19-000426FE George Hanns vs. Dennis Mcdonald Status: Closed Recommended Order on Friday, June 7, 2019.

Summary: Petitioner established reasonable attorneys' fees and costs in the amount of $11,149.17 in connection with defending the appeal of the underlying ethics challenge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE HANNS,

Petitioner,

vs. Case No. 19 - 0426FE

DENNIS MCDONALD,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly noticed final hearing was held in this ma tter on

April 12, 2019, at the Division of Administrative Hearings in

Tallahassee, Florida, before Administrative Law Judge Suzanne

Van Wyk.

APPEARANCES

For Petitioner: Albert T. Gimbel, Esquire

Mark Herron, Esquire

Summer Denay Brown, Esquir e

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308 - 0572

For Respondent: no appearance

STATEMENT OF THE ISSUE

The amount of reasonable attorneysÓ fees to be awarded to

Petitioner, George Hanns, for defending the appeal filed by

Respondent, Dennis McDonald, in the Florida First District Court

of Appeal (ÐDistrict CourtÑ) . By Order dated November 19, 2018,

in Case No. 1D18 - 0205, the First District Court of Appeal

determined that Petitioner was entitled to such fees.

PRELIMINARY STATEMENT

On October 15, 2018, Petitioner filed a Motion for

AttorneysÓ Fees with the District Court in Case No. 1D18 - 0205.

That appeal stemmed from Division of Administrative Hearings

(Ðthe DivisionÑ) Case No. 16 - 5248FE, which involved both

Petitioner and Respondent herein , and was heard by the Division

on May 16, 2017. By Order dated November 19, 2018, the First

District Court of Appeal granted PetitionerÓs motion for

attorneysÓ fees and remanded the case to the Florida Commission

on Ethics (Ðthe CommissionÑ) for a determination of the amount

of such fees. On January 23, 2019, the Commission referred this

matter to the Division requesting assignment of an

Administrative Law Judge to conduct a final hearing on the

amount of fees to be awarded.

The Division issued its Initial Order on January 23, 2019,

and issued an Amended Initial Order on January 25, 2019, to

serve Respondent by certified mail, return receipt requested.

Petitioner timely responded to the Amended Initial Order and

s ubsequently timely filed a Witness and Exhibit List a s directed

in the Order of Pre - h earing Instructions. The undersigned

issued a Notice of Hearing scheduling the final hearing in

Tallahassee, Florida, on Friday, April 12, 2019.

The Division delivered al l preliminary orders in this case

to Respondent at the address provided in correspondence from

Respondent to PetitionerÓs counsel dated January 14, 2019, as

the best evidence of RespondentÓs address. Respondent did not

respond to the Amended Initial Order , or any other notice or

order entered in this case. All Division correspondence to

Respondent was returned by the p ost office as unclaimed.

The final hearing commenced as scheduled. Petitioner

presented the testimony of its counsel, Mark Herron; Alber t J.

Hadeed, Flagler County Attorney 1/ ; and Michael P. Donaldson,

accepted as an expert in attorneysÓ fees. Petitioner offered

Exhibits P1 through P7, which were admitted into evidence.

Respondent did not appear at the final hearing.

The one - volume Tra nscript of the hearing was filed with

the Division on May 9, 2019. Petitioner timely filed a

Proposed Recommended Order, which has been taken into

consideration in preparing this Recommended Order.

FINDING S OF FACT

1. Mark Herron is an experienced lawyer practicing with

the firm of Messer Caparello, P . A . (ÐMesser FirmÑ). Mr. Herron

has been a member of the Florida Bar since 1975. His practice

focuses almost exclusively on ethics and elections - related

matters, and he is widely recognized as an expert in ethics and

election matters.

2. Mr. Herron was retained to represent Flagler County

(Ðthe CountyÑ) in an ethics complaint filed by Respondent

against Petitioner, in which Petitioner prevailed. Respondent

appealed the CommissionÓs Final Order in favor of Petitioner to

the District Court. After dismissing RespondentÓs appeal, the

District Court granted PetitionerÓs Motion for AttorneysÓ Fees

and remanded the case to the Commission for a determination of

the amount of fees and costs owed.

3. The County en tered into an arrangement with the Messer

Firm whereby it agreed to compensate the Messer Firm at the

CountyÓs liability insurance carrierÓs rate of $180 per hour,

and Ðmake up the differenceÑ between the $180 per hour rate and

a Ðreasonable hourly rateÑ f rom its budget.

4. The Messer Firm has a longstanding relationship with

the County, having represented Petitioner in the underlying

ethics complaint filed in August 2015, and other County

officials in a series of complaints filed in 2014 and 2015.

5. Ex pert testimony adduced at the hearing indicated that

the rate of $180 per hour paid by the CountyÓs liability

insurance carrier to the Messer Firm is an unreasonably low

hourly rate.

