Florida/Georgia Personal Injury & Workers Compensation

...d in defending against a federal civil rights action filed against the city, the mayor, and themselves in their official and individual capacities. The trial court denied the recall petition claim because the council members initiated the action and section 111.07, Florida Statutes (1981), under which they claimed entitlement to fees, only allows reimbursement of prevailing defendants....

...The district court affirmed, relying on the same rationale. The council members now allege conflict with Ferrara which allowed town commissioners to recover attorney's fees expended in obtaining declaratory and injunctive relief from a recall petition based on a common law theory rather than on section 111.07....

...ral civil rights action. Lastly, the council members claim appellate attorney's fees under section 59.46, Florida Statutes (1987). As to the federal civil rights claim, the trial court awarded attorney's fees to Grant as a prevailing defendant under section 111.07 but refused to award fees to Thornber and Franklin, finding that they held a private meeting which violated sunshine laws and prevented recovery....

...the city for successfully enjoining the recall petition. For the reasons expressed in the district court's opinion, we agree that the council members cannot recover their attorney's fees expended in enjoining the recall petition from the city under section 111.07. In this case, however, our inquiry does not end at whether the council members are entitled to recover fees under section 111.07....

...We agree with the district court in Ferrara that, in the "spirit" of common law principles, the unique circumstances of this case should not preclude the council members from recovering attorney's fees under the common law. Thus, the only question remaining for our resolution on this matter is whether the remedy provided by section 111.07 has superseded this common law remedy so as to provide the exclusive means by which public officials may recover attorney's fees from public funds for litigation arising out of their official duties....

...nged the common law. Cullen v. Seaboard Air Line Railway, 63 Fla. 122, 58 So. 182 (1912); Peninsular Supply Co. v. C.B. Day Realty Inc., 423 So.2d 500 (Fla. 3d DCA 1982); In re Levy's Estate, 141 So.2d 803 (Fla. 2d DCA 1962). The express language of section 111.07 makes no mention of whether it superseded the common law with regard to the circumstances under which public officials are entitled to have the state provide for their representation, so as to provide the exclusive means by which officials may recover attorney's fees from public funds....

...[6] Statutory abrogation by implication of an existing common law remedy, particularly if the remedy is long established, is not favored. 1 Am.Jur.2d, Actions § 77 (1962). See Tamiami Trail Tours, Inc. v. City of Tampa, 159 Fla. 287, 31 So.2d 468 (1947); Peninsular Supply Co. We agree with the district court that section 111.07 recognizes the common law but disagree that the legislature intended this statute to replace the common law completely....

...Although Ray obtained some relief, the council members were merely signatories to the stipulated settlement and did not contribute monetarily. Any relief sought by Ray came from the city and the mayor but not from the council members. Therefore, the council members are entitled to attorney's fees under section 111.07 as prevailing defendants....

...The petition against Grant was timely filed, because he had been elected some two years previously, but the court found the petition invalid because the recall committee failed to follow other procedures set forth in the recall statute. The district court affirmed. Taylor v. Thornber, 418 So.2d 1155 (Fla. 1st DCA 1982). [6] Section 111.07 as originally enacted only authorized the state to defend any tort action brought against public officials for alleged negligence arising out of the scope of their employment....

...s the common law or existing law with regard to providing public officials an attorney at public expense. [7] If the statute were the exclusive remedy by which public officials could obtain reimbursement of attorney's fees from public funds, because § 111.07 is limited to civil actions, an official's successful defense of misconduct charges brought in proceedings before the Ethics Commission would not qualify for reimbursement of attorney's fees expended in that defense....

...n of a civil or restitution penalty, the Attorney General must bring a civil action to recover the recommended penalty. Chavez v. City of Tampa, 560 So.2d 1214 (Fla. 2d DCA 1990). Thus, public officials would not be entitled to attorney's fees under § 111.07 for their successful defense of misconduct charges before the commission, while under common law they would be so entitled. See Ellison v. Reid, 397 So.2d 352 (Fla. 1st DCA 1981). [8] We are cognizant that the council members based their claim for attorney's fees on § 111.07 and did not attempt to recover attorney's fees on a common law theory....

...11 In any event, there is surely no overwhelming implication from the text of § 284.38 that the state intended to waive its Eleventh Amendment immunity from damage actions. Gamble also directs this court to Chapter 111 of the Florida Statutes which permits state agencies to defend actions against public officers. Section 111.07 provides: Defense of civil actions against public officers, employees, or agents Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil acti...

