17-002028F Cargor Partners Viii - Long Bar Pointe, Lllp vs. Suncoast Waterkeeper, Inc., And Joseph Mcclash Status: Closed DOAH Final Order on Friday, October 20, 2017.

Summary: Petitioner failed to prove entitlement to attorney's fees under section 57.105, because the notice was deficient, reasonableness of the fees was not corroborated by an expert witness, and there were material facts to support the losing parties' claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARGOR PARTNERS VIII - LONG BAR

POINTE, LLLP,

Petitioner,

vs. Case No. 17 - 2028F

SUNCOAST WATERKEEPER, INC., AND

JOSEPH MCCLASH,

Respondents.

_______________________________/

FIN AL ORDER

The final hearing in this case was held on August 17, 2017,

by video teleconference at sites in Tallahassee and Sarasota,

Florida, before Bram D.E. Canter, Administrative Law Judge for

the Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCE S

For Petitioner: Edward Vogler, II, Esquire

Vogler Ashton, PLLC

2411 - A Manatee Avenue West

Bradenton, Florida 34205 - 4948

For Respondent s : Joseph McClash

711 89th Street Northwest

Bradenton, Florida 34209 - 9692

STATEMENT OF THE ISSUE

The issue to be determined is whether Petitioner Cargor

Partners VIII Î Long Bar Pointe, LLLP (ÐCargorÑ) is entitled to

an award of attorneyÓs fee s pursuant to section 57.105, Florida

Sta tutes (2017).

PRELIMINARY STATEMENT

On November 22, 2011, the Southwest Florida Water Management

District (ÐSWFWMDÑ) issued to Cargor a Formal Determination of

Wetlands and Other Surface Waters (ÐFDOWÑ), which established the

boundaries of the wetlands and surface waters on CargorÓs

property. Cargor sought to renew the FDOW and , on December 28,

2016, SWFWMD approved the renewal. On January 18, 2017,

Respondents Suncoast Waterkeeper, Inc. , and Joseph McClash

(ÐMcClashÑ) filed a petition for hearing to chal lenge the renewal

(DOAH Case No. 17 - 0655). Joseph McClash appeared on his own

behalf and as the Qualified Representative of Suncoast

Waterkeeper, Inc.

McClash moved twice to amend his petition for hearing, but

the motions were denied, mainly because the p roposed amendments

addressed issues that were foreclosed from challenge because they

were decided in the original FDOW. On April 5, 2017, McClash

voluntarily dismissed the petition for hearing and DOAH Case

No. 17 - 0655 was closed.

Prior to the scheduled final hearing, Cargor sent a letter

to McClash, informing him that Cargor would seek its attorneyÓs

fee under section 57.105. When McClash voluntarily dismissed his

petition, Cargor filed with DOAH a Motion for Sanctions u nder

Section 57.105, Florida Stat utes. The present case was then

opened to determine whether Cargor is entitled to an award of its

attorneyÓs fees under the statute.

At the final hearing Cargor presented the testimony of its

attorney, Edward Vogler. Cargor Exhibits 1 through 15 were

adm itted into evidence. McClash testified on his own behalf.

McClash E xhibits R - 1 through R - 24 were admitted into evidence.

Following the submittal of proposed final orders, and without

leave to do so, McClash filed a demonstrative exhibit he used at

the f inal hearing, but which had not been accepted into evidence.

That document is not part of the evidentiary record.

A transcript of the final hearing was not filed with DOAH.

The parties submitted proposed final orders which were considered

in the preparat ion of this Final Order.

FINDINGS OF FACT

Notice

1. On February 17, 2017, the attorney for Cargor sent

Joseph McClash a letter on law firm stationary. In the first

paragraph of the letter it states, ÐPlease allow this letter to

serve as notice of CargorÓ s intent to seek relief pursuant to

Section 57.105, Florida Statutes (the ÐStatuteÑ) against you,

individually as qualified representative, and the named

Petitioner.Ñ

2. Cargor sent an email to McClash on February 28, 2017,

reminding McClash that Ðthe 57. 105 deadline is March 10, 2017.Ñ

3. McClash referred to a motion for attorneyÓs fees that he

received on or about March 13, 2017, but the motion was not shown

to the Administrative Law Judge n or introduced into evidence.

4. On April 5, 2017, the same day that McClash voluntarily

dismissed the petition for hearing in DOAH Case No. 17 - 0655,

Cargor filed with DOAH its motion for attorneyÓs fees under

section 57.105.

