraiser for Collier County.

Mr. Wood deposed Mr. Lussy. Shortly after the depositi o n,

Mr. LussyÓs client dismissed his lawsuit. Mr. Wood also filed a

complaint against Mr. Lus sy with the Appraisal Institute ,

questioning Mr. LussyÓs fit ness to provide property appraisals.

4. Because of these experiences , Mr. Luss y holds ill will

for Mr. Wood. He acted with malice in filing his complaint.

This invective and vitriol of statements in the Complaint

Affidavit manifest malice . The statem ents include referring to

Ðempty boastingÑ by Mr. Wood, stating that Mr. Wood is a Ðcartel

representative lawyer,Ñ accusing Mr. Wood of manipulation and

falsification of public records, describing a response to a

public records request as malicious , descri bing Mr. Wood as Ða

classic corrupt persuader , Ñ charging Mr. Wood with obstruction

of justice , and asserting Mr. Wood participated in criminal

acts. Mr. Lussy augments these claims with attacks against

Mr. WoodÓs client accusing him of Ðwomanizing,Ñ sexu al

harassment, boring public officials, wrongly denying portability

of a homestead exemption, and by referring to him as ÐDishonest

Abe.Ñ

5 . When Mr. Lussy filed the complaint against Mr. Wood, he

knew that Mr. Wood was not an elected official or candidat e for

elected office.

6 . The letter from the CommissionÓs Executive Director

advising Mr. Lussy that his amended Complaint Affidavit was

legally insufficient accurately describes i t. The letter

states: ÐWhile almost impossible to discern, the essential

allegation of this complaint, as amended , appears to be that

Respondent conspired with Property Appraiser Abraham Skinner to

manipulate and falsify public records and obstruct justice.Ñ

7. Mr. Lussy offered no evidence tending to prove the

allegation s des cribed .

8. Mr. LussyÓs Complaint A ffidavit refers to sections

104.051, 104.011, and 104.091 , Florida Statutes .

9 . Section 104.051 imposes penalties upon any official who

violates the election code, performs his or her duty

fraudulently or corruptly, o r attempts to influence or interfere

with an elector voting a ballot.

10 . Section 104.011 prohibits providing false information

in connection with voting or voter registration.

11 . Section 104.091 makes knowingly aiding , abetting , or

advising violation o f the election code an offense.

12 . In this proceeding, Mr. Lussy offered no evidence

indicating that he had reason to believe that Mr. Wood was an

elected official or a candidate for elected office. His

Complaint Affidavit demonstrates that he knew Mr. Wood served as

a lawyer for Mr. Skinner.

13 . Mr. Wood is not an Ðof ficialÑ as the word is used in

c hapter 104.

14 . Mr. Lussy offered no evidence to support the

allegations of his Complaint Affidavit. He offered no evidence

that Mr. Wood violated section s 104.051, 104.011, or 104.091.

Mr. Lussy offered no evidence that would support a finding that

he could reasonably think that Mr. Wood violated the

prohibitions of those statutes. Mr. Lussy offered only his bare

and assertions. Most deal with complaint s about property

appraisals by Mr. Skinner, responses to requests for documents

under FloridaÓs Public Records Act, and Mr. SkinnerÓs

maintenance of the property tax rolls.

1 5 . Mr. Lussy filed his Complaint Affidavit with reckless

disregard for whether t he complaint contained false allegations

of fact. He also filed it with reckless disregard to the

absence of allegations of violations of the election code by

Mr. Wood. Mr. Lussy acted with ill will or malice.

1 6 . The statement of attorney time spent o n Mr. WoodÓs

behalf reasonably reports time spent on routine activities such

as revie wing orders and drafting motions. The time spent

preparing for the hearing is also reasonable. The bulk of

Mr. LussyÓs filings in this proceeding and before the Commiss ion

were lengthy, difficult to read, confusing, and disorganized.

This made reading and eval uating Mr. LussyÓs filings time -

consuming. The nature of Mr. LussyÓs filings and the multiple

filings related to Mr. LussyÓs misuse of subpoena authority made

thi s proceeding more time consuming than it otherwise would have

been.

1 7 . With the exception of the entries discussed below, the

time recorded as expended on the tasks and activities is

reasonable. The unrebutted testimony of Mark Herron, Esquire,

accepted as an expert in attorneysÓ fees in administrative

proceedings, establishes the reasonableness of the fees claimed.

