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Melbourne Beach commission hires appellate counsel to defend code enforcement ruling
Summary
The Melbourne Beach commission voted 4-0 to hire appellate attorney Elizabeth Siano Harris to represent the town in an appeal brought by Fanu LLC to the Fifth District Court of Appeal; commissioners discussed estimated fees ($18,000–$28,000), filing fees, and the low historical success rate for certiorari petitions.
The Melbourne Beach commission voted unanimously to retain appellate attorney Elizabeth Siano Harris to represent the town in an appeal filed by Fanu LLC to the Fifth District Court of Appeal.
Town Manager Amory Smith told the commission that Ms. Harris had represented the town in prior litigation involving the same opponent and that the new appeal requires a separate contract. Smith said Ms. Harris estimated the town's work would cost between $18,000 and $28,000 depending on whether the matter required extended briefing or proceedings, and that her hourly rate for the town will be $375 (Ms. Harris's normally quoted rate, according to the record, was $475 but she is giving the town a discounted rate). Smith said Ms. Harris requested extra time to file responsive papers and that the town needs counsel in place to meet filing deadlines.
Town Attorney Ryan Knight explained that the acknowledgment of a new case and any court filing fee (noted in the record as approximately $300) come from the Fifth District Court of Appeal, and that the fee is a court requirement rather than a charge from retained counsel. Knight told commissioners that under Florida practice, attorney-fee awards in civil appeals are governed by statute or contract and that the town would still incur its legal fees even if the town prevailed at higher levels; he also said success rates for overturning code-enforcement decisions via a writ of certiorari are historically low and that appellate work is typically front-loaded, often taking about a year to a year and a half to resolve.
Commissioners debated whether to place a dollar cap on the contract and whether to schedule a mandatory update after a year if the case continued. One commissioner moved to retain Ms. Harris for the duration of the case with fees not to exceed $28,000. After discussion the mover withdrew the cap and the commission approved the retention without a financial cap; Vice Mayor Terry Cronin said the commission could bring the matter back for a litigation update at any time and suggested a one-year check-in as a practical measure.
The clerk read back the motion and the commission recorded the vote as 4 yes, 0 no. The motion carried and the commission approved retention of Ms. Harris for the appellate matter. The meeting then moved on and adjourned after a subsequent procedural motion.
