Item I
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
June ~ 2002
Division:
County Attorney
AGENDA ITEM WORDING:
Request direction from the BOCC in the matter of an order awarding attorney's fees to
the FKAA in Florida Keys Aqueduct Authoritv. Inc. v. Board of County Commissioners
and Ogden Water SYstems.
ITEM BACKGROUND:
The Court awarded the FKAA a total of $83,210 in attorney's fees and $2517.85 in
costs as a result of the Key Largo sewer project Sunshine Law litigation. The Court
ruled that the Motions were timely filed rejecting County's arguments that the request
for fees was untimely, and that FKAA's own staff served on the Committee.
The new rule has yet to be interpreted by the appel/ate courts so the prospects for
Success are an unknown. Success on appeal could eliminate the County's liability.
Failure could subject the County to further exposure for attorney's fees, estimated at
$7,000 - $15,000.
PREVIOUS RELEVANT BOCC ACTION:
See above.
CONTRACT I AGREEMENT CHANGES:
N/A
STAFF RECOMMENDAnONS:
TOTAL COST:
BUDGETED: Yes 0 No 0
COST TO COUNTY:
APPROVED BY: County Attorney. OMB/Purchaslng 0 Risk Management 0
DIVISION DIRECTORAPPROVAL~~7
JAM T. HE RICK
DOCUMENTAnON: Included 0 To Follow Not Required 0
AGENDA ITEM #
J-/
, ,
IN THE CIRCUIT COURT OF THE SIXTEENTH
JUDICIAL CIRCUIT, IN AND FOR MONROE COUNTY, FLORIDA
FLORIDA KEYS AQUEDUCT
AUTIiORITY,
PlaintUI:
Case No. CA-K-Oo-U70
v.
BOARD OF COUNTY COMMISSIONERS,
MONROE COUNTY, FLORIDA and
OGDEN WATER SYSTEMS OF KEY
LARGO, INC.,
Defendants.
w .~@~ IT~!? i-
KEYS CITIZENS FOR RESPONSffiLE
GOVERNMENT, INC.,
! ~ ('
APR 1 2 2002
Intervenor.
/
ORDER
TIllS CAUSE having come before the Court on Plaintiff Florida Keys Aqueduct
Authority's ("FKAA") Motion to Tax Costs and Motion for Award of Attorneys' Fees, and the
Court having reviewed the motions and attachments thereto, heard the respective arguments of
the parties at a hearing on March 25, 2002, having reviewed the case file and being otherwise
fully advised of the premises, it is hereby ORDERED AND ADJUDGED as follows:
1. In September, 2000, FKAA brought this action against the Board of County
Commissioners, Monroe County (the "Boara") and Odgen Water Systems of Key Largo, Inc.
("Ogden"), seeking a declaration as to whether the Board had violated section 286.011, Florida
Statutes, generally referred to as the Government in the Sunshine Law ("Sunshine Law"). Key
Citizens for Responsible Government, Inc. ("Citizens") was thereafter permitted to intervene.
2. Thereafter, Citizens moved for partial sununary judgment on the issue of whether
the Board's Technical Evaluation Panel ("TEP") was bound by the Sunshine Law, and the Court
entered an order adjudicating that the TEP was bound to follow the dictates of the Sunshine Law.
3. The Court subsequently held a one-day trial to detennine whether the Board,
through the TEP, violated the Sunshine Law. Following the presentation of evidence, the Court
entered a final judgment in favor of FKAA and Citizens, concluding that the Board, through the
TEP, had violated the Sunshine Law.
4. The Board and Ogden appealed this final judgment, but these appeals were
thereafter dismissed.
5. FKAA recovered judgment against the Board on its claim of a violation of the
Sunshine Law.
6. . As the party recovering judgment, FKAA is entitled to recover its legal costs and
charges. ~ 57.041(1), Fla. Stat. (2000).
7. The Court finds that based on the costs affidavit provided by FKAA and the
arguments and evidence presented at the hearing held on March 25, 2002, that FKAA expended
a total of$392.85 in taxable costs in recovering judgment against the Board.