Contested Claim s

5. The renewal of a FDOW is governed by

section 373.421( 2) , Florida Statute s, which states in relevant

part that the FDOW shall be renewed Ð as long as physical

conditions on the property have not changed, other than changes

which have been authorized by a permit pursuant to this part, so

as to alter the boundaries of surface wate rs or wetlands.Ñ If

the boundaries of wetlands or other surface waters have been

altered without a permit, the FDOW cannot be renewed and an

application for a new FDOW is required.

6. The SWFWMD reviewer explained in a letter requesting

additional infor mation from Cargor :

Please be advised that letters of exemption

do not qualify as permits issued under Part

IV of chapter 373, F.S. and therefore if work

has been done on the site that has altered

the wetlands or other surface water

boundaries in associati on with a letter of

exemption, a new formal determination

application will be required.

7 . McClash claims Cargor did not qualify for the renewal of

its FDOW because Cargor altered the boundaries of surface waters

or wetlands on its property after the 201 1 FDOW was issued and

the some of the alterations were made pursuant to letter of

exemption .

8 . In its February 17, 2017, letter to McClash, Cargor set

forth six grounds for CargorÓs contention that McClashÓs petition

for hearing should be withdrawn . The first three grounds were

described in CargorÓs letter as follows:

A. The Formal Determination of Wetlands and

Other Surface Waters, dated December 28,

2016, which is the subject of this

Proceeding, does not authorize any

construction activity. Consequen tly, no

standing to challenge is or could be properly

presented.

B. There is no injury in fact and no one is

in immediate danger of a direct injury from

the issuance of the Formal Determination of

Wetlands and Other Surface Waters, dated

December 28, 201 6, as of the date and time of

filing the Petition in this Proceeding.

Consequently, no standing to challenge is or

could be properly presented.

C. The Formal Determination of Wetlands and

Other Surface Waters, dated December 28,

2016, is not a permit, l icense, or

authorization. Consequently, no standing to

challenge is or could be properly presented

by an association.

These were issues of law and they were decided against Cargor in

an Order dated February 28, 2017.

9 . The fourth and fifth grounds desc ribed in CargorÓs

letter involve the central issue in the case:

D. Changes in the land have been previously

authorized by the Southwest Florida Water

Management District (ÐSWFWMDÑ) pursuant to

existing and final permits including (i)

SWFWMD ERP No. 430401 57.001, dated August 6,

2014, (ii) SWFWMD CONCEPTUAL ERP No.

49040157.002, dated September 4, 2015, (iii)

SWFWMD ERP No. 4304157.003, dated March 31,

2016, and (iv) SWFWMD Notice of Qualification

for Permanent Farming Exemption, dated August

30, 2016. Cha nges in the land are authorized

by the identified permits and authorizations.

E. All changes in the land have occurred

pursuant to the identified permits and

authorizations. Allegations to the contrary

are simply false and are not supported by

material facts.

10 . In 2015, Cargor was issued a ÐConceptual ERPÑ permit,

which describes, among other things, planned modifications to

some agricultural ditches. However, the conceptual permit does

not allow the commencement of construction activities.

1 1 . On August 30, 2016, SWFWMD issued to Cargo a Permanent

Farming Exemption, pursuant to section 373.406(13), which

authorized Cargor to excavate three agricultural ponds in

uplands. In its application for the exemption, Cargor also

proposed to modify some agri cultural ditches.

1 2 . On March 31, 2017, SWFWMD issued Cargor an ERP

Individual Construction Major Modification, which, among other

things, authorized work in ditches. Th is permit was issued just

before McClashÓs voluntary dismissal and, therefore, could not

have authorize d the changes on CargorÓs property that McClash

described in the petition for hearing.

1 3 . Before filing his petition, McClash consulted with a

wetland scientist, Clark Hull, about the merits of McClashÓs

proposed challenge to the FDOW renewal. Hull gave McClash an

affirmative response, but his input was speculative because it

was based on assumptions and representations that Hull had not

investigated.

1 4 . McClash consulted with another wetland scientist,

Pamela Fetterman, who conducte d an Ðaerial, desktop review of

publically available Geographic Information Systems (GIS) data.Ñ

Fetterman described her initial review as an evaluation of

potential undelineated wetlands and other surface waters. T he

Administrative Law Judge ruled that the delineation approved by

the 2011 FDOW became final and could not be challenged by

McClash.