...icers, employees, or agents and fails to provide such attorney, such agency, county, municipality, or political subdivision shall reimburse any such defendant who prevails in the action for court costs and reasonable attorney’s fees. Fla.Stat.Ann. § 111.07 (West Supp.1985)....

...amage actions, indicates that Florida’s waiver of sovereign immunity under § 768.28 includes a waiver of Eleventh Amendment immunity in § 1983 damage actions. We reject this argument for the reasons stated above in our discussion of Chapter 284. Section 111.07 indicates that the state may provide a defense in “any civil rights lawsuit seeking relief personally against the officer, employee, or agent for an act or omission under color of state law, custom, or usage, wherein it is alleged that such officer, employee, or agent has deprived another person of his rights secured under the Federal Constitution or laws.” Fla.Stat.Ann. § 111.07 (emphasis added)....

...By using the term “personally,” Chapter 111 is even more explicit than Chapter 284 in its reference to § 1983 suits against state officers in their personal capacities, suits which are unaffected by the state’s Eleventh Amendment immunity. In addition, § 111.07 indicates that attorney’s fees awards against state officers will be reimbursed by the state agency....

...Compare Kentucky v. Graham, — U.S. -, 105 S.Ct. 3099 , 87 L.Ed.2d 114 (in civil rights action against state officer in personal capacity, attorney’s fee award under 42 U.S.C.A. § 1988 runs to the officer individually and not to the state). Thus, § 111.07 merely reflects a scheme of defending and reimbursing state officers which is consistent with current jurisprudence under § 1983 and the Eleventh Amendment. Our analysis is similar with respect to § 111.071 which provides for state payment of damage judgments against public officers whose agencies are not included within the insurance risk management trust fund scheme set out in Chapter 284. Section 111.071 provides in relevant part: (1) Any county, municipality, political subdivision, or agency of the state which has been excluded from participation in the Insurance Risk Management Trust Fund is authorized to expend available funds to p...

...final judgment, including damages, costs, and attorney’s fees, arising from a complaint for damages or injury suffered as a result of any act or omission of action of any officer, employee, or agent in a civil or civil rights lawsuit described in s. 111.07....

...employee, or agent has been determined in the final judgment to have caused the harm intentionally.... (4) This section is not intended to be a waiver of sovereign immunity or a waiver of any other defense or immunity to such lawsuits. Fla.Stat.Ann. § 111.071 (West 1982)....

...es available under § 1983 which, of course, is a matter of federal law. Cf. Oklahoma City v. Tuttle, 471 U.S. -, -, 105 S.Ct. 2427, 2447 , 85 L.Ed.2d 791, 817 (1985) (Stevens, J., dissenting). 12 . We reject the court’s conclusion in Meeker "that § 111.07(4) is a savings .clause reserving any or all defenses still available to the State after waiver or consent or other concession has been given.” Meeker v....

...superior would depend on the acts being committed in the course of his employment. Moreover, in our view an employee does not share in the state's immunity if he exceeds the authority of his position and departs from the scope of his employment. See § 111.07, Fla....

...sing said transfers." Finally, the complaint alleged that "defendant J.R. Reddish acted in bad faith for personal gain, and in a manner exhibiting wanton and willful disregard of the human rights and safety of plaintiff Charles Wayne Smith." See id. § 111.07....

...or victims of governmental torts. By allowing suits against negligent employees as well as the state, this objective is enhanced. [24] Our interpretation of subsection (9) also harmonizes that provision with other related statutes. [25] For example, section 111.07, Florida Statutes (1977), authorizes any agency or political subdivision of the state to defend certain tort actions brought against their officers and employees....

...ion of the petitioners in their individual capacities. We have entertained the petitioners' application for common law certiorari and review this order because we have determined it constitutes a material injury not remediable after final JUDGEMENT. Section 111.07, Florida Statutes (1979) provides, in pertinent part: Any agency of the state, or any county, municipality, or political subdivision of the state is authorized to provide an attorney to defend any civil actions brought against any of i...

...s actions and thereby abuse both their opponents and the judicial system. It is also argued that the award of fees to the individual defendants grants these defendants a windfall because the City has provided them with counsel under the authority of Section 111.07, Florida Statutes (1981), so that only the City has incurred the costs, not these defendants. The argument fails for several reasons. First, the appellees are not the intended beneficiaries of Section 111.07, which is designed to prevent municipal officers from having to pay the expenses of litigation incurred in the performance of their official duties....

