20-005422FC The School Board Of Brevard County, Florida vs. Legacy Academy Charter, Inc. Status: Closed DOAH Final Order on Thursday, February 25, 2021.

Summary: As the prevailing party on appeal (Case No. 5D20-1762), Petitioner is entitled to reasonable attorney's fees of $8,500.00.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T HE S CHOOL B OARD OF B REVARD

C OUNTY , F LORIDA ,

Petitioner , Case No. 20 - 5422FC

vs.

L EGACY A CADEMY C HARTER , I NC . ,

Respondent .

/

F INAL O RDER O N A PPELLATE A TTORNEY Ô S F EES

This matter arises from Appellee/Petitioner School Board of Brevard

CountyÔs (School Board) Motion for Appellate AttorneysÔ Fees, filed

January 12, 2021, concerning Appellant/Respondent Legacy Academy

Cha rter, Inc.Ôs (Legacy) appeal of the Final Order entered on August 18,

2020 , in the underlying matter, DOAH Case N o. 19 - 6424, to the Fifth District

Court of Appeal, in Case No. 5D20 - 1762. The undersigned did not conduct a

final hearing in this matter becaus e: (a) Legacy failed to respond to the

School BoardÔs Motion for Appellate AttorneysÔ Fees at the Fifth District and

in this proceeding; (b) Legacy failed to comply with a January 4, 2021 , Order

in which the undersigned provided Legacy an opportunity to re spond to the

School BoardÔs Motion for Appellate AttorneysÔ Fees, and to jointly confer

with the School Board and inform the undersigned of a need for a hearing;

and (c) Legacy failed to respond to a February 3, 2021, Order to Show Cause,

in which the unde rsigned provided Legacy until February 15, 2021, to show

cause, in writing, why the undersigned should not grant the School BoardÔs

Motion for Appellate AttorneysÔ Fees.

S TATEMENT O F T HE I SSUE S

The issues presented, as framed by the Fifth DistrictÔs Dece mber 16, 2020 ,

Order are: (1) whether the School Board is entitled to appellate attorneyÔs

fees pursuant to section 1002.33(8)(b), Florida Statutes; and (2) the amount of

attorneyÔs fees to which the School Board is entitled.

P RELIMINARY S TATEMENT

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

noticed hearing utilizing the Zoom web - conference platform, to determine

whether LegacyÔs school charter for the Legacy Academy Charter School

should be terminated for the reasons set forth in t he School BoardÔs

November 20, 2019, 90 - Day Notice of Proposed Termination of Charter,

pursuant to section 1002.33(8)(b ) 1 . Section 1002.33(8)(a) and (b) provides:

(8) CAUSES FOR NONRENEWAL OR

TERMINATION OF CHARTER. Ð

(a) The sponsor shall make student ac ademic

achievement 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 exi sts by clear and convincing evidence:

1. Failure to participate in the stateÔs 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. Failu re to meet generally accepted standards of

fiscal management.

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

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 scho ol of the proposed

action in writing. The notice shall state in

reasonable detail the grounds for the proposed

action and stipulate that the schoolÔs governing

board may, within 14 calendar days after receiving

the notice, request a hearing. The hearing sh all be

conducted 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 judgeÔs 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 schoolÔs

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 convincin g evidence, the following grounds for termination of

LegacyÔs school charter: (1) Legacy failed to meet academic achievement

and requirements of student performance under sections 1002.33(2),

1002.33(7)(a)4., and 1002.33(8)(a)1., Florida Statutes, and sec tions (2) and

9(C) of the First Amended 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 s 1002.33(2), 1003.571(1)(a), and 1002.33(16)(a)3. , Florida

Statutes , Florida Administrative Code Rules 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 manageme nt and/or willfully or

recklessly failed to manage public 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 Statutes , Florida

Administrative Cod e R ule 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 DistrictÔs 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 and

sections 286.011, 1002.33(2), 1002.33(7), 1002.33(9)(c), 1002.33(12)(f), and

1002.33(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 establ ish, 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.

