19-005307F Manatee County School Board vs. Lincoln Memorial Academy, Inc. Status: Closed DOAH Final Order on Wednesday, May 12, 2021.

Summary: The First DCA issued an opinion affirming the DOAH Final Order in 19-4155, and awarding attorney?s fees and costs for the appeal. $28,425.00 is sought by Petitioner, is reasonable, and is hereby awarded, to be added to the previously-awarded fees.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ANATEE C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 19 - 5307F

L INCOLN M EMORIAL A CADEMY , I NC . ,

Respondent .

/

F INAL O RDER O N R EMAND

On April 30, 2020, Respondent , Lincoln Memorial Academy, Inc. ( Ñ LMA Ò ),

filed a Motion for Appellate Attorney Ô s Fees with the First D istrict Court

of Appeal ( Ñ First DCA Ò ) in Case No. 1D19 - 3859, the appeal from the

underlying charter school case concerning LMA, DOAH Case No. 19 - 4155. On

December 30, 2020, the First DCA issued its decision in the appeal brought

by LMA, denied Respondent Ô s Motion for Attorney Ô s Fees, granted

Petitioner Ô s Motion for Attorney Ô s Fees, and remanded the issues of at torney Ô s

fees and costs to the Division of Administrative Hearings ( Ñ DOAH Ò ). Lincoln

Mem Ô l Acad . , Inc. v. Manatee Cty . Sch . Bd . , 309 So. 3d 710 (Fla. 1st DCA

2020). This is the Final Order on Remand awarding additional attorney Ô s

fees.

A PPEARANCES

For Pet itioner: Erin G. Jackson, Esquire

Ashley Tinsley Gallagher , Esquire

Johnson Jackson PLLC

100 North Tampa Street, Suite 2310

Tampa, Florida 33602

For Respondent: Christopher Norwood, J.D.

Governance Institute for

School Accountability

14844 Breckness Place, Suite 100

Miami Lakes, Florida 33016

Tag Feld, Esquire

Law Office of Tag Feld, P.A.

Suite 101, No. 304

5265 University Parkway

University Park, Florida 34201

Roderick O. Ford, Esq uire

The Methodist Law Centre

400 N orth Ashley Drive , Suite 1900

Tampa, F lorida 33602

S TATEMENT O F T HE I SSUE

The issue for determination here is whether the additional attorney Ô s fees

sought by Petit ioner are reasonable.

P RELIMINARY S TATEMENT

On January 6, 2021, th e undersigned issued a Notice of Remand and

Order, confirming that the amount of $297,987.82, awarded pursuant to this

tribunal Ô s February 24, 2020, Final Order on Petitioner Ô s Motion for

A ttorney Ô s Fees and Costs, is due and owing. On February 1, 2021, Petitioner

filed a Memorandum of Law in Support of Petitioner Ô s Motion for Additional

Attorney Ô s Fees and Costs, along with counsels Ô declarations, affidavits, and

relevant time and billing r ecords.

As of the date of this Order, Respondent has filed no response, rebuttal, or

affidavit challenging the reasonableness of Petitioner Ô s request for additional

attorney Ô s fees. Further, Respondent has not requested a hearing concerning

the reasonable ness of the additional attorney Ô s fees.

F INDINGS O F F ACT

1. Through its submission of briefs and accompanying motions , Petitioner

has demonstrated that the attorney Ô s fees sought are reasonable based upon

the reasonable rate charged and the reasonable ho urs expended in this

matter.

2. The hours expended in this matter are reasonable given the time and

labor required, the novelty, complexity, and difficulty of the questions

involved, and the skills required to perform the legal service s properly .

3. Johnso n Jackson PLLC maintained detailed records of all services

rendered as evidence of the extensive time and effort dedicated to this

matter. These records demonstrate that Johnson Jackson PLLC attorneys

and staff dedicated 173 hours between January 22, 2020, and January 6,

2021 , to this matter.

