20-003911F The School Board Of Brevard County, Florida vs. Legacy Academy Charter, Inc. Status: Closed DOAH Final Order on Friday, December 4, 2020.

Summary: As the prevailing party in DOAH Case No. 19-6424, Petitioner is entitled to reasonable attorneys' fees of $271,162.00, and taxable costs of $40,985.80, and Respondent is ordered to pay these amounts.

P RELIMINARY S TATEMENT

On May 18 through 22, and 26, 2020, the undersigned conducted a duly -

noticed hearing u tilizing the Zoom web - conference platform, to determine

whether Respondent , Legacy Academy Charter , Inc.’s (Legacy) , school charter

for the Legacy Academy Charter School should be terminated for the reasons

set forth in the School Board’s November 20, 2019 , 90 - Day Notice of Proposed

Termination of Charter, pursuant to section 1002.33(8)(b), Florida Statutes

(2019). Section 1002.33(8)(a) and (b) provides:

(8) CAUSES FOR NONRENEWAL OR

TERMINATION OF CHARTER . —

(a) The sponsor shall make student academic

achi evement for all students the most important

factor when determining whether to renew or

terminate the charter. The sponsor may also choose not to renew or may terminate the charter if the

sponsor finds that one of the grounds set forth

below exists by clea r and convincing evidence:

1. Failure to participate in the state’s education accountability system created in s. 1008.31, as

required in this section, or failure to meet the

requirements for student performance stated in the charter.

2. Failure to meet generally accepted standards of

fiscal management.

3. Material violation of law.

4. Other good cause shown.

(b) At least 90 days before renewing, nonrenewing, or terminating a charter, the sponsor shall notify the governing board of the school of the pr oposed

action in writing. The notice shall state in reasonable detail the grounds for the proposed

action and stipulate that the school’s governing board may, within 14 calendar days after receiving

the notice, request a hearing. The hearing shall be

condu cted by an administrative law judge assigned

by the Division of Administrative Hearings. The

hearing shall be conducted within 90 days after

receipt of the request for a hearing and in accordance with chapter 120. The administrative law judge’s final order shall be submitted to the

sponsor. The administrative law judge shall award the prevailing party reasonable attorney fees and costs incurred during the administrative proceeding and any appeals. The charter school’s governing board may, within 30 calendar days after

receiving the final order, appeal the decision pursuant to s. 120.68.

The undersigned entered a Final Order in the underlying matter on

August 18, 2020. The Final Order held that the School Board established, by

clear and convincing evidence, the following grounds for termination of

Legacy’s school charter: (1) Legacy failed to meet academic achievement and

requirements of student performance under sections 1002.33(2),

1002.33(7)(a)4., 1002.33(8)(a)1., and sections (2) and 9(C) of the First Ame nded Charter School Agreement between the School Board and Legacy

(Amended Charter); (2) Legacy failed to comply with all applicable laws,

ordinances, and codes of federal, state, and local governance, as found in

section 1002.33(2), 1003.571(1)(a), and 10 02.33(16) (a)3., Florida

Administrative Code R ules 6A - 6.030191(4)(d) and 6A - 6.030191(7), and

section 3(J) of the Amended Charter; (3) Legacy failed to meet generally accepted standards of fiscal management and/or willfully or recklessly failed to manage pub lic funds in accordance with the law and promote enhanced

academic success and financial efficiency by aligning responsibility with accountability, as set forth in sections 218.503, 1002.33(9), 1002.33(7)(a)9.,

1002.33(2)(a), and 1002.345(1)(a)3., Florida S tatutes, rule 6A - 1.0081 , and

sections 4(H), 4(G)(3)(a), and 9(A) of the Amended Charter; and (4) Legacy

failed to comply with the law and/or cure material breaches of terms or

conditions of the Amended Charter after receiving the School District’s

written notices of noncompliance, and that Legacy failed to promote

enhanced success and financial efficiency by aligning responsibility with

accountability as set forth in chapter 1012, sections 286.011, 1002.33(2),

1002.33(7), 1002.33(9)(c), 1002.33(12)(f), 100 2.33(16)(b)1., Florida Statutes,

and sections 1(D)(1)(d)(i), 10(C), and 12(F) of the Amended Charter.

The Final Order also held that the School Board failed to establish, by

clear and convincing evidence, that Legacy failed to comply with

requirements for background screening of its employees and Governing Board

members, as set forth in sections 1002.33(12)(g), 1012.32, 1012.465, 1012.467,

and 1012.468, and sections 10(I) and (J) of the Amended Charter.

Additionally, the Final Order reserved the right to address whether

attorneys’ fees, costs, and sanctions were awardable to the School Board, and

provided that “[a]ny such request shall be by motion within 10 days of this

Final Order.”

1

The School Board timely filed a Motion for Attorneys’ Fees, Costs, an d

Sanctions, a Motion to Tax Costs, a Notice of Filing Affidavit of Attorneys’

Fees and Costs, and a Notice of Filing Affidavit of Amounts Due, on August 28, 2020 (Petitioner’s Motions). In an Order dated September 1, 2020,

the undersigned notified the par ties that Petitioner’s Motions would be

considered in the instant case number (DOAH Case Number 20 - 3911F),

ordered that Legacy may respond to Petitioner’s Motions within 10 days, and

directed the parties to provide the undersigned with available dates for a

hearing on these Motions. On September 28, 2020, Legacy (after moving for

and receiving an extension) filed its “Response to Petitioner’s: Motion for

1 - Legacy has appealed the Final Order to the Fifth District Court of Appeal, Case No. 5D20

1762. After a review of the docket in that appeal, it appears that the district court of appeal

dismissed this appeal on November 24, 2020.

