91-45 Recommended Order, STEVEN B. FEREN VS. BILL COLON

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN B. FEREN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2458EC

)

BILL COLON, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on April 11, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Respondent: Stuart R. Michelson, Esquire

1111 Kane Concourse, Suite 517

Bay Harbor Islands, Florida 33154

For Complainant: Bill Colon, Pro Se

11640 Northwest 30th Place

Sunrise, Florida 33323

STATEMENT OF THE ISSUES

What is the amount of reasonable attorney's fees and costs incurred by Steven Feren in connection with Ethics Complaint No. 91-45 filed against him by Bill Colon.

PRELIMINARY STATEMENT

On April 30, 1993, the Florida Commission on Ethics (Commission) entered an Order of Remand to the Division of Administrative Hearings. The Commission concluded that Complainant, Bill Colon (Colon), filed an ethics complaint which was frivolous and without basis in law and fact against Respondent, Steven B. Feren (Feren), a public officer, with a malicious intent to injure the reputation of Feren and remanded this case to the Division of Administrative Hearings for further evidentiary proceedings necessary to resolve all factual issues concerning the amount of reasonable attorney's fees to be awarded consistent with the methodology set forth in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). The case was originally assigned to Hearing Officer Larry Sartin, who recused himself and transferred the case to Hearing Officer Susan B. Kirkland.

At the final hearing, Feren testified on his own behalf and called Samuel Goren as an expert witness. Respondent's Exhibits 1-3 were admitted into evidence. Colon testified on his own behalf and called Stuart Michelson as a witness.

Feren filed a Motion to Quash the service of process made on Feren and Stuart Michelson. At the hearing Feren withdrew the Motion to Quash. Colon filed a Writ of Error Coram Nobis, which was DENIED at final hearing. Subsequent to the final hearing, Colon filed a Motion for Rehearing; Motion to Strike Expert Witness Testimony; Motion to Accept Writ of Error; and Motion to Enforce Rule 60Q-2.009. Colon's posthearing motions are DENIED.

The parties agreed to file proposed recommended orders 30 days after the date of the filing of the transcript. The transcript was filed on May 6, 1994. Feren filed proposed findings of fact and conclusions of law on May 26, 1994. Colon did not file a proposed recommended order. Feren's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On April 30, 1993, the Florida Commission on Ethics (Commission) issued an Order of Remand to the Division of Administrative Hearings in which the Commission determined that Complainant, Bill Colon (Colon) filed Ethics Complaint No. 91-45, which was frivolous and without basis in law and fact against Respondent, Steven Feren (Feren), a public officer, with a malicious intent to injure the reputation of Feren and remanded this case to the Division of Administrative Hearings for further evidentiary hearings necessary to resolve the issue of the amount of fees to be awarded.

2. Attorney Stuart Michelson was retained to represent Feren regarding Ethics Complaint No. 91-45 filed by Colon.

3. Attorney Samuel Goren (Goren) was retained by Feren to testify at the final hearing as an expert witness on the reasonable amount of attorneys fees incurred by Feren. Without objection Goren was qualified and accepted as an expert on the subject of determining reasonable attorney's fees and costs.

4. Prior to rendering an opinion on the reasonable amount of attorney's fees incurred by Feren, Goren reviewed the following documents relating to these proceedings: three volumes of pleadings, a file on the writ of coram nobis, case decisions regardings the pleadings, the deposition of Colon, the deposition of Feren, the deposition of Peter Ostreich, the deposition of Goren, portions of the transcript of the proceedings before Hearing Officer Sartin on November 16, 1992, and correspondence. Goren reviewed 13 statements from Mr. Michelson for legal services rendered, which statements are Respondent's Composite Exhibit 1. Goren was familiar with the case of Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), Florida Bar Rule 4-1.5, Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), Chapter 112, Florida Statutes, and Chapter 34, Florida Administrative Code. Goren also interviewed Mr. Michelson regarding the work he performed. Based on the foregoing, Goren rendered an opinion on the reasonable hourly rate and the reasonable number of hours for the work performed and consequently a reasonable legal fee for the services rendered in this proceeding.

5. Mr. Michelson charged an hourly rate of $125 for his services and $40 for the services of a paralegal. Goren opined that based on Mr. Michelson's skill, experience, and reputation that the hourly rates for attorney services were very reasonable for the community. Additionally, Goren opined that the rate of $40 per hour for paralegal services was also reasonable for the community. I hereby find that the hourly rate of $125 for Mr. Michelson's services and the hourly rate of $40 for the services of a paralegal are reasonable.

