BEFORE THE
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.
____________________________
Date Rendered
_______________________________
Chair
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