STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARBER HOUSING RESORTS, LLC, A FLORIDA LIMITED LIABILITY COMPANY,

vs.

Petitioner,

Case No. 19-5903F

GLENDA Q. MAHANEY,

Respondent.

/

FINAL ORDER

Pursuant to notice, a final hearing was held in this case on January 21, 2020, in Tavares, Florida, before Francine M. Ffolkes, a designated Administrative Law Judge with the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: McGregor T. Love, Esquire Rebecca E. Rhoden, Esquire

Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive

Orlando, Florida 32801

For Respondent: Glenda Q. Mahaney, pro se

Post Office Box 123

Mount Dora, Florida 32756

STATEMENT OF THE ISSUES

Whether, under section 120.569(2)(e), Florida Statutes, Petitioner, Garber Housing Resorts, LLC ("Garber"), is entitled to its reasonable attorney's fees incurred because of responding to three specific pleadings filed by Respondent, Glenda Q. Mahaney ("Mahaney"), and if so, the amount of such reasonable attorney's fees.

PRELIMINARY STATEMENT

This case concerns Garber's Motion for Attorneys' Fees ("Motion"), filed on November 5, 2019, under section 120.569(2)(e), which authorizes the undersigned to sanction a party who files pleadings, motions, or other papers for an improper purpose. The Motion is directed against Mahaney, who unsuccessfully challenged Garber's Site Rehabilitation Cleanup Order ("SRCO"), issued by the Department of Environmental Protection ("DEP"). See Glenda Q. Mahaney v. Garber Housing Resorts, LLC, and Dep't of Envtl. Prot., Case No. 19-3429 (Fla. DOAH Aug. 19, 2019; Fla. DEP Nov. 1, 2019). Garber has appealed the final order.1

Case No. 19-3429 ("the underlying proceeding") was disposed of on motions to dismiss filed by Garber. As such, the record in the underlying proceeding, on which both parties relied, consists only of the docketed pleadings. Official recognition is taken of the record in the underlying proceeding. Garber's Motion alleges that Mahaney had interposed her petition, amended petition, and exceptions for improper purposes and demands its reasonable attorney's fees associated with responding to the same. In the underlying proceeding, Garber had responded to Mahaney's petition and amended petition with motions to dismiss. Each motion to dismiss requested an award of reasonable attorney's fees under section 120.569(2)(e) for having to respond to the petition and amended petition.

1 Post-final order filings in Case No. 19-3429 indicate an appeal of DEP's final order to the Fifth District Court of Appeal (Case No. 5D19-3517). No evidence was presented or filed in the instant fees case to show that DEP's final order is stayed under section 120.68(3), Florida Statutes.

At the final hearing, Garber presented the expert testimony of attorney Zachary Broome, who was accepted as an expert regarding the reasonableness of the attorney's fees incurred by Garber. Garber's Composite Exhibit 1 and Exhibits 14, through 16 were admitted into evidence. Mahaney attempted to present the testimony of two witnesses. However, as more fully explained below, neither DOAH nor Garber received notice from Mahaney that she intended to present witness testimony. The undersigned did not permit Mahaney to call the two witnesses.

Mahaney testified on her own behalf and Mahaney's Exhibits A through F were admitted into evidence.

A one-volume Transcript of the final hearing was filed on February 6, 2020.

Mahaney filed a memorandum of law and facts opposing the Motion, along with a proposed order on February 21, 2020. Garber timely filed its proposed order on February 26, 2020. Those filings have been considered in the preparation of this Final Order.

All references are to Florida Statutes (2019), unless otherwise noted.

MAHANEY'S POST-HEARING SUBMITTALS

On January 24, 2020, an email from Office Depot with an attached document was docketed in this case. The attached document was titled "Notice Regarding Inability to Meet in Orlando Office and Objections to Hearing on Garber Attorney Fees (Not Contained in Recommended Order or Final Order) and Mahaney's Motion for Attorney Fees and Motion to Abate Proceedings Pending Appeal and Mahaney's Pre-Hearing Stipulations (begins on page 17 hereof)." Mahaney had attempted to file the original of the document with the undersigned during the final hearing. See Tr. pp. 66-74. Mahaney testified that she emailed from Office Depot and mailed copies of the document on or about January 3, 2020. However, neither Garber's counsel nor the undersigned received the document that was allegedly mailed and

emailed.2 Thus, in accordance with the undersigned's December 17, 2019, Order of Pre-hearing Instructions, Mahaney's witnesses were excluded. See Tr. pp. 72-74.

However, Mahaney testified on her own behalf and was allowed to introduce documents.

On February 21, 2020, Mahaney filed a document titled "Notice of Problem with Garber E-Mail Address." That document is deemed a motion to reopen the record, which is denied.

