Opinion
No. 98-2975.
Opinion filed January 29, 1999.
Appeal from the Circuit Court for Volusia County, Richard B. Orfinger, Judge.
C. Michael Barnette, Daytona Beach, for Appellant. Mary D. Hansen of Storch, Hansen Morris, P.A., for Appellee Joanne Jerome, Chairman of the Phyllis T. Garvin Recall Committee.
Franz Eric Dorn, City Attorney, Daytona Beach Shores, for Appellee City of Daytona Beach Shores. Frank B. Gummey, III, Assistant County Attorney, DeLand, for Appellee Deanie Lowe, Supervisor of Elections.
ON MOTION FOR ATTORNEY'S FEES
In this cause Garvin sought unsuccessfully to defend herself in a recall petition and election process. She had been duly elected and was serving as a Council Member of the City of Daytona Beach Shores at the time this proceeding commenced, and the ground asserted for her recall alleged misfeasance or malfeasance in carrying out her duties as a Council Member. This court ruled that four of the five charges against her were legally insufficient, but that one was legally sufficient to allow the recall election to proceed. While this matter was on appeal, the City of Daytona Beach Shores sought and was granted permission by this court to file an amicus brief in which it takes the position that the City should reimburse Garvin reasonable attorney fees for her efforts in defending her office in the recall process.
We agree that pursuant to Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla. 1990) she is entitled to reimbursement for attorney fees from the City. In Thornber, the town council members were successful in defeating the recall process on the ground that the recall committee had not followed the necessary statutory requirements. But we do not think the concept is a "prevailing party" one. One cannot know at the commencement whether or not one is going to be successful in a particular lawsuit, and to limit Thornber to successful litigants would have a chilling effect on persons being willing to serve as public officials and to perform their duties in the manner they see fit. Even if notions of "prevailing party" are ultimately held to govern, it is notable that Garvin successfully invalidated four of the five charges against her. Further, the question of whether the one surviving charge would support a recall election was undecided in this district and remains a subject of conflicting decisions in this state.
Clearly the City has an interest and indeed a responsibility to see that a recall committee follows the proper procedures when a public official is so challenged and sought to be removed from office. Although older case law apparently held to the contrary, more recent cases recognize that a city has a vital interest in these matters and issues. Accordingly, it has a public purpose and interest in defending its public officers from attacks stemming from performance of their official duties. Accordingly, we remand this cause to the trial court to set an appropriate fee, recoverable against the City.
See Peck v. Spencer, 26 Fla. 23, 7 So.2d 642 (1890); Smith v. Pittsburgh School District, 70 Pa. Super. 184 (1918); Paslay v. Brooks, 198 S.C. 345, 17 S.E.2d 865 (1941).
See Duplig v. City of South Daytona, 195 So.2d 581 (Fla. 1st DCA 1967); City of North Miami Beach v. Estes, 214 So.2d 644 (Fla. 3d DCA 1968), cert. discharged, 227 So.2d 33 (Fla. 1969); Ferrara v. Caves, 475 So.2d 1295 (Fla. 4th DCA 1985); Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA), rev. dismissed, 431 So.2d 988 (Fla. 1983). Cf. Chavez v. City of Tampa, 560 So.2d 1214 (Fla. 2d DCA), rev. denied, 576 So.2d 285 (Fla. 1990).
REMANDED to Trial Court to Set Fee.
GRIFFIN, C.J. and THOMPSON, J. concur.