1 5 . McClash then asked Fetterman to review changes in

physical conditions on the property that occurred after the FDOW

was issued. Fetterman produced a report (McClash Exhibit R - 6),

in which she opined that the changes to physical conditions on

CargorÓs property Ðhave a high likelihood of affecting the

previously delineated landward extent of wetlands and other

surface waters.Ñ She stated further:

[C]hanges in physical conditions of the

property took place prior to issuance of the

[FDOW renewal] as purported Ðexempt

agricultural activitiesÑ, and include ditch

dredging alterations to delineated other

surface waters. . . . A Permanent Farming

Request for Exemptio n Confirmation letter was

applied for on August 23, 2016 for

construction of these ponds and modification

of existing ditches, some of which were

determined to be jurisdictional other surface

waters by the subsequently re - issued [FDOW].

1 6 . At the final hearing on fees, neither McClash nor

Cargor made clear to the Administrative Law Judge: (1) the

physical changes to the property that were alleged to be

authorized by permit, (2) the physical changes that were alleged

to be authorized by exemption, or (3) any physical changes that

were alleged to be unauthorized.

1 7 . The sixth ground described in CargorÓs letter is as

follows:

F. The picture attached to the Petition as

set forth in Paragraph 9, and the stop work

allegation set forth in Paragraph 10 are

i rrelevant and have no factual relationship

to any issue in the proceeding. Since any

changes in the land have occurred pursuant to

identified permits and authorizations, the

allegations are simply false and/or

intentionally misleading.

It is not a basi s for an award of attorneyÓs fees under

section 57.105 that an irrelevant photograph was included in a

petition for hearing. Moreover, the aerial photograph in

McClashÓs petition was relevant in this case because it showed

the physical conditions of Cargo rÓs property.

1 8 . In the petition, McClash states that Manatee County

issued a stop work order on November 16, 2016, for construction

activities commenced on CargorÓs property without a County -

approved erosion control plan. This allegation also pertained to

physical changes to the property. All evidence about physical

changes was relevant in determining whether Cargor was entitled

to renewal of the FDOW.

Fees

1 9 . Cargor claims fees based on 48.4 hours of attorney time

(Edward Vogler) at an hourly rate o f $410, and 3.6 hours of

attorney time (Kimberly Ashton) at an hourly rate of $385, for a

total of $21,230.00.

20 . The fees Cargor is seeking include the hours spent on

legal issues raised by Cargor that were rejected by the

Administrative Law Judge. The se fees amount to at least $1,025.

See Cargor Exhibit 1, Invoice entries for February 20, 2017.

2 1 . CargorÓs attorney testified that the fees are

reasonable. Cargor did not call an expert witness to corroborate

the reasonableness of the hourly rate and the reasonableness of

the hours expended.

CONCLUSIONS OF LAW

Jurisdiction

2 2 . Section 57.105(5) provides that in administrative

proceedings under chapter 120, an administrative law judge shall

award a reasonable attorneyÓs fee and damages to the prevailin g

party to be paid in equal amounts by the losing party and the

losing partyÓs attorney in the manner and upon the basis set

forth in subsections (1) through (4) of the statute.

2 3 . Section 57.105(1) states that a reasonable attorneyÓs

fee shall be paid w hen the court finds that the losing party 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) w ould not be supported by the existing law to

those material facts.

Notice

2 4 . An action for fees under section 57.105 is initiated by

service of a motion upon the opposing party. Section 57.105(4)

provides that the motion Ðmay notÑ be filed with the cour t unless

Ðwithin 21 days after service of the motion, the challenged

paper, claim, defense, contention, allegation, or denial is not

withdrawn or appropriately corrected.Ñ This is commonly known as

the Ðsafe harborÑ provision.

2 5 . In Anchor Towing, Inc. v. Florida Department of

Transportation , 10 So. 3d 670 (Fla. 3d DCA 2009), the court

strictly construed the requirement of section 57.105 for a

ÐmotionÑ and denied fees when notice was provided by a letter.

The court stated that the statute must be strict ly construed

because it is in derogation of the common law. See also Matte v.

Caplan , 140 So. 3d 686 (Fla. 4th DCA 2014)(substantial compliance

with section 57.105 is not sufficient); Kenniasty v. Bionetics

Corp. , 10 So. 3d 1183 (Fla. 5th DCA 2009)(The wo rd ÐmotionÑ in

the statute means ÐmotionÑ, and Ðnotice by letter does not meet

the restrictive terms of the statute.Ñ).

2 6 . Because the record does not show that Cargor met the

strict notice requirements of section 57.105, Cargor did not

establish its ent itlement to an award of its attorneyÓs fees.