FINDINGS OF FACT

1. On March 27, 2019, DEP issued an SRCO after reviewing a limited groundwater assessment dated May 9, 2018, which included a recommendation for risk management option level one. DEP's SRCO stated that the prior conditional SRCO was being replaced because the limited groundwater assessment "demonstrates that conditions on the property have changed and improved such that the [conditional SRCO] is no longer appropriate.”

2. Mahaney's May 13, 2019, petition and Garber's May 23, 2019, motion to dismiss were referred to DOAH on June 25, 2019, and assigned Case No. 19-3429. Garber's petition was 77 pages, 654 paragraphs, and contained 56 pages of attachments.

   
   

   2 The Office Depot email suggested that an email was sent on January 4, 2020, but without the documents attached. The email address to which the document was allegedly sent was "AskDOAH," which is not a proper method for filing pleadings. The November 6, 2019, Notice from DOAH opening this fees case explained that "Parties not represented may file electronically through eALJ, facsimile, or mail. CHOOSE ONE METHOD of filing for each document."

   
   

3. On July 18, 2019, Mahaney's petition was dismissed with leave to amend as legally insufficient under Florida Administrative Code Rule 28-106.201(2). The petition also contained irrelevant allegations that were not cognizable in an environmental administrative proceeding. Mahaney was allowed ten days to file an amended petition that "shall comply with the requirements of rule 28-106.201(2) and shall not contain the irrelevant and immaterial allegations discussed in this Order."

4. On August 1, 2019, DEP received from Mahaney a document titled "Petitioner's 7-25-2019 Amended 5-9-2019 Petition for Hearing Regarding SRCO Dated Dated [sic] 3-27-2019 for Lamont Garber and/or Garber Housing Resorts, Inc., and Motion for Summary Proceedings Regarding Issues Admitted by FDEP and/or Motion to Immediately Revoke SRCO or Motion to Abate Proceedings Until Such Time as Petitioner's Property is Tested" ("amended petition"). DEP forwarded Mahaney's amended petition to DOAH on August 5, 2019.

5. The amended petition was 69 pages, 690 paragraphs, and contained 59 pages of attachments.

6. Garber had already filed, on August 2, 2019, its motion to dismiss the amended petition. On August 13, 2019, Mahaney filed her response to Garber's motion to dismiss the amended petition.

7. A Recommended Order of Dismissal was issued on August 19, 2019, finding that the amended petition remained legally insufficient. The amended petition still contained irrelevant allegations concerning issues outside the subject matter of the SRCO. Those issues included a property boundary dispute, trespass and nuisance claims, alleged violations of pollution laws, alleged non-compliance with local land use regulations, flooding issues, and stormwater runoff issues.

8. DEP issued its Final Order on November 1, 2019. Attached to the Final Order provided to DOAH were Mahaney's exceptions and Garber's responses to exceptions that had been timely filed with DEP. The Final Order denied each of Mahaney's exceptions, adopted the Recommended Order of Dismissal, and approved the SRCO.

   
   

9. Mahaney is opposed to Garber's plan to develop the property that is the subject of DEP's SRCO. It was clear from Mahaney's testimony and her history of challenging remediation actions taken by Garber and prior property owners, that her primary purpose for bringing the underlying proceeding was her concern for potential contamination of her well and property. In addition, she was concerned that the SRCO did not "certify the entire [Garber] property as clean."

10. Because of Mahaney's stated belief that DEP has not done its job over the years with regard to Garber's property and her property, she had challenged the prior conditional SRCO, and then the replacement SRCO.

11. In addition, Mahaney testified that additional remediation occurred on Garber's property in February 2019, approximately a month before DEP issued the SRCO. She obtained a letter that was from the remediation company to Mr. Lamont Garber describing the remediation activities. Through reasonable inquiry, she learned that the letter was not in DEP's possession at the time of issuing the SRCO.

12. The circumstances surrounding Mahaney's filing of her petition, amended petition, and exceptions show that her pleadings were not filed for an improper purpose.

13. Garber's expert on reasonable attorney's fees reviewed the invoices of legal fees and the filings in the underlying proceeding. He testified that the time spent and legal fees incurred by Garber responding to Mahaney's pleadings and litigating entitlement to fees, were reasonable.3 Mahaney did not present an expert to dispute his testimony.

    
    

    
    

    3 Garber's Composite Exhibit No. 1 consisted of nine invoices for legal services and three prebilling reports dated through January 21, 2020, which was the date of the final hearing. One invoice and one prebilling report addressed a separate matter titled "Maitland Rezone." One invoice did not separate Mahaney's petition from a separate petition filed by Corinne Garrett. The time spent on the underlying proceeding and this fees case reflected in the other seven invoices and two prebilling reports, total $16,621.00.

