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Agenda 10/28/2014 Item #16K710/28/2014 16.K.7. EXECUTIVE SUMMARY Recommendation to approve and authorize the Chairman to sign and record two (2) Satisfaction of Final Judgment forms in the case of Orange Tree Utility Co. ( "OTU ") v. Collier County, Case No. 2007 -CA- 002333, for the payment of Trial Level and Appellate Level Attorneys' Fees and Costs by OTU to Collier County in the total amount, including accrued interest, of $302,938.25. OBJECTIVE: To obtain Board of County Commissioner approval and authorization for its Chairman to sign and record two (2) Satisfaction Final Judgment forms in the case of Orange Tree Utility Co. v. Collier County, Case No. 2007 -CA- 002333, for the payment of Trial Level and Appellate Level Attorneys' Fees and Costs by OTU to Collier County in the total amount, including accrued interest, of $302,938.25 CONSIDERATIONS: On July 17, 2007, the Orange Tree Utility Co. filed a Complaint against the County that, in part, sought declaratory relief that the 1986 Agreement OTU entered into with the County, wherein OTU agreed to convey its utility to the County at no cost, was unconstitutional and invalid. Ultimately, on August 31, 2009, the Court entered a Final Summary Judgment in favor of the County and against OTU. See Attached Final Summary Judgment. As part of the entry of Final Judgment, the Court also awarded the County its Trial Level and Appellate Level Attorneys' Fees and Costs in the aggregate amount of $257,674.94. See Attached Copies of Final Judgment Awarding Reasonable Attorneys' Fees and Costs. Those Final Judgments have accrued interest at the statutory rate since their entry and as of October 10, 2014, totaled $302,938.25. On or about October 13, 2014, Orange Tree Utility Company through its counsel tendered a check payable to the County in full satisfaction of those judgments in the amount of $302,938.25. See Attached Check Number 19444. Because the Orange Tree Utility Co. has satisfied the Final Judgments entered by the Court in Case No. 2007 -CA- 002333, the County Attorney's Office is requesting that the Board approve and authorize its Chairman to sign and record the two (2) attached Satisfaction of Final Judgment forms included as back -up to this item. FISCAL IMPACT: Receipt of Miscellaneous Revenue in the total amount of $302,938.25, with half being distributed to the Northeast Wastewater Treatment Facility Cost Center and half to the Northeast Water Treatment Facility Cost Center. Staff will come forward with a request for a budget amendment as needed in the future. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. LEGAL CONSIDERATIONS: This item is approved as to form and legality, and requires majority vote for Board approval. —SRT Packet Page -2017- 10/28/2014 16.K.7. RECOMMENDATION: That the Board approve and authorize its Chairman to sign and record two (2) Satisfaction Final Judgment forms in the case of Orange Tree Utility Co. v. Collier County, Case No. 2007 -CA- 002333, for the payment of Trial Level and Appellate Level Attorneys' Fees and Costs by OTU to Collier County in the total amount, including accrued interest, of $302,938.25 Prepared by: Scott R. Teach, Deputy County Attorney Attachments: (1) Final Summary Judgment, (2) Final Judgment Awarding Reasonable Attorneys' Fees and Costs against Plaintiff, Orange Tree Utilities, (3) Final Judgment Awarding Reasonable Appellate Attorneys' Fees and Costs, (4) Check No. 19444 and (5) Two Satisfaction of Final Judgments to record as a result of payment by Orange Tree Utility Company of the Final Judgments awarding Trial and Appellate Level Attorneys' Fees and Costs. Packet Page -2018- 10/28/2014 16.K.7. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.K.16.K.7. Item Summary: Recommendation to approve and authorize the Chairman to sign and record two (2) Satisfaction of Final Judgment forms in the case of Orange Tree Utility Co. ( "OTU ") v. Collier County, Case No. 2007 -CA- 002333, for the payment of Trial Level and Appellate Level Attorneys' Fees and Costs by OTU to Collier County in the total amount, including accrued interest, of $302,938.25. Meeting Date: 10/28/2014 Prepared By Name: CrotteauKathynell Title: Legal Secretary, CAO Office Administration 10/20/2014 2:03:32 PM Approved By Name: TeachScott Title: Deputy County Attorney, County Attorney Date: 10/20/2014 3:58:09 PM Name: IsacksonMark Title: Director -Corp Financial and Mngmt Svs, Office of Management & Budget Date: 10/20/2014 4:31:15 PM Name: KlatzkowJeff Title: County Attorney, Date: 10/20/2014 5:03:33 PM Name: OchsLeo Title: County Manager, County Managers Office Date: 10/21/2014 8:59:32 AM Packet Page -2019- 10/28/2014 16.K.7. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA ORANGE TREE UTILITY CO., a Florida Corporation; Plaintiff, a COLLIER COUNTY, FLORIDA, , a political subdivision of the State of Florida Defendant. CASE NO. 2007 -CA- 002333 SATISFACTION OF FINAL JUDGMENT Collier County, Florida, as owner and holder of that certain Final Judgment Awarding Reasonable Attorneys' Fees and Costs Against Plaintiff, Orange Tree Utility rendered in the above - captioned civil action, dated June 07, 2011, and recorded in the Public Records of Collier County, Florida at Official Records Book 4690, beginning at Page 3429 and Official Records Book 4693, beginning at Page 1765, does hereby acknowledge that all sums due to Collier County, Florida thereunder have been paid and that the Final Judgment is hereby cancelled and satisfied of record. 9 Packet Page -2020- 10/28/2014 16.K.7. DATED on this 28th day of October, 2014. BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA TOM HENNING, CHAIRMAN OF THE BOARD STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of 2014, by , who is personally known to me or has produced (NOTARY SEAL) ATTEST: DWIGHT E. BROCK, CLERK , Deputy Clerk as identification. Notary Public Signature (Name typed, printed or stamped) Notary Public, State of Commission No.: My Commission Expires: Approved as to form and legality: )? Scott R. each Deputy County Attorney 4 & Packet Page -2021- 10/28/2014 16.K.7. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA ORANGE TREE UTILITY CO., a Florida Corporation; Plaintiff, V. COLLIER COUNTY, FLORIDA, , a political subdivision of the State of Florida Defendant. CASE NO. 2007 -CA- 002333 SATISFACTION OF FINAL JUDGMENT Collier County, Florida, as owner and holder of that certain Final Judgment Awarding Reasonable Appellate Attorneys' Fees and Costs rendered in the above - captioned civil action, dated April 01, 2011, and recorded in the Public Records of Collier County, Florida at Official Records Book 4668, beginning at Page 1253 and Official Records Book 4672, beginning at Page 1086, does hereby acknowledge that all sums due to Collier County, Florida thereunder have been paid and that the Final