Author Archives: mherron

PUBLIC RECORDS LITIGATION: Condition Precedent for Seeking Attorneys’ Fees Against the State

In a recent case – State of Florida, Department of Economic Opportunity v. Consumer Rights, LLC – the First District of Appeal reversed the trial court’s award of attorney’s fees under Florida’s public records law, because the party seeking the public records failed to give notice of the claim for attorney’s fees to the Department of Financial Service at the time it filed the complaint pursuant to Section 284.30, Florida Statutes.

Section 284.30, Florida Statutes, provides as follows:

State Risk Management Trust Fund; coverages to be provided.—A state self-insurance fund, designated as the “State Risk Management Trust Fund,” is created to be set up by the Department of Financial Services and administered with a program of risk management, which fund is to provide insurance, as authorized by s. 284.33, for workers’ compensation, general liability, fleet automotive liability, federal civil rights actions under 42 U.S.C. s. 1983 or similar federal statutes, and court-awarded attorney’s fees in other proceedings against the state except for such awards in eminent domain or for inverse condemnation or for awards by the Public Employees Relations Commission. A party to a suit in any court, to be entitled to have his or her attorney’s fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Financial Services; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees. (Emphasis added.)

In its opinion, the Court noted that “[t]he statute explicitly excludes eminent domain, inverse condemnation, or Public Employees Relations Commission suits from this statute’s requirements. If the Legislature sought to exclude public records cases from these requirements, it would have listed it with the other exclusions. As such, the plain language of the statute shows that the Legislature intended to include public records cases within its purview.”

Accordingly, the Court concluded that the notice requirement of Section 284.30 was a condition precedent to the award of attorney’s fees and reversed the award of fees in this case, despite a finding by the trial court that the agency had “unjustifiably delayed in producing the records” in violation of Chapter 119, Florida Statutes.
A motion for rehearing has been filed with the Court.

For more information regarding this issue or other open government issues, contact Mark Herron at

Public Records Law

Granting a motion for rehearing, the First District reconsidered its prior opinion concerning what constitutes a “student record” under the Family Educational Rights & Privacy Act (FERPA), Title 20 U.S.C. s. 1232g, and the exemption to the public records law for a student’s “education records.”  Rhea v. The District Board of Trustees of Santa Fe College, — So. 3d —, 2013 WL 950544 (Fla. 1st DCA March 13, 2013).

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Recent Administrative Law Notes

The Fourth District Court of Appeal recently held that the due process rights of a party are not violated in the circumstance where the administrative law judge who issued the recommended order was not the same administrative law judge (because of retirement) before whom the final hearing was conducted.  Sabates v. State of Florida, Department of Health, — So. 3d, 38 Fla. L. Weekly (Fla. 4th DCA December 19, 2012).

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Mr. Caparello has been selected into the International Who’s Who of Mediation Lawyers

Tallahassee, FL 32308
January, 23, 2012

Mr. Caparello has been selected into the International Who’s Who of Mediation Lawyers. The selection was based on the opinions and input of international law firm clients, corporate counsel and mediation specialists from the United States and around the world. Continue Reading →

Bryan W. Duke, Former St. Joe Company Assistant GC, Joins Firm

Bryan W. Duke

Bryan W. Duke

Bryan W. Duke, former Assistant General Counsel for the St. Joe Company, joined the firm effective January 1, 2011. Bryan brings over 25 years of experience to his practice which will focus on the areas of real estate transactions, land use, permitting and litigation.

Bryan is a graduate of Davidson College and the University of Florida, College of Law. He began his legal career in Fort Lauderdale as a litigator with a focus on commercial and construction litigation. He participated in jury and non-jury trials and handled a number of appeals. After eight years of private practice, Bryan took the position of General Counsel with Stiles Corporation in Fort Lauderdale. At Stiles, Bryan worked on every aspect of project development: property sales and acquisitions, development and architectural agreements, and commercial retail and office leases.

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January 19, 2010
CONTACT: Dorohn A. Frazier,
The Florida Bar
TELEPHONE: (850) 561-5764;

Monica Miller Evans

Monica Miller Evans, a Tallahassee attorney with Messer Caparello P.A., has been selected to receive the 2010 Florida Bar Young Lawyers Division Pro Bono Service Award. The award will be presented at a Jan. 28 ceremony at the Florida Supreme Court.

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Guardian Ad Litem Program Pro Bono Attorney to receive Young Lawyers Pro Bono Award


Tallahassee, Florida, January 14, 2010– Monica Evans, a Guardian ad Litem Pro Bono attorney for the Second Judicial Circuit Guardian Ad Litem Program, will be accepting the Young Lawyers Pro Bono Award January 28, 2010 at the Florida Supreme Court. Commenting on the recognition, Ms. Evans stated “I am honored and humbled to be receiving an award for doing something so rewarding.”

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