Opinion
No. 1D21-2699
01-25-2023
Carmen DIAZ, Appellant, v. NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT and Palafox, LLC, Appellees.
Jefferson M. Braswell of Braswell Law, PLLC, Gainesville, for Appellant. W. Douglas Hall of Carlton Fields, P.A., Tallahassee, for Appellees.
Jefferson M. Braswell of Braswell Law, PLLC, Gainesville, for Appellant.
W. Douglas Hall of Carlton Fields, P.A., Tallahassee, for Appellees.
Long, J.
Carmen Diaz appeals a final order in which the Northwest Florida Water Management District (District) awarded attorney's fees and costs to Appellee Palafox, LLC (Palafox) pursuant to section 120.595, Florida Statutes (2020). We affirm.
Facts
Palafox is the developer of a multi-family residential development in Tallahassee. The District issued Palafox an environmental resource permit (ERP) authorizing construction of a surface water management system on a property located near Diaz's home. Diaz filed an administrative petition challenging the issuance of the ERP. After a final hearing on the merits, Palafox moved for attorney's fees and sanctions under sections 120.595 and 120.569(2)(e). Palafox asserted that Diaz and her attorney filed the petition and participated in the proceeding for an improper purpose.
The statute requires the imposition of a sanction when a petition is filed for an improper purpose. We addressed a different dispute regarding whether fees could be assessed against Diaz's counsel in a separate case. Palafox, LLC v. Diaz , 334 So. 3d 353 (Fla. 1st DCA 2022).
Diaz admitted in her deposition testimony that she did not know anything about Palafox's project, the ERP, or the impact the project would have on her property. Additionally, she conducted no discovery and did not consult an expert before responding to interrogatories requiring technical knowledge. An administrative law judge found that Diaz participated in the proceeding for an improper purpose and recommended that the District enter a final order awarding Palafox reasonable attorney's fees and costs. The District did so, and Diaz appealed. Analysis
We review findings of fact for competent, substantial evidence and issues of law de novo. See § 120.68(7)(b), Fla. Stat.; Padron v. State, Dep't. of Env't. Prot. , 143 So. 3d 1037, 1040 (Fla. 3d DCA 2014). Diaz raises three issues on appeal. We address one here and reject the others without further comment.
To recover attorney's fees, a party must establish that the non-prevailing adverse party participated in the proceeding for an improper purpose. § 120.595(1)(b), Fla. Stat. (2020). To determine whether a party participated in a proceeding for an improper purpose, an administrative law judge shall determine if "participation in [the] proceeding [was] primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." §§ 120.595(1)(c) and (e), Fla. Stat. The administrative law judge also
shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.
§ 120.595(1)(c), Fla. Stat. (emphasis added). Diaz argues that the statute requires the administrative law judge to find that the nonprevailing adverse party participated in two or more prior proceedings before fees can be awarded. But the statute requires only that the administrative law judge consider this. It is the rebuttable presumption that is established by this finding, not the ultimate entitlement to fees.
Whether a party intended to participate in a section 120.57 hearing for an improper purpose is a factual inquiry. The administrative law judge made several findings of fact in the recommended order, concluding that Diaz "was not the least bit informed of [Palafox's] Project," and that she "simply does not want Palafox's property developed and was willing to challenge [the ERP] regardless of a lack of evidentiary support [for her position]." We find from our review of the record that there was competent, substantial evidence to support the finding that Diaz participated in the proceeding for an improper purpose.
AFFIRMED .
Rowe, C.J., and B.L. Thomas, J., concur.