Burden and Standard of Proof

2 7 . Cargor has the burden to prove by a preponderance of

the evidence that McClash knew or should have known that his

claims were not supported by the material facts. ÐSupported by

the material factsÑ means the party possesses admissible evidence

sufficient to establish the claim if accepted by the finder of

fact. Albritton v. Ferrera , 913 So. 2d 5, 7 (Fla. 1st DCA 2005).

The test under section 57.105 is not whether the losing par tyÓs

evidence was more persuasive to the factfinder. If that were so,

all losing parties would be liable under section 57.105 for

attorneyÓs fees. The proper test is whether the losing party had

admissible evidence that would have established the claim i f the

evidence had persuaded the factfinder. Id.

Material Facts Supporting the Claim

2 8 . Cargor did not meet its burden of proof. McClash had

admissible evidence (the Fetterman report) to support his claim

that Cargor had made physical changes that alter ed the boundaries

of surface waters (ditches), and the changes were not authorized

by permit, but, instead, were authorized by the Permanent Farming

Exemption. If DOAH Case No. 17 - 0655 had gone to final hearing,

the Administrative Law Judge would have adm itted FettermanÓs

testimony and report.

2 9 . McClashÓs evidence d oes not have to be more persuasive

than CargorÓs evidence regarding the disputed factual issue of

whether the boundaries of surface waters on the property had been

altered by unpermitted acti vities. It is enough that McClashÓs

evidence was admissible and, if it had been accepted, would have

established McClashÓs claim that Cargor was ineligible for the

renewal of its FDOW.

30 . The purpose of section 57.105 is to discourage baseless

claims. Vasquez v. Provincial South, Inc. , 795 So. 2d 216, 218

(Fla. 4th DCA 2001). S ection 57.105 should be applied with

restraint so as not to risk chilling access to the courts. Minto

PBLH, LLC v. 1000 Friends of Fla., Inc. , No. 4D16 - 4218, slip op.

at 3 (Fla. 4th DCA Oct. 18, 2017).

3 1 . An award of fees is not justified just because the

party seeking fees obtained a dismissal. See Read v. Taylor , 832

So. 2d 219, 222 (Fla. 4th DCA 2002) . Whether fees should be

awarded in a case that was dismissed depends on whether the

underlying cause of action is so clearly and obviously lacking as

to be untenable. Pappalardo v. Richfield Hospitality Servs.,

Inc. , 790 So. 2d 1226, 1228 (Fla. 4th DCA 2001 ).

3 2 . In these proceedings, McClashÓs pleadings and actions

do not s how bad intent or a n untenable claim. In fact, it was

never established that McClash was wrong.

Expert Witness

3 3 . Florida courts require expert testimony on the

reasonableness of attorneyÓs fees. In Island Hopper, Ltd. v .

Keith , 820 So. 2d 967 (Fla. 4t h DCA 2002), the Fourth District

Court of Appeal questioned the rationale for requir ing an expert

witness on fees . However, just a year later, the court clarified

that, Ðagreeable or not, the existing case law requires

presentation of corroborating testim ony of the reasonableness of

attorneyÓs fees.Ñ Rakusin v. Chritiansen and Jacknin , 863 So. 2d

442, 443 (Fla. 4th DCA 2003). The Second District Court of

Appeals, wherein this case arises, requires an expert witness to

corroborate the reasonableness of at torneyÓs fees. See Snow v.

Harlan Bakeries, Inc. , 932 So. 2d 411, 412 (Fla. 2d DCA 2010).

3 4 . Because Cargor did not present an expert witness to

corroborate the reasonableness of the hourly rate charged by its

attorney s and the number of hours expended, Cargor did not prove

that its attorneyÓs fees are reasonable.

DISPOSITION

Based on the foregoing findings of fact and conclusions of

law, it is

ORDERED that the Motion for Sanctions u nder Section 57.105,

Florida Statutes, is DENIED.

DONE AND ORDERED this 20th day of October , 2017 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of October , 2017 .

COPIES FURNISHED:

Edward Vogler, II, Esquire

Vogler Ashton, PLLC

2411 - A Manatee Avenue West

Bradenton, Florida 34205 - 4948

(eServed)

Joseph McClash

711 89th Street Northwest

Bradenton, Florida 34209 - 9692

(eServed)

Christopher Tumminia, Esquire

Southwest Florida Water Management District

7601 U.S. Highway 301 North

Tampa, Florida 33637

(eServed)

NOTICE OF RI GHT 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 c ommenced by filing

the original notice of administrative appeal with the agency

clerk of the Division of Administrative Hearings within 30 days

of rendition of the order to be reviewed, and a copy of the

notice, accompanied by any filing fees prescribed by law, with

the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.