09-003151F Waste Management, Inc., Of Florida vs. Sherry Allan Bucar And William Paul Fish Status: Closed DOAH Final Order on Wednesday, September 16, 2009.

Summary: The claim for fees for defending the motion for fees is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WASTE MANAGEMENT, INC., OF )

FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 09-3151F

)

SHERRY ALLAN BUCAR and WILLIAM PAUL FISH, )

)

)

Respondents. )

)

SUPPLEMENT TO

FINAL ORDER OF DISMISSAL

A Final Order of Dismissal of the Motion for Attorney's Fees

and Supplemental Motion for Attorney's Fees filed by Waste

Management, Inc., of Florida (WMIF) against Respondents was

entered on August 7, 2009.

On August 26, 2009, while WMIF's Motion for Reconsideration

of the Final Order of Dismissal was pending, Respondents filed a

Motion for Attorney's Fees Against [WMIF] for filing its Motion

for Attorney's Fees and Supplemental Motion for Attorney's Fees

against Respondents.

On September 2, 2009, WMIF filed a Motion to Dismiss

Respondents' Motion for Attorney's Fees Against [WMIF]. On

September 8, 2009, Respondents filed an Opposed Request for

Extension of Time to File Opposition to Petitioner's Motion to

Dismiss, which stated WMIF's agreement to an extension until

September 11 and its opposition to the requested extension until

September 16, 2009. On September 14, 2009, Respondents filed

their Response to WMIF's Motion to Dismiss.

WMIF seeks dismissal of Respondents' claims under Section 120.595(1), Florida Statutes (2009)

1 , on two grounds: (1) WMIF's

not being a "non-prevailing adverse party" under paragraph (e)3

of the statute; and (2) WMIF not having had an "improper purpose"

under paragraph (e)1 of the statute.

WMIF's first ground has merit. It is apparent from the

wording of Section 120.595(1), Florida Statutes, that WMIF's

Motion for Attorney's Fees and Supplemental Motion for Attorney's

Fees against Respondents did not initiate "a proceeding pursuant

to s. 120.57(1)." § 120.595(1)(b), Fla. Stat. Rather, they

attempted to initiate proceedings under Sections 120.569(2)(e)

and 120.595(1), Florida Statutes. See also § 120.595(1)(e)1,

Fla. Stat. (defining "nonprevailing adverse party" in terms that

have no application to WMIF's Motion for Attorney's Fees and

Supplemental Motion for Attorney's Fees against Respondents).

For this reason, WMIF's Motion to Dismiss is granted; and

Respondents' Motion for Attorney's Fees Against [WMIF] is

dismissed.

DONE AND ORDERED this 16th day of September, 2009, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of September, 2009.

ENDNOTE

1/ Unless otherwise noted, all statutory references are to the

2009 version of the Florida Statutes.

COPIES FURNISHED :

Kenneth G. Oertel, Esquire

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

301 South Bronough Street

Post Office Box 1110

Tallahassee, Florida 32302-1110

Charles J. Basinait, Esquire

Henderson Franklin Starnes & Holt, P.A.

Post Office Box 280

Fort Myers, Florida 33902

Richard S. Annunziata, Esquire

Brennan, Manna & Donaldson, P.L.

3301 Bonita Beach Road, Suite 100

Bonita Springs, Florida 34134

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Supplement to Final

Order of Dismissal 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.