Appeal Court also denies Cosentino motion for mediation
As Siesta Key resident Michael Cosentino continues his efforts to overturn 12th Judicial Circuit Court judges’ rulings in favor of Sarasota County in his lawsuits, he has prevailed in opposing a motion by intervenors for an expedited Second District Court of Appeal hearing, The Sarasota News Leader has learned.
However, the Second District Court of Appeal (DCA) on July 8 denied a motion Cosentino’s attorney filed on July 4, seeking mediation.
On May 29, M. Lewis Hall III of the Williams Parker law firm in Sarasota filed the Motion to Expedite on behalf of his clients, Dennis and Wendy Madden of Siesta Key. The Maddens were among three sets of property owners who sought the vacation of a 373-foot-long segment of North Beach Road in May 2016. After Cosentino filed suit against the Sarasota County Commission for approving that vacation petition, the Maddens won court permission to intervene in Cosentino’s lawsuit.
In his motion, Hall pointed out that Cosentino filed his original complaint against the county four years ago, on June 10, 2016. Not only did the Maddens intervene in the case, but another set of North Beach Road property owners did, as well, Hall wrote: members of the Caflisch family, who had joined the Maddens and the heirs of the late Capt. Ralph Styles (who owned the property at 99 Beach Road) in petitioning for the road vacation.
“Over the following four (4) years,” Hall continued, “the parties filed a series of cross-claims, counter-claims, third party complaints and separate causes of action, which were ultimately consolidated into the main case, at times dropping parties only to add them back days later, until all claims were officially resolved by the trial court on March 24, 2020.”
Along with the North Beach Road issue, the case ended up including arguments that two Sarasota County Charter amendments Cosentino wrote were in contravention of state law. Cosentino has explained to the News Leader that he saw the proposed amendments as another means of putting the vacated road segment back into county — and public — ownership, in the event he did not prevail in court. His second amendment sought to prevent any future County Commission effort to vacate any portion of a county road that had so much as a view of the water.
In her final order in the combined cases, issued in late March, Circuit Judge Andrea McHugh reiterated an October 2019 ruling by one of her colleagues — Circuit Judge Hunter Carroll — that invalidated the Charter amendments. She also pointed to all the case rulings for the county and the Maddens on the facets of the North Beach Road allegations Cosentino had made.
In his May 29 filing with the Second DCA, Hall added, “A detailed review of the procedural history is necessary to frame the issue presented in this Motion to Expedite Appeal, specifically [Cosentino’s] habitual requests to extend deadlines prolonging the appeal process.”
For example, Hall noted, Cosentino and Cosentino’s co-appellant — a nonprofit organization Cosentino established called Reopen Beach Road (RBR) — filed six requests for extension of time to file documents during a 2018 appeal, which Cosentino ended up dropping.
Further, Hall wrote, Cosentino “has a history of failing to meet filing deadlines,” as demonstrated in that 2018 appeal.
“The tactics [described] above have occurred throughout this litigation and reflect a pattern of conduct designed to forestall a final resolution,” Hall continued.
Moreover, he told the court, Cosentino’s actions had stymied the construction of a condominium project the Maddens have pursued on North Beach Road. (The County Commission in May 2016 also granted the Maddens a Coastal Setback Variance for that project.) “The Maddens’ need to secure financing and proceed with their development is the primary reason to expedite this appeal,” Hall added.
“Further,” he continued, “expediting the appeal serves the justice of this cause since the Maddens continue to be irreparably harmed by the delay of a final resolution.”
A different view
In her June 16 response to the motion, Cosentino’s attorney, Janelle A. Weber of the Manta Law firm in Tampa, called on the court to deny the Maddens’ request “because it would impede [Reopen Beach Road’s] counsel from having a full and complete opportunity to review the appellate record, analyze the appellate arguments, confer with her client, and draft the Initial and Reply briefs.”
Weber filed a motion with the Second DCA on May 29, noting that she was Cosentino’s new attorney in the case.
