By Steve Plunkett
Town resident Martin O’Boyle appears to have won his first public records lawsuit against Gulf Stream, but whether it will cost the town $650,000 or only $10,000 is yet another dispute.
O’Boyle said Gulf Stream would pay $100,000 extra for his attorney’s fees following the ruling by Florida’s 4th District Court of Appeal. A three-judge panel upheld a Circuit Court decision that Gulf Stream violated the state’s Public Records Act by not promptly giving O’Boyle a recording of police radio transmissions from two days in 2014.
Appellate Judges Spencer Levine, Alan Forst and Jeffrey Kuntz issued their opinion without comment Nov. 2 and ordered the town to pay O’Boyle’s legal bills for the appeal.
“They were spouting off to us how they were going to win this appeal,” O’Boyle said. “Now they’re going to have to pay more, but it’s never say die with them.”
His lawyers have already filed documents with the Circuit Court saying they are owed more than $586,000.
But Robert Sweetapple, the town’s outside attorney in public records cases, said Gulf Stream should be held liable only for attorney’s fees spent to obtain the records. The town delivered the police tapes in July 2014, nine weeks after O’Boyle sued but 22 months before the case went to trial.
“You’re going to get $10,000 in fees maybe, $20,000 at the worst,” Sweetapple said.
A ruling for the town
Meanwhile, Gulf Stream notched its seventh success Dec. 7 when County Court Judge Dana Santino ruled the town did not violate the Public Records Act by providing a redacted copy of its bill from Sweetapple for November 2014. O’Boyle and his Asset Enhancement Inc. firm had argued the redactions were unlawful.
Gulf Stream considers it a win if O’Boyle or O’Boyle entities lose a lawsuit, drop a suit or settle out of court. O’Boyle has 10 cases still pending, Sweetapple said.
“We could lose one or two of those,” he said.
In the appellate case, Sweetapple said he “was hoisted on my own petard” by Gulf Stream’s successful lobbying for amendments to the Public Records Act. Changes that took effect last May allow public agencies to defend themselves if a requestor had an “improper purpose” such as generating excessive attorney’s fees and make unsuccessful requestors liable for the agency’s attorney’s fees.
But, Sweetapple said, courts consider it an axiom that the enactment of a new law means its provisions were not part of the law before, so he could not argue that O’Boyle’s purpose was improper in this or the other outstanding cases.
When Circuit Judge Donald Hafele issued his decision in the underlying case in September 2016, he reserved jurisdiction to award O’Boyle’s attorney fees and costs. Martin O’Boyle’s son Jonathan has since filed documents seeking $131,155 for his firm’s work through Oct. 4, 2016.
Jonathan O’Boyle opened The O’Boyle Law Firm in or about January 2014. Three more law firms for Martin O’Boyle want $455,030, or a total of $586,185.
The lawyers also told Hafele they expected to be paid for their time spent preparing for and attending a hearing on the motion to award fees. Sweetapple said that hearing will not take place before June.
Most if not all of any money Hafele awards will go to Liberty Mutual Fire Insurance Co. O’Boyle has an umbrella liability policy that has covered his litigation expenses in this and four other cases where he is a defendant, counter-defendant or third-party defendant, court documents show.
The policy “requires O’Boyle to pursue recovery of the expenses incurred in these matters and reimburse Liberty Mutual for the attorneys’ fees and costs advanced on [his] behalf,” his attorney Elaine Johnson James told the judge.
And the skirmishing over the lawsuit is not settled yet. Gulf Stream asked the appeal court Dec. 1 for a rehearing or clarification of its unwritten opinion. James almost immediately filed an objection on O’Boyle’s behalf, saying the request “purports to seek ‘clarification’ of an order that is not ambiguous.”
James said she and O’Boyle were “delighted” by the appeal court’s swift action, which came “a mere two days after oral argument.”
“In more than 30 years as a trial and appellate attorney, I have never received an appellate court decision so quickly,” James said.
James and Sweetapple agreed that the ruling, because it is unwritten, will not set a precedent for other public records cases.
The lawsuit was over O’Boyle’s request for records related to the town’s removal of his campaign signs from public rights of way in his unsuccessful 2014 run for Town Commission. O’Boyle sought all police reports for March 3-4 that year, including “appointment calendars, sign-in sheets and radio communications.”
Gulf Stream quickly delivered seven pages of incident reports, but did not turn over sign-in sheets until three weeks after O’Boyle sued. It gave him a CD of the police radio transmissions, which the Delray Beach Police Department records and stores for the town, six weeks later.
Slander suit withdrawn
In still another action, O’Boyle on Nov. 6 withdrew a slander lawsuit against Sweetapple after the attorney asked a judge to sanction O’Boyle for what he called “abusive discovery practices” and “bad faith litigation conduct.”
A hearing had been scheduled for Nov. 9. O’Boyle claimed Sweetapple “falsely stated to [O’Boyle’s] friends, colleagues, business associates and attorneys … that [O’Boyle] is a ‘criminal’ and is violating the civil and criminal provisions of the federal and Florida RICO acts through his filing of public records requests and pursuit of lawsuits to enforce alleged violations of the Public Records Law.”
Both sides agreed to pay their own attorney’s fees.
O’Boyle and another resident, Chris O’Hare, started flooding the town with requests for public records in 2013. In the six months before O’Boyle sought the police records, Gulf Stream received more than 700 requests.
In June, O’Hare and the town agreed to dismiss 36 lawsuits and appeals between them and withdraw all pending requests for records. Neither side paid the other’s legal bills.
O’Boyle’s other notable win in the public records war came in the dismissal of a federal lawsuit the town filed alleging a Racketeer Influenced and Corrupt Organizations conspiracy by O’Boyle, O’Boyle entities and O’Hare to extort cash settlements of public records requests. A federal judge dismissed the suit in June 2015; his decision was upheld on appeal a year later.
A state judge dismissed the town’s request for an injunction to stop O’Boyle and O’Hare from making requests for public records in November 2015.
In July 2013, before the current war began, the town paid O’Boyle $180,000 to settle approximately 16 lawsuits and about 400 requests for public records he filed after he was denied variances for work on his Hidden Harbour home.
Sweetapple said a vigorous defense of the current lawsuits was the best way to prevent future filings. “The only thing you do with a bully is punch them right back in the nose,” he said.
O’Boyle took comfort in his appellate victory. “The 4th DCA body-slammed them,” O’Boyle said.