8. Accordingly, FKAA's Motion to Tax Costs is hereby GRANTED.
9. The Court also concludes thatFKAA is entitled to recover the fees of its expert
witness, William N. "Buck" DeVane, who testified at the hearing on FKAA's Motion for Award
of Attorneys' Fees as part of FKAA's recoverable costs. The Court finds that $2125.00 is a
\
reasonable expert witness fee for the services of Mr. De Vane in preparing for and attending the
March 25,2002, hearing, and that FKAA is entitled to an award of this amount from the Board.
10. The Court also concludes that pursuant to section 286.0Il(4), Florida Statutes
(2000), FKAA is entitled to an award of its reasonable attorneys' fees, to be assessed' against the
2
Board:
Whenever an action has been filed against any board or commission of any state
agency or authority or any agency or authority of any county, municipal
corporation, or political subdivision to enforce the provisions of [the Sunshine
Law] or to invalidate the actions of any such board, commission, agency, or
authority, which action was taken in violation of [the Sunshine Law], and the
court detennines that the defendant or defendants to such action acted in violation
of [the Sunshine Law], the court shall assess a reasonable attorney's fee against
such agency...
~ 286.011(4), Fla. Stat. (2000). Such an award is required pursuant to this section, as well as
applicable caselaw. See. ~ Indian River County Hospital District v. Indian River Memorial
Hosj)ital. Inc.. 766 So. 2d 233 (Fla. 4th DCA 2000) (concluding that the trial court erred by
failing to assess attorneys' fees against a nonprofit hospital corporation found to have violated
the Sunshine Law, as "section 286.011(4) requires attorney's fees to be assessed against [the
corporation]. ").
11. In determining the amount of such an award, the Court has considered the
affidavits presented by F. Alan Cummings and Robert T. Feldman in support ofFKAA's Motion
for Award of Attorneys' Fees, the time and labor required in this case, the novelty and difficulty
of the questions and issues involved in this case, the skill required to successfully pursue this
case, the customary fee for comparable legal services, the time limitations involved in this case,
the results obtained in this case, and the experience, reputation, and the ability of the attorneys'
rendering services. Based on the affidavits presented, as well as the expert testimony of William
N. "Buck" DeVane presented by FKAA at the March 25, 2002, hearing, the Court concludes that
a reasonable attorneys' fee for the time expended by the law firm of Smith, Currie & Hancock
LLP is $68,800.00, and a reasonable attorneys' fee for the time expended by the law firm of
Feldman, Koenig & Highsmith, P.A, is $13,620.00.
12. The Court also concludes that FKAA is entitled to a reasonable attorneys' fee for
3
the time expended proving its entitlement to such fees. The Court finds that $500.00 is a
reasonable attorneys' fee for preparation and appearance time of F. Alan Cummings of Smith,
Currie & Hancock LLP at the hearing on FKAA's Motion for Award of Attorneys' Fees, and
that $290.00 is a reasonable attorneys' fee for preparation and appearance time of Robert T.
Feldman of Feldman, Koenig & Highsmith, P.A at the hearing on FKAA's Motion for Award of
Attorneys' Fees. FKAA is therefore entitled to attorneys' fees in a total amount of$83,21O.oo.
13. Accordingly, FKAA's Motion for Award of Attorneys' Fees is hereby
GRANTED. It is, therefore
ORDERED AND ADJUDGED that FKAA shall recover from the Board the amount of
$2517.85 in taxable costs, that shall bear interest at the statutory rate of nine percent (11%) per
year, for which sum let execution issue; and
IT IS FURTHER ORDERED AND ADJUDGED that FKAA shall recover from the
Board the amount of $83,210.00 in reasonable attorneys' fees, that shall bear interest at the
statutory rate of nine percent (9%) per year, for which sum let execution issue.
DONE AND ORDERED in Chambers at Kc...t.f UJ('5J-, Monroe County,
I (J day of April, 2002.
.
