04-002051F Southwest Florida Water Management District vs. Amanda J. Suggs, Amber Suggs And Deborah Suggs Status: Closed DOAH Final Order on Monday, August 9, 2004.

Summary: Petitioner`s filing in response to a superfluous pleading by Respondent was not necessary. Therefore, it does not establish grounds for a grant of attorney`s fees pursuant to Section 120.569(2)(e).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case No . 04 - 2051F

)

AMANDA J. SUGGS, AMBER SUGGS )

AND DEBORAH SUGGS, )

)

Respondent. )

)

FINAL ORDER

This matter was set for hearing on July 30, 2004, in

Brooksville, Florida. On July 16, 2004, the parties filed a

Joint Motion for Telephonic Hearing in Lieu of Evidentiary

Hearing stating the parties' belief that it was not n ecessary to

present evidence to establish entitlement to attorney's fees and

requesting that the hearing be conducted via telephone to allow

the parties to present their legal arguments. The motion was

granted, and the telephonic hearing was held on July 30, 2004.

Because this case was argued and decided upon the parties' legal

arguments, findings of fact are unnecessary.

This case arose from the consolidated cases styled,

Southwest Florida Water Management District v. Amanda J. Suggs,

Amber Suggs and De borah Suggs , Case Nos. 03 - 0787, 03 - 0788,

03 - 1128 (DOAH May 20, 2004), in which the final hearing

commenced on May 17, 2004. After argument on pending motions

and at the outset of the evidentiary portion of that proceeding,

counsel for Respondents announce d that they were withdrawing

their petitions contesting the Administrative Complaints and

Orders that initiated the cases. The undersigned announced to

the parties that an Order Closing Files would be entered

relinquishing jurisdiction of the cases to the agency, and then

closing the record of the hearing.

On May 18, 2004, Respondent Deborah Suggs ("Deborah Suggs"

or "Ms. Suggs") filed a "Motion to Relinquish Jurisdiction

Pursuant to Section 120.57(1)(i), F.S." The motion stated that

during the comme ncement of the May 17, 2004, hearing, "it became

apparent that there was no remaining dispute of material fact"

concerning the allegations of the Administrative Complaint and

Order and that the only remaining issue was "whether the

Respondents could be leg ally responsible for any of the work by

virtue of their property interest in the site." Based on the

above, Deborah Suggs moved "that the Administrative Law Judge

close his file in this case and remand this matter to

[Petitioner] for further proceedings p ursuant to Section

120.57(2), F.S. " (emphasis added). The underscored language

marked the first time that any of the Respondents expressed a

desire for an informal proceeding upon the closing of the file

of the Division of Administrative Hearings.

On May 19, 2004, Petitioner filed a Response to Deborah

Suggs' motion, alleging that the motion should be denied because

it is "completely inconsistent with what occurred in open court"

on May 17, 2004. Petitioner pointed out that Ms. Suggs' counsel

"clearl y and unequivocally withdrew her petition for hearing" on

May 17, 2004, without the condition that she be granted an

informal hearing pursuant to Subsection 120.57(2), Florida

Statutes (2003). Petitioner further moved for attorney's fees

and costs pursuan t to Subsection 120.569(2)(e), Florida Statutes

(2003), which provides:

All pleadings, motions, or other papers

filed in the proceeding must be signed by

the party, the party's attorney, or the

party's qualified representative. The

signature constitutes a certificate that the

person has read the pleading, motion, or

other paper and that, based upon reasonable

inquiry, it is not interposed for any

improper purposes, such as to harass or to

cause unnecessary delay, or for frivolous

purpose or needless incr ease in the cost of

litigation. If a pleading, motion, or other

paper is signed in violation of these

requirements, the presiding officer shall

impose upon the person who signed it, the

represented party, or both, an appropriate

sanction, which may includ e an order to pay

the other party or parties the amount of

reasonable expenses incurred because of the

filing of the pleading, motion, or other

paper, including a reasonable attorney's

fee.

Petitioner contends that Ms. Suggs' motion is so

inconsistent wi th her representations in open court "that it

could only be for the purpose of harassing, causing unnecessary

delay, a frivolous purpose or to needlessly increase the cost of

litigation." At the telephonic final hearing held on July 30,

2004, counsel for Petitioner made it clear that fees and costs

were sought only in connection with Petitioner's response to

Respondent Deborah Suggs' motion, which counsel characterized as

a "baseless" motion that nonetheless necessitated a response.

