STATE OF FLORIDA
COMMISSION ON ETHICS
In re JOHN TOMLINSON, JR., )
) Complaint No. 95-156
Respondent. ) DOAH Case No. 96-1435FE
) Final Order No. COE 96-08
FINAL ORDER DENYING ATTORNEYS FEES AND COSTS
This matter comes before the Commission on the Recommended Order of the Division of Administrative Hearings Hearing Officer rendered on July 1, 1996 (a copy of which is attached and incorporated herein by reference), in which she recommends that the Commission enter a final order denying John Tomlinson, Jr.’s petition for attorney’s fees.
This matter began on February 16, 1996, with Respondent’s filing a petition for attorney’s fees and costs against Gene Flinn, Complainant, relative to an ethics complaint that Flinn had filed against him on November 14, 1995. The Commission’s Executive Director issued her Recommendation of Legal Insufficiency on January 8, 1996, which was adopted by the Commission on January 25, 1996 in a Public Report and Order Dismissing Complaint which was entered and filed with the Clerk of the Commission on January 30, 1996. Respondent’s petition for attorney’s fees and costs was referred to the Division of Administrative Hearings (“DOAH”) for assignment to a Hearing Officer. After one continuance, the final hearing on the petition was held on June 17, 1996. Although noticed for the hearing, Complainant Flinn failed to appear.
In the Hearing Officer’s Recommended Order, which was mailed by DOAH to Respondent’s attorney and to Mr. Flinn on July 1, 1996, both parties were advised of their right to submit exceptions to the order. In her July 3, 1996 letter, attached to which was another copy of the Hearing Officer’s Recommended Order, the Commission’s Complaint Coordinator again advised the parties of their right to file exceptions to the Recommended Order. Mr. Tomlinson timely filed his exceptions which will be addressed below. However, Complainant Flinn’s letter and order were returned to the Commission on July 12, 1996, having been refused by Mr. Flinn.
Having reviewed the Recommended Order, the record of the proceedings, and Respondent’s exceptions, the Commission makes the following findings, conclusions, rulings, and determinations:
STANDARDS FOR REVIEW
Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.
RULINGS ON RESPONDENT’S EXCEPTIONS
Respondent observes that the Hearing Officer recommends denial of the petition despite her recommended Conclusion of Law No. 12 which sets forth Rule 34-5.0291(4), F.A.C., indicating that Respondent, as Petitioner, has the burden of establishing the grounds for awarding costs and attorney’s fees, and her recommended Conclusion of Law No. 13, concluding that Complainant Flinn filed his complaint with reckless disregard for “the falsity of his allegations” and with malicious intent to injure Respondent’s reputation. Respondent argues that the Hearing Officer’s conclusions indicate that, in fact, he has established the grounds for an award of fees and costs. He argues further that in view of his exhibits nos. 1 through 8, which were admitted into evidence and which illustrate the work that was done, the Hearing Officer’s recognition of the “ethical considerations” that go into determining the reasonableness of attorney’s fees, and his attorney’s having charged him a flat fee, she erroneously concluded that he is not entitled to an award of fees either because (a) the fees must be $10,000 [the flat fee charged by his attorney] or nothing, or (b) that no fees would be reasonable.
The case of Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), as modified by Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), established the method for determining the amount of reasonable attorney's fees to be awarded. There the Court adopted the federal lodestar approach which requires a court to determine the number of hours reasonably expended on the litigation and to multiply that amount by a reasonable hourly rate for the services of the attorney. The factors to be considered by a court in making these determinations, as set forth in the opinion, are those factors enunciated in Rule 4-1.5 of the Florida Bar Code of Professional Responsibility. They are as follows:
1. The time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal services properly;
2. The likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
3. The fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;
4. The significance of or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;
5. The time limitation imposed by the clients or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;
6. The nature and length of the professional relationship with the client;
7. The experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficience of effort reflected in the actual providing of such services; and
8. 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.