6. Mr. Michelson's statement for services rendered from April 16, 1991 through March 10, 1992, totaled 36.1 attorney hours at $125 per hour. Goren opined that 35 hours was a reasonable amount of time for the services performed, and I hereby find that 35 hours is a reasonable amount of time for the services rendered for that time period. The reasonable legal fee incurred by Mr. Feren from April 16, 1991 through March 10, 1992, is $4,375.00.

7. Mr. Michelson's statement for services rendered from March 13, 1992 through April 9, 1992, totaled 25.5 attorney hours at $125 per hour. Goren opined that 25.1 was a reasonable amount of time for the services performed, and I hereby find that 25.1 hours is a reasonable amount of time for services rendered for that time period. The reasonable legal fee incurred by Mr. Feren from March 13, 1992 through April 9, 1992 is $3,137.50.

8. Mr. Michelson's statement for services rendered from April 13, 1992 through May 16, 1992, totaled 14.15 attorney hours at $125 per hour. Goren opined that 14.1 hours was a reasonable amount of time for the services performed, and I hereby find that 14.1 hours is a reasonable amount of time for services rendered for that time period. The reasonable legal fee incurred by Mr. Feren from April 13, 1992 through May 16, 1992 is $1,762.50.

9. Mr. Michelson's statement for services rendered from May 19, 1992 through July 17, 1992 totaled 61.55 attorney hours at $125 per hour and .5 paralegal hours at $40 per hour. Goren opined that 61.5 hours for attorney time and .5 hours for paralegal time were reasonable amounts of time for services performed, and I hereby find that 61.5 attorney hours and .5 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from May 19, 1992 through July 17, 1992 are $7,687.50 for attorney services and for $20.00 for paralegal services.

10. Mr. Michelson's statement for July 20, 1992 through September 14, 1992, totaled 18.2 attorney hours at $125 per hour. Goren opined that 18.2 hours was a reasonable amount of time for the services performed, and I hereby find that 18.2 attorney hours is a reasonable amount of time for the services rendered for that time period. The reasonable legal fee incurred by Feren from July 20, 1992 through September 14, 1992 is $2,275.00.

11. Mr. Michelson's statement for September 15, 1992 through November 16, 1992, totaled 45.25 attorney hours at $125 per hour and 10 paralegal hours at $40 per hour. Goren opined that 45.2 attorney hours and 10 paralegal hours are reasonable amounts of time for the services performed, and I hereby find that 45.2 attorney hours and 10 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from September 15, 1992 through November 16, 1992 are $5,650 for attorney services and $400 for paralegal services.

12. Mr. Michelson's statement for November 18, 1992 through January 8, 1993, totaled 32.85 attorney hours at $125 per hour. Goren opined that 32.8 hours is a reasonable amount of time for the services performed, and I hereby find that 32.8 attorney hours is a reasonable amount of time for the services rendered for that time period. The reasonable legal fee incurred by Feren from November 18, 1992 through January 8, 1993 is $4,100.00.

13. Mr. Michelson's statement for January 11, 1993 through February 24, 1993 totaled 36.35 attorney hours at $125 per hour and 9 paralegal hours at $40 per hour. Goren opined that 36.3 attorney hours and 9 paralegal hours were reasonable amounts of time for the services performed, and I hereby find that 36.3 attorney hours and 9 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from January 11, 1993 through February 24, 1993 are $4,537.50 for attorney services and $360 for paralegal services.

14. Mr. Michelson's statement for February 16, 1993 through April 25, 1993 totaled 51.95 attorney hours at $125 per hour and 12.75 paralegal hours at $40 per hour. Goren opined that 51.9 attorney hours and 12.75 paralegal hours were reasonable amounts of time for the services performed, and I hereby find that 51.9 attorney hours and 12.75 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from February 16, 1993 through April 25, 1993 totaled $6,487.50 for attorney services and $510.00 for paralegal services.

15. Mr. Michelson's statement for April 26, 1993 through May 30, 1993 totaled 28.40 attorney hours at $125 per hour. Goren opined that 28.4 attorney hours was a reasonable amount of time for the services performed, and I hereby find that 28.4 attorney hours is a reasonable amount of time for the services rendered for that time period. The reasonable legal fee incurred by Feren from April 26, 1993 through May 30, 1993 is $3,550.00. The reasonable legal fees incurred by Feren from April 26, 1993 through April 30, 1993 is $93.75 which represents .75 attorney hours at $125 per hour.

16. Mr. Michelson's statement for June 8, 1993 through September 25, 1993 totaled 63.35 attorney hours at $125 per hour and 56.55 paralegal hours at $40 per hour. Goren opined that 63.3 attorney hours and 56.5 paralegal hours were reasonable amounts of time for the services performed, and I hereby find that 63.3 attorney hours and 56.5 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from June 8, 1993 through September 25, 1993 is $7,912.50 for attorney services and $2,260.00 for paralegal services.