Attorney’s Fees, Costs, and Sanctions, Motion to Tax Costs, Notice of

Affidavits for Attorney ’ s Fees and Response to Motion for Sanctions.”

The undersigned conducted an evidentiary hearing utilizing the Zoom

web - conference platform on November 6, 2020. The undersigned granted the

School Board’s Motions for Official Recognition of: (a) the entire record of

the underlying matter; and (b) the entire record of Manatee County School

Board v. Lincoln Memorial Academy, Inc., DOAH Case No. 19 - 005307F,

which involved the award of prevailing party attorneys’ fees under

section 1002.33(8). Additionally, after questio ning from the undersigned, the

parties stipulated to the amount of taxable costs that the School Board

incurred.

The School Board called one witness: Nick Shannin, Esquire , as its expert

on attorneys’ fees. The undersigned accepted into evidence the Schoo l Board’s

Exhibits P1 through P4. Legacy called one w itness: Debra Babb - Nutcher,

Esquire , the attorney for the School Board. The undersigned accepted into

evidence Legacy’s Exhibits R1 through R4.

Neither party ordered a copy of the transcript of the proc eeding. Both the

School Board and Legacy timely filed proposed final orders on November 16,

2020.

All statutory references are to Florida Statutes (2019), unless otherwise

noted.

F INDINGS O F F ACT

The Underlying Matter

1. The underlying matter concerned w hether Legacy’s school charter for

the Legacy Academy Charter School should be terminated for the reasons set

forth in the School Board’s November 20, 2019, 90 - Day Notice of Proposed

Termination of Charter, pursuant to section 1002.33(8)(b) .

2. The Divisio n received the Petition for Administrative Hearing on

December 5, 2019, and provided notice to the parties that this underlying

matter was before the Division on December 9, 2019. The Division assigned

the undersigned ALJ to the underlying matter.

3. After conducting a telephonic pre - hearing conference on December 13,

2019, the undersigned scheduled the final hearing in this matter for a four -

day live hearing, March 2 through 4, and 6, 2020, in Titusville, Florida.

Section 1002.33(8)(b) provides that “[t]he hearing shall be conducted within

90 days after receipt of the request for a hearing and in accordance with

chapter 120.”

4. The parties have attempted to make an issue of the initial scheduling of

the final hearing in this matter — and in particular, Lega cy has contended

that scheduling this hearing outside of a 45 - day period provided in the First

Amended Charter between the School Board and Legacy (Amended Charter),

executed September 11, 2018, caused unnecessary expense on the School Board’s behalf — but t he undersigned, with the agreement of the parties at

the December 13, 2019 , telephonic pre - hearing conference, scheduled a final

hearing in this matter that complied with the section 1002.33(8)(b)

requirement that the hearing be conducted within 90 days.

5 . The School Board immediately thereafter began engaging in discovery

to which Legacy did not timely respond. On February 12, 2020, Legacy filed

its first “Opposed Motion to Continue with Good Cause,” which requested a

continuance of the final hearing beca use of health issues confronting Legacy’s

interim principal and intended client representative, Charlene Montford, in

North Carolina. Additionally, on February 12, 2020, the School Board filed a

Motion to Compel Depositions and Opposition to Respondent’s M otion to

Continue, where it argued that it had not had the opportunity to depose

Ms. Montford and another Legacy board member. The undersigned conducted

a telephonic hearing on this motion on February 18, 2020, and entered an

Order Denying Respondent’s Mot ion to Continue and Requiring Joint Status

Update that same date.

6. The parties filed a Joint Status Report on February 20, 2020, and

reported that the parties could not agree on dates for depositions of

Ms. Montford and the board member, and re quested an other hearing on

this issue. Then, on February 21, 2020, Legacy filed a Motion to Reconsider

Denial of Continuance, which provided additional detail s about

Ms. Montford’s health issues and medical appointments in North Carolina.

The undersigned conducted a telephonic status conference on February 21,

2020, and on February 26, 2020, entered an Order Granting Respondent’s

Motion to Continue, Rescheduling Hearing and Requiring Status

Conferences, in which the undersigned determined that Legacy had

established good cause for a continuance of the final hearing, and rescheduled

it for May 18 through 21, 2020, in Titusville.

7. The School Board, on February 28, 2020, filed motions to compel. On

March 10, 2020, the undersigned entered an Order that granted in part, these motions to compel, and provided Legacy with additional time to

respond to pending discovery. On March 12, 2020, the School Board filed a

Notice of Production from Non - Party, which Legacy opposed in a response

filed March 25, 2020. Additionally, Legac y filed an Emergency Opposed

Motion of Continuance and Emergency Opposed Motion to Extend Discovery on March 20, 2020, which requested a continuance of the final hearing and an extension of discovery due to the impacts of COVID - 19. On March 20,

2020, the u ndersigned entered an Order requesting that the parties be

prepared to discuss, at a March 27, 2020, telephonic status conference, any critical deadlines that may be relevant to the consideration of a continuance.

