40 Fla. L. Weekly D2395aop of Form
Workers’
compensation — Attorney’s fees — Judge of compensation claims erred in
denying claimant’s former attorney’s motion to strike employer/carrier’s
untimely response to verified petition for attorney’s fees and costs where e/c
failed to establish good cause for late filing — Reductions in attorney’s fees
and costs reversed — JCC did not err in declining to award payment for legal
assistants’ time where petition failed to set forth prima facie statement that
paralegal time was spent engaging in nonclerical, meaningful legal support
compensation — Attorney’s fees — Judge of compensation claims erred in
denying claimant’s former attorney’s motion to strike employer/carrier’s
untimely response to verified petition for attorney’s fees and costs where e/c
failed to establish good cause for late filing — Reductions in attorney’s fees
and costs reversed — JCC did not err in declining to award payment for legal
assistants’ time where petition failed to set forth prima facie statement that
paralegal time was spent engaging in nonclerical, meaningful legal support
JOSHUA C. NELSON, THE FORMER COUNSEL OF THE CLAIMANT, MAHNAZ REDAEI,
Appellant, v. PHARMERICA, SPECIALTY RISK SERVICES, INC. and MAHNAZ REDAEI,
Appellees. 1st District. Case No. 1D15-1582. Opinion filed October 22, 2015. An
appeal from an order of the Judge of Compensation Claims. Ellen H. Lorenzen,
Judge. Date of Accident: October 29, 2001. Counsel: Richard W. Ervin, III, of
Fox & Loquasto, Tallahassee, Susan W. Fox of Fox & Loquasto, P.A.,
Orlando, and Joshua C. Nelson of Smith, Feddeler, Smith, P.A., Lakeland, for
Appellant. Ben H. Cristal and Michael L. Cantrell of Cristal Hanenian, Tampa,
for Appellees.
Appellant, v. PHARMERICA, SPECIALTY RISK SERVICES, INC. and MAHNAZ REDAEI,
Appellees. 1st District. Case No. 1D15-1582. Opinion filed October 22, 2015. An
appeal from an order of the Judge of Compensation Claims. Ellen H. Lorenzen,
Judge. Date of Accident: October 29, 2001. Counsel: Richard W. Ervin, III, of
Fox & Loquasto, Tallahassee, Susan W. Fox of Fox & Loquasto, P.A.,
Orlando, and Joshua C. Nelson of Smith, Feddeler, Smith, P.A., Lakeland, for
Appellant. Ben H. Cristal and Michael L. Cantrell of Cristal Hanenian, Tampa,
for Appellees.
(RAY, Judge.) In this workers’ compensation appeal, Appellant, the former attorney
for Claimant, argues the Judge of Compensation Claims (JCC) erred in denying
his motion to strike the Employer/Carrier’s (E/C’s) untimely response to
Appellant’s petition for attorney’s fees and costs. Because the E/C failed to
establish good cause for the late filing, the JCC had no discretion to reduce
the amount of Appellant’s legally sufficient claim for attorney’s fees and
costs. Nonetheless, the JCC did not err in declining to award payment for legal
assistants’ time, as the petition failed to establish a prima facie legal basis
for such an award. Accordingly, the final compensation order awarding fees and
costs is affirmed in part and reversed in part.
for Claimant, argues the Judge of Compensation Claims (JCC) erred in denying
his motion to strike the Employer/Carrier’s (E/C’s) untimely response to
Appellant’s petition for attorney’s fees and costs. Because the E/C failed to
establish good cause for the late filing, the JCC had no discretion to reduce
the amount of Appellant’s legally sufficient claim for attorney’s fees and
costs. Nonetheless, the JCC did not err in declining to award payment for legal
assistants’ time, as the petition failed to establish a prima facie legal basis
for such an award. Accordingly, the final compensation order awarding fees and
costs is affirmed in part and reversed in part.
I.
