HomeMy Public PortalAboutPRR 23-2949
Renee Basel
From:Jonathan O'Boyle <joboyle@oboylelawfirm.com>
Sent:Monday, June 19, 2023 5:23 PM
To:Hudson Carter Gill; Joanne Marie O
Cc:Renee Basel; Danielle Tschuschke; Jonathan O'Boyle
Subject:Records Request Chapter 119
Importance:High
\[NOTICE: This message originated outside of the Town of Gulfstream -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.\]
Dear Custodians for the Town of Gulf Stream,
Attached is Judge Hafele’s October 2, 2018 order that came about from a September 1, 2018 hearing. I wanted to ask if
the Town had a copy of that hearing transcript, or, a document reflecting the identify of the stenographer (also if you
know the company, that would be swell as well in lieu of providing the record showing who they were). This request is
time sensitive and could stave off an appeal.
Your assistance would be greatly appreciated.
Jonathan O’Boyle, Esq., LLM.
Licensed in Florida*
Licensed In New Jersey*
Licensed In Pennsylvania*
Licensed in West Virginia*
The O’Boyle Law Firm, P.C.
www.oboylelawfirm.com
Florida Office
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Office: 754-212-4201
Direct: 954-570-3533
joboyle@oboylelawfirm.com
Pennsylvania Office
1001 Broad St.
Johnstown, PA 15906
New Jersey Office
525 Route 73 North, Suite 104
Marlton, NJ 08053
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
communication, unless expressly stated otherwise, was not intended or
1
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any tax-related matter(s)
addressed herein.
===========================================================
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2
Filing # 78730982 E-Filed 10/02/2018 01:17:09 PM
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT,
.IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 502014CA004474XXXXMB AG
MARTIN E. O'BOYLE,
Plaintiff,
VS.
TOWN OF GULF STREAM,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART_
DEFENDANT, TOWN OF GULF STREAM'S
MOTION FOR. PARTIAL SUMMARY JUDGMENT ON
COUNTERCLAIM AND UNSUCCESSFUL INTERLOCUTORY. APPEAL FEES
THIS CAUSE having come before the Court on Defendant TOWN OF GULF STREAM's
Motion for Partial Summary Judgment on Counterclaim and Unsuccessful Interlocutory Appeal
Fees (the "Motion"). The Court having reviewed the Motion, Mr. O'Boyle's.Memorandum in
Opposition and the. Town's Reply, having heard argument of counsel on September 7, 2018 and
being fully advised in the premises, it is
ORDERED AND ADJUDGED that the Town's Motion is GRANTED in part and
DENIED in part as follows:
I. Mr. O'Boyle. concedes, and the. Court finds, that he is not entitled to recover
attorneys' fees and costs for his unsuccessful interlocutory appeal of this Court's Order, denying
his Motion for an Immediate Hearing, because a motion for attorneys' fees was not: filed in the
Fourth District Court of Appeal.
II. The Court finds that Mr. O'Boyle's recovery of attorney's fees and costs incurred
for legal services relating to the Town's counterclaim prior to severance on March 30, 2016 should
FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 10/02/2018 01.17.09 PM
be limited to the procedural work that was done exclusively for Mr. O'Boyle to sever that
counterclaim. The Court makes no finding at this time, and expressly reserves ruling on, whether
any such fees and costs constitute Mr. O'Boyle's reasonable costs of enforcement under section
119.12 of the Public Records Act.
III. This Order does not affect Mr. O'Boyle's entitlement to recover the reasonable
appellate attorneys' fees and costs incurred in his successful appeals in Fourth District Court of
Appeal case nos. 4D16-3386 and 4D16-3634.
W. The Town is entitled to partial summary judgment, denying Mr. O'Boyle's request
for attorneys' fees and costs for:
a. Mr. O'Boyle's unsuccessful interlocutory appeal;
b. Defending the Town's counterclaim after it was severed on March 30, 2016,
styled Toivn of Gulf Sireain v. O'Boyle, and assigned Case No. 2016-CA-
005437XXXXMB; and
c. Substantively defending the Town's counterclaim prior to severance on March
30, 2016.
V. By October 5, 2018, Mr. O'Boyle's counsel shall file and serve a list specifically
identifying and allocating the attorneys' fees and costs for legal services provided to Mr. O'Boyle
in this matter as follows:
a. Fees and costs for legal services for procedural work done from January 13,
2015 through March 30, 2016, exclusively for Mr. O'Boyle to obtain a
severance of the Town's counterclaim;
b. Fees and costs incurred from January 13, 2015 through March 30, 2016 for legal
services related exclusively to Mr. O'Boyle's Public Records Act claim in this
2
Court, excluding any legal services incurred for (i) substantively defending the
counterclaim or (ii) prosecuting the unsuccessful interlocutory appeal;
c. Fees and costs for legal services related to Mr. O'Boyle's Public Records Act
claims, prior to January 13, 2015, excluding work on the unsuccessful
interlocutory appeal.
DONE AND ORDERED at Palm Beach County, Fl a, is day of Sir, 2018.
CIRCUIT C U WJ GI,
Copies furnished to all counsel via e-courtesy
3
Renee Basel
From:Jonathan O'Boyle <joboyle@oboylelawfirm.com>
Sent:Wednesday, June 21, 2023 1:32 PM
To:Hudson Carter Gill; Joanne Marie O
Cc:Renee Basel; Danielle Tschuschke; Jonathan O'Boyle; Trey Nazzaro; Jonathan O'Boyle
Subject:RE: Records Request Chapter 119
Importance:High
\[NOTICE: This message originated outside of the Town of Gulfstream -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.\]
Joanne and Hudson, I have not heard back from Renee or anyone from the Town and I would normally follow up with a
call to the Town but I received a motion for sanctions last time I did that so I am reading out to you folks as custodians of
the actual record.
I understand that the Town has a copy of the transcript I sought below. I wanted to follow up since I understand it is in
electronic form and readily accessible. I am incorporating my request below and giving notice pursuant to Chapter
119.12.
Thank you in advance for your prompt attention to this matter.
Jonathan O’Boyle, Esq., LLM.
Licensed in Florida*
Licensed In New Jersey*
Licensed In Pennsylvania*
Licensed in West Virginia*
The O’Boyle Law Firm, P.C.
www.oboylelawfirm.com
Florida Office
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Office: 754-212-4201
Direct: 954-570-3533
joboyle@oboylelawfirm.com
Pennsylvania Office
1001 Broad St.
Johnstown, PA 15906
New Jersey Office
525 Route 73 North, Suite 104
Marlton, NJ 08053
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
1
communication, unless expressly stated otherwise, was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any tax-related matter(s)
addressed herein.
===========================================================
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY
THE INTENDED RECIPIENT OF THE TRANSMISSION, AND
MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU
RECEIVED THIS E- MAIL IN ERROR, ANY REVIEW, USE,
DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS
E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US
IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND
PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM.
THANK YOU IN ADVANCE FOR YOUR COOPERATION.
From: Jonathan O'Boyle
Sent: Monday, June 19, 2023 5:23 PM
To: Hudson Carter Gill <hgill@jambg.com>; Joanne Marie O <JOConnor@jonesfoster.com>
Cc: rbasel@gulf-stream.org; Danielle Tschuschke <dtschuschke@commerce-group.com>; Jonathan O'Boyle
<joboyle@oboylelawfirm.com>
Subject: Records Request Chapter 119
Importance: High
Dear Custodians for the Town of Gulf Stream,
Attached is Judge Hafele’s October 2, 2018 order that came about from a September 1, 2018 hearing. I wanted to ask if
the Town had a copy of that hearing transcript, or, a document reflecting the identify of the stenographer (also if you
know the company, that would be swell as well in lieu of providing the record showing who they were). This request is
time sensitive and could stave off an appeal.
Your assistance would be greatly appreciated.
Jonathan O’Boyle, Esq., LLM.
Licensed in Florida*
Licensed In New Jersey*
Licensed In Pennsylvania*
Licensed in West Virginia*
The O’Boyle Law Firm, P.C.
www.oboylelawfirm.com
Florida Office
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Office: 754-212-4201
Direct: 954-570-3533
joboyle@oboylelawfirm.com
Pennsylvania Office
1001 Broad St.
Johnstown, PA 15906
2
New Jersey Office
525 Route 73 North, Suite 104
Marlton, NJ 08053
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
communication, unless expressly stated otherwise, was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any tax-related matter(s)
addressed herein.
===========================================================
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY
THE INTENDED RECIPIENT OF THE TRANSMISSION, AND
MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU
RECEIVED THIS E- MAIL IN ERROR, ANY REVIEW, USE,
DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS
E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US
IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND
PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM.
THANK YOU IN ADVANCE FOR YOUR COOPERATION.
3
Renee Basel
From:OConnor, Joanne M. <JOConnor@jonesfoster.com>
Sent:Wednesday, June 21, 2023 1:37 PM
To:Jonathan O'Boyle; Hudson Carter Gill
Cc:Renee Basel; Danielle Tschuschke; Trey Nazzaro
Subject:RE: Records Request Chapter 119
\[NOTICE: This message originated outside of the Town of Gulfstream -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.\]
See attached.
Joanne M. O’Connor
Florida Bar Board Certified Business Litigation Attorney
Jones Foster P.A.
561 650 0498 – D
561 650 5300 – F
561 659 3000 – O
joconnor@jonesfoster.com
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points to the correct file and location.
Flagler Center Tower
505 South Flagler Drive, Suite 1100
West Palm Beach, Florida 33401
jonesfoster.com
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delete the original message.
From: Jonathan O'Boyle <joboyle@oboylelawfirm.com>
Sent: Wednesday, June 21, 2023 1:32 PM
To: Hudson Carter Gill <hgill@jambg.com>; OConnor, Joanne M. <JOConnor@jonesfoster.com>
Cc: rbasel@gulf-stream.org; Danielle Tschuschke <dtschuschke@commerce-group.com>; Jonathan O'Boyle
<joboyle@oboylelawfirm.com>; TNAZZARO@gulf-stream.org; Jonathan O'Boyle <joboyle@oboylelawfirm.com>
Subject: RE: Records Request Chapter 119
Importance: High
EXTERNAL EMAIL - This Message originated outside your organization. DO NOT click any links before
verifying the email is safe.
1
Joanne and Hudson, I have not heard back from Renee or anyone from the Town and I would normally follow up with a
call to the Town but I received a motion for sanctions last time I did that so I am reading out to you folks as custodians of
the actual record.
I understand that the Town has a copy of the transcript I sought below. I wanted to follow up since I understand it is in
electronic form and readily accessible. I am incorporating my request below and giving notice pursuant to Chapter
119.12.
Thank you in advance for your prompt attention to this matter.
Jonathan O’Boyle, Esq., LLM.
Licensed in Florida*
Licensed In New Jersey*
Licensed In Pennsylvania*
Licensed in West Virginia*
The O’Boyle Law Firm, P.C.
www.oboylelawfirm.com
Florida Office
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Office: 754-212-4201
Direct: 954-570-3533
joboyle@oboylelawfirm.com
Pennsylvania Office
1001 Broad St.
Johnstown, PA 15906
New Jersey Office
525 Route 73 North, Suite 104
Marlton, NJ 08053
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
communication, unless expressly stated otherwise, was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any tax-related matter(s)
addressed herein.
===========================================================
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY
THE INTENDED RECIPIENT OF THE TRANSMISSION, AND
MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU
RECEIVED THIS E- MAIL IN ERROR, ANY REVIEW, USE,
DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS
E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US
IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND
PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM.
THANK YOU IN ADVANCE FOR YOUR COOPERATION.
2
From: Jonathan O'Boyle
Sent: Monday, June 19, 2023 5:23 PM
To: Hudson Carter Gill <hgill@jambg.com>; Joanne Marie O <JOConnor@jonesfoster.com>
Cc: rbasel@gulf-stream.org; Danielle Tschuschke <dtschuschke@commerce-group.com>; Jonathan O'Boyle
<joboyle@oboylelawfirm.com>
Subject: Records Request Chapter 119
Importance: High
Dear Custodians for the Town of Gulf Stream,
Attached is Judge Hafele’s October 2, 2018 order that came about from a September 1, 2018 hearing. I wanted to ask if
the Town had a copy of that hearing transcript, or, a document reflecting the identify of the stenographer (also if you
know the company, that would be swell as well in lieu of providing the record showing who they were). This request is
time sensitive and could stave off an appeal.
Your assistance would be greatly appreciated.
Jonathan O’Boyle, Esq., LLM.
Licensed in Florida*
Licensed In New Jersey*
Licensed In Pennsylvania*
Licensed in West Virginia*
The O’Boyle Law Firm, P.C.
www.oboylelawfirm.com
Florida Office
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Office: 754-212-4201
Direct: 954-570-3533
joboyle@oboylelawfirm.com
Pennsylvania Office
1001 Broad St.
Johnstown, PA 15906
New Jersey Office
525 Route 73 North, Suite 104
Marlton, NJ 08053
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
communication, unless expressly stated otherwise, was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any tax-related matter(s)
addressed herein.
===========================================================
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY
THE INTENDED RECIPIENT OF THE TRANSMISSION, AND
MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU
3
RECEIVED THIS E- MAIL IN ERROR, ANY REVIEW, USE,
DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS
E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US
IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND
PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM.
THANK YOU IN ADVANCE FOR YOUR COOPERATION.
4
· · · IN THE FIFTEENTH JUDICIAL CIRCUIT COURT
· · · ·IN AND FOR PALM BEACH COUNTY, FLORIDA
· · · · · CASE NO. 502014CA00474XXXXMB AG
MARTIN W. O'BOYLE,
· · · ·Plaintiff,
vs.
TOWN OF GULF STREAM,
· · · ·Defendant.
_______________________________/
· · · · · · · · · · · ·- - -
· · · · · · PROCEEDINGS HAD BEFORE THE
· · · · · · · HONORABLE DONALD HAFELE
· · · · · · · · · · · · - - -
DATE:· SEPTEMBER 7, 2018
TIME:· 1:30 - 3:15 P.M.
Page 2
APPEARING ON BEHALF OF PLAINTIFF:
· · ·Elaine Johnson James, Esq.
· · ·ELAINE JOHNSON JAMES, P.A.
· · ·P.O. Box 31512
· · ·Palm Beach Gardens, Florida· 33420
APPEARING ON BEHALF OF DEFENDANT:
· · ·Joanne M. O'Connor, Esq.
· · ·JONES, FOSTER, JOHNSTON & STUBBS, P.A.
· · ·505 South Flagler Drive, Suite 1100
· · ·West Palm Beach, Florida· 33401
· · · · · · · · · · · ·- - -
· · ·BE IT REMEMBERED, that the following
proceedings were had in the above-entitled cause
before the Honorable Donald Hafele, in Room 10D, in
the Palm Beach County Courthouse, City of West Palm
Beach, State of Florida, on Friday, the 7th day of
September, 2018,· to wit:
· · · · · · · · · · · ·- - -
· · · · · THE COURT:· Good afternoon.· We have the
· · ·Defendant Town of Gulf Stream's motion for
· · ·partial summer judgment on counterclaim and
· · ·unsuccessful interlocutory appeal fees, end
· · ·quote.· Our court reporter has indicated she
· · ·has your appearances for the record and so
· · ·we're ready to proceed.
Page 3
· · ·Ms. O'Connor, are you ready to go?
· · ·MS. O'CONNOR:· Yes, Your Honor.
· · ·THE COURT:· A couple of things before you
start.· The only thing I had as of last night
and, as you all know, I think that you know
that I do read the materials before I come out.
Did you send your response to my office?
· · ·MS. JAMES:· I didn't because Ms. O'Connor
did, Your Honor.· It was Item --
· · ·MS. O'CONNOR:· Her response is Tab 3.
· · ·MS. JAMES:· Tab 3 in her notebook.
· · ·THE COURT:· This is interesting.
· · ·MS. JAMES:· Why?
· · ·THE COURT:· Take a look at my notebook.
It has not been amended by the Court, meaning I
have not taken anything out nor have I put
anything in.· But, Ms. James, there is no --
· · ·MS. O'CONNOR:· My fault then, Your Honor.
I apologize for that.· This is it.
· · ·MS. JAMES:· It's right here.
· · ·THE COURT:· All right.
· · ·MS. JAMES:· So since you haven't had a
chance to read it, I just want to say on the
record --
· · ·THE COURT:· So it was hidden underneath
Page 4
one of the other tabs.· Okay.
· · ·MS. JAMES:· Yes.· I have made concessions.
· · ·THE COURT:· Let me see if I've looked at
it because I only scanned it when my JA brought
it to me this afternoon.· Let me see if I did
look at it.
· · ·I don't think I did.
· · ·MS. JAMES:· Okay.· So I wanted just to
announce to the Court as is made clear in Mr.
O'Boyle's response to the motion for partial
summary judgment filed by the Town that Mr. --
I'm representing Mr. --
· · ·THE COURT:· You know what?· Now that I --
I see the last portion where you say
Mr. O'Boyle acknowledges that the Gieseke,
G-i-e-s-e-k-e, case precludes it from fees on
interlocutory appeal.· I guess I didn't see it.
I had a lot to read from this morning's
hearings so forgive me for not remembering but
now that I see it, perhaps I just didn't put it
into context at the time but I did see it.
· · ·MS. JAMES:· I also advised Ms. O'Connor
this morning and would advise the Court that
having read the Padgett case, P-a-d-g-e-t-t, on
behalf of Mr. O'Boyle, I would recommend to the
Page 5
Court, and I told Ms. O'Connor that we will not
be seeking fees for defending the counterclaim
after March 31, 2016, which is the date at
which it was severed because Mr. O'Boyle's
answer which I believe was dated March 13, 2015
to the counterclaim did not plead for
attorney's fees.
· · ·THE COURT:· Okay.
· · ·MS. JAMES:· So in those two regards, we
would acknowledge the Court -- I'm sorry -- the
Town's entitlement to partial summary judgment,
leaving before the Court really the issue of
fees for the counterclaim between February 23,
2015 and March 23, 2016, excepting the
appellate attorney's fees for a successful
appeal which we get for both appeals.
· · ·THE COURT:· All right.· A couple of things
that I need to ask you about -- and if you want
to come up to the podium since there are
preliminary matters that I just need to clarify
with both counsel and I don't want you to have
to keep getting up and down unnecessarily.
First of all, how did I get this case?· The
time line was done.· I appreciate those time
lines.· They're always helpful when I'm dealing
Page 6
with something that's four years old, but I see
Judge Oftedal's name involved, Judge Blanc's
name involved, and then it's a 2014 case and
you may or may not remember but I came over to
this division in 2014 after spending two years
in juvenile so I had no connection with these
things that were going on involving Mr. O'Boyle
and Mr. O'Hare until I got back.
· · ·So why doesn't the defendant, they're the
movant, give me your understanding of my
involvement, plus you've been involved since
the beginning.
· · ·MS. JAMES:· Not the beginning but since --
I've been involved since early 2015.
· · ·THE COURT:· Okay.· Thank you.· Just for
the record, we're saying this with smiles on
our faces so it doesn't look like we're
arguing.
· · ·MS. JAMES:· No.
· · ·THE COURT:· Off the record.
· · ·(Discussion off the record.)
· · ·THE COURT:· Getting back on the record,
why don't you go ahead, Ms. O'Connor, just
bring me up to speed as to where my personal
involvement became evident.
Page 7
· · ·MS. O'CONNOR:· Your Honor, I believe this
case was first filed in this division.· I'm not
sure who the judge was at the time.