17. Mr. Michelson's statement for September 27, 1993 through November 26, 1993 totaled 16.1 attorney hours at $125 per hour and 12 paralegal hours at $40 per hour. Goren opined that 16.1 attorney hours and 12 paralegal hours were reasonable amounts of time for the services performed, and I hereby find that 16.1 attorney hours and 12 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from September 27, 1993 through November 26, 1993 are $2,012.50 for attorney services and $480.00 for paralegal services.

18. Mr. Michelson's statement for December 20, 1993 through March 14, 1994 totaled 18.25 attorney hours at $125 per hour and .75 paralegal hours at $40 per hour. Goren opined that 18.2 attorney hours and .75 paralegal hours are reasonable amounts of time for the services performed, and I hereby find that 18.2 attorney hours and .75 paralegal hours are reasonable amounts of time for the services rendered for that time period. The reasonable legal fees incurred by Feren from December 20, 1993 through March 14, 1994 are $2,275.00 for attorney services and $30.00 for paralegal services.

19. Feren presented no statements for legal services and costs incurred from March 15, 1994, through the conclusion of the final hearing. Goren opined that a reasonable amount of attorney hours for this period of time would be between 10 and 15 hours. I find that a reasonable number of attorney hours necessary to prepare for and participate in the final hearing on April 11, 1993 is 10 hours. At a rate of $125.00 per hour, the reasonable amount for fees incurred from March 15, 1994 through April 11, 1994 is $1,250.00.

20. Goren opined that an additional 50 to 75 attorney hours would be needed to bring the case to final conclusion with a final order being entered by the Commission. I find that a reasonable number of attorney hours necessary to bring this case to final conclusion from April 12, 1994 through the entry of a final order by the Commission is 50 hours. At a rate of $125.00 per hour, the reasonable amount of fees that would be incurred from the close of the final hearing to the entry of a final order by the Commission is $6,250.00.

21. Feren incurred the following costs in connection with Complaint No. 91-45:

a. $827.04 - Transcript of 11/16/92 hearing

b. $ 50.00 - Court reporter appearance for

Colon deposition

c. $286.00 - Transcript of Feren deposition

(Part I)

d. $147.80 - Transcript of Goren deposition

e. $ 78.00 - Transcript of Osterich

deposition

f. $150.00 - Transcript of Feren deposition

(Part II)

g. $ 97.01 - Sheraton Tallahassee Hotel

h. $158.05 - Governor's Inn

i. $463.00 - U.S. Air (Michelson)

j. $567.00 - U.S. Air (Michelson)

k. $567.00 - U.S. Air (Feren)

Of these costs, Goren opined that air fares were excessive and should be reduced to $800 for total air fare. Thus, I find that the total costs incurred by Feren in connection with Complaint No. 91-45 as listed above are $2,593.90.

22. Feren incurred filing costs of $250 for filing the Petition for Writ of Mandamus in the Fourth District Court of Appeal.

23. Goren charged Feren $2,012.50 for services as an expert witness in connection with Ethics Compliant No. 91-45 from May 27, 1992 through December 17, 1992. His charges for services rendered after April 30, 1993, totaled $2,225.00. These fees are based on the hourly rate of $125 and are reasonable.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

25. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this proceeding, Feren is asserting the affirmative; thus, the burden of establishing the amount of costs and reasonable attorney's fees rests with Feren. See Rule 34-5.029(3), Florida Administrative Code.

26. As it pertains to this proceeding Section 112.317(8), Florida Statutes provides:

In any case in which the commission

determines that a person has filed a

complaint against a public officer or

employee with a malicious intent to injure

the reputation of such officer or employee

and in which such complaint is found to be

frivolous and without basis in law or fact,

the complainant shall be liable for costs

plus reasonable attorney's fees incurred by

the person complained against. . . .

27. The Commission has determined that Colon filed a complaint against Feren, a public officer, with a malicious intent to injure the reputation of Feren and that the complaint was frivolous and without basis in law or fact. Thus, the Commission has determined that Colon is liable for the costs and reasonable attorney's fees incurred by Feren.

