Appeals fees and attorneys’ fees

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By Rachel Brown Hackney

Unlike some plaintiffs who appeal decisions of the 12th Judicial Circuit Court, the Siesta Key Association (SKA) has been notified of a bill of several hundred dollars, instead of several thousand dollars, SNL learned by checking the docket in the nonprofit’s lawsuit against the City of Sarasota involving the proposed Lido Beach Renourishment Project.

On Oct. 18, Deputy Clerk Barbara Torres of the Sarasota County Office of the Clerk of the Circuit Court & County Comptroller, notified the SKA that the total amount due for staff’s preparation of the record for the nonprofit’s appeal to the Second District Court of Appeal would be $362.50.

The notice also said the Clerk’s Office staff planned to complete its preparation of those records on Nov. 25. Thus, the full payment needed to be made by that date, Torres indicated.

The SKA announced on Oct. 4 that it would appeal the Sept. 19 ruling by 12th Judicial Circuit Court Judge Andrea McHugh in the case the SKA filed in March 2017 to try to prevent the dredging of Big Sarasota Pass to renourish about 1.56 miles of South Lido Key Beach.

In the meantime, as of Oct. 18, McHugh had not taken any action on motions filed by the City of Sarasota and the Lido Key Residents Association (LKRA) to recover attorneys’ fees and costs related to the Circuit Court case.

Both the city and the LKRA cited provisions of the Florida Environmental Protection Act, which is Florida Statute 403.412, as the basis for their motions. Section (f) of that law says, “In any action instituted pursuant to this section, other than an action involving a state [National Pollutant Discharge Elimination System] NPDESD permit authorized under [a separate section of Florida Statue 403], the prevailing party or parties shall be entitled to costs and attorney’s fees.”

On June 1, 2017, McHugh issued an order granting the LKRA the right to intervene in the case.

She pointed out that, even though the SKA objected to the LKRA’s motion to participate in the case, the SKA and its co-plaintiff — Siesta resident David Patton — “have essentially the same interest in the action as LKRA: just as LKRA argues that any delay or prevention of the [Lido Key Renourishment] Project will impact their beaches on Lido Key, [the SKA] and Patton argue that the implementation of the Project will impact their beaches on Siesta Key.” Thus, McHugh added, the interests of the SKA and Patton in the case “are the equivalent of LKRA, just on the other side of the coin.”

As it has in the past when it needs insights on legal issues, SNL contacted Morgan Bentley of the Bentley & Bruning law firm in Sarasota to ask about the likelihood of the LKRA’s winning a ruling from McHugh for the SKA to pay the LKRA’s legal fees and costs.

Bentley responded in an email: “You actually ask a pretty complicated question. First question is how the Court granted intervention status. For instance did [McHugh] identify them as a plaintiff or defendant.”

(In this case, the Lido Key Residents Association was identified as “Intervenor-Defendant” in records in the case.) 

“Second,” Bentley wrote, “is whether there is an underlying basis for fees at all. If not, a prevailing party can ask for costs but not fees.

“Third,” he continued, is did they win in a count that had fees. You can win a lawsuit but still not get fees.”

SNL had not sent Bentley the applicable section of the Florida Statutes, but — as noted above — the statute says the “prevailing parties shall be entitled to costs and attorney’s fees.”

“And lastly,’ Bentley wrote, “is whether they were in fact the ‘prevailing party.’ That is sometimes not as easy to determine as it appears at first blush.”

He concluded the email with the following: “But, none of this matters if you don’t ask for fees. So for now, even if they think they only have a small chance of winning them, they have to ask for them.”

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