...orney's fees awarded pursuant to section 110.309(5), Florida Statutes (1979), and Florida Administrative Code Rule 22M-2.1). See also Metropolitan Dade County v. Evans, 474 So.2d 392 (Fla. 3d DCA 1985) (this court upheld an award of fees pursuant to section 111.07, Florida Statutes (1983), in favor of the appellee, where the case against him was dismissed with prejudice pursuant to a settlement effected by Dade County, a codefendant, since "the dismissal operated to terminate finally any proceeding against the [appellee]"); 51 Island Way Condominium Association v....

...any fees at all. Because we agree with the city that there was no legal basis for the award of fees, we reverse on the cross-appeal. The appeal, therefore, is moot. ENTITLEMENT UNDER A STATUTORY THEORY We begin our analysis of this case by examining section 111.07, Florida Statutes (1985), the statute under which the appellant claims she is entitled to reimbursement of her fees....

...We turn now to the appellant's alternative argument. The appellant claims that she is entitled to reimbursement of her fees and costs under a common law theory even if she is not under the statute. We disagree with this contention as well. The First District Court of Appeal has implicitly held that section 111.07 supplants the common law, see id....

...at 239 (Zehmer, J., concurring and dissenting), and this appears to us to be correct. Several provisions of chapter 111 deal with the payments of judgments, settlements, attorney's fees and costs which can be expended for public officials and employees. See sections 111.065 through 111.072....

...For all that, while we do not agree with the conclusion of the commission on this point, we do not have the commission's report before us for review. Rather, we have for review and disposition the order of the trial court which awarded the appellant reimbursement for her attorney's fees and costs under section 111.07 as a "prevailing respondent" before the commission. [5] The pertinent statute, section 111.07, provides the following: Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffer...

...80-2258-Civ-SMA (S.D.Fla. Jan. 21, 1981), held after extensive analysis that Section 768.28, Florida Statutes, when considered in light of the recent decision in Marrapese v. Rhode Island, 500 F.Supp. 1207 (D.R.I.1980), as well as when read in pari materia with Section 111.071(1)(a), Florida Statutes, constitutes a waiver of the Eleventh Amendment immunity by the State of Florida....

...The United States District Court of Rhode Island in Marrapese, after extensive constitutional analysis, found that the Rhode Island statute waiving immunity for tort liability constituted a consent to suit for "constitutional torts." Neither the Marrapese decision nor Section 111.071, Florida Statutes, have previously been addressed by this court....

...In order to ensure consistency between statutes concerning related subject matter and also in order to provide representation for individual employees, officers, or agents of the State of Florida in defense of federal civil rights cases instituted against them, the Florida Legislature in 1979 amended Section 111.07 and created Section 111.071. Section 111.07, Florida Statutes (Supp....

...r agents, and fails to provide such an attorney, then said agency, county, municipality, or political subdivision shall reimburse any such defendant who prevails in the action for court costs and reasonable attorney's fees. (Emphasis in text added.) Section 111.071, Florida Statutes (Supp....

...final judgment, including damages, costs, and attorneys' fees, arising from a complaint for damages or injuries suffered as a result of any act or omission of action of any officer, employee, or agent in a civil or civil rights law suit described in s. 111.07....

...judgment to have caused the harm intentionally. . . . . . (4) This section is not intended to be a waiver of sovereign immunity or a waiver of any other defense or immunity to such lawsuits. (Emphasis in text added.) Clearly, on their face, Sections 111.07 and 111.071 substantiate the conclusion that neither Section 768.28 by itself, or coupled with Chapter 284, should be construed as a waiver of Eleventh Amendment immunity by the State of Florida. Additionally, the legislative histories of Sections 111.07 and 111.071 also support this conclusion: (1) S. 111.07, F.S., is broadened to allow the State or its subdivision to defend an employee in any civil action arising out of the scope of employment. Defense of such civil actions shall include but not be limited to civil rights lawsuits. The Department of Legal Affairs may provide such legal representation. (2) S. 111.071, F.S., is created to authorize a political subdivision of the State or a State agency excluded from participating in the Insurance Risk Management Trust Fund to pay final personal judgments against employees in civil or civil rights lawsuits....

