Judge formally rules that county — but not Intervenors — has to pay legal fees to Siesta resident who won litigation over high-rise hotels

Amount that county will pay yet to be determined

Following a Dec. 1 hearing, 12th Judicial Circuit Court Judge Hunter Carroll ruled that Sarasota County will have to pay the legal fees for a Siesta Key resident who filed a complaint in late November 2021 over the County Commission’s approval of an ordinance that eliminated the counting of hotel and motel rooms for residential density purposes nearly countywide.

However, no attorneys’ fees will be required from the owners of four parcels on the edge of Siesta Village where an eight-story, 170-room hotel was planned, or from the hotel developer, RE/MAX Realtor Robert Anderson Jr., Carroll decided. Those parties were referred to as “Intervenors” in the case. Anderson and the owners had requested permission of the court to intervene in the Circuit Court litigation, because that threatened their project. The court granted their petition.

The County Commission’s majority vote to approve the ordinance on Oct. 27, 2021 cleared the way for the board also to grant petitions that the Calle Miramar hotel project team had requested, which were necessary for construction of the building.

Lourdes Ramirez of Siesta argued that the ordinance violated Future Land Use Plan 2.9.1 in the county’s Comprehensive Plan, which guides growth in the community. That policy limited residential density and intensity on Siesta Key to the level in place as of March 13, 1989.

Judge Carroll ruled in Ramirez’s favor on Aug. 21.

The County Commission agreed in late October not to pursue an appeal in the case, as the Office of the County Attorney had cautioned about the small likelihood that the county would prevail in such action.

Ramirez also won a second challenge of the October 2021 ordinance, this one filed in late 2021 with the Florida Division of Administrative Hearings (DOAH). The administrative law judge who handled that case issued her Final Order in April.

In a Dec. 2 newsletter that Ramirez sent to supporters, she wrote of Carroll’s Dec. 1 decision, “I’m disappointed that the developers who have wasted a lot of my time in litigating this case are not also held responsible for attorney fees.”

She then noted, “I’m in the process of reviewing all of the legal expenses and removing any costs associated with the State legal challenge which we knew were not recoverable. [She was referring to the DOAH decision.] My attorney will discuss attorney fees with Sarasota County soon.”

County Attorney Joshua Moye pointed out in a memo to the county commissioners in late August that, given the fact that it took nearly two years to litigate Ramirez’s complaint, and the proceedings entailed a significant amount of discovery, the county could end up having to pay Ramirez hundreds of thousands of dollars.

“Discovery” refers to the process through which the parties in a lawsuit work to gather materials that they believe will support their cases.

Attorneys lay out their positions in legal briefs

On Oct. 12, Ramirez’s attorneys formally filed a motion in her 12^th Circuit case, seeking a declaration that she was the prevailing party in the litigation against the county and that she should be awarded attorneys’ fees and costs.

Attorney Richard Grosso of Plantation, who joined Ramirez’s legal team last year, referenced the Florida Rules of Civil Procedure and Section 163.3215(8) of the Florida Statues in requesting an order from Carroll on the prevailing party point.

Then Grosso wrote that Section 163.3215(8)(c) of the Florida Statutes says that the prevailing party in a challenge to a development order [filed under the provisions of another section of state law] is entitled to recover reasonable attorney fees and costs incurred in challenging or defending the order …” Grosso added the emphasis.

In regard to Ramirez’s case, “development order” refers to the vote of the majority of the County Commission seated on Oct. 27, 2021 that approved the Special Exception petitions necessary for the construction of the high-rise hotel on Calle Miramar on Siesta Key.

On Nov. 28, an attorney for the Intervenors filed a response to Grosso’s motion.

Shane T. Costello, of the Hill Ward Henderson firm in Tampa, contended — with emphasis — that Ramirez “cannot obtain a judgment of prevailing party attorneys’ fees and costs against Intervenors.”

Another Hill Ward Henderson attorney, Scott McLaren, also represented the Intervenors.

