91-45 District Court Order Remanding For Attorney's Fees, BILL COLON VS. STATE OF FLORIDA COMMISSION ON ETHICS

=================================================================

DISTRICT COURT ORDER REMANDING FOR ATTORNEY'S FEES

=================================================================

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JANUARY TERM 1996

BILL COLON, NOT FINAL UNTIL THE TIME EXPIRES TO FILE REHEARING MOTION,

Appellant(s), AND, IF FILED, DISPOSED OF.

vs. CASE NO. 94-3008

L. T. CASE NO. 91-45

STATE OF FLORIDA COMMISSION DOAH CASE NO. 95-6181FE

ON ETHICS, (previously 92-2458EC)

Appellee(s).

October 18, 1995

_____________________________/

BY ORDER OF THE COURT:

ORDERED that the motion for attorneys' fees filed by Stuart, counsel for appellees, is hereby granted, and pursuant to Fla. R. App. P. 9.400(b), upon remand of this cause the amount thereof shall be assessed by the trial court upon due notice and hearing, subject to review by this court under Fla. R. App. P. 9.400(c). If a motion for rehearing is filed in this court, then services rendered in connection therewith, including but not limited to preparation of a responsive pleading, shall be taken into account in computing the amount of the fee; further,

ORDERED that appellant's September 28, 1995, motion for clarification is hereby stricken as unauthorized argument.

I hereby certify the foregoing is a

true copy of the original court order

_____________________

MARILYN BEUTTENMULLER

CLERK

cc: Bill Colon

Commission on Ethics

Philip C. Claypool

=================================================================

RECOMMENDED ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF SUNRISE AND STEVEN B. FEREN,

Petitioners/Intervenors,

vs. CASE NO. 95-6181FE

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 May 17, 1996, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Stuart R. Michelson, Esquire

1111 Kane Concourse, Suite 517

Bay Harbor Islands, Florida 33154

For Respondent: 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 B. Feren and the City of Sunrise in connection with the appeal in The Fourth District Court of Appeal Case Number 94-03008, including services rendered in connection with motions for rehearing.

PRELIMINARY STATEMENT

On October 18, 1995, the District Court of Appeal, Fourth District, entered an order granting the motion for attorney's fees filed on behalf of the City of Sunrise and Steven B. Feren in Case No. 94-03008. On November 28, 1995, the District Court of Appeal, Fourth District, issued its mandate to the State of Florida Commission on Ethics, whereupon this matter was referred to the Division of Administrative Hearings for assignment to a hearing officer.

The final hearing was scheduled for February 29, 1996. On January 19, 1996, Respondent, Bill Colon, filed a Motion for Postponement and Change of Location. The motion was granted and the final hearing was rescheduled for May 17, 1996, in Fort Lauderdale, Florida. On March 29, 1996, Respondent filed another request to postpone the hearing. The request was denied. On April 15, 1996, Respondent filed a Motion for Recusal, requesting that the hearing officer recuse herself. The motion was denied.

At the final hearing, the hearing officer explained to the parties that the only issue to be determined in the proceeding was the amount of attorney's fees to be paid to Petitioners. Respondent's request to make an opening statement was granted. As Respondent began his opening statement it became obvious that he was addressing issues which were not the subject of the final hearing. The hearing officer requested Respondent to confine his remarks to the amount of the fees, but he declined to so and voluntarily left the hearing room. Respondent requested that his written opening statement be filed. The written statement has been filed with the Clerk of the Division of Administrative Hearings but has not been considered by the hearing officer in determining the amount of attorney's fees.

At the final hearing, Petitioners called Samuel Goren as their expert witness on the amount of the fees and also called Stuart Michelson. Petitioners' composite Exhibit 1 was entered in evidence.

No transcript was ordered. The parties were to file proposed recommended orders on or before May 28, 1996. Petitioners filed their proposed recommended order on May 22, 1996. Respondent filed a Recommended Order on May 28, 1996. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

On May 28, 1996, Respondent filed a Motion to Dismiss the Results of the Hearing Held on May 17, 1996. The motion is DENIED.

FINDINGS OF FACT

1. On October 18, 1995, The District Court of Appeal, Fourth District, entered an order granting Petitioners, City of Sunrise and Steven B. Feren's, motion for attorney's fees in Case No. 94-03008. A scrivener's error in the order was corrected by order dated November 9, 1995. The corrected order stated:

ORDERED that the motion for attorney's fees filed by Stuart Michelson, counsel for appellees, is hereby granted, and pursuant to Fla. R. App. P. 9.400(b), upon remand of this cause the amount thereof shall be assessed by the trial court upon due notice and hearing, subject to review by this court under Fla. R. App. P. 9.400(c). If a motion for rehearing is filed in this court, then services rendered in connection therewith, including but not limited to preparation of a responsive pleading, shall be taken into account in computing the amount of the fee; . . . .