8. On March 26, 2020, a day before the fir st of two previously - scheduled

pre - hearing telephonic status conferences, the parties filed the following

pleadings: Petitioner’s Opposition to Respondent’s Emergency Motion for

Continuance and Emergency Opposed Motion to Extend Discovery;

Petitioner’s Mot ion for Sanctions for Failure to Comply with Order

Compelling Discovery; Respondent’s Motion for Protective Order; and

Respondent’s Response to Petitioner’s Motion for Sanctions for Failure to

Comply with Order Compelling Discovery and Request for Fees. Af ter the

telephonic status conference on March 27, 2020, the undersigned entered, on

March 30, 2020, an Order on Pending Pleadings, which: (a) denied Legacy’s request to continue the final hearing; (b) granted Legacy an extension (until

April 13, 2020) to r espond to all outstanding discovery; (c) denied the School

Board’s motion for sanctions; and (d) directed the parties to mutually agree to

schedule the deposition of Legacy’s corporate representative.

9. Additionally, on March 27, 2020, the undersigned ent ered an Order on

Petitioner’s Notice of Production from Non - Party, which overruled Legacy’s

objections to the documents that the School Board sought from non - parties,

and allowed the School Board to serve the subpoenas attached to its Notice of

Production from Non - Party.

10. On April 6, 2020, Legacy filed a Motion for [sic] Limine and Motion to

Strike, which argued that the undersigned should not consider evidence of, or

should strike grounds or allegations, relating to two categories: (1) evidence,

includi ng all underlying financial information, concerning Legacy’s alleged

“deteriorating financial condition,” because jurisdiction for deciding how to

proceed when a charter school experiences a “deteriorating financial

condition” lies with the Florida Departm ent of Education, pursuant to section

1002.345; and (2) evidence or grounds for termination that predate the

Amended Charter, including allegations contained in a previous termination

proceeding (DOAH Case No. 18 - 2778) that resulted in Legacy withdrawing

i ts request for a final hearing. The School Board opposed Legacy’s motion in

two separate pleadings.

11. On April 23, 2020, the School Board filed a Motion to Compel

Respondent’s Production in Response to Petitioner’s Request to Produce, and

on April 24, 20 20, filed a Motion to Compel Respondent’s Answers to

Petitioner’s Interrogatories.

12. On April 24, 2020, the undersigned conducted the second of two pre -

hearing telephonic status conferences. On April 29, 2020, the undersigned

entered an Order Denying Res pondent’s Motion in Limine and Motion to

Strike. Additionally, the undersigned issued an Amended Notice of Hearing,

which moved the hearing in the underlying matter to the Zoom web -

conference platform, due to the COVID - 19 pandemic.

13. On May 1, 2020, Lega cy filed: (1) Response to Motion to Compel

Respondent’s Second Amended Response to Interrogatories (Unverified due

to COVID - 19); (2) Response to School Board’s Motion to Compel Additional

Production; and (3) Motion to Reconsider Denial of Motion for [sic] Limine

and Motion to Strike Evidence and Grounds for Termination Based Upon

Financial Information. Also on May 1, 2020, the School Board filed an

Opposition to Legacy’s Motion to Reconsider Denial of Motion in Limine and

Motion to Strike Evidence and Groun ds for Termination Based Upon

Financial Termination.

1 4 . On May 4, 2020, the undersigned issued an Order Denying Motion to

Reconsider, as well as an Order Granting Motions to Compel. The Order

Granting Motions to Compel ordered Legacy to provide verified a nswers to its

second amended responses no later than May 8, 2020, and that if Legacy

failed to provide responsive answers to those interrogatories, the undersigned

would consider, at the final hearing, whether such failure should result in the imposition o f sanctions. The Order Granting Motions to Compel also ordered

Legacy to provide all responsive documents requested no later than May 8,

2020, and that if it failed to provide responsive, non - privileged documents as

ordered, the undersigned would consider, at the final hearing, whether such

failure should result in the imposition of sanctions.

1 5 . On May 11, 2020, Legacy filed a Motion to Compel Production.

Thereafter, on May 14, 2020, the School Board filed a Renewed Motion for

Sanctions, noting that Legac y did not submit its answers to interrogatories or

responsive documents until May 11, 2020 — after the deadline imposed in the

May 4, 2020, Order Granting Motions to Compel.

16 . Although originally scheduled for four days (May 18 through 21, 2020),

the final hearing in the underlying matter actually lasted six days, from

May 18 through 22, and 26, 2020.

17 . A t the outset of the hearing, counsel for the School Board informed the

undersigned that Legacy failed to timely provide witness and exhibit lists,

and t hen filed an amended exhibit list (after filing its untimely exhibit list)

that included additional exhibits. During counsel’s arguments on this issue, it

became apparent that Legacy’s amended exhibit list contained not only

untimely and previously - undiscl osed exhibits, but also exhibits that

contained material that Legacy did not provide during discovery. The

undersigned excluded from evidence the undisclosed exhibits.

1 8 . As noted previously, the undersigned entered a Final Order in the

underlying matter on August 18, 2020, that concluded that the School Board

met its burden, by clear and convincing evidence, that it may terminate the

Amended Charter.

Attorneys’ Fees and Costs

1 9 . As the preceding paragraphs demonstrate, the parties engaged in

vigorous pre - hearing motion practice, finding little agreement on even minor

issues both before and during the final hearing. As additional context to the parties’ disinclination to cooperate during the underlying matter, each party

filed its own pre - hearing stipulati on. And, in a continuation of the spirit of

non - cooperation, the parties filed separate pre - hearing stipulations in the

instant matter.

