Litigation Update: Palmetto Bay continues fight against Palmer Trinity School over attorney’s fees

This is a story that begs the question whether Shelley Stanczyk and Brian Pariser overplayed their hand (using our tax dollars) by failing to seize the opportunity to settle this issue once and for all when Palmetto Bay was briefly in a position of strength.  There was a missed window. The oral argument did not seem to go well for Palmer.  Update on the Palmer Trinity Litigation – Oral Argument held June 12. I opined at the time that "If I were a betting man, I would say that Palmetto Bay prevails in the 3rd DCA action.  This was judging from the questions / comments from the 3 member appellate panel."  However, Just like an obsessive gambler who doesn’t know when to stop, when he wants to keep doubling down, because he is convinced that the next roll will reverse the recent bad fortune and be the winning roll, the played out to the end, and busted.  It got worse. The Third District Court of Appeal ordered Palmetto Bay to pay Palmer Trinity’s legal fees accrued during the village’s losing battle to keep the school from expanding.  See Update on the Palmer Trinity Litigation – Palmer prevails on its motion for attorney’s fees and costs against Palmetto Bay.  Friday the 13th indeed.

Now Howard Cohen of the Miami Herald reports that Palmetto Bay is going back to the Third District Court to try to fend off the attorney fee award.  See: Palmetto Bay fights Palmer Trinity School over attorney’s fees.  This motion appears to be a confession of “mea maxima culpa” and where the village promises to behave in the future if the court backs off the award of attorney’s fees to Palmer.  This pleading is NOT posted on the village website under its litigation tab.  It could easily be posted there and should be posted there.  There is significant background contained that would assist village residents to gain an increased understanding of what this case has become.

Palmetto Bay makes an important admission in the motion, that it now accepts the Appeal’s Court decision that Palmetto Bay is not entitled to the extraordinary relief that the certiorari petition it filed represents. The motion argues that ‘It is quite another, however, to imply, by awarding attorney’s fees to the opposing party, the (Palmetto Bay’s) position was “so devoid of merit on the fact of the record that there is little prospect it will ever succeed.”’

In essence, Palmetto Bay Council is saying it is really, really, sorry, and did not mean to push the court so far to where the appellate court determined that awarding fees and costs was the only way to make Palmetto Bay comply with the numerous prior decisions of the previous courts. 

The Council should have gone further to say that the award of fee is not hurting the council as it is not their money, but that the court was only hurting the taxpayers who may then retaliate by returning the hurt on the elected officials at the ballot box at reelection time.

What do I think?

Many have asked what I think.  I would think that the Village will have a very hard time overcoming the award of attorney’s fees and costs given the strength of the court opinion. Third District Court of Appeal was direct and used the language “willful disobedience” in overruling prior actions of this Palmetto Bay council in failing to heed previous judicial instructions.  This is serious stuff.  Senior Judge Alan Schwartz remarked that village’s recent actions were “an exercise in superfluousness and futility.”

What was the legal advice? Was the council advised by $650.00 an hour attorneys that this was a meritorious fight?

I do agree with the filing of the motion, so long as it is filed in good faith, and not as a further delay tactic.  Why should Palmetto Bay taxpayers have to foot the bill for this latest court action?  I am torn however, between the council’s fiduciary duty to protect village money versus the Council majority trying to extend the litigation simply in order to prevent release of the village shade session transcripts prior to the upcoming November election.

People have asked me what I think of the legal advice given in this case. I think the Village received outstanding legal advise. It is up to the Council to take the advise and act appropriately. None of us will know the facts, be able to review the advice, until those transcripts are released.  

It is interesting to add that it would be in the best political interest of any incumbent up for election to hold up release of the transcripts until after the elections.  The less than subtle hints put out there indicate that there will be some quite interesting reading in these transcripts.  I say release the transcripts now.  The litigation is over.  The trial tactics are not relevant to the motion for fees (unless the transcripts indicate that the trial tactics were simply to ‘delay to deny’ or out expense Palmer in an expensive litigation war.)

I agree – it is unfair that the taxpayers of Palmetto Bay are being singled out while the CCOCI agitators go on scot-free. It was not the “taxpayers” who were pursuing the litigation against Palmer.

I do share many of the concerns of residents I have spoken to in that why is Palmetto Bay being singled out to pay the bill, as the Miami Herald has continually reported, A group of residents who banded together as Concerned Citizens of Old Cutler, Inc. to join Palmetto Bay in the fight the school were not ordered by the court to pay Palmer Trinity’s legal fees. Note that the group, commonly referred to as CCOCI was created in large part by current councilmember Joan Lindsay and her husband.  Both have left the board just prior to her election, but she is still a party to remaining lawsuits involving CCOCI, Palmer and Palmetto Bay. 

It will be interesting to see whether any of the council majority have raised questions at any of the attorney client shade sessions to discuss why CCOCI is not assisting by paying its fair share of the court ordered costs and fees.  Will CCOCI be filing anything in support of Palmetto Bay to attempt to extricate itself from the potential of a six figure judgement?  Wouldn’t this be fair?  After all, has not the village council been there supporting CCOCI? It is time to return the loyalty.

Palmer Trinity also has a separate lawsuit against Palmetto Bay, CCOCI and Joan Lindsay, who was the head of Concerned Citizens before she was elected to the council, seeking about $13 million in lost tuition and other costs allegedly created by the village’s actions. That lawsuit is pending.

The litigation issues are far from over.