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

3. Prior to rendering an opinion on the reasonable amount of attorney's fees incurred by Petitioners, Goren reviewed the following documents relating to these proceedings: two volumes of pleadings, Stuart Michelson's correspondence file, unfinished drafts of Stuart Michelson's brief, and eight statements from Stuart Michelson (Michelson) for legal services rendered. Goren is familiar with the case of Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and Florida Bar Rule 4-1.5. Goren also interviewed Michelson regarding the work he performed. Based on the foregoing, Goren rendered an opinion on the reasonable hourly rate and the reasonable numbers of hours for the work performed and, consequently, a reasonable legal fee for the services rendered.

4. Michelson charged an hourly rate of $125.00 for his services and $40.00 for the services of paralegals. Goren opined that based on Michelson's skill, experience and reputation, that the hourly rates for attorney's services were very reasonable for the community. Additionally, Goren opined that the rate of $40.00 per hour for paralegal services was also reasonable for the community. I hereby find that the hourly rate of $125.00 for Michelson's services and the hourly rate of $40.00 for the services of a paralegal are reasonable.

5. The services of the Michelson law firm relating to the appeal to the Fourth District Court of Appeal and the motion for rehearing were performed from October 17, 1994, through November 13, 1995.

6. The reasonable amount of attorney hours for the appeal of the final order of the Ethics Commission to the Fourth District Court of Appeal, including services in connection with Colon's motion for rehearing is 88.2. At $125.00 per hour, this amounts to a reasonable fee of $11,025.00.

7. The reasonable amount of paralegal hours for the appeal of the final order of the Ethics Commission to the Fourth District Court of Appeal, including services in connection with Colon's motion for rehearing is 15.45. At $40.00 per hour, this amounts to a reasonable fee of $618.00.

8. The services of the Michelson law firm relating to the determination of the amount of the fees was performed from December 18, 1995 through the date of the final hearing. In addition there will be additional time which will be necessary to bring the proceeding to a Final Order.

9. Michelson submitted invoices to Petitioners dated February 9, 1996 and May 16, 1996. A review of the invoices indicates that some of the services provided did not relate to the fee hearing but to other matters including a lien. Based on the invoices the following dates appear to be for services related to the fee hearing: December 18, 19, 21, and 30, 1995; January 10, 18, 19, and 25, 1996; May 6, 7, 10, 11, 14, 15, and 16, 1996; and May 8 and 9, 1996, excluding lien services. Based on these invoices the reasonable amount of attorney hours for the determination of the amount of fees through May 16, 1996 was 12.5, which equates to $1,562.50.

10. Goren opined that an additional 20 to 25 attorney hours will be needed to bring this case to final conclusion with a final order being entered by the Ethics Commission. A reasonable number of attorney hours necessary to bring this case to final conclusion from the date of the final hearing to the entry of a final order by the Ethics Commission is 25 hours and a reasonable rate for the attorney's time is $125 per hour. The reasonable amount of fees that would be incurred from the final hearing to the entry of a final order by the Ethics Commission is $3,125.00

11. The attorney and paralegal services and costs contained in the December 8, 1995, statement from the Michelson law firm deal with a petition for certiorari and are not within the scope of the order by the Fourth District Court of Appeal.

12. The amount of reasonable costs incurred by Petitioners in this proceeding and the appeal to the Fourth District Court of Appeal is $896.70.

13. Goren charged the Petitioners $350 for services as an expert witness in connection with these proceedings from October, 1995 through April 30, 1996. Goren spent an additional 9.7 hours on this matter through the final hearing. Goren's hourly rate of $125 is reasonable. The number of hours spent by Goren is reasonable. Goren's fee of $1,562.50 is a reasonable fee for an expert witness in this proceeding.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

15. In Florida Patient 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. The 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 the 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) experience, reputation and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent.

16. Based on the methodology set forth in Rowe, the number of hours reasonably spent on the proceedings through May 16, 1996 in connection with the appeal to the Fourth District Court of Appeal and with the determination of the amount of fees owing is 100.7 attorney hours and 15.45 paralegal hours. There is an additional 25 hours of time estimated to be the reasonable time which will have to be spent to bring this matter to a final order. The total amount of fees for legal services from the Michelson law firm incurred and to be incurred by Petitioners is $16,330.50.

17. The reasonable amount of fees for Goren as an expert witness in the fee determination hearing is $1,562.50.

18. The reasonable amount of cost incurred by the Petitioners in this proceeding is $896.70.

RECOMMENDATION

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

RECOMMENDED a final order be entered awarding Petitioners, Steven B. Feren and the City of Sunrise $18,789.70 for reasonable attorney's fees and costs.

DONE AND ENTERED this 29th day of May, 1996, 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 29th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-6181FE

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-3: Accepted.

2. Paragraphs 4-6: Rejected as not supported by the evidence.

3. Paragraphs 7-8: Accepted.

Respondent's Proposed Findings of Fact.

The Respondent's Recommended Order did not contain findings of fact.

COPIES FURNISHED:

Stuart R. Michelson, Esquire

1111 Kane Concourse, Suite 517

Bay Harbor Islands, Florida 33154

Mr. Bill Colon

11640 Northwest 30th Place

Sunrise, Florida 33323

Carrie Stillman, Complaint Coordinator

Commission on Ethics

Post Office Box 15709

Tallahassee, Florida 32317-5709

Bonnie Williams, Executive Director

Florida Commission On Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709