14-005291F Department Of Environmental Protection vs. Bernard Spinrad And Marien Spinrad Status: Closed DOAH Final Order on Monday, November 24, 2014.

Summary: The Department failed to demonstrate that it was entitled to an award of attorney's fees pursuant to section 57.105, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL

PROTECTION ,

Petitioner,

vs. Case No. 1 4 - 5291 F

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 (DOAH) , on Petitioner , Department of Environmental

ProtectionÓs (DEP) , Ð Motion for AttorneyÓs Fees P ursuant to

S ection 57.105(5), Florida Statutes A gainst P etitioners , William

and Christina Guerrero , Ñ served on Bernard and Marien Spinrad

(Spinrads) on April 29, 2014, and filed with the DOAH on

June 17, 2014. Despite the title of the Motion, attorneyÓs fees

are sought against the Spinrads , and against the S pinradsÓ

counsel , Patricia Silver and John Annesser .

APPEARANCES

For Petitioner: Brynna Ross, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondents: Fernando S. Aran, Esquire

Arán Correa Guarch and 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 Petitioner,

Department of Environmental Protection (DEP) , is entitled to

attorneyÓs fees pursuant to section 57.105, Florida Statutes ,

from Respondents, Bernard Spinrad and Marien Spinrad (Spinrads) ,

and their counsel, related to litigation between the parties in

DOAH Case No. 13 - 2254 .

PRELIMINARY STATEMENT

On February 20, 2013 , the 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 William Guerrero and Christin a Bang, a/k/a Christina Guerrero

(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, the regulatory history preceding the issuance of

the DEPÓs proposed agency action 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 provided in the July 23, 2013,

Ord er 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 this 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, by video

teleconference in Tallahassee and Marathon, Florida , and

commenced as scheduled .

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 age ncy

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 scheduled.

On April 29, 2014, a full 25 days after the completion of

the final hearing, the DEP filed a ÐMotion for AttorneyÓs Fees,

Costs , and Sanctions, Ñ which sought relief under t he authority

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

On June 17, 2014 , the DEP filed its Ð Motion for AttorneyÓs

Fees Pursuant to S ection 57.105(5), Florida Statutes A gainst

P etitioners, William and Christina Guerrero [sic] .Ñ The DEP

alleged that it served the Motion on the Spinrads on April 29 ,

2014 , which allegation is accepted by the undersigned . The

fact s alleged by the DEP in support of its 57.105 M otion were

identical to those alleged by the DEP in support of its

April 29, 2014 , ÐMotion for AttorneyÓs Fees, Costs, and

Sanctions,Ñ under section 120.595 and section 120.569(2)(e).

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

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

made findings of fact and conclusions of law as to the DEPÓs

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 section 120.595, 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 procedure established in section

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

the Recommended O rder.

The undersigned, having mad e 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 DEPÓs entitlement to

attorneyÓs fees and other relief under thos e section s .

On September 8, 2014, the DEP entered its Consolidated

Final Order, which adopted the Recommended Order as the

DepartmentÓs final agency action, with several changes not

pertinent here.

The 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 DEPÓs lack of

entitlement to relief under sections 120.569(2)(e) and 120.595 .

On October 30 , 2014, th e undersigned entered a Final Order

Denying AttorneyÓs Fees , which denied an award of fees under

section 57.105 to the Guerreros .

On November 13, 2014, the undersigned, being uncertain as

to whether the DEP still sought attorneyÓs fees given its

Consoli dated Final Order in Case No. 13 - 2254, and given the 66

days that had passed since the entry of that O rder without any

further request for relief, entered an Order to Show Cause in

this case. The O rder directed the DEP to show cause w hy the

undersigned sh ould 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 (as adopted by the DEP in its Consolidated

Final Order ) , and consistent w ith the Final Order Denying

AttorneyÓs Fees to the Guerreros in Case No. 14 - 4860F. The DEP

filed a response, which has been reviewed and considered by the

undersigned.

FINDINGS OF FACT

1. The 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

underlying this F inal 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 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.

(2) At any time in any civil proceeding or

action in which the moving party proves by

a preponderance of t he 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 may include atto rneyÓs

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 pa id 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

subject to judicial review pursuant to

s. 120.68 . . . .

3 . I t is well established that 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 law.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 further

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

party 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 successful in obt aining 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 r egard:

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

analys is.

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 sufficie nt 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 th en - existing law to the material facts. Read v.

