14-004860F William Guerrero And Christina Bang, A/K/A Christina Guerrero vs. Bernard Spinrad And Marien Spinrad Status: Closed DOAH Final Order on Thursday, October 30, 2014.

Summary: Petitioners failed to demonstrate that they were entitled to an award of attorney's fees pursuant to section 57.105, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM GUERRERO AND CHRISTINA

BANG, a/k/a CHRISTINA GUERRERO ,

Petitioners,

vs. Case No. 1 4 - 4860F

BERNARD SPINRAD AND MARI E N

SPINRAD ,

Respondents.

/

FINAL ORDER DENYING ATTORNEYÓS FEES

This matter has come before E. Gary Early, a designated

Administrative Law Judge of the Division of Administrative

Hearings , on Petitioners, William Guererro and Christina Bang,

a/k/a Christina Guerrero Ós Ð Motion for Sanctions, AttorneyÓs

Fees, Costs, and Damages Against Petitioners, Spinrads, pursuant

to Section 57.105(5), Florida Statutes , Ñ filed on May 2, 2014 ,

and on their Ð Request for Evidentiary Hearing, and Entry of a

Final Order, p ursuant to its [sic ] Amended Motion for Sanctions,

Attorneys' Fees, Costs, and Damages, Against Petitioners,

Bernard Spinrad and Mari e n Spinrad, p ursuant to Sections

120.595(1), 120.569(2)(e), and 57.105(5), Florida Statutes ,Ñ

filed on October 8, 2014.

APPEARANCES

For Petitioners: John J. Fumero, Esquire

Thomas F. Mullin, Esquire

Nason, Yeager, Gerson, White,

and Lioce, P.A.

7700 Congress Avenue , Suite 2201

Boca Raton, Florida 33487

Luna E. Phillips, Esquire

Deborah K. Tyson, Esquire

Gunster, Yoakley and Stewart, P.A.

450 East Las Olas Boulevard , Suite 1400

Fort Lauderdale, Florida 33301

For Respondents: Fernando S. Aran, Esquire

Arán Correa Guarch & Shapiro, P.A.

225 University Drive

Coral Gables, Florida 33134

Patricia M. Silver, Esquire

John W. Annesser, Esquire

Silver Law Group

Post Office Box 710

Islamorada, Florida 33036

STATEMENT OF THE ISSUE

The issue to be determined is whether Petitioners, William

Guererro and Christina Bang, a/k/a Christina Guerrero , are

entitled to attorneyÓs fees pursuant to section 57.105, Florida

Statutes , from Respondents, Bernard Spinrad and Marien Spinrad ,

related to litigation between the parties in DOAH Case No. 13 -

2254 .

PRELIMINARY STATEMENT

On February 20, 2013 , the D epartment of Environmental

Protection (D EP ) issued its proposed agency action with regard

to DEP File No. 44 - 0290794 - 001 , which authorized certain

activities to be conducted on property owned by the Guerreros .

On or about March 5, 2013, the Spinrads timely filed their

Petition for Administrative Hearing . The D EP dismissed the

Petition on April 26, 2013, with leave to amend. The Spinrads

filed an Amended Petition for Formal Administrative Hearing on

Ma y 13, 2013 . That Amended Petition was referred to the

Division of Administrative Hearings on June 14, 2013 , and was

assigned to the undersigned for disposition as DOAH Case No. 13 -

2254 .

As set forth in the Recommended Order issued in DOAH Case

No. 13 - 2254, t he regulatory history preceding the issuance of

the DEPÓs proposed agency act ion was lengthy and complex , and

included a previous DEP notice of proposed agency action denying

the very activities that were the subject of DOAH Case No. 13 -

2254 . A thorough recitation of the history of the cases related

to DOAH Case No. 13 - 2254 was pr ovided in the July 23, 2013,

Order Denying RespondentÓs Motions to Dismiss and Motion for

AttorneyÓs Fees and Costs, which may be found at

https://www.doah.state.fl.us/DocDoc/2013/002254/13002254OGEN -

072313 - 14385438.pdf , and which is hereby adopted in thi s Final

Order.

T he final hearing in DOAH Case No. 13 - 2254 was initially

scheduled to be held on August 26 and 28 , 2013. The hearing was

continued several times for good cause , and was finally

sc heduled for four days, November 18 - 21, 2013, in Marathon,

Florida , and commenced as scheduled .