6. Petitioner introduced the testimony of Michael

Donaldson, an attorney accepted as an expert in attorneysÓ fees.

Mr. Donaldson testified, credibly, that a reasonable hourly rate

in the geographic area for the type of ethics challenge involved

would range from $250 to $475 per hour.

7. The hourly rate of $350 per hour is a reasonable rate

to compensate the Messer Firm for its defense of the appeal.

8. The Messer Firm kept detailed records of the amount of

time spent by its members working in defense of the appeal. The

firm spent a total of 27.75 hours of attorney time d efending the

appeal through March 31, 2019.

9. The total number of attorney hours expended by the

Messer Firm in conjunction with this appeal was reasonable.

10. The Messer Firm incurred total costs of $6.67 in

defense of the appeal through March 31, 2 019. The costs were for

postage and are reasonable.

11. The County AttorneyÓs office kept detailed timesheets

and other records of the time spent working in defense of the

appeal.

12. The County Attorney Ós Office spent a total of

7.15 hours of atto rney time assisting in the defense of the

appeal. 2/ The total attorney hours the County AttorneyÓs Office

spent working in defense of the appeal is reasonable.

13. The rate of $200 per hour is a reasonable rate to

compensate the CountyÓs Assistant Coun ty Attorney for his time

billed in defense of the appeal.

14. Based on the findings herein, Petitioner has

established that he incurred: (i) reasonable costs in the

amount of $6.67 and reasonable attorneysÓ fees in the amount of

$9,712.50 for the servic es of the Messer Firm in defending the

appeal; and (ii) reasonable attorneysÓ fees in the amount of

$1,430.00 for the services of the County AttorneyÓs Office in

defending this appeal.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jur isdiction over the parties to and the subject matter of this

proceeding. See §§ 120.569 and 120.57(1), Florida Statutes.

16. Petitioner has the burden to prove the reasonableness

of the attorneysÓ fees and costs sought by a preponderance of

the evidence. See § 120.57(1)(j), Fla. Stat.

17. In determining the reasonableness of attorneysÓ fees,

Florida has adopted the federal ÐlodestarÑ approach. See Fla.

PatientÓs Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla.

1985). Among the factors to be considered under the lodestar

approach are (1) the skill requisite to perform the legal

service; (2) the customary fee or rate charged in the locality

for comparable legal services; (3) the nature and length of the

professional relationship with the client; and (4) the

experience, reputation, diligence, and ability of the lawyers

performing the service. See Rowe , 472 So. 2d at 1151; R.

Regulating Fla. Bar 4 - 1.5.

18. In the case at hand, Petitioner retained Mr. Herron,

who is widely recognized as an expert in ethics and elections

challenges and practices almost exclusively in those matters.

Mr. Herron has the skill, knowledge, and abilities to perform

the legal services required of the County and Petitioner in the

underlying appeal. Mr. Herron and the Messer Firm h ave a

longstanding professional relationship with the County and have

represented Petitioner and other County officials in ethics

challenges dating back to 2014. Finally, the preponderance of

the evidence demonstrated that $180 per hour is not reasonable

for the subject legal market and the type of matter handled.

The expert testimony revealed that $350 was reasonable for the

type of legal matter in the subject legal market.

19. Petitioner has met the burden of proof .

20. Petitioner is entitled to a tot al award of $9,719.17

in costs and attorneysÓ fees in connection with legal services

provided by the Messer Firm in the appeal.

21. Petitioner is also entitled to a total award of

$1,430.00 in attorneysÓ fees in connection with legal services

provided by the Flagler County AttorneyÓs Office in the appeal.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law , it is RECOMMENDED that the Commission on Ethics enter a

final order awarding Petitioner, George Hanns, a total of

$11,149. 17 for costs and attorneysÓ fees incurred in Complaint

No. 15 - 174.

DONE AND ENTERED this 7th day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative H earings

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 7th day of June , 2019 .

ENDNOTE S

1/ M r. Hadeed testified by telephone pursuant to the

undersignedÓs Order Allowing Testimony by Telephone entered on

April 8, 2019.

2/ Both the County Attorney and Assistant County Attorney

expended time in conjunction with the appeal, but Petitioner is

only seeking fees for the hours expended by the Assistant County

Attorney, Sean Moylan. Petitioner has waived recovery of all

time expended by Mr. Hadeed.

COPIES FURNISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 1 5709

Tallahassee, Florida 32317 - 5709

(eServed)

Albert T. Gimbel, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32308

(eServed)

Mark Herron, Esquire

Messer, Caparello, P.A.

2618 Centennial Place

Post Off ice Box 15579

Tallahassee, Florida 32317

(eServed)

Dennis McDonald

Post Office Box 1232

Flagler Beach, Florida 32136

Summer Denay Brown, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Virlindia Doss, Execut ive Director

Florida Commission on Ethics

Post Office Drawer 157 09

Tallahassee, Florida 32317 - 5709

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Advocates for the Commission

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

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.