...The draft does not contain this exception, however. 2. The amendment further provides authorization for local governments as well as the state to provide a defense for [section] 1983 and other civil actions. . . . . . This section creates a new statute [Section 111.071] authorizing local governments and certain state agencies to pay both tort and [Section] 1983 judgments against their officers and employees, subject to certain exceptions....

...the Florida legislature considers federal civil rights suits as civil actions separate from those civil tort suits which come under the ambit of the waiver of sovereign immunity in Section 768.28. Indeed, the clear and *1338 unambiguous language of Section 111.071(4) affirmatively evinces the intent of the State of Florida not to have the statute construed as a waiver of sovereign or any other available immunity....

...amage action arising out of his official duties, had "prevailed" when the case against him was dismissed with prejudice pursuant to a settlement effected by the county, and that he was therefore entitled to reimbursement of his attorney's fees under section 111.07, Florida Statutes (1983)....

...651, 663, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 66 (1974). This Court has previously held, in Brooks v. Parker, No. 80-2258-Civ-SMA (S.D.Fla. Jan. 21, 1981) (adopting the Report and Recommendation of Magistrate Peter R. Palermo), that the language of Fla.Stat. § 111.071(1)(a), which had not as yet been codified, "clearly indicates that the [Florida] Legislature intended to waive the State's sovereign immunity" in actions brought under § 1983....

...Parker, and as further expounded upon herein, the relevant Florida statutes fall within even the most stringent tests of construction and admit of no reasonable interpretation other than waiver of Eleventh Amendment sovereign immunity. Florida Statute § 111.07, "Defense of Civil Actions Against Public Officers," states, in pertinent part, as follows: Any agency of the state ......

...ainst the officer ... for an act or omission under color of state law, wherein it is alleged that such officer, employee, or agent has deprived another person of his rights under the Federal Constitution or laws. (Emphasis supplied). Florida Statute § 111.07, prior to the revisions of 1979, see Laws 1979, c....

...employees," and had been worded so as to reflect its focus on tort claims. [2] The changes in the statute broaden its reach to include Federal Constitutional actions. This is especially significant when construed in conjunction with Florida Statute § 111.071(1)(a), which provides that a state agency, where not insurable under the Insurance Risk Management Trust Fund, is authorized to spend its monies in order to satisfy "[a]ny final judgment, including damages, costs, and attorney's fees, arising from a complaint for damages or injury suffered as a result of any act or omission of any officer, employee or agent in a civil or civil rights lawsuit described in § 111.07 ..." (Emphasis supplied). Section 111.071(1)(a) goes *220 on to differentiate between the liability limit for tort actions, which is governed by Florida Statute § 768.28, and civil rights suits brought under 42 U.S.C....

...ly." These sections explicitly refer to the type of action at issue in the case at bar; they provide for legal representation of agents and employees of the state and for payment of damages out of government funds if such becomes necessary. Sections 111.07 and 111.071(1)(a) of the Florida Statutes thus express a waiver by the state of its sovereign immunity in cases brought pursuant to federal civil rights statutes such as 42 U.S.C....

...[I]f the claim arises from a civil rights action under 42 U.S.C., s. 1983, or similar federal statute, the limits in s. 768.26, F.S. shall not apply."); Florida Senate Staff Analysis and Economic Impact Statement on Committee Substitute, Senate Bill 332, ¶ I.B (May 14, 1979) ("S. 111.07, F.S., is broadened to allow the state or its subdivision to defend an employee in any civil action arising out of the scope of employment. Defense of such civil actions shall include but not be limited to civil rights lawsuits... S. 111.071, F.S., is created to authorize a political subdivision of the State or a State agency ......

...a `common law' tort."). Since Cate v. Oldham, supra , was a suit for preliminary injunction, the insurance sections and liability limitation sections of the Florida statutes did not come into play. In the case at bar, however, Fla.Stat. §§ 284.31, 111.07 and 111.071 are of central importance because they provide for recovery of money damages in a suit against the state or its agencies or subdivisions. As noted in this Court's ORDER of December 30, 1983, Fla.Stat. § 111.071(1)(a) provides that an uninsured state agency may spend its own funds to satisfy "any final judgment, including damages ......

