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Filing # 103820296 E-Filed 02/24/2020 05:39:32 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
CATHERINE CHARLEEN CASE NO.: 2019-CA-014571-O
ZUKOWSKI,
Petitioner,
v.
DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES,
Respondent.
_________________________________/
PETITIONER’S MOTION FOR LEAVE TO RESPOND
REGARDING MOTION FOR ATTORNEY’S FEES AND COSTS
Petitioner Catherine Charleen Zukowski moves this Court to grant her leave
to respond to the Department’s opposition against her motion to tax attorney’s fees
and costs against the Department. See Fla. R. App. P. 9.300 (committee note to 1977
amendment) (suggesting that the court can permit further responses to motions by
“an order of the court entered on the court’s own motion or the motion of a party”).
These are the grounds:
1. After Ms. Zukowski filed the initial motion for attorney’s fees and costs, the
Department responded with a host of procedural and substantive objections to
1
the motion, including its contention that this Court does not even have the
authority to sanction the Department in this case.
2. Ms. Zukowski seeks a fair opportunity to respond to the Department’s
objections so that the Court is not forced to address them without hearing from
both sides.
3. The proposed response is attached to this motion as Exhibit “A.” Ms.
Zukowski asks that the Court consider that to be her response if the Court
grants her motion for leave.
WHEREFORE, Ms. Zukowski respectfully moves this Honorable Court to
grant her leave to file a response on her motion for attorney’s fees and costs, and to
take the attached Exhibit “A” as that response.
2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 24, 2020, I electronically filed the
foregoing with the Clerk of Court and served a true and correct copy via the Florida
Courts E-Filing Portal to the Office of General Counsel, Department of Highway
Safety and Motor Vehicles, 2900 Apalachee Parkway, A-432, Tallahassee, FL
32399, at MarkMason@flhsmv.gov and RodBruce@flhsmv.gov.
__/s/ Joel N. Leppard ____________
JOEL N. LEPPARD
Florida Bar Number: 86081
LEPPARD LAW PLLC
638 Broadway Ave.
Orlando, FL 32803
Telephone: (407) 476-4111
Fax: (800) 317-8301
Email: Joel@LeppardLaw.com
Attorney for Petitioner
__/s/ Joseph G. Easton ___________
JOSEPH G. EASTON
Florida Bar Number: 0127127
LEPPARD LAW PLLC
638 Broadway Ave.
Orlando, FL 32803
Telephone: (407) 476-4111
Fax: (800) 317-8301
Email: JEaston@LeppardLaw.com
Attorney for Petitioner
3
__/s/ Stephanie M. McEnery________
STEPHANIE M. MCENERY
Florida Bar Number: 1010274
LEPPARD LAW PLLC
638 Broadway Ave.
Orlando, FL 32803
Telephone: (407) 476-4111
Fax: (800) 317-8301
Email: Stephanie@LeppardLaw.com
Attorney for Petitioner
4
EXHIBIT A
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
CATHERINE CHARLEEN CASE NO.: 2019-CA-014571-O
ZUKOWSKI,
Petitioner,
v.
DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES,
Respondent.
_________________________________/
RESPONSE ON MOTION FOR ATTORNEY’S FEES AND COSTS
Ms. Zukowski moved to tax attorney’s fees and costs against the Department,
along with a petition for a writ of certiorari, as sanctions for its bad-faith conduct in
sustaining her driver’s license suspension—but not before submitting a motion for
reconsideration and notice of her intent to file a motion for fees and costs. She had
submitted it to the Department via both the office of the hearing officer, the Bureau
of Administrative Reviews (BAR), and the Department’s appellate office, the Office
of General Counsel (OGC).
In opposing the motion, the Department’s primary argument is that it cannot
be taxed fees and costs after the Florida Supreme Court’s decision in Boca Burger,
Inc. v. Forum, 912 So. 2d 561 (Fla. 2005). Boca Burger essentially held that the
1
district court erred in sanctioning appellate counsel for conduct that occurred in the
trial court, reasoning that that is an issue best left for the trial judge. Id. at 573-74.
