MARY BARLEY, as Personal

Representative of the Estate

Of GEORGE M. BARLEY, JR.,

SHEILA MULLINS, BENJAMIN

WERMEIL, and NATHANIEL

PRYOR REED, both individually

And on behalf of others

Similarly situated,

Plaintiffs,

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO: CL 97-10228 Div. 34

VS.

SOUTH FLORIDA WATER toy MANAGEMENT DISTRICT, tqcrtn,*

Defendant.

 

The Defendant, SOUTH FLORIDA WATER MANAGEMENT DISTRICT ("SFWMD"), by and through its undersigned attorney, pursuant to Fla. Stat. §57.105, moves to tax attorney's fees against Plaintiffs MARY BARLEY, as Personal Representative of the Estate of GEORGE M. BARLEY, JR., SHEELA MULLINS, BENJAMIN WERMEIL, and NATHANIEL PRYOR REED, and requests entry of an order granting this motion. In support of this request, Defendant, SOUTH FLORIDA WATER MANAGEMENT DISTRICT ("District") states:

1. Plaintiffs filed the Complaint in the above-styled action challenging the legality of the District's ad valorem tax assessments in light of Article 11, Section

7(b)(con-tmonly known as "Amendment 5"). The District has filed a motion to dismiss based on failure to state a cause of action and jurisdictional arguments.

2. Prior to the filing of the Complaint, Plaintiffs' counsel participated in the briefing and oral argument before the Florida Supreme Court regarding the Governor's request for an Advisory Opinion of the Justices of the Supreme Court as to whether Amendment 5 is self-executing "or is the Legislature required to enact implementing legislation in order to detem-iine how to carry out its intended purposes and defining any rights intended to be determined, enjoyed, or protected?" (In re Advisory Opinion to the Governor, 22 Fla. L. Weekly S728 (Fla. Nov. 26, 1997))(quoting Governor's March 6, 1997 letter requesting advice).

3. On November 26, 1997, all nine Justices of the Supreme Court signed an Advisory Opinion stating that "Amendment 5 is not self-executing and cannot be implemented without the aid of legislative enactment because its fails to lay down a sufficient rule for accomplishing its purpose." The Justices also found "no inconsistency between the Everglades Forever Act [EFA] and Amendment 5." Less than one week later, Plaintiffs filed their Complaint alleging that the District has "done nothing to effect a change to the EFA or to carry out Amendment 5's intended purpose. . . ."

4. This lawsuit is nothing more than attempted leverage by the Plaintiffs over theLegislaturetoenactachangeintheEFA. However,anyjudicialrecourseatthistime is premature and must await legislative implementation. There is no cause of action at all

'I the Legislature does act.

unti 5. It is clear from a reading of the Complaint and the Advisory Opinion that

the case against the District has no merit and was frivolous from its inception.

WHEREFORE, the District requests that this Court enter an order granting its request to tax fees pursuant to §57-105, Fla. Stat. since there is a complete absence of a justiciable issue of either law or fact raised in the Complaint.

CERTIFICATE OF SERVICE

I HEREBY CERTEFY that a true and correct copy of the above was furnished by U.S. Mail to E. Thom Rumberger, Esq., and Richard A. Keller, Esq., Rumberger, Kirk & Caldwell, P.A., Signature Plaza, Suite 300, 201 South Orange Avenue, P. 0. Box 1873, Orlando, FL 32802; and Jon Mills, Esq., P. 0. Bo,-, 2099, Gainesville, FL 32602 this 2-t@T-day of January, 1998.