4. Respondent made no effort to rebut the claim for additional attorney Ô s

fees and costs since the issuance of the Notice of Remand and Order by the

undersigned on January 6, 2021.

5. The rates charged by the two attor neys working on the appeal, Erin G.

Jackson, Esquire , and Ashley Tinsley Gallagher, Esquire, at $165.00 an hour ,

are most reasonable. In consideration of the market value and the factors set

forth in Rule Regulating The Florida Bar 4 - 1.5, Johnson Jackson P LLC

charged Petitioner $165.00 per hour for the two experienced attorneys who

handled the appeal , and $90.00 per hour for paralegals and law clerks. The

total amount claimed for the appellate fees is $28,425.00. Johnson Jackson

PLLC Ô s hourly rate is extrem ely reasonable given the experience and

expertise of its attorneys and staff, as evidenced by their curricula vitae ,

affidavits , and the agreement for fees between Petitioner and Johnson

Jackson PLLC . Further, the total amount of hours expended by counsel and

staff on the appeal is reasonable. According to the supporting documents

submitted by counsel for Petitioner, no additional costs are being claimed at

this time.

6. To provide an independent review of the reasonableness of Petitioner Ô s

legal fees, Ms. Jackson retained the expertise of A ttorney Katherine Earle

Yanes. Ms. Yanes has been practicing law for approximately 22 years and has

participated in the litigation of numerous civil and criminal appeals before

the Florida District Court s of Appeal and E leventh Circuit Court of Appeals.

Based on her expertise and a review of the filings in the appellate proceeding,

including but not limited to Respondent Ô s Motion to Relinquish Jurisdiction,

Respondent Ô s Initial Brief, Petitioner Ô s responses to both, and J ohnson

Jackson PLLC Ô s billing records, in conjunction with the eight factors set forth

in r ule 4 - 1.5, including but not limited to the novelty and difficulty of the

questions involved, M s. Yanes opined in an affidavit that the hours expended

in this matter by Johnson Jackson PLLC, totaling 173 hours, were

reasonable.

7. Ms. Yanes was also retained for the purpose of determining the

reasonableness of the hourly rates charged by Petitioner Ô s counsel for the

appeal. Based upon her experience and qualifications , Ms. Yanes generally

charges clients $450.00 per hour in her practice. In her declaration appended

to Petitioner Ô s m otion , and based upon the rate of fees customarily charged in

the legal locality and the experience and reputation of the attorneys

perform ing the service, Ms. Yanes opined that the hourly rates charged by

the Johnson Jackson PLLC attorneys ($165.00) and staff ($90.00) were

reasonable.

C ONCLUSIONS O F L AW

8 . DOAH has jurisdiction over the parties to this proceeding and the

subject matter of t his proceeding pursuant to sections 120.569, 120.57, and

1002.33(8), Florida Statutes (2020) .

9 . The administrative law judge has final authority to resolve this dispute

pursuant to section 1002.33(8)(b) and (c), which provides, in pertinent part,

that Ñ [t ]he administrative law judge shall award the prevailing party

reasonable attorney fees and costs incurred during the administrative

proceeding and any appeals. Ò § 1002.33(8)(b), Fla. Stat.

10 . As noted by Petitioner, an O rder awarding prevailing party atto rney Ô s

fees and costs in the above - styled case in the amount of $297,987.82 was

entered on February 24, 2020. The Order being issued here is to supplement

the February 24 , 2020, Order and is for fees associated with the appeal by

Respondent of the Final Or der in C ase No. 19 - 4155, which resulted in an

affirmance of that Final Order and an award of attorney Ô s fees for the appeal,

to be determined by the undersigned.

11. The Florida Supreme Court has accepted the l odestar approach as a

suitable foundation for an objective structure in setting reasonable attorney Ô s

fees. Fla. Patient Ô s Comp. Fund v. Rowe , 472 So. 2d 1145, 1150 (Fla. 1985).

