STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIGH POINT OF ORLANDO/CALTON ) HOMES and BREEDLOVE, DENNIS & ) ASSOCIATES, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 92-3010F

)

CENTRAL FLORIDA WETLANDS )

SOCIETY, INC., )

)

Respondent, )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing, by telephone conference, in the above-styled case on September 14, 1992.

By prearrangement, the parties were permitted to participate from their home or office; the Hearing Officer presided from her office in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mary D. Hansen, Esquire

1620 South Clyde Morris Boulevard Suite 300

Daytona Beach, Florida 32119

For Respondent: Martha (Marty) Sharpe

Central Florida Wetlands Society, Inc. Post Office Box 2826

Orlando, Florida 32802 STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Petitioners are entitled to an award of costs and attorneys' fees pursuant to Section 120.57(1)(b)5., F.S.

PRELIMINARY STATEMENT

This case was opened at the Division of Administrative Hearings upon an Order of Remand by the St. Johns River Water Management District in DOAH Case number 91-8339 (SJRWMD file number 91-1140). As stated in the order, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis & Associates, Inc.

(BDA) had requested, by motion, a remand on the question of entitlement to attorneys' fees from Central Florida Wetlands Society (CFWS), pursuant to subsection 120.57(1)(b)5., F.S. The Remand Order was filed at the DOAH on May 18, 1992.

After several telephone conferences and one continuance of the final hearing, as provided in the several orders entered in this proceeding, the case was heard on September 14, 1992. At the commencement of the hearing a motion to intervene by the SJRWMD was denied for lack of standing. Petitioners' motion for default was taken under advisement pending the parties' opportunity to argue the motion and respond in writing (see post-hearing order dated September 14, 1992).

In support of its requests for attorneys' fees and costs Petitioners presented the testimony of William Michael Dennis, PhD. and Douglas Rillstone, Esquire. Petitioners also presented pages 5, 6 and 32, of the deposition of Todd Swearingen, a board member of Respondent.

Martha (Marty) Waddell Sharpe testified on behalf of Respondent and conducted cross-examination and oral argument on behalf of that party.

As evidenced by affidavits by CFWS board members filed on August 21, 1992, Marty Sharpe was authorized to represent the corporation. See Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitative Services, 428 So. 2d 256 (Fla. 1st DCA 1982).

CFWS President, Michael Mingea, did not appear nor did he make himself available for deposition by Petitioners as required in an order dated September 10, 1992. His affidavit, filed on September 2, 1992, is hearsay and is not considered in this proceeding, except as corroborated by the record in prior DOAH Cases number 91-8339 and 92-0364, which files are properly the subject of official recognition requested by Petitioners.

After hearing the parties submitted proposed orders and argument on the motion for default. These have been considered in the preparation of this final order. Only Petitioners presented what is designated as "findings of fact" and these "findings" have been substantially considered as argument or proposed conclusions of law.

FINDINGS OF FACT

1. Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands.

   
   

   A permit for the project was granted by the St. Johns River Water Management District (SJRWMD).

   
   

2. In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was

   apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation.

   
   

3. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation:

   
   

   1. To educate on the roll [sic] of wetlands with emphasis on the values of preservation

      of wetlands and the prevention of destruction of same.

   2. To implement the national policy of no loss of wetlands.

   3. To coordinate with other environmental groups to focus attention on wetland preservation.

   4. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida.

      
      

      (Exhibit filed at DOAH 8/21/92)

      
      

4. On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida".

   
   

   The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP).

   
   

   The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339.

   
   

5. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey.

   
   

   Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD.

   
   

   This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364.

   
   

6. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339.

7. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992.

   
   

8. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S.

   
   

   The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency.

   
   

   And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits.

   
   

9. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement.

   
   

   On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered.

   
   

10. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs.

    
    

    High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA.

    
    

11. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion.

    
    

    The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992.

    
    

12. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th.

    Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed.

    
    

13. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal.

    
    

    In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination.

    
    

    Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages.

    
    

14. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition.

