Thornber v. City of Ft. Walton Beach, 74494

Citation568 So.2d 914
Decision Date11 October 1990
Docket NumberNo. 74494,74494
Parties15 Fla. L. Weekly S535 Patricia THORNBER, et al., Petitioners, v. CITY OF FORT WALTON BEACH, Respondent.
CourtUnited States State Supreme Court of Florida

George E. Day and Timothy I. Meade of George E. Day, P.A., Ft. Walton Beach, for petitioners/cross-respondents.

James E. Moore, Bert Moore and Alice H. Murray of Moore, Kessler & Moore, Niceville, for respondent/cross-petitioner.

McDONALD, Justice.

We review City of Fort Walton Beach v. Grant, 544 So.2d 230 (Fla. 1st DCA 1989), based on express and direct conflict with Ferrara v. Caves, 475 So.2d 1295 (Fla. 4th DCA 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve in part and quash in part Grant and approve Ferrara.

This case involves claims by Fort Walton Beach city council members Thornber, Franklin, and Grant for reimbursement of attorney's fees expended for private representation in six different legal and administrative matters arising from their actions while council members. 1 We discuss only the council members' claim for reimbursement of attorney's fees spent in successfully enjoining a recall petition calling for their removal from office and in defending against a federal civil rights action filed against the city, the mayor, and themselves in their official and individual capacities.

The trial court denied the recall petition claim because the council members initiated the action and section 111.07, Florida Statutes (1981), under which they claimed entitlement to fees, only allows reimbursement of prevailing defendants. The district court affirmed, relying on the same rationale. The council members now allege conflict with Ferrara which allowed town commissioners to recover attorney's fees expended in obtaining declaratory and injunctive relief from a recall petition based on a common law theory rather than on section 111.07. The council members also challenge the district court's affirmance of the trial court's refusal to award attorney's fees under section 57.105, Florida Statutes (1981), for the city's frivolous defense of their claim for fees arising from the federal civil rights action. Lastly, the council members claim appellate attorney's fees under section 59.46, Florida Statutes (1987).

As to the federal civil rights claim, the trial court awarded attorney's fees to Grant as a prevailing defendant under section 111.07 but refused to award fees to Thornber and Franklin, finding that they held a private meeting which violated sunshine laws and prevented recovery. The district court affirmed the award of fees to Grant. It reversed the decision with respect to Thornber and Franklin, however, holding that the trial court improperly tried the sunshine law violation issue and that they were entitled to reimbursement as prevailing defendants. The city now cross-petitions regarding this decision, contending that the council members did not prevail in the civil rights action by virtue of a voluntary dismissal with prejudice. 2

We first address whether the council members are entitled to reimbursement of attorney's fees from the city for successfully enjoining the recall petition. For the reasons expressed in the district court's opinion, we agree that the council members cannot recover their attorney's fees expended in enjoining the recall petition from the city under section 111.07. In this case, however, our inquiry does not end at whether the council members are entitled to recover fees under section 111.07.

Florida courts have long recognized that public officials are entitled to legal representation at public expense to defend themselves against litigation arising from the performance of their official duties while serving a public purpose. E.g., Miller v. Carbonelli, 80 So.2d 909 (Fla.1955); Williams v. City of Miami, 42 So.2d 582 (Fla.1949); Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890); Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA 1982), review dismissed, 431 So.2d 988 (Fla.1983); Ellison v. Reid, 397 So.2d 352 (Fla. 1st DCA 1981). The purpose of this common law rule is to avoid the chilling effect that a denial of representation might have on public officials in performing their duties properly and diligently. Nuzum v. Valdes, 407 So.2d 277 (Fla. 3d DCA 1981). This entitlement to attorney's fees arises independent of statute, ordinance, or charter. Lomelo, 423 So.2d at 976. For public officials to be entitled to representation at public expense, the litigation must (1) arise out of or in connection with the performance of their official duties and (2) serve a public purpose. Chavez v. City of Tampa, 560 So.2d 1214 (Fla. 2d DCA 1990). See Lomelo; Nuzum; Markham v. Department of Revenue, 298 So.2d 210 (Fla. 1st DCA 1974), cert. denied, 309 So.2d 547 (Fla.1975).