On November 18, 2013, the Guerreros filed a ÐMotion for

AttorneyÓs Fees and CostsÑ against the Spinrads under the

authority of section 120.595 and section 120.569(2)(e). Ruling

on that motion was reserved. The Guerrer os did not request

attorneyÓs fees pursuant to section 57.105 at that time .

The final hearing was not completed within the time

allotted, and was thereafter scheduled to reconvene for an

additional five days commencing on January 6, 2014.

On December 12 , 2013, the Guerreros filed a Notice of

Filing Proposed Changes to the Pending Agency Action , by which

the y agreed to several additional permit conditions to support

the issuance of the permit , and proposed conforming

modifications to the ÐBackground FactsÑ of the proposed agency

action.

The conclusion of the final hearing was continued at the

behest of the undersigned, re scheduled for March 31 through

April 4, 2014 , and was com pleted as sch eduled.

On April 10, 2014, after the completion of the final

hearing, the Guerreros filed an ÐAmended Motion for Sanctions,

AttorneyÓs Fees, and Costs and Request to Retain Jurisdiction to

Determine Amount of Sanctions, AttorneyÓs Fees and Costs.Ñ The

motion reasserted the relief sought under t he authority of

section 120.595 and section 120.569(2)(e) . With regard to

entitlement to attorneyÓs fees pursuant to section 57.105 , the

Amended Motion provided that the Guerreros intended to serve the

Spinrads with a motion which would then be filed with the

undersigned 21 days thereafter .

On May 2, 2014, Applicants filed a ÐMotion for Sanctions,

AttorneyÓs Fees, Costs, and Damages a gainst Petitioners,

Spinrads, pursuant to Section 57.105(5), Florida Statutes. Ñ The

May 2, 2014 , Motion included an exhibit demonstrating that the

Motion had been served on the Spinrads on April 10, 2014.

On July 25, 2014, t he Recommended Order was entered in DOAH

Case No. 13 - 2254. In the Recommended Order, the undersigned

made f indings of fact and conclusions of law as to the

GuerrerosÓ entitlement to relief under section 120. 569(2)(e) and

section 120.595.

As to section 120.569(2)(e), which is not a prevailing

party statute, the undersigned determined, b ased upon a full

review and consideration of the record , and applying an

objective standard based on reasonable inquiry regarding

pertinent facts and applicable law, that no pleading, motion, or

other paper filed by the Spinrads was interposed for any

improper purpose .

As to se ction 120.5 95 , which is a prevailing party statute,

the undersigned made findings of fact , b ased upon a full review

and consideration of the record, that the Spinrads did not

participate in the proceeding for any improper purpose. In

accordance with the p rocedure established in section

120.595(1)(d), the undersigned design ated that determination in

the Recommended O rder.

The undersigned, having made the findings of fact and

conclusions of law necessary under sections 120.569(2)(e) and

120.595, did not reserve jurisdiction to make further findings

of fact or conclusions of law as to the Guerreros Ó entitlement

to attorneyÓs fees and other relief under those section s .

On September 8, 2014, the D EP entered its Consolidated

Final Order, which adopted the Recommended Order as the

DepartmentÓs final agency action, with several changes not

pertinent here.

On or about September 29, 2014, the Guerreros filed a

notice of appeal of the Consolidated Final Order in the First

District Court of Appeal, assigned as case number 1D14 - 4496 , in

which the Guerreros described the nature of the order being

appealed as:

a F inal Order following an administrative

final hearing of the Division of

Administrative Hearings before

A dministrative Law Judge ("ALJ") E. Gary

Early entered in favor of the Respondent's

William Guerrero and Christina Bang, aka

Christina Guerrero ("Guerrer os"), wher ein

the ALJ denied the Guerrero Ós request for

attorney fees, costs and sanctions under

sections 120.569(2)(e) and 120.595, Fla.

Stat.

Based on the foregoing, the undersigned declines to make

further findings of fact or conclusions of law as to whether the

Spinrads filed any pleading, motion, or other paper for any

improper purpose , or participated in DOAH Case No. 13 - 2254 for

an improper purpose . T hose findings of fact and conclusions of

law set forth in the Recommended Order and adopted in the

C onsolidated Final Order stand as the determination of the

Guerreros Ó lack of entitlement to relief under those sections.

On October 8, 2014, the Guerreros filed the Ð Request for

Evidentiary Hearing, and Entry of a Fi nal Order, pursuant to its

[sic ] Amen ded Motion for Sanctions, Attorneys' Fees, Costs, and

Damages, Against Petitioners, Bernard Spinrad and Mari e n

Spinrad, pursuant to Sections 120.595(1), 120.569(2)(e), and

57.105(5), Florida Statutes . Ñ The Spinrads filed a response.