On May 20, 2004, the u ndersigned entered an Order Closing

File stating that "[j]urisdiction of these cases is hereby

relinquished to the agency for such further action as may be

appropriate." On May 26, 2004, Deborah Suggs filed a response

to Petitioner's motion for attorney's fees and a cross - motion

for attorney's fees. Ms. Suggs' cross - motion cited no statutory

authority for an award of attorney's fees, though at the

telephonic final hearing on July 30, 2004, counsel for Ms. Suggs

stated that the cross - motion was made pursua nt to Subsection

120.569(2)(e), Florida Statutes (2003). The cross - motion states

that discovery in the underlying cases revealed to Petitioner

that there was no factual or legal basis for charging Ms. Suggs

with a violation Chapter 373, Florida Statutes ( 2003); and,

therefore, the continued prosecution of the matter could only

have been for an improper purpose. At the final hearing, the

undersigned denied the cross - motion because it essentially

requested a ruling in Ms. Suggs' favor on the issues in the

u nderlying cases, despite the fact that she withdrew her

petition contesting those issues.

Petitioner's motion for attorney's fees and costs is also

denied. Petitioner's motion is premised on the assumption that

there was a significant difference between the withdrawal of

Ms. Suggs' petition that occurred at the hearing on May 17,

2004, and the "Motion to Relinquish Jurisdiction Pursuant to

Section 120.57(1)(i), F.S." filed on May 18, 2004. The

distinction, according to Petitioner, is that the former was an

unconditional withdrawal, whereas the latter requested the

Administrative Law Judge to remand the case to Petitioner for an

informal proceeding pursuant to Subsection 120.57(2), Florida

Statutes.

The statute cited by Ms. Suggs, Subsection 120.57(1)(i),

Florida Statutes, provides:

When, in any proceeding conducted pursuant

to this subsection, a dispute of material

fact no longer exists, any party may move

the administrative law judge to relinquish

jurisdiction to the agency. An order

relinquishing jur isdiction shall be rendered

if the administrative law judge determines

from the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with supporting and opposing

affidavits, if any, that no genuine issue as

to any material f act exists. If the

administrative law judge enters an order

relinquishing jurisdiction, the agency may

promptly conduct a proceeding pursuant to

subsection (2), if appropriate, but the

parties may not raise any issues of disputed

fact that could have been raised before the

administrative law judge. An order entered

by an administrative law judge relinquishing

jurisdiction to the agency based upon a

determination that no genuine dispute of

material fact exists, need not contain

findings of fact, conclusion s of law, or a

recommended disposition or penalty.

(Emphasis added)

The underscored language indicates that the decision to

grant an informal proceeding pursuant to Subsection 120.57(2),

Florida Statutes (2003), is a matter of discretion for the

Agency. The Order relinquishing jurisdiction cannot require the

Agency to conduct an informal proceeding. The Order's legal

effect on the Agency would be the same whether entered pursuant

to a withdrawal of Ms. Suggs' petition or pursuant to Ms. Suggs'

later - fi led motion. There was no need for Petitioner to respond

to Ms. Suggs' motion. Any attorney's fees and costs incurred in

so responding were voluntarily incurred, and the undersigned

cannot conclude that such fees and costs merit recompense

pursuant to Sub section 120.569(2)(e), Florida Statutes (2003).

Accordingly, it is

ORDERED that:

1. Petitioner's Motion for Attorney's Fees and Costs is

DENIED, Respondent's Cross - Motion for Attorney's Fees is DENIED,

and this case is hereby DISMISSED.

2. The file of the Division of Administrative Hearings in

the above styled case is hereby CLOSED.

DONE AND ORDERED this 9th day of August, 2004, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Div ision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

th is 9th day of August, 2004.

COPIES FURNISHED :

Mark F. Lapp, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

301 South Bronough Street

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

R. Colt Kirkland, Esquire

Blanchard, Merriam, Adel

& Kirkland, P.A.

Post Office Box 1869

Ocala, Florida 34478

E.D. "Sonny" Vergara, Executive Director

Southwest Florida Water

Management Distri ct

2379 Broad Street

Brooksville, Florida 34609 - 6899

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency Clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.