In this case the council members' legal defense against the recall petition meets both of these requirements. The factual basis for the petition was the council members' alleged malfeasance of meeting in violation of the sunshine law and subsequently voting at a public meeting in favor of resolutions effectively dismissing the city manager and police chief. 3 Unquestionably, the vote taken at the public meeting was within their official duties. There is a sufficient nexus between the firing of these employees and the council members' official duties to satisfy the first prong of this test. 4

The council members' action in defending against the recall petition also served a public purpose and, thus, satisfied the second prong of this test. The city does not have an interest in the outcome of a recall petition because any individual, not any specific individual, can be the officeholder at issue. Williams, 42 So.2d at 582. It does have a decided interest, however, in protecting its officers from untimely and illegal recall petitions. 5 We reject the city's contention that defending against a recall petition only serves the elected officials' personal interests in maintaining their position and is devoid of public interest. Notwithstanding that the council members have an obvious personal interest in keeping their jobs, under the circumstances of this case the public has an overriding interest in ensuring the effective and efficient functioning of its governing body. See City of North Miami Beach v. Estes, 214 So.2d 644 (Fla.3d DCA 1968), cert. discharged, 227 So.2d 33 (Fla.1969); Duplig v. City of South Daytona, 195 So.2d 581 (Fla. 1st DCA 1967). If a recall petition is commenced, the public has an interest--and the city has a responsibility--to ensure that the recall committee follows the proper procedures, i.e., that the recall petition is facially correct. Officials should not have to incur personal expenses to ensure that a recall committee follows the proper procedures. While this case presents an unusual twist in that the council members initiated the litigation and were not actually the defendants in an action against them, they were defending against a recall petition, albeit in an offensive posture. We agree with the district court in Ferrara that, in the "spirit" of common law principles, the unique circumstances of this case should not preclude the council members from recovering attorney's fees under the common law.

Thus, the only question remaining for our resolution on this matter is whether the remedy provided by section 111.07 has superseded this common law remedy so as to provide the exclusive means by which public officials may recover attorney's fees from public funds for litigation arising out of their official duties. Whether a statutory remedy is exclusive or merely cumulative depends upon the legislative intent as manifested in the language of the statute. The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. City of Hialeah v. State ex rel. Morris, 136 Fla. 498, 183 So. 745 (1938); Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986); Sand Key Associates, Ltd. v. Board of Trustees of Internal Improvement Trust Fund, 458 So.2d 369 (Fla. 2d DCA 1984). Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law. Cullen v. Seaboard Air Line Railway, 63 Fla. 122, 58 So. 182 (1912); Peninsular Supply Co. v. C.B. Day Realty Inc., 423 So.2d 500 (Fla. 3d DCA 1982); In re Levy's Estate, 141 So.2d 803 (Fla. 2d DCA 1962).

The express language of section 111.07 makes no mention of whether it superseded the common law with regard to the circumstances under which public officials are entitled to have the state provide for their representation, so as to provide the exclusive means by which officials may recover attorney's fees from public funds. Moreover, there is nothing in the legislative history or language of the statute by which to imply such an interpretation. 6 Statutory abrogation by implication of an existing common law remedy, particularly if the remedy is long established, is not favored. 1 Am.Jur.2d, Actions § 77 (1962). See Tamiami Trail Tours, Inc. v. City of Tampa, 159 Fla. 287, 31 So.2d 468 (1947); Peninsular Supply Co. We agree with the district court that section 111.07 recognizes the common law but disagree that the legislature intended this statute to replace the common law completely. Thus, we hold that the statute is not the exclusive mechanism authorizing an award of attorney's fees to public officials defending against litigation arising from the performance of their public duties. 7 We therefore direct the district court to remand this portion of this case to the trial court to order the city to reimburse the attorney's fees expended by the council members in defending against the recall petition. 8

We now turn to the city's claim that the district court incorrectly held that the council members prevailed in the federal civil rights suit filed by...

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