City of Fort Walton Beach v. Grant

• Decision Date: 14 April 1989
• Docket Number: Nos. 87-1900,88-99,s. 87-1900
• Citation: 14 Fla. L. Weekly 1230,544 So.2d 230
• Parties: 14 Fla. L. Weekly 1230, 14 Fla. L. Weekly 938 The CITY OF FORT WALTON BEACH, Appellant, v. Al GRANT, Appellee. Patricia THORNBER, John Franklin, and Al Grant, Appellants, v. The CITY OF FORT WALTON BEACH, Appellee.
• Court: Florida District Court of Appeals

Page 230

544 So.2d 230

14 Fla. L. Weekly 1230, 14 Fla. L. Weekly 938

The CITY OF FORT WALTON BEACH, Appellant, v. Al GRANT, Appellee.

Patricia THORNBER, John Franklin, and Al Grant, Appellants, v. The CITY OF FORT WALTON BEACH, Appellee.

Nos. 87-1900, 88-99.

District Court of Appeal of Florida First District.

April 14, 1989.

Rehearings Denied June 30, 1989.

James E. Moore of Moore & Moore, P.A., Niceville, for City of Fort Walton Beach.

George E. Day of George E. Day, P.A., Fort Walton Beach, for Thornber, Franklin and Grant.

BARFIELD, Judge.

These cases consolidated on appeal for record purposes only, originated from a six-count amended complaint filed by Fort Walton Beach Councilmen John Franklin, Patricia Thornber, and Al Grant, against the City of Fort Walton Beach. The Councilmen sued under section 111.07, Florida Statutes (1981), for reimbursement of attorney's fees, expended for private representation in several legal and administrative actions arising from the City Council's dismissal of the City Manager, Winston Walker, and the Police Chief and Director of Public Safety, Thomas B. Ray. In Case No. 87-1900, the City appeals from a final judgment in favor of Councilman Grant. In Case No. 88-99, Councilmen Thornber, Franklin and Grant appeal from a trial court order dismissing counts II, III and V of their amended complaint and, Councilmen Thornber and Franklin appeal from final judgment in favor of the City. We affirm the judgment in Case No. 87-1900, and affirm in part and reverse in part the judgment in Case No. 88-99.

I.

In May 1981, Kate Bagley was elected Mayor of the City of Fort Walton Beach, and Thornber and Franklin were elected to the City Council. Al Grant and Jim Baughman were already Councilmen. In June 1981, and prior to being sworn into office, Franklin, Thornber and Bagley met privately at Bagley's home and apparently drafted several resolutions which were ultimately passed by the entire City Council at an open, public meeting on July 6, 1981 (the newly elected officials had been sworn into office on July 1, 1981). The resolutions called for the resignation of City Attorney Walter Smith, the dismissal of City Manager Walker, the appointment of Mayor Bagley as Acting City Manager, and the appointment of Michael Mead as City Attorney. ¹ Mayor Bagley, acting in the capacity of City Manager, then fired Police Chief Ray.

A number of legal and administrative actions were filed in reaction to the resolutions, accusing the City Council of misconduct, particularly violation of the "Government in Sunshine Law." ² These actions formed the underlying legal basis for the councilmen's six-count amended complaint for statutory attorney's fees. In essence, the Councilmen alleged that the City had declined to represent them in the underlying actions; that, as a result, they had to retain private counsel; and, that in each action, the Councilmen had prevailed and were entitled to reimbursement of attorney's fees under section 111.07. ³

In count I, the Councilmen requested reimbursement of attorney's fees incurred in defending a declaratory judgment action filed against the City by Joseph Wilson, a taxpayer and resident of the City. ⁴ The Councilmen alleged that they had to give depositions in Wilson, in which they testified that former City Attorney Walter Smith had advised them that their presence at the private meeting would not violate the Sunshine Law.

In count II, the Councilmen requested reimbursement of fees and costs in bringing an action to enjoin recall petitions filed by citizens who sought removal of the Councilmen from public office on the basis of their alleged misconduct. ⁵ The Councilmen alleged that the attempted recalls had no basis in law or fact; that the petitions accused them of both civil and criminal misconduct which, if successful, would have laid a judicial predicate for money damages against the Councilmen; and, that they were therefore required to file the suit for injunctive relief.