...arising from a complaint for damages or injury suffered as a result of any act or omission of any officer, employee or agent in a civil or civil rights lawsuit ..." See Order, Dec. 30, 1983 at 6-7. Such a "civil rights lawsuit" is defined in Fla.Stat. § 111.07 to include cases brought "under the Federal Constitution or laws." Fla.Stat....

...Defendants ADDISON and FHP contend further that on the basis of Pennhurst State School & Hospital v. Halderman, ___ U.S. ___, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), Florida has not waived its immunity because of the reserve clause found in Fla. Stat. § 111.071(4), which states: This section is not intended to be a waiver of sovereign immunity or a waiver of any other defense or immunity to such lawsuits. As noted by this Court in its ORDER of December 30, 1983, at 7 n. 3, Fla.Stat. § 111.071(4), when read in pari materia with all of the relevant statutes, is a savings clause reserving any or all defenses still available to the State after waiver or consent or other concession has been given....

...at ___, 104 S.Ct. at 909 n. 12. It is readily apparent that the Pennsylvania statute is far more explicit, in terms of its references to both the Eleventh Amendment and to suits in Federal courts, than the Florida savings clause found in Fla. Stat. § 111.071(4)....

...gligence arising out of and in the scope of their employment ... unless such officer or employee acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property." Florida Statute § 111.07 was subsequently amended, as discussed above, to explicitly include federal constitutional torts. [3] Section 111.071(4) states: "This section is not intended to be a waiver of sovereign immunity or a waiver of any other defense or immunity to such lawsuits." However, when all of the relevant statutes are read in pari materia, it is clear that § 111.071(4) is a savings clause reserving any or all defenses still available to the State after waiver or consent or other concession has been given....

...These cases consolidated on appeal for record purposes only, originated from a six-count amended complaint filed by Fort Walton Beach Councilmen John Franklin, Patricia Thornber, and Al Grant, against the City of Fort Walton Beach. The Councilmen sued under section 111.07, Florida Statutes (1981), for reimbursement of attorney's fees, expended for private representation in several legal and administrative actions arising from the City Council's dismissal of the City Manager, Winston Walker, and the Police Chief and Director of Public Safety, Thomas B....

...In essence, the Councilmen alleged that the City had declined to represent them in the underlying *232 actions; that, as a result, they had to retain private counsel; and, that in each action, the Councilmen had prevailed and were entitled to reimbursement of attorney's fees under section 111.07....

...Finally, in Count VI, the councilmen requested reimbursement of attorney's fees in the present action. In January 1985, Judge G. Robert Barron granted the City's motion to dismiss *233 Counts II-VI for failure to state a cause of action upon which relief could be granted. Strictly construing section 111.07, the trial court found that the statute contemplated only reimbursement of attorney's fees for party-defendants, and prohibited the payment of attorney's fees on behalf of public officials who initiated litigation, (Count II)....

...In dismissing Count IV, the court granted leave to amend the count to allege that the Councilmen had requested the City to provide an attorney for their defense in the federal lawsuit, and that the request had been denied. Finally, the court found that section 111.07 did not contemplate reimbursement of attorney's fees for filing the present lawsuit (Count VI)....

...the allegations in count I, and asserting as an affirmative defense that the Councilmen were not named as party defendants in Wilson v. City of Fort Walton Beach, and did not intervene in the lawsuit, so that they were not entitled to an award under section 111.07. As to Count IV, the City admitted that Thomas Ray had filed a civil rights lawsuit in federal court against the City, the Mayor and the City Council, but otherwise denied its liability for reimbursement of attorney's fees under section 111.07, and asserted as an affirmative defense that it had provided an attorney for the Councilmen in the federal lawsuit....

...Thornber and Franklin had violated the Sunshine Law by participating in the "secret" meeting at Mayor Bagley's house, citing Tolar v. School Board of Liberty County, 398 So.2d 427 (Fla. 1981), and, that as a result, they had acted in bad faith under section 111.07 and were therefore not entitled to attorney's fees for their defense of the federal lawsuit....

...torney to defend Councilman Grant or any of the other Councilmen in the federal lawsuit, in any capacity. The City's second point on appeal is that Grant did not prevail in the federal lawsuit. Therefore, he was not entitled to attorney's fees under section 111.07. We disagree and affirm the trial court's award of attorney's fees pursuant to section 111.07, based on the authority of Metropolitan Dade County v....