This case is materially different in three crucial respects. First, the “trial court”
here is the subject of the motion for fees and costs; the case should not be left to the
hearing officer to determine whether she herself acted in bad faith. That would be
patently absurd.
Second, the Department is both the tribunal below and the respondent in this
case, and the Supreme Court noted that an appellate court can impose sanctions for
the “defense of a patently erroneous order.” Id. at 569. Even if the BAR and OGC
within the Department are somehow considered separate for this purpose, both
“parties” were given fair warning of Ms. Zukowski’s intent to ask for fees and costs
should the Department defends its “patently erroneous order.” Relatedly, the
Supreme Court also noted that “an appellee cannot hide behind the ‘presumption of
correctness’ of an order that the appellee itself procured” to defend against fees, id.
at 571; it follows a fortiori that this presumption applies even less where the appellee
(or respondent) acted in bad faith in creating the order under review.
And third, the Supreme Court reversed the district court for its misapplication
of section 57.105, Florida Statutes. But that statute also says that its provisions are
“supplemental to other sanctions or remedies available under law or under court
rules.” Id. § (6), Fla. Stat. Ms. Zukowski relies on “other sanctions or remedies”
2
aside from that statute—namely, this Court’s power to sanction inequitable conduct
or bad faith—and Boca Burger does not limit that power. See also Patsy v. Patsy,
666 So. 2d 1045 (Fla. 4th DCA 1996) (even though no statute or rule authorized
attorney’s fees as sanctions, they were allowed under the trial court’s inherent
authority to punish a litigant’s bad faith).
The Department’s position is further belied by the courts’ awarding of fees
and costs against the Department even after Boca Burger was decided in 2005—
such as Dejong and Prescott, which were cited in Ms. Zukowski’s motion for fees
and costs. Dejong v. Dep't of Highway Safety and Motor Vehicle, 16 Fla. L. Weekly
Supp. 43b (Fla. 4th Cir. Ct. Oct. 29, 2008); Prescott v. Dep't of Highway Safety and
Motor Vehicles, 19 Fla. L. Weekly Supp. 770a (Fla. 14th Cir. Ct. Mar. 19, 2012).
And in Trauth, which the Department itself relies on, the Third District in
2010 considered the imposition of fees and costs as sanctions against the Department
without suggesting that they were unauthorized. Dep't of Highway Safety and Motor
Vehicles v. Trauth, 41 So. 3d 916 (Fla. 3d DCA 2010). Instead, the court reversed
the sanctions only because the circuit courts had failed to articulate findings of bad
faith and the Department had erred on “a close question of law.” Id. at 918. Trauth
does not hurt Ms. Zukowski’s position, since the Department did not rule on a “close
question of law” but instead willfully failed to apply well-established law.
3
Finally, as for the Department’s substantive objection, Ms. Zukowski’s
certiorari petition and reply already demonstrate that the hearing officer’s error was
so plain that she could not have committed it in good faith, so she will not press that
point any further here.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 24, 2020, I electronically filed the
foregoing with the Clerk of Court and served a true and correct copy via the Florida
Courts E-Filing Portal to the Office of General Counsel, Department of Highway
Safety and Motor Vehicles, 2900 Apalachee Parkway, A-432, Tallahassee, FL
32399, at MarkMason@flhsmv.gov and RodBruce@flhsmv.gov.