Florida, this
qlCHARD Q. PAYNe
Copies to:
RICHARD G. PAYNE, Circuit Judge
Robert B. Shillinger, Jr.
Assistant County Attorney
Post Office Box 1026
Key West, FL 33041-1026
John A Jabro
90311 Overseas Highway, Suite B
Tavernier, FL 33070-2445a
4
Robert Rivas
The Rivas Law Firm
311 South Calhoun Street, Suite 206
Tallahassee, FL 32301
F. Alan Cummings
Smith, Currie & Hancock LLP
1004 DeSoto Park Drive
Post Office Box 589
Tallahassee, FL 32302-0589
Robert T. Feldman
Feldman, Koenig & Highsmith, P.A
3158 Northside Drive
Key West, FL 33040
5
IN THE CIRCUIT COURT OF THE 16m JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
CASE NO. CAK-OO-1170
FLORIDA KEYS AQUEDUCT
AUTHORITY,
Plaintiff,
vs.
BOARD OF COUNTY COMMISSIONERS,
MONROE COUNTY, FLORIDA and
OGDEN WATER SYSTEMS OF KEY
LARGO, INC.,
Defendants.
~' ;~ IT!.: Ii"'J f!i11I ~ m G
~r! '- "J \~ lEtJ VI lJi:g: I:;
_I- II'
MAY 062002 "
KEYS CITIZENS FOR RESPONSmLE
GOVERNMENT, INC.,
-
Intervenor.
/
FINDINGS OF FACT AND ORDER DENYING MOTION TO STRIKE
This matter, having come' before the Court on the Defendant Board of County
Commissioners of Monroe County, Florida's Motion to Strike Motion for Award of Attorney's
Fees and Motion to Tax Costs, and having heard the argument of counsel, the Circuit Court of
the 16th Judicial Circuit in and for Monroe County, Florida, does hereby:
. Find that the Response in Opposition to the Motion to Award Attorney's Fees and
Motion to Tax Costs was considered by the Court to be a Motion to Strike the Motion for A ward
of Attorney's Fees and Motion to Tax Costs on the grounds that said motions were untimely; and
the Court further
Finds that the record in this case indicates that the Trial Court entered its final judgment
in favor of the Plaintiff and Intervenor on May 16, 2001; and the Court further
Finds that the record indicates that the Third District Court of Appeals dismissed the
Defendant's appeal on September 11,2001; and the Court further
Finds that the Third District Court of Appeals relinquished jurisdiction in this matter
when it denied the Motion for Rehearing on Attorney's Fees (appellate), filed by Plaintiff Florida
Keys Aqueduct Authority, on or about October 17, 2001; and the Court further
Finds that the Motion to Award Attorney's Fees and Motion to Tax Costs were filed on
October 12,2001 prior to the decision of the Third District Court of Appeals to deny the Motion
for Rehearing; and the Court further
Finds that under FlaR.Civ.P. 1.525, the time period for filing the Motion for Attorney's
Fees expired thirty days after the Third DCA denied the Motion for Rehearing, not from the date
the Trial Court entered final judgment nor from the date the Third DCA dismissed the appeal as
argued by the County; and the Court therefore
DENIES Monroe County's Motion to Strike because the Motion for Attorney's Fees and
Motion to Tax Costs were timely filed.
DONE AND ORDERED this .;J... day of --t21~ .2002 in Chambers,
Key West, Florida 33040, nunc pro tunc to March 25,2002. n
. vaM~'7:J&
The Honorable Richard payn~
Chief Judge
cc: Robert T. Feldman, 3158 Northside Drive, Key West, FL 33040
F. Alan Cummings, 1004 DeSoto Park Drive, PO Box 589, Tallahassee, FL 32302-0589
Robert Rivas, 311 S. Calhoun Street, Ste. 206, Tallahassee, FL 32301
Robert B. Shillinger, Jr., PO Box 1026, Key West, FL 33041-1026
John A. Jabro, 90311 Overseas Hwy., Ste. B, Tavernier, FL 33070