28. Florida follows the "American Rule" that attorneys fees may be awarded only when authorized by statute or contract. In determining whether a person is entitled to attorney's fees for litigating the issue of the amount of the attorney's fees, the courts have looked to the plain language of the statute authorizing the fees. In State Farm Fire Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993), the Florida Supreme Court held that in interpreting Section 627.428(1), Florida Statutes (1983), fees may be awarded for litigating the entitlement to attorney's fees but not the amount of the fees. In Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 35 (Fla. 1987), the Court interpreted Section 440.34(3), Florida Statutes (1985), to allow a workers' compensation claimant to recover fees for attorney services provided in proving the claimant's entitlement to fees but did not allow fees incurred in establishing the amount of the fees. In Birth-Related N. Injury Comp. v. Carreras, 633 So.2d 1103 (Fla. 3rd DCA 1994), the Third District Court of Appeal determined that Section 766.31(1)(c), Florida Statutes (1991), authorized the payment of attorney's fees for litigating the entitlement to fees but not for litigating the amount of the fees.

29. Based on the analysis used by the court in State Farm v. Palma, supra, the plain language of Section 112.317(8) does not authorize fees and costs for litigating the amount of attorney's fees. Costs and fees incurred by Feren after April 30, 1993, the date the Commission issued the order of remand, relate to the litigation of the amount of fees; thus, those costs and fees should not be considered in determining costs and fees to be awarded to Feren.

30. In Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), the Florida Supreme Court adopted the criteria set forth in Disciplinary Rule 2-106(6) (now renumbered 4-1.5) of the Florida Bar Code of Professional Responsibility to be used in determining reasonable attorney's fees. Criteria to be considered include:

(1) The time and labor required, the novelty

and difficulty of the question involved, and

the skill requisite to perform the legal

services properly.

(2) The likelihood, if apparent to the

client, that the acceptance of the particular

employment will preclude other employment by

the lawyer.

(3) The fee customarily charged in the

locality for similar services.

(4) The amount involved and results

obtained.

(5) The time limitations imposed by the

client or the circumstances.

(6) The nature and length of the

professional relationship with the client.

(7) The experience, reputation, and ability

of the lawyer or lawyers performing the

services.

(8) Whether the fee is fixed or contingent.

31. Based on the methodology set forth in Rowe, the number of hours reasonably spent on the proceedings through the determination of entitlement to fees and costs is 320.85 attorney hours and 32.25 paralegal hours. The reasonable hourly rate for attorney time is $125 and for paralegal time is $40. The total amount of reasonable fees for legal services incurred by Feren is $41,396.25.

32. The total costs incurred by Feren in connection with the proceedings are $8,553.40 which represents $2,593.90 for transcripts, air fare and hotel accommodations and filing fees and $4,237.50 for expert witness fees for Goren.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered awarding Respondent Steven Feren $49,949.65 for reasonable fees and costs incurred.

DONE AND ENTERED this 27th day of June, 1994, in Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2458EC

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on Respondent Feren's proposed findings of fact:

Respondent Feren's Proposed Findings of Fact.

1. Paragraphs 1-2: Accepted.

2. Paragraph 3: Rejected as unnecessary detail.

3. Paragraphs 4-28: Accepted in substance to the extent

that they reflect Goren's testimony but not to the

extent that they represent the amounts which should be

awarded in this proceeding.

4. Paragraphs 29-30: Accepted in substance to the extent

that they reflect Goren's testimony but not to the

extent that they represent the amounts which should be

awarded in this proceeding.

5. Paragraphs 31-32: Accepted in substance.

6. Paragraph 33: Accepted in substance to the extent that

it reflects Goren's testimony but not to the extent that

all the amounts to which Goren testified should be

awarded in this proceeding.

7. Paragraphs 34-36: Accepted in substance.

8. Paragraph 37: Accepted in substance to the extent that

it reflects Goren's testimony but not to the extent that

it represents the costs which should be awarded in this

proceeding.

9. Paragraph 38: Rejected as unnecessary detail.

10. Paragraph 39: Accepted in substance to the extent that

it reflects Goren's testimony but not to the extent

that it represents the amount of expert witness fees

which should be awarded in this proceeding.

11. Paragraphs 40-43: Accepted in substance to the extent

that they reflect Goren's testimony but not to the

extent that they represent the amount of costs and

fees which should be awarded in this proceeding.

12. Paragraph 44: The first sentence is accepted in

substance to the extent that it reflects Goren's

testimony but not to the extent that it represents the

amount of expert witnesses fees which should be awarded

in this proceeding. The second sentence is rejected

as not supported by the greater weight of the evidence

as to the amount which should be awarded in this

proceeding.

COPIES FURNISHED:

Stuart R. Michelson, Esquire

1111 Kane Concourse, Suite 517

Bay Harbor Islands, Florida 33154

William R. Colon

11640 Northwest 30th Place

Sunrise, Florida 33323

Bonnie Williams

Executive Director

Florida Commission On Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, Esquire

General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahasee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.