On October 17, 2014, the undersigned entered an o rder to

show cause why the r equest for sanctions, fees, and other relief

pursuant to sections 120.595(1) and 120.569(2)(e), Florida

Statutes, should not be dismissed on the basis that the motions

for relief under those sections were ruled upon and denied in

the Recommended Order without any reservation of jurisdiction

for further action by the undersigned , and why the undersigned

should not enter a final order as to the request for attorneyÓs

fees under section 57.105 consistent with the findings of fact

and conclusions of law set forth in the Recommended Order . The

Guerreros filed a response , which has been reviewed and

considered by the undersigned.

FINDINGS OF FACT

1. T he Recommended Order in DOAH Case No. 13 - 2254,

including the Preliminary Statement , t he Findings of Fact , and

the Conclusions of Law contained therein , and the Department of

Environmental ProtectionÓs Consolidated Final Order in OGC Case

No. 13 - 0858 are incorporated herein by reference as the facts

un derlying this Final Order .

CONCLUSIONS OF LAW

2 . Section 57.105 provides, in pertinent part, that:

(1) Upon the courtÓs initiative or motion

of any party, the court shall award a

reasonable attorneyÓs fee, . . . on any

claim or defense at any time during a civil

proceeding or action in which the court

finds that the losing party or the losing

partyÓs 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 b y 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.

(2) At any time in any civil proceeding or

action in which the moving party proves by

a pre ponderance of the evidence that any

action taken by the opposing party, . . .

was taken primarily for the purpose of

unreasonable delay, the court shall award

damages to the moving party for its

reasonable expenses incurred in obtaining

the order, which m ay include attorneyÓs

fees, and other loss resulting from the

improper delay.

* * *

(4) A motion by a party seeking sanctions

under this section must be served but may

not be filed with or presented to the court

unless, within 21 days after service of the

motion, the challenged paper, claim,

defense, contention, allegation, or denial

is not withdrawn or appropriately

corrected.

(5) In administrative proceedings under

chapter 120, an administrative law judge

shall award a reasonable attorneyÓs fee and

damages to be paid to the prevailing party

in equal amounts by the losing party and a

losing partyÓs attorney or qualified

representative in the same manner and upon

the same basis as provided in subsections

(1) - (4). Such award shall be a final order

subj ect to judicial review pursuant to

s. 120.68 . . . .

3 . In addition to the foregoing, Ðsection 57.105 does not

require a finding of frivolousness to justify sanctions, but

only a finding that the claim lacked a basis in material facts

or then - existing l aw.Ñ Martin Cnty. Conser. Alliance v. Martin

Cnty. , 73 So. 3d 856, 858 (Fla. 1st DCA 2011); see also Gopman

v. DepÓt of Educ. , 974 So. 2d 1208, 1210 (Fla. 1st DCA 2008).

4 . The First District Court of Appeal has established

that:

[S]ection 57.105 must be applied carefully

to ensure that it serves the purpose for

which it was intended, which was to deter

frivolous pleadings.

In determining whether a party is entitled

to statutory attorney's fees under section

57.105, Florida Statutes, frivolousness is

determined when the claim or defense was

initially filed; if the claim or defense is

not initially frivolous, the court must

then determine whether the claim or defense

became frivolous after the suit was filed.

In so doing, the court determines if the

p arty or its counsel knew or should have

known that the claim or defense asserted

was not supported by the facts or an

application of existing law. An award of

fees is not always appropriate under

section 57.105, even when the party seeking

fees was succes sful in obtaining the

dismissal of the action or summary judgment

in an action. (internal citations omitted).

Wendy's v. Vandergriff , 865 So. 2d 520, 523 (Fla. 1st DCA 2003) .

5 . The standard under section 57.105 is to be applied on a

case - by - case basis. In that regard:

While the revised statute incorporates the

Ð not supported by the material facts or

would not be supported by application of

then - existing law to those material facts Ñ

standard instead of the Ð frivolous Ñ

standard of the earlier statute, an all

encompassing definition of the new standard

defies us. It is clear that the bar for

imposition of sanctions has been lowered,

but just how far it has been lowered is an

open question requiring a case by case

analysis.

Wendy's v. Vandergriff , 865 So. 2d at 524 (citing Mullins v.

