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Monday, May 21, 2007

City's Rush for Retribution Backfires

The city's rush to retaliate against CARES ignored one major consideration - the law.

While the city manager is above the law, and the majority of the council merely follow the tune, the city attorney du jour should have exercised professional discretion and stopped the vendetta.

As can be read in the legal brief (CLICK HERE FOR THE BRIEF) filed by CARES, the city erred. It erred due to transparent motives - retaliation against citizens that pursue their constitutional right of redress.

Vengeance by governmental bodies are illegal. The city attorney du jour should have known better. The city should have received competent legal advice.

If the city attorney du jour raised an objection and was bullied by the city manager, then that's par for the course.

And as citizens, we are all once again paying for yet another transgression by the present city governance.

We hope that the new city council seeks recompense from the present governance for these illegal acts that unnecessarily costs us taxpayers.


  • The Marco Island City Manager may have gone too far this time.

    Earlier this year the city manager, not the city council, decided to put an end to CARES by asking the court to award them attorney fees and expenses on a couple of temporary restraining orders (TRO). We filed the TRO's last summer in an attempt to correct some design flaws in an existing lift station and to prevent my septic tank from being destroyed by the installation of a lift station in an easement on my property. Both TRO's resulted in the city making changes to their plans. Therefore, it was very doubtful that the motion to obtain legal fees and expenses would have prevailed. However, the city manager ordered the city's attorneys to file the motion anyway. When the council found out about this motion it voted to make the city manager withdraw it. The city attorneys then filed a motion to withdraw the earlier motion.

    A few weeks after all of this CARES found out about a contract between the city and QE related to the cleanup of asbestos on Veterans Park. We objected to the funding terms in the contract. It appeared to us that the taxpayers were once again paying for a mess that a QE created which we felt were contrary to the settlement we had with the city and QE. So, we filed a motion to have a judge decide the question mainly because, we could see no way to make our argument with the City Manager because he loathes CARES.

    The action we took on this unrelated clean up contract triggered a firestorm of anger and hatred from both the City Manager and the City Council. When Liam Dillon of the Naples Daily News informed the City Manager of our action he immediately responded by saying that the city will reinstate its motion for fees and expenses.

    At the very next council meeting the City Manager had an item on the agenda to reinstate attorney fees and expenses. After some harsh and borderline vindictive comments against CARES the item passed. The city attorneys then filed a motion to reinstate with the court. This is the point where the city may have gone too far.

    According to Florida case law:
    The defendants' notice of withdrawal of their motion for attorney's fees is tantamount to a voluntary dismissal of their claim. A voluntary dismissal terminates a pending action instantaneously.
    See McKelvey, 430 So.2d at 922; Henry P. Trawick, Jr., Florida Practice and Procedure § 21-4 (1992).

    Although a voluntary dismissal is without prejudice to the bringing of a new action, it does preclude revival of the original action.
    McKelvey, 430 So.2d at 922. The defendants' withdrawal of their claim for attorney's fees terminated the pending action for fees and there was nothing to "revive." Thus, the defendants' "renewed" motion for attorney's fees did not renew anything and was a nullity.

    CARES has filed a motion to have to city's motion to reinstate thrown out of court. The court could also see the city's action as a frivolous law suit and award CARES fess and expenses in addition to sanctions for filing a frivolous law suit.

    Doug Enman

    By Anonymous Doug Enman, at Wednesday, May 23, 2007 10:56:00 AM  

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