Attorney General of Florida — Opinion
July 12, 2005
RE: COUNTIES — PUBLIC FUNDS — ATTORNEYS FEES — LAND USE — authority of county to pay attorney’s fees of citizen who successfully challenged the consistency of a development order with a comprehensive plan. ss. 57.105, 163.3215, Fla. Stat.
County funds, payment of attorney fees
Charlie Crist, Attorney General
Mr. Joseph G. Jarret Polk County Attorney Post Office Box 9005 Bartow, Florida 33831-9005
Dear Mr. Jarret:
On behalf of the Board of County Commissioners of Polk County, you ask substantially the following question:
May the county expend county funds to pay the attorney’s fees of a citizen who sued the county pursuant to section 163.3215, Florida Statutes, and prevailed?
According to your letter, a citizen sued the county in accordance with section 163.3215, Florida Statutes. That section provides in subsections (3) and (4) that
“(3) Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. . . .
(4) If a local government elects to adopt or has adopted an ordinance establishing, at a minimum, the requirements listed in this subsection, the sole method by which an aggrieved and adversely affected party may challenge any decision of local government granting or denying an application for a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property, on the basis that it is not consistent with the comprehensive plan adopted under this part, is by an appeal filed by a petition for writ of certiorari filed in circuit court no later than 30 days following rendition of a development order or other written decision of the local government, or when all local administrative appeals, if any, are exhausted, whichever occurs later. . . .”[1]
You state that the citizen prevailed in the lawsuit and now is seeking reimbursement for attorney’s fees from the county. You ask whether the county is liable for such fees under the following facts:
“1. The applicable statute number appears to be silent as to the award of attorney’s fees;
2. There exists no contract between the parties;
3. The citizens, in their verified complaint, did not plead for attorney’s fees;
4. The issue of attorney’s fees was never raised at trial;
5. The court, upon issuing its Final Judgment, did not award attorney’s fees;
6. The case has become final, and no appeal was taken by either party;
7. There was no demand made for fees in accordance with F.S. s. 57.105 nor any other statute.”
Generally, a court may award attorney’s fees only when such fees are expressly provided for by statute, rule or contract.[2] As you note, section 163.3215, Florida Statutes, in providing for an aggrieved person to bring an action, does not provide for attorney’s fees for the prevailing party.[3] Section 57.105(1), Florida Statutes, authorizes a court to award reasonable attorney’s fees to the prevailing party on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense, when initially presented to the court or at any time before trial:
“(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.”
In addition, the courts have recognized a limited exception to the general rule prohibiting the award of attorney’s fees unless provided for by statute, rule or contract in situations involving inequitable conduct.[4] Generally, a claim for attorney’s fees, based on either statute or contract, must be pled.[5] However, according to your letter, the complaint did not plead for attorney’s fees and no demand has been made for fees in accordance with section 57.105, Florida Statutes, or any other statute. You further state that the court did not order the payment of attorney’s fees. No demand for payment was made to the county until after the case had become final and no appeal was taken.
In light of the above and based upon the facts as presented to this office, I am of the opinion that the county is under no requirement to pay the attorney’s fees of a citizen who successfully sued the county pursuant to section 163.3215, Florida Statutes.
As to whether the county may pay such fees, I note that this office in Attorney General Opinion 98-18 advised the Department of Children and Families that it could not pay the attorney’s fees incurred by a respondent to a dependency petition filed by the department pursuant to Part II, Chapter 39, Florida Statutes, when the respondent prevailed but there was no request for attorney’s fees made during the pendency of the case, no court order directed the department to make such payments, and the case had become final with no issues pending before any court. This office recognized that the department, as an administrative agency, possessed only such authority as had expressly or by necessary implication been granted or conferred by law.[6] Thus, in seeking to carry out some function or to expend funds, the department was required to examine the statutes for authority.
Counties, however, have been granted broad home rule powers.[7] The exercise of such powers and the expenditure of county funds must be for a county purpose. Article VII, section 10, Florida Constitution, prohibits the state and its subdivisions from using their taxing power or pledging public credit to aid any private person or entity. However, if the expenditure primarily or substantially serves a public purpose, the fact that the expenditure may also incidentally benefit private individuals does not violate Article VII, section 10. As the Florida Supreme Court stated in State v. Housing Finance Authority of Polk County,[8]
“Under the constitution of 1968, it is immaterial that the primary beneficiary of a project be a private party, if the public interest, even though indirect, is present and sufficiently strong. State v. Putnam County Development Authority, 249 So.2d 6 (Fla. 1971). Of course, public bodies cannot appropriate public funds indiscriminately, or for the benefit of private parties, where there is not a reasonable and adequate public interest. An indirect public benefit may be adequate to support the public participation in a project which imposes no obligation on the public, and the qualification of the direct beneficiary complies with the principles of due process and equal protection.”
Generally, the payment of attorney’s fees not required by statute, rule or contract would not appear to constitute an appropriate expenditure of county funds, although there may be instances where an action brought by a citizen to challenge an invalid action by the county could serve a county purpose. The determination of whether the expenditure of county funds serves a county purpose, however, is one that is within the exclusive providence of the board of county commissioners, as the legislative body for the county.
Sincerely,
Charlie Crist Attorney General
CC/tjw
(Fla. 4th DCA 1973).