In Count III, the Councilmen alleged that it was necessary for them to retain legal counsel to represent them in an administrative hearing on a grievance filed by Ray. ⁶ In count IV, the Councilmen requested reimbursement of attorney's fees incurred in defending a federal civil rights action filed by Ray against the City, Mayor Bagley, and the City Council in their official and individual capacities. ⁷ In count V, the Councilmen alleged that it was necessary for them to retain legal counsel to monitor a declaratory judgment action filed by Ray in circuit court. ⁸ The Councilmen alleged that if Ray had been successful in his declaratory judgment action, the Councilmen would have been subject to the claim of interference with his employment. Finally, in Count VI, the councilmen requested reimbursement of attorney's fees in the present action.

In January 1985, Judge G. Robert Barron granted the City's motion to dismiss Counts II-VI for failure to state a cause of action upon which relief could be granted. Strictly construing section 111.07, the trial court found that the statute contemplated only reimbursement of attorney's fees for party-defendants, and prohibited the payment of attorney's fees on behalf of public officials who initiated litigation, (Count II). The court also found that the Councilmen were not legally required to defend the grievance petition filed by Thomas Ray, (Count III), and Ray's action in circuit court against the City Attorney (Count V). In dismissing Count IV, the court granted leave to amend the count to allege that the Councilmen had requested the City to provide an attorney for their defense in the federal lawsuit, and that the request had been denied. Finally, the court found that section 111.07 did not contemplate reimbursement of attorney's fees for filing the present lawsuit (Count VI). In a subsequent order, the trial court found that the City had never moved to dismiss count I of the amended complaint, and that the Councilmen had successfully amended count IV, so that dismissal of that count was void. ⁹ The Councilmen's appeal of the dismissal of Counts II, III and V, was dismissed by this court as untimely. ¹⁰

In June 1985, the City filed its answer to the amended complaint, generally denying the allegations in count I, and asserting as an affirmative defense that the Councilmen were not named as party defendants in Wilson v. City of Fort Walton Beach, and did not intervene in the lawsuit, so that they were not entitled to an award under section 111.07. As to Count IV, the City admitted that Thomas Ray had filed a civil rights lawsuit in federal court against the City, the Mayor and the City Council, but otherwise denied its liability for reimbursement of attorney's fees under section 111.07, and asserted as an affirmative defense that it had provided an attorney for the Councilmen in the federal lawsuit.

In September 1985, the trial court entered an order granting the City's motion for summary judgment as to count I, finding that a genuine issue of material fact did not exist as to the Councilmen's request for reimbursement of attorney's fees relating to Wilson v. City of Fort Walton, in that the Councilmen were never named as individual defendants in that action. However, the trial court denied the motion for summary judgment as to Count IV, finding that there was a genuine issue of material fact as to representation of the Councilmen in both their official and individual capacities in the federal lawsuit.

In February 1987, the case proceeded to trial before Judge Erwin Fleet on Count IV of the amended complaint. Councilwoman Thornber testified that after she was elected, but before she was sworn into office, she had attended the meeting at Mayor Bagley's home. The trial judge asked her whether the proposed resolutions were discussed at the meeting. Thornber replied that they had discussed firing Police Chief Ray and City Manager Walker. Thornber also testified that she gave a deposition in Wilson v. City of Fort Walton, and that her attorney, George Day, represented her at that deposition. She stated that City Attorney Chesser had advised her that he could not represent her in the federal lawsuit due to the conflict of interest and that he had told her to retain a private attorney to represent her in both her individual and official capacities. She stated that Day filed an answer and motion to dismiss in the federal case on her behalf in both her capacities, and although she entered into a written retainer with Day, it was her understanding that the City would be ultimately responsible for paying his fees.

Councilman Grant testified that he had two or three conversations with City Attorney Chesser, who advised him that he should also retain private representation in both capacities in the federal lawsuit. Grant also hired Day, but he never agreed to pay the attorney any fees because it was his understanding that the City was obligated. To the trial judge's inquiries about the meeting at Bagley's home, Grant replied that he had not attended that meeting and that he never discussed any proposed resolutions with his fellow councilmen before the public meeting.

Councilman Franklin testified that Michael Chesser had represented him at a deposition in the Wilson case before he became City Attorney, but that after he became City Attorney, Chesser advised Franklin to seek private counsel, suggesting Day. Franklin also testified that he never had an attorney/client relationship with Chesser in the federal lawsuit. To the judge's inquiries about the private meeting at Bagley's home, Franklin responded that it was a social function for coffee at which he, Bagley, Thornber and Bagley's private attorney, a Mr. Chandler from Washington, discussed the general state of the city and whether to retain City Manager Walker, but that no decision was reached. Franklin testified that prior to the public meeting on July 6, 1981, he had met with Chandler and...