GOPMAN v. DEPT. OF EDUC

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Docket Number

No. 1D07-1189.

Attorney(S)

Miles J. Gopman, Miami, for Petitioner. Deborah K. Kearney, General Counsel, and Margaret O'Sullivan Parker, Deputy General Counsel, Tallahassee, for Respondent.

Judges

HAWKES, J.

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Smart Summary

Factual and Procedural Background

Petitioner Daniel B. Gopman challenged two orders issued by an Administrative Law Judge (ALJ) related to proceedings determining his qualification for a Bright Futures Scholarship. The first order expelled Petitioner's counsel from the hearings due to unruly behavior that threatened the decorum of the proceedings. The second order placed the case in abeyance to allow Petitioner time to obtain new trial counsel. The District Court of Appeal of Florida, First District, subsequently denied Petitioner's petition and issued an order requiring Petitioner to show cause why appellate attorney's fees should not be imposed against him under Florida Statutes sections 57.105 and 120.595(6). After reviewing the parties' responses, the Court decided that fees should be imposed.

Legal Issues Presented

Whether the Administrative Law Judge had authority to expel Petitioner's counsel from the hearings for unruly conduct without exercising contempt powers.
Whether Petitioner's counsel's arguments challenging the ALJ's orders were legally and factually meritorious.
Whether appellate attorney's fees should be imposed against Petitioner and his counsel pursuant to Florida Statutes section 57.105 based on the meritlessness of the petitioner's claims.

Arguments of the Parties

Petitioner's Arguments

The ALJ lacked authority to disqualify Petitioner's counsel because such action constituted an exercise of judicial contempt power, which ALJs do not possess.
The ALJ conducted the hearings in a manner unduly favorable to the Respondent, indicating bias.
Petitioner's counsel maintained proper decorum during the hearings and objected only to preserve the record for appellate review.

Respondent's Arguments

The ALJ acted within authority to ensure orderly hearings and to preserve decorum by disqualifying counsel for unruly behavior under Florida Administrative Code Rule 28-106.211 and Florida Statutes section 120.65(9).
The record demonstrates the ALJ's patience and repeated warnings to Petitioner's counsel, who nonetheless disrupted proceedings.
Petitioner's claims lack factual and legal merit, justifying the imposition of appellate attorney's fees under section 57.105.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
E. Indus. Inc. v. Fla. Unemployment Appeals Comm'n, 960 So.2d 900 (Fla. 1st DCA 2007)	Clarifies when attorney's fees may be imposed under section 57.105 for claims without legal merit.	Used to explain that fees may be imposed when a claim lacks support in material facts or law.
Dunn v. Kean, 928 So.2d 383 (Fla. 1st DCA 2006)	Defines that claims subject to fees are those not grounded in fact or law or lacking reasonable argument for legal change.	Supports the standard for awarding attorney's fees under section 57.105.
Albritton v. Ferrera, 913 So.2d 5 (Fla. 1st DCA 2005)	Same as above regarding legal merit and reasonable argument for extension of law.	Reinforces the criteria for imposing fees on meritless claims.
Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482 (Fla. 3d DCA 2000)	Attorney's fees may be imposed for claims not warranted by existing law or reasonable argument.	Confirms the Court's authority to award fees for insufficiently supported claims.
Wendy's of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003)	Section 57.105 does not require complete absence of justiciable issue to impose fees.	Supports awarding fees for claims insufficiently supported.
Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414 (Fla. 1st DCA 2002)	Same as above regarding imposition of fees for insufficient claims.	Further supports fee imposition standards.
Mercury Ins. Co. of Fla. v. Coatney, 910 So.2d 925 (Fla. 1st DCA 2005)	Defines requirements for reasonable arguments seeking extension or reversal of law, including good faith and acknowledgment of current law.	Clarifies that reasonable legal arguments must be made in good faith to avoid fee imposition.
Judges of the Eleventh Judicial Circuit v. Janovitz, 635 So.2d 19 (Fla. 1994)	Court may award attorney's fees after mandate is issued if motion was timely filed.	Establishes the Court's jurisdiction to award fees post-decision.
Guardado v. Guardado, 813 So.2d 236 (Fla. 5th DCA 2002)	Distinguishes direct criminal contempt orders as punitive rather than coercive.	Used to explain that the ALJ's expulsion order was not an exercise of criminal contempt power.

Court's Reasoning and Analysis

The Court analyzed the statutory and regulatory authority granted to Administrative Law Judges, noting that while ALJs cannot exercise contempt powers that include incarceration or fines, they are authorized to maintain orderly proceedings through reasonable sanctions, including disqualifying counsel for disruptive conduct. The ALJ's order expelling Petitioner's counsel was not punitive but aimed at preserving hearing decorum, which the Court found proper.