· · ·THE COURT:· Perhaps Judge Crow since --
well, it's 2014.· I would have been here from
almost the inception of 2014, if I recall
correctly, and the case number would have been
pretty early in 2014 but not before I would
have been here because our move is usually at
that time -- now Judge Marks has decided to do
things a little bit differently -- but then our
moves were typically, unless there was
something that happened unforeseen, but the
foreseen rotation which was mine after a
two-year stint in juvenile would have been
around the Martin Luther King holiday which is
typically around mid to late January.· So the
case number here, 4474 with the AG which is
this division would tell me -- because we were
still dealing with a lot of foreclosure cases
at that time -- would probably tell me that
this case was filed somewhere in the end of
February, early March perhaps.
· · ·MS. JAMES:· It was filed in April of 2014.
· · ·THE COURT:· My point is I would have been
Page 8
here.
· · ·MS. JAMES:· I don't think it was AG when
it was filed.· Wasn't Judge Blanc the original
judge?
· · ·MS. O'CONNOR:· There was a period of time,
Your Honor --
· · ·THE COURT:· You know what?· I can just
check.
· · ·MS. O'CONNOR:· Yeah.· There was a period
of time in the fall of 2014 which would have
been a couple of months after this was filed
where there were approximately 40 public
records lawsuits against the Town of Gulf
Stream.
· · ·THE COURT:· That's why I said when I got
here, I already knew there was a significant
amount of these cases that had been already
filed and discussed.
· · ·MS. O'CONNOR:· We did endeavor -- the Town
did endeavor to transfer as related cases at
one point in time cases to Judge Blanc or --
well, to Judge Blanc on certain O'Hare cases
and then Judge Oftedal on certain of these
cases, so I think that's how it came to Judge
Oftedal and then he decided he did not want to
Page 9
be the public records judge.
· · ·MS. JAMES:· And I also think Judge Oftedal
had a medical issue during that period of time,
so it wasn't just that he didn't want to be the
public records judge for Mr. O'Boyle's cases.
I recall him having gone on an extended medical
leave after granting the order on Mr. O'Boyle's
motion for summary judgment.
· · ·THE COURT:· I'm not taking issue.· That I
don't remember.· Judge Blanc is healthy as a
horse.
· · ·MS. O'CONNOR:· No, Judge Oftedal.
· · ·MS. JAMES:· Judge Blanc left to go to the
foreclosure division and Judge Oftedal got the
case and in late 2015, Judge Oftedal had a
medical issue and he took an extended leave
between November of 2015 and January of 2016.
· · ·THE COURT:· Oh, yeah.· Right.· He had hip
surgery.
· · ·MS. JAMES:· I didn't know what it was.
· · ·THE COURT:· That's okay.· It's not
anything private.· He shared it with many
people so I'm not letting any cat out of the
bag.· It did only now jar my recollection.· But
he did very well after that.
Page 10
· · ·So what I'm looking at now is, I think Ms.
O'Connor was right or both of you mentioned
this, I just remember her saying it while I was
reading, I entered an order back in July of '14
after the case was in fact originally assigned
to this division to transfer the case to
Division AA.· So that would have been probably
Judge Blanc.· Yes, because what it says is a
copy to Judge Blanc and it was when Mr. Taylor
was involved and Ms. O'Connor was also counsel
of record at that particular time.
· · ·So just going back for a moment, I seem to
vaguely remember that there was that time when
Judge Blanc made a decision to redistribute the
cases.
· · ·MS. JAMES:· I think it was Judge Oftedal
who redistributed the cases because by the time
the cases were redistributed, Judge Oftedal --
· · ·THE COURT:· Well, remember both of them
served in the foreclosure division.
· · ·MS. JAMES:· Right.· But Judge Blanc was
off this case by mid 2015 at the very latest
and Judge Oftedal was the judge at that point.
I'm certain of that because by the time I filed
the motion for summary judgment on the
Page 11
counterclaim which was in the summertime, I
believe, it was Judge Oftedal in 2015.
· · ·THE COURT:· Okay.· Now, I think what
happened in the meantime was that Judge
Blanc -- I can't keep track but I think Judge
Blanc may have moved to foreclosure and then
Judge Oftedal took over Division AA.
· · ·MS. JAMES:· Yes, sir.
· · ·THE COURT:· Because as of -- well, I don't
want to give dates because I'm not sure exactly
when the matter came up, as I'm going through
the docket on the ICMS docket system that we
have, Judge Blanc's orders were last entered
back in July of 2015 and then the next orders
that were entered were by Judge Oftedal, which
is now October of 2015 where Judge Oftedal
granted a motion to dismiss -- who was the
judge that dealt with these affirmative
defenses?
· · ·MS. JAMES:· Judge Oftedal.
· · ·THE COURT:· Okay.· There it is.· So in
November of 2015, there's plaintiff's motion
for summary judgment, it says of Gulf Stream on
counterclaim is granted.· Motion for summary
judgment as to first and second defenses is
Page 12
granted and motion for summary judgment as to
the third affirmative defense is denied.· Did
that -- was that what spurred an appeal?
· · ·MS. JAMES:· Eventually, but that wasn't
the interlocutory appeal.· That was appealed
after you entered final judgment on the
counterclaim in early September of 2016.
· · ·MS. O'CONNOR:· Many months passed between
that time that summary judgment was entered on
the counterclaim and then we still had to go
ahead and try the public records claims.
Nothing about the counterclaim disposed of
those claims.
· · ·THE COURT:· Okay.· There was a renewed
motion to sever counterclaim from verified
complaint and that was granted by agreed order
March 31, 2016.
· · ·MS. JAMES:· Right, after the order
granting summary judgment on the counterclaim
had been entered.
· · ·THE COURT:· I did that?
· · ·MS. JAMES:· Yes, sir.
· · ·THE COURT:· Because I remember relatively
vividly the main action where I found in favor
of plaintiff on the public records issue.
Page 13
· · ·MS. JAMES:· Right.· That was a nonjury
trial in September of 2016.
· · ·THE COURT:· Right.· I have very little
recollection and I frankly have no recollection
at all which is why I started this by asking
when I got this case as to this issue about the
counterclaim.
· · ·MS. JAMES:· You entered the final -- you
had the nonjury trial on the Public Records Act
complaint on September 6th of 2016 and then on
September 7th, 2016, at uniform motion calendar
you entered the final judgment on the
counterclaim and by then, the cases had been
severed and so you had the nonjury trial in
Case Number 2014-4474 and you entered the final
judgment on the counterclaim in Case Number
2016-CA-5437.
· · ·THE COURT:· Thank you.· So then what was
appealed?
· · ·MS. JAMES:· Both judgments were appealed
but that's not the interlocutory appeal.· The
interlocutory appeal was months before.
· · ·THE COURT:· What was the outcome?
· · ·MS. O'CONNOR:· It was affirmed for
Mr. O'Boyle on both issues.
Page 14
· · ·MS. JAMES:· The appeals were consolidated.
There was two separate appeals.· They were
consolidated under the earlier of the two
Fourth D.C.A. numbers.· They were briefed
together.· We had oral argument on October 31st
of 2017 and then we got a PCA on November 2nd,
2017, three days later on both.
· · ·THE COURT:· So the Town appealed the main
action, I'll call it, and the granting of
summary judgment was in favor of --
· · ·MS. JAMES:· Mr. O'Boyle.· They appealed
both.
· · ·MS. O'CONNOR:· There's two separate
actions that were appealed.
· · ·THE COURT:· Like I said, I remember
vividly the main action.· I just don't remember
doing what I did on this other aspect of the
case.
· · ·MS. JAMES:· You only did it at uniform
motion calendar.· It only took you 15 minutes.
· · ·THE COURT:· Was it primarily based on the
fact that Judge Oftedal had already ruled?
· · ·MS. JAMES:· Yes.
· · ·MS. O'CONNOR:· No, Your Honor, we
disagree.· They had repeatedly moved to sever
Page 15
throughout.
· · ·THE COURT:· Okay.· I'm not taking issue
with that.· I'm saying why did it take such a
short amount of time?· Was it primarily based
on the fact Judge Oftedal had already ruled on
those issues?
· · ·MS. O'CONNOR:· For you to enter the final
judgment, yes.
· · ·THE COURT:· Okay.· That's probably why I
have no real recollection of the substance of
the matters because if we did it on uniform
motion calendar, that kind of speaks for
itself.
· · ·MS. JAMES:· And the Town didn't file an
opposition to the entry of final judgment on
the counterclaim after the order was entered.
So there would be no reason for you to
remember.
· · ·THE COURT:· All right.· And did the
counterclaim mirror the federal action that was
brought?
· · ·MS. O'CONNOR:· That's what they claim,
yeah.
· · ·THE COURT:· But you disagree with it.
· · ·MS. O'CONNOR:· I mean, for purposes here
Page 16
today, yes.· That's been their position all
along, is that the counterclaim mirrored the
federal action, not the public records claim.
That's our position why they're not the same.
· · ·THE COURT:· All right.· That, at least to
a degree and it's not your fault, brings me up
to speed.· As I said, I tried to piece this
together as best I can, but admittedly because
of the amount of discussion on this
counterclaim and my lack of recollection, it
left me a little bit in the dark regarding the
background.
· · ·So why don't we go ahead then with
motions.· You're welcome to take a seat,
Ms. James, at this point and I'll be glad to
hear from you when we conclude with Ms.
O'Connor.
· · ·We put aside how much time for this?
· · ·MS. O'CONNOR:· Two hours.
· · ·THE COURT:· Okay.· So why don't you go
ahead.
· · ·MS. O'CONNOR:· Thank you, Judge.· May I
approach?· I have a smaller notebook with a
subset which will just hopefully walk you
through which I have provided to opposing
Page 17
counsel as well.
· · ·Your Honor, what Mr. O'Boyle asks for in
this case is unprecedented.· I've never seen it
asked for before.· Essentially he's asking you
in this action which is Case Number 4474 to
award him fees in association with an entirely
separate action that was severed more than two
years ago and I'm going to refer to that as
Case 5437.
· · ·THE COURT:· So that was actually given a
separate case number?
· · ·MS. O'CONNOR:· Correct.· It was severed
for all purposes.· And it's no different than
if she would come in here and ask you to award
her fees in a case that had been severed and
transferred down the hall to Judge Small or
Judge Sasser.· It's essentially asking you to
be some sort of shadow judiciary.· That case,
when it was severed, became Case 5437 and I
think it's really important.· I mean, they're
related so you happened to keep both cases, but
you're here today in your capacity of a judge
in Case 4474.
· · ·So we submit there's three reasons very
simply why they're not entitled to counterclaim
Page 18
fees.· Number one, you don't have jurisdiction
to award any fees on Case 5437 in this case
which is Case 4474.
· · ·Number two, Mr. O'Boyle is judicially
estopped.· This is a classic case of judicial
estoppel.· He repeatedly throughout this action
argued that the counterclaim was, quote, not
related, not intertwined and it was separate
and distinct.· Instead, as you noted, he argued
that what the counterclaim did relate to was a
Federal RICO action.· He was moving to sever it
because he wasn't concerned about inconsistent
results vis-a-vis the public records claim.· He
was concerned about inconsistent results
vis-a-vis the Federal RICO action.
· · ·THE COURT:· The Federal RICO action and
the counterclaim were seeking to essentially do
what?· Refresh my recollection, please.· I know
you mentioned it in your respective papers.
· · ·MS. O'CONNOR:· So the counterclaim was
seeking declaratory and injunctive relief to
address a pattern of conduct by Mr. O'Boyle,
Mr. O'Hare, various corporate entities
associated with Mr. O'Boyle, and it was this
pattern of conduct that had been going on for
Page 19
years in trying to get the Court to give
prospective future relief.
· · ·THE COURT:· So it included Mr. O'Boyle,
Mr. O'Hare and several entities that you
alluded to that were affiliated in some fashion
with Mr. O'Boyle, financed by Mr. O'Boyle,
whatever the case may have been, that were
associated in some part with him?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· Okay.
· · ·MS. O'CONNOR:· The federal action has
similar allegations but it asserted a federal
racketeering charge against the same,
essentially the same counterclaim defendants.
· · ·THE COURT:· Okay.· And I guess the point
you're making is an upshot of all this is that
in 4474 which is what we're here today on,
O'Boyle vs. Town of Gulf Stream, which dealt
with the issue pertaining to the radio
transmissions from the police, the Town of Gulf
Stream Police that the finding was in essence
that the records were not completely provided
in a timely fashion or finding to that effect
and hence I found in favor of Mr. O'Boyle, but
that finding was on that specific discrete
Page 20
issue and not the umbrella counterclaim and
federal action that were brought for the
various and sundry reasons that you've pointed
out that did not deal with this particular case
but in essence was a separate case.
· · ·Now, that begs the question -- and it
brings back some rather -- I don't know how to
put it -- not unpleasant memories of another
case that I have and that was a counterclaim
that was brought and it really wasn't a
counterclaim and it was a malicious prosecution
claim that while it stemmed from the action
that was brought, it was titled counterclaim
but it wasn't really a counterclaim.
· · ·MS. O'CONNOR:· This is the same.· We could
have filed this as an entirely separate action.
The declaratory -- I'm going to refer to it as
the declaratory judgment action.
· · ·THE COURT:· It somewhat begs the question
why didn't you?· But we'll visit that perhaps
another time unless you want to let me know.
Hopefully it wasn't to save the filing fee.
· · ·MS. O'CONNOR:· No, of course not.
· · ·THE COURT:· I don't know.· I've had others
suggest to me that's why they filed three
Page 21
passengers in one car with no relationship and
they file it all in the same case and when I
tell them that that's not appropriate, I've
been told that they know that; however, they
wanted to try to save the filing fee, to which
I say, well, I spent two years in the juvenile
division and see where those fees go and I'm
very much protective of that because those fees
go to absolutely necessary causes that need the
support of the filing fees so that will not be
allowed and tell them they have to do it again.
Even though I'll try my best to keep one of the
cases under that same filing fee, they'll have
to file two.· That was part facetious and I
know we have serious matters to deal with so I
won't be facetious anymore.
· · ·Anyway, it was filed as a counterclaim,
perhaps should have been thought out a little
bit differently but it was done anyway in that
regard and what you're going to tell me, I
think, is that there were two attempts by
Mr. O'Boyle to sever the counterclaim from this
action, initially two attempts, correct?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· And am I right that
Page 22
Mr. O'Boyle was the movant?· It was not the
Town?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· All right.· Go ahead.
· · ·MS. O'CONNOR:· So again, just for
shadowing, three reasons why we should win and
the Court should find it cannot award any
counterclaim fees in this case.· Number one,
you don't have jurisdiction.· Number two, Mr.
O'Boyle is in a classic case of judicial
estoppel.· And number three, even if you could
go back, now we're post judgment, even if you
could go back and modify that severance order,
it's too late.· Their effort to try to have you
do that, you can't, but even if you could, it's
not inextricably intertwined and the fact that
you don't recall anything about the
counterclaim is evidence of that.· Nothing
about the counterclaim mattered when you tried
the public records case.
· · ·So I'd just like to walk you through it
and I'll try to be as quick and succinct as
possible.· The first page of my outline is the
first reason, that you have no jurisdiction to
award fees and over here in Case 5437 in the
Page 23
declaratory judgment action.· The counterclaim
was long ago severed.· More than two years ago
it was severed for all purposes.· The reason it
was severed was because it was never
inextricably intertwined.· Once it was severed,
it became an independent action with its own
case number and I'm going to refer to it again
as the declaratory judgment action.· This Court
entered final judgment.· Those are at Tabs 2
and 3 of my notebook.
· · ·THE COURT:· Was that part of the agreed
order that it would take on a new case number?
· · ·MS. O'CONNOR:· I don't believe so.
· · ·THE COURT:· Because I'm at a loss and I've
never seen that before where a severed portion
of the action takes on a new case number.
· · ·MS. O'CONNOR:· Well, wouldn't it have to?
I mean, generally when claims are severed,
wouldn't they get reassigned to another judge?
· · ·THE COURT:· No.
· · ·MS. O'CONNOR:· No?
· · ·THE COURT:· Because as you mentioned, our
local administrative order requires that all
related cases, and I think in fairness it would
be construed as a related case despite your
Page 24
legal position as to the distinction between
the discrete case that we're dealing with and
the umbrella case that I'll call the
counterclaim, so no, to my knowledge.· And
again, I've been doing this a long time but I
could be wrong.· They simply remain under the
same case number.· And again, I could well be
wrong.· I don't have that many severances to
deal with so I'm not sure about that, but in
any event, it did take on a new case number and
it was an agreed order to sever after two
motions were brought, I believe, both before
Judge Blanc, if I'm not mistaken, and he denied
the motions without prejudice.· Ultimately I
entered an agreed order to sever.
· · ·MS. O'CONNOR:· Right.· You then entered
final judgments.· You entered separate final
judgments in each case.· In the declaratory
judgment case that had been severed, you
entered a final judgment and you reserved
jurisdiction to determine entitlement to fees.
So over here in Case 5437 which is the
counterclaim case, no entitlement to fees has
ever been decided.· But in the case we're here
on today, the final judgment, you did find that
Page 25
they're entitled to reasonable costs of
enforcement under Chapter 119.
· · ·THE COURT:· Let me make a really poor
analogy which is not to be facetious but I
admit at the inception it may be a poor
analogy.· We have sometimes an automobile
accident case, for example, and negligence
case.· There's at least a concession by the
defense that says while we do not believe that
the surgery was related to the accident and any
aftercare was related to the accident nor is
any future care related to the accident, we're
ready to concede that the palliative care
immediately after the accident, a visit to the
emergency room where a patient was released
within hours of her admission with nothing done
other than some cautionary x-rays, some
chiropractic treatment that was done for three
or four months and a visit to an orthopedic
surgeon that was done four months after the
accident, a single visit would be compensable,
we're willing to concede that to the jury and
we're willing to allow them to recover for that
care.· But the fact that she then went to a
different orthopedic surgeon seven months later
Page 26
and that orthopedic worked her up for surgery
and it was a nonsurgical lesion and she had an
intervening fall and the rest of that we don't
think has anything to do with the initial
automobile accident.· The analogy I draw is are
you willing to concede at least some fees
associated with when the counterclaim was filed
in the very same action, the 4474 action, there
would have been a need at the very least within
that action to be able to review the
counterclaim, to determine the road to proceed
in terms of how to defend the counterclaim,
conferences with the respective -- well,
actually it would just be probably Mr. O'Boyle
since he's the only plaintiff here and the
counterclaim, as I understand, would not have
only been a counterclaim but would technically
have also been presumably a third party action,
correct?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· So it may have had the
misnomer of counterclaim as well because you
tell me it was brought against Mr. O'Hare and
other affiliated entities but the singular
plaintiff in the 4474 case is O'Boyle?
Page 27
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· That's the question.
· · ·MS. O'CONNOR:· No, I would not agree.· The
American rule on fees is that you only get fees
if there's a contractual or statutory basis for
fees.· Here, the only statutory basis and it's
not even a prevailing party fee basis, is
Chapter 119.· It's Mr. O'Boyle's public records
claim.· That is the only claim in this lawsuit
that exists in this lawsuit, the counterclaim
having been severed, but that's the only claim
that gave rise to fees.
· · ·So the Fourth D.C.A. in the Effective
Teleservices case which is from 2014 has
announced a test and they routinely apply to
counterclaims that are in the same action, so
before severance we were all in here together,
the claims and the counterclaim, and what the
Fourth D.C.A. said is you're only -- you have
to be inextricably intertwined.· That
declaratory judgment counterclaim would have
had to be inextricably intertwined with
Mr. O'Boyle's public records claim.