Kennelly , 847 So. 2d at 1155, n.4. (Fla. 5th DCA 2003)).

6 . The term Ðsupported by the material factsÑ in section

57.105(1)(a), means that the Ðparty possesses admissible

evidence sufficient to establish the fact if accepted by the

finder of fact.Ñ Albritton v. Ferrera , 913 So. 2d 5, 7, n.1

(Fla. 1st DCA 2005).

7 . In conducting this evaluation, it must be determined if

the party or its counsel knew or should have known that the

claim or defense asserted was not supported by the material

facts necessary to establish the claim or defense or by the

application of t hen - existing law to the material facts. Read v.

Taylor , 832 So. 2d 219 (Fla. 4th DCA 2002). Ð An award of fees

is not always appropriate under section 57.105, even when the

party seeking fees was successful in obtaining the dismissal of

the action or summ ary judgment in an action. Ñ Id. at 222; see

also Mason v. Highlands Cnty. Bd. of Cnty. Comm'rs , 817 So. 2d

922, 923 (Fla. 2d DCA 2002)("Failing to state a cause of action

is not in and of itself a sufficient basis to support a finding

that a claim was so lacking in merit as to justify an award of

fees pursuant to section 57.105."); Pappalardo v. Richfield

Hospitality Servs., Inc. , 790 So. 2d 1226, 1228 (Fla. 4th DCA

2001)("Whether fees should have been awarded in this case

depends upon whether the underlying cause of action, which was

dismissed by the trial court, was so clearly and obviously

lacking as to be untenable.").

8 . In their Motion, the Guerreros state that:

Spinrads have brought repetitive litigation

against the Guerreros on the same issues

r elated to the pending agency action before

the ALJ in the Division of Administrative

Hearings proceedings and a Circuit Court

case. Spinrads have never demonstrated a

basis for their vacuous factual allegations

and legal argument.

To the contrary , the facts and law alleged by the Spinrads were

not only worthy of serious consideration of their own accord,

but at one time were sufficient to cause the DEP to deny the

very same permits, exemptions, and state lands authorization s

that were the subject of DOAH Case No. 13 - 2254, a denial

reversed only after lengthy negotiations between the DEP and the

Guerreros to which the Spinrads, though parties to the denial

proceeding, were not made privy. Based on the DEPÓs

contradictory positions as to the legality of the Guerreros Ó

proposed structures, it was hardly unreasonable or unwarranted

for the Spinrads to challenge the DEPÓs reversal of its position

from denial to issuance .

9 . Based upon a full review and consideration of the

record in DOAH Case No. 13 - 2254 , the undersigned concludes that ,

although the Recommended Order in that case was favorable to the

Guerreros, the material facts relied upon by the Spinrads and

the application of then - existing law to those material facts by

the Spinrads were no t so lacking in merit as to warrant an award

of attorneyÓs fees or costs under section 57.105, Florida

Statutes.

10. Based upon a full review and consideration of the

record in DOAH Case No. 13 - 2254 , including the bases of the

numerous discovery , evidentiary , and procedural disputes raised

-- by all of the parties -- and resolved through out the course

of the proceeding, the u ndersigned concludes that no action

taken by the Spinrads in that case was primarily for the purpose

of unreasonable delay .

1 1 . Based on the findings of fact and legal authority set

forth herein, the Guerreros Ó May 2, 2014, Ð Motion for Sanctions,

AttorneyÓs Fees, Costs, and Damages against Petitioners,

Spinrads, pursuant to Section 57.105(5), Florida Statutes Ñ is

DENIED.

DONE AND ORDERED this 30th day of October , 201 4 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October , 201 4 .

COPIES FURNISHED:

Fernando S. Aran, Esquire

Aran Correa Guarch and Shapiro, P.A.

255 University Drive

Coral Gables, Florida 33134

(eServed)

John J. Fumero, Esquire

Nason, Yeager, Gerson, White, and Lioce, P.A.

Suite 2201

7700 Congress Avenue

Boca Raton, Florida 33487

(eServed)

Luna E. Phillips, Esqui re

Gunster, Yoakley and Stewart, P.A.

Suite 1400

450 East Las Olas Boulevard

Fort Lauderdale, Florida 33301 - 4206

(eServed)

Patricia M. Silver, Esquire

John W. Annesser, Esquire

Silver Law Group

Post Office Box 710

Islamorada, Florida 33036

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

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 Appellat e Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law, with

the District Court o f Appeal, First District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed.