City’s legal case management wins battles and loses wars

The late George McClure was representing Henry and Esther Whetstone, when Historic City News learned, in December 2011, that St Augustine city staff had walked away from negotiations on a permit to allow “Whetstone’s Bayfront Inn” to construct a dock and pier over city-owned bottomlands.

McClure’s research seemed to support Whetstone’s claim that his traditional riparian rights were not lost when the straightening of Avenida Menendez, south of the Bridge of Lions, physically separated his mother and father’s property from the sea wall where the motel is built.

As expected, when the negotiations ended, the City of St Augustine denied the permit application. The Whetstone’s headed to court, which was also expected. The litigation was proceeding when something happened that was not expected — on July 7, 2013, 61-year-old attorney George Morris McClure died.

Despite the fact that the city has a $130,423 a year attorney on staff (45-year-old Isabelle Lopez), and a $63,036 a year assistant attorney on staff (40-year-old Denise May), except in the most trivial pursuit, neither lawyer has to represent the City in court. For that, the City hires a professional outside law firm who sees dollar signs every time the phone rings.

In the case of the Whetstone litigation, the court ruled in favor of the City’s right to deny the construction permit, so they consider that a “win”. But, they lost a reported total of $215,008.47 in legal fees for outside counsel.

The time for Whetstone to appeal the adverse ruling has expired, so the City considers that a “win”, also. But, as City Attorney Lopez said in a quote published in The St Augustine Report, “These types of cases follow what is known as the American Rule — which means each party has to pay their own attorney’s fees.” So we win some and we lose some.

Since the City gets threatened with lawsuits regularly, you occasionally hear about the City’s professional liability insurance underwritten through the Florida League of Cities. This is the same League of Cities who advanced, and failed, in an attempt to shield errant cities from an obligation to pay restitution of reasonable attorney’s fees to citizens who are forced to sue to get access to public records.

Unfortunately for City taxpayers who have employed all these legal geniuses, the Whetstone litigation does not allow the City to recover the near quarter-million dollar legal bill, even though they “win”.

“When a plaintiff does not make a demand for monetary damages, for instance in a case to quiet title or to seek a declaratory judgment such as the Whetstone matter, the City’s insurance carrier does not provide litigation coverage, so the City has to retain private counsel to represent it in litigation at its own cost,” Lopez went on to say in The St Augustine Report quote.

But Whetstone vs City of St Augustine is not the only legal challenge dragging on through the court. Recently the City lost a $40,000 negotiated settlement with former 450th Commemoration do-nothing Charles Seraphin over the process used by City Manager John Regan to terminate him.

And don’t forget the six-year-old Wendler vs City of St Augustine, with outside counsel fees over $326,540 and counting because the former administration refused the permits required to demolish several termite-infested rattraps, making way for a boutique hotel.

“For Bert Harris Act cases, like Wendler, the City’s insurance carrier provides coverage for newly-filed cases, but not for prior existing cases,” Lopez explained of the deepening legal money pit. “The Harris Act does provide for the winning side to seek attorney’s fees from the non-prevailing party.”

Anyone taking or laying odds on our chances with that?