...'s official duties. The officer was dismissed with prejudice as a result of a settlement negotiated by the county. The trial court found that the officer had "prevailed" and therefore, was entitled to reimbursement of his attorney's fees pursuant to section 111.07, Florida Statutes (1983)....

...88-99 A. In Part I of their appeal, the Councilmen assert that the trial court erred in dismissing Counts II, III and V, and finding that they had to be named party defendants in the underlying actions in order to be reimbursed for attorney's fees under section 111.07....

...ed directly, citing Lomelo v. *236 City of Sunrise, 423 So.2d 974 (Fla. 4th DCA 1983), rev. dism. 431 So.2d 988 (Fla. 1983), and Ferrara v. Caves, et al., 475 So.2d 1295 (Fla. 4th DCA 1985). The City responds that this court should strictly construe section 111.07, therefore, the Councilmen were not entitled to attorney's fees because they were not defendants in the underlying actions referred to in Counts II, III, and V of the amended complaint. Section 111.07 recognizes the common law doctrine that a public officer is entitled to an attorney at the expense of the public in litigation arising from the performance of his official duties while serving a public purpose....

...1st DCA 1967); Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890). The purpose of the rule is to avoid a "chilling effect" that a denial of representation might have on a public official in performing his duties properly and diligently. Nuzum, 407 So.2d at 279. Section 111.07 "is designed to prevent municipal officers from having to pay the expenses of litigation incurred in the performance of their official duties." Wright v....

...While the statute does not mandate a public body to defend an employee, Greer v. Mathews, 409 So.2d 1105 (Fla. 1st DCA 1982), it does require the public body to reimburse the employee for private representation in actions arising out of his official duties. Section 111.07, Florida Statutes (1981). Statutes authorizing the award of attorney's fees are considered in derogation of common law so as to require strict construction. Encompass Incorporated v. Alford, 444 So.2d 1085 (Fla. 1st DCA 1984). Section 111.07 requires reimbursement of attorney's fees to a prevailing defendant in a civil action arising from a complaint for damages or injuries suffered as a result of the official acts or omissions of public officials or employees. In neither the suit for injunctive relief filed by the Councilmen, nor the grievance petition and circuit court action filed by Ray, were the Councilmen prevailing defendants as required by section 111.07....

...asonable attorney's fees... ." 475 So.2d at 1300. The court found that the recall petitions were based upon actions that the commissioners took as public officials. Id. While we find Lomelo to be a sound embodiment of the common law as recognized in section 111.07, it is inapplicable to the present case. In Lomelo, the parties agreed that no state statute, city ordinance or provision of the city charter authorized or required reimbursement of attorney's fees in that case. 423 So.2d at 975. The probable reason for this stipulation was that section 111.07 only applies to defense of civil actions....

...Additionally, the mayor in Lomelo was a defendant to a felony indictment, unlike the Councilmen in the present case, who were only named defendants in the federal civil rights action. We also find Ferrara inapplicable. The Ferrara court did not address the propriety of an attorney's fee award under section 111.07....

...The court simply construed the "spirit" of the common law principles as delineated in Lomelo, to include actions in equity instituted to combat recall petitions which charged the public officials with misconduct in office. Such a construction would be improper under section 111.07, which requires reimbursement of attorney's fees to defendants who prevail in civil actions "arising from a complaint for damages or injury." Therefore, we hold that section 111.07 does not require the City of Fort Walton Beach to reimburse the Councilmen for reasonable attorney's fees and costs expended to initiate the lawsuit to enjoin the recall petitions; nor is the City obligated for any fees or costs incurr...

...Because we find that the trial court improperly tried the Sunshine Law issues, we decline to address the merits of the trial court's finding that the Sunshine Law violation constituted "bad faith" action negating an award of attorney's fees pursuant to section 111.07. The City never pled as an affirmative defense that the Councilmen violated the Sunshine Law and that such violation constituted "bad faith" action negating an award of attorney's fees under section 111.07....

...mended complaint. The trial court denied the prayer for attorney's fees with respect to count II solely on the rationale that appellants were not named defendants in the civil action alleged in that count and thus did not fall within the language of section 111.07, Florida Statutes, entitling them to attorneys fees....

...I can find no valid distinction between the facts in Ferrara and in this case. I conclude, therefore, that the affirmance of the dismissal of count II in this case amounts to a direct conflict with Ferrara. The majority opinion predicates its holding entirely on a strict construction of section 111.07 as requiring that the officer actually be named as a defendant in the court proceeding in order to be entitled to reimbursement of attorneys fees. It should be noted that the court in Ferrara did not mention section 111.07 in reaching its result, apparently preferring to rest its decision on the common law doctrine....