· · ·THE COURT:· Well, since you chose, you,
through counsel chose to bring the claim as a
Page 28
quote, counterclaim, end quote, even though I
think it was essentially conceded that it
probably was not a -- not necessarily the best
decision to do it that way and I'm not finding
fault but I think that's fair -- and it was
really not a counterclaim, that it was a hybrid
of counterclaim and third party complaint, but
in that vein, and I don't know whether there
was any argument regarding the filing of the
counterclaim and whether it was appropriately
filed in this action.· Was there?
· · ·MS. O'CONNOR:· Yeah.· They moved to strike
it and they moved to sever it because they said
it has nothing to do with the public records
claim.· It's not intertwined with it.
· · ·THE COURT:· Well, this is going to be an
interesting question and the reason why Judge
Blanc denied it was because -- was the Town
taking a different position --
· · ·MS. O'CONNOR:· We did.
· · ·THE COURT:· -- that it was related?
· · ·MS. O'CONNOR:· Correct.· But that's not
even the -- like you can have a compulsory
counterclaim --
· · ·THE COURT:· Let me go off the record.
Page 29
· · ·MS. O'CONNOR:· Sure.
· · ·(Discussion off the record.)
· · ·MS. O'CONNOR:· Back on the record.· So
again, my question was a rather loaded one but
I think you've already answered it and that is
that you were taking a position at that time
which seems to me to be a tad inconsistent with
the position you're taking now that the
counterclaim, and again I'm using the term
counterclaim like in quotes for the record, I'm
certainly not dating it as a counterclaim
because it appears to be not a counterclaim
but, in fact, a counterclaim/third party
action, but you're telling me then it was your
position that it wasn't intertwined or related.
· · ·MS. O'CONNOR:· Two things.· First --
· · ·THE COURT:· The American Rule says that I
should ignore what was done before?
· · ·MS. O'CONNOR:· Well, yeah.· Two things.
Number one, the doctrine of judicial estoppel
which we're arguing here only applies to folks
that have obtained relief successfully based on
their position which is what happened with
Mr. O'Boyle.
· · ·THE COURT:· So you're telling me in the
Page 30
words of Frank Baum, or whoever wrote the
actual screenplay of the Wizard of Oz, ignore
the man behind the curtain.
· · ·MS. O'CONNOR:· Well, I think there's two
things.· No.· Just because we argue that it
shouldn't be severed does not mean it's
inextricably intertwined.· Courts routinely,
including in the Padgett (phonetics) and the
Effective Teleservices case finds that even
claims that are compulsory counterclaims are
not inextricably intertwined for purposes of
fees.· so Effective Teleservices is a case
where a counterclaim going back was a
fraudulent inducement claim and the Court said
that's not inextricably intertwined with the
breach of contract claim that was filed against
you.· So the fact that we didn't want the case
to be severed because we thought that these
counterclaims were related, that's not
dispositive of the issue.· The Padgett case
that Ms. James cites, again, nothing in that
case was severed.· Those counterclaims were all
together in the same case.· It was a breach of
contract that the plaintiff filed and the claim
going back against it was a fraudulent
Page 31
inducement claim.· And the 4th District held in
2015 in Padgett claims for breach of contract
and fraud in the inducement are separate and
distinct for purposes of awarding fees citing
to Effective Teleservices.
· · ·The kinds of cases where Florida appellate
courts find that counterclaims are inextricably
intertwined for purposes of fees are cases like
the Anglia Jacks (phonetics) case which was
cited to Your Honor and that's where a tenant
sued a landlord for breach of lease saying,
hey, the conditions of the premises, you
breached your lease, you didn't maintain the
premises, and the landlord's counterclaim said
no, I didn't breach, you owe me rent.
· · ·So there's one pot of money.· That's what
we're dealing with.· There's going to be one
and there can only ever be one prevailing
party.· However the Court rules on the
affirmative claim is going to be dispositive of
how it rules on the counterclaim.· That's when
the claims are inextricably intertwined for
purposes of fees and that's not what happened
here.
· · ·THE COURT:· But it just sounds like you're
Page 32
asking me to do the same thing to them but
you're not asking me to do the same thing to
you and that's where the inconsistencies are
problematic for me, and that is this.· From a
logical common sense approach, a counterclaim,
again, despite my misgivings about its term,
I'll use it just to be clear on the record,
this counterclaim was brought by the Town
against O'Boyle and others.· We'll focus on
O'Boyle for a moment.· The Town not only brings
this counterclaim within the same action,
initially the 4474 action, but despite the
Plaintiff O'Boyle, a counter-defendant or
probably the only real counter-defendant from a
legal perspective, despite his taking the
position that the counterclaim should be
severed because it is not related to the main
action, the Town takes the opposite position
and says no, the counterclaim is related to the
main action even though it's not wholly a
counterclaim at all, and I'm frankly surprised
that no one else seized on that issue that it
wasn't actually in whole a counterclaim.· But
be that as it may, I didn't get a hold of this
until the agreed order was entered that severed
Page 33
the case.
· · ·Now, I don't think in these circumstances
when we're dealing with attorney's fees that
time expended by a lawyer in order to protect,
defend or otherwise prosecute a case on behalf
of their respective clients that -- if I did
say this already, I apologize -- that we don't
play the result.
· · ·MS. O'CONNOR:· I don't know what you mean.
· · ·THE COURT:· What I mean by that is what I
think you're saying is, Judge, the matter was
eventually severed, so that's really the proof,
the proof is in the pudding there that
essentially they came -- somebody came to their
senses to say that these were separate actions;
in fact, given separate case numbers and the
Court entered an agreed order.· Me.· What
happened in front of Judge Blanc, I don't know,
only I can see from the docket.· But it doesn't
change the fact that the defendant Town was
taking a position that they needed to deal with
and they needed to expend money on and time on,
you see?
· · ·MS. O'CONNOR:· But there's no fee
entitlement on that claim.
Page 34
· · ·THE COURT:· Well, but there's still the
intertwining of it up until the time it was
severed in my view.· It could have been made a
lot different and the intertwining wouldn't
have taken place if, one, the Town had probably
made the better decision and filed a separate
action at the inception instead of naming it
incorrectly wholly as a counterclaim.· As I
understand it, it was not named as a
counterclaim/third party complaint and how
anybody missed that, I'm still in a little bit
of shock, but that's okay.
· · ·So that could have been done at the
inception but that wasn't the position that was
taken by the Town.· The Town decided to prolong
the situation even though -- and I know it
sounds a bit inapposite and it's a difficult
proposition to probably wrap your hands around,
but now that I'm understanding the situation
better as we continue to explore, you file
the -- this counterclaim.· You take a position
different from the counter defendants and in
particular here, O'Boyle, who's all I'm worried
about right now, they take the position that it
really isn't related.· Successfully you defend
Page 35
that position by saying that it is.
· · ·MS. O'CONNOR:· Right, but that doesn't
mean -- the way you're looking at it and you're
recognizing that they're not related --
· · ·THE COURT:· You're saying there's a
difference between inextricably intertwined and
related?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· Let me change it then and say
that --
· · ·MS. O'CONNOR:· It's a counterclaim.· It
should stay here.· It should not be severed.
It arises out of similar facts.· That doesn't
mean it's inextricably intertwined for purposes
of fees.· If that were the rule, then any time
in any case that you had a counterclaim that
never got severed, you would be awarding fees
as inextricably intertwined.· We know that's
not right.
· · ·THE COURT:· Respectfully though I take a
different approach from a time expenditure
perspective, is what I'm looking at here.· From
an attorney time expenditure perspective that
I'm looking at here, at the time the
counterclaim was filed, as far as I'm
Page 36
concerned, it's a necessity, an absolute
necessity that within the 4474 case, counsel
needs to review that counterclaim and, again,
throughout I would prefer if I was writing the
transcript that counterclaim be put in quotes.
Again, forgive me for my persistence here but
it just again is a little bit confusing to me
why nothing was done in that regard before.
And maybe there was.· I don't know.
· · ·But getting back to the point, it's a
necessity.· Counsel has to review it.· It's a
counterclaim brought in the same case.· You
have to review it for a myriad of reasons.
One, is there a relationship to even have it in
the case.· Two, is it compulsory, is it
permissible.· Three, are there causes of action
that do in fact relate to the case in chief and
how do I go about as counsel or how do we go
about as multiple counsel dealing with this
counterclaim relating to 4474.· I think you
have to capture these moments in time and,
again, not play the result.
· · ·MS. O'CONNOR:· Okay.
· · ·THE COURT:· Meaning when you look at these
moments in time and you take snapshots of these
Page 37
different time periods when it comes to
attorney expenditure of time, that's where it
becomes important to consider as opposed to
what happened at the end when it was finally
severed.
· · ·Now, Ms. James, I think to her credit, is
saying I don't believe we are entitled to fees
after the severance of the case.· I think that
makes sense.· But, again, unless I can be
convinced otherwise, I have a real dilemma in
terms of not awarding fees for essentially what
is in essence the same argument that you're
making to deny Ms. James' fees and that is that
there is a judicial estoppel, that there is a
change of material position in terms of a
critical issue in the case.· The same thing
applies and that is the persistence and
insistence of the defendant at these captured
moments in time to leave the Court, then Judge
Blanc, with the impression that you guys are
right, that there must be some relationship
here between the counterclaim and the main
action that would not cause him to sever the
counterclaim from the main action.
· · ·You, meaning the Town, were the
Page 38
protagonist in insisting that in fact there was
that relationship.· Now, we can call it
whatever we want, relationship, inextricably
intertwined, but what I'm trying to suggest
based upon my review of these rather unique set
of facts is that as long as the Town persisted
that there was this relationship, the plaintiff
was in my view appropriately considering
dealing with working toward, and I'm talking
now more so about counsel, in trying to
extricate that awkward counterclaim, awkward
only from the sense that I don't think it was
appropriately termed, from her claim that was
brought on behalf of Mr. O'Boyle for this
discrete incident that happened at Gulf Stream
with the police department, but that work was
necessitated by the insistence on the Town that
there was this relationship and, again, we can
look at it down the road when it was ultimately
severed and a concession from somebody was made
but that concession apparently came from you
guys.
· · ·MS. O'CONNOR:· May I, Your Honor? A
couple of things.
· · ·THE COURT:· Of course.
Page 39
· · ·MS. O'CONNOR:· First, the Town lost and it
was severed.· But even if -- let's forget the
fact that --
· · ·THE COURT:· Well, the Town didn't lose.
You entered into an agreed order.
· · ·MS. O'CONNOR:· Sure.· The fact that any
time a counterclaim, whether permissive or
compulsory, is filed in any case, the plaintiff
has to do work.· That doesn't mean that it's
inextricably intertwined for purposes of fees.
How do we know?· The Fourth District Court of
Appeals in Effective Teleservices said you have
a fraudulent inducement counterclaim.· The
plaintiff sued for breach of contract.· There
was a prevailing party provision in the breach
of contract.· Plaintiff won.· Plaintiff gets
fees.· Does plaintiff also get fees for
defending the fraudulent inducement claim that
went the whole time?· No, they don't.
· · ·THE COURT:· I don't know if it's
rhetorical or if you're asking, but my response
was is that that's exactly the point I'm making
when I say that these are very unique facts.
And, again, what I'm trying to make clear is
within the 4474 case, but for the town's
Page 40
insistence in, one, bringing this counterclaim
in this case, it really shouldn't have been
there in the first place.· I think I got a
concession as to that.· And then, two,
insisting through two motions in front of Judge
Blanc that it should be, that but for that
insistence, that persistence that continued
work that was necessitated under 4474,
Ms. James was unable to extricate her client
from that counterclaim within 4474 until that
severance order was agreed to by the Town
several months, perhaps a year later.
· · ·MS. O'CONNOR:· That's not true.· She got
summary judgment before it was severed.
· · ·THE COURT:· Summary judgment on...?
· · ·MS. O'CONNOR:· The counterclaim.
· · ·THE COURT:· The counterclaim.
· · ·MS. O'CONNOR:· Yes.
· · ·THE COURT:· Then why did it need to be
severed?
· · ·MS. O'CONNOR:· She wanted it severed
because she didn't want inconsistent results.
She wanted -- my understanding is she wanted to
get a final judgment sooner rather than later
because their whole concern was that the
Page 41
counterclaim, the decision that Judge Oftedal
made in their favor on the counterclaim could
be res judicata of other -- the federal RICO
case with other cases, not with the public
records case.· And I go back to the fact that
what you're basically saying is any time I file
a counterclaim on behalf of a defendant that
causes the plaintiff to do work in defense,
they're going to get fees if they win on an
affirmative claim that has a right to fees and
that's --
· · ·THE COURT:· That's not the point I'm
making at all.· I'm saying that under this
unique set of facts which I have not come in
contact with before, that when an awkward
counterclaim is brought under a case that it
probably shouldn't have been brought in the
first place, there is, number one, an absolute
necessity to properly evaluate that
counterclaim, its legal sufficiency, its
procedural sufficiency, its relationship to the
main action as just three of a myriad of
reasons why that would be necessitated
initially.· Within that same case, that
evaluation has to be done or else a lawyer in
Page 42
my respectful view would be committing
malpractice.
· · ·Now, it has a reasonable relationship to
4474, the case that we're dealing with, because
you created that requirement that it be
properly evaluated within 4474.· The Town
created that requirement because it chose to
file by way of its own admission, either
perhaps shouldn't have been done that way or it
was not appropriately termed, but it was done
and that requires time expenditure.· That's the
first snapshot that I spoke about earlier.· So
that's the first snapshot.
· · ·Then when Ms. James tries to take a
position to sever that counterclaim because of
its lack of relationship, the Town takes the
opposite position and says no, it is related.
· · ·MS. O'CONNOR:· But that doesn't mean it's
inextricably intertwined.
· · ·THE COURT:· Well, that's where we may
disagree because the term inextricably
intertwined is tough to necessarily define and
I think the appellate courts have had some
difficulty in defining what exactly that means,
but if I look at it as a 35-year practitioner,
Page 43
nearly 17 years as a trial lawyer and the
balance for the most part being here in the
civil circuit division, I look at it as what is
necessary under 4474 to properly defend my
client's interests in that particular case and
up to when did that time period end.· Because
she had a duty to respond to 4474 based upon
the town's insistence that this was in fact a
related matter to the main action and, again,
the work that's done in my view is inextricably
intertwined because of the Town's insistence
that it was and that she had the duty and
obligation to, despite the Town's persistence
that ended up being at least conceded by the
Town not to be the case by way of an agreed
order, that was done whenever it was done but
later, after the expenditure of time was
necessary in order to try to extricate this
counterclaim from the main action, but it was
the Town's continued pushing of this position
that caused that work to have to be done in
4474.
· · ·Once the matter was severed, then I
believe Ms. James is eminently correct she's no
longer entitled to fees and essentially that
Page 44
was the conclusion I had even before we had
this discussion, but it still was -- from my
review, I was thinking to myself, well, wait a
minute, the Town obviously is taking a position
against the severance that was moved for by
O'Boyle twice in front of Judge Blanc, then
ultimately entered into an agreed order the
third time with the Town's concession to sever,
but that doesn't eradicate, that doesn't change
the fact that within 4474 she needed to expend
that time in order to do what she did.
· · ·It could have been all taken care of.
There wouldn't be any need to expend that time
in this critical aspect of the case had the
Town, one, done what I would have thought to be
the appropriate method and that is to either
continue to prosecute the federal claim which
is essentially the same thing and not bring a
separate counterclaim in the state court but it
chose to do so, or, two, if they chose to bring
a state action, bring it separately as an
appropriate separate case because it not only
named O'Boyle but it named O'Hare and all these
affiliated companies according to what you told
me.
Page 45
· · ·MS. O'CONNOR:· So if it had been severed
early, they still would have had to do all the
same work and they wouldn't ever have been
compensable because there is no fee entitlement
on a counterclaim.
· · ·THE COURT:· That's where we disagree,
because what I'm saying is it is an attorney's
absolute obligation that upon receipt of that
counterclaim under 4474 to review that
counterclaim, to make sure that it meets and
passes legal muster, procedural muster, proceed
to then at least at the very inception, devise
a strategy in conjunction with counsel's client
or respective clients involved and then if at
that time she calls you up and says, Ms.
O'Connor, this is a separate and entirely
different matter, this should be filed as a
separate action, it has no place here or at the
very least, it should be severed.
· · ·You know what?· If that's the case and you
say, Ms. James, you're right, what I'm going to
do is file a voluntary dismissal of the
counterclaim or I'm going to ask the Court to
construe it as a counterclaim/third party
complaint and immediately ask for severance,
Page 46
the time would have stopped then.· But again,
keep in mind, it was the insistence on the Town
to file it in the first place which thus
necessitated the work and perhaps more work
than I have already enunciated because things
have changed now.· There's computer stuff and
all kind of things that you've got to do.· But
that's when the triggering mechanism started
for work to be done inextricably intertwined in
my view with 4474, once you chose or the Town
chose through counsel to file that awkward
counterclaim and it's not on every occasion. I
don't want to be misquoted or misconstrued that
I'm suggesting that every time a counterclaim
is filed that it immediately triggers an
attorney's fee claim because there's some
inextricable intertwinement.
· · ·Again, in an initial snapshot that I have
spoken about where there's a choice to be made
in a situation like this where it's clearly at
best permissive and at worse not really called
for at all because it has no relationship, and
I agree with that, that should have been the
Town's position from the inception but that was
not the decision the Town made.· The Town made
Page 47
a different decision.· The Town decided to
become involved in this case in a significant
and heavy-handed fashion and decided to bust
out the heavy ammunition and bring in a very,
very serious counterclaim with some very
serious allegations which included
quasi-criminal conduct as I understand it,
right, RICO violations?
· · ·MS. O'CONNOR:· There's no RICO violations
in this lawsuit.· This is a lawsuit for
declaratory and injunctive relief.
· · ·THE COURT:· What else?
· · ·MS. O'CONNOR:· That's all.· All we asked
for --
· · ·THE COURT:· Was that when you were
comparing the federal claim?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· The federal claim involves a
RICO claim.
· · ·MS. O'CONNOR:· All we asked for in this
case was guidance from the Court and a
declaration how this tiny Town of Gulf Stream
should deal with this barrage of public records
requests made over a number of years.
· · ·And just to conclude because I see where
Page 48
you may be going, but with one last ditch
effort, you have said repeatedly, Your Honor,
that at best this counterclaim was permissive,
that it was awkward, it probably should not
have even been brought in this case in the
first place, so with all due respect, to the
extent you're going to let her have fees in
defending this counterclaim, it's not because
as a matter of law it's inextricably
intertwined because what you said multiple
times on the record is it's not, it should have
never been in this case, it's not even a
permissive counterclaim and it strikes me as
punitive.
· · ·THE COURT:· But the Town didn't relent
until their third effort to do it.
· · ·MS. O'CONNOR:· It doesn't matter.
· · ·THE COURT:· Then the Town relented to an
agreed order.· I think it does matter and so,
again, so I'm not misquoted or misconstrued,
what I'm saying is, and understand where I'm
going with this, the substantive defense of the
counterclaim I'm really not talking about.
What I'm talking about essentially is the
procedural defense of the counterclaim.· And
Page 49
the fact that the Town chose to bring this
awkward counterclaim, third party complaint in
this case necessitated an evaluation of the
matter and had the Town come to its senses
after the first motion was filed, then that
would have stopped the fees.· If the Town would
have come to its senses after the second motion
was filed, then that would have stopped the
fees.· But the Town didn't come to its senses,
so to speak, and I don't mean this
pejoratively, I'm just trying to make a point,
until a third effort was made and finally an
agreed order was sent conceding to the
severance on the part of the Town.· That
procedural defense was inextricably intertwined
with 4474.· She had to -- and Ms. James, I
apologize for not referring to you by name --
Ms. James had to do what she needed to do to
make sure that the Town did not proceed in a
way that was procedurally inappropriate by
essentially concession and she needed to expend
that time in order to finally get the Town
agree to sever the case.