    
    

    CONCLUSIONS OF LAW

14. DOAH has jurisdiction over the parties to this proceeding and the subject matter of this proceeding pursuant to sections 120.569, and 120.57, Florida Statutes.

15. Mahaney argued in her memorandum of law and facts that DOAH failed to address attorney's fees in the Recommended Order of Dismissal and did not reserve jurisdiction to award attorney's fees. However, Mahaney relied on section 120.595(1), which is not the statutory provision under which Garber sought attorney's fees. See, e.g., Procacci Commerc. Realty, Inc. v. Dep't of Health & Rehab. Servs., 690 So. 2d 603, 606 (Fla. 1st DCA 1997)(reflecting that DOAH has jurisdiction to resolve the issue of sanctions by separate final order).

16. The undersigned has final authority to resolve this proceeding pursuant to section 120.569(2)(e), which provides:

    All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party's attorney, or the party's qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. (emphasis added).

    
    

17. To determine whether a paper is filed for an improper purpose, it is necessary to determine whether the filing is reasonable under the circumstances. See Mercedes Lighting & Elec. Supply Co. v. Dep't of Gen. Servs., 560 So. 2d 272, 276 (Fla. 1st DCA 1990). The determination must be based on an objective evaluation of the circumstances existing at the time the papers were filed. See Friends of Nassau Cnty., Inc. v. Nassau Cnty., 752 So. 2d 42, 57 (Fla. 1st DCA 2000) (Unlike claims under sections 57.111 and 57.105(5), Florida Statutes, liability under section 120.569(2)(e) is determined only based on the circumstances as of the time of the filing of the offending document, not subsequently).

18. A frivolous claim is not merely one that is likely to be unsuccessful. Rather, it must be so clearly devoid of merit that there is little, if any, prospect of success. See French v. Dep't of Child. & Fams., 920 So. 2d 671, 679 (Fla. 5th DCA 2006).

19. The circumstances existing at the time Mahaney filed her petition, amended petition, and exceptions, are detailed in the Findings of Fact above. Based on an objective evaluation of those circumstances, it is determined that Mahaney's petition, amended petition, and exceptions, were not filed for an improper purpose. Her pleadings were not "so clearly devoid of merit that there is little, if any, prospect of success." See Id.

20. If an obvious offending paper is filed, a party is obligated to promptly take action to mitigate the amount of resources expended in defending against the offending paper. See Mercedes, 560 So. 2d at 276-277. A delay in seeking sanctions undermines the mitigation principle that applies to the imposition of sanctions. Id. The purpose of the statute is to deter subsequent abuses, a purpose not well-served if an offending pleading is fully litigated and the offender is not punished until the end of the trial. Id.

21. In the underlying proceeding, Garber requested imposition of sanctions under section 120.569(2)(e) in each motion to dismiss Mahaney's petition and amended petition. This is consistent with judicial and administrative rulings that a party is required to promptly notify the offending party and tribunal that an obvious offending paper has been filed. The underlying proceeding was quickly

    
    

    disposed of on Garber's motions to dismiss. Garber's Motion regarding attorney's fees was filed only four days after DEP's Final Order. Thus, the Motion was timely filed as to the three pleadings at issue in the Motion. See Procacci Commerc. Realty, Inc., 690 So. 2d at 606, (reflecting that DOAH has jurisdiction to resolve the issue of sanctions by separate final order).

22. As the moving party, Garber did not carry its burden of proving entitlement to attorney's fees under section 120.569(2)(e). In State Farm Fire & Casualty Company v. Palma, 629 So. 2d 830 (Fla. 1993), the Florida Supreme Court held that "statutory fees may be awarded for litigating the issue of entitlement to attorney's fees but not the amount of attorney's fees." Palma, 629 So. 2d at 833. Garber's Motion and this proceeding litigated entitlement to fees under section 120.569(2)(e).

23. At the hearing, Mahaney did not dispute the amount of fees incurred, but only argued that fees should not be given for litigating fees. However, the instant proceeding litigated entitlement to fees under section 120.569(2)(e). There was not a separate dispute over the amount of fees. Thus, if Garber had proven entitlement to fees, then the amount incurred litigating entitlement to fees could also be awarded. See Id.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Garber's Motion is DENIED.

DONE AND ORDERED this 10th day of March, 2020, in Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

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 10th day of March, 2020.

COPIES FURNISHED:

Lorraine Marie Novak, Esquire Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000 (eServed)

Glenda Quillen Mahaney Post Office Box 123

Mount Dora, Florida 32756

Rebecca E. Rhoden, Esquire

Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive

Orlando, Florida 32801 (eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J

Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

Noah Valenstein, Secretary

Department of Environmental Protection Douglas Building

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 Appellate Procedure. Such proceedings are commenced 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.

Docket for Case No: 19-005903F

Orders for Case No: 19-005903F