__/s/ Joel N. Leppard ____________
JOEL N. LEPPARD
Florida Bar Number: 86081
LEPPARD LAW PLLC
638 Broadway Ave.
Orlando, FL 32803
Telephone: (407) 476-4111
Fax: (800) 317-8301
Email: Joel@LeppardLaw.com
Attorney for Petitioner
4
__/s/ Joseph G. Easton ___________
JOSEPH G. EASTON
Florida Bar Number: 0127127
LEPPARD LAW PLLC
638 Broadway Ave.
Orlando, FL 32803
Telephone: (407) 476-4111
Fax: (800) 317-8301
Email: JEaston@LeppardLaw.com
Attorney for Petitioner
__/s/ Stephanie M. McEnery________
STEPHANIE M. MCENERY
Florida Bar Number: 1010274
LEPPARD LAW PLLC
638 Broadway Ave.
Orlando, FL 32803
Telephone: (407) 476-4111
Fax: (800) 317-8301
Email: Stephanie@LeppardLaw.com
Attorney for Petitioner
5
Preview
Filing # 103820296 E-Filed 02/24/2020 05:39:32 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CATHERINE CHARLEEN CASE NO.: 2019-CA-014571-O ZUKOWSKI, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. _________________________________/ PETITIONER’S MOTION FOR LEAVE TO RESPOND REGARDING MOTION FOR ATTORNEY’S FEES AND COSTS Petitioner Catherine Charleen Zukowski moves this Court to grant her leave to respond to the Department’s opposition against her motion to tax attorney’s fees and costs against the Department. See Fla. R. App. P. 9.300 (committee note to 1977 amendment) (suggesting that the court can permit further responses to motions by “an order of the court entered on the court’s own motion or the motion of a party”). These are the grounds: 1. After Ms. Zukowski filed the initial motion for attorney’s fees and costs, the Department responded with a host of procedural and substantive objections to 1 the motion, including its contention that this Court does not even have the authority to sanction the Department in this case. 2. Ms. Zukowski seeks a fair opportunity to respond to the Department’s objections so that the Court is not forced to address them without hearing from both sides. 3. The proposed response is attached to this motion as Exhibit “A.” Ms. Zukowski asks that the Court consider that to be her response if the Court grants her motion for leave. WHEREFORE, Ms. Zukowski respectfully moves this Honorable Court to grant her leave to file a response on her motion for attorney’s fees and costs, and to take the attached Exhibit “A” as that response. 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 24, 2020, I electronically filed the foregoing with the Clerk of Court and served a true and correct copy via the Florida Courts E-Filing Portal to the Office of General Counsel, Department of Highway Safety and Motor Vehicles, 2900 Apalachee Parkway, A-432, Tallahassee, FL 32399, at MarkMason@flhsmv.gov and RodBruce@flhsmv.gov. __/s/ Joel N. Leppard ____________ JOEL N. LEPPARD Florida Bar Number: 86081 LEPPARD LAW PLLC 638 Broadway Ave. Orlando, FL 32803 Telephone: (407) 476-4111 Fax: (800) 317-8301 Email: Joel@LeppardLaw.com Attorney for Petitioner __/s/ Joseph G. Easton ___________ JOSEPH G. EASTON Florida Bar Number: 0127127 LEPPARD LAW PLLC 638 Broadway Ave. Orlando, FL 32803 Telephone: (407) 476-4111 Fax: (800) 317-8301 Email: JEaston@LeppardLaw.com Attorney for Petitioner 3 __/s/ Stephanie M. McEnery________ STEPHANIE M. MCENERY Florida Bar Number: 1010274 LEPPARD LAW PLLC 638 Broadway Ave. Orlando, FL 32803 Telephone: (407) 476-4111 Fax: (800) 317-8301 Email: Stephanie@LeppardLaw.com Attorney for Petitioner 4 EXHIBIT A IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CATHERINE CHARLEEN CASE NO.: 2019-CA-014571-O ZUKOWSKI, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. _________________________________/ RESPONSE ON MOTION FOR ATTORNEY’S FEES AND COSTS Ms. Zukowski moved to tax attorney’s fees and costs against the Department, along with a petition for a writ of certiorari, as sanctions for its bad-faith conduct in sustaining her driver’s license suspension—but not before submitting a motion for reconsideration and notice of her intent to file a motion for fees and costs. She had submitted it to the Department via both the office of the hearing officer, the Bureau of Administrative Reviews (BAR), and the Department’s appellate office, the Office of General Counsel (OGC). In opposing the motion, the Department’s primary argument is that it cannot be taxed fees and costs after the Florida Supreme Court’s decision in Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005). Boca Burger essentially held that the 1 district court erred