20 . At the outset of the hearing in this case , and with the absence of a

joint pre - hearing stipulation, the undersigned conciliated agreement on one

of the taxable costs in this matter: Legacy agreed that it did not contest the

School Board’s taxable cost for its expert witness in auditing (Laura Manlove)

of $15,000. 2

2 1 . Petitioner’s Affidavit of Attorneys’ Fees and Costs details both the

attorneys’ fees and costs that the School Board seeks in this matter. With

respect to attorneys’ fees, it avers that the hourly rate actually billed by

counsel was $200 for partners and associates. The affidavit includes the

detailed billi ng records of the School Board’s Orlando - based law fir m of

record — Garganese, Weiss, D’ Agresta & Salzman, P.A. (GWDS) — and the

attorneys who worked on this matter. The summary of total attorneys’ fees

requested is:

Attorney Hours Rate Total Fees

Debra S. Ba bb - Nutcher 728.30 $200.00 $145,660.00

Suzanne D’A g r esta 1.50 $200.00 $300.00

Kate T. Hollis 776.40 $200.00 $153,000.00

Total : 1 , 506.20 $200.00 $298,960.00

2 2 . At the November 6, 2020 , final hearing, the School Board’s expert on

attorneys’ fees, Nichol as A. Shannin, Esquire, testified to the reasonableness

of the hours that the GWDS attorneys expended in this matter. Mr. Shannin

has practiced law for 25 years, is board - certified in appellate practice, is the

past President of the Orange County Bar Assoc iation, has previously

represented governmental entities in litigation matters, and has been previously qualified in various courts and tribunals as an expert on attorneys’ fees.

2 3 . Mr. Shannin opined that the number of hours that the GWDS

attorneys expe nded in this matter (1 , 506.20) was “reasonable, related, and

necessary” in the “prosecution” of this case. He further opined that the hourly

2 The School Board presented the expert witness testimony of four other experts, who were

also Brevard County School District employees and fact witnesses, during the underlying

matter. The School Board does not seek to recover any expert witness costs for these other

expert witnesses.

rate of $200 for GWDS partners and associates was “incredibly reasonable,”

and that, in fact, he felt $250 - $350 per hour, for a government client, would

be a more appropriate range.

2 4 . Mr. Shannin testified that, in his opinion, the foregoing totals (of fees

and costs) are reasonable in light of the factors enumerated in the Rules of

Professional Conduct, found in r ul e 4 - 1.5, Rules Regulating The Florida Bar,

as well as Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145

(Fla. 1985), and Standard Guaranty Insurance Company v. Quanstrom ,

555 So. 2d 828 (Fla. 1990). Mr. Shannin noted the time and labor required,

novelty, and s kills needed in this matter as factor s in the reasonableness of

the fees, as the GWDS attorneys expended over 1 , 500 hours in approximately

nine months of litigation, where much wa s fought or contested, and since

charter termination matters d o not have a “well - worn path” of past precedent

to guide parties. He also noted that Ms. Babb - Nutcher and Ms. Hollis likely

were precluded from other employment during the pendency of this matter. Mr. Shannin stated that the rate was reasonable, that the r esults were

absolute, and that this matter was significant, noting that it involved “public

policy matters at the highest level.”

2 5 . Legacy disputed the reasonableness of the School Board’s requested

fees on several grounds: (a) the School Board failed to assert the 45 - day

hearing requirement in the Amended Charter, thus , prolonging this matter

and adding additional fees that the undersigned should not award; (b) the use of “block billing” is an improper billing practice that makes it difficult to

determin e the reasonableness of the requested fees; and (c) because the

undersigned found that the School Board failed to establish, by clear and

convincing evidence, one of the five asserted grounds for termination, the undersigned should reduce the amount of fee s awarded by 20 percent.

2 6 . With regard to the 45 - day hearing requirement in the Amended

Charter, as previously discussed, the undersigned, with the agreement of the

parties at the December 13, 2019 , telephonic pre - hearing conference,

scheduled a final he aring in this matter that complied with the section

1002.33(8)(b)’s requirement that the hearing be conducted within 90 days.

Respondent made no contemporaneous objection to the hearing being

scheduled within the 90 - day statutory timeframe. And, as detaile d in

paragraphs 5 - 15 above, Respondent requested (and received) continuances of

the final hearing, and, unfortunately, COVID - 19 played a part in the process.

The undersigned does not find that the School Board ’s behavior in the

underlying matter caused an unreasonable delay that resulted in an

unreasonable or unnecessary expenditure in attorneys’ fees.

2 7 . With regard to “block billing,” which is the practice of including

multiple tasks within a single billing entry, 3 Legacy provided two examples of

GWDS bi lling entries that undoubtedly fall within this definition, one of

which was:

Date Description Hours Amount Lawyer

4 /6/20 Review latest ESE report for trial; 7.20 1,440.00 DSB

prepare outline of ESE issues in

preparation for trial; review Legacy’s “Motion for Limine” to pr ohibit

evidence of financial issues, and to prohibit prior issues; e - mail exchange

with S. Archer regarding depositions and DOE letter; review information

regarding R. Moreno; strategize

regarding effect of DOE process for

corrective action plan and releva nce

to termination process; e - mails with

S. Archer regarding same; review

Building Hope corporate information;

legal research regarding basis for Motion in Limine in DOAH cases;

e - mails with C. Norwood regarding

3 See Kearney v. Auto - Owners Ins. Co., 713 F. Supp. 2d 1369, 1377 - 78 (M.D. Fla. 2010)

(defining block billing as the practice of including “multiple tasks in a single time entry.”);

Wise v. Kelly, 620 F. Supp. 2d 435, 450 (S.D.N.Y. 2008) (“Block billing is the practice of

aggregating multiple tasks into one billing entry.”) (internal quotation marks omitted);

Bobrow Palumbo Sales, Inc. v. Broan - Nutone, LLC, 549 F. Supp. 2d 274, 283 (E.D.N.Y. 2008)

(“A reduction is also warranted whe re counsel engages in ‘block billing,’ such that multiple

tasks are aggregated into one billing entry.”).

deposition schedule; e - mail exchange

with C. Norwood regarding false

statements in Motion and

contradictions; review replies;

prepare draft notices of depositions wit h tentative dates; e - mail to

C. Norwood requesting home

addresses.