Moreover, Weber wrote in her June 16 response, “[T]his appeal raises issues of great importance to the public, necessitating an adequate period for preparation of appeal,” adding that this type of case is not typically put on an expedited schedule. Those that are, she noted, generally involve children and parental rights, along with worker’s compensation appeals.
She also pointed out that it was her understanding that the record for the Second DCA to review encompassed more than 7,000 pages. (In fact, a July 2 notation in the Second DCA case docket shows the record contained 7,589 pages.)
This case was not the only one she was handling, Weber continued; therefore, she could not dedicated “100 percent of her time to it.”
Then she turned to the issue of the Charter amendments, pointing out that they were passed by Sarasota voters “with the goal of preserving Beach Road for public vehicular traffic and preserving the County’s other public lands and waterfront roads. The issues impact not only RBR but the Sarasota County electorate, as well [as] the multitude of tourists and other persons who visit Siesta Key each year. This Court,” she continued, “should err on the side of granting the parties more time to present their appellate arguments, not less.”
As for the Maddens’ concerns about making progress on construction of their new condominiums, Weber wrote that it was their choice to proceed with the development while the litigation and appeal were underway. “Maddens were made aware that Appellants [Cosentino and RBR] intended to seek demolition of their property if Appellants were to prevail,” she added.
On June 25, the Second DCA denied the motion to expedite the appeal. At the same time, the court gave Cosentino another 30 days from that date to file the initial brief in the case — a delay that Weber had sought in a June 23 filing.
However, the court added, “Appellants are advised that further motions for extensions are unlikely to receive favorable consideration.”
The mediation issue
In her July 4 motion seeking mediation in the case, Cosentino’s attorney, Weber, pointed out that the issues had not been submitted to formal mediation. While the litigation was underway in Circuit Court, she continued, “a voluntary mediation took place on August 9, 2018.” However, she added, only Cosentino and Dennis Madden attended that, and it ended in an impasse.
“A good faith attempt at resolution of the complex issues involved in this cause would require Cosentino, [Reopen Beach Road], Sarasota County, the Maddens, and the Caflisches to attend mediation to reach a viable and binding settlement,” Weber wrote.
“In the interests of judicial economy and efficiency,” she added, “the parties should mediate to avoid costly litigation through this appeal and in the trial court, should Appellants prevail.”
The Maddens would be willing to consider mediation, she noted, “if all parties consent to the same.”
She did acknowledge, though, that both the county and the Caflisches “have indicated they are not interested in mediation.” Nonetheless, Weber continued, “A remote mediation can be arranged in short order and will not need to significantly delay these proceedings. Appellants will [make] themselves available for a half or full-day mediation as agreed to by the other parties.”
In using the term “remote,” she was referring to use of virtual technology, as the courts have not been conducting in-person hearings during the novel coronavirus pandemic.
On July 8, the Second DCA issued a succinct denial of the motion for mediation; it offered no reasons for the decision.
Cosentino agrees to pay pat of Maddens’ Circuit Court costs
In one related matter, Circuit Judge McHugh had scheduled a hearing on June 15 on a motion in which the Maddens sought a ruling requiring Cosentino to pay certain costs for their part of the litigation.
In early May, Hall provided the court a detailed accounting of the Maddens’ expenses, dating from August 2016. They added up to $8,072.85, he pointed out.
Hall noted that he had broken down the costs into three categories, as indicated in guidelines the Florida Supreme Court has adopted: those that should be taxed; those that may be taxed; and those that should not be taxed. He added, “The trial court has broad discretion to award costs beyond those identified in the Uniform Guidelines upon a showing the costs were reasonably necessary to prosecute or defend the case.”
McHugh wrote in her June 15 Agreed Final Judgment for Costs, “The Parties announced in open Court and on the record an agreement as to the Costs to be assessed against John Michael Cosentino and [Reopen Beach Road].”
She first reiterated that the Maddens were the prevailing party in the litigation. Then she noted that they would receive $4,750 from Cosentino.
“Upon payment of this Cost Judgment,” McHugh added, the Maddens “shall file a Satisfaction of Judgment and the Clerk of Court is directed to close the file.”