· · ·Now, I can't say what Judge Blanc's
thinking was back when he entered those two
Page 50
orders denying without prejudice the
plaintiff's/counter defendant's motion to
sever.· I can say without equivocation based
upon your concession today that the Town took a
position contrary to the severance during those
periods of time.
· · ·There's no getting away from the fact that
the procedural aspects of this case needed to
be defended, meaning that there was in fact an
absolute necessity that the Court not consider
this umbrella case of declaratory judgment
about this barrage of cases that were brought
by O'Boyle, O'Hare, these affiliated entities
of O'Boyle in that same case and clearly the
Town realized that after three efforts were
made by the plaintiff to get the matter
severed.· She should not go uncompensated by
that and the fact that the Town persisted in
its position procedurally under 4474 to try to
get these cases tried together, if you will, or
at least kept together until there was a
concession made is the point that the Court is
trying to make today, that it's different from
a substantive defense of the counterclaim.
That's not what I'm awarding and if I can
Page 51
extract substantive defense fees from the
procedural defense fees, I'll be glad to do
that.
· · ·MS. O'CONNOR:· ·What do you mean by -- you
mean our -- just the briefing on the motion to
sever?· I mean, you're essentially saying it's
kind of like a 57.105 that you're awarding
fees?· Again, it feels very punitive.
· · ·THE COURT:· What I'm saying is -- in many
cases there's going to be an attack
procedurally, there's going to be an attack
substantively.· We see that in many cases.
Procedural, for example, a motion to quash
service the process.· There are issues with
the -- that's probably the best example I can
think of that's most common, is a motion to
quash service of process.· So we're dealing
with a procedural issue.· We haven't gotten to
the substance of whether or not there's a cause
of action that's been stated.· We haven't
gotten to whether or not an unjust enrichment
claim can be brought in the same claim as a
contract claim.· We haven't got to the
substance.· My point is the procedural aspects
had to be defended in 4474 for a myriad of
Page 52
reasons.
· · ·For example, she -- you know, I think the
defendant would better appreciate this than
perhaps the plaintiff in a case like this, but
at the same time, from either sides'
standpoint, there's a cost and fee involved
here, huge.· I mean, the expenditure of fees
for this simple O'Boyle vs. Town of Gulf Stream
case would be far less than this explosion or
the barrage, your word, where these cases were
challenged collectively that Mr. O'Boyle and
Mr. O'Hare and these affiliated companies were
barraging the Town with records requests which
were of little substance and were more to
harass and otherwise create havoc.· That's
different than this singular case brought by
O'Boyle regarding the police communications and
the information that wasn't timely provided to
him.· It really is.· But it doesn't change the
fact that time would have to be expended on the
part of Mr. O'Boyle's counsel to extricate this
barrage counterclaim/thirty party complaint
from the simple O'Boyle vs. Town of Gulf Stream
police communication issue and that she owed
every obligation, Ms. James, to defend that
Page 53
aspect of the case procedurally in order to
extricate the tiny O'Boyle vs. Gulf Stream from
the barrage umbrella case that was brought by
way of counterclaim awkwardly.
· · ·So let me hear from Ms. James and see
where she is on being able to -- and again,
we're not here on a fee hearing so we are
melding things a little bit and I was trying my
best not to, but let's hear what you have to
say on what I have now concluded in my view
based on what I've heard and seen whether or
not you agree that you can -- and I don't know
how much substantive work you did on the
counterclaim up to the time of the severance,
but I think that there can be a reasonable
argument to be made that the time that you'd be
entitled to up to severance as it relates to
this counterclaim would be on the procedural
issues of severance.· Your thoughts?
· · ·MS. JAMES:· My thought, Your Honor, is
that Ms. O'Connor neglected to mention to the
Court that in addition to the counterclaim that
the Town brought in February of 2015, they
asserted affirmative defenses to the Public
Records Act complaint.· Those affirmative
Page 54
defenses were unclean hands, equitable
estoppel, unlicensed practice of law and
compliance with the Florida Sunshine Act.· The
affirmative defense of unlicensed practice of
law ultimately was dropped, but from the time
the Town amended its answer to deny that it had
violated the act for the first time, they
hadn't denied it before, but from the time that
it amended its answer, asserted those
affirmative defenses and asserted the
counterclaim in February of 2015, I not only
had to procedurally defend the counterclaim, I
had to substantively defend it because, Your
Honor, it was based upon the exact same facts
as the affirmative defenses.
· · ·So in order to get Mr. O'Boyle to be able
to prevail on his complaint under the Public
Records Act, I had to defeat those affirmative
defenses and those affirmative defenses were
inextricably intertwined with the counterclaim
and I want to -- and I'm not making that up. I
mean, you know me better than that.· So two
things I want the Court to know.· One is
January 13, 2015 in the Town's motion for leave
to file an amended answer, to file affirmative
Page 55
defenses and to file a counterclaim, it said
that the counterclaim is compulsory in nature
and discovery recently obtained disclosed the
justification for a counterclaim and at the
hearing, it convinced Judge Blanc that the
counterclaim was intertwined with the complaint
because Judge Blanc said in his order of
February 23, 2015, quote, The proposed
affirmative defenses and counterclaim raised by
defendant alleged not simply malicious motives
and public harm, but a pattern of fraudulent
conduct intending to make it impossible to
comply with Florida Statute 119 through timely
production, thereby mandating plaintiff's
entitlement to fees.· The affirmative defenses
and counterclaim addressed not solely the
defendant's intent but the reasonableness of
the process by which the plaintiff makes his
public records request.· In this instance, all
records have been produced and affirmative
defenses have been raised regarding the process
by which the plaintiff makes his public records
request.· The Court will be unable to resolve
the remaining issues pursuant to the statute
until the parties have completed their
Page 56
discovery on the claims and affirmative
defenses.· The counterclaim in many respects
addresses the same factual issues as the
affirmative defenses.
· · ·THE COURT:· You're reading from --
· · ·MS. JAMES:· I'm reading from Judge Blanc's
February 23, 2015 order.· So from that day
until the day I got summary judgment on the
counterclaim which was November 4 of 2015, I
had to substantively and procedurally defend
that counterclaim in order for my client to
have any chance of prevailing under the act
because their third affirmative defense in
compliance with the Florida Sunshine said that
the conduct we complained about in the
counterclaim was so egregious and created such
an undue burden that our -- the Town's response
to the public records request of Mr. O'Boyle
was reasonable under the circumstances and the
Court -- one more thing -- and the Court had
to, in your final judgment on the complaint
after the nonjury hearing in September 2016,
you had to make a finding that no conduct of
Mr. O'Boyle caused the Town to violate the act.
So they caused this mishegoss.
Page 57
· · ·I don't know how to spell that, I'm sorry,
madam.· This mess.
· · ·THE COURT:· You're saying they caused this
confrontation.
· · ·MS. JAMES:· There you go.· They caused
this confrontation and it was all intertwined.
Now, to the extent -- and, you know, I'm an
officer of the Court.· To the extent that I can
go through my time records, I can isolate
something that had -- that I know was not
related, was not intertwined with either the
affirmative defense or the prosecution of the
complaint or my ability to position Mr. O'Boyle
to win his complaint, I'm going to strike it
out voluntarily.· I mean, I'm not going to put
the Court or the Town through, you know, having
to go through item by item and question whether
a time entry legitimately was inextricably
intertwined with Mr. O'Boyles' complaint, but
under the Effective Teleservices case that Ms.
O'Connor quoted to you several times, there's
more in that case that the Court should hear.
The Fourth D.C.A. attempted to define
inextricably intertwined on Page 339 which it's
in your binder, sir, in Section 18.
Page 58
· · ·THE COURT:· Thank you.
· · ·MS. JAMES:· And on the fourth page of that
opinion, the Town has highlighted in blue the
section that Ms. O'Connor read about cases
coming out of the common core of operative
facts and facts being inextricably intertwined.
On the next page which is Page 5 of the
opinion, but Page 339 of -- it's 132 So.3d at
339, the Court says:· That claims are
inextricably intertwined when a determination
of issues in one action would necessarily be
dispositive of the issues raised in the other
and, conversely, claims are separate and
distinct when they can support an independent
action and are not simply alternative theories
of liability for the same wrong.
· · ·On Page 340, it's not highlighted but it's
in the second column, the paragraph that
begins, Subsequent to Centext Rooney; however,
we decided Current Voters of Florida, Inc. vs.
First Sealord Surety, Inc.· There we held that
where a party is entitled to fees for only some
of the claims, the trial court must evaluate
the relationship between the claims and where
the claims involve a common core of facts and
Page 59
are based on related legal theories, a full fee
may be awarded.
· · ·So I will do my best to, you know, isolate
any instances where I, in good faith, can't say
there was a relationship or inextricably
intertwining, but certainly this is not -- you
cannot on summary judgment obviously make that
kind of determination.· I just wanted the Court
to be aware of the existence of that
affirmative defense because I think it
influences some of what the court said with
with regard to substance.
· · ·THE COURT:· Versus procedure.
· · ·MS. JAMES:· Versus procedure, and I also
want the Court to be mindful of the fact that
the Fourth D.C.A. has awarded appellate fees
for the entire consolidated appeal without
regard to whether it was for the complaint or
the counterclaim so that this Court's ruling on
the town's motion for partial summary judgment
would not affect the appellate fee award. I
believe that it's clear for the Court's order
that this Court -- sorry -- I believe it's
clear from the Fourth D.C.A.'s order that with
regard to the appellate fees, your only
Page 60
responsibility is to determine the
reasonableness of the fees.
· · ·THE COURT:· Thank you.
· · ·MS. JAMES:· Thank you.
· · ·THE COURT:· Ms. O'Connor, did you want to
add anything further?
· · ·MS. O'CONNOR:· I just want to correct one
misstatement that Ms. James continues to make
about the records.· She referenced the third
affirmative defense and suggested that it was
still pending at the time this Court heard the
public records trial.· That is incorrect.· It
was dismissed on May 13th, 2015.· That was six
months before summary judgment was entered on
the counterclaim and 16 months before trial.
There were no affirmative defenses at the time
of the public records trial.
· · ·MS. JAMES:· Judge Oftedal's order --
you're thinking of the UPL claim.
· · ·MS. O'CONNOR:· I am not.· I'm sorry.· The
affirmative defense about compliance with the
Sunshine Law, Judge Oftedal did rule on the
unclean hands and estoppel defenses.· We have
no issue with them potentially proving up a
right to fees on the affirmative defenses.· But
Page 61
again, I just reiterate the facts that a
counterclaim, even if it were a permissive
counterclaim which this Court has said multiple
times on the record today you don't think it
even was permissive.
· · ·THE COURT:· Well, it may have been at best
permissive is what I think I said.
· · ·MS. O'CONNOR:· Well, permissive
counterclaims need have no relationship to the
underlying action and, again, I have half a
dozen cases from the Fourth D.C.A. where a
counterclaim goes the entire length of a trial
and certainly procedural motions, substantive
motions are going to have to be directed to
that counterclaim by a plaintiff, yet the
Fourth D.C.A. is still saying it's not
inextricably intertwined because it doesn't
rise or fall together.· It would have been
different if we had filed a declaratory
judgment action and said, Judge, please tell us
whether we actually lawfully complied when we
responded to the public records request.
That's the subject of their affirmative claim.
Those would likely be inextricably intertwined.
This is not and I don't think you have
Page 62
jurisdiction to order fees pre or post
severance.· The Court made a ruling when it
severed the cases.· The standard for severance
is the same as the standard for fees that
became part of the final judgment and this
Court would effectively be trying to post
judgment modify that.
· · ·MS. JAMES:· I just want to say, Your
Honor, with regard to the alleged misstatement,
I am reading Judge Oftedal's order on summary
judgment and on the very last page he says:
Plaintiff O'Boyle's motion for summary judgment
against the Town of Gulf Stream as to the first
and second affirmative defenses is granted.
The motion for summary judgment as to the
Town's third affirmative defense is denied and
that was the --
· · ·MS. O'CONNOR:· That was a mistake.· He
didn't need to say that because it had already
been dismissed.
· · ·MS. JAMES:· I'm just saying that it was
there -- is denied and that is why --
· · ·THE COURT:· That is the historical
chronological context.
· · ·MS. JAMES:· Right.· And that is why at the
Page 63
trial in September of 2016, I put on proof that
the Town was able to comply with its
responsibilities under Chapter 119 without
regard to any conduct of Mr. O'Boyle.· So
continually through September of 2016, I was
defending against the Town's allegations and
its affirmative defenses and its counterclaim
that there was some conduct of Mr. O'Boyle that
had interfered with the Town's ability to
comply with the act.· Thank you for your time,
sir.
· · ·THE COURT:· Thank you both for your oral
and written presentations.· I appreciate them
very much.· In going through these cases, and
I've gone through them before on many
occasions, sometimes I'll be right, sometimes
I'll be wrong.· I really don't want to say this
but I'll say it.· There's one case that I still
feel I was right on, and I think Jones Foster
represented the party that ultimately lost,
that dealt with prevailing party attorney's
fees where I declared a tie and, as you know, I
think it's either gross abuse of discretion --
Mr. Houser may be able to help me on this -- or
just an abuse of discretion, but I thought I
Page 64
read recently on gross abuse of discretion on
the trial court's award of attorney's fees and
they found an abuse of discretion.· And
because -- even though conceding the fact that
I had found that there was no challenge to the
substantive findings, that I had found that
both parties prevailed on significant issues.
The reason I declared a tie, even though a
relatively modest financial amount was
recovered by one party, the other party had won
on numerous other issues and that's why I felt
a tie was appropriate.· And, as I said, that
was one case that I can remember that stands
out that I took issue with that I was reversed
on because I still feel to this day it was
not -- perhaps if it was not correct, I still
contend it was not an abuse of discretion,
certainly not a gross abuse of discretion when
a concession was made that both parties won
significant issues.· But anyway, we'll move on
from there.· As I said, sometimes I'm right,
sometimes I'm wrong.
· · ·Here, and the only reason that I brought
in my experience in this area of the law is
because I think it's important and it's not due
Page 65
to arrogance or trying to tell you that I know
everything about everything because I clearly
don't, but experience teaches us that we don't
always have the answers from legal precedent
from the case law that's cited because trying
to fit a square hole as big as this one or --
strike that -- a square peg as big as this one
into a tiny little round hole and using case
law to support our respective positions under
these set of unique facts or this set of unique
facts is really a difficult proposition.· And
in my leafing through these cases and going
through in particular the highlighted
provisions that were provided to me by the
Town, I couldn't find anything that really fit
in this particular category.· Though the
language that's used in the Effective
Teleservices case that's already been cited by
both sides and that being, quote, claims are
inextricably intertwined when a determination
of issues in one action would necessarily be
dispositive of the issues raised in the other,
end quote, brings to mind at least the
analogous situation that I'm dealing with here
in this unique set of facts.
Page 66
· · ·Why do I say that.· Well, the procedural
posture that I've outlined in depth already was
such that required Mr. O'Boyle's counsel to
vigorously defend and protect the severance of
this case, that being the counterclaim or
whatever else you want to call it, from the
simple main action relative to the public
records request in the discrete period of time,
I think it was in the spring of 2014, that
related specifically to that public records
request with the police department.· And as I
said, if it was a telephone call, there had to
be a motion made which there was to sever the
case, the Town didn't pick up on it.· The Town
didn't do it.· The Town continued to· take --
and, again, and I don't mean this
disrespectfully, but I think it can be fairly
stated and I said it earlier, a heavy-handed
approach to this simple public records request
and that is to combat this barrage, and I
understand the Town's frustration with
Mr. O'Boyle and Mr. O'Hare and the affiliated
companies and I respect that, as I do the law
and the fact that citizens have a right to
request reasonable records from their
Page 67
government.· Someone mentioned, I think,
Sunshine laws, government and Sunshine and the
theory that has long been espoused in the State
of Florida that governments work in as openly a
manner as possible so that the public is well
informed and well advised of government actions
and I certainly agree with that premise.
· · ·But when we talk about that language, and
while I understand that it wasn't used and is
most often used where there is a valid ability
to be able to compare and contrast this
analysis of inextricable intertwined, there is
somewhat of an analogy that can be drawn,
somewhat of a parallel that can be drawn with
that language to what transpired here.
· · ·As I was saying, the fact that this
counterclaim was brought, had to be defended,
had to be looked at, had to be reviewed, and
defended was a poor choice of words that I used
right there.· It had to be looked at, it had to
be evaluated.· It had to be dealt with in the
manner that I've already discussed and, again,
a myriad of other ways and, as such, as I said,
it could have either been a phone call, the
first motion, Town, you brought this
Page 68
counterclaim, slash, third party action, it's
inappropriate for this case, let's sever it
out, let's get rid of it, bring it in a
separate action, do what you think is best but
there's no reason it should be here.· The Town
says no.
· · ·The first motion they challenge and
Ms. James read some of the language of the
challenge.· The second motion is made to sever.
The Town says no on both occasions.· Judge
Blanc decided to grant -- strike that -- to
deny the motions without prejudice so he
continued to leave the door open to consider.
I was not privy to those arguments but I was
privy at least to the docket.
· · ·Finally after some period of time, the
Town relented and an agreed order was executed
by me to sever the case.· And, again, forgive
me for not knowing but there was a separate
number given to the severed case.· So it was in
my view a clear concession, slash, recognition
of the fact that this counterclaim, slash,
third party complaint was separate and apart,
distinguished from the simple records request
case brought by O'Boyle vs. Town of Gulf
Page 69
Stream.
· · ·That doesn't change the fact of this, what
I perceive to be an inextricably intertwined
relationship between 4474 and the counterclaim
that necessitated attorney time and thus money
to convince the Town and ultimately, by way of
agreed order, the Court that this was not
procedurally appropriate, it did not belong
with the 4474 case, and that time is in my view
inextricably intertwined with 4474.· The
procedural aspect of 4474 had to be
accomplished through 4474 in order to obtain
severance.· There is no denying that and that
is the inextricable intertwining that this
Court finds under these peculiar facts.
· · ·But for the Town bringing of this, for
lack of a better term, awkward counterclaim and
but for the town's insistence in this rather
heavy-handed motion that was an umbrella to
combat the barrage, Ms. O'Connor's original
term, of requests that were being made by
O'Boyle, by O'Hare, by other affiliated
companies, and the fact that the Town chose
this case to bring that counterclaim
necessitated unquestionably the review of that
Page 70
counterclaim, the initial activity that
surrounded the counterclaim in terms of the
procedural aspects and ultimately up to the
time procedurally to sever.
· · ·It is my order that Ms. James review her
time sheets and her time records and extricate
and separate, extricate first any time that was
spent in the substantive defense of the
counterclaim because under no theory of law in
my view would that be properly compensable by
the Town, but at the same time, be able to bill
and recover -- at least at this point bill,
I'll determine recovery at a later time because
it's still subject to a reasonableness analysis
-- but conceptually I am going to allow, based
on the concept of inextricably intertwined, the
work that was necessitated procedurally in
ultimately successfully obtaining the
severance.· I repeat, but for the fact that the
Town chose to bring this case in 4474, these
fees would never have been incurred by the
plaintiff/counter-defendant O'Boyle.
