Flagler County Circuit Judge Michael Orfinger has ordered Dennis McDonald and his attorney, Joshua Knight, to pay Palm Coast $15,705 in attorneys’ fees and other costs the city incurred from a frivolous lawsuit McDonald filed against it in 2013.
The amount is just $2,000 short of the amount Palm Coast was seeking. McDonald and Knight by law must split the amount owed almost equally. Palm Coast filed its claim against both men last year when another judge ruled that McDonald’s lawsuit had no merit.
It’s not a punitive action, but it is designed to strongly discourage the reflexive filing of lawsuits. Florida law gives anyone, local governments included, the right to claim attorney’s fees and sanctions as a result of lawsuits making unsupported claims. But governments rarely exercise that right. Palm Coast did so against McDonald, a man it has long considered somewhere between a thorn in its side and an outright foe.
McDonald at one point in 2013 and 2014 would appear before the council bi-weekly to harangue it over one issue or another while making extensive demands for public records. To organize his attacks, he would connect dots, at times inaccurately, between city and county documents, hearsay and assumptions. The lawsuit he filed against the city, claiming that Palm Coast was about to level trees in and around Palm Harbor shopping center, was one such example. (The city did level some trees, notably a few stately laurel oaks, but neither to the extent that McDonald claimed nor in some of the places that he claimed, and he did not take into account the replanting that the city required.)
“There is a place for sincerity and honesty in government, and when you deal very loosely with the truth, there are consequences to be paid,” Palm Coast Mayor Jon Netts said this afternoon.
McDonald took a dimmer view of Orfinger’s order. “I will certainly appeal it. I’ll go to a citizens’ right group. I mean, come on, you can’t ask questions?” McDonald, who was not aware of the order until a reporter told him about it, asked. “This means that nobody can ask questions of the municipality. This is completely contrary to everything that our country avails us to.”
Netts rejected the notion that McDonald was merely asking questions, or that his rights to ask questions have been circumscribed. “There is a huge difference between asking a question and getting an answer, and continuing to make statements that are contrary to fact,” Netts said. “It’s not as though this was handled in the blind. When he first made his allegations we explained very clearly what we thought the defects in his argument were. The covenants and restrictions he was referring to had to do with different pieces of property. It was incorrect from the very beginning, and he knew it, or should have known it.”
But McDonald also deflected responsibility for the matter to Knight. “I don’t tell anybody how to do a suit, it’s Josh’s problem,” McDonald said. “You go to a lawyer because you’re not a lawyer and you hire a professional, and it’s Josh’s decision how things were done, not mine, so why would a court say I’m responsible for anything, or anybody who brings a suit.”
Knight currently has his own problems. He was arrested on a domestic battery charge on Jan. 12, hours after the hearing where Orfinger said he’d soon be ruling on how much Knight and McDonald would owe. According to McDonald, Knight has left town for a six-month treatment stint and is not handling cases, which may explain why McDonald was not aware of the judge’s order. Netts was.
The Flagler County Commission has been watching Palm Coast’s counter-claim very closely, as the county had a lawsuit against it also declared frivolous by an associate of McDonald’s—Dan Bozza, who also used Knight as his attorney. Both Bozza and McDonalds are members of the Ronald Reagan Republican Assemblies, the extremist Republican group that posits an adversarial stance toward local governments as a strategy.
Bozza created a group called the “Palm Coast Watchdogs” last year. The group’s explicit purpose, Bozza said in an interview at the time, was to file lawsuits against local governments. The lawsuit filed against the county claimed that County Commissioner Barbara Revels acted inappropriately when she voted to approve the purchase of the old Memorial hospital building in Bunnell so the county could convert it into a sheriff’s operations center. Judge Dennis Craig Threw out the lawsuit—not because it was without merit, but because its claims were in the wrong jurisdiction. Craig followed County Attorney Al Hadeed’s reasoning and said the claims were more properly filed with the Florida Ethics Commission.
In fact, another member of the Reagan group had filed just such a claim with the ethics commission, which eventually found the claim to have merit (and added one of its own), and slapped a $2,500 fine on Revels. Still, Hadeed filed an action similar to Palm Coast’s to recover fees and costs from Bozza’s “Watchdogs” lawsuit—and send the same message that Palm Coast sent: that local governments will not easily tolerate the knee-jerk filing of suits whose motives are primarily political and rarely substantial.
Craig last summer ruled that Palm Coast was entitled to fees from McDonald and Knight. But the question was: how much was the city entitled to. In October, Palm Coast attorneys William Reischmann and Debra Babb-Nutcher—who practice with Brown, Garganese, Weiss and D’Argesta in Orlando—filed an affidavit outlining the billable hours for which they were seeking to be paid.
“Our firm has spent 120.2 hours through the date of this affidavit defending the city of Palm Coast, Florida, in this manner,” Babb-Nutcher wrote. “The number of hours is reasonable considering the numerous factual allegations raised that require investigation and the novel legal claims raised that required legal research and analysis.”
The billable hours reflect the usual items lawyers bill for: emails, phone calls, research, reviewing documents. The hours add up fast: 15.9 hours for Reischmann, 97.7 for Babb-Nutcher, and 3.2 hours for Catherine Reischmann, each of whom commands a $150-an-hour fee, and 3.4 hours for a paralegal at $75-per hour, plus some fees for online computer research, photocopies and postage.
Orfinger found that “certain of the hours to be taxed against [Knight and McDonald] are not reasonable.” In item, for example, the lawyers billed 10 minutes to review a judge’s “hearing date availability” for an upcoming motion, and the next day billed another 10 minutes to review the scheduling with a judicial assistant, items billed at the regular lawyer’s fee of $150 an hour when, Orfinger ruled, the work was “clerical in nature and thus not reasonable.” A total of 1.6 such hours were billed.
Orfinger also threw out 9.5 hours billed as lawyers decided whether to get Judge Craig removed from their case, after Craig had humiliated the city in a red-light camera proceeding (he was successfully disputing a ticket he got) and charged the city with bad faith. The frequently thin-skinned city administration recoiled but eventually dropped the move to remove Craig from the case: he was reassigned to Volusia in January anyway. Orfinger found it “inappropriate” to bill for those hours.
The judge also threw out 2.7 hours the attorneys had billed to analyze or discuss a public record request. That was notable because it cautions local governments against being cavalier when billing the public over public record requests–bills that can sometimes be used as intimidation–and signals that Orfinger, who was just seated as a circuit judge, does not allow for much leeway on the public record law.
In the end, the judge ruled that McDonald would have to pay $8,013.66 and Knight, $7,852. The sum is not much of a burden for McDonald, who, when he last ran for the Flagler County Commission last summer, listed his net worth at just over $1 million, while his wife Janet McDonald, now a school board member, listed her net worth at $3 million.