Judgment is hereby cancelled and satisfied of record. a Packet Page -2022- 10/28/2014 16.K.7. DATED on this 28th day of October, 2014. BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA TOM HENNING, CHAIRMAN OF THE BOARD STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 2014, by , who is personally known to me or has produced as identification. (NOTARY SEAL) ATTEST: DWIGHT E. BROCK, CLERK , Deputy Clerk Notary Public Signature (Name typed, printed or stamped) Notary Public, State of Commission No.: My Commission Expires: Approved as to form and legality: Z6.1, 9-CM I? Scott R- Teach Deputy County Attorney i7 Packet Page -2023- GP 10/28/2014 16.K.7. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA ORANGE TREE UTILITY CO., a Florida corporation, Plaintiff/Counter- Defendant, Case No. 07- 2333 -CA VS. - COLLIER COUNTY, a political c< subdivision of the State of Florida, Defendant/Counter- Plaintiff. y -own FINAL SUMMARY JUDGMENT 0 .o THIS CAUSE came before this Court on August 18, 2009, concerning the "Motion for Summary Judgment Regarding Orange Tree's Complaint for Declaratory Relief' filed by Defendant/Counter- plaintiff Collier County (the "County ") against Plaintiff/Counter- Defendant Orange Tree Utility Co. ("Orange Tree "). Upon consideration of the motion, the record, and the arguments of counsel, and being otherwise advised in the premises, the Court ORDERES AND ADJUDGES as follows: 1. The pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue of material fact, and that the County is entitled to a judgment as a matter of law. 2. Accordingly, for the reasons set forth in the County's motion and announced by the Court on the record, the County's motion and the relief requested therein is hereby GRANTED, and final judgment is hereby entered in favor of the County and against Orange Tree. 3. The Court hereby reserves jurisdiction to enforce this judgment, and to determine any claims for reasonable attorneys' fees and costs. INSTR 4340442 OR 4490 PG 2893 RECORDED 9/10/2009 4:26 PM PAGES 2 DWIGHT E. BROCK Page 1 of 2 COLLIER COUNTY CLERK OF THE CIRCUIT COURT REC $18.50 Packet Page -2024- 10/28/2014 16.K.7. DONE AND ORDERED, in chambers, in Naples, Collier County, Florida, on this day of , 20. Honorable Hugh D. Mayes Circuit Court Judge Conformed copies provided to: ` Counsel for Orange Tree: S.W. Moore, Esq., Brigham Moore, 3277 Fruitville Rd., Unit E, Sarasota, FL 34237; and John R. Jenkins, Esq., Rose, Sundstrom & BentIey, LLP, 2548 Blairstone Pines Drive, Tallahassee, FL 32301. Counsel for the County: Edward P. de la Parte, Jr., Esq., Vivian Arenas, Esq., and Daniel J. McBreen, Esq., de la Parte & Gilbert, P.A., Post Office Box 2350, Tampa, FL 33601 -2350 Page 2 of 2 Packet Page -2025- • _ r INSTR 4573289 OR 4.690 'PG 3429 REOORDED 6/,10/2011 4eli PM DWIGHT E. BROCK, CLERK OF THE CIRCUIT' COURT, COLLIER COUNTY .REC $35.50 PAGES 4 10/28/2014 16.K.7.- INSTR 4576366 OR 4693 PG 1765 - y RECORDED 61202011 12:38 PM PAGES 4 DWIGHT E. BROCK CLERK OF THE CIRCUIT COURT COLLIER COUNTY FLORIDA REC 535.50 1111 THE. CIRCUIT COURT OF nIE 7- -I IlE`1'H JUDICIAL CIRCUIT, IN AND FOR COLLIER <COUNTY, FLORIDA ORANGE TREE- UTILITY CO.,. a •Florida •corporation, Plaintiff, Case No. 07-2333-CA---n o VS. j P COL LIERCOUNTY,apolitical subdivision of the State of Florida, io C ° co CD Defendant. ° -c `~ To c M FINAL JUDGMENT AWARDING REASONABLE ATTORNEYS' FEES n ANRCOSTS AGAINST PLARMIFF- ORANGE TREE UTILITY