PALAFOX, LLC

v.

CARMEN DIAZ

ROBERTS, J.

Appellant Palafox, LLC (Palafox), appeals a final order in which the Administrative Law Judge (ALJ) ruled that opposing counsel filed a pleading for an improper purpose under section 120.569(2)(e), Florida Statutes (2020), but determined that attorney’s fees could not be assessed against counsel because Palafox’s motion for sanctions was untimely. Palafox argues the ruling is contrary to the plain language of the statute. We agree and reverse.

Facts

Palafox is the developer of a multi-family residential development in Tallahassee (the Project). Appellee, Carmen Diaz,

is a homeowner in the adjacent Palafox Preserve Subdivision (Palafox Preserve). Ms. Diaz is represented by attorney Jefferson Braswell. This is not Mr. Braswell’s first challenge to the Project. Since 2015, he has filed civil, administrative, and licensing complaints in an attempt to halt or alter the scope of the Project.¹

The underlying litigation began in October 2019 when Mr. Braswell filed an administrative petition on behalf of Ms. Diaz to challenge Palafox’s environmental resource permit (ERP). The final hearing on the merits was held in February 2020.2 Braswell under sections 120.595 and 120.569(2)(e).

The ALJ held a hearing on sanctions and entered the final order on appeal in October 2020.3 Citing Mercedes Lighting and Electrical Supply, Inc. v. State, 560 So. 2d 272 (Fla. 1st DCA 1990), she reasoned that the purpose of sanctions was to deter parties from filing improper pleadings and not to compensate prevailing parties. She interpreted Mercedes to require a party seeking sanctions under section 120.569(2)(e) “to take action to mitigate the amount of resources expended by the party in defense of the pleading that the party claims is filed for an improper purpose.”

She found Palafox knew or should have known immediately that the administrative petition was filed for an improper purpose but waited six months – after the final hearing – to seek sanctions. The ALJ concluded Palafox’s delay “militate[d] against granting an award of attorney’s fees under section 120.569(2)(e).” Palafox’s appeal followed.

Analysis

We review issues of law de novo. See A.W. v. Agency for Persons with Disabilities, 288 So. 3d 91, 93 (Fla. 1st DCA 2015).

First, it bears noting what this appeal is not about. In the answer brief and at oral argument, Mr. Braswell asked this Court to consider the merits of the ERP challenge. This is not an appeal from the order granting the ERP. In the answer brief and at oral argument, Mr. Braswell argued he did not act with an improper purpose. Palafox did not appeal that portion of the final order. Because Mr. Braswell did not file a cross-appeal, he waived any challenge to the ALJ’s findings or conclusions regarding improper purpose. See Nealy v. City of W. Palm Beach, 442 So. 2d 273, 273 (Fla. 1st DCA 1983).

Palafox raises three issues on appeal, two of which merit discussion.⁴ First, it argues that the plain language of section 120.569(2)(e) does not include a timeliness requirement. Second, it argues that Mercedes does not require a section 120.569(2)(e) motion to be filed early in administrative litigation for fees to be awarded. We agree.

Section 120.569(2)(e) states:

All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party's attorney, or the party's qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

(Emphasis added.)

Under the plain language of the statute, once the ALJ found the petition was filed for an improper purpose, she was required to impose a sanction. Cf. Suarez v. Bank of N.Y. Mellon Trust Co., 325 So. 3d 205, 208 (Fla. 2d DCA 2021) (recognizing the use of the word “shall” in section 57.105, Florida Statutes, “evidences a legislative intention to impose a mandatory penalty”) (citations omitted).

The ALJ applied Mercedes to preclude a sanction here based on her perception of Palafox’s delay. This was error. Mercedes reversed a final order awarding attorney’s fees as a sanction for filing a frivolous bid protest. 560 So. 2d at 279. The basis for reversal was this Court’s determination that the bid protest was not filed for an improper purpose and sanctions should not have been imposed. Id. at 278–79. Thus, any discussion in Mercedes about timeliness of the motion for sanctions is dicta. Additionally, Mercedes’s discussion of the purpose behind sanctions and the need for a movant to mitigate expenses cannot be interpreted to prohibit a sanction when a violation of section 120.569(2)(e) has been found.

The plain language of section 120.569(2)(e) does not include a time requirement for seeking sanctions. The Legislature has included time limits in other statutory fee provisions, but has not done so here. See, e.g., § 57.105(4), Fla. Stat. (2021) (specifying a twenty-one-day “safe-harbor” period); § 768.79, Fla. Stat. (2021) (specifying time limits around offers of judgment). Thus, the ALJ erred in considering the timeliness of Palafox’s motion in determining whether or not to impose a sanction. So long as an ALJ continues to have jurisdiction and finds a pleading was filed for an improper purpose, the plain language of section 120.569(2)(e) requires a sanction to be imposed.

Conclusion

We reverse the final order and remand with instructions for the ALJ to determine an appropriate sanction against Mr. Braswell.

REVERSED and REMANDED.

RAY and BILBREY, JJ., concur. _____________________________