...1st DCA 1984), a case that involved a statutory provision for attorney's fees in a private dispute involving a mechanic's lien. But that case has no precedential value in respect to the question now before us because, as cited above and conceded by the majority opinion, "section 111.07 recognizes the common law doctrine that a public officer is entitled to an attorney at the expense of the public in litigation arising from the performance of his official duties while serving a public purpose." Supra at 236....

...The Sunshine Law provides, inter alia, that all public meetings at which official action is to be taken must be open to the public at all times, and that any resolution, rule, or formal action is void unless taken or made at such a meeting. [3] In pertinent part, section 111.07 authorizes a public body to provide an attorney for the defense of a public official in a civil lawsuit for acts arising out of the official's employment, except in tort actions where the official "acted in bad faith, with malicious pu...

...[2] Accordingly, the judgment appealed is in all respects, AFFIRMED. BOOTH, SMITH and MINER, JJ., concur. NOTES [1] Paragraph 11, Count VI, of appellants' First Amended Complaint specifically claimed reasonable attorney's fees "for bringing this action to enforce their rights under F.S. 111.07." [2] Case law approving an award of attorney's fees and costs for establishing entitlement to fees under a particular statute makes such an award dependent upon a showing, in one way or another, that under the attorney's agreement with the client the award of such additional fees would be beneficial to the client....

...1st DCA 1989) (sections 624.155(3) and 627.428, Florida Statutes (1987), actions by insureds against insurer). Here, given the absence of testimony establishing the attorney's right to recovery of fees from the appellants for the action to enforce fees under section 111.07, it is doubtful that such recovery could have been obtained even had the issue not been waived by failure to appeal the dismissal of Count VI seeking such fees.

...interest was infringed upon. See Monroe County v. Graham, 493 So.2d 74, 75 (Fla. 3d DCA 1986). There is no constitutional right in Florida to have one's attorney's fees paid. Furthermore, Amador is not entitled by statute to have his fees paid under § 111.07, Florida Statutes [1] , as individual application of § 111.07 is to be decided by the respective governmental unit (i.e....

...lder exception). Thus, for the reasons expressed herein, we reverse the order denying the motion to dismiss and remand with directions that the trial court transfer this cause to Leon County, Florida. Reversed and remanded with directions. NOTES [1] Section 111.07, Florida Statutes (2001), provides, in pertinent part: Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complain...

...ntroversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct."); Nuzum v. Valdes, 407 So.2d 277, 279 (Fla. 3d DCA 1981) ("This statute [section 111.07, Florida Statutes (1979)] recognizes the common law principle that a public officer is entitled to representation at the public expense in a lawsuit arising from performance of official duties while serving a public purpose."); Lomelo v....

...t him became an asset of the bankruptcy estate. The bankruptcy trustee, Soneet R. Kapila, joined Griffin in looking to the City for payment of the judgment, filing suit in state circuit court to compel the City to pay the civil rights judgment under Section 111.071(1)(a), Florida Statutes (2003). The trial court granted the City's motion for summary judgment and for final judgment. Griffin and Kapila appealed. Section 111.071(1)(a), Florida Statutes (2003), provides: "If the action is a civil rights action arising under 42 U.S.C....

...y. " [e.s.] When the jury in the federal civil rights trial determined that Neal raped Griffin — an act which is per se intentional and harmful — then the final judgment made such a determination of intentional harm which satisfies the language of section 111.07(1)(a)....

...orize other counsel when professional conflict of interest is present. Relevant to consideration of your question are several legislative enactments specifying situations in which the state may provide legal representation to officers and employees. Section 111.07 , F....

...lause existing in the disciplinary provisions of the Medical Practice Act. The private physicians to whom your question relates are neither officers nor employees of the Board of Medical Examiners and, hence, are not included under the provisions of s. 111.07 , F....

...against the two special agents of the department (one of whom is still currently employed and one of whom is not), or, alternatively, reimburse them if they pay said judgment? 2. Assuming funds are available in the department budget and in light of s. 111.07 , F....