Costello pointed out in his brief, “First, under well-settled Florida law, a party must plead its claim for attorneys’ fees against an opposing party. [Ramirez] never did so as to Intervenors and, therefore, is not entitled to an award of attorneys’ fees against Intervenors.

“Second,” Costello continued, Ramirez “previously took the position on multiple motions in this proceeding that Intervenors did not have the rights of a party, but only the limited, subordinate rights of an intervenor. Plaintiff further argued that under such limited, subordinate rights, Intervenors could not recover prevailing party attorneys’ fees in this action. Under well-settled Florida law, [Ramirez is prevented from taking] inconsistent positions in this judicial proceeding, and cannot now argue that prevailing party attorneys’ fees are recoverable as between Plaintiff and Intervenors.”

Third, Costello explained, “under well-settled Florida law,” since the Florida statute involving attorneys’ fees for a prevailing party differs from “the common law American rule on attorneys’ fees, the statute must be strictly construed. Where an intervenor is granted limited intervention with rights subordinate to the parties,” he added, “Florida law does not treat an ‘intervenor’ as a ‘party,’ such that a ‘prevailing party’ statutory fee provision cannot be construed to include the intervenor.”

However, in a response filed to Costello’s brief the following day, Ramirez attorney Grosso argued that the “Intervenors affirmatively intervened into this case, knowing Ramirez’ Complaint sought statutory prevailing party attorneys’ fees and costs, substantially increased her costs and fees as a party Defendant, all while asserting Intervenors’ own entitlement to fees and costs should [they] prevail. That Plaintiff Ramirez sought to reduce her own fees and costs by urging secondary party status for the Intervenors does not [prevent] her from enforcing her statutory right to attorney fees and costs against the Intervenors.” Grosso added, “Ramirez’ position that a party choosing to affirmatively intervene as a Defendant should not be entitled to its fees and costs under the [applicable] statute is not inconsistent with the position that, having intervened and increased [Ramirez’s] fees and costs, Intervenors are now liable, along with the Defendant Sarasota County, for those fees and costs.”

Moreover, Grosso asserted that attorney Costello’s claim that Ramirez’s attorneys on two occasions had argued that “prevailing party attorneys’ fees were not at issue” between her and the Intervenors “is just untrue.”

He added that the Intervenors’ “suggestion that they were not on notice that they would be liable to the prevailing party, if they intervened into the case and lost cannot be taken seriously.”

Grosso was referring to an allegation of the Intervenors in regard to a statement that Ramirez made in answer to affirmative defenses that the Intervenors had filed in the case. (Cornell University’s Legal Information Institute explains, “An affirmative defense is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts.)

Grosso pointed out that Ramirez “was not required to plead entitlement to ‘prevailing party’ fees” in that reply. He further noted that she “had clearly pled [such an entitlement] in her Complaint.”

Additionally, Grosso cited a portion of a document that Costello and McLaren had filed in support of a Sarasota County motion for summary judgment in the case. In that, they “[asserted] that they should be entitled to [attorneys’] fees if they prevail …” He quoted from the document.

Moreover, Grosso contended, with emphasis, “The Intervenors engaged in extensive discovery directed to Plaintiff Ramirez,” including one six-page request for her to produce specific materials. He noted, as well, that they conducted a deposition of Ramirez that began just after 10 am. on June 14, 2022 and ended just before 6 p.m., with a one-hour break for lunch. “All told,” Grosso stressed, “Intervenors’ counsel questioned Ms. Ramirez for 170 pages of a 279 page, 7-hour long deposition.” Moreover, he pointed out, they took another deposition of her on Aug. 10, 2022, which lasted more than four hours. “The issues, questions, answers overlapped substantially with those for the case before this Court,” Grosso continued. “Intervenors’ counsel began the deposition at page 5 and concluded at page 153, of a 170-page deposition.”

He also cited numerous examples of Costello’s and McLaren’s participation in hearings conducted during the litigation. Altogether, Grosso wrote in his Conclusion, the intervention of the hotel site owners and the developer, through their attorneys, “substantially increased [Ramirez’s] costs and fees.”