    
    

15. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to subsection 120.57(1)(b)5, F.S., which provides as follows:

    
    

    5. All pleadings, motions, or other papers filed in the proceeding must be signed by a party, the party's attorney, or the party's qualified representative. The signature of a party, a party's attorney, or a party's quali- fied representative constitutes a certificate that he has read the pleading, motion, or other paper and that, to the best of his knowledge, information, and belief formed after 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 hearing officer, upon motion or his own initiative, shall impose upon the person who signed it, a 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.

    
    

17. The motion for fees by BDA was previously disposed of at the time that it and other extraneous respondents were dismissed. See paragraph 8, above.

    
    

    Case law construing rule 11, Federal Rules of Civil Procedure is useful in applying subsection 120.57(1)(b)5, F.S. Mercedes Lighting and Electrical Supply, Inc. v. State Department of General Services, 560 So. 2d 272 (Fla. 1st DCA 1990). Neither that case law nor the text of Section 120.57(1)(b)5., F.S. mandates an evidentiary hearing, and whether, or to what extent, an additional hearing on sanctions is required will vary depending on the nature of the case. Donaldson v. Clark, 819 F. 2d 1551 (11th Cir. 1987).

    
    

18. . . . In many situations the judge's participation in the proceedings provides

    him with full knowledge of the relevant facts and little further inquiry will be necessary.

    
    

    To assure that the efficiencies achieved through more effective operation of the pleading regimen will not be offset by the cost of satellite litigation over the imposition of sanctions,

    the court must to the extent possible limit

    the scope of sanction proceedings to the record. Thus, discovery should be conducted only by leave of the court, and then only in extraordinary circumstances.

    
    

    Advisory Committee Notes, 1983 Amendments to Rule 11.

    
    

    At the time that the order denying sanctions was entered as to the improvidently joined respondents, there was no need for an evidentiary hearing. It was apparent from the record that the error was inadvertent.

    
    

    However, discovery and an evidentiary hearing was appropriate later when the purpose of the original complaint itself was called in question. It would be unfair to deny to BDA its share of fees and costs if the complaint itself was frivolous.

    
    

19. No reasonably clear legal justification can be shown for the filing of the paper in question. Mercedes, supra. Shortly after counsel was retained by the organization the petition was voluntarily dismissed. Both High Point and BDA incurred reasonable fees and costs in responding to the frivolous petition.

20. The case for fees and costs pursuant to subsection 120.57(1)(b)5.,

    F.S. in this proceeding is made by reasonable inferences from the facts and matters of record. In the absence of competent contrary proof, despite ample opportunity for that presentation, the Petitioners must prevail. This conclusion makes moot the Petitioners' motion for default.

    
    

21. Because the organization's original petition and later failure to participate in discovery is at least partially ascribed to Michael Mingea, the liability for fees is apportioned between CFWS and its prior president and representative.

ORDER

Based on the foregoing, it is hereby, ORDERED:

The motions for sanctions by High Point of Orlando/Calton Homes and Breedlove, Dennis and Associates, Inc. are GRANTED.

Breedlove, Dennis and Associates is entitled to fees and costs in the amount of $1,096.49; High Point of Orlando/Calton Homes is entitled to fees and costs in the amount of $6,766.88. The total amount of $7,863.37 shall be paid as follows:

$3,931.68 by Central Florida

Wetlands Society, Inc.

$3,931.68 by Michael Mingea

DONE AND ORDERED this 31st day of December, 1992, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1992.

COPIES FURNISHED:

Mary D. Hansen, Esquire 1620 S. Clyde Morris Blvd. Suite 300

Daytona Beach, FL 32119

Nancy B. Barnard, Esquire St. Johns River Water

Management District

P.O. Box 1429

Palatka, FL 32178-1429

Marty Sharpe

6530 Nina Rosa Drive Orlando, FL 32819

Michael Mingea

Central Florida Wetlands Society, Inc.

P.O. Box 2826 Orlando, FL 32802

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 RULE OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF 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 APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-003010F

Orders for Case No: 92-003010F