THIS CAUSE came before the Court for nonyury trial on March 29, 2011 and May 39 " 201 I, concerning the "Motion for Award of Attorneys' Fees and Costs" '(dated September 24, 2009) and, "Motion, for Assessment of .Appellate Attomeys' Fees and Costs" (dated July 22, 2010).:filed by the Defendant, Collier County (the "County") - against .the - Plaintiff, Orange Tree Utility Co. ( "Orange Tree"). After.considering the County's,motion,..the record, the crediiiility . and weight of the testimony and other evidence presented, the arguments of counsel; the standards set forth in Florida Rule of Professional.. Conduct 4-1.5 ftl) and' the Statewide Uniform Guidelines for Taxation,of Costs, in dvil'Cases, and being otherwise fully advised in the premises, the Court makes timfollowing findings of fact and -conclusions of law. 1. The County's "Motion for Assessment of Appellate Attorneys' Fees and t Costs" dated July 22, 2010 was decided by -the • "Final Judgment Awarding Reasonable Appellate k Attorneys' Fees and 'Costs" dated April 1, 2011. Accordingly, this order addresses the County's remaining claift- for.attomeys' fees.and costs. 2. In paragraph 19 of:the May 28, 1991 Agreement (Exhibit 1.5), the parties agreed to -the following: ATTORNEY'S FEES, COSTS AN_ D. E CPENSES' Only the parties executing this•Agreement. shall- be entitled to reasonable - attorney's fees, including appellate attorney =s fees; -and costs,.incurred.as a prevailing party in connection with any litigation under this .Agreement, and to ail reasonable expenses, including I attorney fees, incurred '6 exercising or, enforcing the rights, obligations- or remedies provided or incorporated therein. (Emph. added). The, County was.the prevailing party in the above- styled.lawsuit; and obtained a favorable judgment -that was. afnnmed..by the Florida Second District Court of Appeal .(Fla. id DCA Case No. .2D09- 4407). Page 1 of 4 Packet Page -2026- i FM q I Oft 4690• PG 3430 • • '' 10/28/2014 16.K.7.— 3.. In "Plaihtiffs Response to First- Request for Admissions Kas to Few :and Costs)" dated November I'D, 2016, Orange Tree stipulated W the County's entitlement to' =over its reasonable attorneys' fees and costs- Furffier. Orange Tree's aqxxt witness testified 1hat"urly rates charged by the County's attorneys are reasonable_ 4. Amount of Reasonable Trial -Level Attorneys' ys' Fies: This Court finds that,the reasonable hourly rates and* masonablc amount of tune 6*xled by. the County's counsel, at the trial-level through the date of-the Anal summary judgment, areas follows: Timekeeper Position Senior Shareholder Hourly Rau Actually Billed. $ 225.00, Hours Aetwa* Billed 36.10 Reasonable Hourly Ante - Awarded . Cgk& -Reasonable Hours Awarded Product Awarded �­.. . I" - -- . Shareholders, S 190.00 94530 S 147A_ 012f - M--00 Ass6cijtes; S ISO-001 219. . $i Law Clerks, Paralekdls $ 100.00-1- S -90000 27-'60 1 358. 20 .1 ", - TOTAL fs sno 5. Award of.,, enable Trial -Level Attemas' Fees: Based an the. forepifig, this Court finds that a reasonable amount of attorneys, fees.awariddd for services performed -at- the trial4evel.thrpugh.,the.date otfinal-'surnmaryjudgment is S zq;e, .64,2. -a 6. Amount of Reasonable Attorneys' Fees for Post-Anneal Trial Level Services: This Court finds that the reasonable hourly rates and riasbrAble amount of time expended by the County's counsel for post - appeal trfid4evel'services concerning litigation over the amount of ,y attom;ys' fees; are as follows: ritnekeeper/Pooklon Senior Shareholder Shareholders Hourly Raw Actually BIM - S 225.00 S, 190z0 — Hones Actually Billed . 