Appellant filed with the JCC and served on the E/C an amended verified
petition for attorney’s fees and costs on September 19, 2014. Appellant alleged
that as a result of both his and his firm’s legal services, medical and
indemnity benefits were secured for Claimant for which attorney’s fees were
owed, payable by the E/C (the legal services included discovery and three merit
hearings). Appellant sought three awards: (1) payment of an attorney’s fee for
129.68 hours at the rate of $275 per hour, or $35,662; (2) payment for legal
assistants’ time for 327.57 hours at varying rates (ranging from $46 per hour
to $64 per hour), or $19,276.72; and (3) costs totaling $11,252.56. The value
of the benefits secured was alleged to be $34,261.92.
petition for attorney’s fees and costs on September 19, 2014. Appellant alleged
that as a result of both his and his firm’s legal services, medical and
indemnity benefits were secured for Claimant for which attorney’s fees were
owed, payable by the E/C (the legal services included discovery and three merit
hearings). Appellant sought three awards: (1) payment of an attorney’s fee for
129.68 hours at the rate of $275 per hour, or $35,662; (2) payment for legal
assistants’ time for 327.57 hours at varying rates (ranging from $46 per hour
to $64 per hour), or $19,276.72; and (3) costs totaling $11,252.56. The value
of the benefits secured was alleged to be $34,261.92.
The E/C filed its verified response on February 6, 2015, bearing an
October 16, 2014, certificate of service date. In its response, the E/C alleged
that if a statutory guideline fee was not applicable, the reasonable number of
hours expended would be 64.75 for a total fee of $12,375; that no time should
be awarded for the legal assistants’ time, as those entries were duplicative of
attorney time or were otherwise vague; and that the cost reimbursement should
be $3,541.50.
October 16, 2014, certificate of service date. In its response, the E/C alleged
that if a statutory guideline fee was not applicable, the reasonable number of
hours expended would be 64.75 for a total fee of $12,375; that no time should
be awarded for the legal assistants’ time, as those entries were duplicative of
attorney time or were otherwise vague; and that the cost reimbursement should
be $3,541.50.
On February 27, 2015, Appellant filed a motion to strike the E/C’s factual
defenses on grounds the E/C failed to serve its verified response within thirty
days of service of Appellant’s motion, and thus Appellant’s allegations as set
out in his verified petition should be accepted as true. On March 5, 2015, the
E/C filed its objections to Appellant’s motion, alleging that the response was
completed and notarized on October 16, 2014, and “[t]hat after finalizing the
Verified Response and having it notarized, the undersigned gave the document to
an assistant in the office and asked that the document be e-filed in the case.
However, the assistant mistakenly placed the document directly into the file,
without filing it with the Court or serving it on [Appellant].” The E/C alleged
the response was e-filed as soon as the error was discovered. The E/C also
alleged that Appellant was not prejudiced by this delay.
defenses on grounds the E/C failed to serve its verified response within thirty
days of service of Appellant’s motion, and thus Appellant’s allegations as set
out in his verified petition should be accepted as true. On March 5, 2015, the
E/C filed its objections to Appellant’s motion, alleging that the response was
completed and notarized on October 16, 2014, and “[t]hat after finalizing the
Verified Response and having it notarized, the undersigned gave the document to
an assistant in the office and asked that the document be e-filed in the case.
However, the assistant mistakenly placed the document directly into the file,
without filing it with the Court or serving it on [Appellant].” The E/C alleged
the response was e-filed as soon as the error was discovered. The E/C also
alleged that Appellant was not prejudiced by this delay.
The JCC heard argument on Appellant’s motion to strike at the start of the
March 9, 2015, hearing on the amended verified petition and advised the parties
that she was denying the motion. In her order, the JCC explained her oral
ruling:
March 9, 2015, hearing on the amended verified petition and advised the parties
that she was denying the motion. In her order, the JCC explained her oral
ruling:
E/C claimed there was good cause for its failure to
file the response timely because, while it was prepared 10/16/14, it was
inadvertently not filed and not served on Attorney Nelson until 2/6/15. E/C
argued there was no prejudice to Attorney Nelson’s claim resulting from the
late filing, an argument I accepted because the affidavit was filed 30 days
before final hearing and Attorney Nelson did not require or request additional
time or discovery in order to prepare for the fee hearing because of the late
filing. Further I have not known E/C’s counsel to repeatedly or frequently
violate procedural rules; in fact, I could not recall a prior instance where he
or his firm have been dilatory or late in making required filings. I recognize
that mere inadvertence is not generally good cause excusing untimely
performance of a mandatory act. Nonetheless I DENIED Attorney Nelson’s motion
for the reasons set out above and because of the method in which Attorney
Nelson prepared his affidavit. Mr. Nelson’s firm does not keep contemporaneous
time records for attorneys.