· · ·Also to the extent possible, only those
fees that would be tied to O'Boyle, meaning if
there were conferences relative to the
Page 71
procedural aspects, I'll consider that, but any
conferences, for example, with Mr. O'Hare or
any of the O'Hare affiliated entities if the
same exists wouldn't apply.
· · ·So the motion is granted to the extent
that Ms. James has conceded that she will not
seek fees post severance.· The motion is
further granted in part to the extent that the
Court is limiting a recovery of fees to only
the procedural nature and work that was done
relative to the counterclaim, as we've called
it, filed in this case, 4474.· So it's denied
in that respect but granted to the extent that
the Court will not consider any substantive
defense work on the counterclaim as it would
not be recoverable under any theory of Florida
law that this Court is aware of.
· · ·MS. JAMES:· So, Your Honor, with regard to
the last thing you just said, if I can show
that work that I substantively did on the
counterclaim was related to the affirmative
defenses, may I present that?
· · ·THE COURT:· You can present it, but my
thinking is that it's not going to be
awardable.· The only thing that really is
Page 72
awardable here was the necessary work that was
done by virtue of the Town's decision to bring
the counterclaim in this particular simple
records custodian case.· And let's face it, the
proof is in the pudding.· I've got PCA on both
the appeal and cross appeal.· It had to be
simple.
· · ·MS. JAMES:· Either that or I'm a really
good appellate advocate.
· · ·THE COURT:· Either one.· But the point I'm
making is that I've carefully considered the
issues here.· I've used my experience in
understanding to the best of my ability the
respective positions of the parties here and,
again, capturing in time, which is really the
most important part of the decision, is the
Court's attempt to the best of its ability to
capture in time the events that transpired and
not judge the case on the result but on the
fact of the work necessitated by the Town's
conduct here and the fact that it was
inextricably intertwined with 4474 because,
quite simply, the Town chose it to be.
· · ·Have a very pleasant rest of the week and
weekend.· I thank you again for the
Page 73
presentations.· I'm sorry for the confusion but
again, this isn't meant as an excuse, but for
the volume of reading that I had this morning
and this last afternoon, a lot of this stuff
will meld together and the truth is, and I hope
I speak for the vast majority of my colleagues
here, we really don't care who wins or loses.
We really care about the process.
· · ·I remember Judge Rudnick who I was a real
fan of and I presume Ms. James remembers, but I
think Judge Rudnick was a really good example
of that, the now late Judge Rudnick.· We would
come in and we'd be in chambers and he would be
sitting five feet from us when we used to have
the hearings in the old courthouse and he would
totally furr his brow.· His brow would actually
be red because he had been pushing his thumb
and forefinger into his brow.· And you could
finish with the greatest 20-minute argument
you've ever given in your life, and we used to
laugh about it sometimes and I knew his widow
as well, she was a member of the Hurricane Club
for a while and I used to tell her this story
after his passing -- and he'd turn to us and
say, all right, now, who do you represent?
Page 74
· · ·MS. JAMES:· I remember that.
· · ·THE COURT:· And I say this on the record
only to suggest that as a younger lawyer, I
must have thought, oh, my goodness, wasn't he
paying attention?· Well, he was paying too much
attention, as I think back.· The reason why I
say that is it really didn't matter to him who
each side was representing.· What mattered to
him was the process and hopefully to his best
ability of getting the matter right.
· · ·So I appreciate your indulgence in
listening to the story and again, I wish you
the best.· Have a good rest of the week and
weekend and we'll be in recess.
· · ·MS. JAMES:· Thank you.
· · ·MS. O'CONNOR:· Thank you, Your Honor.
· · ·(The hearing was concluded.)
Page 75
STATE OF FLORIDA
COUNTY OF PALM BEACH
· · ·I, DEBORAH MEEK, Registered Professional
Reporter, Florida Registered Reporter, certify that
I was authorized to and did stenographically report
the foregoing proceedings and that such
transcription, Pages 1 through 74, is a true and
accurate record of my stenographic notes.
· · ·I further certify that I am not a relative,
employee, attorney, or counsel of any of the
parties, nor am I a relative or employee of such
attorney or counsel, nor am I financially
interested, directly or indirectly, in the action.
· · ·This certification does not apply to any
reproduction of the same by any means unless under
the direct control and/or direction of the reporter.
· · ·Dated this 20th day of October, 2019.
· · · · · _______________________________
· · · · · DEBORAH MEEK, RPR, CRR, FPR
Renee Basel
From:Jonathan O'Boyle <joboyle@oboylelawfirm.com>
Sent:Wednesday, June 21, 2023 1:42 PM
To:OConnor, Joanne M.; Hudson Carter Gill
Cc:Renee Basel; Danielle Tschuschke; Trey Nazzaro; Jonathan O'Boyle
Subject:RE: Records Request Chapter 119
\[NOTICE: This message originated outside of the Town of Gulfstream -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.\]
Thanks Joanne do you have the version that is not the mini print? I would like a copy of that as well.
Jonathan O’Boyle, Esq., LLM.
Licensed in Florida*
Licensed In New Jersey*
Licensed In Pennsylvania*
Licensed in West Virginia*
The O’Boyle Law Firm, P.C.
www.oboylelawfirm.com
Florida Office
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Office: 754-212-4201
Direct: 954-570-3533
joboyle@oboylelawfirm.com
Pennsylvania Office
1001 Broad St.
Johnstown, PA 15906
New Jersey Office
525 Route 73 North, Suite 104
Marlton, NJ 08053
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
communication, unless expressly stated otherwise, was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any tax-related matter(s)
addressed herein.
===========================================================
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1
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PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM.
THANK YOU IN ADVANCE FOR YOUR COOPERATION.
From: OConnor, Joanne M. <JOConnor@jonesfoster.com>
Sent: Wednesday, June 21, 2023 1:37 PM
To: Jonathan O'Boyle <joboyle@oboylelawfirm.com>; Hudson Carter Gill <hgill@jambg.com>
Cc: rbasel@gulf-stream.org; Danielle Tschuschke <dtschuschke@commerce-group.com>; TNAZZARO@gulf-stream.org
Subject: RE: Records Request Chapter 119
See attached.
Joanne M. O’Connor
Florida Bar Board Certified Business Litigation Attorney
Jones Foster P.A.
561 650 0498 – D
561 650 5300 – F
561 659 3000 – O
joconnor@jonesfoster.com
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points to the correct file and location.
Flagler Center Tower
505 South Flagler Drive, Suite 1100
West Palm Beach, Florida 33401
jonesfoster.com
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delete the original message.
From: Jonathan O'Boyle <joboyle@oboylelawfirm.com>
Sent: Wednesday, June 21, 2023 1:32 PM
To: Hudson Carter Gill <hgill@jambg.com>; OConnor, Joanne M. <JOConnor@jonesfoster.com>
Cc: rbasel@gulf-stream.org; Danielle Tschuschke <dtschuschke@commerce-group.com>; Jonathan O'Boyle
<joboyle@oboylelawfirm.com>; TNAZZARO@gulf-stream.org; Jonathan O'Boyle <joboyle@oboylelawfirm.com>
Subject: RE: Records Request Chapter 119
Importance: High
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Joanne and Hudson, I have not heard back from Renee or anyone from the Town and I would normally follow up with a
call to the Town but I received a motion for sanctions last time I did that so I am reading out to you folks as custodians of
the actual record.
2
I understand that the Town has a copy of the transcript I sought below. I wanted to follow up since I understand it is in
electronic form and readily accessible. I am incorporating my request below and giving notice pursuant to Chapter
119.12.
Thank you in advance for your prompt attention to this matter.
Jonathan O’Boyle, Esq., LLM.
Licensed in Florida*
Licensed In New Jersey*
Licensed In Pennsylvania*
Licensed in West Virginia*
The O’Boyle Law Firm, P.C.
www.oboylelawfirm.com
Florida Office
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Office: 754-212-4201
Direct: 954-570-3533
joboyle@oboylelawfirm.com
Pennsylvania Office
1001 Broad St.
Johnstown, PA 15906
New Jersey Office
525 Route 73 North, Suite 104
Marlton, NJ 08053
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
communication, unless expressly stated otherwise, was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any tax-related matter(s)
addressed herein.
===========================================================
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PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM.
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From: Jonathan O'Boyle
Sent: Monday, June 19, 2023 5:23 PM
To: Hudson Carter Gill <hgill@jambg.com>; Joanne Marie O <JOConnor@jonesfoster.com>
Cc: rbasel@gulf-stream.org; Danielle Tschuschke <dtschuschke@commerce-group.com>; Jonathan O'Boyle
3
<joboyle@oboylelawfirm.com>
Subject: Records Request Chapter 119
Importance: High
Dear Custodians for the Town of Gulf Stream,
Attached is Judge Hafele’s October 2, 2018 order that came about from a September 1, 2018 hearing. I wanted to ask if
the Town had a copy of that hearing transcript, or, a document reflecting the identify of the stenographer (also if you
know the company, that would be swell as well in lieu of providing the record showing who they were). This request is
time sensitive and could stave off an appeal.
Your assistance would be greatly appreciated.
Jonathan O’Boyle, Esq., LLM.
Licensed in Florida*
Licensed In New Jersey*
Licensed In Pennsylvania*
Licensed in West Virginia*
The O’Boyle Law Firm, P.C.
www.oboylelawfirm.com
Florida Office
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Office: 754-212-4201
Direct: 954-570-3533
joboyle@oboylelawfirm.com
Pennsylvania Office
1001 Broad St.
Johnstown, PA 15906
New Jersey Office
525 Route 73 North, Suite 104
Marlton, NJ 08053
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
communication, unless expressly stated otherwise, was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any tax-related matter(s)
addressed herein.
===========================================================
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THE INTENDED RECIPIENT OF THE TRANSMISSION, AND
MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU
RECEIVED THIS E- MAIL IN ERROR, ANY REVIEW, USE,
DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS
E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US
IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND
4
PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM.
THANK YOU IN ADVANCE FOR YOUR COOPERATION.
5
· · · IN THE FIFTEENTH JUDICIAL CIRCUIT COURT
· · · ·IN AND FOR PALM BEACH COUNTY, FLORIDA
· · · · · CASE NO. 502014CA00474XXXXMB AG
MARTIN W. O'BOYLE,
· · · ·Plaintiff,
vs.
TOWN OF GULF STREAM,
· · · ·Defendant.
_______________________________/
· · · · · · · · · · · ·- - -
· · · · · · PROCEEDINGS HAD BEFORE THE
· · · · · · · HONORABLE DONALD HAFELE
· · · · · · · · · · · · - - -
DATE:· SEPTEMBER 7, 2018
TIME:· 1:30 - 3:15 P.M.
APPEARING ON BEHALF OF PLAINTIFF:
· · ·Elaine Johnson James, Esq.
· · ·ELAINE JOHNSON JAMES, P.A.
· · ·P.O. Box 31512
· · ·Palm Beach Gardens, Florida· 33420
APPEARING ON BEHALF OF DEFENDANT:
· · ·Joanne M. O'Connor, Esq.
· · ·JONES, FOSTER, JOHNSTON & STUBBS, P.A.
· · ·505 South Flagler Drive, Suite 1100
· · ·West Palm Beach, Florida· 33401
· · · · · · · · · · · ·- - -
· · ·BE IT REMEMBERED, that the following
proceedings were had in the above-entitled cause
before the Honorable Donald Hafele, in Room 10D, in
the Palm Beach County Courthouse, City of West Palm
Beach, State of Florida, on Friday, the 7th day of
September, 2018,· to wit:
· · · · · · · · · · · ·- - -
· · · · · THE COURT:· Good afternoon.· We have the
· · ·Defendant Town of Gulf Stream's motion for
· · ·partial summer judgment on counterclaim and
· · ·unsuccessful interlocutory appeal fees, end
· · ·quote.· Our court reporter has indicated she
· · ·has your appearances for the record and so
· · ·we're ready to proceed.
· · ·Ms. O'Connor, are you ready to go?
· · ·MS. O'CONNOR:· Yes, Your Honor.
· · ·THE COURT:· A couple of things before you
start.· The only thing I had as of last night
and, as you all know, I think that you know
that I do read the materials before I come out.
Did you send your response to my office?
· · ·MS. JAMES:· I didn't because Ms. O'Connor
did, Your Honor.· It was Item --
· · ·MS. O'CONNOR:· Her response is Tab 3.
· · ·MS. JAMES:· Tab 3 in her notebook.
· · ·THE COURT:· This is interesting.
· · ·MS. JAMES:· Why?
· · ·THE COURT:· Take a look at my notebook.
It has not been amended by the Court, meaning I
have not taken anything out nor have I put
anything in.· But, Ms. James, there is no --
· · ·MS. O'CONNOR:· My fault then, Your Honor.
I apologize for that.· This is it.
· · ·MS. JAMES:· It's right here.
· · ·THE COURT:· All right.
· · ·MS. JAMES:· So since you haven't had a
chance to read it, I just want to say on the
record --
· · ·THE COURT:· So it was hidden underneath
one of the other tabs.· Okay.
· · ·MS. JAMES:· Yes.· I have made concessions.
· · ·THE COURT:· Let me see if I've looked at
it because I only scanned it when my JA brought
it to me this afternoon.· Let me see if I did
look at it.
· · ·I don't think I did.
· · ·MS. JAMES:· Okay.· So I wanted just to
announce to the Court as is made clear in Mr.
O'Boyle's response to the motion for partial
summary judgment filed by the Town that Mr. --
I'm representing Mr. --
· · ·THE COURT:· You know what?· Now that I --
I see the last portion where you say
Mr. O'Boyle acknowledges that the Gieseke,
G-i-e-s-e-k-e, case precludes it from fees on
interlocutory appeal.· I guess I didn't see it.
I had a lot to read from this morning's
hearings so forgive me for not remembering but
now that I see it, perhaps I just didn't put it
into context at the time but I did see it.
· · ·MS. JAMES:· I also advised Ms. O'Connor
this morning and would advise the Court that
having read the Padgett case, P-a-d-g-e-t-t, on
behalf of Mr. O'Boyle, I would recommend to the
Court, and I told Ms. O'Connor that we will not
be seeking fees for defending the counterclaim
after March 31, 2016, which is the date at
which it was severed because Mr. O'Boyle's
answer which I believe was dated March 13, 2015
to the counterclaim did not plead for
attorney's fees.
· · ·THE COURT:· Okay.
· · ·MS. JAMES:· So in those two regards, we
would acknowledge the Court -- I'm sorry -- the
Town's entitlement to partial summary judgment,
leaving before the Court really the issue of
fees for the counterclaim between February 23,
2015 and March 23, 2016, excepting the
appellate attorney's fees for a successful
appeal which we get for both appeals.
· · ·THE COURT:· All right.· A couple of things
that I need to ask you about -- and if you want
to come up to the podium since there are
preliminary matters that I just need to clarify
with both counsel and I don't want you to have
to keep getting up and down unnecessarily.
First of all, how did I get this case?· The
time line was done.· I appreciate those time
lines.· They're always helpful when I'm dealing
with something that's four years old, but I see
Judge Oftedal's name involved, Judge Blanc's
name involved, and then it's a 2014 case and
you may or may not remember but I came over to
this division in 2014 after spending two years
in juvenile so I had no connection with these
things that were going on involving Mr. O'Boyle
and Mr. O'Hare until I got back.
· · ·So why doesn't the defendant, they're the
movant, give me your understanding of my
involvement, plus you've been involved since
the beginning.
· · ·MS. JAMES:· Not the beginning but since --
I've been involved since early 2015.
· · ·THE COURT:· Okay.· Thank you.· Just for
the record, we're saying this with smiles on
our faces so it doesn't look like we're
arguing.
· · ·MS. JAMES:· No.
· · ·THE COURT:· Off the record.
· · ·(Discussion off the record.)
· · ·THE COURT:· Getting back on the record,
why don't you go ahead, Ms. O'Connor, just
bring me up to speed as to where my personal
involvement became evident.
· · ·MS. O'CONNOR:· Your Honor, I believe this
case was first filed in this division.· I'm not
sure who the judge was at the time.
· · ·THE COURT:· Perhaps Judge Crow since --
well, it's 2014.· I would have been here from
almost the inception of 2014, if I recall
correctly, and the case number would have been
pretty early in 2014 but not before I would
have been here because our move is usually at
that time -- now Judge Marks has decided to do
things a little bit differently -- but then our
moves were typically, unless there was
something that happened unforeseen, but the
foreseen rotation which was mine after a
two-year stint in juvenile would have been
around the Martin Luther King holiday which is
typically around mid to late January.· So the
case number here, 4474 with the AG which is
this division would tell me -- because we were
still dealing with a lot of foreclosure cases
at that time -- would probably tell me that
this case was filed somewhere in the end of
February, early March perhaps.
· · ·MS. JAMES:· It was filed in April of 2014.
· · ·THE COURT:· My point is I would have been
here.
· · ·MS. JAMES:· I don't think it was AG when
it was filed.· Wasn't Judge Blanc the original
judge?
· · ·MS. O'CONNOR:· There was a period of time,
Your Honor --
· · ·THE COURT:· You know what?· I can just
check.
· · ·MS. O'CONNOR:· Yeah.· There was a period
of time in the fall of 2014 which would have
been a couple of months after this was filed
where there were approximately 40 public
records lawsuits against the Town of Gulf
Stream.
· · ·THE COURT:· That's why I said when I got
here, I already knew there was a significant
amount of these cases that had been already
filed and discussed.
· · ·MS. O'CONNOR:· We did endeavor -- the Town
did endeavor to transfer as related cases at
one point in time cases to Judge Blanc or --
well, to Judge Blanc on certain O'Hare cases
and then Judge Oftedal on certain of these
cases, so I think that's how it came to Judge
Oftedal and then he decided he did not want to
be the public records judge.
· · ·MS. JAMES:· And I also think Judge Oftedal
had a medical issue during that period of time,
so it wasn't just that he didn't want to be the
public records judge for Mr. O'Boyle's cases.
I recall him having gone on an extended medical
leave after granting the order on Mr. O'Boyle's
motion for summary judgment.
· · ·THE COURT:· I'm not taking issue.· That I
don't remember.· Judge Blanc is healthy as a
horse.
· · ·MS. O'CONNOR:· No, Judge Oftedal.
· · ·MS. JAMES:· Judge Blanc left to go to the
foreclosure division and Judge Oftedal got the
case and in late 2015, Judge Oftedal had a
medical issue and he took an extended leave
between November of 2015 and January of 2016.
· · ·THE COURT:· Oh, yeah.· Right.· He had hip
surgery.
· · ·MS. JAMES:· I didn't know what it was.
· · ·THE COURT:· That's okay.· It's not
anything private.· He shared it with many
people so I'm not letting any cat out of the
bag.· It did only now jar my recollection.· But
he did very well after that.
· · ·So what I'm looking at now is, I think Ms.
O'Connor was right or both of you mentioned
this, I just remember her saying it while I was
reading, I entered an order back in July of '14
after the case was in fact originally assigned
to this division to transfer the case to
Division AA.· So that would have been probably
Judge Blanc.· Yes, because what it says is a
copy to Judge Blanc and it was when Mr. Taylor
was involved and Ms. O'Connor was also counsel
of record at that particular time.
· · ·So just going back for a moment, I seem to
vaguely remember that there was that time when
Judge Blanc made a decision to redistribute the
cases.
· · ·MS. JAMES:· I think it was Judge Oftedal
who redistributed the cases because by the time
the cases were redistributed, Judge Oftedal --
· · ·THE COURT:· Well, remember both of them
served in the foreclosure division.
· · ·MS. JAMES:· Right.· But Judge Blanc was
off this case by mid 2015 at the very latest
and Judge Oftedal was the judge at that point.