The l odestar approach requires the court to: (1) determine the number of

hours reasonably expended on the litigation; (2) de termine a reasonable

hourly rate for the services of the prevailing party Ô s attorney; and (3) once

determined, multiply the reasonable hourly rate by the reasonable number of

hours expended. Id. at 1150 - 51.

12. The eight factors set forth in T he Florida Ba r Code of Professional

Responsibility ( See Standard Guar. In s . Co. v. Quanstrom , 555 So. 2d 828,

830 (Fla. 1990)) are set forth in r ule 4 - 1.5 (b)(1) and include:

(A) t he time and labor required, the novelty,

complexity, and difficulty of the questions invol ved,

and the skills requisite to perform the legal service

properly;

(B) t he likelihood that the acceptance of the

particular employment will preclude other

employment by the lawyer;

(C) t he fee, or rate of fee, customarily charged in

the locality for l egal services of a comparable or

similar nature;

(D) t he significance of, or amount involved in, the

subject matter of the representation, the

responsibility involved in the representation, and

the results obtained;

(E) t he time limitations imposed by t he client or by

the circumstances and, as between attorney and

client, any additional or special time demands or

requests of the attorney by the client;

(F) t he nature and length of the professional

relationship with the client;

(G) t he experience, rep utation, diligence, and

ability of the lawyer or lawyers performing the

service and the skills, expertise, or efficiency of

effort reflected in the actual providing of such

services; and

(H) w hether the fee is fixed or contingent, and, if

fixed as to amo unt or rate, then whether the

client Ô s ability to pay rested to any significant

degree on the outcome of the representation.

13 . As set forth above, based upon the skill and experience of counsel for

Petitioner in this matter; the expert opinion of Ms. Ya nes, an experienced

attorney practicing in the locale of counsel for Petitioner; and the application

of the eight l odestar factors, the total amount of fees sought by counsel for

Petitioner are hereby approved in full.

O RDER

Based on the foregoing Findin gs of Fact and Conclusions of Law, it is

O RDERED that the total fee amount of $28,425.00 for the appeal is based upon

reasonable hours expended and a reasonable hourly rate and, therefore, is

awarded in full. This amount shall be added to the previously de termined

amount of attorney Ô s fees and costs of $297,987.82, for a total amount of

attorney Ô s fees and costs that is now due and owing from Respondent to

Petitioner in the amount of $326,412.82.

The undersigned will retain jurisdiction to award any additio nal fees and

costs incurred by Petitioner pursuant to the filing of its Motion for Appellate

Attorney Ô s Fees, as well as the previous Motion for Attorney Ô s Fees and Costs

in the underlying matter , DOAH Case No. 19 - 4155.

D ONE A ND O RDERED this 12th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of May , 2021 .

C OPIES F URNISHED :

Terry Joseph Harmon, Esquire Erin G. Jackson, Esquire

Sniffen & Spellman, P.A. Ashley Tinsley Gallagher , Esquire

123 North Monroe Street Johnson Jackson PLLC

Tallahassee, Florida 32301 100 North Tampa Street , Suite 2310

Tampa, Florida 33602

Christopher Norwood, J.D.

Governance Institute for Roderick O. Ford, Esq uire

School Accountabilit y The Methodi st Law Centre

14844 Breckness Place , Suite 100 400 N orth Ashley Drive , Suite 1900

Miami Lakes, Florida 33016 Tampa, F lorida 33602

Tag Feld Matthew Mears, General Counsel

Law Office of Tag Feld, P.A. Department of Education

Suite 101, No. 304 Turlington Building, Suite 1244

5265 University Parkway 325 West Gaines Street

University Park, Florida 34201 Tallahassee, Florida 32399 - 0400

Richard Corcoran, Commissioner Cynthia Saunders, Superintendent

of Education Manate e County School Board

Department of Education 215 Manatee Avenue West

Turling ton Building, Suite 1514 Bradenton, Florida 34205 - 9069

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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

review pursuant to section 120.68, Florida Statutes. Review proc eedings 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 orde r to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise prov ided by law.