Legacy appealed the underlying matter to the Fifth District on August 19,

2020. Legacy also filed a Motion to Stay on an Expedited Basis on August 19,

2020. The court entered an Order on August 20, 2020, providing the S chool

Board with seven days to respond to the Motion to Stay. That same day,

Legacy filed an Emergency Motion for Clarification or, in the Alternative,

Motion for Temporary Stay (Emergency Motion). The School Board filed a

Preliminary Response in Oppositio n to LegacyÔs Emergency Motion on

August 20, 2020, and then, on August 27, 2020, it filed a Response in

Opposition to LegacyÔs Motion to Stay on Expedited Basis, which included an

affidavit. On September 1, 2020, Legacy filed a Reply in Support of Motion t o

Stay on Expedited Basis. On September 2, 2020, the court entered an Order

that denied the stay on September 2, 2020. LegacyÔs appellate counsel

withdrew from representation, and the court ordered Legacy to obtain new

counsel by November 4, 2020. When no new counsel appeared, the court

entered an Order to Show Cause on November 5, 2020, providing Legacy 10

days to show cause why the appeal should not be dismissed. Legacy failed to

respond to the courtÔs Order to Show Cause, and on November 24, 2020, the

co urt entered an Order dismissing the appeal.

On December 3, 2020, the School Board filed a Motion for Appellate

AttorneysÔ Fees with the court. On December 16, 2020, the court entered the

following order:

BY ORDER OF THE COURT:

ORDERED that AppelleeÔs Mo tion for Appellate

AttorneyÔs Fees, filed December 3, 2020, is granted

contingent upon the lower tribunal determining

Appellee is entitled to attorneyÔs fees pursuant to

section 1002.33(8)(b), Florida Statutes. If so

determined, the lower tribunal shall de termine and

assess reasonable attorneyÔs fees for this appeal.

On January 4, 2021, the undersigned issued an Order that: (a) directed

the School Board to file, no later than January 15, 2021, any pleadings it

deem ed necessary and appropriate to support it s request for appellate

attorneyÔs fees and that would be responsive to the courtÔs December 16,

2020 , Order, as well as any pleadings previously filed with the Fifth District

in Case No. 5D20 - 1762 that it fel t the undersigned should conside r; (b)

provided Lega cy the opportunity to respond to the School BoardÔs pleadings,

no later than January 25, 2021 ; and (c) directed the parties, o n or before

January 29, 2021, to confer to determine whether a final hearing in this

matter wa s necessary , and if necessary, directed the parties to advise the

undersigned in writing, no later than January 29, 2021, as to the estimated

length of time necessary to conduct a hearing, whether the parties agree to

conducting this hearing utilizing the Zoom web - conference platform, a nd all

dates more than 30 days and less than 70 days from the date of this Order on

which all parties we re available for the hearing. On January 11, 2021, the

undersigned entered an Order Granting Second Amended Motion to

Withdraw of LegacyÔs qualified rep resentative. At the time of that Order, the

docket of the Division of Administrative Hearings (Division) indicated that

Jonathan Clark, Esquire, who filed a notice of appearance in the underlying

proceeding, remained counsel of record in this proceeding.

On January 12, 2021, the School Board filed a Motion for Appellate

AttorneysÔ Fees, as well as a Notice of Filing Affidavit of Attorney Ô s Fees. On

January 27, 2021, the School Board filed a Proposed Recommended Order.

Having received no response from Legac y, the undersigned, on February 3,

2021, entered an Order to Show Cause, which ordered Legacy to show cause,

in writing, no later than February 15, 2021, why the undersigned should not

grant the School BoardÔs Motion for Appellate AttorneysÔ Fees , and furt her

noted that f ailure to timely respond may result in the undersigned granting

the School BoardÔs Motion for Appellate AttorneysÔ Fees without any further

action from the parties . As of the date of this Final Order on Appellate

AttorneyÔs Fees, Legacy has filed no response with the Division.

F INDINGS O F F ACT

The Underlying Matter (DOAH Case No. 19 - 6424)

1. The underlying matter concerned whether LegacyÔs school charter for

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

forth in the School BoardÔs November 20, 2019, 90 - Day Notice of Proposed

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

recounting of the underlying matter can be found in The School Board of

Brevard County v. Legacy Academy Charter, Inc., D OAH Case

No. 19 - 6424 (DOAH Aug. 18, 2020), which concluded that the School Board

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

Amended Charter.

AttorneysÔ Fees and Costs for Underlying Matter (DOAH Case No. 20 - 3911F)

2. On Au gust 28, 2020, the School Board filed a Motion for AttorneysÔ

Fees, Costs, and Sanctions, which was assigned DOAH Case No. 20 - 3911F.

3. The undersigned conducted a final hearing in DOAH Case No. 20 -

3911F on November 6, 2020. The School BoardÔs expert on attorneysÔ fees at

that hearing, Nicholas A. Shannin, Esquire, testified that the hourly rate of

$200 for partners and associates at the School BoardÔs Orlando - based law

firm of Garganese, Weiss, DÔAgresta & Salzman, P.A. (GWDS) , was

Ñincredibly reasonable .Ò

4. The undersigned held that the $200 hourly rate GWDS charged the

School Board for its attorneys was reasonable, and ultimately ordered

Legacy, pursuant to section 1002.33(8)(b), to pay the School Board a total of

$312,147.80, broken down as follows: ( a) $271,162.00 in attorneysÔ fees; and

(b) $40,985.80 in costs. See The School Bd. of Brevard Cty. v. Legacy Academy

Charter, Inc., DOAH Case No 20 - 3911F (DOAH Dec. 4, 2020).

AttorneyÔs Fees for Appeal (Case No. 5D20 - 1762)

5. The School BoardÔs Affidavit o f AttorneysÔ Fees details the attorneyÔs

fees that the School Board seeks in the appeal, and includes the detailed

billing records of GWDS. This affidavit avers that the hourly rate actually

billed by counsel was $200 for attorney Erin OÔLeary, Esq uire , wh o is Board

Certified in Appellate Practice by The Florida Bar, and who handled the

appeal. The affidavit further avers that Ms. OÔLearyÔs total number of hours

billed in the appeal was 42.5 hours.

6. Although GWDS attorney Debra Babb - Nutcher , Esq uire , part icipated

as counsel in the appeal, including supervising Ms. OÔLeary and assisting in

case strategy, preparation of documents, and communications with the School

Board and opposing counsel, the School Board only seeks to recover the total

amount of attorne yÔs fees charged by Ms. OÔLeary.

7. In DOAH Case No. 2 0 - 3911F, the undersigned found that the $200

hourly rate GWDS charged the School Board of its attorneys was reasonable,

and the undersigned finds that a $200 hourly rate charged by Ms. OÔLeary for

repre senting the School Board on appeal is reasonable.

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

labor required, the unique arguments raised by Legacy in attempting to stay

the closure of its school, the lack of legal precedent, the multiple factual

claims that required rebuttal, the short time frame in which to respond

making other work impossible, the significant effort required to defend

against the stay, as well as the ultimate success achieved in defeating

LegacyÔs attempted sta y.

9. The School Board has demonstrated that the attorneyÔs fees sought are

reasonable based upon the reasonable rate charged and the reasonable hours

expended in the appeal. Legacy has filed nothing to dispute the School

BoardÔs request for appellate atto rneyÔs fees.

10. The Lodestar figure ( i.e., the fees charged and hours expended) by

Ms. OÔLeary in this appeal is $8,500.00 for the work performed between

August 19, 2020, through December 3, 2020. The undersigned finds that this

Lodestar figure is reason able in light of the factors enumerated in the Rules

of Professional Conduct, found in Rule 4 - 1.5 of the Rules Regulating The

Florida Bar, as well as Florida PatientÔs Compensation Fund v. Rowe, 472 So.

2d 1145 (Fla. 1985), and Standard Guaranty Insurance Company v.

Quanstrom , 555 So. 2d 828 (Fla. 1990).

11. The undersigned finds that the total fee amount of $8,500.00 for the

appeal of the underlying matter, Case No. 5D20 - 1762, shall be recoverable by

the School Board, as prescribed in section 1002.33(8)(b ). 2

C ONCLUSIONS O F L AW

12. 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 .

13. The ALJ has final authority to resolve this dispute pursuant to

section 1002.33(8)(b), 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

14. As the prevailing party , the School Board is entitled to an award of its

reasonable attorneyÔs fees incurred during the appeal of the underlying

matter. § 1002.33(8)(b), Fla. Stat . ; see also Arango v. United Auto Ins. Co.,

901 So. 2d 320 (Fla. 3d DCA 2005)(reversing circuit cour t appellate decision

and holding that appellee in an appeal that was dismissed without a decision

being rendered was the prevailing party and was entitled to recover appellate

attorneysÔ fees); United Svcs. Auto AssÔn v. Manso, 54 So. 3d 498 (Fla. 2d DCA

2 011)(granting appelleeÔs motion for appellate attorneyÔs fees following

appellantÔs voluntary dismissal of appeal).

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

suitable foundation for an objective structure in setting reasonable a ttorneyÔs

fees. Rowe, 472 So. 2d at 1150. 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 partyÔs attorney ; and (c) once determined, multiply the reasonable

hourly rate by the reasonable number of hours expended. Id. at 1150 - 51.

2 The School Board incurred no costs in the appe al.

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

should apply those factors enunciated in The Florida Bar C ode of Professional

Responsibility. Id. at 1150; Quanstrom, 555 So. 2d at 830. These eight factors

are set forth in rule 4 - 1.5(1)(b) and include:

a. The time and labor required, the novelty,

complexity, and difficulty of the questions involved,

and the sk ills requisite to perform the 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

nature;

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 c ircumstances 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 a bility

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

fixed, as to amount or rate, then whether the

clientÔs ability to pay rested to any significant

degree on the outcome of the representation.

17. 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 ma king this assessment, courts generally consider records detailing the

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

involved.

18. As found above, Ms. OÔLeary expended a reasonable number of hours

in the appeal. It is undisputed t hat LegacyÔs attempt to stay the closure of

its school involved a complex and novel issue. In consideration of these

circumstances, and based upon a review of the hours expended by

Ms. OÔLeary, the undersigned concludes that the number of hours expended

in this appeal Ð 42.5 hours Ð were reasonable.

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

reasonable hourly rate for the services of the prevailing partyÔs attorneys.

Rowe , 472 So. 2d at 1150. In reaching this determination, court s generally

consider the Ñmarket rate,Ò i.e., the rate charged in the community by lawyers

of reasonably comparable skill, experience, and reputation for similar

services. Id. at 1151.

20. The undersigned concludes, consistent with the underlying fees and

costs matter, DOAH Case No. 20 - 3911F, that the $200 hourly rate GWDS

charged the School Board for Ms. OÔLearyÔs work on appeal is reasonable.

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

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

calculation, the total Lodestar figure is $8,500.00. Legacy has not disputed

this requested amount, and further, has not filed anything in opposition to

the School BoardÔs request for appellate attorneysÔ fees.

O RDER

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

O RDERED that Appellant/Respondent Legacy Academy Charter, Inc., pay

Appellee/Petitioner The School Board of Brevard County a total of $8,500.00

for appellate attorneyÔs fees, as the prevailin g party in Case No. 5D20 - 1762.

D ONE A ND O RDERED this 2 5 th day of February, 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3 060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 5 th day of February, 2021 .

C OPIES F URNISHED :

Debra S. Babb - Nutcher, Esquire Jonathan Clark, Esquire

Garganese , Weiss , D'Agresta & Salzman, Law Offices of Jonathan K. Clark

P.A. Suite 3100

Suite 2000 18 5 Southwest 7th Street

111 North Or ange Avenue Miami, Florida 33130

Orlando, Florida 32801

Christopher Norwood, J.D.

Catherine Hollis, Esquire Governance Institute for

Garganese, Weiss, D'Agresta & Salzman School Accountability

P.A. Suite 100

Suite 2000 14844 Breckness Place

111 North Orange Avenue Miami Lakes, Florida 33016

Orlando, Florida 32801 - 2327

Mark W. Mullins, Ed.D.

Roy D. Wasson, Esquire Superintendent

Wasson and Associates, Chartered Brevard Public Schools

Suite 600 2700 Judge Fran Jamieson Way

28 West Flagler St reet Viera, Florida 32940 - 6601

Miami, Florida 33130

Richard Corcoran Matthew Mears, General Counsel

Commissioner of Education Department of Education

Department of Education Turlington Building, Suite 1244

Turlington Building, Suite 1 51 4 325 West Gaines Street

325 West Gaines Street Tallahassee, Florida 32399 - 0400

Tallahassee, Florida 32399 - 040 0

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 ap peal 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.