The Court examined the hearing transcripts, highlighting multiple warnings given to Petitioner's counsel for interruptions, disputes, and unprofessional conduct. Despite these warnings, counsel persisted in disruptive behavior, justifying the disqualification. The Court rejected Petitioner's claim of ALJ bias, emphasizing the ALJ's patience and repeated admonitions, which undermined any assertion of partiality.

Regarding the appellate petition, the Court found all of Petitioner's counsel's arguments lacked merit, especially the claim that the ALJ improperly exercised contempt power and that counsel's conduct was appropriate. Because these claims were unsupported by law or fact, the Court concluded that fees under section 57.105 were warranted.

Finally, the Court awarded appellate attorney's fees against both Petitioner and his counsel, to be paid equally, and remanded to the ALJ to determine the reasonable amount of fees incurred by Respondent.

Holding and Implications

The Court affirmed the denial of Petitioner's petition and imposed appellate attorney's fees against both Petitioner and his counsel pursuant to section 57.105(1), Florida Statutes.

The direct effect is that Petitioner and his counsel are jointly responsible for paying Respondent's appellate attorney's fees. The case was remanded to the ALJ to determine the reasonable amount of such fees. The opinion does not establish new precedent but reinforces the application of section 57.105 standards for imposing fees on meritless claims and clarifies the scope of ALJ authority to maintain hearing decorum without exercising contempt powers.

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Daniel B. GOPMAN, Petitioner, v. DEPARTMENT OF EDUCATION, State of Florida, Respondent.

HAWKES, J.

Petitioner challenged two orders of an Administrative Law Judge (ALJ). In the first order, the ALJ expelled Petitioner's counsel from hearings concerning whether Petitioner qualified for a Bright Futures Scholarship, indicating counsel's behavior was so unruly that his expulsion was necessary to preserve the proceeding's decorum. The second order placed the case in abeyance, allowing Petitioner time to obtain new trial counsel. On December 4, 2007, we issued an order denying the petition and required Petitioner to show cause why this Court, on its own motion, should not impose appellate attorney's fees against him pursuant to sections 57.105 and 120.595(6), Florida Statutes (2007). Having received the parties' responses, we find fees should be imposed.

Pursuant to section 57.105(1), Florida Statutes (2007), attorney's fees may be imposed when

the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) was not supported by the material facts necessary to establish the claim or defense; or (b) would not be supported by the application of then-existing law to those material facts.

Id. The imposition of such fees means a claim was without legal merit when filed, or was later found to be without legal merit. See E. Indus. Inc. v. Fla. Unemployment Appeals Comm'n, 960 So.2d 900, 901 (Fla. 1st DCA 2007). Claims or defenses subject to the imposition of section 57.105 fees are those that a party or his counsel knew or should have known, at the time of filing, were not grounded in fact, or were not warranted by existing law or by reasonable argument for extension, modification, or reversal of existing law. See Dunn v. Kean, 928 So.2d 383, 383 (Fla. 1st DCA 2006); Albritton v. Ferrera, 913 So.2d 5, 9 (Fla. 1st DCA 2005); Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 493 (Fla.App. 3d DCA 2000). Significantly, section 57.105, Florida Statutes, does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported. See Wendy's of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003); Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 418 (Fla. 1st DCA 2002).

An argument for a reasonable extension, modification, or reversal of existing law, requires the party to acknowledge before the trial court that they are seeking such an extension, modification, or reversal of the existing law. To be reasonable, an argument must be made in good faith; to be in good faith, an argument must acknowledge the state of the current law. See Mercury Ins. Co. of Fla. v. Coatney, 910 So.2d 925, 927 (Fla. 1st DCA 2005).

Applying these principles to the arguments raised in the petition, we find appellate fees under 57.105 should be awarded here. Although we find all of counsel's arguments lack merit, we will discuss three.

Concerning jurisdiction, although this Court has already denied Petitioner's petition, it may still impose fees pursuant to section 57.105. See Judges of the Eleventh Judicial Circuit v. Janovitz, 635 So.2d 19, 20 (Fla. 1994) (finding when a motion for attorney's fees has been timely filed, the court may award fees within a reasonable time after the mandate is issued). Further, this Court has jurisdiction to award appellate attorney's fees in proceedings challenging agency action. See E. Indus., Inc., 960 So.2d at 901.

First, Petitioner's counsel argued the ALJ should not have disqualified him as such action was an exercise of judicial contempt power, which ALJs do not possess. Without dispute, an ALJ has the authority to ensure an orderly hearing. Florida Administrative Code Rule 28-106.211 allows an ALJ to "issue any orders necessary to . . . prevent delay, and to promote the just, speedy, and inexpensive determination" of a case. Similarly, section 120.65(9), Florida Statutes, authorizes an ALJ to impose "any reasonable sanction except contempt for violation of the rules of the division or failure to comply with a reasonable order." Although these provisions would not permit the ALJ to incarcerate counsel, as a contempt citation would allow, they certainly permit an ALJ to disqualify a counsel engaging in unruly, disruptive behavior.