file the response timely because, while it was prepared 10/16/14, it was
inadvertently not filed and not served on Attorney Nelson until 2/6/15. E/C
argued there was no prejudice to Attorney Nelson’s claim resulting from the
late filing, an argument I accepted because the affidavit was filed 30 days
before final hearing and Attorney Nelson did not require or request additional
time or discovery in order to prepare for the fee hearing because of the late
filing. Further I have not known E/C’s counsel to repeatedly or frequently
violate procedural rules; in fact, I could not recall a prior instance where he
or his firm have been dilatory or late in making required filings. I recognize
that mere inadvertence is not generally good cause excusing untimely
performance of a mandatory act. Nonetheless I DENIED Attorney Nelson’s motion
for the reasons set out above and because of the method in which Attorney
Nelson prepared his affidavit. Mr. Nelson’s firm does not keep contemporaneous
time records for attorneys.
After review of the evidence, the JCC found that 9.06 hours should be
deducted from the 129.68 attorney hours claimed, concluding that 120.62 hours
were reasonable. Using an hourly rate of $175 per hour for attorney time expended
through 2011, and $200 per hour thereafter, the JCC found a reasonable fee was
$21,501.
deducted from the 129.68 attorney hours claimed, concluding that 120.62 hours
were reasonable. Using an hourly rate of $175 per hour for attorney time expended
through 2011, and $200 per hour thereafter, the JCC found a reasonable fee was
$21,501.
The JCC did not award any of the paralegal time, finding that the “time
was either clerical/secretarial in nature or duplicated activities performed by
attorneys for which [the JCC] already awarded fees. It was impossible to tell,
for the most part, what paralegal time was directly connected with benefits
secured.” The JCC reduced the cost reimbursement amount to $4,047.93,
subtracting those amounts she determined were related to claims for which
Claimant did not prevail.
was either clerical/secretarial in nature or duplicated activities performed by
attorneys for which [the JCC] already awarded fees. It was impossible to tell,
for the most part, what paralegal time was directly connected with benefits
secured.” The JCC reduced the cost reimbursement amount to $4,047.93,
subtracting those amounts she determined were related to claims for which
Claimant did not prevail.
II.
Florida
Administrative Code Rule 60Q-6.124(3)(b) provides:
Administrative Code Rule 60Q-6.124(3)(b) provides:
Within 30 days after the motion [for
payment of disputed attorney’s fees and costs] is served, the opposing party or
parties shall file a verified response to the motion which includes a detailed
recitation of all matters which are disputed in the form outlined in
subparagraphs (3)(a)1.-6. Failure to file a timely and specific response to a
motion for attorney’s fees and costs detailing matters that are disputed shall,
absent good cause, result in acceptance of the allegations in the motion as
true.
payment of disputed attorney’s fees and costs] is served, the opposing party or
parties shall file a verified response to the motion which includes a detailed
recitation of all matters which are disputed in the form outlined in
subparagraphs (3)(a)1.-6. Failure to file a timely and specific response to a
motion for attorney’s fees and costs detailing matters that are disputed shall,
absent good cause, result in acceptance of the allegations in the motion as
true.
This Court addressed the question of what constitutes “good cause” in
three recent cases. In Morrison Management Specialist v. Pierre, 77 So.