I'm certain of that because by the time I filed
the motion for summary judgment on the
counterclaim which was in the summertime, I
believe, it was Judge Oftedal in 2015.
· · ·THE COURT:· Okay.· Now, I think what
happened in the meantime was that Judge
Blanc -- I can't keep track but I think Judge
Blanc may have moved to foreclosure and then
Judge Oftedal took over Division AA.
· · ·MS. JAMES:· Yes, sir.
· · ·THE COURT:· Because as of -- well, I don't
want to give dates because I'm not sure exactly
when the matter came up, as I'm going through
the docket on the ICMS docket system that we
have, Judge Blanc's orders were last entered
back in July of 2015 and then the next orders
that were entered were by Judge Oftedal, which
is now October of 2015 where Judge Oftedal
granted a motion to dismiss -- who was the
judge that dealt with these affirmative
defenses?
· · ·MS. JAMES:· Judge Oftedal.
· · ·THE COURT:· Okay.· There it is.· So in
November of 2015, there's plaintiff's motion
for summary judgment, it says of Gulf Stream on
counterclaim is granted.· Motion for summary
judgment as to first and second defenses is
granted and motion for summary judgment as to
the third affirmative defense is denied.· Did
that -- was that what spurred an appeal?
· · ·MS. JAMES:· Eventually, but that wasn't
the interlocutory appeal.· That was appealed
after you entered final judgment on the
counterclaim in early September of 2016.
· · ·MS. O'CONNOR:· Many months passed between
that time that summary judgment was entered on
the counterclaim and then we still had to go
ahead and try the public records claims.
Nothing about the counterclaim disposed of
those claims.
· · ·THE COURT:· Okay.· There was a renewed
motion to sever counterclaim from verified
complaint and that was granted by agreed order
March 31, 2016.
· · ·MS. JAMES:· Right, after the order
granting summary judgment on the counterclaim
had been entered.
· · ·THE COURT:· I did that?
· · ·MS. JAMES:· Yes, sir.
· · ·THE COURT:· Because I remember relatively
vividly the main action where I found in favor
of plaintiff on the public records issue.
· · ·MS. JAMES:· Right.· That was a nonjury
trial in September of 2016.
· · ·THE COURT:· Right.· I have very little
recollection and I frankly have no recollection
at all which is why I started this by asking
when I got this case as to this issue about the
counterclaim.
· · ·MS. JAMES:· You entered the final -- you
had the nonjury trial on the Public Records Act
complaint on September 6th of 2016 and then on
September 7th, 2016, at uniform motion calendar
you entered the final judgment on the
counterclaim and by then, the cases had been
severed and so you had the nonjury trial in
Case Number 2014-4474 and you entered the final
judgment on the counterclaim in Case Number
2016-CA-5437.
· · ·THE COURT:· Thank you.· So then what was
appealed?
· · ·MS. JAMES:· Both judgments were appealed
but that's not the interlocutory appeal.· The
interlocutory appeal was months before.
· · ·THE COURT:· What was the outcome?
· · ·MS. O'CONNOR:· It was affirmed for
Mr. O'Boyle on both issues.
· · ·MS. JAMES:· The appeals were consolidated.
There was two separate appeals.· They were
consolidated under the earlier of the two
Fourth D.C.A. numbers.· They were briefed
together.· We had oral argument on October 31st
of 2017 and then we got a PCA on November 2nd,
2017, three days later on both.
· · ·THE COURT:· So the Town appealed the main
action, I'll call it, and the granting of
summary judgment was in favor of --
· · ·MS. JAMES:· Mr. O'Boyle.· They appealed
both.
· · ·MS. O'CONNOR:· There's two separate
actions that were appealed.
· · ·THE COURT:· Like I said, I remember
vividly the main action.· I just don't remember
doing what I did on this other aspect of the
case.
· · ·MS. JAMES:· You only did it at uniform
motion calendar.· It only took you 15 minutes.
· · ·THE COURT:· Was it primarily based on the
fact that Judge Oftedal had already ruled?
· · ·MS. JAMES:· Yes.
· · ·MS. O'CONNOR:· No, Your Honor, we
disagree.· They had repeatedly moved to sever
throughout.
· · ·THE COURT:· Okay.· I'm not taking issue
with that.· I'm saying why did it take such a
short amount of time?· Was it primarily based
on the fact Judge Oftedal had already ruled on
those issues?
· · ·MS. O'CONNOR:· For you to enter the final
judgment, yes.
· · ·THE COURT:· Okay.· That's probably why I
have no real recollection of the substance of
the matters because if we did it on uniform
motion calendar, that kind of speaks for
itself.
· · ·MS. JAMES:· And the Town didn't file an
opposition to the entry of final judgment on
the counterclaim after the order was entered.
So there would be no reason for you to
remember.
· · ·THE COURT:· All right.· And did the
counterclaim mirror the federal action that was
brought?
· · ·MS. O'CONNOR:· That's what they claim,
yeah.
· · ·THE COURT:· But you disagree with it.
· · ·MS. O'CONNOR:· I mean, for purposes here
today, yes.· That's been their position all
along, is that the counterclaim mirrored the
federal action, not the public records claim.
That's our position why they're not the same.
· · ·THE COURT:· All right.· That, at least to
a degree and it's not your fault, brings me up
to speed.· As I said, I tried to piece this
together as best I can, but admittedly because
of the amount of discussion on this
counterclaim and my lack of recollection, it
left me a little bit in the dark regarding the
background.
· · ·So why don't we go ahead then with
motions.· You're welcome to take a seat,
Ms. James, at this point and I'll be glad to
hear from you when we conclude with Ms.
O'Connor.
· · ·We put aside how much time for this?
· · ·MS. O'CONNOR:· Two hours.
· · ·THE COURT:· Okay.· So why don't you go
ahead.
· · ·MS. O'CONNOR:· Thank you, Judge.· May I
approach?· I have a smaller notebook with a
subset which will just hopefully walk you
through which I have provided to opposing
counsel as well.
· · ·Your Honor, what Mr. O'Boyle asks for in
this case is unprecedented.· I've never seen it
asked for before.· Essentially he's asking you
in this action which is Case Number 4474 to
award him fees in association with an entirely
separate action that was severed more than two
years ago and I'm going to refer to that as
Case 5437.
· · ·THE COURT:· So that was actually given a
separate case number?
· · ·MS. O'CONNOR:· Correct.· It was severed
for all purposes.· And it's no different than
if she would come in here and ask you to award
her fees in a case that had been severed and
transferred down the hall to Judge Small or
Judge Sasser.· It's essentially asking you to
be some sort of shadow judiciary.· That case,
when it was severed, became Case 5437 and I
think it's really important.· I mean, they're
related so you happened to keep both cases, but
you're here today in your capacity of a judge
in Case 4474.
· · ·So we submit there's three reasons very
simply why they're not entitled to counterclaim
fees.· Number one, you don't have jurisdiction
to award any fees on Case 5437 in this case
which is Case 4474.
· · ·Number two, Mr. O'Boyle is judicially
estopped.· This is a classic case of judicial
estoppel.· He repeatedly throughout this action
argued that the counterclaim was, quote, not
related, not intertwined and it was separate
and distinct.· Instead, as you noted, he argued
that what the counterclaim did relate to was a
Federal RICO action.· He was moving to sever it
because he wasn't concerned about inconsistent
results vis-a-vis the public records claim.· He
was concerned about inconsistent results
vis-a-vis the Federal RICO action.
· · ·THE COURT:· The Federal RICO action and
the counterclaim were seeking to essentially do
what?· Refresh my recollection, please.· I know
you mentioned it in your respective papers.
· · ·MS. O'CONNOR:· So the counterclaim was
seeking declaratory and injunctive relief to
address a pattern of conduct by Mr. O'Boyle,
Mr. O'Hare, various corporate entities
associated with Mr. O'Boyle, and it was this
pattern of conduct that had been going on for
years in trying to get the Court to give
prospective future relief.
· · ·THE COURT:· So it included Mr. O'Boyle,
Mr. O'Hare and several entities that you
alluded to that were affiliated in some fashion
with Mr. O'Boyle, financed by Mr. O'Boyle,
whatever the case may have been, that were
associated in some part with him?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· Okay.
· · ·MS. O'CONNOR:· The federal action has
similar allegations but it asserted a federal
racketeering charge against the same,
essentially the same counterclaim defendants.
· · ·THE COURT:· Okay.· And I guess the point
you're making is an upshot of all this is that
in 4474 which is what we're here today on,
O'Boyle vs. Town of Gulf Stream, which dealt
with the issue pertaining to the radio
transmissions from the police, the Town of Gulf
Stream Police that the finding was in essence
that the records were not completely provided
in a timely fashion or finding to that effect
and hence I found in favor of Mr. O'Boyle, but
that finding was on that specific discrete
issue and not the umbrella counterclaim and
federal action that were brought for the
various and sundry reasons that you've pointed
out that did not deal with this particular case
but in essence was a separate case.
· · ·Now, that begs the question -- and it
brings back some rather -- I don't know how to
put it -- not unpleasant memories of another
case that I have and that was a counterclaim
that was brought and it really wasn't a
counterclaim and it was a malicious prosecution
claim that while it stemmed from the action
that was brought, it was titled counterclaim
but it wasn't really a counterclaim.
· · ·MS. O'CONNOR:· This is the same.· We could
have filed this as an entirely separate action.
The declaratory -- I'm going to refer to it as
the declaratory judgment action.
· · ·THE COURT:· It somewhat begs the question
why didn't you?· But we'll visit that perhaps
another time unless you want to let me know.
Hopefully it wasn't to save the filing fee.
· · ·MS. O'CONNOR:· No, of course not.
· · ·THE COURT:· I don't know.· I've had others
suggest to me that's why they filed three
passengers in one car with no relationship and
they file it all in the same case and when I
tell them that that's not appropriate, I've
been told that they know that; however, they
wanted to try to save the filing fee, to which
I say, well, I spent two years in the juvenile
division and see where those fees go and I'm
very much protective of that because those fees
go to absolutely necessary causes that need the
support of the filing fees so that will not be
allowed and tell them they have to do it again.
Even though I'll try my best to keep one of the
cases under that same filing fee, they'll have
to file two.· That was part facetious and I
know we have serious matters to deal with so I
won't be facetious anymore.
· · ·Anyway, it was filed as a counterclaim,
perhaps should have been thought out a little
bit differently but it was done anyway in that
regard and what you're going to tell me, I
think, is that there were two attempts by
Mr. O'Boyle to sever the counterclaim from this
action, initially two attempts, correct?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· And am I right that
Mr. O'Boyle was the movant?· It was not the
Town?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· All right.· Go ahead.
· · ·MS. O'CONNOR:· So again, just for
shadowing, three reasons why we should win and
the Court should find it cannot award any
counterclaim fees in this case.· Number one,
you don't have jurisdiction.· Number two, Mr.
O'Boyle is in a classic case of judicial
estoppel.· And number three, even if you could
go back, now we're post judgment, even if you
could go back and modify that severance order,
it's too late.· Their effort to try to have you
do that, you can't, but even if you could, it's
not inextricably intertwined and the fact that
you don't recall anything about the
counterclaim is evidence of that.· Nothing
about the counterclaim mattered when you tried
the public records case.
· · ·So I'd just like to walk you through it
and I'll try to be as quick and succinct as
possible.· The first page of my outline is the
first reason, that you have no jurisdiction to
award fees and over here in Case 5437 in the
declaratory judgment action.· The counterclaim
was long ago severed.· More than two years ago
it was severed for all purposes.· The reason it
was severed was because it was never
inextricably intertwined.· Once it was severed,
it became an independent action with its own
case number and I'm going to refer to it again
as the declaratory judgment action.· This Court
entered final judgment.· Those are at Tabs 2
and 3 of my notebook.
· · ·THE COURT:· Was that part of the agreed
order that it would take on a new case number?
· · ·MS. O'CONNOR:· I don't believe so.
· · ·THE COURT:· Because I'm at a loss and I've
never seen that before where a severed portion
of the action takes on a new case number.
· · ·MS. O'CONNOR:· Well, wouldn't it have to?
I mean, generally when claims are severed,
wouldn't they get reassigned to another judge?
· · ·THE COURT:· No.
· · ·MS. O'CONNOR:· No?
· · ·THE COURT:· Because as you mentioned, our
local administrative order requires that all
related cases, and I think in fairness it would
be construed as a related case despite your
legal position as to the distinction between
the discrete case that we're dealing with and
the umbrella case that I'll call the
counterclaim, so no, to my knowledge.· And
again, I've been doing this a long time but I
could be wrong.· They simply remain under the
same case number.· And again, I could well be
wrong.· I don't have that many severances to
deal with so I'm not sure about that, but in
any event, it did take on a new case number and
it was an agreed order to sever after two
motions were brought, I believe, both before
Judge Blanc, if I'm not mistaken, and he denied
the motions without prejudice.· Ultimately I
entered an agreed order to sever.
· · ·MS. O'CONNOR:· Right.· You then entered
final judgments.· You entered separate final
judgments in each case.· In the declaratory
judgment case that had been severed, you
entered a final judgment and you reserved
jurisdiction to determine entitlement to fees.
So over here in Case 5437 which is the
counterclaim case, no entitlement to fees has
ever been decided.· But in the case we're here
on today, the final judgment, you did find that
they're entitled to reasonable costs of
enforcement under Chapter 119.
· · ·THE COURT:· Let me make a really poor
analogy which is not to be facetious but I
admit at the inception it may be a poor
analogy.· We have sometimes an automobile
accident case, for example, and negligence
case.· There's at least a concession by the
defense that says while we do not believe that
the surgery was related to the accident and any
aftercare was related to the accident nor is
any future care related to the accident, we're
ready to concede that the palliative care
immediately after the accident, a visit to the
emergency room where a patient was released
within hours of her admission with nothing done
other than some cautionary x-rays, some
chiropractic treatment that was done for three
or four months and a visit to an orthopedic
surgeon that was done four months after the
accident, a single visit would be compensable,
we're willing to concede that to the jury and
we're willing to allow them to recover for that
care.· But the fact that she then went to a
different orthopedic surgeon seven months later
and that orthopedic worked her up for surgery
and it was a nonsurgical lesion and she had an
intervening fall and the rest of that we don't
think has anything to do with the initial
automobile accident.· The analogy I draw is are
you willing to concede at least some fees
associated with when the counterclaim was filed
in the very same action, the 4474 action, there
would have been a need at the very least within
that action to be able to review the
counterclaim, to determine the road to proceed
in terms of how to defend the counterclaim,
conferences with the respective -- well,
actually it would just be probably Mr. O'Boyle
since he's the only plaintiff here and the
counterclaim, as I understand, would not have
only been a counterclaim but would technically
have also been presumably a third party action,
correct?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· So it may have had the
misnomer of counterclaim as well because you
tell me it was brought against Mr. O'Hare and
other affiliated entities but the singular
plaintiff in the 4474 case is O'Boyle?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· That's the question.
· · ·MS. O'CONNOR:· No, I would not agree.· The
American rule on fees is that you only get fees
if there's a contractual or statutory basis for
fees.· Here, the only statutory basis and it's
not even a prevailing party fee basis, is
Chapter 119.· It's Mr. O'Boyle's public records
claim.· That is the only claim in this lawsuit
that exists in this lawsuit, the counterclaim
having been severed, but that's the only claim
that gave rise to fees.
· · ·So the Fourth D.C.A. in the Effective
Teleservices case which is from 2014 has
announced a test and they routinely apply to
counterclaims that are in the same action, so
before severance we were all in here together,
the claims and the counterclaim, and what the
Fourth D.C.A. said is you're only -- you have
to be inextricably intertwined.· That
declaratory judgment counterclaim would have
had to be inextricably intertwined with
Mr. O'Boyle's public records claim.
· · ·THE COURT:· Well, since you chose, you,
through counsel chose to bring the claim as a
quote, counterclaim, end quote, even though I
think it was essentially conceded that it
probably was not a -- not necessarily the best
decision to do it that way and I'm not finding
fault but I think that's fair -- and it was
really not a counterclaim, that it was a hybrid
of counterclaim and third party complaint, but
in that vein, and I don't know whether there
was any argument regarding the filing of the
counterclaim and whether it was appropriately
filed in this action.· Was there?
· · ·MS. O'CONNOR:· Yeah.· They moved to strike
it and they moved to sever it because they said
it has nothing to do with the public records
claim.· It's not intertwined with it.
· · ·THE COURT:· Well, this is going to be an
interesting question and the reason why Judge
Blanc denied it was because -- was the Town
taking a different position --
· · ·MS. O'CONNOR:· We did.
· · ·THE COURT:· -- that it was related?
· · ·MS. O'CONNOR:· Correct.· But that's not
even the -- like you can have a compulsory
counterclaim --
· · ·THE COURT:· Let me go off the record.
· · ·MS. O'CONNOR:· Sure.
· · ·(Discussion off the record.)
· · ·MS. O'CONNOR:· Back on the record.· So
again, my question was a rather loaded one but
I think you've already answered it and that is
that you were taking a position at that time
which seems to me to be a tad inconsistent with
the position you're taking now that the
counterclaim, and again I'm using the term
counterclaim like in quotes for the record, I'm
certainly not dating it as a counterclaim
because it appears to be not a counterclaim
but, in fact, a counterclaim/third party
action, but you're telling me then it was your
position that it wasn't intertwined or related.
· · ·MS. O'CONNOR:· Two things.· First --
· · ·THE COURT:· The American Rule says that I
should ignore what was done before?
· · ·MS. O'CONNOR:· Well, yeah.· Two things.
Number one, the doctrine of judicial estoppel
which we're arguing here only applies to folks
that have obtained relief successfully based on
their position which is what happened with
Mr. O'Boyle.
· · ·THE COURT:· So you're telling me in the
words of Frank Baum, or whoever wrote the
actual screenplay of the Wizard of Oz, ignore
the man behind the curtain.
· · ·MS. O'CONNOR:· Well, I think there's two
things.· No.· Just because we argue that it
shouldn't be severed does not mean it's
inextricably intertwined.· Courts routinely,
including in the Padgett (phonetics) and the
Effective Teleservices case finds that even
claims that are compulsory counterclaims are
not inextricably intertwined for purposes of
fees.· so Effective Teleservices is a case
where a counterclaim going back was a
fraudulent inducement claim and the Court said
that's not inextricably intertwined with the
breach of contract claim that was filed against
you.· So the fact that we didn't want the case
to be severed because we thought that these
counterclaims were related, that's not
dispositive of the issue.· The Padgett case
that Ms. James cites, again, nothing in that
case was severed.· Those counterclaims were all
together in the same case.· It was a breach of
contract that the plaintiff filed and the claim
going back against it was a fraudulent
inducement claim.· And the 4th District held in
2015 in Padgett claims for breach of contract
and fraud in the inducement are separate and
distinct for purposes of awarding fees citing
to Effective Teleservices.
· · ·The kinds of cases where Florida appellate
courts find that counterclaims are inextricably
intertwined for purposes of fees are cases like
the Anglia Jacks (phonetics) case which was
cited to Your Honor and that's where a tenant
sued a landlord for breach of lease saying,
hey, the conditions of the premises, you
breached your lease, you didn't maintain the
premises, and the landlord's counterclaim said
no, I didn't breach, you owe me rent.
· · ·So there's one pot of money.· That's what
we're dealing with.· There's going to be one
and there can only ever be one prevailing
party.· However the Court rules on the
affirmative claim is going to be dispositive of
how it rules on the counterclaim.· That's when
the claims are inextricably intertwined for
purposes of fees and that's not what happened
here.