4/6/20 Exchange e - mails with S. Archer 4.50 900.00 KTH

regar ding financial statements and

analysis/comparison; research

regarding Building Hope and

proposed representative for

deposition; prepare memorandum

and d eposition notes regarding

same; continued review of financial

reports and update comparison spreadsheet with revenue from profit

& loss information attached to

December 10, 2020 , Legacy board

meeting minutes; review file and

documents provided at March 31, 2020 , meeting, prepare for April 7,

2020 , meeting.

28 . The vast majority of the entri es in the GWDS billing records are block

entries. Although Mr. Shannin testified that these entries reflected each day

being separated, with each entry containing sufficient detail as to the tasks

completed, the undersigned finds that including multiple ta sks within a

single billing entity makes it difficult to assess the reasonableness of the

totals on an hour - by - hour basis.

4

29 . The undersigned credits much of Mr. Shannin’s testimony as to the

reasonableness of the hourly fee, as well as many of r ule 4 - 1. 5’s factors that

4 Lincoln Legacy also introduced into evidence some of the billing records relied on in

Memorial Academy , which reflected that Manatee County School B oard’s outside attorneys

did not engage in block billing, at least during the attorneys’ fees phase of that matter. ALJ

Robert Cohen found that these attorneys “maintained detailed records of all services

rendered as evidence of the extensive time and effo rt dedicated to this matter.” F.O. at 6.

Additionally, ALJ Cohen found that the respondent “did not dispute or otherwise offer any

evidence disputing the reasonableness of the hourly rates charged[.]” F.O. at 11.

he relied on to opine as to the reasonableness of claimed fees in this matter.

However, though Mr. Shannin’s testimony as to the reasonableness of the

hours devoted to this matter was credible and is generally accepted, due to the pervasiv eness of the block entries, the undersigned is unable to perform

a n independent reasonableness assessment on an hour - by - hour basis. As an

alternative approach, the undersigned shall apply an across - the - board

percentage cut of 10 percent to the total hours of the GWDS attorneys, recognizing that its hourly rate of $200 per hour is reasonable. Such a

reduction yields the following totals:

Attorney Hours Rate Total Fees

Debra S. Babb - Nutcher 655.47 $200.00 $131,094.00

Suzanne D’A g r esta 1.35 $200.00 $270.00

Kate T. Hollis 698.76 $200.00 $139,752.00

Revised Total : 1 , 355.81 $200.00 $271,162.00

30 . As to Legacy’s contention that the undersigned should reduce fees by

20 percent to reflect Legacy prevailing on four of the five bases for

termination in the under lying matter, the undersigned finds that Legacy

“prevailed” in the underlying matter, and is entitled to attorneys’ fees and costs, as prescribed in section 1002.33(8)(b).

3 1 . Turning to costs, the School Board’s Motion to Tax Costs, which

detailed various costs incurred in the underlying matter, and the Affidavit of

Attorneys’ Fees and Costs, which additionally provided supporting documentation for these costs, requests the following recoverable costs:

Cost Amount

Deposition Transcripts $5,282.55

Final Hearing Transcripts $15,501.50

Copy Costs $1,201.75

Trial Expert Witness Costs $15,000.00

(Manlove)

Total: $36,985.80

3 2 . At the final hearing, Mr. Shannin testified that his agreed hourly fee

for providing expert testimony was $400 per hour. He furt her testified that

he spent 10 hours in total (nine hours or preparation, and one hour for

testimony at the final hearing), and expected to submit an invoice to the

School Board for $4,000.00. The undersigned finds that this fee is an

additional recoverabl e cost for the School Board.

3 3 . The undersigned finds that the foregoing expenditures total

$40,985.80 in taxable costs, and shall be recoverable by the School Board, as

prescribed in section 1002.33(8)(b).

Sanctions

34 . As detailed in paragraphs 5 - 14 abo ve, the School Board filed multiple

motions to compel, for Legacy’s failure to timely and properly respond to the

School Board’s discovery requests. The undersigned ent ered multiple O rders

concerning these motions, the latest being a May 4, 2020 , Order Gra nting

Motions to Compel, which ordered Legacy to provide verified answers to its

second amended responses to interrogatories no later than May 8, 2020, and

that if Legacy failed to provide responsive answers to those interrogatories,

the undersigned would consider, at the final hearing, whether such failure

should result in the imposition of sanctions . The Order Granting Motions to

Compel also ordered Legacy to provide all responsive documents requested no later than May 8, 2020, and that if it failed to pr ovide responsive, non -

privileged documents as ordered, the undersigned would consider, at the final

hearing, whether such failure should result in the imposition of sanctions.

