STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ACTION INSTANT CONCRETE, LLC,

Petitioner,

vs.

PAUL AND BARBARA CORBIEY,

Respondents.

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) Case No. 06-1552F

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FINAL ORDER

On July 11, 2006, a telephonic final administrative hearing was held in this case before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert E. Seymour, Esquire

Savage Krim Law Firm

121 Northwest Third Street Ocala, Florida 34475-6640

For Respondents: Robert W. Bauer, Esquire

Clayton-Johnston, P. A.

18 Northwest 33rd Court Gainesville, Florida 32607-2553

For Department of Environmental Protection:1

Stan M. Warden, Esquire

Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue in this case is whether a reasonable attorney's fee should be assessed against Respondents, Paul and Barbara Corbiey, and their attorneys, and awarded to Petitioner, Action Instant Concrete, LLC (AIC), under Section 57.105, Florida Statutes,2 after the Corbieys unsuccessfully challenged AIC's use the Concrete Batching Plant Air General Permit promulgated by the Department of Environmental Protection (DEP) in Florida Administrative Code Rule 62-210.300(4)(a)2.3

PRELIMINARY STATEMENT

On April 27, 2006, DEP entered a Final Order approving AIC's use of the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. The next day, AIC filed with DOAH a Motion for Award of Attorney's Fees under Section 57.105, Florida Statutes (Motion). The Motion appears intended to have been filed in DOAH Case No. 05-2891, which was the case number assigned to the Corbieys' unsuccessful challenge, but DOAH assigned a new DOAH Case number, 06-1552F.

A telephonic pre-hearing conference was held on May 18, 2006, at which the parties agreed to have entitlement to attorney's fees determined on oral argument and the evidentiary record from DOAH Case 05-2891, and to have the amounts determined only if there was entitlement. A telephonic final hearing for the oral argument was scheduled for July 11, 2006.

AIC was required to present the evidentiary record from DOAH Case 05-2891, which had been transmitted to DEP, for use in this case. However, the evidentiary record from DOAH Case 05-2891 was not presented for use in this case.

During the final hearing, oral argument was presented, including an argument by the Corbieys that relief should be denied because of AIC's failure to present the evidentiary record from DOAH Case 05-2891. After the final hearing, the parties were given until July 21, 2006, to file proposed orders. The timely-filed post-hearing submissions have been considered in the preparation of this Final Order.

FINDINGS OF FACT

No Service Without Filing

1. AIC made no motion or request for attorney's fees under Section 57.105, Florida Statutes, prior to the filing of proposed recommended orders (PROs) in DOAH Case 05-2891.

2. The joint PRO filed by DEP and AIC in DOAH Case 05-2891 proposed a reservation of jurisdiction to enter an award of costs and attorney fees to DEP and AIC pursuant to Section 57.105(1) and (5), Florida Statutes. The Recommended Order in DOAH Case 05-2891 granted the request and retained jurisdiction to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the Final Order.

3. AIC did not serve a motion seeking sanctions under Section 57.105, Florida Statutes, without filing it, prior to either its PRO in Case 05-2891 or its Motion for Award of Attorney's Fees, which was filed within 30 days of the Final Order in Case 05-2891 and initiated this Case 06-1552F.

   Failure to Present Evidentiary Record

   
   

4. Under a pre-hearing Order entered in this case, AIC was required to present the evidentiary record from DOAH Case 05- 2891, which had been transmitted to DEP, for use in this case. AIC failed to present the evidentiary record. But no findings made in this Final Order require the evidentiary record (i.e., the exhibits) from Case 05-2891, and AIC was not required to present a transcript of the final hearing in that case since the hearing had not been transcribed.

   Unsupported Claims

   
   

5. AIC proved that some claims raised by the Corbieys in DOAH Case 05-2891 were not supported by the material facts necessary to establish the claims. The Corbieys had and presented no evidence to prove that visual emissions (VE) in excess of five percent opacity occurred during cement loading of the silo, which is the demonstration clearly established by Rule 62-296.414(1) for determining compliance of stack emissions. Their entire case on that issue was based on two claims: questioning the veracity of the VE Observations Report,

   primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge; and questioning the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. The first claim was speculation and was rejected as unfounded; and, besides having no evidence to counter the expert testimony on the inability to use videotapes for the stack emission demonstration, the videotape presented in evidence by the Corbieys did not even show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo, or that AIC's stack emission demonstration was invalid.

6. AIC proved that some claims raised by the Corbieys in Case 05-2891--specifically, claims relating to zoning, the location and hours of operation of AIC's facility, local construction permitting and licensing, roadway debris, diesel truck emissions, noise, and bright lights on trucks and on a billboard on the property--were not supported by the application of then-existing law to the material facts necessary to establish the claims, and were not presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success

   were stricken as irrelevant. The other claims made by the Corbieys in DOAH Case 05-2891 either were supported by the application of then-existing law to the material facts necessary to establish the claims, or were presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.

   CONCLUSIONS OF LAW

   
   

7. Section 57.105, Florida Statutes, provides in pertinent part:

   1. Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney 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 party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

      
      

      1. Was not supported by the material facts necessary to establish the claim or defense; or

      2. Would not be supported by the application of then-existing law to those material facts.

         
         

         However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a

         claimant pursuant to this subsection, the court shall also award prejudgment interest.

         
         

   2. Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.