· · ·THE COURT:· But it just sounds like you're
asking me to do the same thing to them but
you're not asking me to do the same thing to
you and that's where the inconsistencies are
problematic for me, and that is this.· From a
logical common sense approach, a counterclaim,
again, despite my misgivings about its term,
I'll use it just to be clear on the record,
this counterclaim was brought by the Town
against O'Boyle and others.· We'll focus on
O'Boyle for a moment.· The Town not only brings
this counterclaim within the same action,
initially the 4474 action, but despite the
Plaintiff O'Boyle, a counter-defendant or
probably the only real counter-defendant from a
legal perspective, despite his taking the
position that the counterclaim should be
severed because it is not related to the main
action, the Town takes the opposite position
and says no, the counterclaim is related to the
main action even though it's not wholly a
counterclaim at all, and I'm frankly surprised
that no one else seized on that issue that it
wasn't actually in whole a counterclaim.· But
be that as it may, I didn't get a hold of this
until the agreed order was entered that severed
the case.
· · ·Now, I don't think in these circumstances
when we're dealing with attorney's fees that
time expended by a lawyer in order to protect,
defend or otherwise prosecute a case on behalf
of their respective clients that -- if I did
say this already, I apologize -- that we don't
play the result.
· · ·MS. O'CONNOR:· I don't know what you mean.
· · ·THE COURT:· What I mean by that is what I
think you're saying is, Judge, the matter was
eventually severed, so that's really the proof,
the proof is in the pudding there that
essentially they came -- somebody came to their
senses to say that these were separate actions;
in fact, given separate case numbers and the
Court entered an agreed order.· Me.· What
happened in front of Judge Blanc, I don't know,
only I can see from the docket.· But it doesn't
change the fact that the defendant Town was
taking a position that they needed to deal with
and they needed to expend money on and time on,
you see?
· · ·MS. O'CONNOR:· But there's no fee
entitlement on that claim.
· · ·THE COURT:· Well, but there's still the
intertwining of it up until the time it was
severed in my view.· It could have been made a
lot different and the intertwining wouldn't
have taken place if, one, the Town had probably
made the better decision and filed a separate
action at the inception instead of naming it
incorrectly wholly as a counterclaim.· As I
understand it, it was not named as a
counterclaim/third party complaint and how
anybody missed that, I'm still in a little bit
of shock, but that's okay.
· · ·So that could have been done at the
inception but that wasn't the position that was
taken by the Town.· The Town decided to prolong
the situation even though -- and I know it
sounds a bit inapposite and it's a difficult
proposition to probably wrap your hands around,
but now that I'm understanding the situation
better as we continue to explore, you file
the -- this counterclaim.· You take a position
different from the counter defendants and in
particular here, O'Boyle, who's all I'm worried
about right now, they take the position that it
really isn't related.· Successfully you defend
that position by saying that it is.
· · ·MS. O'CONNOR:· Right, but that doesn't
mean -- the way you're looking at it and you're
recognizing that they're not related --
· · ·THE COURT:· You're saying there's a
difference between inextricably intertwined and
related?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· Let me change it then and say
that --
· · ·MS. O'CONNOR:· It's a counterclaim.· It
should stay here.· It should not be severed.
It arises out of similar facts.· That doesn't
mean it's inextricably intertwined for purposes
of fees.· If that were the rule, then any time
in any case that you had a counterclaim that
never got severed, you would be awarding fees
as inextricably intertwined.· We know that's
not right.
· · ·THE COURT:· Respectfully though I take a
different approach from a time expenditure
perspective, is what I'm looking at here.· From
an attorney time expenditure perspective that
I'm looking at here, at the time the
counterclaim was filed, as far as I'm
concerned, it's a necessity, an absolute
necessity that within the 4474 case, counsel
needs to review that counterclaim and, again,
throughout I would prefer if I was writing the
transcript that counterclaim be put in quotes.
Again, forgive me for my persistence here but
it just again is a little bit confusing to me
why nothing was done in that regard before.
And maybe there was.· I don't know.
· · ·But getting back to the point, it's a
necessity.· Counsel has to review it.· It's a
counterclaim brought in the same case.· You
have to review it for a myriad of reasons.
One, is there a relationship to even have it in
the case.· Two, is it compulsory, is it
permissible.· Three, are there causes of action
that do in fact relate to the case in chief and
how do I go about as counsel or how do we go
about as multiple counsel dealing with this
counterclaim relating to 4474.· I think you
have to capture these moments in time and,
again, not play the result.
· · ·MS. O'CONNOR:· Okay.
· · ·THE COURT:· Meaning when you look at these
moments in time and you take snapshots of these
different time periods when it comes to
attorney expenditure of time, that's where it
becomes important to consider as opposed to
what happened at the end when it was finally
severed.
· · ·Now, Ms. James, I think to her credit, is
saying I don't believe we are entitled to fees
after the severance of the case.· I think that
makes sense.· But, again, unless I can be
convinced otherwise, I have a real dilemma in
terms of not awarding fees for essentially what
is in essence the same argument that you're
making to deny Ms. James' fees and that is that
there is a judicial estoppel, that there is a
change of material position in terms of a
critical issue in the case.· The same thing
applies and that is the persistence and
insistence of the defendant at these captured
moments in time to leave the Court, then Judge
Blanc, with the impression that you guys are
right, that there must be some relationship
here between the counterclaim and the main
action that would not cause him to sever the
counterclaim from the main action.
· · ·You, meaning the Town, were the
protagonist in insisting that in fact there was
that relationship.· Now, we can call it
whatever we want, relationship, inextricably
intertwined, but what I'm trying to suggest
based upon my review of these rather unique set
of facts is that as long as the Town persisted
that there was this relationship, the plaintiff
was in my view appropriately considering
dealing with working toward, and I'm talking
now more so about counsel, in trying to
extricate that awkward counterclaim, awkward
only from the sense that I don't think it was
appropriately termed, from her claim that was
brought on behalf of Mr. O'Boyle for this
discrete incident that happened at Gulf Stream
with the police department, but that work was
necessitated by the insistence on the Town that
there was this relationship and, again, we can
look at it down the road when it was ultimately
severed and a concession from somebody was made
but that concession apparently came from you
guys.
· · ·MS. O'CONNOR:· May I, Your Honor? A
couple of things.
· · ·THE COURT:· Of course.
· · ·MS. O'CONNOR:· First, the Town lost and it
was severed.· But even if -- let's forget the
fact that --
· · ·THE COURT:· Well, the Town didn't lose.
You entered into an agreed order.
· · ·MS. O'CONNOR:· Sure.· The fact that any
time a counterclaim, whether permissive or
compulsory, is filed in any case, the plaintiff
has to do work.· That doesn't mean that it's
inextricably intertwined for purposes of fees.
How do we know?· The Fourth District Court of
Appeals in Effective Teleservices said you have
a fraudulent inducement counterclaim.· The
plaintiff sued for breach of contract.· There
was a prevailing party provision in the breach
of contract.· Plaintiff won.· Plaintiff gets
fees.· Does plaintiff also get fees for
defending the fraudulent inducement claim that
went the whole time?· No, they don't.
· · ·THE COURT:· I don't know if it's
rhetorical or if you're asking, but my response
was is that that's exactly the point I'm making
when I say that these are very unique facts.
And, again, what I'm trying to make clear is
within the 4474 case, but for the town's
insistence in, one, bringing this counterclaim
in this case, it really shouldn't have been
there in the first place.· I think I got a
concession as to that.· And then, two,
insisting through two motions in front of Judge
Blanc that it should be, that but for that
insistence, that persistence that continued
work that was necessitated under 4474,
Ms. James was unable to extricate her client
from that counterclaim within 4474 until that
severance order was agreed to by the Town
several months, perhaps a year later.
· · ·MS. O'CONNOR:· That's not true.· She got
summary judgment before it was severed.
· · ·THE COURT:· Summary judgment on...?
· · ·MS. O'CONNOR:· The counterclaim.
· · ·THE COURT:· The counterclaim.
· · ·MS. O'CONNOR:· Yes.
· · ·THE COURT:· Then why did it need to be
severed?
· · ·MS. O'CONNOR:· She wanted it severed
because she didn't want inconsistent results.
She wanted -- my understanding is she wanted to
get a final judgment sooner rather than later
because their whole concern was that the
counterclaim, the decision that Judge Oftedal
made in their favor on the counterclaim could
be res judicata of other -- the federal RICO
case with other cases, not with the public
records case.· And I go back to the fact that
what you're basically saying is any time I file
a counterclaim on behalf of a defendant that
causes the plaintiff to do work in defense,
they're going to get fees if they win on an
affirmative claim that has a right to fees and
that's --
· · ·THE COURT:· That's not the point I'm
making at all.· I'm saying that under this
unique set of facts which I have not come in
contact with before, that when an awkward
counterclaim is brought under a case that it
probably shouldn't have been brought in the
first place, there is, number one, an absolute
necessity to properly evaluate that
counterclaim, its legal sufficiency, its
procedural sufficiency, its relationship to the
main action as just three of a myriad of
reasons why that would be necessitated
initially.· Within that same case, that
evaluation has to be done or else a lawyer in
my respectful view would be committing
malpractice.
· · ·Now, it has a reasonable relationship to
4474, the case that we're dealing with, because
you created that requirement that it be
properly evaluated within 4474.· The Town
created that requirement because it chose to
file by way of its own admission, either
perhaps shouldn't have been done that way or it
was not appropriately termed, but it was done
and that requires time expenditure.· That's the
first snapshot that I spoke about earlier.· So
that's the first snapshot.
· · ·Then when Ms. James tries to take a
position to sever that counterclaim because of
its lack of relationship, the Town takes the
opposite position and says no, it is related.
· · ·MS. O'CONNOR:· But that doesn't mean it's
inextricably intertwined.
· · ·THE COURT:· Well, that's where we may
disagree because the term inextricably
intertwined is tough to necessarily define and
I think the appellate courts have had some
difficulty in defining what exactly that means,
but if I look at it as a 35-year practitioner,
nearly 17 years as a trial lawyer and the
balance for the most part being here in the
civil circuit division, I look at it as what is
necessary under 4474 to properly defend my
client's interests in that particular case and
up to when did that time period end.· Because
she had a duty to respond to 4474 based upon
the town's insistence that this was in fact a
related matter to the main action and, again,
the work that's done in my view is inextricably
intertwined because of the Town's insistence
that it was and that she had the duty and
obligation to, despite the Town's persistence
that ended up being at least conceded by the
Town not to be the case by way of an agreed
order, that was done whenever it was done but
later, after the expenditure of time was
necessary in order to try to extricate this
counterclaim from the main action, but it was
the Town's continued pushing of this position
that caused that work to have to be done in
4474.
· · ·Once the matter was severed, then I
believe Ms. James is eminently correct she's no
longer entitled to fees and essentially that
was the conclusion I had even before we had
this discussion, but it still was -- from my
review, I was thinking to myself, well, wait a
minute, the Town obviously is taking a position
against the severance that was moved for by
O'Boyle twice in front of Judge Blanc, then
ultimately entered into an agreed order the
third time with the Town's concession to sever,
but that doesn't eradicate, that doesn't change
the fact that within 4474 she needed to expend
that time in order to do what she did.
· · ·It could have been all taken care of.
There wouldn't be any need to expend that time
in this critical aspect of the case had the
Town, one, done what I would have thought to be
the appropriate method and that is to either
continue to prosecute the federal claim which
is essentially the same thing and not bring a
separate counterclaim in the state court but it
chose to do so, or, two, if they chose to bring
a state action, bring it separately as an
appropriate separate case because it not only
named O'Boyle but it named O'Hare and all these
affiliated companies according to what you told
me.
· · ·MS. O'CONNOR:· So if it had been severed
early, they still would have had to do all the
same work and they wouldn't ever have been
compensable because there is no fee entitlement
on a counterclaim.
· · ·THE COURT:· That's where we disagree,
because what I'm saying is it is an attorney's
absolute obligation that upon receipt of that
counterclaim under 4474 to review that
counterclaim, to make sure that it meets and
passes legal muster, procedural muster, proceed
to then at least at the very inception, devise
a strategy in conjunction with counsel's client
or respective clients involved and then if at
that time she calls you up and says, Ms.
O'Connor, this is a separate and entirely
different matter, this should be filed as a
separate action, it has no place here or at the
very least, it should be severed.
· · ·You know what?· If that's the case and you
say, Ms. James, you're right, what I'm going to
do is file a voluntary dismissal of the
counterclaim or I'm going to ask the Court to
construe it as a counterclaim/third party
complaint and immediately ask for severance,
the time would have stopped then.· But again,
keep in mind, it was the insistence on the Town
to file it in the first place which thus
necessitated the work and perhaps more work
than I have already enunciated because things
have changed now.· There's computer stuff and
all kind of things that you've got to do.· But
that's when the triggering mechanism started
for work to be done inextricably intertwined in
my view with 4474, once you chose or the Town
chose through counsel to file that awkward
counterclaim and it's not on every occasion. I
don't want to be misquoted or misconstrued that
I'm suggesting that every time a counterclaim
is filed that it immediately triggers an
attorney's fee claim because there's some
inextricable intertwinement.
· · ·Again, in an initial snapshot that I have
spoken about where there's a choice to be made
in a situation like this where it's clearly at
best permissive and at worse not really called
for at all because it has no relationship, and
I agree with that, that should have been the
Town's position from the inception but that was
not the decision the Town made.· The Town made
a different decision.· The Town decided to
become involved in this case in a significant
and heavy-handed fashion and decided to bust
out the heavy ammunition and bring in a very,
very serious counterclaim with some very
serious allegations which included
quasi-criminal conduct as I understand it,
right, RICO violations?
· · ·MS. O'CONNOR:· There's no RICO violations
in this lawsuit.· This is a lawsuit for
declaratory and injunctive relief.
· · ·THE COURT:· What else?
· · ·MS. O'CONNOR:· That's all.· All we asked
for --
· · ·THE COURT:· Was that when you were
comparing the federal claim?
· · ·MS. O'CONNOR:· Correct.
· · ·THE COURT:· The federal claim involves a
RICO claim.
· · ·MS. O'CONNOR:· All we asked for in this
case was guidance from the Court and a
declaration how this tiny Town of Gulf Stream
should deal with this barrage of public records
requests made over a number of years.
· · ·And just to conclude because I see where
you may be going, but with one last ditch
effort, you have said repeatedly, Your Honor,
that at best this counterclaim was permissive,
that it was awkward, it probably should not
have even been brought in this case in the
first place, so with all due respect, to the
extent you're going to let her have fees in
defending this counterclaim, it's not because
as a matter of law it's inextricably
intertwined because what you said multiple
times on the record is it's not, it should have
never been in this case, it's not even a
permissive counterclaim and it strikes me as
punitive.
· · ·THE COURT:· But the Town didn't relent
until their third effort to do it.
· · ·MS. O'CONNOR:· It doesn't matter.
· · ·THE COURT:· Then the Town relented to an
agreed order.· I think it does matter and so,
again, so I'm not misquoted or misconstrued,
what I'm saying is, and understand where I'm
going with this, the substantive defense of the
counterclaim I'm really not talking about.
What I'm talking about essentially is the
procedural defense of the counterclaim.· And
the fact that the Town chose to bring this
awkward counterclaim, third party complaint in
this case necessitated an evaluation of the
matter and had the Town come to its senses
after the first motion was filed, then that
would have stopped the fees.· If the Town would
have come to its senses after the second motion
was filed, then that would have stopped the
fees.· But the Town didn't come to its senses,
so to speak, and I don't mean this
pejoratively, I'm just trying to make a point,
until a third effort was made and finally an
agreed order was sent conceding to the
severance on the part of the Town.· That
procedural defense was inextricably intertwined
with 4474.· She had to -- and Ms. James, I
apologize for not referring to you by name --
Ms. James had to do what she needed to do to
make sure that the Town did not proceed in a
way that was procedurally inappropriate by
essentially concession and she needed to expend
that time in order to finally get the Town
agree to sever the case.
· · ·Now, I can't say what Judge Blanc's
thinking was back when he entered those two
orders denying without prejudice the
plaintiff's/counter defendant's motion to
sever.· I can say without equivocation based
upon your concession today that the Town took a
position contrary to the severance during those
periods of time.
· · ·There's no getting away from the fact that
the procedural aspects of this case needed to
be defended, meaning that there was in fact an
absolute necessity that the Court not consider
this umbrella case of declaratory judgment
about this barrage of cases that were brought
by O'Boyle, O'Hare, these affiliated entities
of O'Boyle in that same case and clearly the
Town realized that after three efforts were
made by the plaintiff to get the matter
severed.· She should not go uncompensated by
that and the fact that the Town persisted in
its position procedurally under 4474 to try to
get these cases tried together, if you will, or
at least kept together until there was a
concession made is the point that the Court is
trying to make today, that it's different from
a substantive defense of the counterclaim.
That's not what I'm awarding and if I can
extract substantive defense fees from the
procedural defense fees, I'll be glad to do
that.
· · ·MS. O'CONNOR:· ·What do you mean by -- you
mean our -- just the briefing on the motion to
sever?· I mean, you're essentially saying it's
kind of like a 57.105 that you're awarding
fees?· Again, it feels very punitive.
· · ·THE COURT:· What I'm saying is -- in many
cases there's going to be an attack
procedurally, there's going to be an attack
substantively.· We see that in many cases.
Procedural, for example, a motion to quash
service the process.· There are issues with
the -- that's probably the best example I can
think of that's most common, is a motion to
quash service of process.· So we're dealing
with a procedural issue.· We haven't gotten to
the substance of whether or not there's a cause
of action that's been stated.· We haven't
gotten to whether or not an unjust enrichment
claim can be brought in the same claim as a
contract claim.· We haven't got to the
substance.· My point is the procedural aspects
had to be defended in 4474 for a myriad of
reasons.
· · ·For example, she -- you know, I think the
defendant would better appreciate this than
perhaps the plaintiff in a case like this, but
at the same time, from either sides'
standpoint, there's a cost and fee involved
here, huge.· I mean, the expenditure of fees
for this simple O'Boyle vs. Town of Gulf Stream
case would be far less than this explosion or
the barrage, your word, where these cases were
challenged collectively that Mr. O'Boyle and
Mr. O'Hare and these affiliated companies were
barraging the Town with records requests which
were of little substance and were more to
harass and otherwise create havoc.· That's
different than this singular case brought by
O'Boyle regarding the police communications and
the information that wasn't timely provided to
him.· It really is.· But it doesn't change the
fact that time would have to be expended on the
part of Mr. O'Boyle's counsel to extricate this
barrage counterclaim/thirty party complaint
from the simple O'Boyle vs. Town of Gulf Stream
police communication issue and that she owed
every obligation, Ms. James, to defend that
aspect of the case procedurally in order to
extricate the tiny O'Boyle vs. Gulf Stream from
the barrage umbrella case that was brought by
way of counterclaim awkwardly.
· · ·So let me hear from Ms. James and see
where she is on being able to -- and again,
we're not here on a fee hearing so we are
melding things a little bit and I was trying my
best not to, but let's hear what you have to
say on what I have now concluded in my view
based on what I've heard and seen whether or
not you agree that you can -- and I don't know
how much substantive work you did on the
counterclaim up to the time of the severance,
but I think that there can be a reasonable
argument to be made that the time that you'd be
entitled to up to severance as it relates to
this counterclaim would be on the procedural
issues of severance.· Your thoughts?