3d 662 (Fla. 1st DCA 2011), we acknowledged that “good cause” requires “some
showing of good faith on the part of the party seeking an enlargement and
some reasonable basis for noncompliance with the time specified’ ” rather than
simple inadvertence or mistake of counsel or ignorance of the rules.” Id.
at 666 (quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d
1304, 1306 (5th Cir. 1985)). In Sapp v. Miami-Dade Police Department (Sapp
I), 82 So. 3d 212, 212-13 (Fla. 1st DCA 2012), the appealed order was
reversed and the matter remanded to the JCC to determine “whether the [E/C] had
good cause for the lack of specificity of its initial response to Claimant’s
fee motion, or for the untimeliness of its amended response to Claimant’s fee
motion, and for a ruling on fees given that finding as to good cause.” In Sapp
v. Miami-Dade Police Department (Sapp II), 98 So. 3d 1273 (Fla. 1st
DCA 2012), this Court reversed and remanded for entry of an order awarding a
fee of $45,990, explaining:
three recent cases. In Morrison Management Specialist v. Pierre, 77 So.
3d 662 (Fla. 1st DCA 2011), we acknowledged that “good cause” requires “some
showing of good faith on the part of the party seeking an enlargement and
some reasonable basis for noncompliance with the time specified’ ” rather than
simple inadvertence or mistake of counsel or ignorance of the rules.” Id.
at 666 (quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d
1304, 1306 (5th Cir. 1985)). In Sapp v. Miami-Dade Police Department (Sapp
I), 82 So. 3d 212, 212-13 (Fla. 1st DCA 2012), the appealed order was
reversed and the matter remanded to the JCC to determine “whether the [E/C] had
good cause for the lack of specificity of its initial response to Claimant’s
fee motion, or for the untimeliness of its amended response to Claimant’s fee
motion, and for a ruling on fees given that finding as to good cause.” In Sapp
v. Miami-Dade Police Department (Sapp II), 98 So. 3d 1273 (Fla. 1st
DCA 2012), this Court reversed and remanded for entry of an order awarding a
fee of $45,990, explaining:
Under this court’s remand in Sapp
I, once the JCC determined that no good cause existed to excuse the
self-insured Employer’s failure to comply with Florida Administrative Code Rule
60Q-6.124(3)(b), the JCC had no discretion to reduce the attorney fee award
here, as the legal sufficiency of Claimant’s fee petition was not at issue.
I, once the JCC determined that no good cause existed to excuse the
self-insured Employer’s failure to comply with Florida Administrative Code Rule
60Q-6.124(3)(b), the JCC had no discretion to reduce the attorney fee award
here, as the legal sufficiency of Claimant’s fee petition was not at issue.
III.
A JCC’s determination of whether the E/C demonstrated good cause for not
timely filing a response to a verified petition for attorney’s fees and costs
is reviewed for abuse of discretion. See Pierre, 77 So. 3d at
665. Here, the JCC “recognize[d] that mere inadvertence is not generally good
cause excusing untimely performance of a mandatory act.” Yet the JCC,
understandably trying to balance the competing equities at hand, denied
Claimant’s motion to strike based on a combination of inadvertence by the E/C,
lack of prejudice to Claimant, and the method Appellant used in preparing his
affidavit. The JCC did not, however, find that the E/C demonstrated good cause
to excuse noncompliance with the filing requirements of the rule.
timely filing a response to a verified petition for attorney’s fees and costs
is reviewed for abuse of discretion. See Pierre, 77 So. 3d at
665. Here, the JCC “recognize[d] that mere inadvertence is not generally good
cause excusing untimely performance of a mandatory act.” Yet the JCC,
understandably trying to balance the competing equities at hand, denied
Claimant’s motion to strike based on a combination of inadvertence by the E/C,
lack of prejudice to Claimant, and the method Appellant used in preparing his
affidavit. The JCC did not, however, find that the E/C demonstrated good cause
to excuse noncompliance with the filing requirements of the rule.
In accord with this Court’s conclusion in Sapp II, the JCC here
abused her discretion in denying the motion to strike after finding that the
untimely filing of the response was due to “mere inadvertence.” It follows that
the reductions in the attorney’s fee and costs should be reversed as the JCC
should have accepted Appellant’s allegations regarding the reasonable
attorney’s fee and costs as true.*
abused her discretion in denying the motion to strike after finding that the
untimely filing of the response was due to “mere inadvertence.” It follows that
the reductions in the attorney’s fee and costs should be reversed as the JCC
should have accepted Appellant’s allegations regarding the reasonable
attorney’s fee and costs as true.*
IV.