in sanctioning appellate counsel for conduct that occurred in the trial court, reasoning that that is an issue best left for the trial judge. Id. at 573-74. This case is materially different in three crucial respects. First, the “trial court” here is the subject of the motion for fees and costs; the case should not be left to the hearing officer to determine whether she herself acted in bad faith. That would be patently absurd. Second, the Department is both the tribunal below and the respondent in this case, and the Supreme Court noted that an appellate court can impose sanctions for the “defense of a patently erroneous order.” Id. at 569. Even if the BAR and OGC within the Department are somehow considered separate for this purpose, both “parties” were given fair warning of Ms. Zukowski’s intent to ask for fees and costs should the Department defends its “patently erroneous order.” Relatedly, the Supreme Court also noted that “an appellee cannot hide behind the ‘presumption of correctness’ of an order that the appellee itself procured” to defend against fees, id. at 571; it follows a fortiori that this presumption applies even less where the appellee (or respondent) acted in bad faith in creating the order under review. And third, the Supreme Court reversed the district court for its misapplication of section 57.105, Florida Statutes. But that statute also says that its provisions are “supplemental to other sanctions or remedies available under law or under court rules.” Id. § (6), Fla. Stat. Ms. Zukowski relies on “other sanctions or remedies” 2 aside from that statute—namely, this Court’s power to sanction inequitable conduct or bad faith—and Boca Burger does not limit that power. See also Patsy v. Patsy, 666 So. 2d 1045 (Fla. 4th DCA 1996) (even though no statute or rule authorized attorney’s fees as sanctions, they were allowed under the trial court’s inherent authority to punish a litigant’s bad faith). The Department’s position is further belied by the courts’ awarding of fees and costs against the Department even after Boca Burger was decided in 2005— such as Dejong and Prescott, which were cited in Ms. Zukowski’s motion for fees and costs. Dejong v. Dep't of Highway Safety and Motor Vehicle, 16 Fla. L. Weekly Supp. 43b (Fla. 4th Cir. Ct. Oct. 29, 2008); Prescott v. Dep't of Highway Safety and Motor Vehicles, 19 Fla. L. Weekly Supp. 770a (Fla. 14th Cir. Ct. Mar. 19, 2012). And in Trauth, which the Department itself relies on, the Third District in 2010 considered the imposition of fees and costs as sanctions against the Department without suggesting that they were unauthorized. Dep't of Highway Safety and Motor Vehicles v. Trauth, 41 So. 3d 916 (Fla. 3d DCA 2010). Instead, the court reversed the sanctions only because the circuit courts had failed to articulate findings of bad faith and the Department had erred on “a close question of law.” Id. at 918. Trauth does not hurt Ms. Zukowski’s position, since the Department did not rule on a “close question of law” but instead willfully failed to apply well-established law. 3 Finally, as for the Department’s substantive objection, Ms. Zukowski’s certiorari petition and reply already demonstrate that the hearing officer’s error was so plain that she could not have committed it in good faith, so she will not press that point any further here. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 24, 2020, I electronically filed the foregoing with the Clerk of Court and served a true and correct copy via the Florida Courts E-Filing Portal to the Office of General Counsel, Department of Highway Safety and Motor Vehicles, 2900 Apalachee Parkway, A-432, Tallahassee, FL 32399, at MarkMason@flhsmv.gov and RodBruce@flhsmv.gov. __/s/ Joel N. Leppard ____________ JOEL N. LEPPARD Florida Bar Number: 86081 LEPPARD LAW PLLC 638 Broadway Ave. Orlando, FL 32803 Telephone: (407) 476-4111 Fax: (800) 317-8301 Email: Joel@LeppardLaw.com Attorney for Petitioner 4 __/s/ Joseph G. Easton ___________ JOSEPH G. EASTON Florida Bar Number: 0127127 LEPPARD LAW PLLC 638 Broadway Ave. Orlando, FL 32803 Telephone: (407) 476-4111 Fax: (800) 317-8301 Email: JEaston@LeppardLaw.com Attorney for Petitioner __/s/ Stephanie M. McEnery________ STEPHANIE M. MCENERY Florida Bar Number: 1010274 LEPPARD LAW PLLC 638 Broadway Ave. Orlando, FL 32803 Telephone: (407) 476-4111 Fax: (800) 317-8301 Email: Stephanie@LeppardLaw.com Attorney for Petitioner 5