3 5 . Legacy actually e - filed its responsive answers to interrogatories and

docume nts with the Division on May 9, 2020, which was a Saturday, and the

School Board did not receive them until Monday, May 11, 2020, through the

Division’s e - filing system. Legacy’s qualified representative and attorney did

not attempt to timely provide these remaining responsive answers and

documents utilizing methods other than the Division’s e - filing system.

3 6 . In essence, to respond to the School Board’s discovery (interrogatories

and requests for production) served on January 20, 2020, it took multiple

e xtensions, motions to compel, hearings on motions to compel, O rders on

motions to compel, and, ultimately, the May 4, 2020, Order Granting Motions

to Compel, to get Legacy to provide full responses, which even then ran afoul

of the deadline provided in tha t May 4, 2020, Order Granting Motions to

Compel.

3 7 . At the final hearing in the underlying matter, the undersigned

excluded from evidence documents that were not provided pursuant to the

May 4, 2020, Order Granting Motions to Compel. Significantly, the

un dersigned excluded progress monitoring reports related to ESE students, because the School Board requested these progress monitoring reports during

discovery, but Legacy failed to produce them. Although the School Board

provided clear and convincing eviden ce that Legacy failed to provide

significant compensatory education service minutes to its students, the

undersigned also found:

Although [Legacy ESE teacher Jamie Luna’s]

testimony that Legacy has completed regular and compensatory ESE services for the 2 019 - 2020

school year was persuasive, it is not clear, because of the lack of admissible progress monitoring reports, that Legacy’s ESE students received the services required under their IEPs.

F.O. at 33.

3 8 . The School Board requests additional monetary sanctions against

Legacy, its Qualified Representative, and its counsel of record, for its conduct

in failing to respond to d iscovery and the undersigned’s O rders.

3 9 . Legacy argues that sanction s are not warranted because

Ms. Montford, its corporate repre sentative, interim principal , and “designee”

of the Governing Board to facilitate discovery requests, was diagnosed with

serious, documented health issues during the pendency of this matter, which

required immediate treatment by healthcare providers in Nor th Carolina,

and these serious health issues should be considered in understanding any

delays in discovery. The undersigned previously found, in the underlying

matter, that Ms. Montford’s serious health issues constituted good cause for a

continuance of th e final hearing.

40 . Legacy also argues that the COVID - 19 pandemic further complicated

its ability to respond to the School Board’s discovery.

4 1 . Legacy’s Qualified Representative, Mr. Norwood, contends that any

discovery delays were beyond his control, a nd were the responsibility of

Legacy, not him. Legacy’s counsel of record, Mr. Clark, who did not appear at the final hearing or at the final hearing in the underlying matter, but whose signature app ears on Legacy’s pleadings, did not make any argument in

Legacy’s Proposed F inal O rder, but would presumably similarly contend that

any discovery issues were beyond his control.

4 2 . The undersigned finds that Legacy’s failure to timely provide

discovery, after numerous motions to compel and O rders from the

under signed, warranted the imposition of sanctions at the final hearing in

the underlying matter, in the form of the exclusion of evidence Legacy wished to introduce. See Fla. R. Civ. P. 1.380(4)(b)(2)(B). T he undersigned declines to

impose additional sanctions .

C ONCLUSIONS O F L AW

43 . The Division has jurisdiction over the parties and the subject matter of

this proceeding pursuant to sections 120.569, 120.57, and 1002.33(8), Florida Statutes.

44 . The ALJ has final authority to resolve this dispute pursuant to s ection

1002.33(8)(b), which provides, in pertinent part, that “[t]he administrative

law judge shall award the prevailing party reasonable attorney fees and costs

incurred during the administrative proceeding and any appeals.”

45 . As the prevailing party, t he School Board is entitled to an award of its

reasonable attorneys’ fees and costs incurred during the administrative

proceeding and any appeals. Id.

4 6 . Additionally, the School Board is entitled to an award of prejudgment

interest on the costs incurred. See R.J. Reynolds Tobacco Co. v. Lewis, 275 So.

3d 747, 751 (Fla. 5th DCA 2019).

4 7 . Expert witness fees may be taxed as costs for a lawyer who testifies as

an expert as to reasonable attorneys’ fees. Travieso v. Travieso, 474 So. 2d

1184, 1184 - 85 (Fla. 1 985); see also In re Amends. to Unif. Guidelines for

Taxation of Costs, 915 So. 2d 612 (Fla. 2005) (identifying expenses associated

with expert witnesses and court reporter services as costs that should be taxable).

Attorneys’ Fees

48 . The Florida Supreme Court has accepted the Lodestar approach as a

suitable foundation for an objective structure in setting reasonable attorneys’

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

The Lodestar approach requires the undersigned to: (a) determine the

number of hours reasonably expended on the litigation; (b) determine a

reasonable hourly rate for the services of the prevailing party’s attorney; and

(c) once determined, multiply the reasonable hourly rate by the reasonable number of hours expended. Id. at 1150 - 51.