· · ·MS. JAMES:· My thought, Your Honor, is
that Ms. O'Connor neglected to mention to the
Court that in addition to the counterclaim that
the Town brought in February of 2015, they
asserted affirmative defenses to the Public
Records Act complaint.· Those affirmative
defenses were unclean hands, equitable
estoppel, unlicensed practice of law and
compliance with the Florida Sunshine Act.· The
affirmative defense of unlicensed practice of
law ultimately was dropped, but from the time
the Town amended its answer to deny that it had
violated the act for the first time, they
hadn't denied it before, but from the time that
it amended its answer, asserted those
affirmative defenses and asserted the
counterclaim in February of 2015, I not only
had to procedurally defend the counterclaim, I
had to substantively defend it because, Your
Honor, it was based upon the exact same facts
as the affirmative defenses.
· · ·So in order to get Mr. O'Boyle to be able
to prevail on his complaint under the Public
Records Act, I had to defeat those affirmative
defenses and those affirmative defenses were
inextricably intertwined with the counterclaim
and I want to -- and I'm not making that up. I
mean, you know me better than that.· So two
things I want the Court to know.· One is
January 13, 2015 in the Town's motion for leave
to file an amended answer, to file affirmative
defenses and to file a counterclaim, it said
that the counterclaim is compulsory in nature
and discovery recently obtained disclosed the
justification for a counterclaim and at the
hearing, it convinced Judge Blanc that the
counterclaim was intertwined with the complaint
because Judge Blanc said in his order of
February 23, 2015, quote, The proposed
affirmative defenses and counterclaim raised by
defendant alleged not simply malicious motives
and public harm, but a pattern of fraudulent
conduct intending to make it impossible to
comply with Florida Statute 119 through timely
production, thereby mandating plaintiff's
entitlement to fees.· The affirmative defenses
and counterclaim addressed not solely the
defendant's intent but the reasonableness of
the process by which the plaintiff makes his
public records request.· In this instance, all
records have been produced and affirmative
defenses have been raised regarding the process
by which the plaintiff makes his public records
request.· The Court will be unable to resolve
the remaining issues pursuant to the statute
until the parties have completed their
discovery on the claims and affirmative
defenses.· The counterclaim in many respects
addresses the same factual issues as the
affirmative defenses.
· · ·THE COURT:· You're reading from --
· · ·MS. JAMES:· I'm reading from Judge Blanc's
February 23, 2015 order.· So from that day
until the day I got summary judgment on the
counterclaim which was November 4 of 2015, I
had to substantively and procedurally defend
that counterclaim in order for my client to
have any chance of prevailing under the act
because their third affirmative defense in
compliance with the Florida Sunshine said that
the conduct we complained about in the
counterclaim was so egregious and created such
an undue burden that our -- the Town's response
to the public records request of Mr. O'Boyle
was reasonable under the circumstances and the
Court -- one more thing -- and the Court had
to, in your final judgment on the complaint
after the nonjury hearing in September 2016,
you had to make a finding that no conduct of
Mr. O'Boyle caused the Town to violate the act.
So they caused this mishegoss.
· · ·I don't know how to spell that, I'm sorry,
madam.· This mess.
· · ·THE COURT:· You're saying they caused this
confrontation.
· · ·MS. JAMES:· There you go.· They caused
this confrontation and it was all intertwined.
Now, to the extent -- and, you know, I'm an
officer of the Court.· To the extent that I can
go through my time records, I can isolate
something that had -- that I know was not
related, was not intertwined with either the
affirmative defense or the prosecution of the
complaint or my ability to position Mr. O'Boyle
to win his complaint, I'm going to strike it
out voluntarily.· I mean, I'm not going to put
the Court or the Town through, you know, having
to go through item by item and question whether
a time entry legitimately was inextricably
intertwined with Mr. O'Boyles' complaint, but
under the Effective Teleservices case that Ms.
O'Connor quoted to you several times, there's
more in that case that the Court should hear.
The Fourth D.C.A. attempted to define
inextricably intertwined on Page 339 which it's
in your binder, sir, in Section 18.
· · ·THE COURT:· Thank you.
· · ·MS. JAMES:· And on the fourth page of that
opinion, the Town has highlighted in blue the
section that Ms. O'Connor read about cases
coming out of the common core of operative
facts and facts being inextricably intertwined.
On the next page which is Page 5 of the
opinion, but Page 339 of -- it's 132 So.3d at
339, the Court says:· That claims are
inextricably intertwined when a determination
of issues in one action would necessarily be
dispositive of the issues raised in the other
and, conversely, claims are separate and
distinct when they can support an independent
action and are not simply alternative theories
of liability for the same wrong.
· · ·On Page 340, it's not highlighted but it's
in the second column, the paragraph that
begins, Subsequent to Centext Rooney; however,
we decided Current Voters of Florida, Inc. vs.
First Sealord Surety, Inc.· There we held that
where a party is entitled to fees for only some
of the claims, the trial court must evaluate
the relationship between the claims and where
the claims involve a common core of facts and
are based on related legal theories, a full fee
may be awarded.
· · ·So I will do my best to, you know, isolate
any instances where I, in good faith, can't say
there was a relationship or inextricably
intertwining, but certainly this is not -- you
cannot on summary judgment obviously make that
kind of determination.· I just wanted the Court
to be aware of the existence of that
affirmative defense because I think it
influences some of what the court said with
with regard to substance.
· · ·THE COURT:· Versus procedure.
· · ·MS. JAMES:· Versus procedure, and I also
want the Court to be mindful of the fact that
the Fourth D.C.A. has awarded appellate fees
for the entire consolidated appeal without
regard to whether it was for the complaint or
the counterclaim so that this Court's ruling on
the town's motion for partial summary judgment
would not affect the appellate fee award. I
believe that it's clear for the Court's order
that this Court -- sorry -- I believe it's
clear from the Fourth D.C.A.'s order that with
regard to the appellate fees, your only
responsibility is to determine the
reasonableness of the fees.
· · ·THE COURT:· Thank you.
· · ·MS. JAMES:· Thank you.
· · ·THE COURT:· Ms. O'Connor, did you want to
add anything further?
· · ·MS. O'CONNOR:· I just want to correct one
misstatement that Ms. James continues to make
about the records.· She referenced the third
affirmative defense and suggested that it was
still pending at the time this Court heard the
public records trial.· That is incorrect.· It
was dismissed on May 13th, 2015.· That was six
months before summary judgment was entered on
the counterclaim and 16 months before trial.
There were no affirmative defenses at the time
of the public records trial.
· · ·MS. JAMES:· Judge Oftedal's order --
you're thinking of the UPL claim.
· · ·MS. O'CONNOR:· I am not.· I'm sorry.· The
affirmative defense about compliance with the
Sunshine Law, Judge Oftedal did rule on the
unclean hands and estoppel defenses.· We have
no issue with them potentially proving up a
right to fees on the affirmative defenses.· But
again, I just reiterate the facts that a
counterclaim, even if it were a permissive
counterclaim which this Court has said multiple
times on the record today you don't think it
even was permissive.
· · ·THE COURT:· Well, it may have been at best
permissive is what I think I said.
· · ·MS. O'CONNOR:· Well, permissive
counterclaims need have no relationship to the
underlying action and, again, I have half a
dozen cases from the Fourth D.C.A. where a
counterclaim goes the entire length of a trial
and certainly procedural motions, substantive
motions are going to have to be directed to
that counterclaim by a plaintiff, yet the
Fourth D.C.A. is still saying it's not
inextricably intertwined because it doesn't
rise or fall together.· It would have been
different if we had filed a declaratory
judgment action and said, Judge, please tell us
whether we actually lawfully complied when we
responded to the public records request.
That's the subject of their affirmative claim.
Those would likely be inextricably intertwined.
This is not and I don't think you have
jurisdiction to order fees pre or post
severance.· The Court made a ruling when it
severed the cases.· The standard for severance
is the same as the standard for fees that
became part of the final judgment and this
Court would effectively be trying to post
judgment modify that.
· · ·MS. JAMES:· I just want to say, Your
Honor, with regard to the alleged misstatement,
I am reading Judge Oftedal's order on summary
judgment and on the very last page he says:
Plaintiff O'Boyle's motion for summary judgment
against the Town of Gulf Stream as to the first
and second affirmative defenses is granted.
The motion for summary judgment as to the
Town's third affirmative defense is denied and
that was the --
· · ·MS. O'CONNOR:· That was a mistake.· He
didn't need to say that because it had already
been dismissed.
· · ·MS. JAMES:· I'm just saying that it was
there -- is denied and that is why --
· · ·THE COURT:· That is the historical
chronological context.
· · ·MS. JAMES:· Right.· And that is why at the
trial in September of 2016, I put on proof that
the Town was able to comply with its
responsibilities under Chapter 119 without
regard to any conduct of Mr. O'Boyle.· So
continually through September of 2016, I was
defending against the Town's allegations and
its affirmative defenses and its counterclaim
that there was some conduct of Mr. O'Boyle that
had interfered with the Town's ability to
comply with the act.· Thank you for your time,
sir.
· · ·THE COURT:· Thank you both for your oral
and written presentations.· I appreciate them
very much.· In going through these cases, and
I've gone through them before on many
occasions, sometimes I'll be right, sometimes
I'll be wrong.· I really don't want to say this
but I'll say it.· There's one case that I still
feel I was right on, and I think Jones Foster
represented the party that ultimately lost,
that dealt with prevailing party attorney's
fees where I declared a tie and, as you know, I
think it's either gross abuse of discretion --
Mr. Houser may be able to help me on this -- or
just an abuse of discretion, but I thought I
read recently on gross abuse of discretion on
the trial court's award of attorney's fees and
they found an abuse of discretion.· And
because -- even though conceding the fact that
I had found that there was no challenge to the
substantive findings, that I had found that
both parties prevailed on significant issues.
The reason I declared a tie, even though a
relatively modest financial amount was
recovered by one party, the other party had won
on numerous other issues and that's why I felt
a tie was appropriate.· And, as I said, that
was one case that I can remember that stands
out that I took issue with that I was reversed
on because I still feel to this day it was
not -- perhaps if it was not correct, I still
contend it was not an abuse of discretion,
certainly not a gross abuse of discretion when
a concession was made that both parties won
significant issues.· But anyway, we'll move on
from there.· As I said, sometimes I'm right,
sometimes I'm wrong.
· · ·Here, and the only reason that I brought
in my experience in this area of the law is
because I think it's important and it's not due
to arrogance or trying to tell you that I know
everything about everything because I clearly
don't, but experience teaches us that we don't
always have the answers from legal precedent
from the case law that's cited because trying
to fit a square hole as big as this one or --
strike that -- a square peg as big as this one
into a tiny little round hole and using case
law to support our respective positions under
these set of unique facts or this set of unique
facts is really a difficult proposition.· And
in my leafing through these cases and going
through in particular the highlighted
provisions that were provided to me by the
Town, I couldn't find anything that really fit
in this particular category.· Though the
language that's used in the Effective
Teleservices case that's already been cited by
both sides and that being, quote, claims are
inextricably intertwined when a determination
of issues in one action would necessarily be
dispositive of the issues raised in the other,
end quote, brings to mind at least the
analogous situation that I'm dealing with here
in this unique set of facts.
· · ·Why do I say that.· Well, the procedural
posture that I've outlined in depth already was
such that required Mr. O'Boyle's counsel to
vigorously defend and protect the severance of
this case, that being the counterclaim or
whatever else you want to call it, from the
simple main action relative to the public
records request in the discrete period of time,
I think it was in the spring of 2014, that
related specifically to that public records
request with the police department.· And as I
said, if it was a telephone call, there had to
be a motion made which there was to sever the
case, the Town didn't pick up on it.· The Town
didn't do it.· The Town continued to· take --
and, again, and I don't mean this
disrespectfully, but I think it can be fairly
stated and I said it earlier, a heavy-handed
approach to this simple public records request
and that is to combat this barrage, and I
understand the Town's frustration with
Mr. O'Boyle and Mr. O'Hare and the affiliated
companies and I respect that, as I do the law
and the fact that citizens have a right to
request reasonable records from their
government.· Someone mentioned, I think,
Sunshine laws, government and Sunshine and the
theory that has long been espoused in the State
of Florida that governments work in as openly a
manner as possible so that the public is well
informed and well advised of government actions
and I certainly agree with that premise.
· · ·But when we talk about that language, and
while I understand that it wasn't used and is
most often used where there is a valid ability
to be able to compare and contrast this
analysis of inextricable intertwined, there is
somewhat of an analogy that can be drawn,
somewhat of a parallel that can be drawn with
that language to what transpired here.
· · ·As I was saying, the fact that this
counterclaim was brought, had to be defended,
had to be looked at, had to be reviewed, and
defended was a poor choice of words that I used
right there.· It had to be looked at, it had to
be evaluated.· It had to be dealt with in the
manner that I've already discussed and, again,
a myriad of other ways and, as such, as I said,
it could have either been a phone call, the
first motion, Town, you brought this
counterclaim, slash, third party action, it's
inappropriate for this case, let's sever it
out, let's get rid of it, bring it in a
separate action, do what you think is best but
there's no reason it should be here.· The Town
says no.
· · ·The first motion they challenge and
Ms. James read some of the language of the
challenge.· The second motion is made to sever.
The Town says no on both occasions.· Judge
Blanc decided to grant -- strike that -- to
deny the motions without prejudice so he
continued to leave the door open to consider.
I was not privy to those arguments but I was
privy at least to the docket.
· · ·Finally after some period of time, the
Town relented and an agreed order was executed
by me to sever the case.· And, again, forgive
me for not knowing but there was a separate
number given to the severed case.· So it was in
my view a clear concession, slash, recognition
of the fact that this counterclaim, slash,
third party complaint was separate and apart,
distinguished from the simple records request
case brought by O'Boyle vs. Town of Gulf
Stream.
· · ·That doesn't change the fact of this, what
I perceive to be an inextricably intertwined
relationship between 4474 and the counterclaim
that necessitated attorney time and thus money
to convince the Town and ultimately, by way of
agreed order, the Court that this was not
procedurally appropriate, it did not belong
with the 4474 case, and that time is in my view
inextricably intertwined with 4474.· The
procedural aspect of 4474 had to be
accomplished through 4474 in order to obtain
severance.· There is no denying that and that
is the inextricable intertwining that this
Court finds under these peculiar facts.
· · ·But for the Town bringing of this, for
lack of a better term, awkward counterclaim and
but for the town's insistence in this rather
heavy-handed motion that was an umbrella to
combat the barrage, Ms. O'Connor's original
term, of requests that were being made by
O'Boyle, by O'Hare, by other affiliated
companies, and the fact that the Town chose
this case to bring that counterclaim
necessitated unquestionably the review of that
counterclaim, the initial activity that
surrounded the counterclaim in terms of the
procedural aspects and ultimately up to the
time procedurally to sever.
· · ·It is my order that Ms. James review her
time sheets and her time records and extricate
and separate, extricate first any time that was
spent in the substantive defense of the
counterclaim because under no theory of law in
my view would that be properly compensable by
the Town, but at the same time, be able to bill
and recover -- at least at this point bill,
I'll determine recovery at a later time because
it's still subject to a reasonableness analysis
-- but conceptually I am going to allow, based
on the concept of inextricably intertwined, the
work that was necessitated procedurally in
ultimately successfully obtaining the
severance.· I repeat, but for the fact that the
Town chose to bring this case in 4474, these
fees would never have been incurred by the
plaintiff/counter-defendant O'Boyle.
· · ·Also to the extent possible, only those
fees that would be tied to O'Boyle, meaning if
there were conferences relative to the
procedural aspects, I'll consider that, but any
conferences, for example, with Mr. O'Hare or
any of the O'Hare affiliated entities if the
same exists wouldn't apply.
· · ·So the motion is granted to the extent
that Ms. James has conceded that she will not
seek fees post severance.· The motion is
further granted in part to the extent that the
Court is limiting a recovery of fees to only
the procedural nature and work that was done
relative to the counterclaim, as we've called
it, filed in this case, 4474.· So it's denied
in that respect but granted to the extent that
the Court will not consider any substantive
defense work on the counterclaim as it would
not be recoverable under any theory of Florida
law that this Court is aware of.
· · ·MS. JAMES:· So, Your Honor, with regard to
the last thing you just said, if I can show
that work that I substantively did on the
counterclaim was related to the affirmative
defenses, may I present that?
· · ·THE COURT:· You can present it, but my
thinking is that it's not going to be
awardable.· The only thing that really is
awardable here was the necessary work that was
done by virtue of the Town's decision to bring
the counterclaim in this particular simple
records custodian case.· And let's face it, the
proof is in the pudding.· I've got PCA on both
the appeal and cross appeal.· It had to be
simple.
· · ·MS. JAMES:· Either that or I'm a really
good appellate advocate.
· · ·THE COURT:· Either one.· But the point I'm
making is that I've carefully considered the
issues here.· I've used my experience in
understanding to the best of my ability the
respective positions of the parties here and,
again, capturing in time, which is really the
most important part of the decision, is the
Court's attempt to the best of its ability to
capture in time the events that transpired and
not judge the case on the result but on the
fact of the work necessitated by the Town's
conduct here and the fact that it was
inextricably intertwined with 4474 because,
quite simply, the Town chose it to be.
· · ·Have a very pleasant rest of the week and
weekend.· I thank you again for the
presentations.· I'm sorry for the confusion but
again, this isn't meant as an excuse, but for
the volume of reading that I had this morning
and this last afternoon, a lot of this stuff
will meld together and the truth is, and I hope
I speak for the vast majority of my colleagues
here, we really don't care who wins or loses.
We really care about the process.
· · ·I remember Judge Rudnick who I was a real
fan of and I presume Ms. James remembers, but I
think Judge Rudnick was a really good example
of that, the now late Judge Rudnick.· We would
come in and we'd be in chambers and he would be
sitting five feet from us when we used to have
the hearings in the old courthouse and he would
totally furr his brow.· His brow would actually
be red because he had been pushing his thumb
and forefinger into his brow.· And you could
finish with the greatest 20-minute argument
you've ever given in your life, and we used to
laugh about it sometimes and I knew his widow
as well, she was a member of the Hurricane Club
for a while and I used to tell her this story
after his passing -- and he'd turn to us and
say, all right, now, who do you represent?
· · ·MS. JAMES:· I remember that.
· · ·THE COURT:· And I say this on the record
only to suggest that as a younger lawyer, I
must have thought, oh, my goodness, wasn't he
paying attention?· Well, he was paying too much
attention, as I think back.· The reason why I
say that is it really didn't matter to him who
each side was representing.· What mattered to
him was the process and hopefully to his best
ability of getting the matter right.
· · ·So I appreciate your indulgence in
listening to the story and again, I wish you
the best.· Have a good rest of the week and
weekend and we'll be in recess.
· · ·MS. JAMES:· Thank you.
· · ·MS. O'CONNOR:· Thank you, Your Honor.
· · ·(The hearing was concluded.)
STATE OF FLORIDA
COUNTY OF PALM BEACH
· · ·I, DEBORAH MEEK, Registered Professional
Reporter, Florida Registered Reporter, certify that
I was authorized to and did stenographically report
the foregoing proceedings and that such
transcription, Pages 1 through 74, is a true and
accurate record of my stenographic notes.
· · ·I further certify that I am not a relative,
employee, attorney, or counsel of any of the
parties, nor am I a relative or employee of such
attorney or counsel, nor am I financially
interested, directly or indirectly, in the action.
· · ·This certification does not apply to any
reproduction of the same by any means unless under
the direct control and/or direction of the reporter.
· · ·Dated this 20th day of October, 2019.
· · · · · _______________________________
· · · · · DEBORAH MEEK, RPR, CRR, FPR