Taylor , 832 So. 2d 219 (Fla. 4th DCA 2002). ÐAn 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 summa ry judgment in an action.Ñ Id. at 222; see

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

922, 923 (Fla. 2d DCA 2002)( Ð 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 l acking in merit as to justify an award of

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

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

2001)( Ð 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. Ñ ).

8 . T he DEPÓs 57.105 Motion was not served until 25 days

after the conclusion of the final hearing , and seeks fees for

actions that had been completed well before the Motion was

served on the Spinrads. Issues regarding subpoenas for

testimony at hearing, the allegedly overly inclusive witness

list, and alleged procedural improprieties that arose during the

hearing had long since passed, and any ability on the part of

the Spinrads to Ðwithdraw[] or appropriately correct[] issuesÑ

had long si n ce passed with them.

9 . The purpose of the Ðsafe harborÑ period established in

section 57.105(4) , which requires that a party first serve a

motion seeking fees, followed by its filing 21 days later, is to

afford a party a last clear chance to withdraw a frivolous

claim. Global Xtreme, Inc. v. Advanced Aircraft Ctr. , 122 So.

3d 487, 490 (Fla. 3rd DCA 2013). With reg ard to the element of

section 57.105 that allows for the award of attorneyÓs fees when

the action of the opposing party Ðwas taken primarily for the

purpose of unreasonable delay,Ñ the Supreme Court has

established that Ðthe purpose of the safe harbor prov ision is

Òto give a pleader a last clear chance . . . to reconsider a

tactic taken primarily for the purpose of unreasonable delay.ÓÑ

Bionetics Corp. v. Kenniasty , 69 So. 3d 943, 949 (Fla.

2011)( citing Walker v. Cash Register Auto Ins. of Leon C nty . ,

Inc . , 946 So. 2d 66, 70 (Fla. 1st DCA 2006) ) .

10 . The failure of DEP to file a motion under section

57.105 contemporaneously with the allegedly offending action s or

pleading s so as to allow the Spinrads a meaningful opportunity

to withdraw or correct the off ending actions or pleadings does

not comply with section 57.105(4).

11 . The undersigned was directly involved in each of the

incidents alleged to have caused unnecessary delay. Although

the Spinrads could have approached their case in a more

organized and succinct fashion, it was apparent that the y

presented testimony and evidence reasonably calculated to

support the denial of the exemptions, permit, and state lands

authorization . It was n either unreasonable, n or a tactic of

delay, to include as part o f their case the testimony of DEP

personnel who were involved in the DEPÓs prior denial of the

v ery 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 b etween the DEP and the

Guerreros -- negotiations to which the Spinrads, though parties

to the denial proceeding, were excluded by the DEP .

12 . If parties being overly inclusive in their court -

ordered witness lists, presenting witnesses and evidence that

opposing part ies believe to be irrelevant or cumulative, or

exhibiting relatively minor non - compliance with prehearing

orders is the standard for an award of fees, then courts and

administrative tribunals should be prepared to clear their

dockets for the flood of attorneyÓs fees cases to follow.

Fortunately , for all involved, the facts alleged in support of

an award of fees under section 57.105 must show conduct on the

part of a litigant that is substantially more egregious than

that exhibited by any party to DOAH Case No. 13 - 2254 .

13 . 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 upheld the DEPÓs

proposed agenc y action , the material facts relied upon by the

Spinrads and the application of then - existing law to those

material facts by the Spinrads were not so lacking in merit as

to warrant an award of attorneyÓs fees or costs under section

57.105 .

14 . Based upon a full review and consideration of the

record in DOAH Case No. 13 - 2254 , including the basi s 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 5 . Based on the findings of fact and legal authority set

forth herein, DEPÓs June 17, 2014 , Ð Motion for AttorneyÓs Fees

P ursuant to Secti on 57.105(5), Florida Statutes A gainst

P etitioners , William and Christina Guerrero [sic ]Ñ is DENIED.

DONE AND ORDERED this 24th day of November , 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 24th day of November , 201 4 .

COPIES FURNISHED:

Fernando S. Aran, Esquire

Aran Correa Guarch and Shapiro, P.A.

255 University Drive

Coral Gables, Florida 33134

(eS erved)

Patricia M. Silver, Esquire

John W. Annesser, Esquire

Silver Law Group

Post Office Box 710

Islamorada, Florida 33036

(eServed)

Brynna Ross, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(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 a re governed by the Florida Rules

of Appellate 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 of 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.