21-000614F Palafox, Llc vs. Carmen Diaz Status: Closed Recommended Order on Wednesday, June 23, 2021.

Summary: Petitioner is entitled to reasonable attorney's fees and costs in the amount of $136,161.00.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P ALAFOX , LLC ,

Petitioner ,

vs. Case No. 21 - 0614F

C ARMEN D IAZ ,

Respondent .

/

R ECOMMENDED O RDER O N R EMAND

The final hearing in this case was held via Zoom videoconference on May

21, 2021, in Tallahassee, Florida, before Suzanne Van Wyk, Administrative

Law Judge of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: W. Douglas Hall, Esquire

James E. Parker - Flynn, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, F lorida 32301

For Respondent: Jefferson M. Braswell, Esquire

Braswell Law, PLLC

1 16 N orthea st 3rd Avenue

Gainesville, Florida 3260 1

S TATEMENT OF T HE I SSUE

The amount of reasonable attorneyÔs fees and costs to be awarded to

Petitioner, Palafox , LLC (ÑPetitionerÒ or ÑPalafoxÒ), and against Respondent,

Carmen Diaz (ÑRespondentÒ), in the und erlying administrative matter as a

sanction pursuant to section 120.595, Florida Statutes.

P RELIMINARY S TATEMENT

On September 12, 2019, the Northwest Florida Water Management

District (ÑDistrictÒ) issued a Notice of Final Agency Action to issue an

Environ mental Resource Permit (ÑPermitÒ) to Palafox. Palafox had applied

for the Permit from the District for a project known as Market District

Housing , located at the intersection of Palafox Lane and Martin Hurst Road ,

in unincorporated Leon County. The Permit will authorize the construction of

a surface water management system that has been designed to serve the

project.

Respondent lives in Palafox Preserve S ubdivision and timely filed an

Amended Petition for Formal Proceedings Before a Hearing Officer, which

challenged the DistrictÔs issuance of the Permit on the basis that her property

will be adversely affected by the stormwater discharge authorized by the

Permit. That case was assigned DOAH Case No. 19 - 5831.

A final hearing in Case No. 19 - 5831 was held Feb ruary 19 and 20, 2020,

in Tallahassee, Florida, before the undersigned . Along with its Proposed

Recommended Order, the District filed a Motion for AttorneyÔs Fees and/or

Sanctions against Respondent and her counsel, Jefferson Braswell, under

sections 120.5 69 and 120.595 (ÑMotionÒ). Palafox joined in and adopted that

Motion.

The undersigned issued a Recommended Order on May 18, 2020, finding

that Respondent had not met her burden to demonstrate that Palafox had not

provided reasonable assurance that its pr oposed activities meet the

conditions for issuance set forth in the DistrictÔs permitting regulations and

handbook, and concluding that the Permit should be issued. As part of that

Recommended Order, the undersigned reserved ruling on the Motion until a

final order was issued. The Governing Board of the District subsequently

adopted the Recommended Order in toto .

Palafox then timely filed a Renewed Motion for AttorneyÔs Fees and

Sanctions on July 6, 2020 (the ÑRenewed MotionÒ). As the Final Order in

Case No. 19 - 5831 had already been issued, the Renewed Motion was treated

as a new, ancillary matter, and assigned Case No. 20 - 3014F.

A final hearing on entitlement to fees was before the undersigned via

Zoom videoconference on August 19, 2020, in Tallahassee, Florida. After the

hearing, and after the parties submitted proposed orders, the undersigned

issued a Supplemental Recommended Order in which the undersigned

concluded that Respondent had participated in the underlying proceeding for

an Ñimproper purposeÒ pursuant to section 120.595. The Governing Board of

the District subsequently adopted the Supplemental Recommended Order in

toto , and remanded to DOAH to determine the amount of reasonable

attorneyÔs fees that Respondent must pay to Palafox.

This procee ding to determine the amount of fees then followed. At the

final hearing, Palafox presented the testimony of W. Douglas Hall, Esquire,

one of its attorneys in the underlying proceeding; and Craig D. Varn, Esquire,

who was accepted as an expert on attorneyÔ s fees. PetitionerÔs Exhibits 1

through 5 were admitted in evidence.

Respondent testified on her own behalf, and offered the testimony of

Mr. Braswell. Respondent offered no exhibits in evidence.

At the conclusion of the final hearing, the undersigned s et a deadline of

June 1, 2021 (ten days following the hearing date), for the parties to file their

proposed recommended orders. On that date, Petitioner filed both a Proposed

Recommended Order and the final hearing Transcript. Given that the

Transcript was filed with DOAH, the undersigned issued an Order on Post -

Hearing Filings, extending the deadline for proposed recommended orders to

June 11, 2021 (ten days following filing of the Transcript). On June 16, 2021,

Respondent file d a notice that she would not be filing a proposed

recommended order.

F INDINGS OF F ACT

1. Petitioner is a Florida limited liability company and was the applicant

for the Permit challenged in Case No. 19 - 5831.

2. Respondent is the owner of Lot 18, Block A , of the Palafox Preserve

Subd ivision, and was the Petitioner in Case No. 19 - 5831.

3. Petitioner was represented by the firm of Carlton Fields, P.A. (Ñthe

FirmÒ), in Case Nos. 19 - 5831 and 20 - 3014F.

4. PetitionerÔs counsel and paralegal with the Firm spent 392.4 hours

litigating both th e underlying substantive case and entitlement to attorneyÔs

fees, for a total of $123,763.50 in fees, broken down as follows:

Name Hours Rate Subtotal

W. Douglas Hall 171.8 $382.50 $6 5 ,713.50

James E. Parker - Flynn 197.4 $270 .00 $ 53,298.00

Christine Graves . 3 $382.50 $ 114.75

Kimberly Pullen 22.9 $202.50 $ 4,637.25

5. The hourly rates shown above were discounted by approximately

10 percent of the standard rates charged by the Firm at the time this matte r

originated. Furthermore, over the course of representing Palafox in this

matter, the Firm discounted a number of its bills as a courtesy because of the

amount of time required to litigate the matter and to adjust for potential

overlap among attorneys wor king on the case. Those courtesy adjustments

totaled $7,437.45. Applying that discount to the total fees shown above, the

total amount of attorneyÔs fees incurred by Palafox in litigating this matter is

as follows:

Total Unadjusted AttorneyÔs Fees $123,763.50

Less Courtesy Adjustments $ 7,437.45

Total Adjusted AttorneyÔs Fees $116,326.05

6. In addition to attorneyÔs fees, Palafox incurred the following taxable

costs and expenses:

Court Reporter - Diaz Depo. $ 564. 28

JSB - Advantage Court Reporters - Carswell Depo. $ 1,032.48

Phipps Reporting - DOAH Transcript - Day 1 $ 1,605.67

Phipps Reporting - DOAH Transcript - Day 2 $ 542.52

WSource Group, LLC (1/8/20 - 1/27/20) $ 3,987.50

WSource Group , LLC (2/6/20 - 2/20/20) $ 9,652.50

Total Taxable Costs $ 17,384.95

7. Additionally, Palafox is seeking the costs incurred by its expert,

Mr. Varn, up through and including the final hearing. Mr. VarnÔs hourly rate

for his work on this case was $250, and, including the final hearing, he spent

9.8 hours on the case. The total cost for his services was $2,450.00.

8. Palafox is seeking a total of $136,161.00 in fees and costs.

9. Mr. Varn testified that both the rates charged by Palafox, and the hours

PalafoxÔs counsel spent on the matter, were reasonable and consistent with

the rates charged and time spent for similar work by other attorneys in the

area. His opinion was supported by detailed time records kept by PalafoxÔs

counsel, who con firmed that the fee statements were reviewed and

periodically adjusted as necessary to account for potential overlap and

duplication of effort among the attorneys working on the case, or if it

appeared the bill simply needed to be reduced.

10. Respondent stipulated that Mr. Varn is an attorney with sufficient

qualifications to render an opinion regarding the amount of reasonable

attorneyÔs fees to be awarded to Palafox in this proceeding. Respondent did

not object to the rates charged by the Firm, and did not challenge any of the

FirmÔs time entries, fees, or costs.

11. The number of hours set forth above by the attorneys and the

paralegal working on this case were reasonable, the rates charged were

reasonable, and the costs expended by Palafox were reason able.

C ONCLUSIONS OF L AW

12. DOAH has jurisdiction of this case, and the parties thereto, pursuant

to sections 120.57(1) and 120.595, Florida Statutes (2020).

13. T he party opposing an attorney fee award Ñhas the burden of pointing

out with specificity wh ich hours should be deducted.Ò 22nd Century

Properties, LLC v. FPH Properties, LLC , 160 So. 3d 135, 143 (Fla. 4th DCA

2015) (failure to Ñexplain exactly which hours [are] unnecessary or

duplicative is generally viewed as fatalÒ) (internal cites and quotati ons

omitted).

1 4 . Ms. Diaz did not identify any hours which should be deducted from the

attorneyÔs fees sought by Petitioner. Nor did she introduce any expert witness

testimony to refute PetitionerÔs expert witness testimony that the hours

spent on the und erlying case were reasonable and the rates charged were

consistent with those charged for similar work by other attorneys in the area.

At the final hearing, counsel for Ms. Diaz admitted that he was not

challenging the hourly rates or any specific time ent ry submitted in evidence

by Petitioner.

1 5 . Instead, Respondent testified , and her counsel argued at hearing , that

the total amount of fees awarded against her should be reduced because they

had ÑprovenÒ several of her claims in the underlying matter, beca use Palafox

did not have a right to put water on her property, because it would be unfair

for fees to be assessed against her, and because it was her right to bring her

claims in the underlying case and her attorney represented her pro bono. In

her testimo ny, Ms. Diaz also asserted that the award of fees against her was

unfair because her counsel was responsible for all of the decisions made

during litigation.

1 6 . RespondentÔs arguments as to mitigation are misplaced. First, as her

counsel eventually conce ded, she did not in fact prove any of her claims in the

underlying matter. Palafox prevailed on all issues, and the undersigned

concluded she had participated in the proceedings for an Ñimproper purpose.Ò

1 7 . Moreover, RespondentÔs arguments go to the issu e of whether Palafox

was entitled to fees in the first instance, which was decided by the

undersigned in Case No. 20 - 3014. Those arguments are not relevant to the

issue i n the instant case Ð the amount of reasonable attorneyÔs fees to be

assessed against Res pondent.

1 8 . Based on the expert witness testimony introduced by Petitioner, and

RespondentÔs failure to refute that evidence, the undersigned concludes that

Palafox is entitled to recover reasonable attorneyÔs fees in the amount of

$116,326.05.

Taxable C osts

1 9 . In addition to other taxable costs, parties may recover the fee s charged

by their expert witness es as taxable costs. See Travieso v. Travieso , 474 So.

2d 1184, 1186 (Fla. 1985). 1 However, Ñ[e]xpert witness fees paid to the

testifying expert are no t discretionary if the attorney expects to be

compensated for [her] testimony.Ò Rock v. Prairie Building Solutions, Inc .,

854 So. 2d 722, 724 (Fla. 2d DCA 2003) ( quoting Stokus v. Phillips , 651 So. 2d

1244, 1246 (Fla. 2d DCA 1995) ) .

20 . Mr. Varn testified that he spent approximately 9.8 hours preparing to

testify in this case (including his appearance at the final hearing) at an

hourly rate of $250.00, for a fee of approximately $2,450.00. That amount is

also taxable.

1 The majority held that expert witness fees may be taxed as costs for a lawyer who testifies

as an expert as to reasonable attorneyÔs fees. The court explained, however, that Ñ[g]enerally,

lawyers are willing to testify gratu i tously for other lawyers o n the issue of reasonable

attorneyÔs fees. This traditionally has been a matter of professional courtesy. An attorney is

an officer of the court and should be willing to give the expert testimony necessary to ensure

that the trial court has the requisite c ompetent evidence to determine reasonable fees.Ò

Travieso , 474 So. 2d at 1186.

2 1 . Palafox is therefore entitled to recover $17,384.95 for the taxable costs

described above, plus the cost for its expert witness in the amount of

$2,450.00, for a total of $19,834.95 in taxable costs.

2 2 . Respondent did not meet her burden to identify with specificity which

fees, if any, s hould be reduced. Her argument of unfairness is not cognizable

in this proceeding because DOAH has no common law authority and is not a

court of equity. See French v. Ag. for Pers. with Disab ., Case No. 06 - 4565F

(Fla. DOAH Mar. 28, 2007). DOAHÔs authority to award attorneyÔs fees and

costs is prescribed by statute (i.e., section 120.595 ) , not common law

principles of equity. Id.

R ECOMMENDATION

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

R ECOMMENDED that Respondent, Carmen Diaz, pa y to Palafox its reasonable

attorneyÔs fees and taxable costs in the amount of $136,161.00.

D ONE A ND E NTERED this 2 3rd day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

S UZANNE V AN W YK

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 2 3rd day of June , 2021 .

C OPIES F URNISHED :

Nicholas D. Fugate, Esquire W. Douglas Hall, Esquire

Nicholas D. Fugate, P.A. Carlton Fields, P.A.

Post Office Box 7548 215 South Monroe Street, Suite 500

Tallah assee, Florida 32314 Post Office Drawer 190

Tallahassee, Florida 32301

James E. Parker - Flynn, Esquire

Carlton Fields, P.A. Jefferson M. Braswell, Esquire

Post Office Drawer 190 Braswell Law, PLLC

Tallahassee, Florida 32302 116 Northeast 3rd Avenue

Gainesville, Florida 32601

Brett J. Cyphers, Executive Director

Northwest Florida Water

Management District

81 Water Management Drive

Havana, Florida 32 333 - 4712

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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

cas e.