...1970); AGO's 071-28, 075-120, and 077-8. The Legislature possesses the exclusive power in determining how, when, and for what purpose public moneys should be applied in conducting the government. State v. Lee, 163 So. 859 (Fla. 1938); State v. Green, 116 So. 66 (1928). Section 111.07 , F....

...el to defend a volunteer firefighter in a criminal proceeding where the governing body of the county has made a determination that the conduct complained of arises out of the firefighter's official duties and occurred while serving a public purpose. Section 111.07 , F.S., provides in part that: Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury...

...rming official duties of the Department of Natural Resources and are not within the scope of their employment with the department and would not, therefore, be entitled to a publicly provided defense by the Department of Natural Resources pursuant to s. 111.07 , F.S....

court costs and reasonable attorney's fees. Section 111.07, F.S., would not appear to authorize provision

fee entitlement to the council members under section 111.07, Florida Statutes, because the statute allowed

...ort actions brought in Florida courts, judges currently enjoy absolute immunity from damages liability for acts performed in the course of their judicial capacities unless such acts are undertaken with a clear absence or jurisdiction. 2. Pursuant to s. 111.07 , F.S., the Department of Legal Affairs may, in its discretion, represent a chief judge in a tort action brought in state court or in a Title 42 U.S.C....

...against the chief judge in his or her official capacity. 20 Such an action against a chief judge would not subject the judge to personal liability but would limit recovery to an action against the judge in his or her official capacity. QUESTION TWO Section 111.07 , F.S., provides in part that "[l]egal representation of an officer, employee, or agent of a state agency may be provided by the Department of Legal Affairs." (e.s.) The word "may" is usually employed as implying permissive or discretionary action rather than mandatory conduct. 21 Thus, the Department of Legal Affairs possesses the discretion, rather than any mandatory duty, to provide legal representation pursuant to s. 111.07 , F.S....

...tate attorney. . . ." No comment is expressed herein as to any right, privilege or duty on the part of the district medical examiner to seize or retain any physical evidence in the course of such statutory examinations, investigations and autopsies. Section 111.07 , F.S., provides in pertinent part as follows: Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for da...

...malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. . . . Legal representation of an officer, employee, or agent of a state agency may be provided by the Department of Legal Affairs. (e.s.) Section 111.07 does not define the terms "political subdivision" or "state agency" for purposes of that section....

...ision" include "all other districts in this state." See, s. 406.05 , F.S., providing that the Medical Examiners Commission within the Department of Law Enforcement "shall establish medical examiner districts within the state. . . ." (e.s.) See also, s. 111.071 (3), F.S., defining "state agency" for purposes of that section to include "an executive department, a constitutional officer, the Legislature, and the judicial branch." I am not aware of any statute which operates to make the medical examiners' districts established pursuant to s. 406.05 , F.S., "state agencies" for purposes of s. 111.07 , nor have you directed my attention to such a statute. Rather, it appears that ss. 111.07 and 1.01 (9) operate to authorize each such district to provide an attorney to defend a civil action arising from a complaint for damages or injury suffered as a result of acts or omissions of district officers, employees, or agents where such act or omission arises from the scope of the employment or function of such officer, employee, or agent, and that s. 111.07 does not impose any duty on the Attorney General to provide representation for such a district officer, employee, or agent....

...Fla., 1981) (primary determination as to allowance of counsel in respective governmental unit rather than with judiciary on challenge by private litigant); Florida Police Benevolent Association, Inc. v. Miller, 464 So.2d 236 (5 D.C.A. Fla., 1985) (authority under s. 111.07 is discretionary with governmental units). I am similarly unable to conclude that a district medical examiner is a state officer for purposes of representation by the Attorney General pursuant to s. 111.07 , F.S....

...Accordingly, I am of the view that the Attorney General is not required to represent the district medical examiner in a civil action arising from alleged acts or omissions within the scope of the district medical examiner's official duties, nor is the Attorney General authorized by s. 111.07 , F.S., or by s....

...t the Attorney General is not required to represent the district medical examiner in a civil action arising from alleged acts or omissions within the scope of the district medical examiner's official duties, nor is the Attorney General authorized by s. 111.07 , F.S., or by s....

procedure applies. The statute in Nuzum is section 111.07. Defense of civil actions against public officers

Department of Natural Resources. Question One (D) Section 111.07, F.S., authorizes the defense, under certain

authority or its governing board. QUESTION TWO Section 111.07, F.S., authorizes the defense, under certain