Lazaro Aleman
ECB Publishing, Inc.
A flurry of motions have been filed of late by the attorneys in the legal battle between the county and the wedding/entertainment venue known as the Homestead Barn, with the emphasis now on the attorneys’ fees, and the judge calling for more written arguments from both sides in the latest court order.
The case, in brief, involves the county finding the venue in violation of several rules of the land development code, which violations a special magistrate’s review affirmed. The court, however, in June quashed the special magistrate’s order, which the venue owners had challenged.
Soon after the court’s tossing out of the special magistrate’s order – a victory for the appellants and a setback for the county – the attorney for appellants Mark and Sheila Winchester filed a motion on July 10 seeking a rehearing or clarification of the court’s reservation of jurisdiction on the matter of the attorneys’ fees.
The motion cites case law to argue that the court should award the attorneys’ fees to the Winchesters as the prevailing party in the appellate proceeding, regardless of which side ultimately prevails in the matter upon the completion of all litigation.
Given the judge’s quashing of the special magistrate’s underlying order, argues Attorney Krystal Beharry, the case might never come before the court for a determination of the attorneys’ fees for a number of reasons, several of which she lists.
“There are multiple scenarios and paths that could be taken by the parties after the underlying order was quashed,” Beharry writes. “Appellants maintain that they are the prevailing party in this matter and that appellate attorneys’ fees should be awarded to them.”
It’s also Beharry’s argument that the appellate court alone has authority to award the appellate attorneys’ fees, and that her clients had filed their request for the fees timely and the county had failed to respond within the required allotted time (“arguably amounting to a waiver of the right to oppose the fees claim,” Beharry’s motion states).
On July 18, Attorney Alicia Carothers, representing the Jefferson County Department of Code Enforcement, filed a nine-page response in opposition to the appellants’ request for attorneys’ fees.
In the motion, the county asks the court to deny the appellants’ request, arguing that the latter is not a prevailing party and hence not entitled to attorneys’ fees.
Carothers cites Florida Rules of Appellate Procedures to argue that motions for rehearing and clarification must “state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding.”
“Thus,” Carothers continues, “a motion for rehearing must state the particular factual or legal basis for the rehearing and should avoid rearguing the merits of the appellate court’s decision.”
Nor, she argues, is such a motion “a last resort to persuade the court to change its mind, or to express…displeasure with the court’s conclusion.”
Bottom line, it’s Carothers’ argument, there are no grounds that warrant a rehearing nor clarification of the court’s original finding as to attorneys’ fees. To boot, she writes,“appellants are not the prevailing in the instant appeal, as the ultimate issue has not been resolved.”
It’s further the county’s argument that given the narrow scope allowed the court because of the nature of the review, that despite the court’s quashing of the special magistrate underlying order in its entirety, “There has been no resolution of the ultimate issue.”
Finally, it’s the county’s argument that appellants have failed to set forth their entitlement, or clearly state “the grounds on which recovery is sought,” by providing substance and specifying “the particular contractual, statutory, or other substantive basis for an award of fees.”
A day later, on July 19, Beharry filed a motion asking the court to strike portions of the county’s response because the latter’s arguments had been filed untimely and therefore improperly and should be stricken.
“Appellants timely filed their motion for appellate attorneys’ fees on October 12, 2022, and appellee did not file a response to appellants’ motion for appellate attorneys’ fees within the mandated allotted response deadline of within 15 days,” Beharry writes. That deadline, per the motion, was Oct. 27, 2022, which the county’s attorneys failed to meet.
Hence, according to Beharry’s argument, appellee failed to properly preserve its argument on the issue of entitlement to attorneys’ fees by failing to timely respond to original request and belatedly raising objections about appellants’ entitlement to attorneys’ fees.
About two weeks later, on Aug. 3, the county filed a motion asking the court to deny appellants’ request that portions of the appellee’s response be stricken. The argument essentially is that the county had appropriately responded to appellants’ original motion and that the “appellants persist in failing to put forth any legal basis which shows that they are entitled to attorneys’ fees.”
“As appellee has continued to argue before the court,” Carothers states, “appellants must show entitlement to attorneys’ fees before a court may award them; they are not awarded as a matter of right. This is the state of the law and appellants have failed to set a legal basis for that award.”
On Aug. 11, the court issued a four-page order granting the motion for clarification, denying the motion for a rehearing, denying the motion to strike, and ordering supplemental briefs on five listed issues “regarding appellants motion for attorneys’ fees, which was filed on Oct. 12, 2022.”
The court order duly notes that it is ordering the supplemental briefs despite the fact that the county had not timely responded to the Winchesters’ 2022 motion for attorney’s fees.
The court order gives the two sides 60 days to submit their written arguments.