49 . In assessing reasonable fees pursuant to the Lodestar approach, courts

should apply those factors enunciated in The Florida Bar Code of Professional Responsibility. Id. at 1150; Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2 d

at 830 . These eight factors are set forth in rule 4 - 1.5(1)(b) of the Rules

Regulating The Florida Bar, and include:

a. The time and labor required, the novelty,

complexity, and difficulty of the questions involved, and the skills requisite to perform th e legal service

properly;

b. The likelihood that the acceptance of the particular employment will preclude other

employment by the lawyer;

c. The fee, or rate of fee, customarily charged in the

locality for legal services of a comparable or similar natur e;

d. The significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;

e. The time limitations imposed by the 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. The nature and length of the professional

relationship with the client;

g. The experience, reputation, diligence, and ability

of the lawyer or lawy ers performing the service and

the skills, expertise, or efficiency of effort reflected in the actual providing of such services; and

h. Whether the fee is fixed or contingent, and, if

fixed, as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation.

50 . The first step in calculating the Lodestar figure is to determine the

number of hours reasonably expended on litigation. Rowe, 472 So. 2d at 1150.

In making this assessment, courts generally consider records detailing the

amount of work performed and t he novelty and difficulty of the questions

involved.

5 1 . As discussed in detail in paragraphs 26 - 28 above, GWDS attorneys’

use of block billing, with multiple tasks within a single bil ling entity, makes

it difficult to assess the reasonableness of the total number of hours

reasonably expended on an hour - by - hour basis. See Moore v. Kelso - Moore,

152 So. 3d 681, 682 (Fla. 4th DCA 2014) (noting that the use of block billing

made it impossi ble to determine the reasonableness of the hours expended as

to certain matters). 5

5 2 . Although Florida courts have yet to address the question, federal

decisional authority generally holds that where the use of block billing

precludes an hour - by - hour anal ysis, it is appropriate to apply an across - the -

board percentage cut to the total number of hours claimed. Dial HD, Inc. v.

Clearone Commc’ns, Inc., 536 Fed. Appx. 927, 931 (11th Cir. 2013) (holding

lower court “reasonably applied a 25% across - the - board red uction to the fees

charged … based on its conclusion that the firm used block billing, making it

difficult to ascertain how much time was spent on each task.”); Role Models

Am., Inc. v. Brownlee, 353 F.3d 962, 971 - 73 (D .C. Cir. 2004) (applying a

50 percent reduction where the time records suffered from multiple

deficiencies, including block billing).

5 3 . The undersigned notes that some of the billing records contain non -

block entries. However, this fact does not invite both a percentage cut to the

hours inc luded within the block entries and an hour - by - hour analysis of the

non - block entries. As the Eleventh Circuit persuasively explained:

[I]n arriving at the lodestar, the court conducted

both an hour - by - hour analysis and applied an

across - the - board reductio n of the requested

compensable hours. Our circuit’s precedent states that the district court is to apply either method, not

both. The reason for this is easy to understand: by

5 rovided by the School Board for the proposition The undersigned has reviewed authority p

that block billing may be acceptable. However, one case provided by the School Board,

Machado v. Da Vittorio, LLC, 2010 WL 2949618 (S.D. Fla. July 10, 2010), actually reduces

the requested fees because of blo ck billing.

requiring the district court to conduct either

analysis instead of both, we ensu re that the district

court does not doubly - discount the requested hours,

as was the case here.

Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1351 - 52 (11th Cir. 2008).

5 4 . Pursuant to the persuasive authority cited above, the undersigned

concludes that, becau se of the use of block billing, an across - the - board

percentage reduction of the GWDS fees is warranted. The undersigned

concludes that a 10 percent reduction of the total hours of the GWDS

attorneys is appropriate (though other reviewed fee cases involving block

billing involved larger reductions , 10 percent is reasonable based in part on

Mr. Shannin’s persuasive testimony ), given the time and labor required, the

novelty, complexity, and difficulty of the questions involved, the preclusive

effect this repre sentation had regarding other potential employment by the

GWDS lawyers involved, the significance of the subject matter of this

litigation, the special time demands necessary for the underlying matter, and

the experience, diligence, and ability of the GWDS lawyers involved.

5 5 . The second step in calculating the Lodestar figure is to determine a

reasonable hourly rate for the services of the prevailing party’s attorneys. Rowe , 472 So. 2d at 1150. In reaching this determination, courts generally

consider the “market rate,” i.e., the rate charged in the community by lawyers

of reasonably comparable skill, experience, and reputation for similar services. Id. at 1151.

5 6 . The undersigned concludes that the $200 hourly rate GWDS charged

the School Board for its a ttorneys is reas onable, and as supported by

Mr. Shannin’s expert testimony, was “incredibly reasonable.”

5 7 . The third, and final, step in the Lodestar approach is to multiply the

reasonable hourly rates by the reasonable hours expended. Based on this

calc ulation, which includes the 10 percent across - the - board reduction in

hours, the total Lodestar figure is $271,162.00.

5 8 . Once the tribunal arrives at the Lodestar figure, the tribunal may

adjust this amount to account for other considerations that have no t yet

figured in the c omputation — the most important be ing the relation of the

results obtained to the work done. Smith v. Sch. Bd. of Palm Beach Cty. ,

981 So. 2d 6, 69(Fla. 4th DCA 2007) (quoting Dillard v. City of Greensboro,

213 F.3d 1347, 1353 (11th Cir . 2000) ) . See also Rowe, 472 So. 2d at 1151. If

the results obtained were exceptional, then some enhancement of the

Lodestar might be appropriate. Norman v. Hous. Auth. of City of

Montgomery , 836 F.2d 1292, 1302 (11th Cir. 1988). Exception al results are

re sults that are out of the ordinary, unusual, or rare. Id.

