Waibel v. Southwest Florida Water, Management District

District Court of Appeal of Florida

Waibel v. Southwest Florida Water, Management District

620 So. 2d 232, 1993 Fla. App. LEXIS 6497, 1993 WL 210725

CourtDistrict Court of Appeal of Florida

DecidedJune 16, 1993

DocketNo. 92-03438

StatusPublished

This text of 620 So. 2d 232 (Waibel v. Southwest Florida Water, Management District) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Waibel v. Southwest Florida Water, Management District, 620 So. 2d 232, 1993 Fla. App. LEXIS 6497, 1993 WL 210725 (Fla. Ct. App. 1993).

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ALTENBERND, Judge.

James A. Waibel appeals a final judgment in favor of the plaintiff, Southwest Florida Water Management District (SWFWMD). The judgment imposes a mandatory injunction requiring Mr. Waibel to complete a surface water management system and to restore wetlands in accordance with a permit that was issued to him by SWFWMD after he had already begun a project on his property. The judgment also requires Mr. Waibel to pay a $25,000.00 fine, SWFWMD’s attorneys’ fees of $55,-957.25, and costs of $11,450.77. We affirm the judgment, except for the award of fees and costs.

In 1986, Mr. Waibel purchased approximately ten acres of land in Polk County just north of Interstate 4 at the intersection of Tomkow Road and Old Polk City Road. The property had an existing drainage ditch, and at least from Mr. Waibel’s perspective, it was not a wetland. Mr. Waibel decided to excavate a large “fish[233]*233pond” and use the borrowed soil to raise the level of the surrounding property. There is evidence that Mr. Waibel checked with SWFWMD in 1989 and was told that technically he needed a permit for this project, even though many landowners dig fishponds without a permit. Mr. Waibel began his project without obtaining a permit. He declined to stop the project when SWFWMD advised him to stop. SWFWMD then filed this enforcement action.

Mr. Waibel clearly believes that SWFWMD’s decision to pursue this enforcement action is unreasonable, and that his project will not harm the environment. He feels that SWFWMD is intruding upon his private property rights without justification. Although we can understand his feelings, the final judgment is authorized by law and supported by substantial, competent evidence. We affirm the injunction and the fine without additional discussion of his several issues.

The amount of the award of fees and costs, however, is not supported by competent evidence. The trial court relied on an affidavit from a law firm’s bookkeeper, who merely confirmed that certain bills for legal services and costs had been sent to SWFWMD. There is no evidence that these bills were paid by SWFWMD. There is no evidence from any attorney establishing work performed on this case, the necessity of that work, or the reasonable fee for those services. Accordingly, we reverse the award of fees and costs and remand for a hearing to establish those amounts.

Affirmed in part, reversed in part, and remanded.

SCHOONOVER, A.C.J., concurs. HALL, J., concurs specially.

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ALTENBERND, Judge.

James A. Waibel appeals a final judgment in favor of the plaintiff, Southwest Florida Water Management District (SWFWMD). The judgment imposes a mandatory injunction requiring Mr. Waibel to complete a surface water management system and to restore wetlands in accordance with a permit that was issued to him by SWFWMD after he had already begun a project on his property. The judgment also requires Mr. Waibel to pay a $25,000.00 fine, SWFWMD’s attorneys’ fees of $55,-957.25, and costs of $11,450.77. We affirm the judgment, except for the award of fees and costs.

In 1986, Mr. Waibel purchased approximately ten acres of land in Polk County just north of Interstate 4 at the intersection of Tomkow Road and Old Polk City Road. The property had an existing drainage ditch, and at least from Mr. Waibel’s perspective, it was not a wetland. Mr. Waibel decided to excavate a large “fish[233]*233pond” and use the borrowed soil to raise the level of the surrounding property. There is evidence that Mr. Waibel checked with SWFWMD in 1989 and was told that technically he needed a permit for this project, even though many landowners dig fishponds without a permit. Mr. Waibel began his project without obtaining a permit. He declined to stop the project when SWFWMD advised him to stop. SWFWMD then filed this enforcement action.

Mr. Waibel clearly believes that SWFWMD’s decision to pursue this enforcement action is unreasonable, and that his project will not harm the environment. He feels that SWFWMD is intruding upon his private property rights without justification. Although we can understand his feelings, the final judgment is authorized by law and supported by substantial, competent evidence. We affirm the injunction and the fine without additional discussion of his several issues.

The amount of the award of fees and costs, however, is not supported by competent evidence. The trial court relied on an affidavit from a law firm’s bookkeeper, who merely confirmed that certain bills for legal services and costs had been sent to SWFWMD. There is no evidence that these bills were paid by SWFWMD. There is no evidence from any attorney establishing work performed on this case, the necessity of that work, or the reasonable fee for those services. Accordingly, we reverse the award of fees and costs and remand for a hearing to establish those amounts.

Affirmed in part, reversed in part, and remanded.

SCHOONOVER, A.C.J., concurs. HALL, J., concurs specially.

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620 So. 2d 232, 1993 Fla. App. LEXIS 6497, 1993 WL 210725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waibel-v-southwest-florida-water-management-district-fladistctapp-1993.

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