15.30 213.50 Reasonable Hourly Rate Awarded Reasonable Hours Awarded. 14, p Product A7warded. Associates. $ 150.0-0 �7 6.96 -T/ qv. 6a- -16A TOTAL 7. Entitlement to M Reasonable --Mt Fees for Post Anneal Trial-Level Services Although the Court finds that the1mouilt of attorneys' t6es-idebtified'in—pwagiaph 6 above is ; reasonable; the Court. nonetheless concludes that the COUnWs post appeal trial4evel attorneys' fees incurred in litigating-overihe reasonabli amount of its legal. exp!Mses are not recoverable unde'r cases such its State, Farm Fire & Camaity Co. v Palma 629 So2d 836 01a.1993). Consequently• theCourt declines. to award such attorneys, fees. Page 2 of 4 Packet Page -2027- OR 4690 'PG 3431 • 10/28/2014 16.K.7. - S. Amount and Award of Taxable Cos 11 LK-ts. The court fulds that the following amounts of costs incurred by the County in the instant acti - - served a. useflul-purpose: On were reasonable, necessary, and. $15 14.83 9. Total Amount - Based on the foregoing, the total attorneys' fees and costs incurred by ' trego amount of reasonable and awarded to the County is 10. Accordingly, the Countys.motion.is GRANTED. from'Drangd Tice the�sum of S and..the County "I recover 6.0% per annum, for which I whith shall bear. interest at the -rate of on issbc.' at ex DONE AND ORDERED, in chambers, in Naples, Collier County, Florida, on day of 20_&_. offi this dr Horw9ble It Hayes Circuit Court Judge Page 3 of 4 • Packet Page -2028- Post- Pods- Pre- Judj6nt Appeal I,)= ription 6 _Process judgment CMIS EMed cats Awarded . Ruled costs Awarded service of Fees $31.00 - 51.Ah. $0.00 NA. Court Rq)mur pm-mscri- 7;ft $228.00 _S0.00 NA COUrt RepWW. Attendantf -Fees for Deposidonj -and. , Marina. $11186.0w $1,393.40 Teleconftkibcing $725.*67 tmg Distance Clarges 4195.15 NA $153.45 $0.00 NA NA I r - Service "'ke Copies (in-house)-- L $1.087.50 $4,28A.30 Federal 'Charges- tt�� - _E;WC_r __ NA $11.69 NA I - $9.0-0 NA - SO-00- NA lRy-estipmon iie-M . $705M $O.OQ NA wesdawcharm .$6546.67 NA NA =4­� $325.27 N.A. postage faftimiie Charges $99.69 NA NA ---$70.06 NA Travel °' S312.00- NA $104.00 Meals %WM.48 NA 50.00 NA Mil $36.59 !jA L0.0o NA Cell Phone $418.61 NA -$245.64- NA. ,Mediator Fed W.U0. NA $8.50 NA 30.00 SOW NA "O"o $900.00 W(Mm Vert Witness Fees $1).00 $0.00 N.A. 0. 49.62 -2 Cm R4MW - Aftendd�ce Fee for 3-20-1 i_Aearjhjt s0,0p. NA 5257:50. TOTAL'S S16 515.43 $15 14.83 9. Total Amount - Based on the foregoing, the total attorneys' fees and costs incurred by ' trego amount of reasonable and awarded to the County is 10. Accordingly, the Countys.motion.is GRANTED. from'Drangd Tice the�sum of S and..the County "I recover 6.0% per annum, for which I whith shall bear. interest at the -rate of on issbc.' at ex DONE AND ORDERED, in chambers, in Naples, Collier County, Florida, on day of 20_&_. offi this dr Horw9ble It Hayes Circuit Court Judge Page 3 of 4 • Packet Page -2028- i**'OR 4690 PG 3432 10/28/2014 16.K.7. The -following.inforn ation is proyided.purs"at to Seeflon.55,,81, Florida Stitates: • Plaiftfiff — Orange Tree uuW Co., 4500 .Executive Dr, #11%. Naples, FL 34 119, FEV - Number 592749297 EIN • Defendant - Collier- County, 3299 Tamiami Trail East, Suite 303 Naples, FL 341i2; FEIN Number 596000559 Conformed copies provided to: • Counsel for Orange Tree: S.W. Moore, Esq., Brigham Moore, 3277FIndtvill6 Rd., Unit E Sarasota, FL 34237; and John R. Jenkins., Esq., Rose, sundstrom 8c Bentley LL Pj 2_548 Blairstone Pines-Driv*e, Tallahassee, FL 32301. • .Counsel for the f, gun Vivian Arenas-Battles, Esq., de la Parts & Gilbert P.A., post Office Box 2350jampa, FL 33601-2350. wv �/jl 214069v5 Page 4 of 4 Packet Page -2029- 10/28/2014 16.K.7. INSTR�'4544921 OR 4668 PG 1253 RECORDED 4/4/2011 3:44 PM PAGES 2 DWIGHT E. BROCK, CLERK OF THE CIRCUIT COURT, COLLIER COUNTY FLORIDA REC $18.50 INSTR 4549597 OR 4672 PG 1086 RECORDED 4/15/2011 10:38 AM PAGES 2 DWIGHT E BROCK, CLERK OF THE CIRCUIT COURT COLLIER COUNTY FLORIDA REC $18.50 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA ORANGE TREE UTILITY CO., a Florida corporation, Plaintiff, V. COLLIER COUNTY, a political subdivision of the State of Florida, Defendant. Case No. 07- 2333 -CA ° r n C C:r ea O �D = = t N T r o C -c { v' Y Cn D FINAL JUDGMENT AWARDING REASONABLE APPELLATE ATTORNEYS' FEES AND COSTS THIS CAUSE came before the Court for non jury trial on March 29, 2011 concerning the "Motion for Award of Attorneys' Fees and Costs" (dated September 24, 2009) and "Motion for Assessment of Appellate Attorneys' Fees and Costs" (dated July 22, 2010) filed by the Defendant, Collier County (the "County'l against the Plaintiff, Orange Tree Utility Co. ( "Orange Tree "). At the hearing, Orange Tree stipulated to the County's claim for reasonable appellate fees and costs. Accordingly, upon consideration of the County's motion, the record, and Orange Tree's stipulation, and being otherwise advised in the premises, the Court ORDERED AND ADJUDGED as follows: 1. The County's "Motion for Assessment of Appellate Attorneys' Fees and Costs" (dated July 22, 2010) is GRANTED, without prejudice to Orange Tree's objections and arguments in opposition to the County's other pending claims for pre judgment and post- mandate attorneys' fees and costs, and such objections and arguments are reserved. Further, the County shall not be entitled to contend that Orange Tree's stipulation to appellate attorneys' fees and costs has any relevance or bearing on the County's the other pending claims. 2. With respect to Fla. 2d DCA Case No. 21309 -4407, the County is hereby awarded and shall recover from Orange Tree reasonable appellate attorneys' fees of $42,263.00 and reasonable appellate costs of $1,188.51, for the total stem of $43,451.51, which shall bear interest since June 23, 2010, at the rate of 6.0% per annum, for which let execution issue. Packet Page -2030- a. * ** oh 4668 PG 1254 * ** 0 0 10/28/2014 16.K.7. 3. The Court retains jurisdiction on the County's "Motion for Award of Attorneys' Fees and Costs Against Orange Tree" (dated September 24, 2009). DONE AND ORDERED, in chambers, in Naples, Collier County, Florida, on this L day of jjdpk�__, 20—!L—. Hon bl u rudgie . Hayes Circuit Court Conformed copies provided to: Counsel for Orange Tree: S.W. Moore, Esq., Brigham Moore, 3277 Fruitville Rd., Unit E, Sarasota, FL 34237; and John R. Jenkins, Esq., Rose, Sundstrom & Bentley, LLP, 2548 Blairstone Pines Drive, Tallahassee, FL 32301. Counsel for the County: Vivian Arenas- Battles, Esq., de la Parte & Gilbert, P.A., Post Office Box 2350, Tampa, FL 33601 -2350. © x Qom_ y `// ,� .,.,rl ..t--O ,toil � nn flrti m 01111"r, !,e 'A`Fin - ndor m; naa0 erp SNP'• f b Fr E .... i N Packet Page -2031- -177%mm. tA wWQ 16 V S P112 - �lz .. -A Al jr Know