5 9 . While the undersigned agrees with the School Board that it proved

multiple violations of law and other good cause to terminate the Amended

Charter with Legacy pursuant to section 1002.33(8)(b), after a grueling pre -

hearing process that involved vigorous discovery and motion practice, delays

due to documented health issues of Legacy’s corporate representative and the

COVID - 19 pandemic, and an equally - grueling six - day final hearing, the

undersigned declines to enhance the Lodestar figure.

Costs

60 . To determine the reasonableness of costs, rule 4 - 1.5(b)(2) sets forth six

factors that may be considered:

a. The nature and extent of the disclosure made to the client about the costs;

b. Whether a spec ific agreement exists between the

lawyer and client as to the costs a client is expected

to pay and how a cost is calculated that is charged to a client;

c. The actual amount charged by third party

services to the attorney;

d. Whether specific costs can b e identified and

allocated to an individual client or a reasonable

basis exists to estimate the costs charged;

e. The reasonable charges for providing in - house

service to a client if the cost is an in - house charge

for services; and

f. The relationship and past course of conduct

between the lawyer and the client.

6 1 . In determining which costs are taxable, the Statewide Uniform

Guidelines for Taxation of Costs in Civil Actions (Uniform Guidelines) may

also be considered. See In re Amends. to Unif. Guidelin es for Taxation of

Costs, 915 So. 2d at 612. The Uniform Guidelines specifically identify those

costs that the undersign ed should tax, may tax, and should not tax. Id. at

616 - 17. The Uniform Guidelines are advisory only, and the taxation of costs

remains w ithin the undersigned’s broad discretion. Id. at 614.

6 2 . As set forth in the Uniform Guidelines, litigation costs that should be

taxed include, but are not limited to:

Depositions – to include (i) the original and one

copy of the deposition and court rep orter’s per diem

for all depositions; (ii) the original and/or one copy

of the electronic deposition and the cost of the

services of a technician for electronic depositions

used at trial; (iii) telephone toll and electronic conferencing charges for the con duct of telephone

and electronic depositions.

Witnesses – to include costs of subpoena, witness

fee, and service of witnesses for deposition and/or

trial.

Court reporting costs other than for depositions –

to include reasonable court reporter’s per diem for

the reporting of evidentiary hearings, trial, and post - trial hearings.

Expert witnesses – to include a reasonable fee for

trial testimony.

63 . As set forth in the Uniform Guidelines, litigation costs that should not

be taxed include, but are not limi ted to:

Any expenses relating to consulting non - testifying

experts.

Costs incurred which were not reasonably

calculated to lead to the discovery of admissible

evidence.

Travel expenses of attorneys.

64 . As discussed in detail above, the undersigned con cludes that the

School Board has met the rule 4 - 1.5(b)(2) factors in this matter. A fee

agreement between GWDS and the School Board governs their professional

relationship, and requires that GWDS maintain documents that itemize all

costs incurred. GWDS mai ntains such documentation and entered into

evidence at the final hearing documentation as evidence of all taxable costs

accrued.

6 5 . Based on the foregoing, the undersigned concludes that the School

Board has established taxable costs in the amount of $40, 985.80.

Sanctions

6 6 . As found above, Legacy’s failure to timely provide discovery, after

numerous motions to compel and O rders from the undersigned, warranted

the imposition of sanctions at the final hearing in the underlying matter, in

the form of the ex clusion of evidence Legacy wished to introduce. See Fla. R.

Civ. P. 1.380(4)(b)(2)(B).

67 . The imposition of any additional sanctions rest s within the discretion

of the undersigned. See Belle Glade Chevrolet - Cadillac Buick Pontiac

Oldsmobile, Inc. v. Figgi e, 54 So. 3d 991, 996 (4th DCA 2010). The

undersigned declines to award any additional sanctions against Legacy, its Qualified Representative, or counsel of record.

O RDER

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

O RDERED that R espondent, Legacy Academy Charter, Inc., pay Petitioner ,

The School Board of Brevard County , a total of $312,147.80, broken down as

follows: (a) $271,162.00 in attorneys’ fees; and (b) $40,985.80 in costs.

Prejudgment interest shall be taxed at 6.03%. See § 55.03(1), Fla. Stat.

D ONE A ND O RDERED this 4th day of December, 2020 , in Tallahassee, Leon

County, Florida.

R OBERT J. T ELFER III

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 4th day of December , 2020 .

C OPIES F URNISHED :

Debra S. Babb - Nutcher, Es quire

Garganese , Weiss , D'Agresta & Salzman, P.A.

111 North Orange Avenue , Suite 2000

Orlando, Florida 32801

(eServed)

Catherine Hollis, Esquire

Garganese, Weiss, D'Agresta & Salzman P.A.

111 North Orange Avenue , Suite 2000

Orlando, Florida 32801 - 2327

( eServed)

Jonathan Clark, Esquire

Law Offices of Jonathan K. Clark

185 Southwest 7th Street , Suite 3100

Miami, Florida 33130

(eServed)

Christopher Norwood, J.D.

Governance Institute for School Accountability

14844 Breckness Place , Suite 100

Miami Lakes, F lorida 33016

(eServed)

Roy D. Wasson, Esquire

Wasson and Associates, Chartered

28 West Flagler Street , Suite 600

Miami, Florida 33130

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Stree t

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Mark Mullins, Superintendent

The School Board of Brevard County

2700 Judge Fran Jamieson Way

Viera, F lorida 32940 - 6601

Richard Corcoran, Commissioner of Education

Department of Education

Turlington Build ing, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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 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 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 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 provided by law.