March 16 - .125 Î File Amended Petition to Award Fees and

Costs (time should be attributed to representation before the

Commission not the D ivis i on )

March 23 - .5 (reduce to .3) Î Read Initial Order

March 27 Î 3.5 (reduce to 1.0) Î Read/Dissect RespondentÓs

Public filing

March 27 Î 4.0 (reduce to 1.5) Î Read/Dissect Counterclaim

April 3 Î 6.5 (reduce to 2.0) Î Read/Dissect Lussy

Emergency Answ er to Scheduling Order

1 8 . Mr. Herron testified that the .5 hours spent on

April 24 to draft and file the witness and exhibit list should

be increased to 1.0 hours. The proposal is not accepted.

First, the witness and exhibit list was elementary and sh ould

have been simple to prepare, as apparently it was. Second, the

statute provides for award of fees incurred. The proposed

increase of .5 hours does not represent a fee incurred.

1 9 . The hearing in this matter lasted four hours. The

time was not inc luded in the itemized statement filed before the

hearing for obvious reasons. The time was, however, spent and

is a reasonable amount of time for the hearing. Four hours are

added to the time used to calculate attorneyÓs fees.

20. Mr. Wood seeks payment for nine hours of Mr. WoolseyÓs

time identified as Ðdrive time.Ñ FloridaÓs Statewide Uniform

Guidelines for Taxation of Costs in Civil A ctions, III(D)1 ,

identifies attorney travel time as a litigation cost that should

not be recovered. The nine hours ar e not included in the hours

for which attorneyÓs fees are awarded.

2 1 . Mr. Lussy offered no evidence about what would be a

reasonable number of hours for an attorney to work to represent

Mr. Wood in the proceeding before the Commission or the

proceeding a t the Division. He also offered no evidence about

what a reasonable hourly rate for an attorney would be.

2 2 . The reasonable hourly rate in this jurisdiction for

proceedings before administrative agencies and the Division

ranges between $250.00 to $400 .00 per hour, depending on the

lawyerÓs degree of expertise. Mr. Woolsey is an experienced

lawyer. However, he has no litigation or administrative law

expertise. Handling this case also did not interfere with

Mr. Wool s eyÓs ability to attract or retain other clients. The

rep resentation was not unduly time - consuming or difficult.

Mr. WoolseyÓs normal hourly rate for public officials is $200.00

per ho ur. His normal hourly rate for private clients is

$350.00. Awarding fees based on a rate of $250.00 pe r hour is

reasonable in this matter.

2 3 . The reasonable time spent on proceedings before the

Commission is 8 .025 hours. The reasonable time spent on

proceedings before the Division is 35.425 hours . The total time

reasonably spent for representation of Mr. Wood in this

proceeding is 43.45 hours. The total number of hours do not

reconcile with the totals shown in PetitionerÓs Amended Itemized

Statement of Costs and Reasonable AttorneyÓs Fees because the

itemized statement contains mathematical errors.

2 4 . Mr. WoodÓs P roposed R ecommended O rder seeks payment of

costs in this matter. He, however, did not offer evidence of

costs at the hearing. He only provided information about costs

in a post - hearing statement filed June 16, 2017.

25. The amount of re asonable attorneyÓs fees for

Mr. Woo lsey Ó s representation of Mr. Woo d in this proceeding is

$10,862.50.

CONCLUSIONS OF LAW

Jurisdiction

2 6 . The Division has jurisdiction over the parties to and

the subject matter of this matter. §§ 120.569, 120.57(1), a nd

120.595, Fla. Stat. ; Fla. Admin. Code R. 2B - 1.0045 .

Basis for Recovery of Fees

2 7 . Mr. Wood proceeds under s ection 106.265(6) . It

provides for recovery of attorneyÓs fees and costs as follows:

I n any case in which the commission

determines that a pe rson has filed a

complaint against another person with a

malicious intent to injur e the repu t ation of

the person complained against by filing the

complaint with knowledge that the complaint

contains one or more false allegations or

with reckless disregard for whether the

complaint contains false allegations of fact

material to a violation of this chapter or

chapter 104, the complainant shall be liable

for costs and reasonable attorneyÓs fees

incurred in the defense of the person

complained against , includin g the costs and

reasonable attorneyÓs fees incurred in

proving entitlement to and the amount of

costs and fees.

2 8 . The First District Court of Appeal interpreted the

identical language of section 112.317, Florida Statutes, in

Brown v. Comm is sion on Ethics , 969 So. 2d 553 (Fla. 1st DCA

2007) . The opinion holds that the person seeking fees does not

have to prove actual malice motivated the complainant .