Rowe, supra, at p. 1150. See also Ganson v. State Department of Administration, 554 So. 2d 522 (Fla 1st DCA 1989), where the court approved and adopted the report and recommendation of the DOAH hearing officer establishing the amount of reasonable fees for the administrative phase, appeal phase, and attorney fee phase, of an administrative proceeding employing the Rowe methodology.
The $10,000 flat fee agreement between Respondent and his counsel is certainly appropriate to govern a variety of aspects of their relationship, but, contrary to Respondent’s suggestion, it cannot govern the determination of what constitutes a “reasonable fee.” That must be derived from weighing the statutory factors. At most, the fee agreement may serve to limit the fee. Seminole County v. Delco Oil, Inc., 669 So. 2d 1162, 1168 (Fla. 5th DCA 1996).
In Suarez v. Suarez, 560 So. 2d 1385 (Fla 2d DCA 1990), a case involving attorney’s fees for work performed in litigating the modification of a final judgment of dissolution of marriage, the Court, referencing Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975), wrote:
To support a fee award, there must be the following: (1) evidence detailing the service performed and (2) expert testimony as to the reasonableness of the fee.
Id. at p. 1386. See also Tucker v. Tucker, 513 So. 2d 733 (Fla. 2d DCA 1987), regarding the necessity of providing the attorney's time records under Rowe. Although Respondent argues that his exhibit No. 9 indicated that he would review the complaint, the previous [ethics] complaint, Mr. Flinn’s disbarment proceedings and Mr. Flinn’s federal actions, and research the applicable law (Hearing Officer’s recommended Finding of Fact No. 7), and his other exhibits illustrate the work that he actually performed, Respondent failed to provide either the evidence or the expert testimony required by Suarez, supra.
An award of attorney’s fees requires competent substantial evidence of both the services performed by the attorney and the reasonable value of those services. Fowler v. First Federal Savings & Loan Association of Defuniak Springs, 643 So. 2d 30, 33 (Fla. 1st DCA 1994). Respondent failed to provide any evidence of the number of hours that his attorney reasonably expended on the case, what the customary charge in the community is for his attorney’s services (Hearing Officer’s recommended Finding of Fact No. 8), and what his attorney’s experience, ability, and reputation is (Hearing Officer’s Finding of Fact No. 9). It was not the Hearing Officer’s function, as Respondent appears to suggest, to attempt to glean such evidence from his exhibits.
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959).
Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).
Furthermore, it would have been error for the Hearing Officer to have recommended awarding attorney’s fees, where, as here, there is no record evidence to support the award and without her making the findings required by [Rowe, supra]. Pitts v. Pitts, 626 So. 2d 278, 284 (Fla. 1st DCA 1993), citing Mayo v. Mayo, 619 So.2d 513 (Fla 4th DCA 1993). Because there was no record evidence to support an award of attorney’s fees and there are no findings required by Rowe, Respondent’s exceptions must be rejected.
Respondent also has not excepted to the Hearing Officer’s Finding of Fact nos. 8 and 9. He also does not challenge the Hearing Officer’s application of the Rowe standard for determining reasonable attorney’s fees. Because we find that the Hearing Officer’s recommended findings are supported by the record and because we find that, in addition to entitlement to attorney’s fees, Respondent was required to prove a reasonable amount of fees and has failed to do so, we hereby reject Respondent’s exceptions.
We also find that because the proceedings complied with the essential requirements of law and Respondent was afforded the opportunity through a formal proceeding under Section 120.57, Florida Statutes, to prove his entitlement to reasonable attorney’s fees, but failed to do so, he is not entitled to a second hearing to prove those facts that he failed to prove during his first hearing.
Accordingly, the Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
1. The Conclusions of Law set forth in the Recommended Order also are approved, adopted, and incorporated herein by reference; and
2. The Petition for attorney’s fees and costs filed by Respondent/Petitioner John G. Tomlinson, Jr. is hereby denied.
ORDERED by the State of Florida Commission on Ethics meeting in public session on August 29, 1996.
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110 FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.
cc: Mr. Gene Flinn, Complainant/Respondent
Mr. Stephen Marc Slepin, Attorney for Respondent/Petitioner
Honorable Susan B. Kirkland, Hearing Officer
Division of Administrative Hearings