Turning to the JCC’s denial of an award for any of the paralegal time, we
affirm. It was Appellant’s burden to prove that the paralegal time was, in
addition to being necessary to the procurement of the benefits,
“nonclerical, meaningful legal support to the matter involved.” Dayco Prods.
v. McLane, 690 So. 2d 654, 656 (Fla. 1st DCA 1997) (quoting section 57.104,
Florida Statutes (1991)). The verified petition simply stated that “this firm
was required to expend approximately 327.57 hours in legal assistant time as
itemized below,” but the motion does not set forth a prima facie statement that
the paralegal time was spent engaging in non-clerical legal efforts. A review
of the itemization attached to the verified petition does not make it clear
what time was clerical and what time, if any, was “nonclerical, meaningful
legal support.” That is to say, even if the JCC was required to accept as true
the allegation that 327.57 hours of legal assistants’ time were expended, it
does not follow that such time is reimbursable under the law. Thus, the JCC did
not abuse her discretion in denying the paralegal time.
affirm. It was Appellant’s burden to prove that the paralegal time was, in
addition to being necessary to the procurement of the benefits,
“nonclerical, meaningful legal support to the matter involved.” Dayco Prods.
v. McLane, 690 So. 2d 654, 656 (Fla. 1st DCA 1997) (quoting section 57.104,
Florida Statutes (1991)). The verified petition simply stated that “this firm
was required to expend approximately 327.57 hours in legal assistant time as
itemized below,” but the motion does not set forth a prima facie statement that
the paralegal time was spent engaging in non-clerical legal efforts. A review
of the itemization attached to the verified petition does not make it clear
what time was clerical and what time, if any, was “nonclerical, meaningful
legal support.” That is to say, even if the JCC was required to accept as true
the allegation that 327.57 hours of legal assistants’ time were expended, it
does not follow that such time is reimbursable under the law. Thus, the JCC did
not abuse her discretion in denying the paralegal time.
Based on the foregoing, we AFFIRM in part and REVERSE in part, and REMAND
for entry of an order awarding Appellant an attorney’s fee of $35,662 and an
award of costs in the amount of $11,252.56. (WETHERELL and ROWE, JJ., CONCUR.)
for entry of an order awarding Appellant an attorney’s fee of $35,662 and an
award of costs in the amount of $11,252.56. (WETHERELL and ROWE, JJ., CONCUR.)
__________________
*This case does not involve allegations that the attorney’s fee was
unconscionable or outrageous. Indeed, the amount awarded by the JCC was
relatively close to what was claimed. This Court has affirmed a JCC’s reduction
of a claimant’s attorney’s time because the JCC found “the claimed fee was
clearly excessive and unconscionable.” Jackson v. Ryan’s Family Steak House,
27 So. 3d 90, 90 (Fla. 1st DCA 2010). In his concurrence, Chief Judge Hawkes,
while acknowledging case law that discusses the limitations placed on JCCs when
determining attorney’s fees, noted:
unconscionable or outrageous. Indeed, the amount awarded by the JCC was
relatively close to what was claimed. This Court has affirmed a JCC’s reduction
of a claimant’s attorney’s time because the JCC found “the claimed fee was
clearly excessive and unconscionable.” Jackson v. Ryan’s Family Steak House,
27 So. 3d 90, 90 (Fla. 1st DCA 2010). In his concurrence, Chief Judge Hawkes,
while acknowledging case law that discusses the limitations placed on JCCs when
determining attorney’s fees, noted:
Nevertheless we
have never imposed such restrictions to an extent that would require a JCC to
abandon common sense, good judgment, or his statutory role as the arbiter of
reasonableness so as [to] allow the award of an unconscionably excessive fee.
To the contrary, no court is obliged to approve a judgment that is so
manifestly unjust that it offends the judicial conscience.
have never imposed such restrictions to an extent that would require a JCC to
abandon common sense, good judgment, or his statutory role as the arbiter of
reasonableness so as [to] allow the award of an unconscionably excessive fee.
To the contrary, no court is obliged to approve a judgment that is so
manifestly unjust that it offends the judicial conscience.
Id. at 92 (Hawkes, C.J., concurring).
* * *