29 . As described in the Findings of Fact, Mr. Lussy filed

his Complaint Affidavit against Mr. Wood with reckless disregard

for whether the complaint contained false allegations of

material fact. Ill will or malice motivated him. The

requirements of section 106.265(6) are met.

Principles Governing Fee Awards

30 . Florida Patient's Compensation Fund v. Rowe , 472 So.

2d 1145 (Fla. 1985), as modified by Standard Guaranty Insurance

Company v. Quanstrom , 555 So. 2d 828 (Fla. 1990), requires using

a lodestar approach and considering the eight factors

articulated in Rule 4 - 1.5(a), Florida Rules of Professional

Cond uct. Sunshine State Ins . Co . v. Davide , 117 So. 3d 1142,

1144 (Fla. 3d DCA 2013).

31 . The party seeking fees m ust prove that the fees

claimed are reasonable. See City of Miami v. Harris , 490 So. 2d

69 (Fla. 3d DCA 1985). The evidence must be suffic ient to show

what services were performed. See Warner v. Warner , 692 So. 2d

266, 268 (Fla. 5th DCA 1997); Tucker v. Tucker , 513 So. 2d 733,

735 (Fla. 2d DCA 1987). Useful evidence includes invoices,

records, testimony, and other information detailing ser vices

provided. Braswell v . Braswell , 4 So. 3d 4, 5 (Fla. 2d DCA

2009).

32 . Records should permit a judge to feasibly and

expeditiously engage in review. They must provide sufficient

detail to permit appraisal of their reasonableness. ECOS,

Inc . v. Brinegar , 671 F. Supp. 381, 394 (M.D.N.C. 1987); Accord

Smith v. Smith , 764 So. 2d 650, 651 (Fla. 1st DCA 2000); Cf.

N.D. Fla. Loc. R. 54.1(c)(ÐA detailed record must provide enough

information to allow the Court to evaluate reasonableness; an

entry like Ò researchÓ or ÒconferenceÓ without a description of

the subject will not do.Ñ) .

33 . PetitionerÓs Amended Itemized Statement of Costs and

Reasonable AttorneysÓ Fees (Pet. Ex. I) records descriptions of

the activities performed and the time spent on each a ctivity.

The statement provides sufficient detail to allow evaluation of

the reasonableness of the activities and the time spent

performing them.

34 . Application of the standards articulated by Florida

Patient's Compensation Fund v. Rowe and expressed in Rule 4 -

1.5(a), Florida Rules of Professional Conduct , to the findings

results in the conclusion that Mr. Woolsey reasonably spent

43.45 hours representing Mr. Wood before the Commission and the

Division. Consideration of the factors and the findings re sults

in a conclusion that $ 2 50.00 per hour is a reasonable rate for

Mr. WoolseyÓs legal services. Mr. Wood incurred reasonable

attorneyÓs fees of $10,862.50 defending against Mr. LussyÓs

Complaint Affidavit to the Commission.

3 5 . On June 16, 2017, Mr. W ood filed PetitionerÓs

Statement of Post - Hearing Costs and Reasonable AttorneysÓ Fees.

This is more than a month after the hearing adjourned.

Consequently , there is no testimony to support a finding that

the activities were performed, that the time spent on the

activities was reasonable, that the costs were incurred, or that

the documents evincing the costs satisfy the requirements of the

Florida Evidence Code. In addition, Mr. Lussy has not had an

opportunity to present evidence contesting the reasonabl eness of

the additional fees and costs or to cross - examine any witness

testifying to support them. Consequently, the record does not

prove that the 11 hours or costs claimed in the post - hearing

statement are reasonable.

RECOMMENDATION

Based upon the for egoing Findings of Fact and Conclusions

of Law, it is recommended that the Florida Elections Commission

enter an Order awarding Petitioner Gaylord A. Wood, Jr.,

attorneyÓs fees in the amount of $10,862.50 against Respondent,

R.C. ÐRickÑ Lussy.

DONE AND E NTERED this 21st day of July , 2017 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 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 21st day of July , 2017 .

ENDNOTE

1 / All references to the Florida Statutes are to the 2016

codification unl ess otherwise noted.

COPIES FURNISHED:

John Christopher Woolsey, Esquire

Wood and Stuart, P.A.

Post Office Box 1987

Bunnell, Florida 32110

(eServed)

Richard Charles Lussy, General Manager as Owner

Richard Lussy & Associates

2840 Shoreview Drive

Naple s, Florida 34112

(eServed)

Amy McKeever Toman, Esquire

Florida Elections Commission

The Collins Building , Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

Donna Malphurs, Agency Clerk

F lorida E lections C ommission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.