Here, the ALJ never mentioned contempt when he expelled Petitioner's counsel, and the order of expulsion made no reference to contempt and imposed no fine or punishment. The order was not an exercise of criminal contempt power as it was issued to preserve decorum during the proceeding, not for punishment. See Guardado v. Guardado, 813 So.2d 236, 236 (Fla. 5th DCA 2002) (noting direct criminal contempt orders "provide for punishment rather than coerced compliance with a court order"). Given the foregoing, Petitioner should have known, at the time he filed his petition, that his argument concerning contempt was without legal merit.

Second, counsel claims his disqualification demonstrated how the ALJ conducted the hearings in a manner unduly favorable to Respondent. We find this claim also lacking in legal or factual merit. Three administrative hearings were held regarding Petitioner's entitlement to a Bright Futures Scholarship. The transcript of each hearing reveals the ALJ's extraordinary patience with Petitioner's counsel.

During the first hearing, the ALJ gave Petitioner's counsel wide latitude in his examinations, but found it necessary to warn him six times not to dispute a ruling after it had been made. At the second hearing, the ALJ opened the proceeding by warning Petitioner's counsel the hearing would be terminated if he continued to make unwarranted interruptions. Despite this warning, the ALJ had to admonish Petitioner's counsel on five instances to not interrupt him. Finally, during the third hearing, the ALJ warned Petitioner's counsel on three instances that continued interruptions would result in disqualification. Counsel cannot continuously and purposely disrupt proceedings and then, when sanctioned, raise a claim of partiality.

Third, counsel argues he acted with proper decorum during the hearings and objected merely to preserve the record for this Court's review. An examination of each hearing reveals it was not necessary for counsel to conduct himself in the manner he did to preserve issues for appeal.

For instance, in the first hearing, Petitioner's counsel interrupted the ALJ sixteen times, interrupted witnesses four times, and argued with the ALJ six times regarding rulings. The ALJ warned Petitioner's counsel to not dispute a ruling once it had been given, informed him that further argument would terminate the hearing, and on three instances admonished him to not yell or shout his objections. In response, Petitioner's counsel claimed the ALJ did not understand the issues and he would proceed with his line of inquiry even if the objections to his questions were "overruled."

At the start of the second hearing, the ALJ again warned Petitioner's counsel that continued interruptions would result in his disqualification and the termination of the hearing. This warning was repeated during the course of the hearing. Nevertheless, Petitioner's counsel interrupted the ALJ nine times, interrupted witnesses twice, accused the ALJ of pre-determining the case twice, and argued with the ALJ's rulings four times, stating that whether the ALJ found his questions relevant "does not matter."

During the third hearing, over the course of 26 transcript pages, Petitioner's counsel interrupted the ALJ eighteen times, accused Respondent's counsel of asking "phony questions," and claimed the ALJ was "mischaracterizing the law," "railroading [the] case," and lacked "comprehension . . . of the requirements of the State." Such interjections occurred despite the ALJ's repeated warnings that Petitioner's counsel should not interrupt. In particular, the ALJ warned Petitioner's counsel he should "not yell and carry on like that. It's unprofessional and not proper decorum for this proceeding." The ALJ next warned Petitioner's counsel that if he continued his interruptions, "we will not proceed with you participating in the hearing" and, following further disruption, stated "You're listening or you're leaving." Following a final warning, Petitioner's counsel was disqualified.

Given these examples, counsel's assertion that he behaved properly is unsupported. The repeated insults and interruptions, which occurred despite the ALJ's frequent warnings of disqualification, demonstrate Petitioner's counsel acted in an unprofessional and improper manner. Because attorneys preserve issues for appellate review without resorting to this kind of behavior, counsel knew, or should have known, that raising this issue on appeal was not supported by the facts.

On this Court's own motion, Respondent is awarded appellate attorney's fees to be paid in equal amounts by Petitioner and his attorney pursuant to section 57.105(1), Florida Statutes. The cause is REMANDED to the ALJ to determine the reasonable attorney's fees Respondent incurred.

Section 57.105 allows an award of fees to be paid solely by the litigant if counsel can show that he "acted in good faith, based on the representations of [the] client as to the existence" of material facts. Unfortunately, section 57.105 does not allow for an award of fees to be paid solely by an attorney when the client acts "in good faith, based on the representations of" the attorney as to the legal sufficiency of claim or defenses. If the law allowed, we would order the fees to be paid solely by counsel.

POLSTON and THOMAS, JJ., concur.