      
      

   3. At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other 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 attorney's 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 attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's 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. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection.

      
      

   6. The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.

      
      

      AIC had the burden to prove its entitlement to an award of attorney's fees under the statute.

      Unsupported Claims

      
      

8. The standards set forth in Subsection (1), and incorporated by reference in Subsection (5), were the result of an amendment to Section 57.105, Florida Statutes, in 1999. See

   § 4, Ch. 99-225, Laws of Florida. Prior to that amendment, the statute provided for the award of attorney's fees when "there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party."

9. In the case of Wendy's v. Vandergriff, 865 So. 2d 520,

   
   

   523 (Fla. 1st DCA 2003), the court discussed the legislative changes to Section 57.105, Florida Statutes:

   [T]his statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. See Ch. 99-225, § 4, Laws of Florida. Unlike its predecessor, the 1999 version of the statute no longer requires a party to show a

   complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported. [Citations omitted] However, this Court cautioned that section 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings. [Citations omitted]

   
   

   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. [Citation omitted] 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. [Citation omitted] An 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 summary judgment in an action. [Citation omitted]

   
   

   The court in Wendy's recognized that the new standard is difficult to define and must be applied on a case-by-case basis:

   While the revised statute incorporates the 'not supported by the material facts or would not be supported by application of then-existing law to those material facts' standard instead of the 'frivolous' 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 analysis.

   Id. at 52 (citing Mullins v. Kennelly, 847 So. 2d at 1155, n.4. (Fla. 5th DCA 2003)).

10. More recently, the First District Court of Appeal further described the legislative change:

    The 1999 version lowered the bar a party must overcome before becoming entitled to attorney's fees pursuant to section 57.105, Florida Statutes [Citations omitted.]

    . . . . Significantly, the 1999 version of

    57.105 "applies to any claim or defense, and does not require that the entire action be frivolous."

    
    

    Albritton v. Ferrera, 913 So. 2d 5, 8 (Fla. 1st DCA 2005), quoting Mullins v. Kennelly, supra. The Florida Supreme Court has noted that the 1999 amendments to Section 57.105, Florida Statutes, "greatly expand the statute's potential use." Boca Burger, Inc. v. Richard Forum, 912 So. 2d 561, 570 (Fla. 2005).

11. The phrase "supported by the material facts" found in Section 57.105(1)(a), Florida Statutes, was defined by the court in Albritton to mean that the "party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact." Albritton, 913 So. 2d 5, at 7, n.1.

12. In this case, as found, AIC proved that the Corbieys and their attorneys made both: claims they knew or should have known were not supported by the material facts necessary to establish the claims; and claims they knew or should have known were not supported by the application of then-existing law to

    the material facts necessary to establish the claims, and were not presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. See Findings 5-6, supra.

    Statutory Prerequisite

    
    

13. However, AIC failed to meet the prerequisite of Subsection (4) of the statute, see Finding 3, supra., which is a mandatory prerequisite for an award of fees under Section 57.105(5), Florida Statutes. See Dept. of Transportation v.

    Megan South, Inc., Case No. 03-4258F, 2003 Fla. Div. Adm. Hear. LEXIS 1126 (DOAH Dec. 17, 2003). The proposal in the joint PRO filed in DOAH Case 05-2891 of a reservation of jurisdiction to enter an award of costs and attorney fees to DEP and AIC pursuant to Section 57.105(1) and (5), Florida Statutes, did not constitute service of a motion seeking sanctions under the statute in compliance with Subsection (4).

14. AIC argued that the prerequisite did not apply because Subsection (1) provides: "Upon the court's initiative or motion of any party, the court shall award, [attorney's fees under the statute]. (AIC's emphasis added.) But fees are not being considered in this case on the undersigned's initiative. Rather, they are being considered upon the request of AIC.

    Contrast Morton v. Heathcock, 913 So. 2d 662, 669 (Fla. 3d DCA 2005).

15. For these reasons, attorney's fees cannot be awarded in this case, even though the Corbieys and their attorneys made claims they knew or should have known were not supported by the material facts necessary to establish the claim, or were not supported by the application of the-existing law to the material facts necessary to establish the claims. Had AIC served its Motion before filing it, and the Corbieys had not withdrawn or appropriately corrected those claims, AIC would have been entitled to a reasonable attorney's fee for defending against those claims.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the Motion for Award of Attorney's Fees under Section 57.105, Florida Statutes is denied.

DONE AND ORDERED this 14th day of August, 2006, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2006.

ENDNOTES

1/ DEP did not file a motion for sanctions and did not actively participate in this case 06-1552F, but did appear during the final hearing and supported AIC's positions.

2/ References to these statutes are to the 2005 codification of the Florida Statutes.

3/ Except as otherwise noted, Rule references are to the current codification of the Florida Administrative Code, as reflected in the Joint Exhibits in the unsuccessful challenge, DOAH Case 05- 2891.

COPIES FURNISHED:

Robert W. Bauer Clayton-Johnston, P. A.

18 Northwest 33rd Court Gainesville, Florida 32607

Robert E. Seymour Savage Krim Law Firm

121 Northwest Third Street Ocala, Florida 34475

Stan M. Warden, Esquire

Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

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 Appeal with the agency clerk of the Division of Administrative Hearings and a 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: 06-001552F

Orders for Case No: 06-001552F